Valder v. Berg

When the plaintiff entered into his contract obligation, he undertook to construct two rooms, "each room to be at least 9x12 feet and more if possible." When he went about the performance of this undertaking, he cut his materials, set his studding and placed his rafters for rooms considerably smaller than the foregoing dimensions. When this came to Dunbar's attention, he directed the plaintiff to alter his work so as to make the rooms larger; but even now both rooms are less than 9x12 feet. For these alterations plaintiff seeks $160.27, and included this charge in his mechanic's lien notice without segregation from the other charges. Labor appears in the bulk sum of $565.60 and material in the bulk sum of $266.71. We have carefully read and considered all the testimony; we find nothing in it which would excuse the plaintiff from his undertaking. Very likely he undertook this work for too small a consideration; that, however, cannot affect us. In the trial, he sought to prove that to build the rooms 9x12 in size, it would be necessary to do some work that was not contemplated when the contract was signed. This fails to excuse him from the performance of his undertaking: Paige on Contracts, § 1460. The parol evidence rule renders inadmissible this testimony: Section 713, Or. L.; Wigmore on Evidence, § 2425. A careful reading of the testimony discloses that in this respect the plaintiff did nothing that was not contemplated when he entered into the contract. It follows from the foregoing that the plaintiff was not entitled to make the charge of $160.27. This was an item of considerable proportions as compared with the total of $823.81.

Beginning with Dalles L. M. Co. v. Wasco W.M. Co.,3 Or. 527, we have consistently adhered to the rule that when the lien notice includes an item for which no lien is obtainable, and the nonlienable item is not segregated in the lien notice from the lienable items, the improper inclusion defeats recovery. The Oregon cases are collected in Christmas v. Salway, 103 Or. 666,672 (205 P. 541); a further collection, together with citations at large, is found in 40 C.J. 246. See, also, Jones on Liens (3 ed.), § 1419.

It follows from the foregoing that the decision of the lower court must be affirmed. AFFIRMED.

RAND, C.J., concurs in the result.

McBRIDE and COSHOW, JJ., concur.