Coast Engine & MacHine Works v. Barbee , 130 Or. 159 ( 1929 )

IN BANC.

This is an appeal from a judgment and a decree rendered in favor of plaintiff and against defendants. A.J. Barbee defaulted and is not a party to this appeal. Defendants Rahotte-Winter, Inc., and H.J. Armstrong Co. of Oregon, a corporation, appeal. The appealing defendants demurred to plaintiff's complaint. The demurrer was overruled and the appealing defendants refusing to plead further, a decree was entered foreclosing plaintiff's lien and directing the sale of the chattels described in the notice of lien, complaint and bill of particulars. The demurrer was based on the ground that the complaint failed to state a cause of action against defendants in four particulars. The particulars are set out in detail. The first of the details is:

"That the lien notice sued upon herein does not contain a description of the property levied upon sufficient for identification."

The fourth is:

"That the complaint affirmatively shows that the tractor levied on was never in the possession of plaintiff, but only ``a part' of said tractor was in the possession of plaintiff."

The other two particulars are not deemed of sufficient importance to be mentioned. The complaint is not challenged except as to the four particulars only two of which are mentioned, namely, the description of the chattels and the allegation that a part only of the tractor has been in plaintiff's possession. The complaint alleges that defendant A.J. Barbee was the reputed owner of the machinery and describes the chattels as follows:

"That on and between the 7th day of November, 1927, and the 29th day of November, 1927, the plaintiff, at the special instance and request of the defendant A.J. Barbee, the reputed owner of said logging trailers and tractor hereinafter described, expended labor and material in the repair of said trailers and tractor; that the said expenditure and repair of said trailers and tractor consisted in making necessary repairs and labor and material more particularly described as set forth in an itemized bill of particulars attached to this complaint and made a part hereof and marked Exhibit ``A.'

"That upon each of said dates mentioned in said bill of particulars the said trailers and a part of the tractor engine were placed in the custody and possession of said plaintiff and at his place of business at 1925 Hood Street, Portland, Oregon, and thereafter delivered to and accepted by the defendant A.J. Barbee; that the total amount of said expenditures of material and labor in repair of said trailers and tractor was and is the sum of $477.80; that said trailers and tractor upon which said labor and material were placed were and are described as two Holt Caterpillar Trailers and one Holt Caterpillar Tractor. * *

"That the defendant H.J. Armstrong Co. of Oregon has or claims to have some interest in the said tractor, and the defendant Rahotte-Winter, Inc., has or claims to have some interest in the said trailers, and said defendants have or claim to have acquired the entire equity of the defendant A.J. Barbee in and to said trailers and tractor; but whatever right or title or claims the said defendant H.J. Armstrong Co. and Rahotte-Winter Inc. has, the same is subject and subsequent to plaintiff's lien herein."

Attached to said complaint and made a part thereof as exhibit "A" is a bill of particulars in which the chattels are described as follows:

"One Holt Caterpillar Tractor and Two Holt Caterpillar Trailers."

The notice of lien is attached to the complaint and made a part thereof as exhibit "B" and describes the same chattels as follows:

"2 Holt Caterpillar Logging Trailers (about 10 ton cap.), 1 Holt Tractor."

It is contended by appellants that the description of the chattels is not sufficiently definite to identify the property liened; that since plaintiff's complaint shows on its face that only a part of the tractor was ever in its possession plaintiff was not entitled to a lien on the tractor but only on that part upon which the work was done; that plaintiff is not entitled to a lien on the tractor for the work done on the trailers or either of them but is confined to a lien upon that particular chattel upon which he wrought for the value of the work done on each particular chattel. Neither the complaint, bill of particulars nor the notice of lien segregates the value of the work done upon either of the trailers or of the tractor separately.

AFFIRMED. Defendant Barbee not having appealed is conclusively presumed to be satisfied with the judgment and decree. He will not be affected by this opinion.

The statute requires:

"A description of the chattel, sufficient for identification." Or. L., § 10273.

The lien, being one to protect the laborer who has expended labor and furnished material for the benefit of the owner of the chattel should be liberally construed. The lien is statutory and the lien claimant must substantially follow the statute in order to get the benefit of the lien. An exact or faultless description will not be required but the description must be sufficient to identify the article upon which the lien is claimed: Guille v.Wong Fook, 13 Or. 577 (11 P. 277). Construing the lien with the exhibits "A" and "B" and thus giving to plaintiff the benefit of the notice of the lien, the bill of particulars and the description in the complaint, it is our opinion that the description is sufficient. All of the descriptions together describe the trailers as two Holt Caterpillar Logging Trailers (about 10 ton cap.) and the tractor as one Holt Caterpillar Tractor. The demurrer admits every allegation in the complaint including the exhibits. Ten-ton trailers and Caterpillar tractors are not common or ordinary articles. We will not presume that defendant Barbee had other such machines. The machines are described as being owned by defendant Barbee. They are the trailers and tractors belonging to and reputed to belong to defendant Barbee. The description, though meager, identifies the chattels: Phillips on Mechanics' Liens, pp. 668-69, § 378; Stilwell v. McDonaldet ux., 100 Or. 673, 678 (198 P. 567); Covey Motor Car Co. v. Kliks et al., 111 Or. 394, 400 (225 P. 1097); Fletcher v. Southern Oregon Truck Co., 128 Or. 353 (273 P. 329), decided Jan. 8, 1929.

The appealing defendants also contend that each particular trailer and the tractor is liable to a lien for the material and repairs placed upon that particular machine. Defendants argue that two of the trailers are owned by one appellant and the tractor is owned by the other. Appellants contend that defendant Rahotte-Winter, Inc., does not want to pay for the repairs done on the tractor, for it has no interest in the tractor and defendant H.J. Armstrong Co. does not want to pay for the repairs on the trailers because it has no interest in them. Since the work was done under one contract and at the same time for the same owner, plaintiff is entitled to a lien on all three of the articles. The work having been done on the three as a unit plaintiff is not required to segregate the repairs and material furnished for each machine separately. Appellants rely on the case of Golden State PortlandCement Co. v. Ward Motor Car Co. et al., 185 Cal. 402,197 P. 56. That case recognizes that one notice of lien based on one contract might be sufficient to sustain the lien on several chattels. It depends upon the circumstances and nature of the contract and work.

Appellants also complain because the complaint states that only a part of the tractor was put in possession of plaintiff. We think that plaintiff is entitled to a lien on the entire tractor even if only a part thereof was brought to him for mending or repair: See Hiner v. Pitts, 89 Or. 602, 603 (175 P. 133);Duby et al. v. Hicks, 105 Or. 27, 45 (209 P. 156), and cases there cited; Ross v. Spaniel et al., 122 Or. 424, 439 (251 P. 900, 259 P. 430.)

Decree affirmed. AFFIRMED.

BROWN, J., absent.