E.J. Struntz Planing Mill Co. v. Paget , 123 Or. 651 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc.

This is a suit instituted to foreclose a mechanic's lien. The complaint was filed December 30, 1926, summons was served thereafter, and on March 9, 1927, a default order was entered against all the defendants, excepting defendant Wm. Lessing. March 17, 1927, an order of default was duly entered against the defendant Wm. Lessing. On April 18, 1927, defendant Lowell C. Paget filed a motion accompanied by an affidavit asking that he be substituted for defendant Leona Lessing because he had purchased from her the real property involved in the suit after the commencement thereof. After counter-affidavits made by an officer of plaintiff and its attorney were filed, argument was heard, the motion of defendant Paget was allowed and he was substituted for defendant Leona Lessing. The case was tried, a decree rendered and entered denying plaintiff relief, dismissing its complaint and awarding defendant Paget judgment for his costs and disbursements. With the filing of the answer defendant Paget tendered into court the sum of $580 and disbursements accrued to date. The tender being in the following language:

"* * this defendant comes now into Court and tenders to plaintiff the sum of five hundred ninety-two dollars ($592) with accrued costs to date in full settlement of said demand."

Plaintiff's demand was for the sum of $845.53 with interest from the second day of September, 1926, $1.45 for recording its notice of lien and $200 attorney's fees. Plaintiff appeals assigning nine errors which may be succinctly stated as follows: (a) the ruling of the court permitting Paget to be substituted for defendant Leona Lessing after the order of default had been entered; also opening the default on the showing made by defendant Paget; (b) the order overruling plaintiff's demurrer to separate answer of defendant Paget; (c) order overruling plaintiff's objections to defendant Paget appearing or defending in the case; (d) in failing to hold that the answer of the defendant Paget was inconsistent in the admissions and denials with the affirmative answer and in permitting defendant Paget to withdraw the sum of $592 tendered to it. REVERSED. Plaintiff was not prejudiced by the order of the court permitting defendant Paget to be substituted for Leona Lessing. Paget, having succeeded to the title to the property after the suit was instituted, was entitled to have the suit conducted to termination in the name of his grantor, defendant Leona Lessing. It was neither necessary nor proper for him to have been substituted: Smith et al. v. Cram, 113 Or. 313, 320 (230 P. 812); Fildew v. Milner, 57 Or. 16, 21 (109 P. 1092). Paget gained no advantage by being substituted. Plaintiff was not put to any disadvantage. The order of substitution was not reversible error.

Opening a default and permitting a defendant to answer is largely discretionary with the trial court. The court in this instance must have been satisfied that plaintiff and the defendant Paget had been negotiating a settlement when the default was entered, and for that reason granted the motion to set aside the default and permit defendant Paget to answer. The fact that he was substituted for defendant Leona Lessing is immaterial in our judgment. Plaintiff was in no way prejudiced because defendant Paget had no advantage over defendant Leona Lessing. The former accepted the title from the latter subject to the lien of plaintiff, if it had a lien. The court did not abuse his discretion in setting aside the default and permitting Paget to answer.

The separate answer of defendant Paget states a good defense. Paget would have been entitled to have appeared and made his defense, although he had not been substituted for Leona Lessing. It was not error on the part of the court to overrule plaintiff's objection to defendant Paget appearing and defending.

It is not necessary to discuss all of the issues discussed in the briefs presented by counsel for the parties. We believe that plaintiff failed to give the notice required to be given by materialmen under Section 10191, Or. L., to the owner of the property. The notice given by plaintiff is as follows:

"C.B. E.C. Sewell, "362-E. 30th St. No.

"This is to advise you that the undersigned has commenced to deliver materials and supplies upon the order of Wm. Lessing for use on, and to be used in the construction, alteration and repair of the structure now occupying or being erected upon certain premises in Multnomah County, State of Oregon; particularly described as follows: Lot 40 Sec. 1 Tis-Rie Block ____ Add ____ of which the undersigned is informed you are the owner or reputed owner, and that a lien may be claimed for all material and supplies furnished by the undersigned for use thereon. Mailed in person at Portland, Oregon, on this 23rd day of Sept., 1926, by L. Myers.

"Very truly yours, "HAWTHORNE BRACKET CO. "By L. MYERS.

"This notice is mailed or delivered to you in compliance with the Oregon Law."

The above notice is stamped "Plaintiff's Exhibit `B,' Case No. M.-581." This notice is positively identified by Ernest J. Struntz, who testified in behalf of plaintiff that he was secretary and manager of plaintiff, was such officer during the time the material was sold to defendant, had been ever since and that he had personal knowledge that the paper marked Plaintiff's Exhibit "B" was a duplicate copy of what he sent the owner. It will be observed that this notice was not signed by the plaintiff and is addressed to C.B. and E.C. Sewell. The complaint specifically and positively alleges that during all the time that said material was being furnished to defendants, Leona Lessing was the owner or reputed owner of the property therein described. The description of the property in the notice is not the same description contained in the complaint and in the notice of lien. The said witness testified that it was the identical land as that described in the lien notice and complaint, and the reason for the difference in the descriptions was that at the time the notice was sent the tract had not been platted. A copy of the plat, however, appears in the evidence as Plaintiff's Exhibit "C." To this copy is attached the dedication and proof of the various officers whose duty it is to approve town plats from which it appears that the survey was made in September, 1926, the plat approved September 14, 1926, by the county assessor, on September 18, 1926, by the city engineer, September 20, 1926, by the board of county commissioners and recorded September 20, 1926, by the county clerk. Notice relied upon by plaintiff and introduced as its evidence as compliance with said Section 10191 is dated September 23, 1926. That notice was, therefore, given three days after the town plat was filed, approved and recorded. The notice does not comply with the statute in this that it was not sent by the plaintiff or anyone in behalf of plaintiff, nor is the property sufficiently described. The notice was essential to the validity of plaintiff's lien. Having failed to prove that notice was given to the then owner, alleged in the complaint to have been Leona Lessing, and having failed to prove that any notice was given by the plaintiff or by anyone in its behalf, plaintiff has failed to make a case regardless of the description in the notice. There is no inconsistency between the admissions and denials on the one hand in the answer and the affirmative matter on the other therein.

The court improperly permitted the defendant Paget to withdraw the sum tendered into court by him.

"When in any action or suit for the recovery of money or damages only, the defendant shall allege in his answer that before the commencement thereof he tendered to the plaintiff a certain amount of money in full payment or satisfaction of the cause of action or suit, and now brings the same into court and deposits it with the clerk for the plaintiff, if such allegation of tender be found true, and the plaintiff do not recover a greater sum than the amount so tendered, he shall not recover costs off the defendant, but the defendant shall recover them off him." Or. L., § 574.

Defendant having tendered the sum of $592, the sum admitted to be due and accruing costs, judgment should have been entered against him for that amount: Simpson v. Carson, 11 Or. 361,363, 364 (8 P. 325); Oregon Ry. Nav. Co. v. Oregon RealEstate Co., 10 Or. 444; 26 R.C.L. 650, § 32.

The decree is reversed, and one will be entered here denying a lien to plaintiff, but allowing judgment against defendant Paget for the amount of the tender with disbursements to date of tender. Defendant Paget will recover costs and disbursements from plaintiff accruing subsequent to the tender. Appellant will recover costs in this court. REVERSED.