Basham v. Toors

• Decision Date: 30 March 1889
• Citation: 11 S.W. 282
• Parties: BASHAM <I>v.</I> TOORS.
• Court: Arkansas Supreme Court

11 S.W. 282

BASHAMv.

TOORS.

Supreme Court of Arkansas.

March 30, 1889.

Appeal from circuit court, Pulaski county; J. W. MARTIN, Judge.

T. B. Martin, R. J. Lea, and C. T. Coffman, for appellant. Ratcliffe & Fletcher, for appellee.

COCKRILL, C. J.

This is a suit by Toors to enforce a mechanic's lien. Basham, who was the owner of certain town lots, let a contract to one Moyer to improve a house situated thereon for a stipulated compensation. Moyer got Toors to furnish materials for the purpose. Moyer had not proceeded far with the work, when he discovered that he would lose money by complying with the contract, and abandoned it. He and Basham then agreed to divide the loss equally between them, and Basham took up the work where Moyer had left it, and completed the improvement. Toors presented to Basham an account for the materials furnished to Moyer, and used by him in repairing the house. Three several presentations of the account were made, — one before Basham and Moyer adjusted their dispute; another within 10 days after the adjustment; and the third within 10 days after the work was completed by Basham. The exact time of the first presentation is not shown, and the testimony is conflicting as to whether the account was certified by Moyer when first presented. The court instructed the jury that the presentation was in time, if made within 10 days after Basham had completed the work; refused to permit Basham to show that the market value of the materials was less than the amount certified to by Moyer; and, after a verdict for the plaintiff, condemned the property to be sold to satisfy the lien. Basham appeals. The appeal involves the construction of the act of March 17, 1885, under which the lien is asserted. The act is unnecessarily prolix, and some of its provisions fall under the imputation contained in the observation of BLACKBURN, J., in Reg. v. Scott, 4 Best & S. 374, in respect to an act passed in 1746, to the effect that "the statute, though not drawn in modern times, is somewhat obscure." It is supplemental to the mechanic's lien law as found in chapter 96, subd. 11, Mansf. Dig., and, when read in connection with the provisions found there, its true intent and meaning are more apparent. It was intended, as its terms and title show, for the better protection of "subcontractors," — a term which includes, according to the statutory definition, all persons who are entitled to the lien, except those who have contracted with the owner or proprietor of the land to be charged. Mansf. Dig. § 4422. The last section of the act states that it was not intended to repeal any part of the prior law. An absolute right to a lien was already provided for the subcontractor by virtue of sections 4403, 4404, Mansf. Dig., in every case where he had given notice to the owner or proprietor of his intention to look to the premises for security before performing labor or furnishing materials for the contractor, and his lien was thereafter regulated by the value of the services rendered or of the materials furnished, without regard to the contract between the owner and the first contractor or the amount due thereunder. If notice was not given the owner in advance of furnishing materials or performing labor, the subcontractor's security was limited to the amount due from the owner to the first contractor. If nothing was due, no lien could be acquired. Mansf. Dig. § 4421. Where, therefore, the statutory notice had not been given, the owner could defeat the subcontractor's right to a lien by paying the contractor what the contract called for. It was to supply, in a measure, that supposed defect in the law that the act of March 17, 1885, was enacted. To accomplish that end, the act makes it the owner's duty to withhold from his contractor one-third of the cost of the improvement, or of the amount agreed to be paid therefor, for a period of 10 days after the work under the contract is completed; and to the extent of the sum thus required to be reserved subcontractors may establish liens upon the property that is improved by them, upon complying with the terms of the act, although the notice required by section 4403, supra, has not been given, and notwithstanding the owner has paid the contractor in full. To perfect the lien the act requires the subcontractor to present his claim to the owner with the contractor's certificate that it is correct within the 10 days named. If the contractor refuses to certify the account, the act points out the course to be pursued, but that is not material to the determination of this cause. The owner is required to pay the subcontractors who present their certified claims within the prescribed period out of this reserved fund.

The first question that arises here is, shall he pay the material-man the amount agreed upon between the latter and the contractor, or only the fair market value of the materials? So long as the reserve fund is actually held by the land-owner for the benefit of the subcontractors, the law is plain. It is then a debt due from him to the contractor, and the act provides the means of appropriating it to the payment of what the contractor owes to the laborers and material-men who have contributed to the performance of the contract under which the fund was earned, and in doing so a beneficent end is worked...