McFadden v. Stark
Citation | 22 S.W. 884 |
Parties | McFADDEN v. STARK et al. |
Decision Date | 10 June 1893 |
Court | Supreme Court of Arkansas |
Appeal from circuit court, Ouachita county; Charles W. Smith, Judge.
Action by R. H. McFadden against T. J. Moore and N. H. Stark to enforce a subcontractor's lien. A demurrer to the complaint was sustained, and from the judgment entered thereon in favor of defendants, plaintiff appeals. Reversed.
Thornton & Smead, for appellant. B. W. Johnson and Bunn & Gaughan, for appellees.
This action is based on the act of the general assembly of this state entitled "An act for the better protection of mechanics, artisans, material men, and other subcontractors," approved March 17, 1885, and was brought on the 8th of December, 1890, to enforce a lien for labor performed and materials furnished in the construction of a building on certain lots owned by the defendants Stark and Moore. The complaint in the action, as amended by interlineation, is as follows:
"R. H. McFadden, Plaintiff, vs. T. J. Moore, N. H. Stark, Chris Johnson, Defendants. The plaintiff, R. H. McFadden, states that the defendants are justly indebted to him in the sum of nine hundred and eight dollars and seventy-nine cents for labor performed and materials used in the construction of a building owned by defendants T. J. Moore and N. H. Stark, and known as the `Stark and Moore Building,' and situated on parts of lots 14, 15, 16, and 17 of the old courthouse square in the city of Camden, county of Ouachita, and state of Arkansas, and more definitely described as follows, to wit: `A lot of land situated on the corner of Adams and Jefferson streets, fronting on Adams street 59 feet and 9 1/3 inches, and running back the width of the front with Jefferson street 110 feet to Ouachita alley; said parcel of land being the southwest corner of the old courthouse square.'
On the margin of the complaint is the following amendment: "And at the time of furnishing the material to Contractor Johnson he notified said Stark and Moore of his intention of furnishing said material and performing said labor on said building, and the value thereof."
The defendants Stark and Moore moved to strike out the marginal amendment, and demurred to the complaint, both of which the court sustained, and rendered judgment against plaintiff in favor of Stark and Moore, adjudging that plaintiff take nothing by his complaint as against them, and for costs, and plaintiff appealed.
The defendant Chris Johnson made no defense, and judgment was rendered against him in favor of plaintiff for the amount of the account sued on.
1. The motion was improperly sustained. The statutes expressly authorize the amendment of pleadings by inserting allegations material to the case. The marginal amendment was made by leave of the court, and was material, as will hereafter appear in this opinion.
2. Appellees insist that their demurrer was properly sustained, because the contract between them and Johnson was not set out in the complaint. Under the laws of this state, a contract with the owner of the ground upon which a building or other improvement is constructed is essential to the establishment of a mechanic's lien in favor of a subcontractor. Under the act of April 25, 1873, he is limited in his lien to the amount "originally contracted for between the employer and contractor;" and under the act of March 17, 1885, the owner is required to reserve one-third of the contract price for his benefit; and it is only when the owner fails or refuses to do so, or to promptly pay the amount due him when his claim is presented in due time and properly certified, or fails or refuses to properly indorse his claim or hold out the amount due thereon out of...
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