Buckley v. Taylor

• Decision Date: 30 March 1889
• Citation: 11 S.W. 281,51 Ark. 302
• Parties: BUCKLEY v. TAYLOR
• Court: Arkansas Supreme Court

11 S.W. 281

51 Ark. 302

BUCKLEY v. TAYLOR

Supreme Court of Arkansas

March 30, 1889

APPEAL from Sebastian Circuit Court, Fort Smith District, JOHN S LITTLE, Judge.

This was an action to enforce a mechanic's lien for labor performed by the plaintiff, on a building erected on the defendant's lot. The work for which the lien was claimed was done by the plaintiff as the employee of one Stultz, who was the principal contractor. Stultz abandoned the work and disappeared before the building was completed. The defendant by his answer, denies that he was notified of the plaintiff's intention to work on the building. He also denies that a copy of the plaintiff's account was filed with the circuit clerk or presented to him as required by the statute. The answer also in effect alleged that the defendant had paid Stultz for all the labor which the latter performed or caused to be performed, on the house, including the work done by the plaintiff. The statement of account exhibited with the complaint is a copy of one previously filed in the office of the circuit clerk. It is made out against the defendant and verified by an affidavit which states that the work was done under a contract made by the plaintiff with the defendant. But the testimony on the part of the plaintiff shows that the work charged for was done by him under a contract with Stultz and that it was done after he had notified the defendant that he was at work on the building at $ 2.25 per day and "would look to him" for his wages. No written statement of the account as presented to the defendant as provided by sec. 4404 Mansf. Dig. But before filing the account in the clerk's office, the plaintiff made to the defendant an oral statement of the amount due for his labor and demanded of him its payment, which was refused on the ground that payment for the work had already been made to Stultz. The court, against the objection of the defendant, permitted a copy of the account as filed in the clerk's office and exhibited with the complaint to be read in evidence.

The verdict and judgment were for the plaintiff and the defendant appealed.

Sec. 4403 Mansf. Dig. provides that every sub-contractor * * * shall give notice to the owner of his intention to labor on an improvement and that after the labor is done he shall settle with the contractor therefor and present the settlement in writing, certified by the contractor, to the owner, and shall within sixty days from the time the labor shall have been performed, file a copy of such settlement with the clerk of the circuit court. * * * Secs. 4404 and 4422 of the Digest are as follows:

Sec. 4404: In case the contractor shall for any reason fail or refuse to make and sign such settlement in writing with the sub-contractor when the same is demanded, then the subcontractor shall make a just and true statement of work and labor done or things furnished by him, giving all credits, which he shall present to the owner or proprietor, his agent or trustee, and shall also file a copy of the same, verified by affidavit, with the circuit clerk, as provided in sec. 4403.

Sec. 4422: All persons furnishing things or doing work provided for by this act, shall be considered sub-contractors, except such as have contracts therefor directly with the owner, proprietor, his agent or trustee.

Affirm.

J. B. McDonough, for appellant.

1. To support the lien of a sub-contractor, there must be a contract between the owner and contractor and between the latter and the laborer or material-man. Both are necessary to the lien.Phillips Mech. Liens, sec. 58; Mansf. Dig., sec. 4403-4.

2. The account filed in this case was one between the subcontractor and the owner, between whom there is no privity. But this created no lien because sec. 4406 of Mansf. Dig. was not complied with. The account filed being made out to enforce the lien of a principal contractor, cannot be made the basis of a sub-contractor's lien. Sec. 4403, Ib.; Phillips Mech. Liens, secs. 342-3-5, 354; 43 Wis. 551; 29 Ind. 291.

3. No statement in writing was ever furnished the owner of the land. Mansf. Dig., sec. 4404; 53 Mo. 423; Phillips Mech. Liens, sec. 343; 29 Cal. 283; 29 Iowa 262; 38 Mo. 188; 49 Iowa 250; 2 Swan, (Tenn.) 313.

4. The acts being in derogation of the common law, should be strictly complied with. 5 Dutcher, 475; Phillips Mech. Liens, secs. 14-15-18-19; Houck on Liens, sec. 73, and note (v); 16 Cal. 127.

5. There has been even no substantial compliance with the law. Mansf. Dig., sec. 4403-4; 43 Wis. 551; 52 Ala. ; 24 Ill. 110; Phillips Mech. Liens, sec. 338; 20 Ark. 458; 29 Cal. 283.

The notice must be in writing. 48 Miss. 360; 38 Mich. 587; 54 Penn., 192; 2 Greene, (Iowa) 508; 8 S. & R., 58; 35 N.Y. 96; Phillips Mech. Liens, sec. 338, 63 a; 45 Iowa 675; 55 Ib., 489; 54 Ga. 571; 1 E. D. Smith, 654; 77 N.C. 78; 38 Mo. 24.

6. The contractor was not made a party. Phillips Mech. Liens, sec. 397-8.; 2 Minn. 256; Mansf. Dig., 4415-4424.

E. E. Bryant, for appellee.

1. The appellee substantially complied with the requirements of the statute, and that is sufficient. 30 Ark. 573; Phillips Mech. Liens, sec. 16.

2. Appellant had notice, and he paid the contractor at his own risk, and it would be unjust to allow him to defeat the lien by mere irregularities, or for want of a literal compliance with the statute. Phillips Mech. Liens, sees. 16-17-18 and 57.

OPINION

COCKRILL, C. J.

Every person entitled to a mechanic's lien is a contractor or a sub-contractor within the meaning of these terms as used in the mechanic's lien act. One who performs labor for a contractor is a sub-contractor, [Mansf. Dig., sec. 4422], and is entitled to the benefits of the act on complying with its provisions in reference sub-contractors. If his labor has been done upon the improvement after notice to the owner or proprietor of his intention so to labor and of the probable value thereof as contemplated by sec. 4403 of Mansfield's Digest, subsequent payment therefor by the owner to the contractor will not defeat the lien of the laborer.

In the case under consideration, the plaintiff was a laborer employed by one who had contracted with the owner, who is the defendant, to construct a building for him. There was sufficient testimony to sustain the verdict, to the effect that the plaintiff had notified the owner that he was at work on the building at a given sum per day, and that he would continue his labor, but would hold him...