Phillips v. Graves

• Citation: 139 Or. 336,9 P.2d 490
• Parties: PHILLIPS v. GRAVES et al.
• Decision Date: 29 March 1932
• Court: Oregon Supreme Court

9 P.2d 490

139 Or. 336

PHILLIPS v. GRAVES et al.

Supreme Court of Oregon

March 29, 1932

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Suit by D. J. Phillips against Ernest L. Graves, B. A. Kliks, and others to establish and foreclose two mechanics' liens in which defendant Kliks, mortgagee of the premises, and other defendants, filed cross-complaints. From a decree for plaintiff and certain cross-complainants, defendant Kliks appeals.

Reversed in part, and affirmed in part.

RAND J., and BEAN, C.J., dissenting.

B. A. Kliks, of McMinnville (Alvin A. Kurtz, of McMinnville, on the brief), for appellant.

Arthur H. Lewis, of Portland (Lewis, Lewis & Finnigan, of Portland on the brief), for respondents Charles A. Shea and W. A. Lindsay.

C. W Redding, of Portland, for respondent Dorothy L. Kliks and others.

ROSSMAN J.

A review of a few undisputed facts will readily reveal the issues awaiting our attention. One Ernest L. Graves was the owner of a lot in the city of Portland which he was improving with the construction of a dwelling house. May 3, 1926, before the work had been commenced, he borrowed from the defendant B. A. Kliks the sum of $3,500, and, in order to secure its repayment, executed upon that day a mortgage upon the aforementioned lot. It is the house, and not the lot, which the lien claimants seek to affect with their alleged liens. Section 51-103, Oregon Code 1930. May 6, 1926, construction of a dwelling house was begun. Prior to that time Graves and one J. F. Shea, a plumbing contractor, agreed that the latter should perform the plumbing work upon this house for the stipulated sum of $510. December 18, 1926, when the plumbing work was 60 per cent. complete, Shea died. Charles A. Shea, his son, was appointed administrator, and subsequently completed the contract. After the plumbing had been roughed in, construction work upon the house ceased and was not resumed until some time in 1928. In July of that year, that being 18 months after the death of J. F. Shea, the administrator and Graves agreed that Shea should install in the house a furnace, a heater for the hot-water tank, a composition tile drainboard in the kitchen, some tile work in the bathroom, and should also be responsible for connecting the water pipes of the house with the city's pipes in the street. For these additional items the administrator made a charge of $318.50. September 22, 1928, after all of the above work had been completed, the administrator filed a lien notice in which he set forth the statement of claimant's demand as follows:

"Mr. Ernest L. Graves, In Account with Charles A. Shea, Administrator of the Estate of J. F. Shea, deceased.

"To labor and material furnished and delivered and used in the construction of said building, as per contract, $828.50."

The account did not segregate the total into items. Charles A. Shea, as administrator, seeks in this suit to foreclose the aforementioned lien. Although he appears in the title of the cause as a defendant, we shall hereafter deem Charles A. Shea, administrator, as a plaintiff or a claimant. The pleadings of the defendant Kliks alleged several defenses against the claim of Shea, but we shall confine our attention to the contention which urges that an administrator cannot file a lien notice for work done by his decedent, and to the further contention that, since the lien notice lumps in one total the claims for work done by the deceased, as well as for work done by the administrator, it will be impossible to sustain the lien even though we should conclude that the administrator would be entitled to a lien for the work done by himself.

The second of the aforementioned liens is claimed by one W. A. Lindsay, a carpenter, who alleges that he performed work upon the above premises of the reasonable value of $72. Kliks urges that Lindsay has been paid in full for all work performed by him upon the premises, and that his lien notice was not filed within 30 days after completion of the building, unless we should conclude that some minor items done within the 30-day period were not properly classifiable as repairs but, in fact, constituted construction work. These constitute Kliks' principal objections to the Lindsay claim.

Section 51-101, Oregon Code 1930, provides: "Every mechanic *** contractor *** and other persons performing labor upon or furnishing material *** used in the construction *** of any building *** shall have a lien upon the same for the work or labor done *** or material furnished. ***"

Section 51-105, Oregon Code 1930, provides: "It shall be the duty of every original contractor within sixty days after the completion of his contract *** to file with the county clerk *** a claim containing a true statement of his demand *** which claim shall be verified by the oath of himself or of some other person having knowledge of the facts."

The first question presented by this appeal is whether the administrator can obtain a lien for work performed by the deceased and for which the latter filed no lien notice. This court has never before been called upon to decide this question. The nearest that any of our previous decisions approach this problem are those which hold that an assignee of a mechanic's account for unpaid wages is unable to obtain a lien. As early as 1870 this court in Brown v. Harper, 4 Or. 89, pointed out that the authorities treated the right to assert and perfect a mechanic's lien as a privilege personal to the mechanic and not transferrable. After having made this observation, the court intimated that an assignee of the account, before a lien notice had been filed, acquired nothing more than the chose in action and was unable to secure the benefit of a lien, but held that one who acquired his rights from another who had perfected his lien by filing the required notice acquired not only the account but the lien also. In Alderson v. Lee, 52 Or. 92, 96 P. 234, 237, this court said: "The rule is that the right to perfect a lien, given by statute, is a privilege limited to the claimant, and that any assignment thereof before record carries only the chose in action constituting the basis of the intended lien." In Loud v. Gold Ray Realty Co., 72 Or. 155, 142 P. 785, 786, this court reiterated the same principle, and declared: "The right to a lien of this kind is a creature of the statute, and the right to perfect such a lien is limited to the persons who do the work or furnish the material or supplies. *** The rule is settled in this state that, if a person has a right to perfect a lien of this nature, and he assigns his debt or claim to another, his assignee takes title to the debt, but has no right to perfect the lien." See, to like effect, McKinley v. Tice, 129 Or. 190, 276 P. 1110. The plaintiffs question the wisdom of these decisions, and contend that the assignment of the claim carries with it the security. The authorities are in sharp conflict upon the question whether the assignment of the claim authorizes the assignee to perfect the lien by filing the required notice. For a collection of decisions, see Phillips on Mechanics' Liens (3d Ed.) §§ 54-56 and 40 C.J. "Mechanics' Liens," p. 309, § 407. An examination of the authorities discloses that many of those which hold that the assignment of the debt authorizes the assignee to perfect the lien were affected by mechanic's lien statutes which demanded such conclusions. Of the decisions which hold that the assignee of the claim may perfect the lien, Kinney v. Duluth Ore Company, 58 Minn. 455, 60 N.W. 23, 49 Am. St. Rep. 528, possibly was the least aided by a lien statute. We take from it the following excerpt: "There is nothing in our statute, as there is in the statute of some states, which forbids, directly or by implication, the assignment of such claims and demands; and it was held more than 25 years ago, in Tuttle v. Howe, 14 Minn. 145 [Gil. 113], 100 Am. Dec. 205, that a lien claim was capable of assignment, although in that case the required affidavit for a lien had been filed by the original creditor prior to the assignment. In that opinion, attention was called to the General Statutes of 1866, chapter 90, section 14, the then existing lien law, which gave to executors and administrators, as does the laws of 1889, chapter 200, section 17, the same rights as their testator or intestate would be entitled to, if living, and the well-settled general rule, that whatever rights of action or of property survive to an executor or administrator are assignable was referred to and relied upon. No one would dispute the right of an executor or an administrator to file the lien statement required by the present statute, and if such be the case it logically follows that the assignee of the lien may make and file the lien statement. There is no good reason why the right to the lien should not be assignable before as well as after the statement has been filed, and there is an abundance of reasons why, if the right be assigned, the assignee should thereafter take all necessary steps required to preserve and collect his claim."

Of the cases taking the opposite view, Mills v. La Verne Land Co., 97 Cal. 254, 32 P. 169, 170, 33 Am. St. Rep. 168 is a good representative. After the court in that decision had reviewed many of the authorities, it expressed itself thus: "Appellant invokes the rule that the assignment of a debt carries with it the lien by which it is secured. But, in the first place, that rule is not of universal application, It does not apply, for instance, to vendors' liens, or to the many liens which accrue to various kinds of bailees. And, in the second place, at the time of the assignment of the debt to plaintiff in the case at bar, there was no lien securing it...