Terry v. Klein

• Decision Date: 04 March 1918
• Docket Number: 192
• Citation: 201 S.W. 801,133 Ark. 366
• Parties: TERRY v. KLEIN
• Court: Arkansas Supreme Court

201 S.W. 801

133 Ark. 366

TERRY v. KLEIN

No. 192

Supreme Court of Arkansas

March 4, 1918

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor affirmed.

Decree affirmed.

David D. Terry, for appellants.

1. The lien claim was not a just and true account under our lien statute. Kirby's Digest, § 4981; 103 S.W. 518; 78 N.W. 344; 86 Mo. 277; 60 S.W. 64; 10 N.W. 338; 11 S.W. 225; 8 Mo.App. 587; 80 Va. 573.

2. A sub-contractor should itemize his account for a lien. 2 Jones on Liens, (3d Ed.) § 1416; 59 W.Va. 370; 44 Pa.St. 47; 12 Phil. 458; 168 Pa.St. 634; 244 Id. 6; 48 N.E 956; 87 Pa.St. 142; 180 Id. 168; 57 Ark. 284; 72 Me 106; 117 Ark. 626.

3. No notice of intention to claim lien for labor was served. 2 Jones Liens (3 ed.), §§ 1419, 1412, 1323; 152 S.W 119.

4. Only a lien for materials actually used under contract with principal contractor can be asserted. 51 Ark. 309.

A partnership is not entitled to a lien for labor performed by its employees. Kirby's Digest § 4970; 65 Ark. 183; 80 Id. 516; 71 Id. 338.

The lien claim was defective because it did not contain requisite averments. Kirby's Digest § 4976, 4981; Rockel on Liens, § 100; 57 A. 957; 47 La.Ann. 533; 30 Mo.App. 595; 59 N.W. 110; 39 P. 509; 32 Oh. C. C. 16.

The sub-contractor was only entitled to his pro rata of amount due to principal contractor. 77 Ark. 156; 107 Id. 245.

The claim was not properly verified. It was before a Notary Public of a foreign State who was a woman. 2 Jones Liens (3d Ed.) § 1481; 73 Ala. 390; 42 Ark. 103; 107 Id. 272; Kirby & C. Dig. §§ 3465, 7160.

The partners were not made parties plaintiff. 67 Ark. 27; 91 Id. 10; 93 Id. 447; 114 Id. 464.

Cockrill & Armistead, for appellees.

1. The account filed complied with the statute. Kirby's Dig. § 4981; 30 Ark. 568; 49 Id. 478; 51 Id. 309; 51 Id. 302; 54 Id. 93; 56 Id. 544; 57 Id. 284; 83 Me. 22, A. 388; 97 Mo. 365; 27 Cyc. 188.

It was a just and true account and was for materials actually furnished and used and all proper credits were given.

The claim should not be pro rated. 85 Ark. 410; 122 Id. 522.

The claim was properly verified. Kirby's Dig. §§ 3465, 4981; 7 L. R. A. 149; 44 N.W. 308; 47 S.E. 965. There is no proof that the Notary was a woman.

There is no defect of parties. The partners' names appear in full.

On the cross-appeal the two items should have been allowed.

OPINION

MCCULLOCH, C.J.

Appellants are the owners of two adjoining lots with a frontage of 100 feet on Main Street in the City of Little Rock, and in the year 1912 they let a contract to the Shenk Construction Company (an Oklahoma corporation) for the construction of a building to be occupied as a department store. The contractor proceeded with the work of constructing the building, but abandoned the building before the work was completed, and appellants had to complete the building themselves. Said principal contractor while engaged in carrying out the contract purchased material from appellees, who were manufacturers of structural and ornamental iron work in the State of Oklahoma. Appellees furnished certain materials which were used in the building by the principal contractor, and this is an action instituted by them against appellants to enforce the lien on the building and lot for the amount of the unpaid account. There are two gross items in the account which, according to the testimony adduced by appellants, represent separate contracts made by them with the principal contractor for iron work used in the building. At the time the principal contractor abandoned the job one of the contracts between the present claimant and the principal contractor had not been completed, but was subsequently completed under a contract between appellants as owners and appellees. The work of completing the contract was paid for by appellants and a credit of $ 285.00 was given on the account. Appellants defended against the asserted lien on numerous grounds.

In the first place it is contended that there is no lien because an itemized account was not filed, it being contended on behalf of appellants that the statute requires an itemized sworn account, and that the failure to itemize the account defeats the lien. The statute provides that in order to make the lien effectual the lienor must "file with the clerk of the circuit court of the county in which the building, erection or other improvement, to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit." Kirby's Digest, sec. 4981.

Conceding that the words "just and true account" mean, as ordinarily construed, an itemized account, (Brooks v. International Shoe Co., 132 Ark. 386, 200 S.W. 1027) this court has decided that failure to itemize the account does not defeat the lien. Wood v. King, 57 Ark. 284, 21 S.W. 471. In reaching that conclusion the court followed the rule which had been repeatedly announced here that the lien of a mechanic or material furnisher "springs out of the appropriation and use by the land owner of the mechanic's labor or the furnisher's materials, and not from the taking of those formal steps which the statute enjoins for the preservation and assertion of the lien and for giving notice to others of its existence and extent;" that the statute is highly remedial in its nature and that "when the controversy is between the holder of the lien and the proprietor of the land, an exact compliance with the statute at all points is not indispensable." Anderson v. Seamans, 49 Ark. 475, 5 S.W. 799.

It is argued that the decision in Wood v. King, supra, relates to a controversy between a material furnisher under contract with the owner himself, and that the statute ought not to be given that effect in a controversy between a sub-contractor and the owner. The answer to that contention is that there is only one statute on the subject which applies to liens asserted by sub-contractors, as well as those asserted by principal contractors, and that the statute must be given the same interpretation in both cases. In fact, we see no reason why the rule should be different in the two classes of cases, for, after all, the design of the law-makers was to provide a method for giving public notice of an assertion of the lien and the extent thereof. That design is fully carried out by giving the statute such an effect as will require a notice which will apprise the public of the extent of the claim. Of course, when it comes to an enforcement of the claim by a suit in court, then for purposes of defense the owner may insist upon the presentation of an itemized claim. Brooks v. International Shoe Co., supra. But in testing the sufficiency of the account so far as concerns the preservation of the lien, we hold that it is not essential that the account filed be an itemized one.

The affidavit to the claim was made before and was certified by a notary public in the State of Oklahoma, and it is contended that the affidavit was void because it appears on its face that the notary is a woman. No evidence was adduced to prove the sex of the notary public, but it is assumed that the officer was a woman because the name appeared to be one ordinarily used as a woman's name. Statutes of this State provide that an affidavit may be made out of the State before a notary public. Kirby's Digest, sec. 3153. The fact that the name signed to the certificate appeared to be that of a woman is not by any means conclusive that the officer was of that sex. However, the Constitution of Oklahoma (Schedule, Sec. 6) expressly provides that women may hold the office of notary public, and it is our duty in giving full faith and credit to the laws of our sister State to recognize the validity of a provision in the organic law prescribing the qualifications for public office.

One of the members of appellee's firm testified in the case, and appellant insisted upon the production of the whole of appellee's account from their books against the principal contractor, which embraced many items not involved in this controversy. It appears from the testimony that the lessee of appellant's who was to occupy the building made certain additions to the building under contract with the Shenk Construction Company and that purchases were made by the contractors from appellees in carrying out that contract. No lien, however, was asserted for those items. The account exhibited by ...