Stark-Davis Co. v. Fellows

• Decision Date: 30 April 1929
• Citation: 277 P. 110,129 Or. 281
• Parties: STARK-DAVIS CO. v. FELLOWS ET AL.
• Court: Oregon Supreme Court

277 P. 110

129 Or. 281

STARK-DAVIS CO. v. FELLOWS ET AL.

Supreme Court of Oregon

April 30, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; J. W. Hamilton, Judge.

Suit by the Stark-Davis Company against William B. Fellows and others. From the decree, plaintiff appeals. Decree modified.

W. Y. Masters, of Portland, for appellant.

Frank H. Hilton, of Portland, for respondents.

BEAN J.

Plaintiff appeals from a decree of the circuit court, rejecting his claim of a lien for the sum of $299.79, and dismissing its complaint.

This suit was brought to foreclose the mechanic's lien of plaintiffs upon lot No. 1, block D, in Clinton addition to East Portland, Multnomah county, Oregon. The defendant Emile A. Abry answered the complaint, setting up the mortgage on the property and denying the validity of plaintiff's lien. Defendant Abry was awarded a decree of foreclosure for the sum of $1,400 and interest, and $125 attorney's fees with costs, subject to three liens hereinafter mentioned.

Defendant Rowell Brown & Co. answered, denying the validity of plaintiff's lien, and setting forth three liens: One for materials furnished by it in the sum of $187.65, interest costs, and attorney's fees; a second, as assignee of defendant C. P. Schierholz, in the sum of $168, with interest, costs, and attorney's fees; and a third lien as assignee of defendant W. R. Curtis, for $145, with interst, costs, and attorney's fees. All the other defendants made default.

The case was assigned for trial to Judge George Rossman, but, the service not being complete upon the present owner, Wm. B. Fellows, it was stipulated that a portion of the testimony should be taken at that time and the case adjourned until a future date for completion. In the meantime Judge Rossman was appointed as Associate Justice of the Supreme Court, and the case was reassigned to Judge Hamilton. By the stipulation of the parties the testimony taken before Judge Rossman was read into the record by the official reporter, as we understand, for the information for the then trial judge. Different attorneys appeared before Judge Rossman than at the time of the final hearing, and some confusion was caused by the transposing of the testimony as to names of attorneys and the marking of exhibits.

It is shown by the plaintiff that material and labor were furnished in the construction of the building on the lot described under contract with Hilton Realty & Construction Company, who had the contract with Lucian T. Robinson, as owner, for the construction of the building, the reasonable value of such labor and material being $299.79, for which a notice of lien was filed on January 2, 1927, and recorded on that date; that the building was not completed at the time the lien was filed. The construction of the building was commenced in September, 1926, and the work proceeded until some time in December, when the last work of lathing was performed by W. R. Curtis, the exact date of which does not clearly appear.

It is claimed on behalf of defendants that the construction of the building was abandoned by the contractor, the Hilton Realty & Construction Company, and that the lien of plaintiff was not filed within the statutory time of 30 days after such abandonment, and it seems the trial court so held. The only question of merit in this case is that relating to the abandonment or cessation of the work upon the house. Plaintiff submits that, when the erection of a building, in course of construction, is abandoned by the contractor and owner, and the building therefore considered to be completed, that the time of the abandonment is not to be determined by the secret mental process of the contractor, and that the testimony does not show a permanent abandonment of the construction of the building 30 days before plaintiff's lien was filed.

It is shown by the testimony: That the owner made an arrangement with the Hilton Realty & Construction Company to construct a house on the lot, and deeded the lot to the realty company, but the deed was not to be recorded. That, when the house was completeed, then a deed was to be made back to Lucian T. Robinson. The mother of Lucian attended to the business relating to the building during his absence. Lucian Robinson executed a mortgage on the lot and paid the contractor about $1,400. The realty company had under construction, at the same time, two other buildings, and during December it was short of funds. When Mr. Curtis, the lather, completed his work, and a short time thereafter applied to Mr. Gibson, the president of the realty company, for his pay, Gibson "stalled" him, and, after Curtis had left the office, he took the witness Pollock, who was secretary of the realty company, into the office, and said, "I guess we will have to throw up the Robinson job." This was in December, 1926. That thereafter Gibson was trying to get money to finance the work. This is the abandonment relied upon by defendants in this case. The defendants did not plead an abandonment in either answer.

The plaintiff had no knowledge or notice of any abandonment or intent to abandon the work by the contractor. It is shown by plaintiff: That the work done on the building by it consisted of plumbing, and that plumbing materials were furnished. That part of the plumbing done was what was termed "roughing in work," which was completed about November 1st, and then, according to custom, the plumbing work ceased until the building was completed, except as to the finishing of the plumbing, which is usually 40 or 60 days after the first plumbing work. This would take until the last of December before the plaintiff would naturally expect notice from the contractor to complete the plumbing.

Mrs. Cloa Robinson, as a witness for defendants; testified, in part, to the effect: That on account of finances, "after about the middle of November, we were through. I just left it with Mr. Abry and Mr. Hilton to do that, because we couldn't do anything, the way things were tied up and the mess that it was in." That they had to let the lot go. Mrs. Robinson, upon being asked if she ever abandoned the construction of the home, and when, stated: "It was the Hilton Construction Company was supposed to finish that house, because we wasn't fixed in any way, our circumstances, to finish it. * * * It was the construction company and the mortgage that was supposed to take care of it." That was before the house was lathed that she reached that conclusion. It is shown that, in the first instance, the arrangement was that the Hilton Realty & Construction Company was to do the building, and the mortgage company to do the financing. It appears that the realty company obtained $1,400 out of the transaction, but failed to pay its bills.

On December 4, 1926, the Hilton Realty & Construction Company executed a warranty deed of the lot to defendant Wm. B. Fellows. The deed was recorded on the next day. Thus it appears that after the Robinsons lost interest in the lot and contract for a time the owner and contractor was one and the same person. After the deed to Mr. Fellows, it is shown by the testimony that he superintended the work on the building Therefore there is no question but that the performance of the work and the installation of the materials in the building at all times were assented and agreed to by the owner of the premises. There is no testimony in the case definitely indicating that the Hilton Realty Company or William B. Fellows, the last owner, intended to abandon the building, which had not been completed at the time of the trial. There were a few shingles to be put on the outside; the windows were not in, but the casings were, and the window jambs were set. The house was lathed, ready for plastering, but was not plastered.

W...