Boyer v. DAWSON ET UX , 207 Or. 211 ( 1956 )

PER CURIAM.

This is an appeal by defendants from a decree foreclosing a mechanic’s lien on their property in Tillamook county, Oregon.

Defendant M. L. Dawson entered into a contract with plaintiff, Charles A. Boyer, whereby Boyer was to build a barn for defendants for the sum of $7,200, less the value of certain lumber which defendants agreed to furnish for the construction of the barn. In his complaint, plaintiff alleges that the value of such lumber was $1,200.

The lien notice which plaintiff filed was for the full $7,200 with no allowance for the $1,200 credit. The crucial question is, does this overstatement in the lien of the amount due plaintiff void the lien? The answer is yes.

The rule laid down by the Oregon ease is stated in Davis v. Bertschinger, 116 Or 127, 133, 241 P 53, as follows:

“One of the defenses urged is that the lien is invalid because it does not contain ‘ a true statement of plaintiffs’ demand after deducting all just credits and offsets’ as required by Section 10195, Or. L. This provision has been considered by this court in numerous cases, all of which hold that where a lien claimant, in filing his claim of lien, puts on record a statement of his demand which he knows, or by the exercise of reasonable diligence would know, to be untrue, his right to a lien is lost. But, if he honestly makes a misstatement as to any item of his account in good faith and without negligence or carelessness upon his part and no prejudice results to the owner of the property affected thereby, the courts will not, for that reason alone, hold the lien to be void: * * V’

John W. Hathaway and H. T. Botts, Tillamook, for appellants.

See West v. Wilson et al., 136 Or 262, 297 P 847 and Drake Lumber Co. v. Paget Mortgage Co., 203 Or 66, 274 P2d 804.

In the instant case there was no honest misstatement concerning the account. Plaintiff knew when he filed the lien that defendant M. L. Dawson was entitled to a credit for the $1,200 represented by the lumber furnished. There is no legal excuse, in our opinion, for this misstatement.

Reversed.