McFadden v. Stark

Citation22 S.W. 884
PartiesMcFADDEN v. STARK et al.
Decision Date10 June 1893
CourtSupreme 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.

BATTLE, J.

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.'

"That said labor was performed and material furnished at the request of the defendant Chris Johnson, who had contracted with his codefendants to construct said building, and by him used in the construction of said building. That he presented an itemized account of said labor and material to said defendant and contractor, Chris Johnson, who certified to the correctness of the items, amounting to eight hundred and forty-eight dollars and seventy-nine cents, but refused to certify to the items amounting to sixty dollars. That thereupon plaintiff made affidavit to the correctness of the last-named items, and also said refusal, and within ten days after the completion of the contract for said building by said Chris Johnson, on November 24, 1890, plaintiff, on 29th day of November, 1890, presented said itemized account, amounting to nine hundred and eight dollars and seventy-nine cents, to defendants T. J. Moore and N. H. Stark, certified and sworn to as above, and demanded payment of the same from them, which was by each of them refused, and at the same time refused to indorse on the same the time of presentation, or to hold back the whole or pro rata part thereof. That thereupon, and within ten days after the completion of the contract for said building by defendant Johnson, to wit, on the 2d day of December, 1890, plaintiff filed in the office of the circuit clerk of Ouachita county, in which said building is situated, said itemized account so certified and sworn to, with an affidavit attached thereto, showing the presentation of said account to said contractor, Johnson, and his action thereon, and the action of plaintiff in making affidavit to said disputed items amounting to sixty dollars, and his subsequent presentation, within ten days after completion of said contract by Contractor Johnson, of said account to defendants T. J. Moore and N. H. Stark, and his demand of payment of the same by them, and their refusal, as well as their refusal to indorse on the same the time of presentation and to hold out the full or pro rata share of said account. Said affidavit also contained a correct description of the building in the construction of which said labor and materials in said account mentioned were used, and the ground on which the same is situated. A copy of said account, sworn to as above, is filed herewith, and asked to be made a part of this complaint. Plaintiff says that he has a lien upon said building and the ground on which the same is situated for said labor and materials. Wherefore he prays judgment for the sum of nine hundred and eight dollars and seventy-nine cents and costs against defendant Chris Johnson; that a lien be declared upon said building and land for the payment of the same; and for other relief." 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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