Lewis v. Beeman

Mr. Justice Moore delivered the opinion of the court. 1. It is contended by plaintiffs’ counsel that, without any objection on the part of either of the Beemans, the cause was referred, and, the testimony having been taken in pursuance thereof, they are estopped to assert that Flanders and Beers should have been served with process, and hence, an error was committed in dismissing the suit. The statute commands that all persons personally liable for the payment of the sum due for labor performed in operating or developing a mine, to secure which sum a lien is foreclosed, shall be made parties: B. & C. Comp. § 5672. In Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997), in construing a similar provision in another section of the statute, it was ruled that, in a suit to foreclose a mechanic’s lien, though the contractor ought to be brought in, if he could be served with process, he was not an absolutely indispensable party, and that, unless an objection for lack of parties was made by demurrer or answer, the defect was waived. In deciding that ease, Mr. Justice Wolverton, in referring to another class of parties, says: “Subsequent lienors are considered necessary parties, but their absence from the record does not perforce of that fact, render the proceeding a nullity; but interested parties may require that they be brought in for their protection, and proper parties may be brought in if deemed' necessary.” Flanders and Beers, having leased the mining claims, and employed plaintiffs to assist in working and developing them, were personally liable for the payment of the wages agreed to [314] be paid therefor. If the lease executed by Joseph H. and Hattie H. Beeman was not recorded in the mining records of Jackson County before the work began, their property was also liable to plaintiffs for the payment of such compensation: B. & C. Comp. § 5668. The purpose of the statute, in requiring persons personally liable for the payment of the labor performed ,in operating and developing a mine to be made parties to a suit to foreclose a miner’s lien, was evidently not designed to exempt the property from liability for the work done, but to enable the owner of the mine, if compelled to pay the sums decreed to be a lien upon it, to have a judgment over against the lessee, which he could enforce without instituting another suit therefor. The statutory requirement of making persons parties who are personally liable, which was enacted for the benefit of the mine owner, is not one in the enforcement of which the public has an interest, and therefore, such owner can waive the advantage which the law confers. This he does when he fails to demand that the persons personally liable shall be brought in for his protection (Osborn v. Logus, 28 Or. 302), and, in the case at bar, as the Beemans did not object to the defect of parties until after the testimony was taken/ they thereby voluntarily relinquished the right upon the exercise of which they insisted when the cause was submitted, in dismissing which the court erred. 2. The record of the mining claims referred to in the lease and in the notices of liens was not offered in evidence, and it is insisted by defendants’ counsel that it is impossible, from the transcript, to frame a decree so as to identify the property. It will be remembered that the answer admitted that the defendants Joseph H. and Hattie H. Beeman were the owners of the property described in the complaint. No issue in relation to' the identity of the property was created, and, this being so, no necessity existed for offering in evidence the volume .and pages specified in the lease and notices of liens, or certified copies of the mining journals of Jackson County relating to the property in question. Invoking the maxim, Id certum est quod certum réddi potest, a decree referring to the volume and pages thus indicated will be sufficient for a description of the property, and an examination of such journal will probably enable the officer [315] making the sale to place the purchaser in possession thereof: House v. Jackson, 24 Or. 89 (32 Pac. 1027). Considering the ease on its merits, the testimony shows that the plaintiff Alfred Lewis is entitled to the sum of $85.75, as claimed in his lien, with interest thereon from the time it was filed, together with the sum of $1.25 for recording the notice, and the further sum of $20 as a reasonable attorney’s fee; and a decree will be here entered awarding to him such sums, and foreclosing his lien therefor, he having testified at the trial that the sums so demanded were due him. 3. The plaintiffs M. L. Hall, Frank Cardwell, and John F. Troy did not appear as witnesses at the trial; the testimony showing that neither of them was then in Jackson County.' The plaintiff Alfred Lewis,, who was foreman of the mines, testified' in their behalf as to the correctness of the liens filed by each, in respect to the several sums due; but he did not say, and probably could not testify, that no payments had been made to them, or either of them, by Flanders or Beers, after the liens were filed. As the lessors’ property is to be subjected in this suit to the payment of debts contracted by the lessees, the burden was imposed on the lien claimants of showing that no payments had been made on account of their liens since they were filed; and, not having done so, the claims of Hall, Cardwell and Troy must be disallowed. 4. The testimony shows that the plaintiff Thomas E. Jones commenced to work for Flanders and Beers two days after the lease of the mining claims was recorded in the mining journals of Jackson County. No lien is given for labor performed for a lessee on the mining claims of a lessor when the lease is so recorded before the work begins (B. & C. Comp. § 5668); but it is insisted by plaintiff’s counsel that, though the instrument in question partakes of the nature of a demise, it was intended by the parties to evidence a contract of sale, and that upon the payment of $16,500 the title to the property was to be transferred to the lessees. The defendant Joseph H. Beeman, in answer to the question on cross-examination, .“Wasn’t it understood between you and Mr. Flanders and Mr. Beers, if they paid the $16,500, they were to have the property,” replied, “Yes, [316] sir.” Notwithstanding the testimony of this witness, we think the instrument, a copy of which was offered in evidence, clearly established the fact that it is what it purports to be — a lease of the mining claims and quartz mill; and, having been duly recorded before Jones began to work at the mine, he was not entitled to a lien on the property (Stinson v. Hardy, 27 Or. 584, 41 Pac. 116), and his claim is disallowed. 5. The plaintiff S. C. Lawrence, having been discharged by the foreman December 10, 1902, without having received any payment for his labor, and being without money, sold some groceries belonging to Flanders that were, at the mine, realizing therefor about $5, for which sum he gave no credit when he filed his lien. At the trial, Lawrence, as a witness in his own behalf, ■testified that after the work was suspended at the mines he looked after the property about two weeks, and that he considered his care thereof of greater value than the sum realized from the sale ■of the. groceries. If the supervision of the property constituted a proper charge against the mining claims, so as to create a lien thereon, a statement thereof should have been included in the notice of lien, and credit given for the. sum received from the sale of the groceries; assuming that Lawrence was authorized to dispose of the provisions. Not having done so, his lien notice did not contain a true statement of his demand, after deducting all just credits and offsets, and hence his claim is disallowed: Nicolai v. Van Fridagh, 23 Or. 149 (31 Pac. 288). The decree of the court below will therefore be reversed, and one entered here in accordance with this opinion. Reversed.