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State v. Andersen

February 1, 1973

STATE EX REL TOWN CONCRETE PIPE, INC., APPELLANT,
v.
ANDERSEN ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge.

David J. Buono, Portland, argued the cause for appellant. With him on the brief were Norman L. Lindstedt and Buss, Leichner, Lindstedt & Barker, Portland.

Warde Erwin, Portland, argued the cause for respondents. With him on the brief were Erwin & Gilbert, Portland.

Denecke, Justice. O'Connell, Chief Justice, and McAllister, Tongue, Howell and Bryson, Justices.

Denecke

This case is an attempt by the plaintiff, Town Concrete Pipe, to hold the defendant General Insurance Company, the surety on the bond of a joint venture performing a state construction project, for a debt owed plaintiff for materials furnished a subcontractor of the joint venture. The trial court, sitting without a jury, held for the surety and plaintiff appeals.

In 1969 the legislature amended the statute and

provided that before an unpaid materialman of a subcontractor could recover from the general contractor or its surety, the materialman had to notify the general contractor within 90 days after delivery that the materialman was supplying the subcontractor. ORS 279.526(2). This law became effective August 22, 1969. Plaintiff began deliveries in June 1969 and finished February 28, 1970. No notice was given until February 18, 1970. One issue is, to what deliveries does the notice requirement apply?

The statute contains no language indicating whether the legislature intended the act to apply retroactively. The legislative history likewise provides no insight.

In Joseph v. Lowery, 261 Or 545, 495 P2d 273, 274-275 (1972), we quoted with approval from Kempf v. Carpenters & Joiners Local Union, 229 Or 337, 341-342, 367 P2d 436 (1961), as follows:

"'* * * Unless retroactive construction is mandatory by the terms of the act it should not be applied if such construction will impair existing rights, create new obligations or impose additional duties with respect to past transactions * * *.' 229 Or at 343."

We then explained the law:

"The cases discussed above clearly indicate that this court has refused to give retroactive application to the provisions of statutes which affect the legal rights and obligations arising out of past actions. This is without respect to whether the change might be 'procedural or remedial' or 'substantive' in a strictly technical sense. The labels were applied after the court decided whether it ...


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