Morrison-Knudsen Co. v. Porter-Peringer, Inc. , 262 Or. 216 ( 1972 )

PER CURIAM.

This is a suit to foreclose a mechanic’s lien. Plaintiff appeals from a decree dismissing plaintiff’s complaint.

Plaintiff’s claim arises out of work performed and labor furnished in connection with the drilling of a well for defendant upon the basis of a written contract. Defendant contests the foreclosure on the ground that plaintiff failed to prove performance of the contract, relying upon Wiggins v. Hendrickson et ux, 191 Or 285, 229 P2d 652 (1951), which holds that to foreclose a lien the lien claimant must prove performance of the contract. Defendant introduced evidence to show that the diameter of the well hole was smaller than that specified in the contract and therefore was inadequate to supply the amount of water needed by defendant. There was also evidence that the well hole was not straight and perpendicular.

The trial court found that defendant’s witnesses were more credible than plaintiff’s witnesses and concluded that the contract was not fully performed and that plaintiff was not entitled to the foreclosure of its lien. We agree with the trial court’s appraisal of the testimony and therefore we affirm.

Decree affirmed.