Rankin v. Malarkey

• Decision Date: 20 November 1893
• Citation: 34 P. 816,23 Or. 593
• Parties: RANKIN v. MALARKEY et al.
• Court: Oregon Supreme Court

34 P. 816

23 Or. 593

RANKIN v. MALARKEY et al.

Supreme Court of Oregon

November 20, 1893

On rehearing. For report of decision on appeal, see 32 P. 620.

Dan J. Malarkey, for appellants.

Johnson & Idleman and H.G. Platt, for respondent.

BEAN, J.

The right to enforce a mechanic's lien against a building for labor performed or material used in its construction, is purely a creature of the statute, and does not exist, however equitable the claim may be, unless the party claiming the lien brings himself within the provisions of the statute by a substantial compliance with its terms. Whatever the statute makes necessary to the existence or enforcement of the lien must be substantially complied with, and the courts cannot by construction, dispense with any of its requirements. This is the rule of the adjudged cases, both of this and other courts, and is the one announced by the former opinion herein. Now, applying this rule to the claim of lien before us, it is apparent that it does not comply with the statute, because it does not appear on the face thereof as required by section 3673, Hill's Code, to whom Rankin furnished the material, if, indeed, it appears that he furnished any of the material, used in the Malarkey building. The language that "I, N.K. Rankin, *** have, by virtue of a certain contract with D.C. McDonald & Co., *** and for the furnishing of lumber and material used in the erecting and building and completing of a certain dwelling house," cannot, under the most liberal rules of construction, without eliminating the words "and for the furnishing of," and substituting in place thereof the word "furnished," be tortured into a statement that, by virtue of a contract with McDonald & Co., Rankin furnished lumber and material used in said dwelling house. It is entirely silent as to what Rankin did by virtue of his contract with McDonald, nor can it be said, from a fair construction of the language, that the contract with McDonald & Co., referred to, was for furnishing the lumber and material used in the Malarkey building. We are not disposed to apply a strict or technical construction to mechanics' liens, and, however faulty or illy constructed they may be if it can fairly be inferred from the language used that the requirements of the statute have been substantially complied with, they will be upheld and enforced. But we cannot change the language by eliminating and substituting words, and...