Beckley v. Miller

• Decision Date: 07 November 1910
• Citation: 131 S.W. 876
• Parties: BECKLEY v. MILLER et al.
• Court: Arkansas Supreme Court

131 S.W. 876

BECKLEY v. MILLER et al.

Supreme Court of Arkansas.

November 7, 1910.

Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.

Action by M. H. E. Beckley against A. J. Miller and others. Judgment for plaintiff for less than the relief demanded was entered, and both parties appeal. Reversed and remanded for judgment on the verdict.

The plaintiff, M. H. E. Beckley, brought this suit against the defendants, A. J. Miller, W. N. Adams, W. E. Adams, E. M. Hall, R. E. Major, and J. M. Adams, to recover the sum of $506.40, alleged to be due him by the defendants for labor done and materials furnished in the erection of a school building in Arkadelphia. No service was had upon the defendant A. J. Miller. The other defendants answered, denying all the material allegations of the complaint; and the cause thereafter proceeded against them.

The facts, so far as material to a determination of the issues involved, are substantially as follows:

On the 29th day of April, 1907, A. J. Miller and the Arkadelphia special school district No. 1 of Arkadelphia, Ark., entered into a written contract whereby the former agreed to erect a school building for the latter according to the terms and specifications set out in the contract. Miller was required to execute a bond conditioned for the faithful performance of said contract, and the defendants herein signed the same as his sureties. Miller made a contract with the plaintiff to furnish the material and perform the labor necessary in placing blackboards on the walls of said school building. According to plaintiff's testimony, Miller wrote him for prices on the blackboard work on October 7, 1907, and again on January 4, 1908. Plaintiff made him prices by letter dated January 6, 1908, and the terms were accepted by letter from Miller dated January 15, 1908. Plaintiff furnished the blackboard consisting of 3,376 feet at 15 cents per square foot, making a total of $506.40 as per the contract. The material was shipped about February 1, 1908, and the work of placing the same on the walls of the building was completed about March 25, 1908. No objection is made to the character of the work or of the materials; but it is the contention of the defendants that it was the contract of Miller and that they are not liable.

The plaintiff adduced evidence at the trial tending to show that Miller abandoned and forfeited his contract, and that his bondsmen took charge of the work and completed the building under its terms; that they were in charge at the time the labor was done and the materials furnished by him were placed in the building; that the value of the service performed, together with the materials used, was $506.40.

Ned Burson, who did the work for plaintiff, testified: "Mr. E. M. Hall was present as superintendent of the work during the time that I worked on the job. He stated to me, in conversation, that there was a possibility that Mr. Miller would not be able to finish the job under the contract, and, if he did not do so, the bondsmen would complete the contract. He further stated to me that he was one of the bondsmen on Mr. Miller's bond. After I completed the blackboards Mr. Hall and I made the measurements, and he approved the measurements of the blackboard spaces."

E. M. Hall, for the defendants, testified that in December, 1907, Miller got behind with his bondsmen several thousand dollars, and that about the 1st of February, 1908, he took charge of the building as superintendent of Miller and continued as such until the completion of the building about five months later. But on cross-examination he admitted that he took charge of the work and completed it with an understanding on the part of both Miller and the bondsmen.

Evidence was adduced on the part of the defendants tending to show that the value of the work done and materials furnished by plaintiff was only $214.

The record shows the following:

"The court on its own motion gave to the jury the following instructions, being in the form of queries, No. 1 and No. 2, same being all the instructions given by the court in this cause, to wit:

"`No. 1. Did the defendant Hall in the representation of his own interest or in his own interest and his codefendants together commit any fraud on the plaintiff by which plaintiff was induced to furnish and install the blackboards in place in the school building?

"`No. 2. What was the cash market value of the blackboards in place in the school building at the time they were installed?'"

Additional instructions were presented to the court by the defendants, but it does not appear from the record that any exceptions were saved to the action of the court in refusing same. The record further shows the following: In answer to query No. 1, the following verdict or finding was by the jury returned, to wit: "...