Alderson v. Lee , 52 Or. 92 ( 1908 )

Opinion by

Mr. Commissioner King.

It is insisted that the suit cannot be maintained upon any of the lien notices filed in evidence, on the ground (1) “that part of the lumber sought to be liened had, previous, to the execution of the lien notices, been removed a mile or more from the yard where manufactured, and a part only remained upon the yard where manufactured; and (2) the lien notices contained no statement of the amount chargeable upon the non-lien-able lumber removed from the yard, nor of the amount chargeable against the lumber remaining upon the yard;” and (3) “that the lien notices, and each thereof, failed to identify any lumber, sought to be charged with a lien, with sufficient or any certainty whereby the same could be identified and segregated”; (4) that the lien of plaintiff upon the logs is void, for the reason that it includes therein unlienable property; (5) that the notice of liens were all assigned before being filed, and accordingly insufficient.

1. The statute provides, in effect, that every person performing labor upon, or who shall assist in obtaining or securing, saw logs, spars, piles, or other timber, has a lien upon the same for the work or labor done thereon, or in obtaining and securing the same, including all persons who may assist in or about a logging camp (Section 5677, B. & C. Comp.) ; and that any person who shall permit another to go upon his timber land and cut thereon saw logs, spars, piles, or other timber, has a lien on the property cut for the purchase price thereof (Section 5679, B. & C. Comp.) ; also that every person performing labor, or who shall in any manner assist, in the manufacture of lumber has a lien upon such lumber while remaining at the yard where manufactured (Section 5678, B. & C. Comp.), provided that the same is filed with the county clerk of the county in which the work is done, within 30 days after the close of the work or labor mentioned in Sections 5677 and 5678. The lien notice of plaintiff was given to cover the agreed price of logs sold to Lee Bros. Co. under an express contract, but includes therein a pretended lien, not only upon the logs, but upon all lumber manufactured from any portion of the timber sold. It is clear from the statute that a lien is not given, under such circumstances, upon any property except the logs, spars, piles, or other timber-conveyed: Section 5679, B. & C. Comp. This section appears to be the only section of the Code granting such lien, and specifies only the property last mentioned. It is well settled that when a statute purports to give a lien upon property therein specified, the well-known rule of “expressio unius est exclusio alterius” applies. In other words, the enumeration of the property upon which a lien may be held, excludes anything not included therein : Williams v. Toledo Coal Co. 25 Or. 426, 432 (36 Pac. 159: 42 Am. St. Rep. 799). And the same rule applies to all the liens involved, so far as affects the lumber situated outside of the yard where manufactured: Dexter Horton & Co. v. Sparkman, 2 Wash. 165 (25 Pac. 1070).

2. In this connection it is urged that since the lien notices do not contain a statement of the amount of labor performed on the lumber remaining in the yard, nor on the lumber removed to the railroad track, sufficient to enable a segregation, thereof, and includes nonlienable with lienable property, they are void. We think it clear, however, that the reasons given for the rule announced in Williams v. Toledo Coal Co. 25 Or. 426 (36 Pac. 159: 42 Am. St. Rep. 799), and Hughes v. Lansing, 34 Or. 118 (55 Pac. 95: 75 Am. St. Rep. 574) in support of this contention, are wanting in the case under consideration. The lumber upon which the liens are sought is in fact segregated, and the claims for labor, as allowed by the circuit court, each clearly specify the character of the labor and contract price therefor, and come within the provisions of the statute covering the character of labor designated therein. The lienable lumber is- at the mill, and the part not subject to liens is at the railroad track, about one mile distant; and the reference to the latter in the lien notices is mere surplusage, as much so as if it had referred to cattle or horses belonging to the Lee Bros. Co., ranging in the vicinity: 20 Am. & Eng. Enc. Law (2d ed.) 508; Dexter, Horton & Co. v. Sparkman, 2 Wash. 165 (25 Pac. 1070).

3. Omitting this surplusage, we have remaining the logs and lumber left at the mill, which, without attempted contradiction, are shown to be the only logs or lumber situated in the millyard. If there were logs and lumber in the same yard belonging to the same parties not subject to' a lien or similar property there owned by others, appellant’s contention in this respect might be tenable. The liens, and evidence bearing thereon, show that the work and labor of all, except the first two liens specified in the complaint, was performed in, around and about the mill, and in some manner connected with and incidental to the converting of the timber into lumber; thereby clearly coming within the reason and spirit of the statute: 19 Am. & Eng. Enc. Law (2 ed.) 534.

4. Nor is the contention tenable, that the description of the liened property is insufficient. It is not claimed there were any other logs or lumber in the vicinity of the mill or on the section of the land where this property is found, except that claimed herein; and it is shown, by uncontroverted testimony, that the property could easily have been found from the description given. Our statute (Section 5683) requires only that the property be described with reasonable certainty. True, the form there given seems to indicate that the logs should be designated by marks, and this might, in some instances, be essential to a valid lien, such as where the defendant’s logs may be on the same tract of land, or intermingled with those of other owners, or with logs non-lienable; but, where no other property is to be found sufficiently near as to cause confusion, the reason for this suggestion in the form given ceases. It is obvious, from the language of the section in which the form is given, that the form, as there set out, is not mandatory, but sufficiently complied with if given in substance. And no definite rule can be given as to when it may be deemed substantially followed. This must depend upon the facts and circumstances in the cases as they may arise. If required that a specific description be given in every instance, the purpose of the law would be defeated. Any description from which a stranger, aided by' the testimony adduced at the trial, could, with reasonable ■ diligence, locate the property is sufficient to meet the requirement of the law: 8 Ency. Ev. 666; Dexter, Horton & Co. v. Sparkman, 2 Wash. 165 (25 Pac. 1070).

5. Another and more difficult question, and one not free from doubt, relates to. the time when the assignment of the lien notices to plaintiff took' effect. The rule is that the right to perfect a lien, given by statute, is a privilege limited to the claimant, and that any assignment thereof before record, carries only the chose in action constituting the basis of the intended lien. To constitute a lien, every requirement of the statute must be complied with; and, until such compliance, no lien is created: Brown v. Harper, 4 Or. 89; Sutton v. The Victorian, 26 Or. 194 (41 Pac. 1103) ; Hughes v. Lansing, 34 Or. 118, 121 (55 Pac. 95: 75 Am. St. Rep. 574). If then, as a matter of law, the assignments were fully executed before record thereof, the attempted liens come within the rule, and are unavailable; and plaintiff would have received choses in action only with respect to which his remedy would be in law, and not in equity. The testimony of the clerk is to the effect that the assignment was indorsed upon each lien when delivered to him, on December 22, for record. To constitute a valid assignment, when in writing, it must be delivered to the assignee. A mere indorsement on the instrument assigned is insufficient (4 Cyc. 41), and the transmission and time of delivery may be shown by parol: 8 Ency. Ev. pp. 664, 726, 744: 17 Cyc. 640. Again, there is added to the words constituting the assignment the statement that it was assigned “for foreclosure and collection,” the legal effect of which, ■ so far as permitting parol testimony in explanation thereof, under the rules of evidence, is similar in effect to the statement in the power of attorney alluded to in First Nat. Bank v. Miller, 48 Or. 587, 591 (87 Pac. 892), in which oral testimony was held admissible to explain the intent at the time and purpose of its execution. See also 8 Ency. Ev. 741.

6. Explanatory testimony was adduced at the trial, showing that, while the signing of the lien notices, and assignments indorsed thereon, by the respective parties were simultaneous, it was understood and agreed that the liens should not be delivered to the plaintiff, until after they were placed of record, and that they were not in fact delivered to him until recorded. This being the status of the transfer of the liens, the assignment became effective as of the date of the delivery, prior to which, the liens had attached and were accordingly assignable, and haying been regularly assigned, were subject to a foreclosure by plaintiff as assignee thereof: Falconio v. Larsen, 31 Or. 137 (48 Pac. 703: 37 L. R. A. 254). It is urged, however, that the liens, when signed and indorsed, were delivered to plaintiff’s attorney, and by him handed to the clerk for record; but it clearly appears that they were not delivered to him as the attorney for plaintiff solely. True, he was attorney for plaintiff in the sense of preparing his lien and taking it to the clerk’s office for record, but he was attorney also for the other lienholders for the same purpose. Until the liens were all properly filed, he remained the attorney of each with respect to the interest of each, and to that extent only; and not until after the filing of tile instrument does it appear that he was authorized to deliver the. assigned instruments to the plaintiff or to sue upon them, at which time it appears he, as agent for the assignors, was authorized to and did deliver the instruments to plaintiff, after which he, as his attorney, instituted this proceeding. Frequent instances occur where one person may properly become an attorney or agent of many persons at the same time, with respect to transactions between or by them, in which all may have an interest, without the authority under such agency extending to every transaction growing out of the work thus performed, and in which the extent of the authority exercised, including all dealings and understanding had between them and with each other, with reference thereto, may, by parol, be established at the trial in which any of the dealings had may come in question: McLeod v. Despain, 49 Or. 536 (92 Pac. 1088). The presumption of delivery, therefore, following the statement by the clerk, to the effect that the assignment was indorsed on the liens when received for record, is overcome by the undisputed testimony- subsequently given, showing the actual delivery to have been made after the record thereof.-

Finding no error in the record prejudicial to appellant, the decree of the court below should be affirmed.

Affirmed.