[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
IN BANC.
AFFIRMED.
Defendant, the owner of Lot 9 of Block 76, in the Laurelhurst addition to the City of Portland, appeals from a decree foreclosing a lien on said lot for labor and material furnished in the construction of a dwelling-house, garage, driveway, certain walks connecting with the house, and a retaining wall, all on said lot. He received in part payment the sum of $250 and claimed a lien for the balance remaining after deducting the amount of said payment. Plaintiff constructed the retaining wall at the special instance and request of the owner. The remainder of the labor and material was furnished at the instance of the original contractor who had contracted with the owner to furnish the same. Since all of the labor and material for which the lien is claimed was either contracted to be furnished by the original contractor in his contract with the owner, or was contracted for by the owner himself in his contract with the lienor, the principle that the original contractor is only authorized to bind the owner's property with a lien for such labor and material as the owner has authorized him to contract for is not involved.
Defendant's first contention is that for the lien to be valid it was necessary for it to state the aggregate
amount of all the labor and material which plaintiff had furnished and the amount that had been paid thereon, and that a lien which recites a balance only is invalid and unenforceable. Section 10195, Or. L., requires a lien claimant to file "a claim containing a true statement of his demand after deducting all just credits and offsets." Plaintiff's claim of lien was filed after said payment had been made and contained a true statement of plaintiff's demand at the time it was filed. It literally complied with the requirements of the statute.
A substantial compliance with the requirements of the statute is all that is requisite to the validity of a mechanic's lien: Rankin v. Malarkey, 23 Or. 593, 597 (32 P. 620, 34 P. 816); Christman v. Salway, 103 Or. 666, 685
(205 P. 541).
The complaint sets forth in haec verba the notice of lien, and, amongst other things, alleges that the labor and material were furnished in "the construction, alteration and repair of a certain building, sidewalk, outhouses, and driveway used in connection therewith," and "that said building is a residence and is located upon Lot 9 of Block 76, in Laurelhurst addition to the city of Portland." No demurrer or motion was interposed to the complaint. At the trial the evidence disclosed that the labor and material for which the lien was claimed were furnished for and used indiscriminately in the construction of a dwelling-house, garage, driveway, walks connecting with the house, and a retaining wall, all of which were on said Lot 9.
The charges for which the lien is claimed are not itemized in the notice of lien. The only statement of account in the lien is a notation which reads as follows: "To labor and material, being concrete work
on residence located on Lot 9, Block 76, Laurelhurst, $586.40."
Defendant contends that the labor and material which were furnished in the construction of the garage, driveway, walks and retaining wall, and not in the construction of the house itself, were not lienable, and that because the amount for which the lien is claimed in a lump sum and there is no way in which it can be ascertained from anything contained in the lien how much of this lump sum was chargeable for the lienable labor and material furnished in the construction of the house, the whole lien must fail.
It is settled law in this state that "an account containing a lumping charge in which is mingled an item for which no lien is given will not support a lien; and the defect cannot be cured by oral evidence by means of which the items for which a lien is given may be separated from those for which a lien is not given." See Christman v. Salway, 103 Or. 666, 672 (205 P. 541);Stewart v. Spalding, 71 Or. 310 (141 P. 1127), and authorities cited. But where, from the notice of the lien itself, the lienable charges can be segregated and the amount thereof determined without the aid of extrinsic evidence, a lien for the amount of the lienable items may be enforced: Kezartee v.Marks, 15 Or. 529 (16 P. 412); Harrisburg Lumber Co. v.Washburn, 29 Or. 164 (44 P. 390); Hughes v. Lansing,34 Or. 124 (55 P. 97, 75 Am. St. Rep. 574); Stewart v.Spalding, supra; Christman v. Salway, supra.
That the statute does give the right to a lien for labor performed or material furnished in the construction of each and all of the structures upon which plaintiff claims to have performed labor and
furnished material, is clear, for Section 10191, Or. L., provides that "every * * builder, contractor, lumber merchant, laborer * * and other persons performing labor upon or furnishing material, or transporting or hauling any material of any kind to be used in the construction, alteration or repair * * of any building * * or any structure or superstructure * * shall have a lien upon the same for the work or labor done or transportation or material furnished at the instance of the owner of the building or other improvement, or his agent"; etc.
The garage was a building, and, as such, is specifically enumerated in the statute. The driveway, walks connecting with the house, and the retaining wall, are all structures or superstructures within the meaning of those terms as used in the statute. The meaning of a word may be ascertained by reference to the meaning of the words associated with it under the rule ofnoscitur a sociis. By an application of this rule it was held by Judge DEADY in Giant Powder Co. v. Oregon Pacific Ry. Co., 42 Fed. 470 (8 L.R.A. 700), that a railroad was a structure within the meaning of the word "structure" as used in the lien statute of this state as it then existed. In Forbes v.Willamette Falls Electric Co., 19 Or. 61 (23 P. 670, 20 Am. St. Rep. 793), it was held that poles set in the ground and connected together by wire in the usual way for transmission of electric current constituted a structure. See, also, the definition of the term "structure" as given in Words and Phrases and Bouvier's Law Dictionary.
Hence, it is clear that the garage, driveway, walks, and retaining wall are structures within the meaning of the statute, and that a person who performed labor or furnished material for use in their construction is entitled, under the statute, to maintain a lien therefor,
and from this it follows that if a single lien can be maintained for all of said labor and material, no nonlienable items were included in the lump sum for which the lien was claimed.
In deciding whether a single lien can be maintained against the house and the lot to which all of these structures are permanently attached, for labor and material furnished and used indiscriminately in the construction of these different structures on Lot 9, and upon which no separate account was kept and for which the entire charge is a lump sum, we are confronted with two objections, both of which, it is contended, are fatal to the validity of the lien. First, that the labor and the material were not all furnished under one contract, but were, in fact, furnished partly under a contract with the owner and partly under a contract with the original contractor; and, second, that separate notices of lien should have been filed against the house, the garage, the walks, and the retaining wall, for whatever labor and material were furnished in the construction of each of them.
The first objection is foreclosed, both by the statute and the former decisions of this court. The words of the statute are "shall have a lien upon the same for the work or labor done or transportation or material furnished at the instance of the owner of the building, or other improvement, or his agent; and every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration or repair, in whole or in part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner for the purpose of this act."
This statute expressly authorizes the filing of a notice of lien for labor or material furnished to be used in the construction of any building or structure,
whether furnished at the instance of the owner or his agent. If it was done at the instance of either or both, the statute gives a lien, and provides for but one lien whether done at the instance of one or of both. There is nothing in the statute which, in any way, indicates an intention of requiring two liens to be filed for labor and material which were furnished partly at the instance of the owner and partly at the instance of his contractor if used in the construction, alteration or repair of the same building or improvement.
In Bohn v. Wilson, 53 Or. 490, 494 (101 P. 202), a suit to foreclose a mechanic's lien, the plaintiff had furnished material which had been used in the construction of two dwelling-houses on certain real property belonging to the defendant Wilson, a part of which had been furnished at the instance of Lee, a contractor of Wilson, and a part at the instance of Wilson. Lee abandoned the contract and Wilson took over and completed the construction of the two dwelling-houses, and, while thus engaged, at his request, plaintiff furnished him other material with which to complete the two houses. There was but one notice of lien filed and it claimed a lien for all of the material furnished to both Wilson and Lee. Plaintiff had decree in the Circuit Court and, upon appeal, the decree was affirmed. In disposing of the objection now under consideration the court said: "It is next claimed that two causes of suit have been improperly united — one for materials furnished to Lee, and the other for those furnished to Wilson." This defect, if it is one, appears on the face of the complaint and was waived by a failure to demur on that ground: Section 72, B. C. Comp.; Owings v.Turner, 48 Or. 462 (87 P. 160).
The same objection was urged in Christman v. Salway, supra.
In that case the plaintiff claimed a lien for labor and material furnished, both to the owner and to the contractor of the owner. In that case this court said:
"Christman not only furnished and installed the plumbing under his subcontract with Niner, but he installed a sump-trap under a contract with the owner. His claim of lien contains the charge of $20 for the sump-trap, in addition to his charge for labor in installing the plumbing. Because the claim contains two items of charge, one arising upon contract with the owner and the other upon contract with the subcontractor, it is urged the lien is unenforceable. No authority is cited in support of this contention, or reason advanced, although there is a line of authorities that seem to support it: See 2 Jones on Liens, § 1597, and authorities there cited. The statute gives a lien for both the work done under subcontract and for the work done and material furnished under his original contract, and it is presumed that both were furnished upon the credit of the building: Peerless Pacific Co. v. Rogers, 81 Or. 51, 54
(158 P. 271); both were performed upon the same building, and both are chargeable against the property of the same owner."
It is true that if there was a defect of parties in this suit it does not appear upon the face of the complaint, and so could not upon that particular ground have been demurred to. But, if there was a defect of parties, and it did not appear upon the face of the complaint, the objection should have been taken by answer, and, not having been so taken, was waived: Section 72, Or. L., and Owings v. Turner, supra.
Defendant's second contention, that in order for plaintiff to preserve fully his right, it was necessary for him to file a separate notice of lien upon each structure for the value of what he had done upon
each, cannot be maintained without overruling: Bohn v.Wilson, 53 Or. 490 (101 P. 202), and Willamette Mills Co.
v. Shea, 24 Or. 40, 47 (32 P. 759). In the first case, a single lien was enforced for labor performed upon two separate dwelling-houses erected on the same lot. In the latter case, this court, through Mr. Justice LORD, said:
"A single lien upon separate buildings is allowed when they are erected for any common purpose or connected use, as in the case of barns, stables, and other outhouses used in connection with, and within the curtilage of a dwelling, or where the buildings have been erected for some general and connected use.
The statute does not contemplate the filing of separate notices of lien upon each structure where they comprise a part of one and the same improvement, are erected by the owner at one and the same time, and upon one and the same property. The lien given by the statute is upon the "building or other improvement," "together with a convenient space about the same or so much as may be required for the convenient use and occupation thereof."
"The words, `building or other improvement,' wherever the same are used in this act, shall be held to include and apply to any wharf, bridge, ditch, flume, tunnel, fence, machinery, aqueduct to create hydraulic power, or for mining or other purposes, and all other structures and superstructures whenever the same can be made applicable thereto; and the words `construction, alteration, or repair' whenever the same are used therein, shall be held to include partial construction, and all repairs done in and upon any building or other improvement." Section 10203, Or. L.
Under the very definition of the statute, the language of the lien, —
"the undersigned * * hereby claims a mechanic's lien upon that certain building or improvement known as a residence and the land upon which the same is located, * * lot 9, block 76, Laurelhurst,"
was notice of the fact that plaintiff claimed a lien upon all of the structures, upon which he had furnished labor or services, and which were appurtenant to the dwelling-house on lot 9, and on all or so much of the lot "as may be required for the convenient use and occupation thereof."
The definition given by the statute makes the "building or other improvement" include and embrace, not only the dwelling-house, but also, the garage, driveway, walks and retaining wall since they were a part of the improvement against which the lien was claimed and were all necessary for the convenient use and occupation of the house.
It is contended that what we have said is in conflict withKezartee v. Marks, supra, and Harrisburg Lumber Co. v.Washburn, supra. In the former case, it was held that a claim for material, used in the construction of a fence, could not be united in one notice of lien with the claim for material used in the construction of the building. The language of the court in that case is that the lien claimant —
"had a lien upon the fence for the materials furnished and used in the construction, and he had another lien upon the house for the materials used in its repair and construction; but he had no lien upon the fence for materials used in the house, nor upon the house for materials used in the fence.
In commenting upon this case, Mr. Justice LORD, in WillametteMills Co. v. Shea, said:
"(1) It does not there appear that the materials were furnished under one entire contract, or even under one contract; (2) nor that there was anything
in common between the house and fence, except that they were on the same donation land claim."
In Harrisburg Lumber Co. v. Washburn, supra, it was held that a claim for lien for material used in the construction of a sidewalk around a lot on which the building [a church] was located could not be united on one lien with a claim for material used in the construction of the building. It is clear that a sidewalk on the outside of a lot on which a church is located is not appurtenant to the church, while in this case the garage, the driveway, walks and retaining walls are all necessary to the full enjoyment of the dwelling-house itself and are appurtenant to it. They all came within the direct provisions of the statute for which a single lien may be filed and within the rule as announced by Mr. Justice LORD in Willamette Mills Co. v. Shea, supra.
Also within the general rule as stated in 27 Cyc. 40, that —
"In order for work or material furnished on improvements outside of a building to be included in a mechanic's lien, such improvements must be either appurtenant to the building or included in the contract for the building; otherwise there is no lien."
It would be an intolerable situation, if under a valid contract with the duly authorized contractor of the owner, or, if under a contract with the owner himself, a person employed to work upon or furnish material for the erection upon one lot of a dwelling-house, and of a number of other structures, all being constructed at the same time and upon the same property, and all necessary to the full enjoyment of the dwelling-house, the laborer or materialman should be compelled to file a separate notice of his claim of lien against each for the labor performed and materials furnished them separately. That such was
not the purpose of the statute nor the intention of the legislature seems to be obvious from the language of the statute.
Here, the improvements consisted of a dwelling-house, a garage, walks connecting with the house, a driveway and retaining wall. If a separate lien for each was required, the court, in enforcing all of these liens, would be compelled to subdivide the lot so that there could be allotted to each of said structures sufficient space around the same for the convenient use and occupation of each. A rule, which would lead to such absurdity, would be intolerable.
It is obvious that in the absence of an estoppel or such knowledge upon the part of the owner as would create a liability under Section 10194, Or. L., a person who has contracted with the owner of property for the erection of a building thereon cannot, by contracting with a third person and securing performance by him, bind the owner's property beyond the terms of the owner's contract. Where the owner has contracted for the erection of a specified building or structure upon his land, the person, with whom he contracted, is not authorized to enter into and contract for the construction of any different building or structure from that contracted for; and if the contractor should enter into a subcontract beyond the terms of the owner's contract, the subcontractor cannot maintain a lien against the owner for anything done in excess of what the owner contracted for. From this the principle stated in Beach v. Stamper, 44 Or. 4
(74 P. 208, 102 Am. St. Rep. 597), has developed, that authority to bind the owner's property in lien cases must emanate from the owner's contract. In the case last cited, the principle was extended, and it was held properly, we think, that
where the contractor had contracted with the owner by four separate contracts to construct four separate buildings to be paid for separately, that since the contractor himself would not be permitted to file a single lien upon all of the buildings for the work done upon all, the subcontractor will not be permitted to file a single lien for work done upon all. We can see no reason why that principle should be applied to the facts of this case, since everything done by the lienor was contracted for by the owner.
The work, that plaintiff contracted to do, consisted of the laying of concrete. The answer alleges, as a counterclaim, that this work was defectively done, that by reason thereof, defendant sustained damage, which he sought to have offset against the reasonable value of the services and material furnished by plaintiff. The owner may recoup, as against a mechanic's lien, damages arising from failure to perform the contract properly: Boisot on Mechanics' Liens (1887 ed.), § 590. That defendant did sustain some damage, because of defects in plaintiff's work, clearly appears from the testimony, but it is not so clear that plaintiff was responsible for the damage, since there was convincing testimony, which tended to show that the damage resulted, not from the manner in which the work was done, but from defective material, which the original contractor had on hand and required the plaintiff to use in the performance of the work. However that may be, plaintiff sought to recover the sum of $586.40, with interest, and was awarded judgment and decree for the sum of $297 only. A careful examination of all of the evidence convinces us that the learned trial judge, who tried the case in the court below, allowed
as an offset to plaintiff's demand all that the plaintiff should be required to pay on account of said damage.
The decree appealed from, not only forecloses the lien and directs a sale of the property in satisfaction of the amount due, but also awards a personal judgment against the defendant for the amount. The plaintiff was not entitled to a judgment against the defendant personally, but only to the foreclosure of the lien and a sale of the property in satisfaction thereof. A decree will be entered here accordingly, and, except as modified, the decree appealed from is affirmed.
AFFIRMED AS MODIFIED.
BEAN, BROWN, COSHOW and BELT, JJ., concur.
McBRIDE, C.J., and BURNETT, J., dissent.