
    [Argued June 7;
    decided June 26;
    rehearing denied July 24, 1893.]
    JOSHUA HENDY MACHINE WORKS v. PACIFIC CABLE CO.
    [S. C. 33 Pac. Rep. 403.]
    Mechanics’ Lien — Notice—Variance.— A notice of lien must correctly describe the property on which the lien is claimed. No lien can be enforced on lots in “Carter's Addition to Portland ” when the notice described the property as lots in “ Market Street Addition to Portland,” —there is a fatal variance between the claim and the proof.
    Multnomah County: Loyal B. Stearns, Judge.
    This was a suit by the Joshua Hendy Machine Works, a corporation, to enforce a material man’s lien on certain real property in the City of Portland. The Portland Cable Railway Company entered into a contract with the Pacific Cable Construction Company (called at head of the case the Pacific Cable Company), to construct a cable railway, and the Joshua Hendy Machine Works took a subcontract for furnishing the engines and pumps for the power house at the foot of Portland Heights. Some question arose about the payment for the work, and this suit was commenced against the Cable Pailway Company, the Construction Company, and the Portland Sayings Bank as the trustee holder of certain mortgage bonds. The original notice of lien described the property sought to be charged as “Lots three (3), four (4), five (5), and six (6), in block one (1), in Carter’s Addition to the City of Portland,” and the same description was carried into the complaint. At the trial, it developed that some of the blocks in Carter’s Addition had originally been lettered; that block B had been subdivided and replatted many years before as Market Street Addition; and that Carter’s Addition and Market Street Addition each had a block one containing lots numbered three, four, five, and six. At this point, a motion in proper form was submitted to the trial court for leave to amend the description in the complaint by striking out “ Carter’s ” and' putting in its place “ Market Street.” This motion was supported by the certificate of the referee, to the effect that there was testimony before him tending to show that the property sought to be charged with the lien was in Market Street Addition, and not in Carter’s Addition. There is a further statement in this certificate, to the effect that the power house, owned and operated by the defendant and appellant, the Portland Cable Railway Company, was situated on lots three (3), four (4), five (5), and six (6), in block one (1), of Market Street Addition to the City of Portland; that the said defendant owned no other power house in the County of Multnomah; and that the work done and material supplied under the contract referred to in the complaint was done upon and supplied for the said power house, so situated .in the said Market Street Addition. This motion was allowed, and the case then proceeded to judgment, the referee finding in favor of the plaintiff upon all points; and that report, after argument upon exceptions to it, was confirmed by the trial court, and a decree entered foreclosing the lien on the lots in Market Street Addition. The Portland Savings Bank, holding a mortgage that was admitted to have precedence of the alleged lien, and the Cable Railway Company appeal. The Pacific Cable Construction Company, the original contractors, do not appeal.
    Reversed and dismissed.
    
      Thomas N. Strong, for Portland Savings Bank.
    The original notice of mechanics’ lien on file in the evidence shows that it was a lien on the lots in block one, Carter’s Addition, and certainly no order of court can so authorize an amendment as to make an untrue copy superior to the original, especially when the original is on file when the amendment is made. The order could not have intended any such absurdity, and certainly cannot have any such effect. This lien notice described certain lots in Carter’s Addition. After the description of the land comes the description of the manner in which the demand arose, viz: “That heretofore, to wit, on the eleventh day of October, 1889, the said Joshua Hendy Machine Company made and entered into a contract with the Pacific Cable Construction Company for the building and erection of four boilers in the power house situate on the land of said Portland Cable Construction Company for an agreed price of eight thousand two hundred and ten dollars.” This reference to a power house, which is no part of the description of the premises affected, but merely a description of the labor done, and the fact that the power house was situated on some land belonging to the Cable Railway Company (there is no statement that the power house is situated on these lots) is relied upon to shift this lien from block one, Carter’s Addition, a well-known subdivision of land, to block one, of Market Street Addition, a different and equally well-known subdivision. In other words, the searcher of titles must disregard the direct statement of the lien notice, and must search the records to find what lands are really owned by the party sought to be charged, and must also go upon the ground and find out upon what tract the improvements or structures are really situated. The question naturally suggests itself, why not dispense with the lien notice entirely, and make the structure itself the notice of lien?
    
      Osdan Franklin Paxton (John W. Paddock on the brief), for Portland Cable Railway Company.
    The original complaint and the original notice of lien described the property sought to be charged as certain lots in Carter’s Addition to Portland; that at the trial the complaint was amended so as to make the description read Market Street Addition. To support this amended complaint the plaintiff offered in evidence the original notice of lien, which was admitted over our objection. There is a fatal variance between the allegation and the proof, in that the notice describes an entirely separate and different piece of property from that described in the amended complaint.
    The decree finds “ that the plaintiff nas a lien upon lots three (3), four (4), five (5), and six (6), in block one (1), in Market Street Addition to the City of Portland, and the power house situated thereon,” and forecloses such lien. Plaintiff introduced evidence at the trial, against defendant’s objections, going to show that the Portland Cable Railway Company had but one powerhouse, and that the same was situated upon the said lots in Market Street Addition, for the purpose of showing that the Market Street Addition property was the property intended to be described in the notice of lien. This was error on two grounds: First, because the original notice of lien described the lots as situated in Carter’s Addition, and the description there made must stand; and, second, because the original notice does not claim lien on any power house. The language is that “the Joshua Hendy Machine Works * * * proposes to and does claim a lien on the following described property, to wit: Lots three (3), four (4), five (5), and six (6), in block one (1), in Carter’s Addition to the City of Portland. * * * That the said lien is claimed on the following described property, to wit: Lots three (3), four (4), five (5), and six (_6), in block one (1), in Carter’s Addition to the City of Portland, * * * under our statute it is the building upon which the labor is performed or materials furnished, which is subject to the lien, with a sufficient amount of the land necessary for the use of the building. This lien notice does not claim any lien upon any building, nor describe any building, nor state that there is any building on the land described in the notice, nor that the railway company’s power house is on the land described in the notice. The lien notice must not only describe the land sought to be charged, but it must also show that the building upon which the work was done is situated on the land. Failure to do this is fatal: Warren v. Quads, 29 Pac. Eep. 827; Kezartee v. Maries, 15 Or. 538.
    There is a class of cases where the description does not show on its face the location of the property, and a party is permitted to show what the description means. The evidence in such cases is received, not for the purpose of importing into the writing an intention not expressed therein, but to elucidate the meaning of the words employed: 1 Am. & Eng. Enc. of Law, 532. A mere mistake is not a latent ambiguity, and when there is no latent ambiguity no extrinsic evidence can be received: Idem, 533.
    
      Milton W. Smith ( Walter S. Perry on the brief), for Joshua Hendy Machine Works.
    The variance between the description set out in the claim of lien and alleged in the complaint, and the description shown in the proof, is immaterial here because the controversy is between original parties, and no new parties or rights that can be affected by the result have intervened. The owner of the land, the appellant, has not been induced or persuaded by the original mistake in the description to change or alter his position with reference to the lien in any manner. Even if the notice can be held bad as to contesting lienors (which we do not regard as settled law at all), it is fair and proper that it be held good as to the owners; and this upon the same principle that a deed void as to third parties by reason of a defective description is yet good as to the parties themselves. This fact, viz, that the contention is between the owner and subcontractor, and not between contesting lienors, is insisted upon in all the cases cited below; and the courts, under such circumstances, appear to find no difficulty in granting appropriate relief.
    In McLean v. Young, 2 McArthur, 184, the description was, “lots A, B, C, D, and E, in the subdivision of original lot No. 2, in square 791, recorded in the office of the surveyor,” etc. The lots sought to be charged with the lien were actually situated in square 971, and that was the square recorded at the place of reference.
    In Schmidt v. Gilson, 14 Wis. 558, the description was, “ N. W. ]: of N. E. 1 of section 18 ”; when the true description was, “N. W. of S. E. J of section 7.”
    In DeWitt v. Smith, 63 Mo. 263, the lien, as filed, described the building as situated on “lots 19 and 20, in block 2,” in a certain addition to Kansas City, the error consisting in the misdescription of the block in question, which was “ 20 ” and not “ 2.” It being shown that the owner had no other lots in the addition named, except lots 19 and 20, in block 20, and there being no conflicting claimants to be injured by the correction, the amendment was allowed. See also Cleverly v. Mosely, 148 Mass. 280; Martin v. Simmons, 11 Cal. 411 (18 Pac. Rep. 535); Russell v. Hayden, 40 Minn. 88.
    The supreme court of Indiana has thus clearly stated the law applicable to the description of real estate in a deed, mortgage, or claim of lien: “Where the description is so uncertain as to afford no reliable clue to a more definite and correct description, no title passes or lien is acquired, as the case may be; but that where the description, though too defective and insufficient of itself to identify any particular tract of land, can, nevertheless, be aided by proper averment and rendered definite and certain by the introduction of extrinsic evidence in support of such averment, it will be held to be sufficient for the purpose intended and a true description will be supplied at the hearing.”
   Per Curiam.

This is a suit brought by the plaintiff to foreclose an alleged mechanics’ lien. The complaint alleges that the plaintiff has a lien upon lots 8,4,5, and 6, in block 1, in Market Street Addition to the City of Portland. To prove this allegation, plaintiff introduced in evidence, against defendant’s objection, a notice claiming a lien upon lots 3, 4, 5, and 6, in block 1, in Carter’s Addition to the City of Portland, which is a different parcel of land. This is a fatal variance between the allegation and the proof. The notice of lien does not describe the property set forth in the complaint.

The decree is eeveesed and the complaint dismissed.  