McBRIDE, J.
1. The notices of lien are regular in form and upon adequate testimony are sufficient to support the decree. On the trial, plaintiff testified positively to his account, except that he stated that his wages for November and December, 1917, were $3.25 per day instead of $4, practically admitting an error in the lien notice of $43. This discrepancy was never called to his attention and it is now claimed that his notice is not a true statement and is void, [70]*70and that for this reason he should not recover anything.
2. There is abundant authority in this state and elsewhere for the proposition that where the claimant has intentionally or through culpable negligence overstated the amount due him, such overstatement will render the whole lien void: Nicolai v. Van Fridagh, 23 Or. 149 (31 Pac. 288); Lewis v. Beeman, 46 Or. 311 (80 Pac. 417); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447). This rule is of particular application in cases where the work is done at the instance of a contractor or other person only constructively, or as a matter of statute the agent of the owner, the reason being that in such cases the owner has no opportunity to know the length of time the claimant worked, the wages agreed upon and the payments made, and is not in a position to controvert exorbitant claims of which he has no notice; and that the intentional or negligent overstatement of a claim is at least a constructive fraud as to him.
But it does not follow that a mere mistake in an item of a, claim necessarily renders the whole lien void, when it is evident that no fraud is intended and where it has not misled the defendant owner to his prejudice in making his defense: See Rowland v. Harmon, 24 Or. 529 (34 Pac. 357); Harrisburg Limber Co. v. Washburn, 29 Or. 150, 170 (44 Pac. 390); Allen v. Elwert, 29 Or. 428, 433 (44 Pac. 824); Cooper Mfg. Co. v. Delahunt, 36 Or. 402, 407 (51 Pac. 649, 60 Pac. 1); Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342; Palmer v. McGinness, 127 Iowa, 118 (102 N. W. 802); Fairbairn v. Moody, 116 Mich. 61, (74 N. W. 386, 75 N. W. 469); Hurlburt v. Just, 126 Mich. 337 (85 N. W. 872); Kendall v. Fader, 99 Ill. [71]*71App. 104; Marston v. Kenyon, 44 Conn. 349. All the above cases were decided upon statutes similar to ours. In many of the states, Massachusetts and California, for instance, it has been provided by statute that an unintentional misstatement of the amount of a claim should not render the claim void, and these statutes make decisions from such states inapplicable here. Decisions from several states take the opposite view, notably the earlier cases in Massachusetts, but liens in that state were then enforced at law and not in equity, which accounts perhaps for the extremely technical holding of the courts of that state, finally corrected by legislation. The cases last above cited seem in accordance with the true spirit of equity and as such appeal to our judgment.
3. To apply them to the case at bar, it may be said that there is not the slightest indication that the claimant Bartels had any fraudulent intent to swell his claim beyond what was justly due him. The account was a long one, consisting of many items, and he was the only witness called on either side of the case. Had his intention been to claim fraudulently $43 more than was due him, he had only to make his testimony square with his statement in the notice of' lien, and it is due to his testimony that Williams discovered that the notice stated a greater sum than was actually due. The discrepancy was not called to his attention on the trial and was probably then unnoticed by him or his attorney. The defendant was in no way misled or injured by it. By his general denial he had put in issue the fact that plaintiff did any work at any wage, that he had any lien, or that any amount was due him. These issues would have been tried in any event. There was no controversy as to particular items or as to particular payments. And [72]*72it is more fair to presume a not unnatural mistake than to assume that plaintiff had a fraudulent intent in the notice.
In Mason v. Germaine, supra, the court discussing this subject under a similar statute remarked:
“The fact that the complaint and notice of lien claimed as due plaintiffs a larger amount than that found by the court, will not destroy their lien for the amount actually due, unless there be a fraudulent intent in filing the same, which must be proved and will not be presumed.”
This statement appears to us to be fair and equitable, and we adopt it, with the reservation, however, that there may be cases where the negligence in preparing the notice is so gross and palpable or has so misled the defendant as itself to raise a presumption of intentional fraud, or has occasioned such action by a defendant in the premises as to preclude the plaintiff from any right to relief in equity. "We do not find these conditions in this case, and we are not disposed to fine plaintiff $362 for making a mistake of $43 in the amount claimed in his notice.
4. It is urged that the testimony of the witness Bartels is incompetent because in testifying he referred to a book or memorandum in which were set down the items of his account. No objection was made while he was testifying on the direct examination, but upon cross-examination he testified in substance that he kept an account of his time in a book and that before he came out he checked up the account in his book with the time-book of the defendants McCullough and Atkinson; and that when his book became old he afterwards copied the account into the book to which he had referred while testifying. The book was not offered in evidence but seems to [73]*73have been used by the witness at least some of the time to refresh his memory, without any objection being made thereto at any time, so far as the claim of the witness was concerned. Neither was there any demand for the original memorandum of which the document presumably used by the witness to some extent at least to refresh his memory, was a copy. Under all the circumstances we are of the opinion that there was competent evidence to support plaintiff’s claim so far as it related to the lien for his own services.
He used a similar copy of a like memorandum in testifying as to the claims of Pooler and Powers, and a motion was made to strike out his testimony in regard to their liens, but in view of what we hold and shall hereafter discuss in relation to those claims, it is unnecessary to consider that matter further.
5. It is objected that the services rendered by the witness in cyaniding and assaying ore at the mine are not lienable, but we are of the contrary opinion. Both required some physical labor as well as skill and both were necessary to the successful prosecution of the work of searching for and working the ore. This is a much stronger case in favor of the liens than Flagstaff etc. Co. v. Cullins, 104 U. S. 176. (26 L. Ed. 704, see, also, Rose’s U. S. Notes); or Willamette Falls etc. Co. v. Remick, 1 Or. 169, in which liens were upheld.
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McBRIDE, J.
1. The notices of lien are regular in form and upon adequate testimony are sufficient to support the decree. On the trial, plaintiff testified positively to his account, except that he stated that his wages for November and December, 1917, were $3.25 per day instead of $4, practically admitting an error in the lien notice of $43. This discrepancy was never called to his attention and it is now claimed that his notice is not a true statement and is void, [70]*70and that for this reason he should not recover anything.
2. There is abundant authority in this state and elsewhere for the proposition that where the claimant has intentionally or through culpable negligence overstated the amount due him, such overstatement will render the whole lien void: Nicolai v. Van Fridagh, 23 Or. 149 (31 Pac. 288); Lewis v. Beeman, 46 Or. 311 (80 Pac. 417); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447). This rule is of particular application in cases where the work is done at the instance of a contractor or other person only constructively, or as a matter of statute the agent of the owner, the reason being that in such cases the owner has no opportunity to know the length of time the claimant worked, the wages agreed upon and the payments made, and is not in a position to controvert exorbitant claims of which he has no notice; and that the intentional or negligent overstatement of a claim is at least a constructive fraud as to him.
But it does not follow that a mere mistake in an item of a, claim necessarily renders the whole lien void, when it is evident that no fraud is intended and where it has not misled the defendant owner to his prejudice in making his defense: See Rowland v. Harmon, 24 Or. 529 (34 Pac. 357); Harrisburg Limber Co. v. Washburn, 29 Or. 150, 170 (44 Pac. 390); Allen v. Elwert, 29 Or. 428, 433 (44 Pac. 824); Cooper Mfg. Co. v. Delahunt, 36 Or. 402, 407 (51 Pac. 649, 60 Pac. 1); Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342; Palmer v. McGinness, 127 Iowa, 118 (102 N. W. 802); Fairbairn v. Moody, 116 Mich. 61, (74 N. W. 386, 75 N. W. 469); Hurlburt v. Just, 126 Mich. 337 (85 N. W. 872); Kendall v. Fader, 99 Ill. [71]*71App. 104; Marston v. Kenyon, 44 Conn. 349. All the above cases were decided upon statutes similar to ours. In many of the states, Massachusetts and California, for instance, it has been provided by statute that an unintentional misstatement of the amount of a claim should not render the claim void, and these statutes make decisions from such states inapplicable here. Decisions from several states take the opposite view, notably the earlier cases in Massachusetts, but liens in that state were then enforced at law and not in equity, which accounts perhaps for the extremely technical holding of the courts of that state, finally corrected by legislation. The cases last above cited seem in accordance with the true spirit of equity and as such appeal to our judgment.
3. To apply them to the case at bar, it may be said that there is not the slightest indication that the claimant Bartels had any fraudulent intent to swell his claim beyond what was justly due him. The account was a long one, consisting of many items, and he was the only witness called on either side of the case. Had his intention been to claim fraudulently $43 more than was due him, he had only to make his testimony square with his statement in the notice of' lien, and it is due to his testimony that Williams discovered that the notice stated a greater sum than was actually due. The discrepancy was not called to his attention on the trial and was probably then unnoticed by him or his attorney. The defendant was in no way misled or injured by it. By his general denial he had put in issue the fact that plaintiff did any work at any wage, that he had any lien, or that any amount was due him. These issues would have been tried in any event. There was no controversy as to particular items or as to particular payments. And [72]*72it is more fair to presume a not unnatural mistake than to assume that plaintiff had a fraudulent intent in the notice.
In Mason v. Germaine, supra, the court discussing this subject under a similar statute remarked:
“The fact that the complaint and notice of lien claimed as due plaintiffs a larger amount than that found by the court, will not destroy their lien for the amount actually due, unless there be a fraudulent intent in filing the same, which must be proved and will not be presumed.”
This statement appears to us to be fair and equitable, and we adopt it, with the reservation, however, that there may be cases where the negligence in preparing the notice is so gross and palpable or has so misled the defendant as itself to raise a presumption of intentional fraud, or has occasioned such action by a defendant in the premises as to preclude the plaintiff from any right to relief in equity. "We do not find these conditions in this case, and we are not disposed to fine plaintiff $362 for making a mistake of $43 in the amount claimed in his notice.
4. It is urged that the testimony of the witness Bartels is incompetent because in testifying he referred to a book or memorandum in which were set down the items of his account. No objection was made while he was testifying on the direct examination, but upon cross-examination he testified in substance that he kept an account of his time in a book and that before he came out he checked up the account in his book with the time-book of the defendants McCullough and Atkinson; and that when his book became old he afterwards copied the account into the book to which he had referred while testifying. The book was not offered in evidence but seems to [73]*73have been used by the witness at least some of the time to refresh his memory, without any objection being made thereto at any time, so far as the claim of the witness was concerned. Neither was there any demand for the original memorandum of which the document presumably used by the witness to some extent at least to refresh his memory, was a copy. Under all the circumstances we are of the opinion that there was competent evidence to support plaintiff’s claim so far as it related to the lien for his own services.
He used a similar copy of a like memorandum in testifying as to the claims of Pooler and Powers, and a motion was made to strike out his testimony in regard to their liens, but in view of what we hold and shall hereafter discuss in relation to those claims, it is unnecessary to consider that matter further.
5. It is objected that the services rendered by the witness in cyaniding and assaying ore at the mine are not lienable, but we are of the contrary opinion. Both required some physical labor as well as skill and both were necessary to the successful prosecution of the work of searching for and working the ore. This is a much stronger case in favor of the liens than Flagstaff etc. Co. v. Cullins, 104 U. S. 176. (26 L. Ed. 704, see, also, Rose’s U. S. Notes); or Willamette Falls etc. Co. v. Remick, 1 Or. 169, in which liens were upheld. The case of Durkheimer v. Copperopolis Copper Co., 55 Or. 37 (104 Pac. 895), is not in point. In that case the claim of Gribbs was not for any physical labor but for services as superintendent and general manager. He did not even “pick up the samples of ore and assay them,” as appellant’s brief concedes that plaintiff did in this instance. He was not in any sense a “laborer,” while here the [74]*74obtaining, sampling and assaying of ore were just as much part of the labor of carrying on mining operations as the use of the pick and drill. It is true, plaintiff’s services were shilled labor, but it requires some skill even to use a drill efficiently. All that can be said is that it required greater skill than that exercised by the workers in the tunnels.
We conclude that the plaintiff is entitled to a decree foreclosing his lien for the amount prayed for, less $48.50, and for the attorney’s fee of $40 allowed him by the Circuit Court.
As to the liens of Pooler and Powers, we regret to say that there is no competent evidence that they have not been partially or wholly paid. Those claimants held the liens from April to August, in which latter month they assigned them to plaintiff. Plaintiff knows that nothing has been paid to himself, but he does not know and cannot prove what took place between Pooler and Powers and McCullough and Atkinson during the interim between April and August, and his testimony on that subject is conjecture and hearsay. Pooler and Powers were in a position to know absolutely whether or not any payments had been made, but neither of them was put upon the stand, nor was their absence accounted for.
6. Contrary to the rule in other cases, the burden of proof of nonpayment is upon the person asserting the lien and this is particularly the case where the contract out of which the lien arose was made with someone not the owner of the property upon which it is sought to fasten the Hen: Lewis v. Beeman, 46 Or. 311 (80 Pac. 417). The situation in that case was similar to that in the case 'at bar. The court, speaking through Mr,. Justice Moore, said:
[75]*75“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.”
7. It is suggested that because the original notices of lien were admitted in evidence without objection, the recitals in these constitute some affirmative testimony that no payments had been made beyond those therein admitted. The notices were properly admitted for the purpose of showing the regularity of the liens and the amounts claimed by the lienors; that is to say, they were competent to prove that at the date when they were filed the lienors had filed claims of lien regular in form and substance for amounts which they asserted to be due them. Beyond this, the notices had no evidentiary value whatever. In this view of the case we are compelled to disallow the claims of Pooler and Powers.
The decree of the Circuit Court will be so modified as to reduce the amount of plaintiff’s recovery on his own lien to $362.20, which sum he shall recover together with $40 attorney’s fee and his costs in the Circuit Court, including his claim for filing and re[76]*76cording the lien. The liens claimed by Pooler and Powers are disallowed and neither party will recover costs in this court. Modified.