# Phillips v. Graves

> Oregon Supreme Court · November 19, 1931 · 139 Or. 336

URL: https://www.frixlaw.com/law-library/cases/3839520

## Case

- **Full name:** PHILLIPS v. GRAVES Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** November 19, 1931
- **Citations:** 139 Or. 336; 9 P.2d 490; 83 A.L.R. 1; 1932 Ore. LEXIS 145
- **Precedential status:** Published
- **Opinion:** Dissent by Rand
- **Judges:** Ssman, Rand, Brown, Belt, Campbell, Kelly, Bean
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3839520

## Opinion text

RAND, J.,
dissenting. This is an appeal from a decree foreclosing two mechanics’ liens. One of the liens was claimed and filed by plaintiff as administrator of the estate of his father, J. F. Shea, deceased. It includes a claim for labor and material furnished by the intestate and a claim for labor and material furnished by plaintiff as administrator in completing, after intestate’s death, the work contracted to be performed by decedent, and also a claim for labor and
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material furnished by plaintiff as administrator at the request of the owner in furnishing certain equipment not included in the original contract.
Defendants attack the validity of this lien upon the ground that an administrator is not entitled to file a lien for labor or material furnished by his intestate before his death and that, since the notice of the lien filed by the administrator is for a lump sum and contains no statement by which the amount claimed for labor and material furnished by the intestate can he segregated, the whole lien is invalid because containing in a lump sum lienable and non-lienable items, the amounts of which cannot he determined without the aid of extrinsic proof.
There is no contention that the lien is invalid upon any other ground, nor is it contended that, if the intestate had lived and had himself performed the acts subsequently done by his administrator, he could not have claimed and enforced a lien for the entire amount claimed. The whole controversy, therefore, resolves itself into the question: Can an administrator, under our statute and within the time allowed by law after complying with all other requirements of the statute, file and enforce a lien for labor and material furnished by his intestate in a case where his intestate could have done so had he lived? This question is res nova in this state and its answer must he determined by the provisions of our statute.
The right to a lien is given by section 51-101, Oregon Code 1930, to every person performing labor or furnishing material to be used in the construction of a building, who substantially complies with all the requirements of the statute. The only provisions in respect to the question of by whom the lien shall he filed is contained in section 51-105. That section provides
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that: “It shall be. the duty of every original contractor * * * or other person * * * to file with the county clerk * * * a claim containing a true statement of his demand, after deducting.all just credits and offsets, with the name of the owner, or reputed-owner, if known, and also the name of the' person, by whom he was employed or to whom he furnished the. materials, and also a description of the property to be charged with said lien, sufficient for identification, which claim shall be verified by the oath of himself or of some other person having knowledge of the facts.”-
It has been uniformly held by this court that under this statute, none of the persons upon whom the right to a lien is conferred can assign his account before filing his claim of lien so as to vest in his assignee the right to file and enforce a lien therefor, and that such an assignment, although vesting in the assignee the right to enforce the claim, does not confer upon him the right to perfect the lien by filing a claim .therefor. The reason for so holding is that the right to. a lien, under our statute, is a personal right or privilege which may be waived by the party entitled thereto and the right being a mere personal right or. privilege cannot be assigned but must be exercised by the individual entitled thereto. It is contended that that principle is applicable to an executor or administrator of a deceased person who, had he lived, could have enforced the right to perfect his lien by himself filing a claim therefor.
The powers and duties of an administrator are fixed by law and they devolve upon him by operation of law and not by way of assignment. In exercising such powers and duties, the administrator is not acting for himself but in a representative capacity. As a general rule, an assignor is the owner of the thing
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assigned and, -in respect thereto, acts for himself as owner and wholly free from the duties of a person acting in a representative capacity. The situations, therefore, are not analogous and it would seem that the reason for the enforcement of the rule in the one case does not exist in the other. If this deduction is true, the rule is not applicable to an administrator or - other person, acting in a-representative capacity, nor is it even persuasive under the situation disclosed here. For the purpose of settling the business affairs and distributing the estate of the intestate, the administrator stands-in the place and is regarded as the representative of his intestate. In addition to standing as the personal representative of the deceased, he occupies the position of trustee for the persons beneficially interested in the estate. The powers and duties of an administrator arise by operation of law and under the law the administrator not only represents the intestate himself but succeeds to his rights and, to the extent of the assets, to his liabilities: 11 R. C. L., sections 6 and 8.- It -is the duty of an administrator in all cases to collect all outstanding accounts of his decedent and to administer the estate so that the assets can be distributed to the persons entitled thereto. From the nature' of these powers and duties, it would seem to follow that, if plaintiff’s intestate had lived and would have been entitled to obtain a lien for the services he performed, his administrator would be-entitled to the same right.
The evidence shows that plaintiff’s intestate at and prior-to his death was a contractor actively engaged in doing contract work and at the time of his death had numerous uncompleted contracts. That in performing his contracts, he did so not by his own labor but wholly -by the labor of others who were employed by
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him for that purpose. In the instant case he had contracted with the owner of the property to furnish and install certain plumbing equipment in a dwelling house which the owner was constructing and that, for the doing of this work, he was to be paid a stipulated sum, the contract being an entire contract and the price to be paid therefor one lump sum. At the time of his death about sixty per cent of the work contracted for had been completed.
Ordinarily building contracts are not entered into because of the personal services or skill of the contractor and particularly so where the services are to be performed by others and where, as here, it was not contemplated that the contractor should himself perform them. It is only when a building contract is entered into because of the personal services or skill of the contractor that the contract terminates upon the death or disability of the person contracting to perform such services. Hence, the rule is that it is the duty of an administrator to perform the contract of his intestate unless the acts to be performed are of such a personal nature that they would be discharged by the death or disability of the person who has been employed to perform them:
Re Burke,
198 Cal. 163 ( 244 P. 340 , 44 A. L. R. 1341), and authorities cited; also see note in 44 A. L. R. 1345, et seq.
The contract under which the services were performed by plaintiff’s intestate, and by the administrator following decedent’s death, for which this lien is claimed was not for the personal services of the contractor and, therefore, it survived the death of plaintiff’s intestate and, since it did not terminate upon the death of plaintiff’s intestate, the administrator was compelled by law either to fulfill the contract or to be answerable for damages for his failure to
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perforin the contract. Since it was the duty of the administrator to collect the amount due decedent for his part performance of the contract under which this lien is claimed and of plaintiff, as administrator, to complete the contract and to enforce the collection of the combined amount due, it is only reasonable to hold that the administrator may exercise every remedy which his intestate could have exercised had he lived and performed the entire services himself. An examination of the statute shoAvs that it neither expressly nor by necessary implication forbids an administrator from filing a lien for serAdees performed in the construction of a building by his intestate in a case where the intestate might have done so had he lived and, there being nothing in the statute from which it could be reasonably inferred that the laAvmakers intended that the statute should be given that effect, the statute ought not to be so construed.
The only case cited bearing upon this particular question is
Telfer v. Kierstead,
9 Abb. Prac. (N. Y.) 418, where it was held that the right to file a lien under the mechanics’ lien law and to foreclose the lien is not lost by reason of the death of the contractor. Based upon that decision, it is said in section 401, 1 C. J., p. 207, that: “As a general rule the right to file a mechanic’s lien and to proceed for its foreclosure is not defeated by the death of a party.”
For these reasons we think the decree of the lower court enforcing this lien should be affirmed and, finding no error in respect to the other lien, the whole decree should be affirmed.
Bean, C. J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3839520. Public record. Not legal advice.