Harrisburg Lumber Co. v. Washburn ( 1896 )

Opinion by

Mr. Justice Moore.

It is contended on behalf of the lien claimants that the court erred in its findings and decree, while the trustees, in support of the decree, insist: First, that the liens were sought to be enforced against a building used by a religious society for public worship, and that such property is exempt therefrom; second, that the real property on which the building is erected was “ conveyed to the said trustees and their successors in office in trust for the use and benefit of the ministry and membership of the Methodist Episcopal Church of the United States of America, subject to the discipline, usage, and ministerial appointments of said church, as from time to time authorized and declared, and, if sold, the proceeds shall be disposed of and used in accordance with the provisions of said discipline,” that, the trust being set forth in said deed, and the same being of record, the trustees had no authority to create a debt against the property by which it could be made subject to a lien without the consent of the grantor, and that, the deed being of reoord, the lien claimants had notice thereof; third, that E. Bashaw, the contractor, was the agent of the Harrisburg Lumber Company, and, having paid him on his express demand therefor, they have discharged the claim of said company; fourth, that a part of the lumber so furnished by said company and for which it claims a lien was used in building a sidewalk around the lots belonging to the church, thus rendering the lien invalid; fifth, that the lien notice of the Sugar Pine Door and Lumber Company, misdescribes the premises on which the church is erected; sixth, that its lien was not filed within the time limited by law; and, seventh, that the pews furnished by it were not made according to the plans and specifications thereof.

1. Section 3669, Hill’s Code, so far as it applies to the case at bar, provides that “Every * * * lumber merchant * * * furnishing material * * * to be used in the construction * * * of any building * * * shall have a lien upon the same for the * * * material furnished at the instance of the owner of the building * * * or his agent.” “A church,” says Mr. Phillips in his work on Mechanics’ Liens (3d ed.), § 171, “is a 'building’ within the mechanics’ lien law.” In Presbyterian Church v. Allison, 10 Pa. St. 413, the court holds that a church is a “building” in the sense contemplated by the statute, and that the exemption by the legislature of all churches from taxation did not exempt them from the mechanics’ lien law, for if it had done so the provisions would have appeared in the statute, and say: “ On the whole, we perceive no reason, either religious, moral, or civil, why the mechanics’ lien law does not apply to the erection of a church.” It is conceded that property exempt by law from seizure and sale under an execution must also be exempt from the mechanics’ lien law, unless the statute conferring the remedy expressly provides that such property was meant to be included within its operation: Phillips on Mechanics’ Liens, § 179. Our statute exempts from execution “the seat or pew occupied by a householder or his family in a place of public worship”: Subdivision 5, section 282, Hill’s Code. This exemption is granted upon the theory that the ' householder is a tenant, and has an estate in a designated pew, but such exemption, being personal, can be maintained only by a householder, and hence cannot be claimed by the trustees on behalf of the society. A house of public worship, occupied by a religious society being a “building,” and the statute not having exempted it' from mechanics'’ liens, or seizure and sale under execution, it follows that a church is subject to a lien for labor performed upon op material furnished to be used in its construction,, alteration, or repair: Gortemiller v. Rosengarn, 103; Ind. 414 (2 N. E. 829); Jones v. Trustees, etc., 30 La. Ann. 711.

2. The deed having recited that the premises were conveyed to the trustees and their successors in office, in trust for a specific use, the question is presented whether they had such an estate therein as would authorize them, with the consent of the society, to create a debt which might subject the property to a statutory lien that could be foreclosed without making the grantor a party to the proceedings. In its discussion counsel assumes that the grantor had an equitable estate in the premises that could not be defeated by the enforcement of a mechanics’ lien; but an examination of the provision referred to clearly shows that he had conveyed his whole estate therein, and in case the premises should be sold, the proceeds arising therefrom are to be disposed of and used in accordance with the discipline of the Methodist Episcopal Church. The owners of the equitable estate in the premises are the members of the society of the Methodist Episcopal Church, for whose benefit the trustees hold the legal title; and, in the absence of any claim to the contrary, it will be presumed that the trustees caused the church to be erected by and with the consent of the members of the society. “No case,” says Sherwood, J., in Bushong v. Taylor, 82 Mo. 660, “appears to have been found ,where the point of the power of trustees to charge the church property has been directly passed upon; but several instances have occurred where such powers have passed unchallenged, and formed the basis of judgments in courts of last resort.” Further in the opinion the same learned justice says: “And, looking to the character of the organization and nature of the government of the Methodist Episcopal Church, it would seem clear that the trustees are the agents of the aggregate body of members, at least so far as is necessary to upholding the relief sought for in this case, and that any member who unites with the association, under and subject to the discipline, thereby, of necessity, gives to such trustees authority to act for him within the meaning of the book of discipline, to the extent of his beneficial interest in the property owned by the association, and that, in consequence of this, any debt contracted by such trustees on account of the premises, will be the debt of the members, so far as concerns their beneficial interest, and to the extent of such interest held by the trustees; and it cannot be tolerated that such an association could so convey its property as to place it beyond the reach of a court of equity enforcing the claims of its creditors.” The trustees named in the deed are made parties defendant in this suit, and the grantor of the premises, having no estate therein, was not a necessary or proper party.

3. Was Bashaw the agent of the Harrisburg Lumber Company? The evidence upon this branch of the subject is quite conflicting, the plaintiffs positively denying that any such relationship ever existed, while the defendants show that Bashaw represented that he was such agent, and had authority to sell lumber for the company which he claimed to represent, and that he made one or two trifling sales. In three instances he took orders for lumber which the mill company supplied, but payments therefor were demanded by and made to the company. To entitle the trustees to invoke the principle for which they contend, they must show that the Harrisburg Lumber Company held Bashaw out to the public as possessing sufficient authority to embrace the act in question, and that, having reason to believe and believing that he possessed such authority, they made payments to him which they would not otherwise have made: Walsh v. Hartford Fire Insurance Company, 73 N. Y. 5; Connell v. McLoughlin, 28 Or. 730 (42 Pac. 218). Tested by this rule the defense on this ground must necessarily prove unavailing, for the contract for the erection of the church having been made with Bashaw, the payments were due thereunder to him in his individual capacity, and not to the Harrisburg Lumber Company. The trustees have not, in our judgment, shown that, relying upon Bashaw’s supposed agency, they. made payments to him which they would not otherwise have done had they known he was not the agent of the . company.

4. It is admitted that a portion of the material for which the lien of the Harrisburg Lumber Company is claimed was furnished to be used in the construction of a sidewalk around the lots upon which the church is erected, and, as the sidewalk forms no part of the “building,” no lien could attach to the church under a claim for material furnished to be used for such purposes. Had the claim contained á lumping charge of the amount demanded, and there were no means of ascertaining from the notice itself the quantity and value of the lumber used in building the sidewalk, the lien would be defeated: Dalles Lumber Company v. Wasco Woolen Manufacturing Company, 3 Or. 527; Kezartee v. Marks, 15 Or. 529 (16 Pac. 407), Williams v. Toledo Coal Company, 25 Or. 426 (36 Pac. 159, 42 Am. St. Rep. 799); for a court cannot, from oral evidence, separate items for which a lien is given from those for which no lien can be acquired: 2 Jones on Liens, §§ 1409, 1419. The notice of lien of the Harrisburg Lumber Company contains an itemized statement of all the material furnished, in which is found a charge for one thousand two hundred and sixty feet of lumber used in the sidewalk. This material, with other of a like class, is valued in the statement at nine dollars and fifty cents per thousand, and, the quantity and value being apparent from the notice, and not dependent upon oral evidence, the notice did not contain a lumping charge, and hence the item of lumber furnished to be used in building a sidewalk did qpt invalidate the lien. The item of eleven dollars and ninety-seven cents, the value of the lumber used in the sidewalk, will be deducted from the amount of said claim, and the lien of the Harrisburg Lumber Company will be allowed and enforced for five hundred and fifty-nine dollars and eighty-nine cents, with interest from January eighteenth, eighteen hundred and ninety-three, the date of filing the lien, seventy-five dollars for attorneys’ fees, and three dollars paid for filing and recording the notice of lien.

5. The real property on which the church is erected is described as lots number one, two, and the south half of lot three, in block number two in Milliron’s Addition to Junction City; and the Sugar Pine Door and Lumber Company having misdescribed the premises in its notice, it is contended that no lien attached in favor of such company to the property in question. This notice states, in substance, that the lien claimant furnished to E. Bashaw material of the value of one thousand two hundred and fifty-eight dollars and eleven cents to be used by him in erecting a church building on lots one, two, and the south half of lot three, in block one in T. A. Williams’ Addition to Junction City, for the Methodist Episcopal Church of that place, and C. W. Wasbburn, J. W. Starr, J. H. Akers, L. E. Moe, and J. A. Latalia as trustees of said church, and “That said company claims a lien on said building and the premises above described on account of its said claim and demand to the extent thereof/’ The Sugar Pine Door and Lumber Company in its answer, after having .correctly described the premises sought to be charged, and pointed out the misdeseription in its notice, alleged the necessary facts to entitle it to a foreclosure of its lien and also: “That the said E. Bashaw built no other church in the said Junction City or in any of its additions, nor did the said church own then nor does it now own any other premises in said Junction City or any of its additions, than those premises on which said church building was built by the said E. Bashaw, as aforesaid, nor does said church own any other church building in said city or any of its additions; and the said description contained in said claim, as aforesaid, is amply sufficient for the identification of said premises.” The record shows that at the time this lien was filed the trustees of the Methodist Episcopal Church owned three vacant lots lying due east of the church built for them by Bashaw, but the lien does not describe these lots nor is there any such subdivision of Junction City as T. A. Williams’ Addition. The lien having misdescribed the block and addition, the claimant cannot be permitted to aver or prove the correct description of the premises sought to be charged, unless it is manifest that there is a latent ambiguity in the description contained in its notice (Kanne v. Otty, 25 Or. 531, 36 Pac. 537); for patent ambiguities and mere mistakes in the description of the subject matter or names of persons contained in a written instrument cannot, except in a suit for that purpose, be amended by averment or cured by extrinsic evidence: Brauns v. Stearns, 1 Or. 368. The church having been built by Bashaw for the trustees and society on block two in Milliron’s Addition, and the lien having been claimed against the building so erected, the description of the block and addition, as given in the notice, does not correspond with the designation of the church, and hence a latent ambiguity exists in the written instrument. Mr. Freeman, discussing latent ambiguiti.es in his notes to the case of Morton v. Jackson, 40 Am. Dec. 107, says: “It is a' settled rule that the addition of a false description will be rejected, and the instrument take effect, if a sufficient description remains to identify the thing intended to be described.”

Applying this rule to the case at bar, and rejecting the false description of the block and addition, can it be said that a sufficient description of the premises remains by which the property sought to be charged with the lien can be identified? The requirement of the statute is complied with when the notice contains a description of the property to be charged with the lien sufficient for identification: Section 3673, Hill’s Code. “The general rule,” says Strahan, J., in Kezartee v. Marks, 15 Or. 529, (16 Pac. 407,) “as to what shall be sufficient description to sustain a mechanics’ lien seems now to be that if there appears enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, it will be sufficient.” In Hotaling v. Cronise, 2 Cal. 60, it was held that a lien which described the property sought to be charged therewith as “the wharf situated on Battery Street, between Pacific and Jackson Streets, in San Francisco,” was sufficient. So too in Tredinnick v. Mining Company, 72 Cal. 78, (13 Pac. 152,) it was held that the designation of “ The Red Cloud Mine,” being the name by which the property was well known, was a sufficient identification thereof in a notice of a miner’s lien. The evidence shows that there is but one Methodist Episcopal Church in Junction City, and this was built by Bashaw, and, under the rule announced in Kezartee v. Marks, 15 Or. 529, (16 Pac. 407,) there can be no doubt that the property can be identified by every person . acquainted with the locality by the simple designation remaining in the notice after excluding the false descriptions. Nor do we deem this conclusion in conflict with that announced in the case of Joshua Hendy Machine Works v. Pacific Cable Company, 24 Or. 152, (33 Pac. 403,) for in that case no lien was claimed upon any building, and the description being false, by rejecting it there was no property described in the notice to which the lien could attach. The ambiguity was patent, and could not be corrected.

6. The specifications- for the pews, the making of which constitute a part of the claim of the Sugar Pine Door and Lumber Company, provide as follows: “Seats as per detail on the lower floor to be made of sugar pine. To be on the same circle as front line of gallery. * * * Short seats in angles of building and four straight seats for wing.” The plan of the church shows an ax*c, which is designated “Front Line of Gallery.” The pews furnished were straight and set in angles coxxforming as near as possible with the arc, and it is contended that the company, not having made them circular in accordance with the specifications, no lien can be acquired on this account. J. A. Wilson testifies that Bashaw gave an order for straight seats, and they were'made exactly according to his order, while Rev. Mr. Wallace testifies that one Kinney, an agent of the Sugar Pine Door and Lumber Company, examined the plans and specifications, and that the company’s bid was made by him for the manufacture of the seats with full knowledge thereof; that he found in the company’s shop at Albany a copy of the entire details of the work to be performed by it, and brought a part of the plans home with him; that the seats arrived at Junction City on December thirtieth, eighteen hundred and ninety-two; that Bashaw set up all but ten, and that the church people “finished setting up the seats.” If the company agreed to make circular seats, but failed to do so, the trustees, with knowledge of such failure, having voluntarily placed them in the church, waived any objection on that account, for, the contract having been substantially performed, the trustees by that act ratified the departure, accepted the seats, and should pay the reasonable value thereof: Phillips on Mechanics’ Liens, § 147; Stewart v. McQuade, 48 Pa. St. 191.

7. The Board of Church Extension of the Methodist Episcopal Church having accepted a mortgage of the property after the work had been commenced upon the building, took the same with knowledge thereof, and the lien created thereby must be subordinate .to those of the material men, whose materials, having added to the value of the estate, necessarily carry their liens back to the date of the commencement of the work on the building: Section 3671, Hill’s Code.

8. The bookkeeper of the Sugar Pine Door and Lumber Company, in adding up the items of the company’s claim, made a mistake of ten dollars in favor of the company, but this is not treated in the respondent’s brief as a reason for rendering the lien invalid, nor do we think it should vitiate it. It is true the statute requires the claim to contain a true statement of the demand after deducting all just credits and offsets, but this must mean that the property should be charged with no more material than had been delivered, and credited with all payments made by the owner thereof; but an innocent mistake in the computation of the amount ought not, in our judgment, to render the lien inoperative. The Sugar Pine Door and Lumber Company is, therefore, entitled to one thousand two hundred and forty-eight dollars and eleven cents, with interest from February second, eighteen hundred and ninety-three, the date of filing its lien; one hundred dollars, which it is stipulated is a reasonable attorney’s fee for foreclosing this lien; and three dollars for the cost of filing and recording the same.

It is contended that the lien of the Sugar Pine Door and Lumber Company was not filed within the time limited by law. This issue involves the question of time when the last shipment of material was made by the company. J. A. Wilson, its agent, testifies that on January fourth, eighteen hundred and ninety-three, at Bashaw’s request, there was shipped to him by the lien claimant three doors and a quantity of window stops to be used in the church. Rev. H. S. Wallace, pastor of the church, denies the receipt of three doors after December thirty-first, eighteen hundred and ninety-two, and says there was no place to . hang them after that date, but he further testifies that one door came there about the time Bashaw left, or about January twentieth. This witness, on January nineteenth or twentieth, examined and made a copy of the statement of the account of material furnished by the company to Bashaw, amounting to one thousand two hundred and fifty-eight dollars and eleven cents, on the margin of which was written, “December twenty-ninth, eighteen hundred and ninety-two.” This statement having been indorsed “O. K.,” and signed by Bashaw, was offered in evidence, when it was discovered that the date had been erased. This circumstance, it is claimed, contradicts the witness Wilson, and shows that all the material was furnished prior to January first. Had the evidence shown that the statement was prepared on the date erased from it, such proof, being identical in the amount demanded, would doubtless have been conclusive; but Bashaw did not indorse the statement until January eighteenth, and the testimony of Wilson, corroborated by that of Wallace, shows that material was shipped by the company to Bashaw for the church within thirty days from the date of filing the lien, and hence we must conclude that the date “December twenty-ninth, eighteen hundred and ninety-two,” was improperly entered upon the statement, and that the lien was filed within the time limited by the statute. The evidence shows that the trustees have paid Bashaw only two thousand one hundred and eighty-four dollars of the amount agreed to be paid him, and that they hold his bond with sureties for the faithful performance of the conditions of the contract, and this being so, the foreclosure of the liens will not cast the whole burden upon the society. It follows tíiat the decree of the court below is reversed, and one will be here entered foreclosing the said liens, and directing a sale of the premises, and an application of the proceeds arising therefrom to the payment of said liens in the order of their 'priority, as between the lien claimants and the mortgagee. Reversed.