Litherland v. Cohn Real Estate Co.

Mr. Justice Eakin

delivered the opinion of the court.

1. To establish a mechanic’s lien upon a lot or building, the claimant must connect himself with the owner, either by showing that the claimant contracted with the owner or his agent (Section 5640, B. & C. Comp.), or that he performed the work for one who was erecting the building with the owner’s consent (Section 5643). Section 5640, B. & C. Comp., provides that every mechanic, contractor, and laborer, performing labor in the construction of a building, shall have a lien thereon for the work done, at the instance of the owner of the building or his agent; and every contractor, architect, or builder, having charge of the construction of the building, shall be held to be the agent of the owner, for *74 the purposes of this act. Plaintiff contends that the architect was the agent of the owner in this case in making the contract with plaintiff, but we find in the record no authority for the architect to make contracts for the erection of a building; but the architect’s contract with defendant related only to the plans and his compensation and matters relating thereto, in case defendant proceeded with its construction. It is held in Rankin v. Malarkey, 28 Or. 598 ( 32 Pac. 620 : 34 Pac. 816 ), that the claimant must connect himself with the owner of the property by contract, by' showing that the claimant contracted .with the owner, or his agent. So far as that case requires that fact to be stated in the notice of' lien, it is overruled in Osborn v. Logus, 28 Or. 302 ( 37 Pac. 456 : 38 Pac. 190 : 42 Pac. 997 ); but otherwise it is followed. In that case Judge Wolverton says: “Whether the person for whom the labor is done or to whom the materials are furnished was an agent under the statute, or had authority to bind the owner, and entitle the laborer or material man to a lien, is a matter of pleading and proof at the trial.” This was again affirmed in Smith v. Wilcox, 44 Or. 323 ( 74 Pac. 708 : 75 Pac. 710 ), in which Judge Wolverton says: “To facilitate' the acquirement of the lien, however, the statute has made the original contractor an agent of the owner, while in charge of the construction. Necessarily he is given the primary control thereof. He may authorize some other person to superintend or take the management of the work, or the parties may agree that an architect, or a special builder shall be in charge; but unless there is some such provision to shift the supervision he is necessarily intrusted with it. Being in entire charge therefore of the construction, he may subject the building to a lien by the employment of any person to perform labor or furnish material therefor. * * The principle upon which mechanics’ liens are upheld, where they are given to persons other than those contracting directly *75 with, the owner, is that the contractor becomes, for the purpose of the statute, an agent of the owner, and thus do all such persons indirectly contract with the' owner.”

Decided June 8, 1909.

The plaintiff does not' claim as a laborer or subcontractor, but as an original contractor with the owner, and to entitle him to a lien he must show a contract directly with the owner, made by an agent having authority to bind the owner; but the defendant did not at any time decide to erect the building or give any one authority to contract with relation thereto. The architect was not authorized to make the conract for the construcion of the building and could make none that would bind the owner, and therefore the plaintiff has no contract with the defendant or lien upon its property.

The decree of the court below will be reversd, and suit dismissed. Reversed: Suit Dismissed.

On Motion to Retax Costs.

[ 102 Pac. 303 .]

Mr. Justice Eakin

delivered the opinion of the court.

2. Three items of cost were objected to by plaintiff: (1) “Printing abstract of record, $22.00,” for the reason that it contains 10 pages of unnecessary matter; (2) “cost of transcript of testimony, $87.80,” for the reason that the actual sum paid therefor was $28.50; (3) “printing brief, $83.00,” for the reason that the testimony is printed in full, containing 40 pages more than was necessary. The clerk sustained these objections, and the defendant moves the court to retax the costs. Rule 9 of this court ( 50 Or. 574 : 91 Pac. ix ) requires that the abstract shall contain so much of the complaint, answer, motions, and demurrers, and rulings thereon, if involved in the appeal, and the judgment or decree, as may be necessary to explain the questions raised on the appeal. In this case the abstract contains the pleadings in full, with the *76 verifications, decree, and notice and undertaking on appeal.

But two issues were involved on the appeal: The ruling on demurrer to defendant’s cross-complaint setting up a claim for damages, which seems to have been after-wards abandoned; and the authority of Schacht, as architect, to bind the defendant by a builder’s contract. The portion of the complaint relating to the lien and the statement of relief sought and verification thereto, the demurrer to the complaint and ruling thereon, had no bearing upon these issues, and were unnecessarily included in the abstract. Also, the decree, notice, and undertaking on appeal were improperly included, making ten pages of unnecessary printing.

8. Defendant admits that the transcript of evidence cost only $28.50, but claims the additional $9.45 was paid for a carbon copy thereof. This is not a proper disbursement. Rule 8 ( 50 Or. 573 : 91 Pac. ix ) provides that “in equity cases the brief shall contain such portion of the evidence as may be deemed material * * in either narrative form or by question and answer.” This allows some latitude and discretion for the attorney as to what is necessary and the form in which it shall be printed. The testimony of Emil Schacht and of the plaintiff’s direct and cross-examination, and two or three pages of Schacht’s testimony on rebuttal, were material, although this might have been abbreviated to some extent. That, however, was in the discretion of the attorney; but there are about 23 pages of the evidence, the printing of which was unnecessary and improperly charged as disbursements.

We will disallow $23 of the charge for printing the brief, deducting from the cost bill $42.45 in all, and retaxing the cost bill at $138.10.

Reversed: Dismissed: Costs Retaxed.