J.W. Copeland Yards v. Sheridan , 136 Or. 37 ( 1930 )

Rehearing denied April 14, 1931 ON PETITION FOR REHEARING (297 P. 837) The petition of S.R. Allen for a rehearing says the court erred in allowing the claims of the following lien holders when they did not both plead and prove that they had given the said S.R. Allen the five days' notices, as required by § 51-101, Oregon Code 1930, "that they were furnishing material to enter into the construction of the building, to wit: Copeland Yards, Ruth-Robertson Powder Co., Lane Hardware Co., N.T. Jorgensen, L.B. Sigwart, and Raymond Marlatt."

The work was done during the winter of 1927 and spring of 1928, and notices were given to F.L. Chambers, who at that time was the record owner of the property involved. It is not sufficient for Allen, who held some unrecorded contract pertaining to the real estate, to say that the required notices were not given to him. Notice of furnishing material for which a lien may be claimed is required "not later then five days after the date of the first delivery, to any contractor or agent" of such material or supplies, to be delivered or mailed "to the owner of (or) reputed owner of the property" on which said materials are to be used: Oregon Code 1930, § 51-101.

Chambers was served with notice to produce the five days' notices. Chambers appears by Mr. C.A. Hardy, his attorney, and admitted, as shown by the record, that claimants filed their claims of lien and that the five days' notices of furnishing materials and the seven days' notice of commencing the suit to foreclose the liens had been given to Chambers in accordance with the statute. Chambers' answer discloses that he afterwards conveyed the property to S.R. Allen. Therefore, he stepped "out of the picture." S.R. Allen, who afterwards took a deed of the real estate from Chambers and wife, was not entitled to have the notices given to him. The service of the several five days' notices upon Chambers, the owner of the property, was a compliance with the statute. The several five days' notices appear to be in the record as exhibits.

In view of the admission referred to above, which the trial court mentioned several times during the trial, we do not deem it necessary to detail the testimony in regard to giving the several notices.

The other questions referred to in the petition were fully disposed of in our former opinion.

Petition for rehearing denied.

BROWN, ROSSMAN and KELLY, JJ., concur.