However, when the claimant's right to a lien has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment. Barber v. Henry, 197 Or. 172, 252 P.2d 802, 806; Ward v. Town Tavern et al., 191 Or. 1, 14, 228 P.2d 216, 221; Timber Structures v. C.W.S.G. Wks., 191 Or. 231, 246, 229 P.2d 623, 25 ALR2d 1358; Drake Lumber Co. v. Lindquist, supra; Andersen v. Turpin, 172 Or. 420, 425, 142 P.2d 999. In plaintiffs' complaint it is alleged:
In support of this contention plaintiff relies upon ORS 88.010, which provides that in a suit to foreclose such a lien if a promissory note or other personal obligation has been given "[T]he court also shall decree a recovery of the amount of the debt * * * as in the case of an ordinary decree for the recovery of money." Plaintiff also refers to decisions by this court as holding that when the right to such a lien is denied "and there is no element of waiver of equity jurisdiction," the case should be transferred to the law side of the court for jury trial on the issue of the amount of the debt, citing Ward v. Town Tavern et al, 191 Or. 1, 35, 228 P.2d 216 (1951); Barber, Trustee v. Henry et al, 197 Or. 172, 252 P.2d 802 (1953); and Olson v. Roop, 255 Or. 368, 467 P.2d 437 (1970). See also Yellow Mfg. Accept. Corp. v. Bristol, 193 Or. 24, 43, 236 P.2d 939 (1951).
However, when the claimant's right to a lien has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment. Barber v. Henry, 197 Or. 172, 252 P.2d 802, 806; Ward v. Town Tavern et al., 191 Or. 1, 14, 228 P.2d 216, 221; Timber Structures v. C.W.S.G. Wks., 191 Or. 231, 246, 229 P.2d 623, 25 ALR2d 1358; Drake Lumber Co. v. Lindquist, supra; Andersen v. Turpin, 172 Or. 420, 425, 142 P.2d 999."
In view of the fact that he did not mention the number of covers which he fastened in place nor the time that was consumed in that part of his work, we feel that it was of little consequence. The work which he performed upon the bread racks was done upon personal property, Barber, Trustee v. Henry et al, 197 Or. 172, 252 P.2d 802. At some previous time he may have installed in the floor of the building or in its walls some wiring that became a part of the structure, but on January 8 he did nothing of that kind. His work was confined to the bread racks themselves. The plaintiff performed no service on January 8 which can be deemed construction work. His lien claim was filed too late.
In view of this stipulation, this court, having found the lien invalid, is authorized to enter a money judgment. Ward v. Town Tavern, 191 Or. 1, 24-42, 228 P.2d 216; cf. Barber, Trustee, v. Henry, 197 Or. 172, 183, 252 P.2d 802. The evidence discloses without contradiction that American is indebted to Buckler in the amount sued for, less the amount of payroll claimed in Buckler's final billing dated September 25, 1953, to-wit, $1,097.60, plus payroll taxes and insurance, 2% overhead, and 10% profit, a total of $1,354.66. This expense was incurred under the following circumstances.
The method of attachment, however, does not ever conclusively establish that certain articles are not a part of the realty although the attachment thereof may go a long way towards establishment of intention. Defendant argues that the articles in question fail to pass the adaptation test, relying on Barber, Trustee v. Henry et al., 197 Or. 172, 252 P.2d 802. In that case it was held that the contemplated use of certain "islands" to be used in a supermarket did not necessarily fix their character as permanent fixtures annexed to the realty.
Plaintiff's lien for those materials thus fails, and there having been no segregation in the lien notice of charges for labor and materials, the whole lien claim must fail under a familiar rule. Johnson v. Alm, 121 Or. 285, 254 P. 803; Barber v. Henry, 197 Or. 172, 252 P.2d 802; Anderson v. Chambliss, supra. Plaintiff attempts to avoid the necessity of satisfying the notice provisions of ORS 87.020(1) by claiming that such notice is not necessary if the owner has actual notice of the delivery of the materials.
This case must be tried de novo in this court as a suit in equity. The facts bring it squarely within the principles announced in the following decisions: Nelson v. Hampton, 206 Or. 573, 294 P.2d 329; Barnes v. Eastern and Western Lumber Co., 205 Or. 553, 287 P.2d 929; Barber, Trustee V. Henry et al., 197 Or. 172, 252 P.2d 802; Walker et al. v. Mackey et al., 197 Or. 197, 251 P.2d 118, 253 P.2d 280; Powell et al. v. Sheets et al., 196 Or. 682, 251 P.2d 108; Yellow Mfg. Accept. Corp. v. Bristol, 193 Or. 24, 236 P.2d 939; Ward v. Town Tavern et al., 191 Or. 1, 228 P.2d 216; Pedro et al. v. Vey et al., 150 Or. 415, 39 P.2d 963, 46 P.2d 582; Hansen v. Bogan, 127 Or. 399, 272 P. 688; Elliott v. Murphy Timber Co., 117 Or. 387, 244 P. 91. During the time involved in this litigation defendants Donald Bookhultz and Albert W. Riley were copartners doing business under the assumed name of "George E. Zweifel and Company," with their place of business located in Portland, Multnomah county, Oregon. Defendants' business consisted chiefly of the solicitation of orders for the sale and purchase of heavy machinery and equipment, upon which sales they were paid commissions by the selling manufacturers.
Under the facts of this case we believe that the ranges and refrigerators in controversy never lost their identity as personal property. See Barber, Trustee v. Henry et al., 197 Or. 172, 252 P.2d 802. Reversed.
They rely upon the well-established rule in this state that an equitable right must not only be averred but also must be established by evidence as a prerequisite to the determination or adjudication by a court of equity of a purely legal matter. Barnes v. Eastern and Western Lumber Co., 205 Or. 553, 287 P.2d 929, 956; Barber, Trustee v. Henry et al., 197 Or. 172, 183, 252 P.2d 802; Walker v. Mackey et al., 197 Or. 197, 207, 251 P.2d 118, 253 P.2d 280; Powell et al. v. Sheets et al., 196 Or. 682, 696, 251 P.2d 108; Ward v. Town Tavern et al., 191 Or. 1, 228 P.2d 216. At the outset, we note the fact that defendants did not demur to plaintiffs' complaint in equity, nor did they at any point throughout the trial make a demand that the matter be transferred to the law side of the court where the question of damages might be determined by a jury.