Winters v. Privett

Mr. Justice Burnett delivered the opinion of the court. So far as the bill of exceptions is concerned, we are called upon to review the testimony and ascertain if there is any of it which will support the findings of the court. The dispute about the facts as recorded before us was to the effect that the electrical supplies for which the Western Electric Company claimed a lien [505] were not sold particularly for the Hotel Pendleton, but were disposed of to Privett and Noble in the ordinary course of business on an open account; and hence that the transaction did not constitute one from which a mechanic’s lien could be derived. We are free to say that there is evidence on both sides of that question. Notwithstanding this, there was testimony to the effect that Privett and Noble represented to the Western Electric Company the fact that they had obtained the contract for installing the electric appliances in the building mentioned and afterward negotiated with the Electric Company on that basis, informing it that they required electric goods for the purpose of completing that contract, and that the goods were shipped from Portland to Pendleton consigned to the firm and a considerable portion thereof, at least, were actually used in the building named. 1, 2. Without going into details of the testimony, it is enough to say that in our opinion there was sufficient to have taken the question to the jury if the trial had been in that form. We cannot, therefore, go behind or dispute the findings of the court which in an action at law are tantamount to a verdict: Section 159, L. O. L.; Giaconi v. Astoria, 60 Or. 12, 28 (113 Pac. 855, 118 Pac. 180, 37 L. R. A. (N. S.) 1150); Aerne v. Gostlow, 60 Or. 113 (118 Pac. 277); Van de Wiele v. Garbade, 60 Or. 585 (120 Pac. 752); Reid v. Stanley, 62 Or. 151 (124 Pac. 646); Prudential Trust Co. v. Merchants’ Natl. Bank, 66 Or. 224 (133 Pac. 1191); Franck v. Blazier, 66 Or. 377 (133 Pac. 800); Norman v. Ellis, 74 Or. 168 (143 Pac. 1112); Weigar v. Steen, 81 Or. 72 (158 Pac. 280). 3. There was no demurrer to the complaint. Neither was there any objection, so far as the bill of exceptions discloses, to the claim of lien filed by the Western Elec [506] trie Company, or any other testimony relating to its validity. It is now contended for the first time that the complaint does not state facts sufficient to constitute a cause of action, the defect urged being in purport that it does not show a situation authorizing a lien to be filed; with the result that the payment thereof by the plaintiff was voluntary and could not be charged against the Surety Company. The contention of the defendant is that the statement of the complaint concerning the claim of lien amounts to a mere conclusion of law and is. not equivalent to an allegation of fact. In support of its position the defendant cites the case of Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447). That was a suit to foreclose a mortgage so conditioned that the mortgagor was to keep the premises free from all liens, in default of which the mortgagee was authorized to pay such encumbrances and charge the amount against the mortgagor. The allegation of the filing of a lien in that case in that respect was substantially like the averment of the complaint here. We note, however, on examination of the decision there that the question was raised by demurrer to the complaint, so that the attention of the pleader was called to the fault at a time when he could have saved himself by amendment. That feature differentiates that precedent from the issue at bar, for here the objection is urged for the first time before this court. We recall also that the bill of exceptions does not disclose that any objection was made to any of the testimony offered on behalf of the plaintiff here. Finally, we have before us an action at law where the verdict is in favor of the plaintiff. Therefore, the question to be determined is whether the decision thus rendered cures the defect in the pleading. [507] In Booth v. Moody, 30 Or. 222, 225 (46 Pac. 884), Mr. Justice Robert S. Bean thus declares the precept on that subject: “The extent and principle of the rule of aider by verdict is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect.” (See, also, Lindstrom v. Natl. Life Ins. Co., 84 Or. 588 (165 Pac. 675). The defendant urges as an objection to the complaint that it does not appear therefrom that material was sold to the subcontractors to be used in the Hotel Pendleton building, and further that there is nothing in the pleading to distinguish the transaction from a sale in the ordinary course of business on open account. As to the subsidiary fact about a sale for specific purpose, or in the general course of business, we are concluded by the findings. When we come to examine the claim of lien introduced in evidence we find that it states that the material was furnished to the subcontractors to be used, and was used, in the alteration and repair of the building. Applying the rule laid down in Booth v. Moody, 30 Or. 222, 225 (46 Pac. 884), we discern that the evidence adduced would have been applicable to a pleading setting out with particularity all that the defendant claims should have been averred. There was enough in the complaint to notify the defendant in general terms that the plaintiff would rely on having been compelled to pay a lien against the building brought about by the default of the subcon [508] tractors for whom the company had given its bond. The testimony admitted without objection discloses a state of facts upon which an invulnerable complaint could have been framed. This brings it clearly within the rule laid down in Booth v. Moody, with the result that inasmuch as the evidence adduced would have corresponded with a perfect complaint the verdict cures the alleged defect. If the defendant would rely upon such an objection to the complaint it must be charged by demurrer while yet there is time for the plaintiff to amend, and especially should the former urge objections to the testimony offered in proof of the defective statement. In our opinion, it is pushing the matter of strict pleading too far when it appears by the record that in very truth the whole subject was examined by the trial court without objection, and a conclusion reached in accord with at least a plausible view of the testimony. The judgment of the Circuit Court is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.