
    Decided 25 November, 1901.
    NORTHWEST DOOR CO. v. ROBERTS.
    From Marion: Reuben P. Boise, Judge.
    
      Messrs. W. T. Slater and Wm. Kaiser for the motion.
    
      Mr. G. J. Schnabel, contra.
    
    
      Mr. Henry St. Bayner, for appellant.
    
      Messrs. E. P. Morcom, W. M. Kaiser, and W. T. Slater, for respondents.
   On Motion to Dismiss the Appeal.

Mr. Chief Justice Wolverton

delivered the opinion.

This is a motion to dismiss the appeal. The facts attending the appeal are identical, in effect, with those set forth in the case of Fisher v. Tomlinson, 40 Or. 111, just decided; hence the motion must be overruled. Motion Overruled.

On the Merits.

Mr. Justice Moore

delivered the opinion.

This is a suit to foreclose an alleged mechanics’ lien. The facts are, that on December 8, 1898, the plaintiff, a corporation, upon the order of one W. T. Roberts," furnished him certain sash, doors, mouldings, etc., of the value of $104.20, which the latter delivered to the defendant Tomlinson in pursuance of an agreement whereby it was stipulated that, in consideration of $300, he would furnish the necessary material to complete the front of the first story of a brick building situated on lot four in block one, in Woodburn, Oregon. At the time this material was ordered Roberts, who was engaged as a retail dealer in such goods, wares, and merchandise in Woodburn, was indebted to the plaintiff in the sum of $86.61, and, having secured from Tomlinson the sum of $100 on account of their contract, he, without any direction as to how the money should be applied, paid it to the plaintiff, whereupon the prior bill was settled and the sum of $13.39 credited on account of the material in question, leaving a remainder of $90.81 due on account thereof, to secure the payment of which a claim of lien therefor was duly filed in the office of the clerk .of Marion County, and this suit instituted to foreclose the same. The allegations of-the complaint, answer, and reply are the same as in the ease of Fisher v. Tomlinson, 40 Or. 111, except in the particulars hereinbefore stated. A trial being had the suit was dismissed, and the plaintiff appeals.

An examination of the testimony convinces us that there was not such a privity between Roberts and the owners of said building as to make him their agent, statutory or otherwise, and for the reasons set forth in the case of Fisher v. Tomlinson, just decided, the decree is affirmed. Affirmed.  