Portland Hardwood Floor Co. v. Chas. K. Spaulding Logging Co.

• Citation: 64 Or. 316,130 P. 52
• Parties: PORTLAND HARDWOOD FLOOR CO. v. CHAS. K. SPAULDING LOGGING CO. et al.
• Decision Date: 25 February 1913
• Court: Supreme Court of Oregon

130 P. 52

64 Or. 316

PORTLAND HARDWOOD FLOOR CO. v. CHAS. K. SPAULDING LOGGING CO. et al.

Supreme Court of Oregon

February 25, 1913

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Suit to foreclose lien by the Portland Hardwood Floor Company against the Chas. K. Spaulding Logging Company and others. From a decree dismissing its claim, the defendant named, appeals. Reversed and rendered.

This is a suit to foreclose a materialman's lien upon a residence erected for the defendant Sholes. He had contracted with the defendant Sparks to erect three dwelling houses by separate contracts. The latter in turn contracted with the plaintiff for the flooring in the largest of the buildings, which for convenience will be called the Sholes residence. He took from the defendant Spaulding Logging Company separate contracts for the millwork to be used in each of the dwellings, and during the progress of the work bought from the company a large amount of other material, which he used in the construction of each of the three buildings. The plaintiff instituted this suit against Sholes as owner, Sparks as original contractor, and sundry lien claimants, including the Spaulding Logging Company, to foreclose its lien on the Sholes residence, but before the hearing all other liens had been settled or disposed of in one way or another, until the only remaining claimants were the plaintiff and the defendant Spaulding Logging Company. At the hearing the circuit court established the lien of the plaintiff, and dismissed the claim of the logging company, which appeals.

W.T Vinton, of McMinnville, and Geo. G. Bingham, of Salem (McCain & Vinton, of McMinnville, and J.M. Wall, of Hillsboro, on the brief), for appellant.

W.G Hare, of Hillsboro (Bagley & Hare, of Hillsboro, on the brief), for respondent.

BURNETT, J.

The question here to be determined arises between the logging company and the proprietor of the property upon which it claims a lien. It is established without serious dissent that Sparks, the original contractor, called upon the logging company for separate bids for the millwork for each of the three dwellings, and, having received such separate proposals, accepted them separately, so that each party knew in advance what millwork was to be furnished for each of the three dwellings. At the request of the contractor, as the work progressed, the logging company shipped him to be, and which was, used in the three dwellings three car loads of stuff composed of the millwork included in its bids, together with other material consisting of rough lumber, flooring, and the like. What are known in the case as the two small dwellings were finished before the Sholes residence was completed. The logging company had kept an account on its books, wherein were entered all the items of lumber and millwork furnished him in any way. Upon this account Sparks had made some payments, without designating upon what building they were to be applied, and the logging company had credited them in this account. The time within which the logging company could have filed a lien upon the two small dwellings had expired; and, as the period for filing a...