In Banc. This is a suit to enforce a mechanics' lien for materials furnished and labor performed in the construction, alteration, and repair of the La Grande hotel, at La Grande, Oregon. The defendants, W.C. Becktell and his wife Alice E. Becktell, the owners of the hotel property, made no appearance and are in default. The defendant, Spokane Savings and Loan Society, a corporation, is the owner and holder of a mortgage originally amounting to $140,000 covering the property upon which plaintiff asserts a lien. Such mortgage was duly recorded in Union county on May 20, 1927. Howard H. Hansen, supervisor of banking of the state of Washington, who is liquidating the Spokane Savings Bank, was substituted for the Spokane Savings and Loan Society.
The plaintiff, a contractor and plumber in the city of La Grande, alleges in his complaint that on or prior to the 18th day of May, 1927, he entered into a contract with the owners of the La Grande hotel whereby he agreed to and did furnish materials and perform labor in the construction, alteration, and repair of the hotel building as follows:
1 Ideal water tube boiler, S2906-7B 1 Dunham return trap, 9A 1 Dunham air eliminator and all pipe and fittings in connection therewith 1 No. 5 "Iron Fireman" automatic coal burner, Type K, Form U, Serial 1692 1 galvanized iron smokestack.
Plaintiff alleges that the above materials were furnished and the labor of installing them was performed between and including the 21st day of October, 1927, *Page 113 and the 27th day of October, 1928, and that they are of the agreed value of $3,148.05. Plaintiff avers that no part of this amount has been paid except the sum of $750.
In the notice of lien, which by reference is made a part of the complaint, the plaintiff sets forth the following statement of his demand:
*Page 114To Property purchased and/or labor performed Oct. 21, 1927 $1500.00 (Iron Fireman). Interest on same to Nov. 21, 1927 10.00 Property purchased and/or labor performed Nov. 21, 1927 11.12 (Repair radiator) ________ 1521.12 Less payment on Nov. 21, 1927 750.00 ________ Balance due Nov. 21, 1927 771.12 Interest on same to Aug. 15, 1928 45.23 Property purchased and/or labor performed 12/28/27 7.50 (Check valve in Interest on same to Aug. 15, 1928 .38 barber shop) Property purchased and/or labor performed 1/20/28 69.90 Interest on same to Aug. 15, 1928 3.63 Property purchased and/or labor performed 4/2/28 52.70 (Lavatory in Interest on same to Aug. 15, 1928 1.55 beauty shop) Property purchased and/or labor performed 4/30/28 861.50 (Ideal water tube Interest on same to Aug. 15, 1928 20.10 boiler, return trap and eliminator) Property purchased and/or labor performed 5/26/28 78.00 (Steam return Interest on same to Aug. 15, 1928 1.37 trap) Property purchased and/or labor performed 11/5/27 265.40 (Concrete work in Interest on same to Aug. 15, 1928 15.82 widening street) ________ Total Due Aug. 15, 1928 2174.22 Property furnished and/or labor performed (transferred from hotel by direction of W.C. Bechtel) 44.50 (Repair to drinking Oct. 27, 1928, Furnishing and installing fountain occasioned galvanized iron smokestack 81.25 by Interest on last three items 98.08 celebration on ________ opening night Total Due $2398.05 of hotel.)
It is observed that in the complaint proper only five items are listed whereas in the notice of lien there are ten. It is not possible from the general designation, "Property purchased and/or labor performed", as stated in the lien notice, to know the nature or character of the work performed or materials furnished as claimed under each item. For the purpose of clarity, we have set forth in parentheses opposite each item the kind of work or materials involved. The lien notice was filed and recorded on November 26, 1928.
The answer of the Spokane Savings and Loan Society to the complaint was in the nature of a general denial.
The trial court found in favor of the plaintiff and allowed all the items claimed, except the charge of interest and that pertaining to "widening of street" amounting to $265.40. Credit was allowed for a payment of $300 made after the filing of the lien notice. Hence a decree of foreclosure of the lien was entered to satisfy a judgment against the Becktells for $1,656.47, together with attorney fees in the sum of $250. The defendant state supervisor of banking appeals.
It will thus be seen that the contest is between the state supervisor of banking who relies on the mortgage lien and the plaintiff who is asserting a mechanics' lien.
The theory of the plaintiff is that the work was performed and the materials furnished under and pursuant to a "continuing" contract entered into with the owner of the hotel building in May, 1927. In other words, plaintiff asserts that all the items set forth in his notice of lien are parts of one continuous connected transaction: Van Wart v. Rees, 112 Me. 404 (92 A. 328); Darlington Lumber Co. v. Smith Building Co.,134 Mo. App. 316 (114 S.W. 77); Hot Springs Plumbing Heating Co.v. Wallace, 38 N.M. 3 *Page 115 (27 P.2d 984). If this be true, it is not necessary, as stated in 40 C.J. 200, "that all the work or materials should be ordered at one time, that the amount of work or quantity of materials should be determined at the time of the first order, or that the prices should then be agreed upon, or the time of payment fixed; * * *." The rule is thus stated in Phillips on Mechanics' Liens (3d Ed.), § 229:
"Where work, distinct in its nature, is performed at different times, the law supposes it to have been performed under distinct engagements, as where the work at one time is for building and at another time for repairing. So where two distinct contracts are in fact made, as for different parts of the work, the work done under each contract must be considered as entire of itself. But when work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account must be treated as a unit, or as being but a single contract."
Were these items of work performed and the materials furnished a part of one entire account? If so, the claim of lien may be filed within the statutory period dating from the time the last item of work was performed or material furnished. In the instant case, the last item, dated October 27, 1928, was for furnishing and installing a galvanized iron smokestack.
It is the contention of the appellant that the work was performed and the material furnished pursuant to separate and distinct contracts, and that they cannot be tacked together in order to extend the time for filing of the lien: Hobkirk v.Portland National Baseball *Page 116 Club, 44 Or. 605 (76 P. 776); Paine and Nixon Co. v.Dahlvick, 136 Minn. 57 (161 N.W. 257); Sonner v. Mollohan,112 Kans. 148 (210 P. 649). Hence the validity of the lien depends upon whether the smokestack was furnished and installed as a part of one entire account or whether it was done pursuant to a separate and independent contract.
What is the evidence relative to this issue of fact? The plaintiff was not successful in bidding for the plumbing and heating work under the general contract. It was then, as testified by the plaintiff, that Becktell, in the "latter part of February or some time in April, 1927", said to him: "`Well, Fred, I wanted you to do this plumbing and heating contract, but', he says, `the other fellows are so much low, that I can't afford to pay the difference; so', he says, `I am just compelled to give it to them, but', he says, `I am going to have you do all of the extra work that comes up, as the building is being constructed, to complete the building, and make is satisfactory in every way, shape and form. And of course with that extra work, that is not any particular item, — those things that come up that is not in the plans and specifications, — changes that come up on theconstruction of the building, — for the maintenance of the building, — for the operation of the building.'" [Italics ours.] There is much uncertainty about the time of the making of this alleged offer by Becktell, which offer the plaintiff says that he accepted and in accordance with which he proceeded to do the work and furnish the materials. In the complaint it was originally alleged that the contract was made "on or about the 21st of October, 1927" — being subsequent to the recording of the mortgage — but on trial an amendment by interlineation was permitted, changing the time to "on or about the 18th *Page 117 of May, 1927", which was before the mortgage was recorded. Mr. Becktell, in testifying about the alleged contract, said: "I was very sorry that he (Spaeth) could not have met the Alaska Plumbing and Heating bid, and I says, `The general contract does not include a stoker, and I have to buy a stoker, and I hope I will be able to give you that business' and I went on to assure Mr. Spaeth, — I says, `I want to assure you, Mr. Spaeth, that anything in the future that I will need in the hotel there, I will be more than glad to have you supply, and I want to tell you now, regardless of your losing the contract, I want to offer you any additional work, that goes to complete the hotel as a building'. I did say that to him." It is noteworthy that the language of Becktell relative to the extra work is quite similar to that which he used concerning the plumbing work which was not awarded to the plaintiff. Spaeth says that Becktell told him: "Well, you are going to do the plumbing and heating for me. I want a local man to do that work, and I have made up my mind you are going to do the work." Yet the contract for such work was awarded the Alaska Plumbing and Heating Company without protest from plaintiff.
Plaintiff asserts that the extra work under his contract included "changes that come up in the construction of the building" as well as necessary work and materials for themaintenance and operation of the building. The building was substantially completed in the latter part of November, 1927. The last item for work and materials was dated October 27, 1928, more than a year after completion of the building.
We are convinced that Becktell desired to favor the local contractors and builders when he could do so without substantial loss, but it is not believed that he *Page 118 ever made any contract covering work and materials which might be needed after substantial completion of the building or those which might be required in the course of the operation and maintenance of the hotel. It is unreasonable to suppose that he would do so. It is far more probable that the various items of work and materials set forth in the notice of lien were the result of separate and distinct contracts. Witness the following portion of Becktell's testimony:
"Q. Mr. Becktell, at the time there you were talking with Mr. Spaeth that you would favor him, your intention then was to favor him by giving him orders for such matters as was left out of the general contract, wasn't it?
"A. It sure was, yes. That was my full intention; at any time the hotel needed any repair, or needed any new plumbing of any kind, I was more than glad to give it to Mr. Spaeth; that is true.
"Q. And if there was anything that the general contract was deficient in, when you was talking with him, it was your intention that he should have the orders for it, it it arose?
"A. That is very true. I said to Mr. Spaeth, `Now we will need a stoker later on, and as long as your bid is anywheres nearright, you shall have the job." (Italics ours.)
The situation differs from that in a case where a contract was made for extra work and materials to be furnished during the course of construction of a building.
Let us now consider briefly some of the items which plaintiff asserts were included in his contract alleged to have been made in May, 1927.
It seems that, on the opening night of the hotel, some of the citizens of La Grande proceeded to celebrate the occasion and, according to the testimony of the plaintiff, *Page 119 during the course of the evening a lavatory was broken and the drinking fountain kicked over. The charge of $44.50 was made by plaintiff for the necessary repairs. We inquire, was this repair job completed under the contract of May, 1927?
"Property purchased and/or labor performed Nov. 21, 1927, $11.12": It appears from the record that, after the hotel had opened for business, the plaintiff disconnected a radiator, took it to the basement, and covered some steam pipes. Certainly this was a simple repair job. Is it to be reasonably contended that such work was referable to the contract in question? The same may be said concerning an item dated December 28, 1927 — a charge of $7.50 for work performed in installing a check valve in the hotel barber shop.
The item dated April 2, 1928, for $52.70 covered a charge for the lavatory installed in the hotel beauty shop approximately seven months after the building was completed and occupied.
The item dated November 5, 1928, for $269.40, set forth in the notice of lien but, for obvious reasons, not alleged in paragraph 6 of the complaint was a charge for doing concrete work in the widening of the street in front of the hotel. This work was not done by the plaintiff but was performed by the partnership of Spaeth Hartenbower. True, the trial court disallowed this item, but its inclusion by the plaintiff under his alleged contract tends to discredit the remainder of his claim.
The final item dated October 27, 1928, from which date the time for filing the notice of lien must be computed, covered a charge of $81.25 for a galvanized iron smokestack furnished and installed more than a year after the hotel had opened. Mr. Becktell thus testified concerning the same: "Well, as I said a little bit ago *Page 120 I had a tenant that was inclined to squawk about little things, and there was smoke coming in the windows, when the wind was from a certain direction, and then it would change in a few days, and then come back again, and it rode along for some months, and finally Mr. Clinger spoke to me about it one day, and said that change had to be done, and I says, `All right, Joe, we will see that it is done, and so right now I will authorize Mr. Spaeth toput it up there.' Clinger said the chimney lacked about 20 feet of being high enough. "Q. Did you agree on the price he was to charge? A. It was impossible to arrive at a definite figure. To the best of my knowledge I told Mr. Spaeth to put it up thereand send me the bill, and if it was too much I would probably shoot him, or something like that. In other words, Mr. Spaeth was inclined to be fair, — in other words, he didn't want to profiteer on the cost, and I was willing to take his word for that."
We are unable to conclude that the various items listed in the notice of lien were contemplated by the parties to be considered as a part of one entire continuous contract. It seems more reasonable to the writer that they were separate and independent contracts. If the doctrine for which the respondent contends may be applied to the facts in this case, it would, indeed, be hazardous to lend money, taking as security a building substantially completed. When would plaintiff's alleged contract be completed? Would it be in one year or ten years?
There is no real dispute between counsel as to the law. The case is to be determined on an issue of fact, and each of the numerous cases cited must be considered in the light of its own particular circumstances. *Page 121
The decree is reversed and the suit to foreclose the mechanics' lien is dismissed. Neither party will recover costs or disbursements.
ROSSMAN and BAILEY, JJ., not sitting.
CAMPBELL, C.J., did not participate in this decision.