Marshall v. Cardinell

80 P. 652, 46 Or. 410, 1905 Ore. LEXIS 53

• Court: Oregon Supreme Court
• Decided: April 28, 1905
• Status: Published

Opinion

Mr. Chief Justice Wolverton

delivered the opinion.

The only questions urged here are, first, whether the evidence establishes the posting of any notice, as alleged; and, second, whether the notice, if posted, operated to give such notice of the owner’s refusal to become responsible for the cost of the improvement or repairs as is contemplated by statute.

1. The first question is entirely one of fact. The repairs consisted, among other things, in reconstructing the front of the building on the first floor; it being torn away, either partially ’or completely, and another put in of a different design. The plaintiff began work under his contract on April 11, 1904, and Sutcliffe & Blied about two days later. Thomas Jones, who was agent of Oardinell, testifies that he posted a notice on April 11th on the front of the building in form and language following:

■ “notice.

I hereby forbid any person furnishing any material of any kind, or making any improvement or alterations, or doing any manner of work whatsoever on these premises, 269 and 269^ Everett Street, at my expense, for I will not be responsible for the same.

Chas. Oardinell.

Per T. Jones, Agent.”

It was contained on a sheet of letter paper, small size, written by Jones in a large, legible hand; the sheet being fastened with a tack at each corner, about as high as a man could reach easily upon a post in the front, standing between the stairway entering from the outside and the front opening into the building. Two other witnesses were called who saw him post the notice, one of whom read it, and was able to say by whom it was signed. Others saw it while in place where posted, and were able to detect it from across the street. One of these witnesses was a workman in the building at the time the alterations and repairs were made. This affords very substantial evidence of a positive nature of the posting, all the witnesses having seen and observed the notice-while in place. Against this testimony the plaintiff produced numerous witnesses, most of -them workmen in and upon the building at the. time, who testified that they never saw the notice, although they had ample opportunity, thus controverting the testimony of the defendant; but, being negative in character, it is not so satisfactory or convincing as his. The testimony of a person who asserts that he saw a thing is inherently stronger than that of another of equal veracity who says that he did not see it, unless both were intent upon observing for a specific purpose and noting a ’condition. Not so in the present instance. The defendant’s witnesses saw the notice, took note of it, and were able to testify to the fact, while the witnesses of plaintiff had an equal opportunity of seeing, but did not. None of them were looking for -the purpose of ascertaining whether a notice was to be found there, or not, except one, and he did not find it. Although the testimony of this witness is of a more positive type, upon the whole we think the. defendant has made the better casé as to the posting. Indeed, it seems hardly possible that there should be any mistake about it, in the face of the statements of three witnesses who actually saw the notice nailed.up, one of them performing the service.

2. As to the remaining question, the statute requires that the owner shall, within three days after he has knowledge of the fact that alterations or-.repairs are being made, give notice that he will not be responsible, for the same by posting a notice in writing to that effect in some conspicuous place on the land or building or other improvement situate thereon: Section 5643, B. & C. Comp. The form and subject-matter of the notice in question are obviously sufficient, but the inquiry is whether it was kept in place a sufficient length of time, so that it might be said that the owner gave notice of his refusal to be responsible for the improvements. From the description of the place where posted, it would seem that it was a conspicuous place. It was on the front of the building, bordering on the public street, and was observed by people passing and repassing, and its position was such that it would be readily observed by persons entering the building both by the stairway and upon the first floor. No more public or conspicuous place upon the building could have been selected. Just how long the notice remained on the building is problematical. Jones says he saw it two or three times afterward, and as much as an hour later, and one witness testified that lie saw it more than half a dozen times, and on different days. It may have been torn down when the front was taken out of the building, but this does not appear. There is nothing from which we might infer anything but good faith on the part of Jones in giving the notice.

3. The statutory manner of. giving notice is by posting a written announcement; presuming, no doubt, that when once posted it will remain a sufficient length of time to impart knowledge to the persons it is intended to affect. The language is not to keep it posted, but to give notice by posting, and when once posted it will fulfill the mandate of the statute. Of course, if the notice were torn down immediately, or very soon after, by the one who posted it, there would be an apparent attempt to evade the statutory injunction, and the act would probably not be accounted as giving notice by posting; but, if posted in good faith, with the intent and purpose that it should remain as long as a notice would remain in a place of that nature under ordinary conditions, it would seem that the intendment of the statute had been observed and the notice given. We are satisfied that the notice in the present instance was posted in good faith, and the posting sufficient to fulfill the requirements of the statute in giving notice to relieve the defendant of responsibility for the work done.

The decree of the trial court will therefore be affirmed, and it is so ordered. Aeeirmed.