Pankey v. Oregon, C. & E. Ry. Co.

Citation122 Or. 346,255 P. 470
PartiesPANKEY v. OREGON, C. & E. RY. CO.
Decision Date29 April 1927
CourtSupreme Court of Oregon

In Banc.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Action by Lewis Pankey against the Oregon, California & Eastern Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with directions.

This is an appeal from the order of the circuit court of Klamath county sustaining a demurrer to the complaint. The complaint in substance, sets forth that the Nettleton-Bruce-Eschbach Company entered into a contract with the defendant Oregon California & Eastern Railway Company to do the grading, and to complete a line of railway, roadbed, with road crossings etc., the proper description of which is unnecessary here that the plaintiff furnished to the Nettleton-Bruce-Eschbach Company goods, wares, and merchandise in the aggregate sum of $3,493.35, upon which there was due at the time of the filing of this complaint the sum of $2,502.25, and that said provisions and supplies were furnished for the use of the laborers and employés and the hay for feed for the live stock, all of which was used by the contractors in the conduct of the work. It then sets forth that plaintiff duly filed his lien with the clerk of Klamath county. A copy of said notice of lien is set forth in the complaint, and is in apparently the proper and usual form for such notices of lien.

It is also set up as part of the contract between the railway company and the Nettleton-Bruce-Eschbach Company that the Nettleton-Bruce-Eschbach Company furnished a bond in the sum of $25,000 to the railway company with the National Surety Company; as surety, conditioned for the faithful performance of the contract, and to save harmless the railway company from all claims, demands, liens, or causes of action for labor performed or material or provisions supplied or furnished in carrying on said work covered by said contract.

It is further alleged in the complaint that before the expiration of the time allowed for the foreclosure of plaintiff's lien, the defendant railway company brought an action in the District Court of the United States for the District of Oregon against the surety company for an alleged breach of the bond by the contractors, in which it is alleged that the Nettleton-Bruce-Eschbach Company failed to perform their contract according to its terms and conditions, failed to pay all laborers and mechanics for labor performed and materialmen for material, or provisions furnished or supplied at the instance of said company, but contracted bills in the sum of $28,265.49 for labor, material, and supplies, no part of which has been paid; that the said Nettleton-Bruce-Eschbach Company did not indemnify and save harmless the plaintiff, the present defendant, from all claims, demands, liens, or causes of action for labor performed or material or provisions supplied or furnished in carrying on said work, but suffered and permitted liens to be filed against the property of this defendant, plaintiff in the proceeding in the District Court of the United States for the District of Oregon, on account of said work in the sum of $25,654.94, and that all of said liens herein referred to were filed in the office of the county clerk of Klamath county, Or., before the 1st day of September, 1923.

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3 cases
  • First Nat. Bank of North Bend v. U.S. Fidelity & Guaranty Co.
    • United States
    • Oregon Supreme Court
    • October 23, 1928
    ... 271 P. 57 127 Or. 147 FIRST NAT. BANK OF NORTH BEND v. UNITED STATES FIDELITY & GUARANTY CO. ET AL. Supreme Court of Oregon October 23, 1928 ... Department ... Appeal ... from Circuit Court, Multnomah County; Robert Tucker, Judge ... authorities, as shown by the opinion of Mr. Justice McBride, ... in Pankey v. Or. Cal. & East Ry Co., 122 Or. 346, ... 255 P. 470, 471. The same principles have been applied under ... various states of fact in ... ...
  • Davis v. Tyee Industries, Inc.
    • United States
    • Oregon Court of Appeals
    • October 5, 1982 not necessary that the defendant have received money from the plaintiff to enable the action to be maintained. Pankey v. Oregon Etc., 122 Or. 346, 351, 255 P. 470 (1927); Shell Co. of California v. O'Reilly, 121 Or. 215, 220, 253 P. 1046 (1927). Here, plaintiff makes a claim to money hel......
  • Pankey v. Oregon, C. & E. Ry. Co.
    • United States
    • Oregon Supreme Court
    • April 9, 1929

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