Rankin v. Malarkey

• Decision Date: 22 March 1893
• Citation: 23 Or. 593,32 P. 620
• Parties: RANKIN v. MALARKEY et al.
• Court: Oregon Supreme Court

32 P. 620

23 Or. 593

RANKIN v. MALARKEY et al.

Supreme Court of Oregon

March 22, 1893

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

Action by N.K. Rankin against Charles A. Malarkey and others to foreclose a mechanic's lien. From a judgment in plaintiff's favor, defendants appeal. Reversed.

Chas. H. Carey and Dan'l. J. Malarkey, for appellant.

C.M Idleman and Durham & Platt, for respondent.

MOORE J.

This is a suit to foreclose a lien upon lots 3 and 4 in block 7 of King's second addition to the city of Portland, Or., and upon a dwelling houuse erected thereon, the property of C.A Malarkey, one of the appellants herein, for material furnished to the contractor. The court below held the lien valid, and a decree was entered foreclosing it, from which the defendants appeal.

Appellants contend that the notice set out in the pleadings fails to comply with the statutory requirements and for that reason is ineffectual to create a lien. It is unnecessary to notice all the objections presented, as, in our judgment, one point urged is decisive of the case. Section 3669 of Hill's Code gives this remedy to one who has furnished material to be used in a building at the instance of the owner or of his agent, and provides that every contractor shall be held to be the agent of the owner. Section 3673 provides that every lumber merchant desiring the benefit of the act shall file with the county clerk a claim containing a true statement of his demand, with the name of the owner, the name of the person to whom he furnished the materials, and also a description of the property to be charged with said lien sufficient for identification, which claim shall be verified, etc. The plaintiff, desiring to avail himself of the benefit of this act, filed the following claim:

"Know all men by these presents, that I, N.K. Rankin, of the city of Portland, in the county of Multnomah, Oregon, have, by virtue of a certain contract made with D.C. Macdonald &amp Co., of the county of Multnomah, Oregon, and for the furnishing of lumber and material used in the erecting and building and completing of a certain dwelling house, the ground upon which the said dwelling house was erected being at the time the property of C.A. Malarkey, who caused the said dwelling to be erected, said superstructure and land being known and particularly described as follows: Lots three and four, in block seven, in King's second addition to the city of Portland, Oregon. That the contract and reasonable price of such material so furnished was the sum of $2,090.81, lawful money of the United States. That the sum of $1,877.51 is now due or to become due in United States lawful money, said account and demand being hereinafter specifically set forth and stated. That it is the intention of the said N.K. Rankin to hold a lien upon the premises hereinbefore described, and that it is his intention to claim and hold such lien, not only upon the buildings, erections, and superstructures, but also upon the land upon which the same are erected. That the following is a true and correct statement of the account and demand of the claimant herein:

                            For labor performed 
                          
                            $
                          
                            Materials furnished ............
                          
                            2,090 81
                          
                            
                          
                            --------
                          
                            Total amount of debts .................
                          
                             $2,090 81
                          
                            Deductions by credits ..........
                          
                            $ 213 30
                          
                            
                          
                            --------
                          
                            Total amount of deductions ...............
                          
                            213 30
                          
                            
                          
                            ---------

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