Lew Williams Cadillac, Inc. v. Goldman
Lew Williams Cadillac, Inc. v. Goldman
Opinion of the Court
This is a suit for the foreclosure of two nonpossessory liens upon a motor vehicle and for personal judgment against defendants Mason, Goldman, and Lager Construction Co., Inc. (Lager). One of the liens- was sought to be foreclosed by the plaintiff,
Defendants first contend that Williams’ complaint is inadequate to justify foreclosure of its lien, which is set forth in the complaint, because the pleadings refute and contradict the notice of lien. Defendants argue that Williams’ lien notice states that Lager is the owner or reputed owner and contracted for the work while the complaint alleges that Mason was the reputed owner and contracted for the work. Defendants rely upon the following language from Graf v. Petry et al, 118 Or 511, 513, 247 P 315 (1926):
“In a suit to enforce a mechanic’s lien, where the notice of lien recites one contract, and the complaint is based upon an entirely different contract, the variance is fatal: * *
We believe there is no necessary inconsistency. The complaint also alleges that Mason was the lawful possessor of the vehicle. It alleges in great detail the steps through which this possession came about, thus showing possession to be lawful and not inconsistent with the rights of Goldman and Lager. It alleges that Goldman was the lessee of the vehicle, that he delivered the vehicle’s possession to Mason, and that in so doing he was acting as the “alter ego” of Lager.
ORS 87.100 provides that “* * * every other person who is in lawful possession of a chattel shall,
In Graf v. Petry et al, supra, the complaint alleged a contract for the reasonable value of services and materials, and the notice of lien stated that there was a contract for a specific price. It is obvious that the language previously quoted, when used in that context, has no application to the facts here.
It is not fatal to a foreclosure against Goldman that he is not named in the notice of lien. If the repairer of vehicles, at his peril, had to name everyone in a lien notice whose interest was subsequently sought to be foreclosed, liens would be of very little value. We do not believe that this was the intention of the legislature. We believe it was the intention of the legislature that a lien be sufficient as against the interests of all actual owners if it names as the owner or reputed owner authorizing the work one who authorized the work and who either had an actual interest in the vehicle or had its lawful possession which
Cross-complainant Everist’s complaint is substantially identical to plaintiff’s with regard to the present question, except its lien notice and complaint both named Mason as the owner or reputed owner. Therefore, there was no inconsistency, even under defendants’ contention.
It is our conclusion that both complaints were sufficient to justify foreclosure of the respective liens.
Defendants next contend that Williams’ complaint does not contain sufficient allegations to justify a personal judgment against them. They urge that a personal judgment cannot be rendered unless there is a contractual relation between the lienor and the defendants. With this proposition of law we agree. See Schram v. Manary, 123 Or 354, 369, 260 P 214, 262 P 263 (1927). Schram was a foreclosure under the statutes relating to liens of mechanics and materialmen on real property. However, this distinction
We believe that Williams’ complaint sufficiently alleges a contractual relationship between Williams and defendants. It alleges that Mason contracted for the repairs and that * * said defendant, Mason, was authorized, in performance of his duties to Louie L. Goldman * * * to contract for the hereinabove described services and repairs.” The complaint also alleges “That defendant, Louie L. Goldman, was and now is an alter ego of Lager Construction Co., Inc., * * These allegations are sufficient to allege that Mason, as the agent of Goldman and Lager, contracted for the work. The complaint, therefore, contains sufficient allegations upon which to base a personal judgment against Goldman and Lager.
Everist’s cross-complaint is substantially the same, except it does not allege that Goldman was acting as the “alter ego” of Lager. Therefore, there is no basis for a finding that Mason, when he contracted for the work, was the agent of Lager, and no personal judgment can be returned in favor of Everist and against Lager. There is an allegation that Mason told Everist that Lager was the owner and authorized the repairs. This may be evidence admissible to prove agency under certain circumstances, but it is not an allegation of the fact of agency.
The decree of the trial court is affirmed with the modification that there shall be no personal judgment in favor of Everist against Lager.
ORS 87.085. “Every person who has expended labor, skill or materials, including automobile tires, upon any chattel, or has iumished storage for said chattel, at the request of the owner, reputed owner, authorized agent of the owner or lawful possessor thereof, shall have a lien upon the chattel * *
Reference
- Full Case Name
- LEW WILLIAMS CADILLAC, INC. v. GOLDMAN, EVEREST BROS., INC., Defendant-Respondent
- Status
- Published