Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-01

DAILY CAPITAL ]
floor, about the first of August, he
went over the sewer with Currie from
one end to the other and that II was
connected and was being used Mr..
Huycke, a clerk in the building "a
store) testifies that the sinks and toi-
lets were used constantly after about
the 18th Of August. Mr. Gulker, who
aided in laying the floor Of the base
ment in August, says that the sewer
was being used at that time. The
only evidence that it was not con-
nected was by Currie, who is corrob-
GRATED by Henry Nickert, who helped
in placing the tile necessary to con-
meet it, as he alleges, on October Is,
1907. But Nickert did not know
whether Currle had been there be-
fore or not, or what the condition Of
the sewer was prior to that time.
We think the conclusion is irrest-
ible that whatever was done to the
sewer, after August IS, 1907, was not
construction but repair work. The
contract of construction was made in
August, 1906, and required the COM
pletion of the building on or before
December 1, 1906, to the satisfaction
and Under the direction of Mr.. w. D..
Plue. 1t was completed about the
2Sth day of February, 1907, except at
that time, because of the wet condi-
tion OF the ground, the contractors
| time to cement the floor of the base
ment was extended until it dried out
That was completed about the 18th of
August, 1907. Any other delay in the
work, if any, was unreasonable, and
the item alleged as constituting the
completion Of the work done 10 and
a half months after the time limited
by the contract was so unreasonable
and long delayed that the contractor
and those claiming under him are
not entitled to any advantage there
by, even If 1t was construction work.
The owner of the building had a
right to know when the building was
completed and to act thereon for his
own protection, In this case the
only witness, except Nickert, by
whom plaintiff has attempted to es-
tablish the date of the completion of
the work, is the contractor, to whom
was paid the contract price for the
contraction of the building, at a time
when he led the owner to believe the
building was completed, reserving a
small amount of the contract price
pending repairs of defects in con-
struction. From this money the con
tractor should have paid those who
furnished him material, and he now
resorts to this trifling circumstance
to compel Ellis to pay them for him,
"a circumstance which we cannot
overlook in determining the weight
to be given to the evidence.
This question was considered in
Coffey ". Smith, So Or. 544, in which
case Mr.. Commissioner Slater says ::
After the substantial completion of
his contract on or about August 13,
plaintiff should not be permitted, by
unreasonable delay in the perform
ance of trifling matters, which could
and should have been done at an ear
lier time, postpone the date from
which the time allowed by the stat
ute begins to run and the
burden Is on the lien claimant to
show affirmatively that there was no
unnecessary or unreasonable delay"
In that case the situation was very
similar to the present once. Even
If the sewer was not connected until
October Is, 1907, yet the circum-
stances were such that the omission
could not operate to revive the right
to file the lien. But we find from
the preponderance of the evidence
that it was connected and the build
ing was completed prior to August
10, 1907 These lien claimants are
charged with notice of the terms of
the contract and there is nothing in
the evidence to indicate that they
were misled in any way. On the con-
trary if they were noticing the
progress of the building, they must
have known that it was completed in
February, except the basement floor
which was completed before August
10.
The decree of the lower court is
reversed and one will be entered here
dismissing the. suit, with costs to de-
fendant Ellis both in this and the