Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-25

written evidence Of their validity,
rest upon a different principle. The
mortgage or mechanics lien claim is
Of record and, therefore, notice to the
administrator Of the nature and ex-
tent of II, so that he can reasonably
prepare to meet 1t or apply to the
court for permission to redeem it.
The laborer's lien clam very often is
unliquidated and never necessarily
notice to the administrator OF its ex-
istence or amount The policy of the
law imperatively requires that such
claims be presented. By thus present.
ing them the claimant valves no
right whatever and may thereafter
proceed to enforce his lien. Casey v.
Ault. Wash. 167; 29 Pac. 104S, is a
case n point and we adopt the rea-
soning Of that case as applicable to
this.
1t follows, therefore, that in at
tempting to sell the property without
first presenting his claim, Charlton
committed wrongful act and his lien
was lost when he parted with possess
sion OF the property. If this should
be treated as lien by contract there
could be no sale of the property with
out a foreclosure by suit in equity:
l.. o. L. Sec. 422 Treating it as a
laborer's lien under Sec 7452 l.. O..
l.. neither the answer nor the proofs
come up to the standard required by
this section. The law provides that
the laborer shall have lien for "his
just and reasonable charges" There
is nothing in defendants answer nor
in his evidence alleging or attempt
! ing to prove the reasonableness of
the sum claimed by Denver Charlton.
He relies wholly upon alleged con-
tract. 1t is like the case of one who
sues upon an express contract and
seeks to recover upon a quantum
meruit
1t is claimed that the court erred in
not submitting to the jury the ques-
tion Of the ownership of the wood but
this was conceded in the answer.
The defendant attempted to justify by
alleging the wood to be the property
of Dye, alleging special property in
or lien upon it by virtue of his con-
tract with Dye and services rendered
Hereunder. The ownership Of the
property being conceded to be in Dye,
and the finding of the county court
as to Dyes death being conclusive in
this case, and the appointment Of the
plaintiff as administrator being
shown by the proper record evidence,
1t was the duty of the court to inter-
pret these documents and ascertain
their legal effect, which 1t did.
1t is claimed that the court erred
In holding that the fact of agency
could not be proved by the testimony
of the agent, but we do not so un-
derstand the ruling. Counsel at
tempted to prove what H. X, Charlton
had said to witness in relation to
the scope of his authority to act for
Denver Charlton, when the court
said' you can't prove an agency by
the agent, can you Mr.. Oliver?" The
remark, taken in connection with
what was before the court was evil
IDENTIFY merely an intlmation that Il
was not permissible to prove the un-
sworn declarations of an agent to es-
tablish the fact Of his agency. The
testimony apparently was allowed to
stand, though 1t was clearly inadmis-
sible. We have treated tbs case as
though the agency of H. X. Charlton
was clearly proved, as we think II
was; but, giving this fact 1t greatest
effect, 1t could make no difference In
this case.
1t is urged that Brown stood by and
permitted defendant to purchase the
wood and thereby he is estopped
from now claiming It, but no such es-
toppel is pleaded nor proved. Plain
tilt did no act calculated to mislead
defendant, nor Is there any testimony
that he even knew that the sale was
to be made.
1t is c0ntended that the witness
Seaman was not qualified to testify as
to the market value of the wood. He
testified that he was the station agent
at Kamela; that he had not dealt in
wood HIMSELF that he knew its mar.
ket value; that he heard 1t overday
that he heard people making bar
gains on number of occasions
though he had made none himself
We think this was sufficient tc
qualify him; besides, the jury flxet
the price Of the wood at $400 Del
cord, the lowest price quoted by de.
fendant's witnesses
1t Is also claimed that plaintiff can.
not recover in this action by reason
of having failed to allege and prove
a demand upon defendant for tn,
property The act of Charlton IL
selling the wood, being wrongful
cat, defendants possession wal
wrongful and no demand was neces
sary Surles v. Sweeney, II Or. 21
Moreover, the defendant in his an
sWer claims the title to the property
and where such is the condition o
the pleadings no prof Of demand Il
necessary Smith & Co. v. Mclean
"a Iowa 1922; Homan v. Taboo, / Neb
2O4 Shoemaker, Miller & Co. v
Simpson, 16 Kan. 43.
1t Is contended that the judgment o
the court in the contempt proceedlnj
, Is a bar to this action, but It canno
have this effect 1t was brought II
the name of the state and was uuas
criminal, and the only valid judgmen
that could have been rendered wa
that Charlton was not guilty Of tn
contempt charged. The court coul
, not in such a proceeding, adjudlcat
/ any property right 1t was not be
= tween the administrator and Charl
E ton, but between the state and Charl
ton, and cannot bind any party /
this proceeding
I Finding no error, the Judgment O
I the circuit court is affirmed.
r Gallagher v. Kelliher, ct al, Dough-
= County.
n NJ Gala 1ho, ,a,.....,-4 ~,