Stark-Davis Co. v. Wilson

BROWN, J. 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 the cause, and whose legal repesentatives 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 sixty 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 those 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 like notice. On May 2, 1925, *311 the company removed the furnace as requested and replaced the same with a furnace that met the requirements of the Building Code of the City of Portland and the demands of Wilson. The defendants claim that the date upon which the statutory period for filing a lien began to run was April 4, 1925, the date the original furnace was installed, whereas the plaintiff contends that the lien was filed within the statutory period for the reason that the statutory time commenced to run on May 2, 1925, the date of the installation of the second furnace. In this jurisdiction, nothing is better settled than that a contractor cannot keep alive his right to a lien by performing a trifling amount of labor after the contract has been considered by all parties as completed: Coffey v. Smith, 52 Or. 538 (97 Pac. 1079). It is likewise settled law in this state that, where rights of an innocent grantee are involved, trifling things should not be considered as incident to the completion of a contract: Schade v. Alton, 61 Or. 187 (121 Pac. 898), and local citations. But, when a material and substantial thing required by the terms of the original contract has been omitted, the final completion of the contract dates from the time such omission is supplied by the contractor: Avery v. Butler, 30 Or. 287 (47 Pac. 706); Craig v. Crystal Realty Co., 89 Or. 25 (173 Pac. 322). In the case at bar, more than six hours’ skilled labor was performed and a new furnace of the value of about $90 was supplied on May 2, 1925, this labor and material amounting to more than one half of the contract price. The heating plant has never been paid for. The fact that the plaintiff attempted to install, and, in the first instance, did install, a furnace that had been constructed of lighter material than that required by the Building Code of the City of *312 Portland does not deprive it of its right to compensation for a lawfully constructed furnace and labor supplied on demand at a later date. However, we shall consider the matter of the plaintiff’s delinquency in our decree, as relating- to the question of costs upon appeal. The decree of the lower court will be set aside, and one entered here in favor of the plaintiff in accordance with the prayer of its complaint, except that neither party shall recover costs in this court. Reversed and Decree Entered. Rand, J., being absent, did not participate in this opinion.