Armbrust v. Henry, 77-261
| Decision Date | 20 March 1978 |
| Docket Number | No. 77-261,No. 1,77-261,1 |
| Parties | Allen ARMBRUST, d/b/a Allen Armbrust Construction Company, Appellant, v. Val HENRY, Appellee |
| Court | Arkansas Supreme Court |
John I. Purtle, Little Rock, for appellant.
Andrew L. Clark, North Little Rock, for appellee.
The appellant, a building contractor, pursuant to a contract between the parties, built a residence for the appellee, for which the appellee paid more than $38,500. In the written contract the contractor guaranteed that the entire job would be done in a neat workmanlike manner. The appellee brought this action for damages for breach of that guarantee, alleging improper workmanship in six particulars. The circuit court referred the case to a master, who heard a number of witnesses and made findings of fact disallowing three of the plaintiff's claims and allowing the other three in the total amount of $4,008.60. This appeal is from a judgment upholding the master's report in all respects.
At the outset we are confronted by what proves to be a fatal defect in the record before us. No stenographic report was made of the hearing before the master. Neither the oral testimony heard by him nor the exhibits that were introduced are before this court. The appellant did not supply the deficiency by preparing a statement of the evidence, as the statute allows. Ark.Stat.Ann. § 27-2127.11 (Repl.1962). In the circumstances the record was not abbreviated by agreement or without objection, a procedure also permitted by the statutes. § 27-2127.6. The burden was on the appellant to bring up a record sufficient to show that the trial court was wrong.
In this situation we presume indeed, we really have no choice except to presume that the missing testimony supported the trial court's findings (or here, those of the master). Phillips v. Ark. Real Estate Commn., 244 Ark. 577, 426 S.W.2d 412 (1968). The appellant argues, primarily, that the master's various findings are not supported by any evidence, but that argument must fail for want of a record. He also suggests that the appellee's claims are barred by the fact that he paid the contract price before bringing this suit. No such defense was presented by the pleadings nor does it appear to have been raised in any way in the trial court. We cannot, with no knowledge whatever about the proof that was introduced, hold that this secondary contention is well taken.
Affirmed.
We agree. HARRIS, C....
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Bailey v. Rahe
... ... Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust Constr. Co ... 142 S.W.3d 643 ... v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978). There is no ... ...
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Bailey v. Rahe, ___ S.W.3d ___ (Ark. 1/22/2004), 02-1316
...328 Ark. 121, 942 S.W.2d 825 (1997); King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust Constr. Co. v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978). There is no evidence that Bailey sought more specific findings from the trial court. There is no motion for further fi......
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Winters v. Elders, 95-1069
...to show that the chancellor was wrong. See King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); A.R.A.P. In Hedge v. State, 317 Ark. 104, 877 S.W.2d 90 (1994), the appellant asked us to issue a writ of certiorari to the ......
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Estate of Spears, Matter of
... ... See King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, ... 263 Ark. 98, 562 S.W.2d 598 (1978); Phillips v. Arkansas Real Estate Commission, ... ...