Nicolai Bros. Co. v. Van Fridagh

• Decision Date: 07 November 1892
• Citation: 31 P. 288,23 Or. 149
• Parties: NICOLAI BROS. CO. v. VAN FRIDAGH et al.
• Court: Oregon Supreme Court

31 P. 288

23 Or. 149

NICOLAI BROS. CO. v. VAN FRIDAGH et al.

Supreme Court of Oregon

November 7, 1892

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

Action by the Nicolai Bros. Co. against P. Van Fridagh and others to enforce a mechanic's lien. From a judgment for plaintiff defendants appeal. Reversed.

A.C Emmons, for appellants.

H.B Nicholas, for respondent.

BEAN J.

This is a suit to enforce a mechanic's lien against the property of defendants for the value of certain material furnished by plaintiff to F. Moeller, a contractor, for the construction of a dwelling house for the defendants, and by him used in the erection of said house. A decree was entered in the court below in plaintiff's favor, from which defendants appeal. It is contended by defendants' counsel that the statement of a lien, upon which this suit is based does not comply with the provisions of the act relating to mechanics' liens, because, among other objections, it does not contain a true statement of plaintiff's demand after deducting all just credits and offsets. This objection we regard as fatal to plaintiff's claim, and therefore shall not notice the other points urged. We have repeatedly held that, while the act relating to mechanics' liens should be liberally construed, it is essential to the validity of a lien that the claim filed should on its face show a substantial compliance with the provisions of the law, and that none of the essential requirements of the statute can be dispensed with. Kezartee v. Marks, 15 Or. 529, 16 P. 407; Gordon v. Deal, 31 P. 287, (decided this term.) It is a right given solely by statute, and one attempting to avail himself of the privilege thus conferred must show a substantial compliance with the provisions of the law conferring it. Under the provisions of section 3673, Hill's Code, it is essential to the validity of a mechanic's lien that the statement filed, among other things, contains a "true statement" of the claimant's demand, "after deducting all just credits and offsets;" and it is admitted the lien in this case does not contain such a statement. It states the value of the material furnished by plaintiff to be $783, and that no payments have been made thereon, when it is admitted by plaintiff that, prior to the filing of the lien, $100 had been paid on this account by Moeller, and was credited on its books. The only excuse given for this misstatement is that the agent of plaintiff, who verified the lien as filed, relied on the bookkeeper's statement as to the amount due, and did not himself examine the books to ascertain the condition of the account, and for this reason, and because the misstatement was not fraudulent, willful, or intentional, it is urged the lien ought not to be held invalid on that account. The authorities are generally agreed that where in the lien filed there is an honest mistake in the amount or price of labor, or the quantity or value of material furnished about which there might be a difference of opinion requiring evidence to ascertain the true facts, it will not defeat the lien, and such is the effect of the authorities cited and relied upon by counsel for plaintiff. Bank v. Curtiss, 18 Conn. 342; Hopkins v. Forrester, 39 Conn. 351; Harrington v. Dollman, 64 Ind. 255; Albrecht v. Lumber Co., 126 Ind. 318, 26 N.E. 157; Harmon v. Railroad Co., 86 Cal. 617, 25 P. 124; Allen v. Smelting Co., 73 Mo. 688; Black v. Appolonio, 1 Mont. 342. But where the claimant seeks to enforce his lien against the property of one with whom he did not contract, and to whom he did not furnish labor or material, and in his statement, as filed, neglects to deduct from the amount of his claim payments which have been made thereon, and thereby puts on record a statement which he knows, or could have known by the exercise of reasonable...