Bartholdi v. Baldwin

253 P. 6, 121 Or. 360, 1927 Ore. LEXIS 92

• Court: Oregon Supreme Court
• Decided: January 18, 1927
• Status: Published

Opinion

McBRIDE, J.

Before entering upon a discussion of the merits, we will consider the questions as raised upon demurrer in this case. It is contended by appellants that the complaint does not state facts sufficient to constitute a cause of action. We cannot agree with counsel in this contention. It is urged there is no sufficient allegation that the building in question was constructed upon the property mentioned in the contract and in the complaint.

Paragraph three of the complaint alleges, in substance, that The Dalles Country Club entered into a contract with the defendant, the Baldwin-Swope Contracting Company, for the construction of a certain building, known as The Dalles Country Club; “said building to be constructed upon the following described lands owned by said corporation, defendant, to wit.” Then follows a description of quite a considerable tract of land. This paragraph is admitted by the answer.

In paragraph four, among other things, it is alleged, “that said building was, by the said BaldwinSwope Contracting Company, constructed for the said defendant, The Dalles Country Club, a corporation, at its special instance and request, upon said premises.” This allegation is also admitted in the answer.

Taking these admitted allegations in connection 'with each other allegation, it sufficiently appears that the building was constructed upon the lands owned by the corporation, and the fact that it is alleged further that there was some change in the original location does not contradict the allegations before admitted, bnt is entirely consistent with them. If any ambiguity existed, although we fail to see that there is such, it was within the power of the defendant to move to have the complaint made more definite and certain in that respect, which it failed to do.

It is also urged that there is no sufficient allegation as to the filing and recording of the lien, but the lien, together with the acknowledgment and verification, is copied in its entirety in the complaint. This also must be taken as admitted by the answer.

It is true, that the defendants allege that they have no knowledge or information sufficient to form a belief as to whether a lien was filed and recorded, but such an allegation, in the face of the alleged fact that the lien was of record, has always been held by this court to be sham in a number of cases, the last of which is Carnes v. Manning, 118 Or. 665 (248 Pac. 137).

Turning to the facts, we find ample testimony to sustain the decree of the lower court, which was carefully made after a personal inspection of the premises and a personal hearing of the testimony, and we think that the decree is amply justified by the testimony, which it is needless to reproduce here.

It js claimed by the defendants that the discrepancy between the amount stated in the notice of lien and the amount actually found by the court was such as is conclusive that the notice of lien contained an untruthful statement. The court found, and that properly, that the plaintiff had overestimated and overstated the amount due him; but that he did so in good faith and without any intention of deceiving anybody or defrauding the defendants. In this we think the court was correct.

The court also found that certain work specified in the contract was not finished in accordance therewith; hut that the plaintiff evidently believed that he had completed the contract and that there was no abandonment of it. We are disposed to agree with this conclusion.

It is not shown directly, but it evidently appears that the real business of the plaintiff is that of a stone-mason, and that he had not been accustomed to contract work, which, here, was one that required average skill, probably more than average skill, in computing its amount and value. We do not think that the defendants were injured in any way, or misled by the overstatement in the lien, and we are not prepared to say that the plaintiff was meditating or attempting a fraud in the computation he made, or in the manner in which he performed his work.

It is very evident that, if the plaintiff had confined his estimates and claim in the lien notice to the amount found by the court, this claim would have been resisted in any event, as the defendants claimed that the only amount owed by them to the plaintiff was $390.50, which they alleged they were ready and willing to pay, and coupled this allegation with the deposit of that amount in court. This objection is overruled.

Another question is raised as to an order made by the court after the notice of appeal was served allowing the plaintiff to draw down $390.50, which was tendered as above stated. In view of the fact that we affirm the decree, and, in any event, the plaintiff will receive a larger sum than $390.50, this question becomes purely academic.

The decree of the Circuit Court is affirmed.

Affirmed. Rehearing Denied. Objections to Cost Bill Overruled.

Burnett, C. J., and Brown and Belt, JJ., concur.