Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-29
wills '. ZanelIo, ct al, MultnOmah
County.

Wis " LhucllOi u hls MulthVhhh
County.
A. n. wills, respondent, v. g. Zan-
clio and Fred ZanellO, partners doing
business as G.. Zanello & Son, and
the Portland Railway Light & Power
Company, a corporation, appellants.
Appeal from the circuit court OF
MultnOmah county. The Hon. VIII
Ham y. Gatens, Judge. Argued and
submitted on July 9th, 1911. A. T.,
Lewis. attorney for respondent. Al
bert Il. Tanner (Franklln T. Griffith
on the brieD attorneys for appel
lants. Bean, ]. Affirmed.
This IS a suit in equity to fore
close a mechanics lien on property
owned by the Portland Railway
Light & Power company in Sellwood,
now a part Of the City OF Portland,
being blocks 0 and P, and the build
ing, known as the Car Barns" stu
ated thereon.
In the construction Of the building,
the defendants, G, A. Zanello & Son
had a contract with the Portland
Railway, Light & Power Company to
do the brick work; A. ~ Wills, the
plaintiff having made an agreement
with them to furnish the brick there
for at s8 per thousand, and plaintiff
claims to have delivered 500, 300
bricks. amounting to $4,814.40, after
deductlng a credit for sand OF $12.
Bean, j. The complaint Is In the
usual form. The defendants, by
their answer, allege that no more
than 562,G14 bricks we're delivered
by plaintiff and used in the building,
amounting to S450O11 upon which
they were entitled to a credit Of Sl2,
and deny the allegation as to attor-
neys' fees.
The first question for determina-
tlon is raised by the demurrer to the
complaint and the testimony in the
case The defendants contend that
the lien was not filed within 30 days
after the material was furnished, as
provided by Sec. 1920, H. o. H., nor
within 30 days after the completion
OF the building, according to the time
stipulated by such section, together
with Sec. 1926, l.. o. L., yet contend
that II was filed prematurely being
filed before the completion of the
building.
From the evidence II appears that
the plaintiff commenced to deliver
the brick about August 70, 1909, fin
ishing his delivery thereof about
September 9th, 1909. The brick
work was completed about October
IS, 1903, and the lien was filed on
December g. 1909. before the building
was fully constructed. Constituting
together the two sections Of the stat
ute above alluded to- this court has
held that the lab0rer or material
man must nle his lien within 30 days
after the completion Of the building.
not necessarily within 30 days from
the date of ceasng to furnish labor
or material Ainslie " Kohn, 10 Or,
1853; Cotfey v. Smith, 80 Or, 53S The
defendants claim that this lien was
not filed within either OF these Sec
tions that Is that between the time
allowed for filing. within 30 days
from the time OF furnishing the ma
terial and before the commencement
OF 30 days after the completion of
the building, there was a hiatus,dur-
Ing which period such lien could not
be filed In Alnslle v. Kohn. supra,
II Is said that whether the claim was
filed within 80 days after the work
and material were furnished was un-
important, provided II was done with
In 80 days after the completion Of the