Potter v. Davidson

Petition for rehearing denied May 9, 1933 ON PETITION FOR REHEARING (21 P.2d 785) Plaintiff accompanies his motion for rehearing with a brief indicating the following points: (1) That the defense of infancy is personal to the minor; (2) that plaintiff performed the work in question at the instance of Paul M. Shearer, as owner; (3) that by reason of plaintiff's disaffirmance the contract under which plaintiff did said work became void ab initio, and, therefore, the rights of the parties are to be determined as if said contract had never been made; and (4) that the foreclosure of a mechanic's lien is a proceeding in rem.

As to point one, the fact of plaintiff's infancy was presented in this case by plaintiff. Plaintiff's case depends upon it. A majority of the department of the court, in which this case was heard, are of the opinion that when plaintiff presented the fact of his infancy and asked affirmative relief because of it, he thereupon placed a duty upon the court to give full effect to that status, and not to consider it in so far, merely, as it is helpful to plaintiff's claim.

As to point two, we treated that matter in the original opinion and now adhere to the holding that plaintiff performed the work in question at his own instance, and that of his father, and not at the instance of Paul M. Shearer.

As to point three, conceding that ab initio plaintiff's disaffirmance nullified his contract to purchase, we are then to determine, as in the absence of an express contract, what contract is to be implied. In this, a majority of the department, hearing this case, think that where a minor, who has not been emancipated and whose father is living, performs work for another without any express contract, the law implies a contract for the benefit of the father.

The cases to which our attention has been called, indicating that upon disaffirmance of an express contract the minor is entitled to a recovery, either take no cognizance of the question of whether the minor had been emancipated or not, or disclose that the minor had been emancipated, or that his parent or guardian was not available.

As to point four, the fact that the foreclosure of a mechanic's lien is in the nature of a proceeding in rem does not deprive the father of his right to the services of his unemancipated minor son, nor does it relieve the lien claimant from the necessity of correctly stating in his claim "the name of the person by whom he was employed or to whom he furnished the materials".

To the authorities cited in the original opinion, treating a mechanic's lien as security for only a valid contractual claim, the writer takes this opportunity, thus belatedly, to add the case of Christman v. Salway et al., wherein Mr. Justice (now Chief Justice) RAND says:

"Under our statute, to create the right to a lien, there must be a contract for the doing of that for which the statute gives the lien". Christman v. Salway, et al., 103 Or. 666, 680 (205 P. 541).

The petition for rehearing is denied.

ROSSMAN and BELT, JJ., concur.

RAND, C.J., did not participate in this opinion.