Shea v. Peters

• Decision Date: 26 June 1928
• Citation: 268 P. 989,126 Or. 76
• Parties: SHEA v. PETERS ET AL.
• Court: Oregon Supreme Court

268 P. 989

126 Or. 76

SHEA v. PETERS ET AL.

Supreme Court of Oregon

June 26, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit by J. F. Shea against Joe C. Peters and others. Decree for the plaintiff, and the named defendant appeals. Modified and affirmed.

Nicholas Jaureguy, of Portland (Murdoch & Crum and Jaureguy & Tooze, all of Portland, on the brief), for appellant.

Arthur H. Lewis, of Portland (Lewis, Lewis & Finnigan, of Portland on the brief), for respondent.

RAND C.J.

This is an appeal from a decree foreclosing two mechanic's liens which, it is claimed, were invalid because not filed within the time required by the statute, and also because of the alleged failure of the lienors to comply with section 10191, Or. L., which requires that:

"Every person * * * furnishing material or supplies of any kind to be used in the construction * * * of any building * * * shall, not later than five days after the date of the first delivery, to any contractor or agent, of such material or supplies * * * deliver or mail to the owner or reputed owner of the property, on, upon or about which said material or supplies are to be used, a notice in writing stating in substance and effect that such person, firm or corporation has commenced to deliver material and supplies for use thereon, with the name of the contractor or agent or other person ordering the same, and that a lien may be claimed for all material and supplies furnished by such person, firm or corporation for use thereon. * * *"

Each of the foreclosed liens were for both labor and material furnished in the construction of a dwelling house, and the particular notice just referred to was not given. The statute further provides that:

"No materialmen's lien for material or supplies furnished to the contractor or the agent of any owner or reputed owner shall be enforced unless the above provisions of this act have been complied with."

Another requirement of the statute is that where labor has been performed or materials furnished in the construction of a building at the instance of the owner or his common-law agent, the person performing the work or furnishing the material is an original contractor, and must file his lien within 60 days after the completion of his contract, while all other persons are required to file their liens within 30 days after the completion of the building or improvement for which the lien is claimed. Section 10195, Or. L.; James A. C. Tait & Co. v. Stryker, 117 Or. 338, 243 P. 104, and cases there cited.

The dwelling house upon which the liens are claimed was completed on May 17, 1924. The liens were not filed within 30 days after the completion of the building, but were filed within 60 days after the completion of their contracts by the lienors. Hence it will be seen that both of these questions depend upon whether or not the lienors were original contractors, for, if they were, they had 60 days from the completion of their contracts in which to file their liens, and, if they were original contractors, and furnished the material for which the liens in part were claimed at the instance of the owner of the building, and not at the instance of an agent of the owner, notice to the owner that materials for which a lien might be claimed were being furnished was not necessary.

The determining facts upon this controversy are as follows: At the time of the construction of this particular dwelling house, Charles E. Kenner and Hildagard M. Kenner were the record owners of the two lots upon which it was being erected, and the said Charles E. Kenner and one O. M. Johnson were copartners, doing business under the name of "Kenner and Johnson," and were engaged in the business of constructing dwelling houses for sale, and, as such partners, constructed the dwelling house in question, and, after its construction, sold said lots and dwelling house to the defendant, Joe C. Peters, who is the present owner thereof; a deed therefor being executed by the two Kenners. There is no evidence that Hildagard M. Kenner had anything to do with the construction of the dwelling house, but the evidence does show that, after the building had been constructed by the partnership, of which her cotenant in the two lots was a member, she joined with him in the conveyance of the property to Peters. There is no evidence of any contract between the two Kenners and the partnership under which the partnership took possession of the two lots and erected a building thereon, but the evidence clearly shows that the labor and the material for which the liens are claimed were furnished to the partnership by the lienors at the request of Charles E. Kenner, who was a member of the firm, and a half owner in the real property, and that the house was constructed by and, when constructed, belonged to, the firm.

Whether such firm had entered into a contract with Hildagard M Kenner for the construction of the house or for the purchase of her interest in the land does not appear. The evidence, however, does show that the labor and material for which the liens are claimed were furnished at the instance of Charles E. Kenner, and, therefore, to bind his estate in the land, no notice to him that the materials were being furnished was necessary. The evidence also shows that Charles E. Kenner owned an undivided one-half interest in the two lots,...