Potter v. Davidson

• Decision Date: 28 March 1933
• Citation: 143 Or. 101,20 P.2d 409
• Parties: POTTER v. DAVIDSON et al. [*]
• Court: Oregon Supreme Court

20 P.2d 409

143 Or. 101

POTTER v. DAVIDSON et al. ^[*]

Supreme Court of Oregon

March 28, 1933

Department 1.

Appeal from Circuit Court, Marion County; Gale S. Hill, Judge.

Suit by Orvin J. L. Potter against T. L. Davidson and Earl Anderson administrators of the estate of R. E. Anderson, deceased substituted as defendants in lieu of such decedent, and others to foreclose a mechanic's lien. From a decree of dismissal plaintiff appeals.

Affirmed.

B. S. Martin, of Salem (L. R. Martin, of Salem, on the brief), for appellant.

Ray L Smith and Ronald C. Glover, both of Salem, for respondents.

KELLY Justice.

On the 14th day of September, 1927, plaintiff and his father, John Potter, and Mr. and Mrs. Paul M. Shearer signed an agreement wherein the Shearers agreed to convey to plaintiff a house and lot located at 1275 North Twenty-First street in the city of Salem, Marion county, Or., and plaintiff agreed to assume a mortgage thereon of $3,000, pay $400 in monthly installments of $35 each, and to deliver a Hudson automobile at the agreed price of $700. On the 16th day of September, 1927, plaintiff placed in escrow with the Triangle Realty Company a certificate of title to the automobile mentioned with an instrument containing instructions; and Mr. and Mrs. Shearer placed a warranty deed conveying said lot to plaintiff in escrow with said realty company with an instrument containing similar instructions. Indorsed upon each of these last-named instruments is a statement to the effect that Paul M. Shearer agrees to install a pipeless furnace, cement floors in basement and garage, cement sidewalk from the front property line to the house, and to completely finish the house and garage. These indorsements conclude thus: "It is further agreed that the purchaser is to accept house in present state of construction and in lieu of finishing same is allowed a credit of $225 for labor on the purchase price."

The Triangle Realty Company consisted of Doyle B. Smith and Carl A. Gies.

The testimony discloses that plaintiff and plaintiff's father performed labor upon the house in question and upon the sidewalk and garage.

On the 10th of December, 1927, plaintiff's father died.

On the 12th of December, 1927, Mr. and Mrs. Shearer, plaintiff, plaintiff's mother, and the Triangle Realty Company executed the following agreement:

"This agreement in triplicate made and entered into this 12th day of December, 1927 by and between Paul M. Shearer wife hereinafter called the first party, and Orvin J. L. Potter hereinafter called the second party and the Triangle Realty Company hereinafter called the third party.

"Witnesseth: That with reference to that certain exchange agreement executed by the first and second party on the 14th day of September 1927 covering the exchange of house and lot at 1275 N. 21st Street; same being a part (South third) of lot 17 Oakhurst Addition to the city of Salem, Oregon, owned by the first party and a Hudson Coach with Engine No. 209087, Serial No. 513514, Oregon 1927 license No. 249-709 owned by the second party together with and according to additional provisions of said agreement, and with the provisions of escrow instructions covering said transaction, signed by both first and second party respectively, receipt of a copy of both exchange agreement and escrow instructions being acknowledged by said parties.

"It is further agreed and understood by all the parties to this agreement that the second party hereby acknowledges the surrender of possession of said Hudson Coach to him by the first party; that the first party hereby acknowledges the surrender of possession to him of the premises described herein by the second party; that they both hereby acknowledge that with reference to said transaction that between themselves personally and independently of the third party they have satisfactorily arranged all differences whatsoever between themselves with respect to the aforementioned exchange and do each of them hereby exhonerate and release in every respect the third parties in every particular whatsoever in connection with the herein mentioned transaction or any of its ramifications.

"Upon the execution of this agreement the third party agrees to surrender to the second party the title certificate to the Hudson Coach mentioned herein. That upon the execution of this agreement and a certain note of $205. by the first parties that the third party agrees to surrender to the first party that certain deed placed in escrow by the first party with the third party of the premises mentioned herein.

"It is further agreed by all parties hereto that this agreement supersedes and takes the place of all prior agreements and is a termination of all matters with reference to said transaction, except as is mentioned herein.

"We the undersigned parties each acknowledge a receipt of a copy of this agreement.

"Paul M. Shearer

"(Paul M. Shearer)

"Johanna A. Shearer

"(Johanna A. Shearer)

"Orvin J. L. Potter

"(Orvin J. L. Potter)

"Mrs. Laura C. Potter.

"The Triangle Realty Company

"By D. B. Smith."

Contemporaneously with the execution of the above agreement the Hudson automobile aforesaid was delivered to plaintiff. The note mentioned therein for $205 was executed by Mr. and Mrs. Shearer, and the warranty deed, theretofore placed in escrow as above stated, was returned to them. Mr. and Mrs. Shearer also conveyed said premises to defendants R. E. Anderson, now deceased, J. M. Rupert, and Floyd C. Meyer.

On December 16, 1927, plaintiff filed with the county clerk of Marion county, Ore., the claim of lien for labor performed upon said house, sidewalk and garage, which he is hereby seeking to foreclose.

Plaintiff was born on October 7, 1907. His attitude is that, because of his minority, his contracts could be disaffirmed, and that by filing his claim of lien, and also by instituting and prosecuting this suit, he disaffirmed both the contract of purchase and the agreement rescinding it.

Thus it will be noted that plaintiff is asserting his privilege of infancy. "The privilege of infancy is to be used as a shield, and not as a sword." 2 Kent's Comm. 240; Rice v. Butler, 160 N.Y. 578, 55 N.E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703; Shutter v. Fudge, 108 Conn. 528, 143 A. 896. A court of equity should not disregard an infant's disability in order to give effect to his personal privilege. We are therefore impelled to consider whether plaintiff may maintain this suit. It is a suit to foreclose a purported mechanic's lien. The courts generally treat the lien as security for only a valid contractual claim. Phillips on Mechanics' Liens, (3d Ed.) 57, § 38; McCarty v. Carter, 49 Ill. 53, 95 Am. Dec. 572; Alvey v. Reed, Guardian, 115 Ind. 148, 17 N.E. 265, 7 Am. St. Rep. 418; Bloomer v. Nolan, 36 Neb. 51, 53 N.W. 1039, 38 Am. St. Rep. 690; Hall v. Acken, 47 N. J. Law (18 Vroom) 340; Richardson v. O'Connell, 88 Mo.App. 12; San Francisco Paving Co. v. Fairfield, 134 Cal. 220, 66 P. 255; Waldermeyer v. Loebig, 183 Mo. 363, 81 S.W. 904; De Ranko v. Lee (Mo. App.) 200 S.W. 79; Lepage v. Laux (Mo. App.) 211 S.W. 898; Lee v. Tonsor, 62 Okl. 14, 161 P. 804; Granquist v. Western Tube Co. 240 Ill. 132, 88 N.E. 468; Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619, 106 N.E. 466; Meade Plumbing, Heating & Lighting Co. v. Irwin, 77 Neb. 385, 109 N.W. 391; Eccles Lumber Co. v. Martin, 31 Utah, 241, 87 P. 713; Virginia Supply Co. v. Calfee, 71 W.Va. 300, 76 S.E. 669; J. W. White Co. v. Griffith, 127 Me. 516, 145 A. 134; T. J. Stewart Lumber Co. v. Derry, 122 Okl. 208, 253 P. 485; Littler v. Friend, 167 Ind. 36, 78 N.E. 238; Wagar v. Briscoe, 38 Mich. 587; Dressel v. French, 7 How. Pr. 350; Muldoon v. Pitt, 54 N.Y. 269; Nicholson v. Nichols, 115 N.C. 200, 20 S.E. 294; Sellwood Lumber Co. v. Monnell, 26 Or. 267, 38 P. 66.

In the absence of emancipation, plaintiff was without contractual capacity with respect to his services during infancy. He has neither pleaded nor proven emancipation. On the contrary, in the first paragraph of his amended complaint, he alleges that, subsequent to his father's death, during his minority he was living with his mother. In the absence of emancipation, if otherwise the facts would have justified it, the father might have maintained a lien of the character in suit in his own name for the services of his minor son. Howard v. Franklin, 32 Ga.App. 737, 124 S.E. 554; Cox v. W. T. Adams & Co., 5 Ga.App. 296, 63 S.E. 60; McElmurray v. Turner, 86 Ga. 215, 12 S.E. 359.

It is significant that plaintiff's father, while not expressly made a party thereto, signed the agreement of purchase. Witness Burger, a salesman for the Triangle Realty Company, testifying for plaintiff, said that because plaintiff was not of age, that realty company had to get plaintiff's father to sign the contract. Plaintiff, when asked what Mr. Shearer said to him about doing the work, testified: "Well, I don't just remember what was said because it has been a long while ago. My father was with me at that time and him and Mr. Shearer talked together, so I couldn't tell you exactly what was said between the three of us."

This tends strongly to refute the idea that plaintiff has been emancipated. It is to be borne in mind too that plaintiff's mother, while not expressly made a party thereto, signed the contract to rescind.

It is true that in fixing the value of his services in his direct examination, plaintiff testified as follows:

"Q. Now what was the reasonable value of such labor as you performed there? A. Well, at that time, a house like that the contract to finish the inside, at least was between $250 and $300.

"Q. What I mean, for--how much a day was labor worth at that time? A. It was worth six dollars a day.

"Q. Was...