PORTLAND ELECTRIC & PLUMBING CO. v. Simpson

656 P.2d 394 (1983)

61 Or.App. 266

PORTLAND ELECTRIC & PLUMBING CO., an Oregon Corporation, Respondent-Cross-Appellant, v. Donald A. SIMPSON, a General Partner of Holly Tree Associates, Ltd., Appellant-Cross-Respondent, Wells Fargo Realty Advisors, Inc., and Donald Patterson, Dba Mt. Scott Electric & Construction, Defendants.

No. 41-169; CA A21377.

Court of Appeals of Oregon.

Decided January 12, 1983.

Petition for Reconsideration October 27, 1982.

James B. Richardson and Rueppell, Crow & Richardson, Beaverton, for petition.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

On Appellants Petition for Reconsideration October 27, 1982.

*395 WARDEN, Judge.

Defendant Simpson had petitioned the Supreme Court for review of our decision in Portland Elec. & Plum. v. Simpson, 59 Or. App. 486, 651 P.2d 172 (1982). The petition for review constitutes a petition for reconsideration by this court. ORAP 10.10. We grant the petition but adhere to our former opinion.

Each of defendant's checks contained a stamped form of release of lien rights, providing that endorsement of the check constituted execution of the release. The check containing the release in issue was dated March 10, 1980, and was in the amount of $37,260. We held that the release was effective only as to a lien for materials delivered through February 25, 1980.

In reviewing the exhibits again, in the process of our reconsideration, we note that the release form on the back of the check dated March 10, 1980, does not run in favor of this defendant. The release on each of the other checks runs to:

"HOLLY TREE ASSO. LTD. 5355 MURRAY BLVD. S.W. BEAVERTON, OREGON 97005 or the owner thereof * * *."

The release on the back of the check dated March 10, 1980, runs to:

"WOODLAND PARK PROPERTIES LTD. 280 12th STREET HILLSBORO, OREGON 97123 or the owner thereof * * *."

"Woodland Park Properties Ltd." is not a party to this action and neither it nor its owner is identified in the record. Assuming arguendo that the release operated to release all liens of plaintiff up to the date of the check, it could not run in favor of defendant because he was not the party named in the release.

Reconsideration granted; former opinion adhered to.