Stuart v. Camp Carson Mining Co.

Mr. Justice Burnett delivered the opinion of the court. 1. The defendants assign as error the overruling of their demurrer to the original complaint and the action of "the court in permitting the plaintiff to amend after the cause was submitted. Conceding that the original complaint was demurrable because it stated mere conclusions of law about the making and filing of the notice of lien, yet we may set it down as a defective statement of a cause of suit which might be aided by amendment. The matter in hand is not like Golden Rod Milling Co. v. Connell, 84 Or. 551 (164 Pac. 588), where we held that even in an equity suit the plaintiff had no right to amend his complaint after the cause had been submitted when the change involved the averment of a new and distinct cause of suit. The only attack made upon the new pleading of the plaintiff here was a motion to strike out the same which, being denied, the defendants answered it. It does not appear that the evidence re — 707 — quired to support the second complaint was any different from that offered to prove the first. Neither is it apparent from the record that the defendants were deprived of any defense upon the merits or that they were denied any opportunity to take additional proof. For aught that the abstract discloses, the cause was considered upon its real merits under the issues formed by the amended pleadings. 2. This being an equity suit, heard and determined by the court, we think the rule of amendment should be applied more liberally than in the strict procedure of an action at law, and that unless the defendant mining company can show that its rights on the real merits were abused the error is negligible. 3. The defendants also complain that the court erred in admitting in testimony each of the twenty-two claims of liens, copies of which are attached to the amended complaint, for three reasons: a. That each of the notices fails to show that the contract of employment was made by anyone having authority to bind the defendant company; b. That each of the notices was recorded in the record of mechanics’ liens and not in the record of miners’ liens; c. It affirmatively appeared in the testimony that neither of said notices of lien was indexed as “deeds and other conveyances are required by law to be indexed”; and d. That it was clearly shown by the evidence that none of said claims for labor contained a true statement of claimant’s demand after deducting all just credits and offsets, and each of them contained charges for matters and things other than for labor upon or in development of the mining property described in the complaint. It is required by Section 7446, L. O. L., that “the county clerk shall record said claim in a book kept for that purpose, which shall be indexed as deeds and other conveyances are re — 708 — quired by law to be indexed. * * ” In respect to wbat are commonly known as mechanics ’ liens, Section 7421, L. O. L., provides that “the county elerk shall record said claim in a book kept for that purpose, which record shall be indexed as deeds and other conveyances are required by law to be indexed.” Substantially the same language is used in providing for the filing of liens for laborers ’ wages due from any concern put in the hands of a receiver: Section 7441, L. O. L. The testimony in this case coming from the county clerk is to the effect that the book in which the claims in question were recorded was one kept for that purpose, although in the same volume mechanics’ liens were likewise recorded, and that in the book there was a direct and indirect index citing the page whereon each claim was inscribed. This point is ruled against the contention of the defendants in Slover v. Bailey, 49 Or. 426 (90 Pac. 665). Mr. Chief Justice Bean there says: “Where the book in which a particular instrument shall be recorded is prescribed by law, it must be recorded in such book; but, where no particular book is designated, recording it in any book kept by the officer for that purpose is sufficient,” citing authorities. Other precedents are these; Ivey v. Dawley, 50 Fla. 537 (39 South. 498, 7 Ann. Cas. 354); Faragee v. McKerrihan, 172 Pa. St. 234 (33 Atl. 583, 51 Am. St. Rep. 734); Switzer v. Knapps, 10 Iowa, 72 (74 Am. Dec. 375); Mee v. Benedict, 98 Mich. 260 (57 N. W. 175, 39 Am. St. Rep. 543, 22 L. R. A. 641). In Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997), it was held in substance that it was unnecessary for the notice of lien in terms to connect the claimant with the owner in a contract relation. It was deemed sufficient to follow the words of the statute, but that case does not dispense with the necessity of — 709 — establishing snch a relation as a matter of pleading and proof at the trial either directly or through an agent who may be such by virtue of the enactment or by appointment of the owner: See also Smith v. Wilcox, 44 Or. 323 (74 Pac. 708, 75 Pac. 710); Litherland v. Cohn Real Est. Co., 54 Or. 71 (100 Pac. 1, 102 Pac. 303); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447). In form we consider the notices sufficient and the manner of indexing them complies substantially with the directions of the statute in that a means is provided whereby anyone searching the book for a record of liens is directed by the index to the page where he may obtain the information desired. The other objection requires an examination of the evidence. The principal question in the matter of testimony hinges upon a time-book introduced in evidence by the plaintiff. This was produced by a witness, W. W. Dill, and he alone gives to it whatever of authenticity it may have. Called upon to testify about the length of time the men were at work and when they quit, he said: “Well, I would have to go to the data because I can’t remember it. “Q. Now, this data you speak of, state what that is. “A. Why, I have the time-book of the company. “Q. State whether you had anything to do with the keeping of the time-book. “A. I did. I kept the time-book from the 29th day, I think it was the 29th day of June, until the 29th day of July, when I left there. I kept the time-book most of that time. “Q. Prom that data do you know when these different men quit work there? “A. I do. “Q. Now, Mr. Dill, will you refer to such data as you have and made yourself, that you can testify from, as to when Mr. Stuart was there, and when he quit work. “A. Well, I will have to go to the time-book.” — 710 — Then an objection was sustained by the court to the effect that the testimony was incompetent except during the time that the book was kept by Mr. Dill himself, the rest being hearsay. The question being repeated, the witness said: “Mr. Stuart left there before I got the time-book to keep time with. * * “Q. You have knowledge of his working there, have you? “A. Oh, yes, I know he was there and worked. “Q. Have you any record in your possession that the company kept, of his time? “A. I have as far as the time-book is concerned.” Objection was then made to the time-book being admitted for the reason that it is incompetent, irrelevant and immaterial, and it is not shown that he kept it nor that it is correct, but the court admitted it in evidence. 4. Books of account and the like are received in testimony as ancillary to the declarations on oath of a witness who either knows the fact in general and is compelled to refer to the books for detail or where having at one time knowledge -of the fact he is compelled to refresh his memory from them, or, failing in that, he is able to state that he knew the fact when he made the entry and that it was entered correctly. Such writings are not evidence per se. They do not prove themselves and are not original evidence in the full sense of the word. Books, therefore, must be authenticated by the oath of someone who made or directed the entry with authority, if living and capable as a witness, otherwise by proof of his handwriting posting the entries: 10 R. C. L. 1174; Harmon v. Decker, 41 Or. 587 (68 Pac. 11, 1111, 93 Am. St. Rep. 748); Mason v. Melhase, 64 Or. 522 (130 Pac. 1134); Lintner v. Wiles, 70 Or. 350 (141 Pac. 871). — 711 — 5. Dill only testifies that he kept the hook most of the time from June 29th to the same date in the successive month. He does not even say that he kept it correctly or that he had knowledge of the facts upon which his entries were founded. He does not point out even what entries he made for that part of the time that he kept the book. The greater portion of the claims for which liens are .sought to be enforced were founded upon labor alleged to have been performed before he ever had custody of the book. It is true that he says that a few days before he appeared in the Circuit Court as a witness he received the book indirectly from the secretary of the company in Seattle; but there is an utter absence of any sworn testimony authenticating it before he received it into his custody. Under all the authorities it must be laid out of the case as evidence. The following claims assigned to the plaintiff depend entirely upon the translation which Dill made of the time-book in question to show how long the original claimants worked at the mine, viz.: Axel Wengren, Charles Denny, F. F. Turner (first claim), Cecil Merrill, L. W. Becker, Earl Taylor, Elmer Somerville, J. It. Somerville, and J. A. Shira. The latter was a witness in behalf of the plaintiff but made no statement respecting the length of time he himself labored, if at all, or the character of his services. 6. As to the claim of F. F. Turner, his own testimony shows that he was away from the mine much of the time; that while there he was a mere caretaker, and that his claim consists largely of hotel bills in La Grande and Union while he was thus absent. None of his evidence brings him within the rule laid down in Durkheimer v. Copperopolis Copper Co., 55 Or. 37 (104 Pac. 895), holding that the labor mentioned in the statute for miners’ liens means actual physical labor unequivocally performed upon the property. — 712 — The support of the following claims does not depend upon the time-hook for the claimants themselves appeared in person as witnesses and testified respecting their services in kind and quantity as follows: E. J. Stuart, $141.35; O. J. Burnett, $130.50; Christy Nelson, $62.72; R. E. Lindley, $234.21; W. W. Dill, $563.40; La Grande Grocery Co., $172.13; Sawyer-Clark Company, $44.58. No assignment of error is made in regard to the finding of fact that these two latter claims being for groceries and other supplies furnished for use at the mine were true as stated in the complaint. 7. The demand for interest must be denied on the authority of Sargent v. American Bank & Trust Co., 80 Or. 16 (154 Pac. 759, 156 Pac. 431). The claims last above mentioned will therefore be allowed and a decree entered foreclosing the same at those amounts, including the sum of $4.20 for each one as a fee for filing and recording the same. 8. The attorney fee will be fixed at $250. This is properly allowed in a lump sum although founded on several claims: Bishop v. Henry, 84 Or. 389, (165 Pac. 237.) The other claims must be dismissed for failure of proof. 9. We remember, however, that this is -a foreclosure proceeding and that failure of the lien does not necessarily involve the actual validity of the indebtedness of the defendant company to the claimants who have fallen short in the testimony. As to them, therefore, the decree will be that this suit is dismissed without prejudice to the right of their assignee to recover from the defendant company by action at law or otherwise as he properly may be advised. Modified. Rehearing Denied. Mr. Justice Bean took no part in the consideration of this case.