Opinion
Submitted on briefs March 31, 1928
Affirmed with modification April 17, 1928
From Multnomah: T.E.J. DUFFY, Judge.
AFFIRMED WITH MODIFICATION.
For appellants there was a brief over the name of Mr. Eugene Brookings.
For respondent there was a brief over the name of Mr. Oglesby Young.
In Banc.
This is a suit to foreclose a mechanic's lien. Plaintiff alleges that, at the instance and request of defendants, certain materials were furnished and labor performed in plastering two rooms of a dwelling-house owned by the defendant M.F. Cooper. The contract was made by the plaintiff with the defendant, Mrs. M.F. Cooper, but unquestionably with the knowledge and consent of her husband. The work was performed while defendants occupied the house as their home.
Defendants assert that the decree should be set aside for the reason that it is not alleged in the complaint that notice was given of an intent to claim a lien in compliance with Section 10191, Or. L. This section provides that the lien claimant "shall not later than five days after the date of the first delivery to any contractor or agent of such material or supplies for which a lien may be claimed" give notice to the owner of an intent to assert a lien. Such statutory provision has no application, however, where the material is furnished directly to the owner: Nicolai-Neppach Co. v. Poore, 120 Or. 163 ( 251 P. 268); Boise-Payette Lumber Co. v. Dominican Sisters, 102 Or. 314 ( 202 P. 554). In the instant case there was no delivery of material to any contractor or statutory agent.
Did the court err in rendering a personal judgment against both defendants? The contract made by the wife was ratified by the husband. The defendant, M.F. Cooper, through his wife, acting as his common-law agent, had contractual relations with the plaintiff. The husband was personally liable for the reasonable value of the material furnished and the labor performed. It follows that it was proper to render a personal judgment against him. It was not so as to the wife: Tait Co. v. Stryker, 117 Or. 338 ( 243 P. 104); Augir v. Warder, 68 W. Va. 752 ( 70 S.E. 719, 33 L.R.A. (N.S.) 69); 18 R.C.L. 991; 40 C.J. 500. Appellant relies upon McCormack v. Bertschinger, 115 Or. 250 ( 237 P. 363). A personal judgment was not allowed in that case for the reason part of the work was performed under a contract with the owner and part under a separate contract with the original contractor. There was no segregation of the amounts due from each.
The decree of the lower court will be affirmed, with the modification above noted, that is, personal judgment against the defendant Mrs. M.F. Cooper will be eliminated. Plaintiff is entitled to costs and disbursements. AFFIRMED AS MODIFIED.