Blake v. Scott

• Decision Date: 18 October 1909
• Citation: 121 S.W. 1054
• Parties: BLAKE v. SCOTT.
• Court: Arkansas Supreme Court

121 S.W. 1054

BLAKE v. SCOTT.

Supreme Court of Arkansas.

October 18, 1909.

Appeal from Nevada Chancery Court; Jas. D. Shaver, Chancellor.

Suit by H. V. Scott against G. R. Blake, in which the City of Prescott was made a party. From a decree for plaintiff against defendant Blake, and a dismissal of the action against the City of Prescott, defendant Blake appeals. Affirmed.

Hamby & Haynie, for appellant. H. B. McKenzie, for City of Prescott.

FRAUENTHAL, J.

The plaintiff below, H. V. Scott, instituted this suit against the defendant, G. R. Blake, upon an account for building a concrete sidewalk and curb. In effect, it was an action for a balance claimed due upon the account. The total amount due for the walk and curb was $273.90, and upon that the defendant had paid $132.45, leaving a balance of $145.45, for the recovery of which amount this suit was brought. The defendant denied that he had employed the plaintiff to build the sidewalk and curb, but had only employed him to build the walk; that the cost of the walk amounted to $132.45, which he had paid; and that the balance of $141.45 was the cost of the curb for which he claimed that he was not liable. In his answer he also alleged that some years before the building of this walk and curb the city of Prescott had dug a ditch in front of his property and graded up the street at that place, and thereby made an elevation in front of his property and next the street, which extended in depth from 12 inches to 3 feet from the top of the sidewalk to the bottom of the ditch, and that the plaintiff built a wall or curb of that depth in front of the sidewalk, and that this suit is for the price thereof. He claimed that he did not employ plaintiff to build the wall or curb, that the necessity for building same was created by the city of Prescott in digging the said ditch and elevating the grade of the sidewalk, and that the city of Prescott was on this account liable for the price of building the wall or curb. He asked that the city of Prescott be made a party to the suit, which was done. The city of Prescott filed its answer, in effect, denying that it had made any contract with any one for the doing of the work which was involved in the suit, and denied that it was in any manner liable therefor. Thereupon the circuit court of its own motion, and without any objection made by any party to the suit, transferred the action to the chancery court. The chancery court without objection of any of the parties assumed jurisdiction of the cause and proceeded to trial of the case. It rendered a judgment in favor of plaintiff and against defendant, Blake, for the amount of the claim, and dismissed the action as against the city of Prescott. Blake prosecutes this appeal.

It appears from the evidence that the defendant, Blake, owned a lot situated in a block along which the city of Prescott by ordinance required sidewalks to be built by the various owners of the lots. The lot of defendant was quite low, and some years prior to the building of this sidewalk the city of Prescott had dug a ditch and raised the grade before defendant's property as set out in his said above answer. The plaintiff was engaged in building sidewalks along the block for other owners of lots, and in building such walks he also built for the other owners the curb or retaining wall in the front of such walks down to the bottom of the ditch, for all of which work these other owners were paying. When, in doing this work, for the other owners, the plaintiff was near to the property of the defendant, the defendant requested the plaintiff to proceed and do the work of building the walk before his property as he was doing for the other owners; and about the only other definite understanding the parties had was as to the terms of payment. Nothing was definitely said as to the exact amount or extent of the work. In order to build the sidewalk, it was necessary to build the curb or wall as a part thereof so as to retain the earth upon which the walk rested, and the top of the curb became also a part of the walk. Upon receiving request from defendant to build the sidewalk in front of his property, the plaintiff began with building the curb or wall, and the defendant was present and saw the plaintiff doing every part of the work. The only person or authority that requested the plaintiff to do the work was the defendant, Blake, and it was only at his request that the plaintiff proceeded to do any of the work, and only at defendant's request that he did the entire work. This the defendant knew, and, if he did not expect or intend to pay for the work of building the curb or wall, he did not make any statement to that effect to plaintiff. In the progress of the work the defendant, Blake, made payments from time to time to plaintiff; and, after the entire work of building the curb or wall and walk had been completed, and the plaintiff presented his claim for the balance due on said entire work, the defendant for the first time told the plaintiff that he thought the city of Prescott should pay for the curb or wall, and suggested that plaintiff sue the defendant, Blake, and said city for the cost of the curb or wall, and whatever the court said he would do.

The plaintiff claims that he understood from the agreement of his employment by defendant that he was to do the work of building the walk and curb or wall as constituting the sidewalk in the same manner as he...