Stark-Davis Co. v. Wilson

• Decision Date: 14 September 1926
• Citation: 248 P. 1095,119 Or. 308
• Parties: STARK-DAVIS CO. v. WILSON ET AL.
• Court: Oregon Supreme Court

248 P. 1095

119 Or. 308

STARK-DAVIS CO. v. WILSON ET AL.

Supreme Court of Oregon

September 14, 1926

In Bank.

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

Suit by the Stark-Davis Company against Wilbert B. Wilson and others to establish and foreclose a mechanic's lien. From an order dismissing the complaint, plaintiff appeals. Decree set aside, and decree entered in favor of plaintiff.

The plaintiff, Stark-Davis Company, a corporation, has appealed from an order of the circuit court decreeing the dismissal of its complaint upon the ground that a certain lien claim filed by plaintiff was not filed within 60 days from the time of the completion of its contract. The lien in question was a mechanic's lien for $150, filed by plaintiff on June 30 1925, on a dwelling house situate on lot 4, block 1, New York addition to the city of Portland, arising out of a contract made by it with Wilbert B. Wilson, the owner of the house for furnishing and installing a furnace, "together with all necessary pipes and equipment to make a complete warm-air heating system." Thereafter plaintiff brought suit to foreclose the lien. The complaint prays for a decree against defendant Wilbert B. Wilson for $150, for $75 as attorney's fees, for the further sum of $1.25 paid for recording the lien, for costs and disbursements, and that the lien may be foreclosed.

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

F. M Phelps and Wilbur, Beckett, Howell & Oppenheimer, all of Portland, for respondents.

BROWN J. (after stating the facts as above).

After the construction of the building, but prior to the filing of the lien, the property was transferred to the defendant H. E. Noble, who died during the pendency of this cause, and whose legal representatives and heirs have been duly substituted as defendants herein. The defendants assert that the lien was filed too late to be enforced.

Every original contractor who claims the benefit of the statute providing for a lien shall file his claim for such lien within 60 days after the completion of his contract. Or. L. § 10195. It follows that, in order to decide this cause, we are required to determine the date of the completion of the contract. At the time of making the contract involved herein the Stark-Davis Company had in stock furnaces which failed to comply with the requirements of the building code of the city of Portland, and knowingly installed one of these furnaces in the Wilson dwelling house; the work of installation being completed on or about April 4, 1925. A representative of the building department of the city of Portland inspected the furnace, and on April 22, 1925, notified the company that they must replace the same. Defendant Wilson gave a like notice. On May 2, 1925, the...