Smith v. Wilcox

• Citation: 75 P. 710,44 Or. 323
• Parties: SMITH v. WILCOX et al. SAME v. TURPLE et al.
• Decision Date: 01 March 1904
• Court: Supreme Court of Oregon

75 P. 710

44 Or. 323

SMITH v. WILCOX et al. SAME v. TURPLE et al.

Supreme Court of Oregon

March 1, 1904

On petition for rehearing. Denied.

For former opinion, see 74 P. 708.

WOLVERTON, J.

In their petition for rehearing counsel urge that there remains a question that has not received the consideration of the court, which is, can the subcontractor, contracting separately with the original contractor for the construction of each of the two buildings, arbitrarily apportion the cost of materials and labor furnished at his instance upon the buildings indiscriminately, and claim a lien therefor? This mistakes the real question, which is, can the subcontractor under such conditions claim a lien for material and labor furnished under his contract--that is, having performed his contract with the original contractor, can he claim a lien for the amount remaining due him by the terms of that contract? In this form the question is answered by the main opinion. Being within the scope and authority of the original contract, the consideration agreed upon between the original contractor and the subcontractor must be deemed to have been reasonable, and the subcontractor has his lien to the extent of such agreed consideration. How Smith the subcontractor, performed his work of construction whether by subcontracts with other mechanics or workmen, or by the purchase of material and the employment of labor by him direct, and their use in the buildings, or whether his subcontracts with others comprised the two buildings jointly or the materials and labor were employed indiscriminately thereon, without keeping a separate account therefor with each building, could make no difference with the owner, so that his contract with the original contractor has been performed, and it is not costing him more than he agreed to pay for the work of construction. The subcontractors under Smith, if they made joint contracts for doing certain portions of the work as it respects both houses, and the materialmen and persons furnishing labor, if they furnished material and performed labor indiscriminately upon the two houses without keeping a separate account with each, might and undoubtedly would, have trouble, under the decision in Beach v. Stamper (Or.) 74 P. 208, in claiming a lien; but Smith is not environed or entangled with their difficulties. He had only to look to the performance of his subcontracts with Dammeier Company to...