Cook v. Moore

• Decision Date: 27 March 1922
• Docket Number: 256
• Citation: 239 S.W. 750,152 Ark. 590
• Parties: COOK v. MOORE
• Court: Arkansas Supreme Court

239 S.W. 750

152 Ark. 590

COOK v. MOORE

No. 256

Supreme Court of Arkansas

March 27, 1922

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor reversed in part.

STATEMENT OF FACTS.

John A Moore filed a suit in the chancery court to enforce a mechanics' lien as principal contractor in the sum of $ 1,330.75 on a house and certain lots in the city of Forrest City, Ark., belonging to J. M. Gilliam.

The Van Houten Lumber Company also filed a suit in the chancery court to assert a lien on said house and lots in the sum of $ 204.87 for material furnished and used in remodeling said house.

Mrs. V Y. Cook filed a separate suit in the chancery court against J. M. Gilliam to foreclose a mortgage on said house and lots given to secure the sum of $ 4,000 which Mrs. Cook had loaned Gilliam to remodel and repair said house.The causes were consolidated and tried together in the chancery court.

J. M Gilliam had been cashier of the Planters' Bank in Forrest City, Ark., during the year 1920, and for several years prior thereto.He applied to Mrs. V. Y. Cook of Batesville, Ark through her brother, W. J. Lanier, for a loan $ 4,000.Lanier was the intimate friend of Gilliam, and the latter told the former that he intended to use the money in buying materials and paying a contractor to enlarge and remodel his home in Forrest City.

During the early part of May, 1920, Lanier delivered to Gilliam Mrs. Cook's check for $ 4,000 drawn on the Planters' Bank, and requested Gilliam to execute a note and mortgage to secure the same at once.Through oversight Gilliam neglected to execute the note and mortgage.In the meantime Gilliam proceeded with the work of repairing his house and used the amount of Mrs. Cook's check in doing the same.Subsequently on July 8, 1920, J. M. Gilliam and wife executed a note in favor of Mrs. V. Y. Cook in the sum of $ 4,000 and a mortgage on their home and the lots on which it was situated to secure the same.Neither Mrs. Cook nor Lanier knew that the money had already been used for repairing the house or that work had been begun on the house at the time the note and mortgage in question were executed.

According to the testimony of J. M. Gilliam, he entered into a contract with John A. Moore to repair and remodel his home.The work was begun on May 12, 1920, and completed in eight weeks.Gilliam was confined to his house during the months of October and November, 1920, on account of a sore foot, and says that no repair work was done on the house during those months.

Mrs. Louise G. Gilliam corroborated the testimony of her husband.According to her testimony, the tiling on one hearth was changed from red to gray because the red tiling was irregular and defective when it was laid.

According to the testimony of John A. Moore, he began work on the house on May 15, 1920, by tearing out the porches and old rooms, and continued to work on the house at intervals until November 4, 1920, when the work was finally completed.It was agreed that he should be paid on the basis of eight per cent. commission on the entire cost of work done, labor performed and materials furnished.According to the testimony of Moore, there remained due him on the whole work $ 1,330.75.On November 4, 1920, some screen wire was put over the gable ventilators, and this was the last work done on the house.A part of the painting was done during the month of October.The screen wire that was put over the gable ventilators was bought by Moore from the Van Houten Lumber Company for the purpose of being placed over them.Moore filed his mechanics' lien under the statute of January 12, 1921.The mechanics' lien on the Van Houten Lumber Company was filed under the statute on January 14, 1921.An itemized account of the materials furnished by it and used in remodeling and repairing the house was also exhibited and proved in evidence by the Van Houten Lumber Company.The last item filed by it was the screen wire used on the gable ventilators, and this item was furnished on November 4, 1920.No part of the $ 4,000 borrowed by Gilliam from Mrs. Cook has been paid.

Other testimony will be stated or referred to in the opinion.

Judgment was rendered in favor of the parties for the sums respectively due them, and a lien was declared in favor of John A. Moore and the Van Houten Lumber Company which was superior to the mortgage lien of Mrs. V. Y. Cook.

The decree provided for a sale of the property with directions to apply the proceeds first to the satisfaction of the mechanics' liens of John A. Moore and of the Van Houten Lumber Company, and the remainder to the satisfaction of the mortgage of Mrs. V. Y. Cook.

To reverse that decree, Mrs. Cook has duly prosecuted an appeal to this court.

Decree affirmed.

W. J. Lanier, for appellants.

The account filed by Moore did not comply with the statute.Kirby's Digest, sec. 4970;102 Ark. 541.

Materials furnished must be used and become a part of the building, before a lien can be acquired.84 Ark. 560;99 Ark. 293.Liens are creatures of the statute, and must be perfected and enforced according to its provisions.114 Ark. 1;117 Ark. 626.The lien must be filed within ninety days after the last delivery.119 Ark. 461;119 Ark. 43;115 Ark. 320;C. & M. Digest, sec. 6922;32 Ark. 59.

Plaintiff Moore was only entitled to a lien for work and labor actually performed by him.23 Ark. 327;27 Ark. 564;43 Ark. 168;50 Ark. 244;69 Ark. 23;71 Ark. 334; C. & M. Dig., sec. 6848;32 Ark. 68;12 Cyc. 1610;27 Cyc. 83;18 R. C. L. 910.

C. W. Norton, for appellees.

The contractor's and materialman's liens date from the beginning of the contract.C. & M. Dig., § 6911;56 Ark. 608.

The deed of trust under which appellant claims became a lien at the time of filing same.Sec. 7381, C. & M. Digest.

This case is not within sec. 6909, but is within sec. 6911, of C. & M. Digest.

The contractor is entitled to his lien, not only for his own labor, but for the labor of those under him.99 Ark. 293;27 Cyc. 84.

OPINION

HART, J.(after stating the facts).

The chancery court erred in holding that John A. Moore had a mechanics' lien for $ 1,330.75.According to his own testimony, he made a contract to repair Gilliam's house on a basis of eight per cent. commission on the entire cost of the labor performed and materials furnished.So far as the record discloses, nearly all of the amount claimed by Moore represents the profits made by him in repairing the house and the amounts paid by him to laborers and mechanics for working on it.

Therefore he had no lien under the statute.The court had the precise question before it so far as the repair or construction of railroads is concerned in Little Rock, Hot Springs & Texas Railway Company v. Spencer,65 Ark. 183, 47 S.W. 196.The statute in that case provided that "every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fixtures or other thing toward the equipment, or to...