West Side Lumber & Shingle Co. v. Herald

• Decision Date: 07 January 1913
• Citation: 128 P. 1006,64 Or. 210
• Court: Oregon Supreme Court
• Parties: WEST SIDE LUMBER & SHINGLE CO. v. HERALD et al.

128 P. 1006

64 Or. 210

WEST SIDE LUMBER & SHINGLE CO. v. HERALD et al.

Supreme Court of Oregon

January 7, 1913

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Suit by the West Side Lumber & Shingle Company against A.G. Herald doing business under the name of A.G. Herald & Co., and another. From an adverse decree, plaintiff appeals. Reversed and rendered.

This is a suit by the West Side Lumber & Shingle Company, a corporation, against A.G. Herald, doing business as A.G Herald & Co., and Pauline Waidt to foreclose an alleged lien. The complaint states the capacity of the plaintiff, and alleges, in effect, that a contract was concluded whereby Herald undertook to construct a building for Mrs. Waidt, and that the plaintiff at Herald's request delivered to him lumber to be used and which was employed in the erection of her house, which material, less a discount of $34.82, was of the value of $545.41, on account of which only the following sums had been paid, to wit, June 18, 1909, $313.45, and August 5th of that year $116.37 or $429.82, thereby leaving due $115.59. The answer denied the material averments of the complaint, and, the cause having been tried, the court concluded that the evidence received was insufficient to establish a delivery of material whereby any money remained due, and thereupon dismissed the suit, from which decree the plaintiff appeals.

J Frank Shelton, of Portland (Sweek, Fouts & Shelton, of Portland, on the brief), for appellant.

W.M Cake, of Portland (Cake & Cake, of Portland, on the brief), for respondents.

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

The transcript shows that on May 7, 1909, the defendant Mrs Pauline Waidt owned lots 15 and 16, in block 5, Edendale addition to Portland, which real property is situate at the corner of East Forty-First and Yamhill streets, in that city. As she intended to have a dwelling erected on the premises, her husband on that day entered into a written agreement on her behalf with the defendant A.G. Herald, whereby the latter stipulated that, in consideration of $2,800, he would furnish the material and supply the labor necessary to complete the structure. The contract provided that, when any bills were presented to Herald for labor or material, Mr. Waidt would liquidate the demands by issuing checks, which written orders should evidence the receipt of money paid on account of the agreement. At the time Mrs. Waidt's building was being constructed, Herald was also engaged in putting up houses for other persons in Portland, and the plaintiff was furnishing the materials therefor. It was the custom of plaintiff's agents when any lumber was sent out from its mills on a wagon to prepare one original and two duplicate bills of the material, the copies being handed to the teamster, who delivered one transcript to the person receiving the lumber, and from the latter he would secure a written acknowledgment of such delivery, indorsed on the other copy, which he returned. The plaintiff on June 8, 1909, had sent to Herald 10 wagon loads of lumber invoiced at $348.27, on which a discount of 10 per cent. was allowed, thereby valuing the material at $313.45, which was paid on the 17th of that month by Mr. Waidt's check. Thereafter and prior to July 9, 1909, the plaintiff sent to Herald five more wagon loads of lumber billed to East Forty-Second and Yamhill streets; the material being rated at $92.32. The receipt of this lumber was acknowledged by J.V. Hibbs. Herald on July 20, 1909, paid plaintiff $110 without directing him how the sum should be applied, whereupon credit therefor was entered upon its books as for lumber furnished for Mrs. Waidt's building. The plaintiff on July 17, 1909, and the following day, sent to Herald two more loads of lumber, billed and receipted for as last above, the material being appraised at $116.37, which sum Mr. Waidt discharged on the 31st of that month by a check on the face of which he wrote: "For finishing lumber to date." After that payment was made, but prior to September 9, 1909, the plaintiff sent three other loads of lumber, billed to Herald at East Forty-Second and Yamhill streets, and receipted for by J.V. Hibbs; the material being listed at $23.27. The plaintiff on September 27, 1909, learning that the sum of $110 so credited was erroneously noted on its books, changed the entry to the account of the person who had paid the money to Herald, and...