Heisler v. Hamilton Mammoth Mines Co. , 110 Or. 403 ( 1924 )

COSHOW, J.

The record is unnecessarily voluminous. A great deal of immaterial evidence was introduced over the objection of the plaintiff and after the court had sustained the objections. The contentions of the appellant will be considered in their order as given in the statement. The plaintiff conceded at the trial that the item of $75 for services of Hazelwood, who was employed by the plaintiff, and the item of $7.99, freight, paid by the plaintiff, were nonlienable, but contends that these items are separately stated and therefore do not vitiate the lien. Allen v. Elwert, 29 Or. 428, 445 (44 Pac. 824, 48 Pac. 54), is authority for respondent’s position. This case was reviewed and the subject matter discussed in the later case of Christman v. Salway, 103 Or. 666 (205 Pac. 541). In discussing the principle involved in this contention, the appellant overlooked the fact that the plaintiff and his assignor contracted directly with the owners of the property. The same strictness is not applicable in the foreclosure of a lien for labor where the labor was performed at the instance and request o.f the owner of the property. The nonlienable items having been separately stated in the notice of lien and in the complaint, no harm was done thereby, and the plaintiff was entitled to the benefit of his lienable items.

The work done upon the road was a lienable item: Section 10219, Or. L.; Williams v. Toledo Coal Co., 25 Or. 426 (36 Pac. 159, 42 Am. St. Rep. 799), was decided March 13, 1894. The present statute, Section 10219, was enacted in 1907.

The evidence does not support the contention that the services were rendered either contrary to or in defiance of positive instructions. The uncontradicted evidence discloses that the mine is located above Sumpter at a high elevation, and that it would be necessary to take in supplies before the heavy snowfalls if workmen were to work through the winter. For that reason, the plaintiff and his assignor exacted a contract assuring them of continuous work so that they would be justified in laying in supplies before the snowfall. The plaintiff was employed for one year and his assignor for six months from about October 1st. The plaintiff’s assignor was also assured that if his work was satisfactory, he would have employment for a longer period than six months. They were employed by the president and general manager of the owner of the property. There is no evidence that either of them was ever discharged.

The notice posted over the name of the appellant by its attorney, Leo B. Connolly, was not a discharge of the plaintiff and his assignor. The mine was not being worked by a lessee, but by the owner. There is no statute providing for such a notice and it was ineffectual for that purpose. The evidence also shows that the president of the company, the said \¥. H. ¥7. Hamilton, insisted upon the men continuing their work. There was no evidence introduced tending to show that the said Hamilton was not still the president and general manager of the company. In any event, after having been employed as they were, the plaintiff and his assignor were protected by their contract, and the company itself could not discharge them without cause so as to defeat their right to recover in this suit.

Fraud was not pleaded. Before a litigant can rely upon fraud, it must be pleaded. This principle is so elemental and well settled, it is not deemed helpful to cite authorities.

The decree is affirmed. Affirmed.

Bean, Brown and Rand, JJ., concur.