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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (July 29, 1911)
DAILY CAP1TA1 TOCB5AL. SALEM, PRECOX. SATIRDAY, Jt LY 20, 1911. ' rr. 1 --ttrxmtxEJSXzaszaat b,ih,i..mj.iiw""-''-" i-t PAGE SIX OREGON SUPREME COURT DECISIONS Full Text Published h Coortfij of F. A. Turner, Importer of the Supreme Court. H ills v. ZiibiIIo, t ul, Multnomuh ( ouuty. A. N. Wills, respondent, v. (i. Zan ello ami Fred Zanello, iurtura doing business as O. Zanello & Hon, and the Portland Hallway Light & I'ower Company, a corporation, appellants. Appeal fro:u the circuit court of Multnomah comity. The Hon. Wil liam X. liat'-na, Jid Argued and submitted on July Uth, 1311. A. T. liwl". attorney for respondent. Al bert II. Tanner (Franklin T. Griffith on the brief), attorneys for appel lants, liean, J. Affirmed. Thin i a Hult In equity to fore close a mechanics' lien on property owned by the Portland Railway Light & I'ower company in Bellwood, now a part of the City of Portland, being; blocks 0 and P, and the build in k, known as the "Car HarnH" situ ated thereon. In the construction of the building, the defendants, (1. A. Zanello & Hon had a contract with the Portland Railway, Light & Power Company to do the brick work; A. X. Wills, the plaintiff, having made an agreement with theni to furnish tho brick there for nt 18 per thousand, and plaintiff claims to have delivered 60,1,301) brick, amounting to l,SH.40, after deducting a credit for aand of $12. Lean, J. The complaint Is In the usiinl form. The defendants, by their answer, allege that no more than r,ti2.fil4 bricks were delivered by plaintiff and used In the building, amounting to f4r00.11, uiujn which they were entitled to a credit of $12. and deny the allegation as to attor neys' fees. The first question for determina tion Is raised bf the demurrer to the complaint, and the teutlmony In the caH. Tin defendants contend that the Hen was not Hied within 3D days after the material was furnished, as provided by Sec. 7420, L. (). L nor. within 30 days after the completion of the building, according to the lime stipulated by such section, together with Her. 712!".. L. O. L yet contend that It was tiled prematurely, being filed before the completion of the building. From the evidence It appears that the plulntliT commenced to deliver the brick about August 12, I'.tOD, Mu lshing his delivery thereof about September 27th, 1!I09. The brick work was completed about October 13, 1!I0!I, and the lien was filed on December 3, l!H!i, before the building was fully constructed. Construing together the two sections of the stat ute nhnve alluded to, this court has held thai the laborer or material man must llle bis lien within 30 days Bfler the completion of the building, not necessarily within 30 days from' the date of ceasing to fiiriilHh labor! or material. Alnslln v. Kohn, 1(1 Or., 3I3; Coffey v. Smith, T2 Or., G3N. Thel defendants claim that this lien was not filed within either of these sec tions that Is that between the time allowed for llllng, within 3D days from the time of furnlHhlng the ma terial and before the coiiimencemtint of 3(1 days nfler the completion or the building, thcro wns n blittus.dur Ing which period such lien could not be filed. In Alnslle v. Kohn, supra, It Is said that whether Hie claim was filed within 30 days after the work and material were furnished was un important, provided It was done with in 30 days after tho completion of the building. In this contention counsel for defendants relies tipon the rule laid down in Hoylance v. San Luis Hotel Company, 74 Cal., 273, but an examination of the opinion In that case, at page 277, Indicates that It Is basd upon a statute differing from ours. The reason for not allowing the lien to be died frlor to the com pletion of the building being that, "unde.r the contract between the owner and the contractor, the owner agrees to pay the contractor a cer tain sum for constructing the build ing, and this sum Is a fund which may be held under the statutes for the payment, so far as It will go, of all the claims of all the various sub contractors, for work and materials furnished by thern to the contractor, who Is the principal and head of all; and all the parties entitled to pay ment or contribution out of this fund .should be able to reach the fund and get their proportionate shares thereof at the same time or wlthlu the samo period of time." From the language used It would ap pear that this rule, following that prescribed In Davis v. Ilullard, 32 Kan., 234. Beaton v. Chamberlain, 32 Kan., 239, and contained In Sec. 1428, II .lones on Liens, Is applicable to a different statute than ours. Jones on Mens, See. 1432, states that "Where there are dlHtlnct contracts for different parts of a building, as for Instance one contract to do all stone work and to furnish all the material for the same, anil nn othcr contract for the brick work, and another for the wood work, each contract must aland upon Its own merits, and liens under the different contracts must be filed within the time limited from the time of the completion of the work under each contract." This work Is Instructive, but neither of the sections referred to apply to our statute. As to the. necessity for prompt en forcement, It Is said In Phillips on Mechanics' Liens, Sec. 322: "It has been the policy of nearly every state which has established a system of mechanics' lien to protect tho rights of owners and others who may he come Interested In the property, by requiring those who nro entitled to Its benefits to be prompt In the en forcement of their claims. The priv ileges secured mechanics and mater ial men are unusual In their char acter, effective and sometimes op pressive In their, behalf, and It Is only Just that they should he re quired to be diligent In their enforce ment," This reasoning and a careful ex amination of our statute would Indi cate that the lien for materials can 1. Hied at any Mine alter the fur nishing of the last material, and be fore the expiration of 3(1 days from the. completion of the building, when the materials for lis construction Is furnished to the contractor or sub contractor In charge thereof, who, by Sec. 74111. L. 0. l, "shall be held to be the agent of the owner for the purposes or this act." Such wo think, tinder the decisions construing the above mentioned statutes In Aln slle v. Kohn, Hupfi, and Coffey v. Smith, supra, was the legislative In tent. To hold that one furnishing materia! to the person having the contract fur the brick work of n building must, before filing his Hen, wait until the other contractors the carpenter, tinner .plumber and painter finish their contracts, and the building Is completed (which is often a question of dispute), and thereby limit his time for such filing to 30 days thereafter, would In our opinion nullify a part of the provi sions of the statute. As to the amount In controversy, tha, evidence relative thereto does ! not appear to be In conflict, except as to the manner or arriving at the number of bricks furnished. The plaintiff and his foreman testify that the brick was loaded in the yard and started for the car barns under the supervision of the foreman, who kept a record thereof in the form of small sv books of about 100 tickets, of which there were an original, dupli cate and triplicate. When a load was sent out one of these tickets was filled with the number of bricks for warded, nearly every load containing lido bricks. The duplicate and trip licate were the"n given to the team ster, one to be left at the place of delivery, and the other signed by the person to whom the bricks were de livered and then returned to plain tiff, who from the stub of hla ticket book each day copied on tally sheets, from which he made up his account of 623,000 delivered bricks. After the completion of the brick-work the plaintiff and defendants agreed to, and did, "lump off" the brick remain ing unused, estimating the number at 20,000. If it was understood or ex pected by either of the parties that the brick would be estimated from the number In the walls of the build ing after Its completion, there would have been no necessslty for "lump ing off," or estimating such unused brick. When a wagon was filled. It appears the number o bricks therein could be easily estimated. About two-thirds of the tickets were signed by the defendants or their foreman, and returned to plaintiff. The re ceipts for 97 loads, hauled before de fendants began construction, were unsigned for the reason that when delivery was made there was no one there to sign them. The plaintiff and his foreman testify that the record of those loads were kept In the same manner as that' of the oth ers. For the purpose of ascertaining the number of cubic feet therein, two competent engineers measured the walls of the building, Mr. A. Rich mond computing the number as 34,- 7of;, and Mr. I). W Taylor as 33,444 feet; the number of brick to each I cubic foot being variously estimated i nt from TS to 21. The discrepancy j In their measurements created a dif I Terence of about 0,000 bricks, taking I an average estimate per cubic foot. ! Then there Is the usual waste to be the testimony of the plaintiff and bis foreman, and the tickets, and check ing the latter by the estimates of the different experts, we are of the opin ion that 603.3O bricks were deliv ered to defendants and used in the building, such being the number claimed to have been delivered by plaintiff, after deducting the 20,000, estimated as unused. In accordance with our under standing the litigants stipulated that, taking the proceedings and records Into consideration, the court should fix a reasonable amount as attorneys' fees, without the introduction ofevl-, dence In regard thereto. There be-: Ing $1,814.11 involved, of which $326 j is disputed, and" no tender of the , amount due having been made, the. Hen for the whole amount being contested by defendants, we think i $350, the amount allowed by the trial court, reasonable. i It follows that the decree of the lower court must In all things be af firmed, and it Is so ordered. With Gas j considered, making It evident that any estimate Is Inaccurate, and, tin-' j less agreed to by the parties tliein-j j selves, or rendered absolutely neces sary, such n method should not be; adopted, except In connection with the other evidence. From a consld-1 'oration of all the evidence, taking Boratnt Golden m jJ f A af ami ilmnl. r f. f Dronchttii. Catarrh. Way Ftvtr ration i.f ALLmiicouimemhrarioa (IF llnltiira of I itoiuMti or urluary orgus. AT DHUOQIMTB i U'ky mot curt vatwtelf TTMllMWltb Mflfa bOttl tJto tin akt Caw U.S. A. 500 RUGS TO SELECT FROM aft We have now the largest line of Floor Rugs ever shown m any retail store, and prices that can't be duplicated anywhere else. We can save you from $2.00 to $8.00 on every rug you buy from us. We have all kinds of rugs Wilton Velvet Tapestry Brussels Axminister Grass Rugs Body Brussels Fiber Rugs We have them in all sizes, colors and designs. We can offer you a 9x12 Tapestry Brussel Rug as low in price as $9.00; or we can give yu a Wilton Rug that retails at any other store for $50 OUR PRICE $40.00. It will pay you to come and look over the large line we have and see the beautiful designs. We have just recieved a large shipment of Linoleum and our prices are right. Josse & Moore Furniture Co. THE COMPLETE HOUSE FURNISHERS Salnne r. Queen City Fire Ins. Co, Multnomah County. Christine Salone, appellant, v. Queen City Fire Insurance Co., of Sioux Falls, South Dakota, a corpor ation, respondent Appeal from the circuit court for Multnomah county. Hon. John B. Cleland, Judge. Ar gued and submitted July 2D, 1911. E. K. Coovert for appellant. (Coovert & Stapleton on the brief). W. E. Farrell for respondent. (C. S. O. Cherry, Wilbur. & Spencer, A. M. Dib ble and W. E. Farrell on the brief). Burnett, J. Affirmed. It was stipulated by the parties that this cause should be heard upon appeal on the findings made by the lower court as upon an agreed state ment of facts, together with the fire insurance policy thereto attached as a part of the same. From these sources we glean that Frank J. Rowland and his wife, Lou ise Rowland, at the date of the policy were owners of certain real proper ty In Columbia county upon which they were then erecting a dwelling house. At that time also Rowland was an agent of the defendant com pany at St. Helens in that, county having authority to act for It in con tracting insurance, countersigning Insurance policies and delivering the same to persons securing fire insur ance from that company. At the date of the policy the plaintiff loaned, to Rowland and his wife $1,000 in cash as evidence of which the Row lands executed to her a promissory note of that date due In three years and secured the same by mortgage" on their real estate mentioned and, further, as a part of the considera tion for the loan and as a part of the transaction Rowland Issued the j fire insurance policy in question, countersigned the same as such ! agent and delivered It to the plain tiff. Attached to tho policy and 1 signed by Rowland as agent for the defendant company was the "Stand j nrd Mortgage Clause with Full Con tribution," sometimes known as the I "I'nlon Mortgage Clause." It pro vided: "Loss or duage, if any, un I der this policy shall be payable to i Christine Salene or assigns at St. j Helens, Oregon, mortgagee, as inter est may appear, and this insurance as to the Interest of the mortgagee : only therein shall not be invalidated I by nny net or neglect of the niort ; gagor or owner of the " wKhin de scribed property, nor by any fore- closure or other proceeding or" notice : of sale relating to tln property nor I by any change In the title or owner ship of the property, nor by the oc cupation of the premises for pur poses more hazardous than are per I milled by tills policy; provided, that i In case the mortgagor or owner shall , neglect to pay any premium under i this policy. iVe mortgagee shall, on ; demand, pay the same; provided also, 'that the mortgagee shall notify this company of any change of owner I ship or occupancy or increase of haz ard which shall come to the knowl ; edge of said mortgagee, and unless : permitted by this policy, it shall be , noted thereon and the mortgagee , shall, on demand, pay the premium : for such Increased hazard for the : term of the use thereof; otherwise this policy shall be null and void." ! The standard mortgage clause In question further provided for the : right of the company to cancel the policy, for proportional Inability in case other Insuniee Is effected upon , the property and for subrogation of i the company to rights of the mort- gage In case of payment to the lat ; ter under the yojlcy. It fur'.Vr ap j pears from the llndlngs of fact that the plaintiff before she paid any ! money to Rowland knew that he was the agent of the defendant and was . also one of the owners of the prop crty upon which he was attempting ; to effect insurance by means of the , policy in question. The defendant never received any premium on ac i count of the policy and did not know , that the same had been Issued until nfter the property In question was I destroyed by fire. In fact. It knew I nothing whatever of the transaction In any way until nfter the fire and upon the matter being brought to its notice disaffirmed the action of Row land and refused to accept, ratifv, confirm oj approve the same. The building was destroyed bv fire July IS, liMiii. at which time the plaintiff's note and mortgage re In full force and effect and whollv un paid. Plaintiff compiled with the terms of the policy In the matter of giving notice of the loss and demand ing payment of the amount of insur ance. The circuit court gave judg met for the defendant and dismissed the action from which the plaintiff appeals. Hurnett. J. It may well be con ceded that the standard mortgage clause attached as a slip to the pol icy, if executed with authority or rat ified afterwards by the companv with full knowledge of the facts, would constitute an Independent contract between the insurer and the mortga gee upon which the latter nmv bring an action directly against the for mer: rirecht v. The Law Vnion and Crown Insurance Companv, 18 L R A (ns.l is?; iinoot v. Phoenix Fire insurance Compapy. 23 u U. A. (ns.) 122fi. In these cases, as well as In all those cited by the appellant In sup port of this proposition, the Insur ance was effected by ajtenta having authority to bind the Insurance com pany and acting solely tn the inter ests of the company. They all Am taln the feature that the "mortgage bad no knowledge of misrepresenta tion as to title or condition of the You'll find it convenient, eco nomical and safe if you use a NEW PROCESS or NEW IDEA Gas Range. H With either of these ranges I II vnn ran have a Sfoori. hot J V M mm - cooking or baking fire at a moments notice. No dust, dirt nor ashes and a vcool kitchen all the time. We sell gas ranges in all styles and sizes and gas hot-plates to be used independent. Also the kind to fit any range thus making your range a combination wood and gas at very small price. mkm I SEE THOSE FIRELESS COOKERS AT 1-2 Price SPECIAL PRICES ON ALL OLD HICKORY PORCH AND LAWN FURNITURE 4 i property or other disqualifying act of the mortgagor. This element per vades nil the cases cited and puts the mortgagee in the role of tin innocent party. In this case, however, the inno cence is on the other side. It Is con ceded ti .t the defendant never re ceived the premium for the policy in question and, furthermore, had no notice whatever of the transaction between the mortgagor and mortga gee until after the building had been destroyed by lire. It Is granted by the appellant that the policy was ab solutely void as to Rowland for the reason that without the knowledge and ratification of his principal, the agent cannot bind the principal In a transaction carried on in the agent's own Interest: Arlspe Mercantile Company v. Capital lsurance Com pany, 9 L. R. A. (ns.) 10S4. The basic reason of this principle is that no man can serve two masters. An agent cannot act in his own interest and nt the same time in the adverse interest of his principal without the atlirmative knowledge and approval of the principal. It is contended that Inasmuch as Rowland was the local agent of the defendant it was bound by his acts within the scope of his real or apparent authority; but it is equally true that if one dealing with an agent assuming to act for his principal and at the time knows the limitations of the agent's author ity, the former takes nothing by any act of the agent in excess of that authority. Here, the plaintiff knew that Rowland was the owner of the property to be insured and also knew that he was undertaking to act as! the agent of the company in his own I Interest as against that of the com-' pany in the transaction. She knew J that Row land was providing a se- j curity for the possible payment of j his debt out of the funds of the com pany. Aware of all these things, she I dealt with him at her peril and if j she would recover from the company she must bring home to the latter ! knowledge of the whole transaction; before any liability arose upon the policy and further show that it ap-1 proved or ratified the same, having such knowledge. The law imputes to' her knowledge of the legal effect of ' the agent's operating in his own in-, terest and adversely to the principal whom he claimed to represent. The! conclusion of the whole matter Is' that the contract embodied in the' standard mortgage clause attached to the policy was not executed as to tho defendant because the person as-: sumlng to act for and bind the de-! fendant had no authority to so act and plaintiff knew he had no such authority. Hit rights camiot rise above their source which, as we have seen, is the void act of the mortga gor. Rowland. The contract thus executed furnishes her no cause of action. I The judgment is affirmed. ! The State, ex reU 0. l. & . Co t. Hmdshiiw, Wumto Comity. j The State. e rel The Oregon Railroad and Navigation Companv ! petitioner, v. W. h. Uradshaw, judge' of the circuit court of the state of Oregon for Wasco countv. respond-' euL Mandamus. Demurrer to re-1 turn argued and submitted July 7 1 mi. W. W. Cotton and Snow & Mc- i (.amant for petitioner. Bennett ' Sinnott for respondent. Burnett, J. Demurrer sustained. By the Initiative process at the general election in November, 1910, the constitution of this state was so amended that the supreme court may In its own discretion take original jurisdiction in mandamus proceed ings. I'nder the sanction of this amendment and proceeding accord ing the the direction of Sec. tin, L. O. L.. the chief insttce nf this mnri upon the petition of the Oregon ! uauway and .Navigation company is sued an alternative writ of manda mus, directed to the circuit court of the state of Oregon for the countv of Wasco and to Hon. W. h. Bradsliaw, its presiding judge, the recitals of which are as follows: "Whereas, it has been made suffi ciently to appear to our said court by the affidavit of the petitioner herein, the Oregon Railroad and Nav igation company, that heretofore there was begun in the said circuit court of the state of Oregon for the COUntV Of WaSCO an nntinn l. thr. said petitioner against I. H. Taffe and M. E. Taffe. his wife, and the Celilo Improvement company, for the con demnation of certain lands then and now lying in the county of Wasco, state of Oregon, and that in said ac tion such proceedings have been had as that heretofore, and on the 2,"th day of June, 1910, a verdict was re turned In the said cause assessing damages for the taking of the said lands at the sum of $11,000.00; and Whereas, It has been sufficiently made to appear to our said court that no judgment has been entered In the said cause, and. that on the 12th day of September, 1910, and upon demand thereto by the plaintiff In the said action, the Oregon Rail road and Navigation company, yon the Said circuit court nf tho einta nt Oregon for the county of Wasco re- uiseu to enter judgment in the said cause; and It now being made suffi ciently to appear that no judgment will be entered in the said cause ex cept by the command of our said court; and. Whereas, it is sufficiently made to appear by the said affidavit of the petitioner that the petitioner desires to appeal from the judgment to be pronounced in the said cause." The command of the writ was that upon service of the same upon the court, it cause to be entered a judg ment in the action therein described, or show cause why the same had not been done. The return to the writ is in the following language: "That the said court was not author ized to enter the judgment asked for or any judgment of said court, save and except the order which was en- (Continued on Page 9.) s A' ure to please the' lovers of a wholesome beverage, ways an invigorating, pure and delightful drink, : Lends-strength to the weak and, wearied phys'que, Effects a soothing cure for the nervous ills of life, Vakes life more pleasant and I VI cheers the heavy heart, B rings good fellowship to all who partake in moderation. 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