Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-19
SUPREME COURT DECISION.
CONTINUED from Page 81

ahead and perform the work under
the direction and superintendent Of
defendant, Mrs. Hassan, and, accord
ing to her wishes, purchase the nee
essary materials, and that she would
pay for them. On June IL, 1908,
plaintiff secured the work, under
these conditions, and labored and
furnished other labor and materials
to the amount claimed in the COM
plant. The work seems to have
progressed from time to time with a
continual series of changes Of plans
on the part Of Mrs. fHassam, until
August G, 1908, when plaintiff and
his workmen left, and plaintiff did
not return until a few days later,
when he found that Mrs. Hassan had
employed other workmen to complete
the building
We are Of the opinion that the de-
lay of plaintiff In completing the
building was caused primarily by
Mrs. Hassan's failure to provide and
have ready the roofing. which she
had undertaken to provide, for the
continuance of the work. and that,
while nearly every fact above stated
is disputed by her, the preponder-
ance of the testimony is in favor of
plaintiffs contention.
There remains but one serious con-
tention and that is, whether, under
the facts above stated, plaintiff is an
original contractor within the mean
ing Of the law, and, If So whether he
has sufficiently pleaded performance
Of his contract. Section 1920 l.. o. l..
makes It the duty of every original
contractor to file his lien within 60
days from the completion of his con-
tract and Of every mechanic, artisan,
etc, or other person, to so file within
30 days after the completion OF the
alteration or repair, or after he has
ceased to labor thereon from any
cause, or after he has ceased to fur
nish materials herefor. The lien in
question was filed 81 days after the
last work was done, and unless
plaintiff is an original contractor, his
claim was filed too late to be within
the statute. If plaintiff was engaged
merely to work for an indefinite time
under the direction of defendant, he
would be a mere laborer and his
rights to a lien would expire within
80 days from the last day that he
performed work
An original contractor, within the
meaning of the mechanics lien law,
is one who furnishes labor, or labor
and materials, upon a contract direct
with the owner: Boisot on Mech.
/ 4
not be express, but may be implied.
The complaint in this case states
substantially a contract to alter and
repair a dwelling house and to per-
form and furnish the labor to so al
ter and repair It, So far 1t states an
original contract with the owner to
do particular thing, but 1t fails to
state that the contract was complet-
ed or to give any reason why 1t was
not completed, or to state the date of
the completion of the building.
In Curtis V, Sestanoylch, 26 Or.
1O7 which involved lien for labor
and materials, this court held that It
was unnecessary to state in the no
tlce of lien the date of the compile
tion of the building If, in fact, 1t was
completed within 30 days, but in that
case the omission to state the date of
completion was in the notice and not
in the complaint Here both the no.
tice and the complaint are silent on
that subject. Section 1920 makes 1t
prerequisite of a valid, original
contractors lien that 1t shall he filed
within GO days after the completion
of the cotnract and complaint
which does not show this fact does
not state cause of suit
The suit will be dismissed without
prejudice to any action at law that
plaintiff may see llt to institute.