istration and the time of the commencement of the action, is untenable. The record shows that more than six months elapsed between the issuance of the letters and the commencement of the action, although the complaint does not show the particular time when the appellants qualified; but we are of the opinion that after verdict it will be inferred that they qualified immediately after the letters issued. It certainly was their duty to have done so; and we think, under the circumstances, we may presume that they performed their duty. They knew when they did qualify, and could have averred that the period had not expired in which they were exempted by law from being sued. If the questions were new, I should be inclined to hold that, unless it appeared upon the face of the complaint affirmatively that the action. had been commenced within the six months, the appellants would have to interpose a plea in the nature of a plea in abatement, setting forth the fact, and that by answering to the merits they would be deemed to have waived the point. I regard the matter as only dilatory; but in the case of Wells v. Applegate, 10 Or. 519, this court seems to have placed its decision of a similar question upon other grounds. The appellants, instead of setting up in their answer the fact alluded to, traversed the general allegations of the compaint. Individually I am inclined to the opinion that would waive any objection of that character. However, as the court can infer that the appellants qualified at once after letters of administration issued to them, as before concluded, it is not necessary to consider the matter of abatement.

The record fails to disclose any error; and the judgment appealed from will therefore be affirmed.

(12 Or. 135)

TATUM and others v. SMITH and others.

Filed March 27, 1885.

1. MECHANICS' LIENS-MATERIALS FURNISHED IN REGULAR COURSE OF BUSINESS. The lien law was not designed to give to a machinist a lien for work done and articles furnished, in the regular course of business, from time to time. 2. SAME-WHO ENTITLED TO LIEN-FOR WHAT PARTY ENTITLED-LAW OF ORE

GON.

A party, to avail himself of the law of liens. in performing work and providing materials, must be a contractor, and must have undertaken to do a job either to build or repair a structure in some particular; and the work must have been done and the material provided in pursuance thereof.

Appeal from Linn county.

J. K. Weatherford, for appellants.

L. Flinn, for respondents.

THAYER, J. This appeal is from a decree of the circuit court for the county of Linn, rendered in a suit by the appellants against the respondents to foreclose a chattel mortgage executed by the respond-1 ents Smith and (wens to the appellants, December 15, 1883, upon certain leasehold premises situated in said county, to secure the payment of certain promissory notes owing by said Smith and Owens to appellants, amounting to the aggregate sum of $5,000. Said premises included a certain saw-mill that had theretofore been purchased by said former parties of the appellants. The respondents Cherry and Parkes were made defendants in said suit upon the grounds that they had, or claimed, some interest in the said premises which the appellants sought to foreclose. Said Cherry and Parkes filed an answer, in which they set forth the nature of their interest in the said premises, which they alleged to be a mechanic's lien upon the said property for the sum of $1,300, arising out of a claim for work done and materials furnished by them to the said Smith and Owens to repair the said mill. It was alleged in the said answer that the said Cherry and Parkes, at the special instance and request of the said Smith and Owens, did, between the fifth day of November, 1883, and the twenty-third day of February, 1884, build and construct for them one 10-horse-power engine, and place the same in said saw-mill, and did repair and alter one planer, and place the same in said mill, and furnished other labor and material in constructing, repairing, and altering said saw-mill, and the machinery therein, as per bill of items attached to said answer and marked Exhibit A, for all of which they (said Smith and Owens) promised and agreed to pay them (said Cherry and Parkes) said $1,300, after deducting all credits and offsets, and executed to them a promissory note, as evidence thereof, bearing date February 26, 1884, due 30 days thereafter.

It is alleged in the answer, also, that said Cherry and Parkes commenced to furnish said labor, machinery, and material to said Smith and Owens for the construction and repair of said saw-mill, and the machinery therein, on the sixth day of November, 1883, and continued

to furnish the same until the twenty-second day of February, 1884, at which time said alterations were completed; that on the twenty-second day of March, 1884, they filed in the office of the county clerk for said Linn county an account of said indebtedness, duly verified by them, with a description of the said mill premises, and by which they claimed to have obtained a lien thereon, and upon the fixtures belonging thereto, from said sixth day of November, 1883; and that it had priority over the appellants' lien by virtue of the said chattel mortgage.

The appellants filed a reply to the answer, denying the allegations contained therein, and the issues so joined constitute the main question in the controversy between the parties. The circuit court decreed that there was due from the said Smith and Owens to the said Cherry and Parkes the amount claimed by them in their answer; that it was a lien upon the said mortgaged premises under and by virtue of the act of the legislative assembly of this state providing for the liens of mechanics, etc., and the manner of their enforcement, approved October 28, 1874, and that the said lien had priority over the said mortgage. The appellants' counsel claims that so much of said decree as affects the rights of the appellants is erroneous.

The question in the case which is referred to this court for determination depends wholly upon the facts and circumstances under which the work was done, and the material furnished by said Cherry and Parkes to said Smith and Owens, alleged in the answer, and the construction of the said mechanic's lien law. A number of authorities are cited in the respondents' brief, and many of them were referred to upon the argument, and the appellants' counsel also cited several. But the authorities, as a general thing, are of very little importance in this case. They may serve to show how mechanic lien laws of other states have been construed; but that is of no great consequence, from the fact that the laws of this state upon that subject have, for the past 10 years, been a confused jumble. It will be seen, from an inspection of said act of 1874, that an attempt was made to compile the California act of 1862, relating to mechanics' liens, and evidently it was consummated by some legislative journeyman, instead of by the members of that body. If the cobbler who got it up had been sufficiently discreet to have copied the substance of the California act literally, it would have been reasonably acceptable. But the vanity peculiar to novices induced him to change its terms, and to inject into it original ideas of his own. That effort displaced the lion's skin, and exposed the pretender underneath. Some of the sections of said act of 1874 were copied word for word from the California act. They are plain, and easily understood; but others were mere distortions. Section 15, under which the respondents claim to have acquired the lien herein, which evidently was taken from section 17 of the California act, is one of the unfortunate sections. The original section was wantonly mutilated in attempting to remodel it. The changes and interpolation to

which it was subjected so botched it that it would require a sevant to determine what it means. The section, as adopted by the California legislature, provided that whenever any person should proceed to erect any building, etc., without making any contract in writing for such construction, etc., every person who should perform labor or furnish material therefor should have a lien upon the interest of the person causing the same to be constructed, etc., and on the land, for a convenient space around the same, or so much as might be required for the convenient use and occupation thereof, which lien should relate to the time of the commencement of the work, and be enforced in the same manner as other liens therein provided for. As adopted by the Oregon legislature it reads substantially the same until it comes to the end of the sentence terminating with the words "without making a contract in writing;" but there the following is injected into it:

"Or if the contract is oral, who shall refuse, when applied to by any ubcontractor, artisan, etc., to furnish a memorandum in writing of the terms of such oral contract for such construction or repairs."

Then the words in the original are resumed. This amendment, so far as I can understand it, has changed the whole sense of the section. In the original, it was clearly intended that if a person proceeded to erect a building, without making any contract in writing for its construction, every person who should perform labor upon it, or furnish material to build it, would be entitled to claim a lien thereon. But as amended the right to the lien attaches only in case the person who proceeds to erect the building refuses to furnish a memorandum in writing of the terms of the contract for its construction. The words in the amended portion, "who shall refuse," undoubtedly refer to the person who proceeds to erect the structure, and I cannot perceive that there is more than one alternative; although the word "or" is used after the word "writing," and before the words "if the contract is oral." As no new condition is introduced, the two phrases, "without making any contract in writing," and "if the contract is oral," import the same thing; and it is no matter if they do not: the words "who shall refuse" apply as much to one as to the other.

If this view is correct, then said section 15 has no application to said respondent's claim. They cannot invoke the aid of that section, whatever may be the true construction of the original section, in order to establish their right to their lien upon the property in question. The legislature of this state has by the amendment restricted it to that class of cases where there has been a contract for the construction of the building or other structure upon which the lien is claimed, but which has not been reduced to writing, and the work been done and material furnished to the contractor. The lien then attaches to the building or structure. If a memorandum of the contract is refused, instead of being a liability against the owner for an

unpaid portion of the contract price, as provided in other parts of said act, the result is that said respondents could claim no lien except under the first section of said act; and that, in order to establish it under that section, they are compelled to maintain that they made an original contract for the erection or repair in whole or in part of the said saw-mill. Supplying the proprietors from time to time with machinery, or mending their old machinery, would not ordinarily give them a lien upon the premises for the debt; more especially where it was ordered from their shop, and delivered to the proprietor by being put aboard the cars. If a mill-owner were to order from a foundry a casting, or from a machinist a piece of machinery, the latter could not claim a lien upon the premises, nor assuredly could such lien be claimed where some appliance was sent to the shop of the machinist for repair. We must therefore look into the evidence to ascertain whether the materials were furnished and the work done in pursuance of an entire contract between the said parties to construct or repair the mill in question in some specified particular, or whether, on the other hand, the materials were furnished as ordinary custom-work is done, and the labor upon the mill performed in the same manner in which labor is commonly employed.

The exhibit annexed to the answer, and referred to as Exhibit A, contains a great number of items which appear to have been charged from time to time, evidently as the work and materials were ordered. The first charge is November 6, 1883. It is freight and drayage on planer, $6. The second charge is on the twentieth of the same. month. It is 32 feet 3-inch pipe, $4.80, and several other articles, which appear to have been furnished on that day. The third is on the twenty-seventh of the same month, and includes several articles; and it continues along, several days usually intervening between the dates of the charges. At the end are credits amounting in the aggregate to $58, but they are given under two dates: February 6, 1884, by 216 feet cedar lumber, $6.50; February 25, 1884, by three small pieces machinery, and a difference on labor, and a deduction on a piece of machinery,-making in all the balance.

The only evidence which appears to have been given as to the manner the work and materials were contracted for was the deposition of one of the respondents, Mr. Cherry. In answer to some of the interrogatories asked him, he said:

"I was at Harrisburg and saw Mr. Smith; he told me he wanted some work done on his planer, and other work, and also wanted me to furnish some new machinery. I did so. There was no other contract."

To another interrogatory he stated, in effect, that all said work and material entered into the construction of said saw-mill, and was necessary to its use, and formed a part of it. This evidence, standing by itself, might be sufficient to warrant the deduction which seems to have been drawn by the circuit court, that the work was done and the material supplied under a general contract to repair the saw-mill,