Arkmo Lumber Company v. Cantrell

• Citation: 252 S.W. 901,159 Ark. 445
• Decision Date: 18 June 1923
• Docket Number: 48
• Parties: ARKMO LUMBER COMPANY v. CANTRELL
• Court: Arkansas Supreme Court

252 S.W. 901

159 Ark. 445

ARKMO LUMBER COMPANY v. CANTRELL

No. 48

Supreme Court of Arkansas

June 18, 1923

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor affirmed.

Affirmed.

Coleman & Gantt, Gray & Morris and Frauenthal & Johnson, for appellants.

There was a valid verbal contract entered into after the execution of the lease, whereby Scroggin was authorized by McClung to purchase materials and make the repairs on the McClung farm instead of the landlord making them, as he agreed to do which contract was virtually performed by Scroggin. Proof of such contract violated no rule of evidence. 10 R. C. L. 1033, § 225; 6 R. C. L. 922, § 306; 56 Am. St. Rep. 656; 113 Ark. 15; 85 Ark. 605; 225 S.W. 294. This is true notwithstanding provision that no verbal contract for repairs should be binding on lessor; that there should be no liability against him for repairs unless by his written authority therefor. Bishop on Contracts, §§ 776, 667; 62 Miss. 113; 113 Ky. 7, 67 S.W. 40, 101 Am. St. Rep. 345. Verbal contract not within statute of frauds, having been performed by Scroggin. While Scroggin's testimony about the subsequent verbal agreement may be inadmissible against executrix of McClung's estate (§ 4144, C. & M. Digest) in support of his claim, it would nevertheless be competent on behalf of appellant. The chancellor's findings are clearly against the preponderance of the testimony. The court erred in not sustaining appellant's motion to quash all depositions taken on behalf of appellee, administratrix. 107 Ark. 153; 9 N.E. 283; 40 P. 954; 29 Ga. 82; 16 Gray (Mass.) 161. These seven depositions taken at the instance of appellee all purported to give conversations with deceased, J. H. McClung, in reference to his business affairs with Scroggin, in Scroggin's absence. Strait's deposition was also inadmissible. Deposition of Scroggin and Wood of conversations with deceased relative to his relations with Scroggin were admissible, being to declarations of decedent against interest. 93 Ark. 214; 120 S.W. 755; 110 S.W. 382; 97 Ark. 574; 51 Ark. 530; 45 Ark. 481; 123 Ark. 226. The court also erred in dismissing cross-complaint of appellant Scroggin against appellee as administratrix. Secs. 1194, 1195, C. & M. Digest; 134 Ark. 311; 135 Ark. 53; § 1198, C. & M. Digest, also § 1204. Notice of filing lien was properly given. 93 Ark. 279. Even though the improvement and repairs had been made after the date when the written contract went into effect, which is not the case, the verbal agreement subsequently made having been performed by Scroggin, the doctrine of estoppel would apply. 69 Ark. 513; 52 Ark. 207; 106 P. 839.

Johnson & Frauenthal, for appellant Scroggin.

It was not necessary to file a verified claim against the administratrix in order to foreclose or enforce a mechanic's lien against property owned by decedent. It is like a mortgage in this regard. 32 Ark. 397; 32 Ark. 407; 28 Ark. 506; 30 Ark. 135; 32 Ark. 443; 59 F. 722. An affidavit was made to the account of the Arkmo Lumber Co., in perfecting its lien in conformity to § 6922, C. & M. Digest. 90 Ark. 340; 97 Ark. 296. Appellant lumber company had nothing to do with the written lease contract. It sold the materials to Scroggin, and could prove by him that he was the agent of McClung, and, as such, bought the materials. 10 R. C. L. 120, § 213; 93 Ala. 70; note 17 L. R. A. 272; 8 Ann. Cas. 347; 31 Ark. 411. If Scroggin was not the agent of McClung in the purchase of the materials, or exceeded his authority, then he is personally liable to the lumber company. 92 Ark. 535; 2 Ark. 338; 48 Ark. 188; 21 R. C. L. 914, § 93. The judgment should be affirmed against Scroggin if this court holds he was not the agent of the lumber company in purchasing the materials.

Moore, Smith, Moore & Trieber, for appellee.

All the testimony of appellant tending to show a verbal or oral agreement by McClung authorizing Scroggins to have repairs or improvements made at McClurg's expense. The lease contract was required by the statute of frauds to be in writing, and no alleged verbal or oral modifications of it could be valid. 106 P. 839; 73 A. 752; 60 N.E. 139; 33 S.E. 28; 158 P. 13; 57 N.Y. 646; 50 Mo.App. 275; 181 N.W. 214; 133 P. 623; 1 Beach on Contracts, § 577; Browne on Statute of Frauds, § 411; 29 Am. and Eng. Enc. of Law, 824. In none of the four Arkansas cases cited by appellant was involved the question of the right to verbally modify after its execution a written contract required by the statute of frauds to be in writing. Counsel attempt to avoid the effect of our position by arguing that the repairs and improvements claimed to have been made by Scroggin constitute a part performance that will take the so-called verbal contract of modification out of the statute of frauds, but such part performance, in order to do this, must be referable solely to the contract. 75 Ark. 526; 63 Ark. 100. The rule attempted to be invoked by counsel for Arkmo Lbr. Co. in its supplemental brief is not applicable to facts of this case, its contention is refuted by language of 10 R. C. L. 1021; 30 N.Y.S. 1040. Scroggin was not authorized by McClung, as his agent or otherwise, to make improvements or repairing or purchase materials therefor, and appellant lumber company is not entitled to any lien for materials furnished. C. & M. Digest, § 6906. Arkmo Lumber Co. in furnishing materials could at most have been no more than subcontractor, and could not fix a lien, not having given the required ten days' notice. C. & M. Digest, §§ 6935, 6917. It was an issue of fact as to whether or not McClung modified the lease contracts by authorizing Scroggin to make repairs and improvements to be paid for by him. The testimony of Dr. Green and Mrs. Cantrell as to McClung's exclamations and statement, when bills for repairs presented, were to the res gestae. 3 Wigmore on Evidence, 1747. His belief at the time is a circumstance to be taken into consideration in determining the question of fact at issue. 2 Enc. of Evidence, 296, 333-4, 385; 100 Ark. 269; 66 Ark. 500. Decedent's statements as testified to by Strait not self-serving declaration. 10 R. C. L. 983; 23 N.E. 271. Arkmo Lumber Co. did not comply with requirement of the statute for fixing lien by filing a correct account in time, with description of the land to be charged with lien. C. & M. Digest, § 6922; 119 Ark. 43. Neither appellant probated his claim, as law requires. C. & M. Digest, §§ 106, 101; 69 Ark. 62. Arkmo Lumber Co., not having complied with the statute for fixing a lien, could only be a general creditor, and, having failed to comply with § 106, C. & M. Digest, is not entitled to judgment at all. Scroggin cannot set up a counterclaim barred by statute of nonclaim in defense of a suit by administratrix.

Frauenthal & Johnson, Coleman & Gantt and Gray & Morris, in reply.

Property was sufficiently described to comply with requirements of § 6922, C. & M. Digest, for fixing lien. 27 Cyc. 159, note 90; 3 A. S. R. 262; 45 A. S. R. 218; 29 P. 1090. Account properly probated. 97 Ark. 296. The itemized account attached to Scroggin's answer and cross- complaint was verified and proof sufficient of the claim. It is singular that appellee's counsel say nothing about the validity of an independent verbal agreement, as we claim, but spend all their force insisting that we are trying to modify a written lease contract by subsequent parol agreement. The answer raised no question relative to the improvements or the sufficient description of the land upon which improvements located. 27 Cyc. 159; 18 R. C. L. 948, § 84; 20 Enc. of Law, 422; 14 Ann. Cas. 688. Mechanic's lien law liberally construed. 49 Ark. 475; 51 Ark. 302; 133 Ark. 366; 54 Ark. 93; 129 Ark. 59; 63 Ark. 367. Affidavit to Arkmo Lumber Company's account a substantial compliance with verification for probate of claims against estate.

WOOD, J. MCCULLOCH. C. J., dissenting.

OPINION

WOOD, J.

This action was instituted in the Jefferson Chancery Court by the Arkmo Lumber Company, hereafter called company, against the appellee, as executrix of the estate of J. H. McClung, deceased, to recover from the estate upon an account in the sum of $ 992.75, for lumber and material furnished McClung at the request of his alleged agent, D. H. Scroggin. The company alleged that the material furnished was used in the construction of certain tenant houses and barns and improvements situated on the lands of McClung, which are described in the complaint, consisting of 1,380 acres in Jefferson County, Arkansas. The company alleged that within three months after the account became due it filed in the office of the clerk of the circuit court the account, duly verified, together with a description of the property upon which the lien was claimed, after giving ten days' notice in writing to D. H. Scroggin, agent, of such claim. The company prayed for judgment and that a lien be declared on the lands described, and that, unless the judgment be satisfied, the lands be sold, etc.

The company filed a supplemental complaint against the appellee in which it reiterated the allegations in its original complaint. It moved to have Scroggin made a party, which was done. The company, in its complaint against Scroggin, alleged that, in the year 1919, Scroggin was in the possession of the lands of McClung, and represented that he had authority to purchase the material for making the repairs and improvements on the lands; that the company furnished the material at Scroggin's request, and had taken necessary steps to establish its lien. It prayed in the alternative that, if it were determined that Scroggin was not the agent of McClung and not authorized by him to purchase the lumber, it have judgment against Scroggin for the amount...