McCormack v. Bertschinger

• Decision Date: 30 June 1925
• Citation: 237 P. 363,115 Or. 250
• Parties: MCCORMACK v. BERTSCHINGER.
• Court: Oregon Supreme Court

237 P. 363

115 Or. 250

MCCORMACK v. BERTSCHINGER.

Supreme Court of Oregon, En Banc.

June 30, 1925

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Suit by V. W. McCormack against A. Bertschinger. Decree for plaintiff, and defendant appeals. Modified and affirmed.

Burnett J., and McBride, C.J., dissenting.

J. N. Hart, of Portland, for appellant.

William G. Smith, of Portland, for respondent.

RAND J.

Defendant the owner of lot 9 of block 76, in the Laurelhurst addition to the city of Portland, appeals from a decree foreclosing a lien on said lot for labor and material furnished in the construction of a dwelling house, garage, driveway, certain walks connecting with the house, and a retaining wall, all on said lot. He received in part payment the sum of $250, and claimed a lien for the balance remaining after deducting the amount of said payment. Plaintiff constructed the retaining wall at the special instance and request of the owner. The remainder of the labor and material was furnished at the instance of the original contractor, who had contracted with the owner to furnish the same. Since all of the labor and material for which the lien is claimed was either contracted to be furnished by the original contractor in his contract with the owner, or was contracted for by the owner himself in his contract with the lienor, the principle that the original contractor is only authorized to bind the owner's property with a lien for such labor and material as the owner has authorized him to contract for is not involved.

Defendant's first contention is that, for the lien to be valid, it was necessary for it to state the aggregate amount of all the labor and material which plaintiff had furnished, and the amount that had been paid thereon, and that a lien which recites a balance only is invalid and unenforceable. Section 10195, Or. L., requires a lien claimant to file "a claim containing a true statement of his demand, after deducting all just credits and offsets." Plaintiff's claim of lien was filed after said payment had been made, and contained a true statement of plaintiff's demand at the time it was filed. It literally complied with the requirements of the statute. A substantial compliance with the requirements of the statute is all that is requisite to the validity of a mechanic's lien. Rankin v. Malarkey, 23 Or. 593, 597, 32 P. 620, 34 P. 816; Christman v. Salway, 103 Or. 666, 685, 205 P. 541.

The complaint sets forth in hæc verba the notice of lien, and, amongst other things, alleges that the labor and material were furnished in "the construction, alteration, and repair of a certain building, sidewalk, outhouses, and driveway used in connection therewith," and "that said building is a residence and is located upon lot 9 of block 76, in Laurelhurst addition to the city of Portland." No demurrer or motion was interposed to the complaint. At the trial, the evidence disclosed that the labor and material for which the lien was claimed were furnished for, and used indiscriminately in, the construction of a dwelling house, garage, driveway, walks connecting with the house, and a retaining wall, all of which were on said lot 9.

The charges for which the lien is claimed are not itemized in the notice of lien. The only statement of account in the lien is a notation which reads as follows: "To labor and material, being concrete work on residence located on lot 9, block 76, Laurelhurst, $586.40."

Defendant contends that the labor and material which were furnished in the construction of the garage, driveway, walks, and retaining wall, and not in the construction of the house itself, were not lienable, and that, because the amount for which the lien is claimed is a lump sum, and there is no way in which it can be ascertained, from anything contained in the lien, how much of this lump sum was chargeable for the lienable labor and material furnished in the construction of the house, the whole lien must fail.

It is settled law in this state that "an account containing a lumping charge, in which is mingled an item for which no lien is given, will not support a lien; and the defect cannot be cured by oral evidence by means of which the items for which a lien is given may be separated from those for which a lien is not given." See Christman v. Salway, 103 Or. 666, 672, 205 P. 541; Stewart v. Spalding, 71 Or. 310, 141 P. 1127, and authorities cited. But where, from the notice of the lien itself, the lienable charges can be segregated, and the amount thereof determined without the aid of extrinsic evidence, a lien for the amount of the lienable items may be enforced. Kezartee v. Marks, 15 Or. 529, 16 P. 412; Harrisburg Lumber Co. v. Washburn, 29 Or. 164, 44 P. 390; Hughes v. Lansing, 34 Or. 124, 55 P. 97, 75 Am. St. Rep. 574; Stewart v. Spalding, supra; Christman v. Salway, supra.

That the statute does give the right to a lien for labor performed or material furnished in the construction of each and all of the structures upon which plaintiff claims to have performed labor and furnished material is clear, for section 10191, Or. L., provides that--

"Every * * * builder, contractor, lumber merchant, laborer * * * and other persons performing labor upon or furnishing material, or transporting or hauling any material of any kind to be used in the construction, alteration or repair * * * of any building * * * or any structure or superstructure * * * shall have a lien upon the same for the work or labor done or transportation or material furnished at the instance of the owner of the building or other improvement, or his agent," etc.

The garage was a building, and as such is specifically enumerated in the statute. The driveway, walks connecting with the house, and the retaining wall, are all structures or superstructures within the meaning of those terms as used in the statute. The meaning of a word may be ascertained by reference to the meaning of the words associated with it under the rule of noscitur a sociis. By an application of this rule it was held by Judge Deady in Giant Powder Co. v. Oregon Pacific Railway Co. (C. C.) 42 F. 470, 8 L. R. A. 700, that a railroad was a structure within the meaning of the word "structure," as used in the lien statute of this state, as it then existed. In Forbes v. Willamette Falls Electric Co., 19 Or. 61, 23 P. 670, 20 Am. St. Rep. 793, it was held that poles set in the ground, and connected together by wire in the usual way, for transmission of electric current, constituted a structure. See, also, the definition of the term "structure" as given in Words and Phrases, First and Second Series, and Bouvier's Law Dictionary.

Hence, it is clear that the garage, driveway, walks, and retaining wall are structures within the meaning of the statute, and that a person who performed labor or furnished material for use in their construction is entitled, under the statute, to maintain a lien therefor, and from this it follows that, if a single lien can be maintained for all of said labor and material, no nonlienable items were included in the lump sum for which the lien was claimed.

In deciding whether a single lien can be maintained against the house and the lot to which all of these structures are permanently attached, for labor and material furnished and used indiscriminately in the construction of these different structures on lot 9, and upon which no separate account was kept, and for which the entire charge is a lump sum, we are confronted with two objections, both of which, it is contended, are fatal to the validity of the lien: First, that the labor and the material were not all furnished under one contract, but were, in fact, furnished partly under a contract with the owner and partly under a contract with the original contractor; and, second, that separate notices of lien should have been filed against the house, the garage, the walks, and the retaining wall, for whatever labor and material were furnished in the construction of each of them.

The first objection is foreclosed, both by the statute and the former decisions of this court. The words of the statute are:

"Shall have a lien upon the same for the work or labor done or transportation or material furnished at the instance of the owner of the building or other improvement, or his agent; and every contractor, subcontractor, architect, builder or other person having charge of the construction, alteration or repair, in whole or in part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner for the purpose of this act."

This statute expressly authorizes the filing of a notice of lien for labor or material furnished to be used in the construction of any building or structure, whether furnished at the instance of the owner or his agent. If it was done at the instance of either or both, the statute gives a lien, and provides for but one lien, whether done at the instance of one or of both. There is nothing in the statute which, in any way, indicates an intention of requiring two liens to be filed for labor and material which were furnished partly at the instance of the owner and partly at the instance of his contractor, if used in the construction, alteration, or repair of the same building or improvement.

In Bohn v. Wilson, 53 Or. 490, 494, 101 P. 202, a suit to foreclose a mechanic's lien, the plaintiff had furnished material which had been used in the construction of two dwelling houses on certain real property belonging to the defendant Wilson, a part of which had been furnished at the instance of Lee, a contractor of Wilson, and a part at the instance of Wilson. Lee abandoned the contract, and Wilson took over and completed the construction of the two dwelling houses, and,...