Barr v. World Keepfresh Co.

Mr. Justice Bean delivered the opinion of the court. 1. It is the position of defendant: “That no lien was created in favor of the plaintiff under the lien notice filed by him, the claimant having mingled therein lienable and nonlienable items in a lumping charge, there being no means of ascertaining from the notice itself the amount of nonlienable items, or of segregating the same from the lienable items.” When the lien notice contains merely a lumping charge of the amount demanded, consisting of both lienable and nonlienable items, and there is no means of ascertaining the latter from the lien notice itself, it has often been held that no lien is acquired, and the court cannot, from oral testimony, separate the items for which a lien is given from those for which no lien can be acquired: Harrisburg Lbr. Co. v. Washburn, 29 [98] Or. 150, 164 (44 Pac. 390); Allen v. Elwert, 29 Ór. 428, 444 (44 Pac. 823, 48 Pac. 54); 2 Jones on Liens, § 1419; Hughes v. Lansing, 34 Or. 118, 124 (55 Pac. 95, 75 Am. St. Rep. 574); Portland Hardwood Floor Co. v. Logging Co., 64 Or. 316, 319 (130 Pac. 52); Stewart v. Spalding, 71 Or. 310 (141 Pac. 1127). Counsel for plaintiff submitted that the items of board and expenses were a part of the compensation for the labor and materials going to make up the reasonable cost and value thereof and were not, strictly speaking, items for which a lien is claimed. No nonlienable item appears upon the face of the notice; hence it becomes important to determine whether or not the proof shows that nonlienable items were contained in the amount claimed. 2. The controversy is in regard to a memorandum of board and expenses amounting to about $90 contained in a statement of account referred to by plaintiff while testifying, and filed as an exhibit without objection. It will be noticed from the statement of the case that the claim sued for is the reasonable compensation for both materials furnished and labor performed in the construction of the plant. Upon this question Mr. Barr, the plaintiff, testified to the effect that the statement contained the value of all the labor and materials in the construction of the dryer, and mentioned the main items of sheet iron, brick and lumber, etc.; that the material and labor amounted in full to $2,087.37. His evidence was not objected to, and was not attempted to be shaken on cross-examination. Another witness, Charles F. Cable, superintendent for the defendant in the construction of the plant, stated that one of the units would cost $1,000, or two, $2,000. Allen B. Kirk, general superintendent of the defendant company, testified upon this point that the two units of the plant [99] cost from $1,000 to $1,100 each. Referring to the memorandum of plaintiff, the manager said: “I imagine the bill is for two machines, $2,087.37; that is double the cost of one machine.” It appears that he had seen the first one, but not the second. Upon being recalled he testified that the dryer constructed at Willamina cost $1,100 and resembled those at Hillsboro. In addition to this, defendant introduced in evidence a statement of the cost of the dryer at the former place, which showed the same to be $1,010.98. It is therefore clearly apparent that there is practically no dispute but that the plant was of the reasonable value of the amount claimed. It is seldom that there is so little difference in the estimates of the parties. In keeping his accounts, Mr. Barr made the memorandum of board and expenses which were paid for as a part of the cost of the labor performed and materials furnished in constructing 'the dryer, and simply charged as board and expenses. It enhanced the cost of the structure, but was purely the compensation for the labor and materials. Suppose a man had worked for Mr. Barr upon the dryer in question 50 days for his board, and Barr had paid $1 per day for his keep, could it successfully be maintained that plaintiff would not be entitled to a lien for the $50 paid in that manner for the labor performed upon the structure if it was reasonably worth that sum? We think not. Board and expenses, when considered as used in the construction of a building, are nonlienable, but when they are a part of the reasonable compensation paid for the labor and materials, it is otherwise. In City of Salem v. Lane & Bodley Company, 189 Ill. 593 (60 N. E. 37, 82 Am. St. Rep. 481), it was held that if the contract for an engine for [100] an electric plant provided that the snm of $50 should he added to the contract price of the engine in case the services of an erector were needed to set up the engine, the sum of $50 for services, “board and expenses” of ’the erector while setting up the engine would be properly regarded as part of the contract price of the engine for which the lien was allowed. Lybrandt v. Eberly, 36 Pa. 347, is authority that if the mechanic engages his hands at a certain sum per diem and their board, he may include in his lien the wages and board of the journeymen; for it is a part of the compensation for his work and labor in the erection of the building. The question at issue in the case under consideration is the reasonable compensation for the labor performed and materials furnished in the erection of the dryer. The form of bookkeeping or memorandum made by the plaintiff is not important. It is the truth of the allegations that should govern, and not the form of bookkeeping ; hence we conclude that there were no nonlienable items contained in the amount claimed in the lien notice. The second position of the defendant is that the lien statement filed was not a true one within the meaning of Section 7420, L. O. L. This is embraced in the first contention mentioned, of which we have already dis-. posed. The defendant’s evidence shows that the amount of the statement filed was the reasonable value. 3. It is next claimed that the complaint is defective in not stating that the labor and material were for use, or were used in the construction of the building, or that plaintiff completed the same, or that 60 days have not elapsed since the completion of the contract. That pleading was not challenged by demurrer or motion, nor was there any objection made to [101] the introduction of evidence under the allegations thereof. It alleges that the dryer was constructed between August 8 and September 11, 1912, and that the lien was filed on September 24th of the same year. While this is not the exact diction used by counsel for defendant, it amounts to the same thing. While the complaint does not allege in precise language that the contract was completed, it alleges that the dryer was constructed, and it shows that the claim is for services performed and material furnished “in the construction of a dryer.” A copy of the lien notice is attached to and made a part of the complaint, and says that the claim is for materials furnished to be used, and which were used, in the construction of the building and for labor performed upon the same. Especially in the absence of any demurrer or motion challenging the sufficiency of the complaint we conclude that it was sufficient: Matthiesen v. Arata, 32 Or. 342 (50 Pac. 1015, 67 Am. St. Rep. 535); Bohn v. Wilson, 53 Or. 490, 493 (101 Pac. 202). It was stipulated that the court fix a reasonable amount as attorney’s fees for the foreclosure of the lien. Two hundred dollars is allowed as such. The decree of the lower court is therefore reversed, and one will be entered foreclosing the lien for $2,087.37, for $200 attorney’s fees, and for costs and disbursements as prayed for in the complaint. Reversed and Decree Rendered. Mr. Justice Eakin, Mr. Justice Burnett and Mr. Justice Harris concur.