Sellwood Lumber Co. v. Monnell

38 P. 66, 26 Or. 267, 1894 Ore. LEXIS 97

• Court: Oregon Supreme Court
• Decided: October 29, 1894
• Status: Published

Opinion

Per Curiam.

An examination of the evidence shows that a fraud was perpetrated upon the plaintiff by Ireland who thereby paid his debt to Parsons with plaintiff’s property. Evidence was offered tending to show that when Ireland made his representations to plaintiff’s manager, Parsons was present and heard but did not deny them, and it is contended that as he was Mrs. Monnell’s agent, her property is bound by his participation in the fraud. Parsons admits that he was present when Ireland told the manager to let him have what lumber he should order, but denies that he heard any representations made by Ireland. Parsons’ claim against Ireland was for a balance due on a building contract, for which he had a right of lien on Ireland’s house and lot at the time. he agreed, in the presence of one Stringham, to take the lumber in settlement thereof. It is probable Ireland had not made any arrangement with the plaintiff, but he succeeded in convincing Parsons that he had, and thereby induced him to forego his lien. To effect this result and thus relieve his property from a threatened lien it would seem as necessary to deceive Parsons as the plaintiff, and hence we think Parsons did not hear the representations made by Ireland to the plaintiff. J Parsons ordered the lumber from the plaintiff believing he was obtaining it upon Ireland’s credit in payment of his debt, and the plaintiff sold it and charged the account to Ireland, believing that he was the owner of the lot and that the lumber would enter into the construction of his building. A person claiming a right to a lien for labor or material used in the construction of a building must be able to show that it was furnished at the instance of the owner or his agent: Hill’s Code, § 3669. Ireland was not the agent of Mrs. Monnell nor was he authorized to bind her property by anything he could do. It does not appear that Mrs. Monnell had any knowledge or notice, until the lien was filed, of the transactions by means of which the lumber was obtained that was used in her house, or that she connived at or ratified the same, and having paid Parsons the full amount of the contract price there is no just reason why she should be called upon to answer for Ireland’s fraudulent transactions. No lien having attached by reason of the delivery of the lumber there was no error in the decree, which is affirmed.

Affirmed.