Pilz v. Killingsworth

• Decision Date: 06 April 1891
• Parties: PILZ v. KILLINGSWORTH
• Court: Oregon Supreme Court

26 P. 305

20 Or. 432

PILZ v. KILLINGSWORTH

Supreme Court of Oregon

April 6, 1891

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

This is a suit to foreclose a mechanic's lien alleged to exist in favor of respondent and several other persons, for clearing a tract of land within the corporate limits of the city of Albina. The complaint alleges, for first cause of suit, that defendant, Killingsworth, is the owner of a certain tract of land in the corporate limits of the city of Albina, which is particularly described; that on the ______ day of ______ 18__, the true date of which is to plaintiff unknown, the defendant Killingsworth duly made and entered into a contract with the defenant Vennigerholz to clear, improve, and grade the land above described; that during the year 1890 the said defendant Vennigerholz employed this plaintiff to do work and labor for him on said land, under said contract, and this plaintiff performed work and labor under said employment for the period of 27 1/4 days, at the agreed price of $1.75 a day, amounting in the aggregate to the sum of $47.68; that no part of said sum has been paid, and there is now due and owing to plaintiff therefor the sum of $45.93; that on the 20th day of June, 1890, plaintiff duly made out and filed in the office of the recorder of conveyances for Multnomah county, Or., his notice that he intended to, and did, hold a lien upon the land above described, to secure the payment of said sum; that said lien was so filed within 30 days after plaintiff ceased to work under said contract, and was duly recorded at page 119 of Book B of Record of Mechanic's Liens for Multnomah county, Or., where the same has ever since remained of record and unsatisfied; and there is now due and owing to plaintiff the sum of $45.93, the payment of which is secured by said lien, together with interest from date of said lien; and that $10 is a reasonable attorney's fee for foreclosing said lien, and plaintiff paid $1 for the recording of said lien. The remaining causes of suit are mere repetitions of the first, except as to names and amounts. Defendant demurred to the complaint, because it did not state facts sufficient to constitute a cause of suit which being overruled, and defendant declining to answer further, a decree was entered foreclosing the liens, and ordering the sale of the property, and hence this appeal.

(Syllabus by the Court.)

When a person is employed by the owner of a lot in an incorporated city, to grade, fill in, or otherwise improve the same, and he employs laborers to assist him in performing the work, the services of such laborers will be considered as having been rendered at the request of the owner, within the meaning of section 3676, Hill's Code.

A "lot," within the meaning of section 3676 of Hill's Code, is evidently not to be understood as synoymous with "tract" or "parcel," but in the sense of a city lot, as bounded and described on the recorded plats of the city, or as subdivided and bounded by conveyances of the owners thereof, or by other acts done by themselves, or the city authorities, in exercising the right of eminent domain in opening and establishing streets.

It must affirmatively appear from the complaint, in a suit to foreclose a mechanic's or laborer's lien, that the notice filed contained all the essential provision required by statute.

Sears & Beach, for appellant.

JC. Moreland and W.Y. Masters, for respondent.

BEAN J., (after stating the facts as above.)

By section 3676, Hill's Code, it is provided that "any person who shall, at the request of the owner of any lot in any incorporated city or town, grade, fill in, or otherwise improve the same, or the street in front of or adjoining the same, shall have a lien upon such lot for his work done and materials furnished in grading, filling in, or otherwise improving the same; and all the provisions of this act respecting the securing and enforcing of mechanics' liens shall apply thereto." The lien in this case is claimed by virtue of the provisions of this section of the statute. The contention of defendant is that the complaint does not state facts sufficient to bring the case within this provision of the law, because (1) it does not appear that the work was done at the request of the owner of the property; and (2) that the property described in the complaint is not a "lot," within the meaning of this section.

1. It appears that defendant made a contract with Vennigerholz to clear, improve, and grade this property. This authorized the latter to do all acts necessary and proper to enable him to fulfill his contract. It must have been understood that this work was not wholly to be done by the contractor with his own hands. He was fully empowered to employ such assistance as might be necessary to enable him to complete his contract. The consent of the owner to the employment of laborers by the contractor is a necessary and inevitable implication from the contract under which the work was done. We think a fair and reasonable construction of the section under consideration is that when a person is employed by the owner of a lot, in an incorporated city or town, to grade, fill in, or otherwise improve the same, and he employs laborers to assist him in performing the work, that the services of such...