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of action and misjoinder of parties. This de. ment in favor of Barger & Sears was served murrer was sustained by the court, and the

upon them.

The affidavit of Clark, made on action was dismissed as to the defendants behalf of the Coeur d'Alene Silver Lead MinBarger & Sears. Subsequently, upon the fil ing Company, is as follows: "State of Idaho, ing of an affidavit on the part of the Coeur County of Shoshone ss.: (Title of Court d'Alene Silver Lead Mining Company under and Cause.) Patrick Clark, being duly the provisions of section 4109 of the Revised sworn, on his oath says that he is the general Statutes of Idaho, an order was made by the manager of the defendant the Coeur d'Alene court on motion of the said defendant com Silrer Lead Mining Company. That said pany substituting the said Barger & Sears defendant is a corporation duly organized as defendants in said action in place of said in the state of Montana under the laws Coeur d'Alene Silver Lead Mining Company, thereof. That Charles F. Sears and Barger, upon the depositing with the clerk of the partners under the name of Barger & Seary, court by said company of the sum of $972.83. without any collusion with this defendant, This order was served upon Barger & Sears, made a demand upon this defendant for the but they neither answered nor demurred same fund sued upon in this action, and thereto, and their default was duly entered, prior to bringing this action had caused and thereafter, on the 23d day of April, papers in attachment to be served upon this 1892, after setting forth an epitome of the defendant, thereby asserting that this deproceedings as above given, the court en fendant was attached as a debtor of the tered the following judgment: “Wherefore, John Bresnaham mentioned in the complaint.

motion of plaintiff's attorney, W. T. That this defendant has no interest in the Stoll, for judgment, it is ordered and ad fund sued upon of nine hundred and sevjudged that the plaintiff, James McCauley, enty-two 85-100 of the twenty-two hundred do have and recover of and from the defend dollars alleged to be owing said Bresnaham, ants Chas. F. Sears and Harry Barger, co and should not be burdened with the expense partners as Barger & Sears, the sum of nine of litigating about the same, and is desirous hundred and seventy-two and 85-100 dollars, of availing itself of the provisions and benetogether with his costs of this action, taxed fits of section 4109 of the Revised Statutes at $, and that the clerk of this court of Idaho; and thereupon prays the court pay to the said plaintiff or his attorney said to make an order authorizing it to make desum of $972.85 so deposited as aforesaid by posit of said fund in court, subject to the said Coeur d'Alene Silver Lead Mining Com retention by the clerk of all the costs which pany in payment and satisfaction thereof." have accrued to this date of such order in

This case seems to have been heard and this action. Patrick Clark." "Subscribed determined as one coming under the provi and sworn to before me, June 11, 1891. H. sions of section 4109 of the Revised Statutes M. Davenport, Notary Public. [Seal.] Filed of this state. That section is as follows: June 26, 1891." There

no fund in “Sec. 4109. A defendant against whom an question, and, if there were, there is no action is pending upon a contract, or for identity shown of the fund sued upon and specific personal property, may, at any time that stated by Clark in his affidavit, for the before answer, upon affidavit that a person former is stated to be $2,200, while the latnot a party to the action makes against him, ter is said to be "nine hundred and seventyand without any collusion with him, a de two and 85-100 dollars of the twenty-two mand upon the same contract, or for the hundred alleged to be owing said Bresnasame property, upon notice to such person ham.” Clark states in his affidavit that priand the adverse party, apply to the court or to the commencement of this action by for an order to substitute such person in plaintiff, Barger & Sears had commenced an his place, and discharge him from liability action against Bresnaham and had served to either party, on his depositing in court attachment papers upon the company, but the amount claimed on the contract, or de for what amount they had sued, or whether livering the property or its value, to such such suit was instituted before or after the person as the court may direct; and the acceptance of the orders upon which the accourt may, in its discretion, make the or tion of plaintiff is brought, does not appear. der." The second paragraph of the com It will readily he seen, if the orders were plaint avers, inter alia, “that on said day accepted by the company after the service {July 2, 1890] the Coeur d'Alene Silver Lead of the attachment, the company cannot Mining Company was indebted to the said evade its liability under the attachment by Bresnaham in the sum of twenty-two hun- | urging the subsequent acceptance of the ordred ($2,200.00) dollars;" the claim of the ders given by Bresna ham. From aught that plaintiff by virtue of the several orders of appears in the record, the sum owing from Bresnaham upon said company, and accept the company to Bresnaham at the time this ed by said company, amounts to the sum suit was instituted was sufficient to pay of $972.85. What amount was claimed by both the claim of plaintiff and of Barger & Barger & Sears against Bresnaham is not Sears. In the case of Pfister v. Wade, 56 disclosed by the record, nor does the rec Cal. 43, which was an action brought upon ord disclose the amount due from said com a statute from which section 4109 of the pany to Bresnaham at the time the attach Revised Statutes of Idaho was copied, the

was

court say: "It is an inflexible rule that the ber and material used in erecting a dwelling thing to which the parties make adverse house on ground, describing it, belonging to B.,

who caused the dwelling house to be erected, claims must be one and the same thing; or,

and that the value of such lumber and material in other words, the claims must be identical. was a specified sum, is not suihicient to create Where the claims made by the defendants a lien, because it fails to state the name of the are of different amounts, they never can be

person to whom the materials were furnished, identical.” The object and purpose of the

or to connect the person with whom claimant

had the contract with the owner of the ground statute is to protect the party from double and building, as required by Hill's Code, H vexation in respect to one liability. No 3669, 3673. 32 Pac. Rep. 620, affirmed. such contingency arises in this case as shown On rehearing. For report of decision on by the record. The liability of the com appeal, see 32 Pac. Rep. 620. pany to pay the claims of the plaintiff was Dan J. Malarkey, for appellants. Johnson fixed by its acceptance of the orders given & Idleman and H. G. Platt, for respondeat. by Bresnaham, and its liability to Barger & Sears by its answer to the writ of at BEAN, J. The right to enforce & me tachment or garnishment. The record fails chanic's lien against a building, for labor to show any identity of the claims by Barger performed or material used in its construe & Sears and that of the plaintiff; nor does tion, is purely a creature of the statute, and the record show the essential fact that the

does not exist, however equitable the claim claims arose from one contract; nor is it

may be, unless the party claiming the lied inferable from the record that the claim of

brings himself within the provisions of the Barger & Sears was in any way connected statute by a substantial compliance with its with, or the liability of the mining company terms. Whatever the statute makes neces to pay the same in any way dependent upon, sary to the existence or enforcement of the its liability to pay the claim of plaintiff. len must be substantially complied with, How can it be said, under the facts as shown

and the courts cannot, by construction, die by the record in this case, that Barger & pense with any of its requirements. This is Sears and the plaintiff were pursuing and the rule of the adjudged cases, both of this seeking to recover the same fund? The

and other courts, and is the one announced claim of plaintiff, as shown by the record, by the former opinion herein. Now, apply. was $972.85, while the record fails to show

ing this rule to the claim of len before us, either the character or amount of the claim it is apparent that it does not comply with of Barger & Sears. The amount due Bres- the statute, because it does not appear on naham from the company appears to have the face thereof, as required by section 3673, been $2,200. Now, which was the fund? Hill's Code, to whom Rankin furnished the What was the amount required to be paid material, if, indeed, it appears that he fur into court by the silver lead mining com nished any of the material, used in the pany under the provisions of section 4109? | Malarkey building. The language that "I, A casual consideration of these propositions N. K. Rankin, * have, by virtue of will show that the case is not one covered a certain contract with D. C. McDonald & either by the statute or the rules governing Co.,

and for the furnishing of lumthe equitable remedy of interpleader. Pfis ber and material used in the erecting and ter v. Wade, 56 Cal. 43; Shaw v. Coster, 35 building and completing of a certain dwellAmer. Dec. 695, and notes.

ing house," carnot, under the most liberal The depositing in court by the company rules of construction, without eliminating the of the sum of $972.85 was no compliance with words "and for the furnishing of," and substithe provision of section 4109, as it does not tuting in place thereof the word "furnished." appear, nor is there anything in the record be tortured into a statement that, by virtue upon which the assumption can be predicat- of a contract with McDonald & Co., Rankin ed, that that was the amount due from the furnished lumber and material used in said company to Bresnaham, or that it was the dwelling house. It is entirely silent as to amount due from Bresnaham to Barger & what Rankin did by virtue of his contract Sears, and for which the latter had attached with McDonald, nor can it be said, from a the company. There being no authority in fair construction of the language, that the the district court, as the case is presented contract with McDonald & Co., referred to, by the record, to enter judgment against was for furnishing the lumber and material Barger & Sears, such judgment is reversed, used in the Malarkey building. We are not and the case remanded to the district court disposed to apply a strict or technical confor further proceedings.

struction to mechanics' liens, and, however

faulty or illy constructed they may be, if it MORGAN and SULLIVAN, JJ., concur.

can fairly be inferred from the language used that the requirements of the statute

have been substantially complied with, they RANKIN V. MALARKEY et al.

will be upheld and enforced. But we cannot (Supreme Court of Oregon. Nov. 20, 1893.)

change the language by eliminating and subMECHANIC's Lien-Notice.

stituting words, and when the claim, as filed, A notice of lien, which states that claim

is entirely silent upon one of the essential ant had a contract with A. for furnishing lum requirements of the statute, no rule of con

struction will authorize the court to supply chanic's lien that the claim thereof, as filed, the omission. The statute has required the contains a statement of such claim, and the claimant to file in a public office a sworn person to whom claimant furnished material

statement of a particular character, and that or for whom he performed labor, and withou requirement must be at least substantially out such a statement it is insufficient, and ! s observed before the court can enforce the cannot be enforced. For these reasons the

lien, and, not having been done in this case, decree of the court below must be reversed, the former decree must be reaffirmed. Iu and the complaint dismissed. addition to the point suggested, it is proper to remark that, in the opinion of the court, the claim of lien in this case was not tiled within the time required by law, nor does it contain a true statement of the plaintiff's

BARTHOLOMEW et al. v. AUMACK et al. demands.

(Supreme Court of Oregon. Nov. 27, 1893.) CONTRACTS-SALE OF LAND-ACCOUNTING.

1. Plaintiffs agreed to clear. plat, and sell

land for defendants, delivering to them all re DILLON V. HART et al.

ceipts on sales, except $10 commission on each

lot sold, with a stipulation that, when a cer(Supreme Court of Oregon. Nov. 20, 1893.) tain amount of cash was collected from sales,

the land then ursold and the notes unpaid MECHANICS' LIENS-NOTICE OF LIEN.

should be transferred to plaintiffs, and that if It is essential to the validity of a me defendants did not receive $2,000 in six months chanic's lien that the notice of lien shall con they might annul the contract, in which case tain, as required by the statute, a statement of the $10 commission on each lot should be full the claim, and the name of the person to whom compensation for plaintiffs' services.

It was E claimant furpished material, or for whom he further agreed that if defendants should be performed labor.

evicted, as a result of a suit then pending, they

should pay plaintiffs $40 per acre for clearing Appeal from circuit court, Multnomah the land, and the contract should be void. Held, county; Loyal B. Stearns, Judge.

that on the eviction of defendants, as a result Suit by H. E. Dillon against J. D. Hart

of such pending suit, plaintiffs could not re. and another to foreclose a mechanic's lien.

cover moneys expended by them in surveying

the land. From a judgment for plaintiff, defendants 2. Plaintiffs were, however, in such case, appeal. Reversed.

entitled to recover $540, which they paid in or

der to complete the amount of $2,000 necessary W. E. Thomas, for appellants. P. J. Ban to prevent the forfeiture of the contract at the non, for respondent.

end of six months.

Appeal from circuit court, Multnomab counBEAN, J. This is a suit by a subcontract ty; Loyal B. Stearns, Judge. or to foreclose a mechanic's lien upon the Action by D. Bartholomew and James Hyreal property of the defendants, for labor land against Lyle N. Aumack and others. and material furnished and used in the con From a judgment for defendants, plaintiffs struction of a building thereon. The portion appeal. Modified. of the claim of lien material to the question The other facts fully appear in the followpresented on this appeal is follows: ing statement by MOORE, J.: “Know all men by these presents, that I, This is a suit for an accounting. The facts H. E. Dillon, of the city of Portland, in the show that on August 26, 1890, the defendants county of Multnomah, state of Oregon, have, claimed to be the owners of a tract of land by virtue of a contract heretofore made with in Multnomah county, Or., containing 5.92 Cramer & Krupke, partners, of Portland, of acres, which land was also claimed by the county of Multnomah, Oregon, who were one Samuel Coulter, who had commenced the contractors and agents of J. D. Hart and an action in the circuit court of said county C. C. Newcastle, and J. D. Hart and C. C. against the Portland Trust Company inNewcastle were the owners and principals volving the title to said property. That on in the building and furnishing the material said date a written contract was entered into of a certain house, the ground upon which between the parties to this suit, by the terms said house was built and material furnished of which the plaintiffs agreed to clear said at the time the property of J. D. Hart and land of brush, survey and plat it into lots C. C. Newcastle, who caused the said house and blocks, advertise and sell it, within six to be built and material furnished." This months from the date thereof, for cash down notice of lien is clearly insufficient within or on time, taking installment notes on time the rule announced in Rankin v. Malarkey, sales, payable to the defendants, who were 34 Pac. Rep. 816, (just decided,) because it to execute warranty deeds to cash customers, does not state, either directly or by neces and bonds for deeds, in double the amount of sary inference, to whom he furnished mate the purchase price, to purchasers on credit. rial or for whom he furnished the labor for All notes taken and moneys received, except which he seeks to enforce the lien, or, in a commission of $10 upon each lot sold, were fact, that he furnished any material or per to be delivered to the defendants, and when formed any labor on the building of the de the sum of $7,404.41 should be collected, tendants. Under the provisions of the stat.

in actual cash. on account of sales, the ute, it is essential to the validity of a me

lots and blocks then unsold were to be conv.34P.no.10452

as

veyed, and all notes wholly or in part rendered in favor of the plaintiff, and for the unpaid were to be assigned to the plain possession of said tract, and the defend tiffs, who were to pay the expense of con ants, as a result thereof, were evicted thereveyancing and all taxes upon the property, from, which fact is alleged in their answe or notes given therefor; but if the de to the complaint herein. The cause was it fendants did not receive the full purchase ferred to John B. Cleland to take the testi price, in cash o notes, within six months, mony and report the facts, and his conde and realize $2,000 on such sales and notes, sions of law thereon, who found that the then, by giving the plaintiffs notice of their plaintiffs were entitled to recover $240 and election, they could declare all rights under costs; and this report having been affirmed said contract forfeited, and when so de by the court, and a decree rendered in a clared the $10 commission should be a full cordance therewith, the plaintiffs appeal compensation for services in making such sales, and in case no notice be given the bal

Gearin, Silvestone, Murphy & Brodie, fer ance of the purchase price should be payable

appellants. Watson, Beekman & Watson. in eight months thereafter, with interest

for respondents. thereon at the rate of 8 per cent. per annum. It was further agreed that if the defendants MOORE, J., (after stating the facts.) The should be evicted, as a result of a judgment plaintiffs contend that they are entitled to in the said action of Coulter v. Portland recover from the defendants, in addition to Trust Co., then the defendants were to pay the amount allowed them by the court, the the plaintiffs $40 per acre for clearing said following: For surveying and other expenser, land, and the contract between them was to $158.35, and for money advanced on the cobecome void. The plaintiffs cleared said tract, $340. It was necessary to make a surland, and paid therefor $240, surveyed and vey and plat of the land, and advertise the platted it into 37 lots, and paid on account property, before any sales could well be thereof, and for taxes and other expenses in made; and, as the plaintiffs agreed to do making sales, $158.35; and on February 26, these things with full knowledge that the 1891, the defendants not having received contract might be defeated, they can have $2,000 in cash within the six months, the no cause of suit because the contingency at said plaintiffs paid them $540 to complete curred, and the title failed. Their commis this amount, and thereupon the contract was sion of $10 for each lot sold, and the possiblextended from time to time until December ity of obtaining the residue of the property, 1, 1892. The plaintiffs, prior to the last and the assignment of the notes after the mentioned date, had sold all of said lots, and purchase price was fully paid, were a suffdelivered to the defendants the proceeds! cient consideration for their agreement thereof, and on December 1, 1892, they had The contract provided that when the de collected $8,109.50, which included the inter tendants had received $7,404.41 in actual est on the balance due February 26, 1891, cash from the sale of the property, if renlizen and the payment of the $540 made by the during the existence of the contract, the plaintiffs. In the action of Coulter v. Port would convey to the plaintiffs all the uncok land Trust Co., judgment was rendered in lots, and assign to them all notes wbolls er favor of the defendant, which, upon appeal partly unpaid. This gave to the plaintiff: to this court, was, on April 14, 1891, re an equitable interest in the land itself, s versed, and a new trial ordered. 20 Or. 469, well as in the fund arising from its sale, 26 Pac. 565, and 27 Pac. 266. A mandate subject, however, to be defeated by the 2011was entered in the court below, and while dition that $2,000 in cash must be realized said action was there pending a suit was

within six months from the date of the conbrought in said county to stay the proceed tract. To prevent the breach of this cond: ings at law, and a decree rendered dismiss tion, they advanced the $540 to make up the ing the bill, which, on appeal to this court, deficiency in the $2,000 payment. This was was, on October 31, 1892, affirmed. Trust a voluntary payment upon their part, and Co. v. Rush, 31 Pac. 280. The defendants made for their own benefit. They could herein, subsequent to October 31, 1892, made have selected lots for themselves as a 02a settlement with Samuel Coulter, whereby sideration for the payment, and had they they, in consideration of one dollar, conveyed purchased the entire tract, and paid the full to him 16 lots that had been forfeited by the consideration, the defendants would have purchasers, and Coulter, in consideration of been compelled to execute and deliver to $6,000, conveyed to them 21 lots that had them proper conveyances. If, upon the pas not been forfeited. That thereafter, and ment of the whole consideration, a conTETprior to December 1, 1892, in response to ance could have been demanded, is it not plaintiffs' request for a settlement, defend equally true that, upon the payment of a ants offered to pay plaintiffs the sum of $240 part of the consideration, they could have on account of clearing said land, and refused demanded a conveyance of a part of the propto make any other settlement, whereupon erty? By not selecting lots for themselves, this suit was instituted on December 29, 1892. they elected to take the remainder of the That on January 4. 1893, in the action of property after the purchase price had been Coulter v. Portland Trust Co., judgment was fully paid; and since the defendants had

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Cal.) ELECTRIC LIGHT & POWER CO. O. CITY OF SAN BERNARDINO.

819

ceived in actual cash the full purchase price, , motion, and ordered judgment for defend within the time agreed upon, the plaintiffs ant. This appeal is prosecuted from such were at least entitled to select sufficient prop- judgment. erty to compensate them for the advances The merits of this appeal are determined made; and as there was a total failure of by the construction given section 777 of the the title after the full performance of the municipal corporation act, as amended by the agreement, which precluded the plaintiffs Statutes of 1891, p. 54. That portion of the from selecting or receiving any of the prop section to which it is necessary that we dierty, they are entitled to the amount ad- | rect our attention is as follows: “In the erecvanced by them, and interest thereon from tion, improvement and repair of all public the date of payment. The decree, therefore, buildings and works, in all street and sewer will be modified accordingly.

work, and in all work in or about streams, bays or water-fronts, or in or about embankments or other works for protection against

overfiow, and in furnishing any supplies or ELECTRIC LIGHT & POWER CO. v. CITY

materials for the same, when the expendiOF SAN BERNARDINO. (No. 19,282.)

ture required for the same exceeds the sum

of $100, the same shall be done by contract, (Supreme Court of California. Nov. 25, 1893.)

and shall be let to the lowest responsible CITIES-CONTRACTS-STREET LIGHTING. bidder after notice by publication in a newsThe lighting of streets by electric arc paper of general circulation.

The lights placed above the intersections of streets city was lighted by plaintiff, as shown by is not "street work," within Mun. Corp. Act, $ 777, as amended by St. 1891, p. 54, providing

the testimony, by arc electric lights suspendthat in the erection of public buildings, and in

ed at a considerable height above the interall street and sewer work, it shall be done by section of the streets, from wires, which contract let after notice by publication.

wires were supported by wooden masts Department 1. Appeal from superior court, Does the lighting of streets, as here de Su Bernardino county; George E. Otis, scribed, come within the term "street work,“ Judge.

as used in the foregoing provision of the Action by the Electric Light & Power Com. statute? We are satisfied that it does not. pany against the city of San Bernardino. and to give such a meaning would demand Judgment for defendant Plaintiff appeals. a construction of the statute entirely unjustiReversed.

fiable by its language. "Street work" is a

phrase of common usage, and has a well-deHarris & Gregg, for appellant. Wm. Gird

fined signification. The words mean exactly and John Brown, Jr., for respondent

what they indicate upon their face, namely,

work upon a street,-work in repairing or GAROUTTE, J. The plaintiff in this case making a street. The phrase is found in the is the Electric Light & Power Company, a decisions of this court, and in the statutes of corporation organized in this state, and the the state, times without number, and its defendant is the city of San Bernardino, a construction as indicated, to our knowledge, municipal corporation of the fifth class. The has never been questioned. The parties plaintiff entered into an express contract | plaintiff and defendant entered into an exfor lighting the streets of the city of San Ber press contract. The plaintiff furnished the nardino for one year following the 1st day of light at the time and upon the terms demandOctober, 1891, with 42 electric lamps, The ed by the contract, and the city now refuses city agreed to pay therefor the sum of $546 to pay the balance due under its contract, per month. The contract was fully complied upon the ground that notice was not given with on the part of the plaintiff, and the de in the newspapers and bids requested. Such fendant made payments on the contract for being the status of the case, it certainly is all the inonths except July, August, and Sep not demander of us that doubtful constructember, 1892. The respondent refused to tions, even if this provision gave occasion pay for lighting the city during these last for them, should be resolved in favor of the named months, and this action is brought to defendant. The provision, fairly construed recover the contract price, amounting to $1,- | by all rules of construction, does not bring 658. In answer to plaintiff's complaint, the the subject of this litigation within the term defendant alleges that the lighting of the city "street work," as there used. There can be was done under the contract set forth, but no question as to the sound policy of a law asserts that the contract was unauthorized, requiring municipal corporations to enter into in that it was not let pursuant to any notice contracts for the payment of money only or advertisement for bids for lighting the after full notice and opportunity for competicity, and that no advertisement inviting bids tion, but that is not a matter for our contor the lighting of the city was ever given sideration here. We must take the statute by the board of trustees of said city. At the as we find it. We can neither add to it nor close of plaiutiff's case, the defendant moved subtract fronı it. It is our duty alone to confor judgment of nonsuit on the grounds speci-strue it as it stands enacted. For the forefied in his answer, and the court granted the going reasons, it is ordered that the Judgment

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