Arkansas Elec. Co. v. Cone-Huddleston, Inc.
| Decision Date | 19 October 1970 |
| Docket Number | No. 5--5321,CONE-HUDDLESTO,INC,5--5321 |
| Citation | 249 Ark. 230,458 S.W.2d 728 |
| Court | Arkansas Supreme Court |
| Parties | ARKANSAS ELECTRIC COMPANY, Appellant, v., et al., Appellees. |
Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, for appellant.
Wright, Lindsey & Jennings, Little Rock, for appellees.
Arkansas Electric Company sued the three appellees, Weir Brothers Electric, Inc., Cone-Huddleston, Inc., and Commercial Union Insurance Company of New York. Cone-Huddleston was the prime contractor on a construction project for the Lonoke United Methodist Church. Commercial National furnished the performance bond for the prime contractor. Weir Brothers was the sub-contractor for the installation of electrical supplies. The suit brought by Arkansas Electric was for electrical supplies ordered by Weir Brothers. Arkansas Electric obtained judgment for the full amount claimed as against Weir Brothers; but as to the other two appellees a small credit was allowed for materials which the court determined did not go into the job. Prior to the final judgment after trial there was a default judgment for the full amount entered against Commercial Union, along with statutory penalty and attorney's fee. The setting aside of that judgment is one of the issues raised by Arkansas Electric on appeal. The other two points for reversal concern the allowance (as to the prime contractor and its surety) of two credits totaling $21.62, the result of which was to defeat appellant's claim for penalty and attorney's fee.
First, the default judgment. Commercial Union was served the second day after the suit was filed; and Cone-Huddleston was served twelve days later. Commercial timely requested its insured, Cone-Huddleston, to file an answer in the former's behalf and to defend, as it was contractually obligated to do. Of course the defenses would be identical and Commercial Union's liability would be predicated on Cone-Huddleston being liable. Cone-Huddleston was agreeable to Commercial Union's request and filed a joint answer; however, the answer was out of time insofar as Commercial Union was concerned. That was because of the twelve day differential in service heretofore mentioned, of which Cone-Huddleston was not aware. In other words, Cone-Huddleston calculated the time to answer on the basis of service upon it rather than using the date Commercial Union was served.
The court concluded that Commercial National in good faith had been led to believe an answer would be timely filed in its behalf by Cone-Huddleston, which was not done because 'Cone-Huddleston erroneously assumed that it had twenty days from November 18 (its date of service) in which to file an answer for itself and Commercial Union.' The trial court is authorized by Ark.Stat.Ann. § 29--401 (Repl.1962) to set aside a default judgment 'upon showing of excusable neglect, unavoidable casualty or other just cause.' It is an action which addresses itself to the discretion of the court. We are unable to say that the trial court abused its discretion. We are also asked to say whether Cone-Huddleston's answer in its behalf inured to the benefit of Commercial Union. We need not reach that question since we hold that the action of the trial court under § 29--401 was not improper.
Appellant Arkansas Electric next insists that the court erred in admitting certain evidence of credits. This project began in March 1967. All invoices tendered Weir Brothers for materials supplied between March and December 4, 1967, were paid. Arkansas Electric sued for materials invoiced between December 4 and the following March and it is contended by Arkansas Electric that no credits could be claimed for invoices allegedly mischarged to the church project prior to the invoices sued upon. Arkansas Electric emphasizes that all those 'prior invoices' had been paid.
One of the questioned invoices listed 200 electrical split adapters, costing $29.25. The other invoice was for two electrical circuit covers...
To continue reading
Request your trial
-
Kohlenberger, Inc. v. Tyson's Foods, Inc.
...328 S.W.2d 501; Barkis v. Bell, 238 Ark. 683, 384 S.W.2d 269; Easely v. Inglis, 233 Ark. 589, 346 S.W.2d 206; Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W.2d 728. We need not consider whether DeMarco was justified in relying upon his assumptions or whether his failing to ......
-
Winters v. Lewis
...Barkis v. Bell, 238 Ark. 683, 384 S.W.2d 269; Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501. See also, Arkansas Electric Co. v. Cone-Huddleston, Inc., 249 Ark. 230, 458 S.W.2d 728; Sparks v. Shepherd, 255 Ark. 969, 504 S.W.2d 716. And the filing of any responsive pleading, even one whic......
-
Burns v. Madden
...365, 516 S.W.2d 592 (1975); Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W.2d 236 (1973); Ark. Elect. Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W.2d 728 (1970); Barkis v. Bell, 238 Ark. 683, 384 S.W.2d 269 (1964); and Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249......
-
Robertson v. Barnett
...out of any relationship of indemnity, master and servant, or principal and agent such as was involved in Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W.2d 728 (1970). POINT III. Appellants contend that since they did not know about the voluntary non-suit against Poole until......