Wills v. Zanello

• Decision Date: 25 July 1911
• Citation: 59 Or. 291,117 P. 291
• Parties: WILLS v. ZANELLO et al.
• Court: Oregon Supreme Court

117 P. 291

59 Or. 291

WILLS v. ZANELLO et al.

Supreme Court of Oregon

July 25, 1911

Appeal from Circuit Court, Multnomah County; William N. Gatens Judge.

Suit by A.N. Wills against G. Zanello and others. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit in equity to foreclose a mechanic's lien on property owned by the Portland Railway, Light & Power Company in Sellwood, now a part of the city of Portland, being blocks O and P, and the building, known as the "Car Barns" situated thereon. In the construction of the building, the defendants, G.A. Zanello & Son, had a contract with the Portland Railway, Light & Power Company to do the brickwork A.N. Wills, the plaintiff, having made an agreement with them to furnish the brick therefor at $8 per thousand, and plaintiff claims to have delivered 603,300 bricks, amounting to $4,814.40, after deducting a credit for sand of $12.

A.H Tanner (F.T. Griffith, on the brief), for appellants.

A.T Lewis, for respondent.

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

The complaint is in the usual form. The defendants, by their answer, allege that no more than 562,614 bricks were delivered by plaintiff and used in the building, amounting to $4,500.11, upon which they were entitled to a credit of $12, and deny the allegation as to attorneys' fees.

The first question for determination is raised by the demurrer to the complaint, and the testimony in the case. The defendants contend that the lien was not filed within 30 days after the material was furnished, as provided by section 7420, L. O.L., nor within 30 days after the completion of the building, according to the time stipulated by such section, together with section 7425, L. O.L., yet contend that it was filed prematurely, being filed before the completion of the building.

From the evidence it appears that the plaintiff commenced to deliver the brick about August 12, 1909, finishing his delivery thereof about September 27, 1909. The brickwork was completed about October 13, 1909, and the lien was filed on December 3, 1909, before the building was fully constructed. Construing together the two sections of the statute above alluded to, this court has held that the laborer or materialman must file his lien within 30 days after the completion of the building, not necessarily within 30 days from the date of ceasing to furnish labor or material. Ainslie v. Kohn, 16 Or. 363, 19 P. 97; Coffey v. Smith, 52 Or. 538, 97 P. 1079. The defendants claim that this lien was not filed within either of these sections; that is, that between the time allowed for filing, within 30 days from the time of furnishing the material and before the commencement of 30 days after the completion of the building, there was a hiatus, during which period such lien could not be filed. In Ainslie v. Kohn, supra, it is said that whether the claim was filed within 30 days after the work and material were furnished was unimportant, provided it was done within 30 days after the completion of the building. In this contention counsel for defendants relies upon the rule laid down in Roylance v. San Luis Hotel Company, 74 Cal. 273, at page 277, 20 P. 573, at page 575, but an examination of the opinion in that case, indicates that it is based upon a statute differing from ours. The reason for not allowing the lien to be filed prior to the completion of the building being that, "under the contract between the owner and the contractor, the owner agrees to pay the contractor a certain sum for constructing the building, and this sum is a fund which may be held under the statutes for the payment, so far as it will go, of all the claims of all the various subcontractors, for work and materials furnished by them to the contractor, who is the principal and head of all; and all the parties entitled to payment or contribution out of this fund should be able to reach the fund and get their proportionate shares thereof at the same time or within the same period of time." From [59

Or 294] the language used it would appear that this rule, following that prescribed in Davis v. Bullard, 32 Kan. 234, 4 P. 75, Seaton v. Chamberlain, 32 Kan. 239, 4 P. 89, and contained in section 1428, 2 Jones on Liens, is applicable to a different statute than ours. Jones on Liens, § 1432, states that, "Where there are distinct contracts for different parts of a building, as for instance one contract to do all...