Duncan v. Davis and Earnest, Inc., 85-261
| Decision Date | 04 March 1985 |
| Docket Number | No. 85-261,85-261 |
| Citation | 285 Ark. 143,685 S.W.2d 509 |
| Parties | Herbert DUNCAN and Silersteen Duncan, Appellants, v. DAVIS AND EARNEST, INC. d/b/a Davis Discount and General Sheet Metal Co., Appellee. |
| Court | Arkansas Supreme Court |
James C. Cole, Malvern, for appellants.
G. Christopher Walthall, Malvern, for appellee.
Davis and Earnest, Inc., hereafter referred to as "Davis," claims a materialman's lien on property owned by the Duncans. The notice required by Ark.Stat.Ann. § 51-608.1 (Supp.1983) to be given by the materialman to the owner prior to supplying material, and ordinarily necessary to perfection of the lien, was not given. Davis claimed, and the trial court held, that the notice was not required because the transaction or transactions fell within an exception to the notice requirement. The exception is created by Ark.Stat.Ann. § 51-608.5 (Supp.1983) in the case of a "direct sale" by the materialman to the property owner.
The question on this appeal is whether the determination that the statutory exception to the notice requirement applied was clearly erroneous, i.e., clearly against the preponderance of the evidence. As we are required to interpret the statute, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29 l.c.
The statute, § 51-608.5, provides that the notice requirement of § 51-608.1 does not apply if there is a direct sale by the materialman to the property owner. It further provides that "[a] sale shall be a direct sale only if the owner or his authorized agent personally orders such materials from the lien claimant."
The chancellor's findings were that the notice was not required because the Duncans had dealt personally and directly with Davis. The judgment says Davis "... by virtue of its direct contact with the defendants, has availed itself of the statutory exception to the requirement for notice...." ...." However, the primary position of Davis in this appeal is that the Duncans made their builder, Leard Burks, their "authorized agent" and thus entitled Davis to the exception to the notice requirement. As there was no finding on the agency point by the trial court, we assume Davis is asking us to say the chancellor reached the correct result for the wrong reason and should be affirmed notwithstanding the reason given.
We will first explore whether the findings of the chancellor were clearly against the preponderance of the evidence and then whether the record supports Davis's "authorized agent" theory.
The Duncans hired Burks to build a house in Hot Spring County while they continued to reside in Ohio, making occasional visits to Arkansas.
The evidence of direct dealing between Davis and the Duncans cited by Davis was that the Duncans went to the store several times and picked out some items to be used in the construction of their home. Davis contends that the Duncans "ordered" the items, but the very exhibit to which they point to support the contention is just a list made by a Davis employee of items such as a bathtub, sink and windows. It contains no prices or delivery specifications. The only name on the paper is "L. Burks," the builder.
There was also testimony that on the occasion of selecting the materials Mr. Duncan left his business card with a Davis employee, saying to let Burks have whatever was needed and to call him in the event of a problem and that "money is no problem."
By contrast, the Duncans' Exhibit 3 consists of twelve invoices totaling $11,992.31, the amount of the lien sought. On each of the invoices, the customer's name is shown to be Leard Burks. All but one show delivery to Leard Burks or a carpenter on the job, and the one exception does not show who the recipient was.
A Davis employee testified he gave the statutory lien notice form to Burks to be signed by the Duncans but that it was not returned. Mr. Duncan testified he had refused to sign the form.
The trial court's finding that Davis dealt directly with the Duncans...
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...F.Supp. at 646 (citing National Lumber Co. v. Advance Dev. Co., 293 Ark. 1, 732 S.W.2d 840, 846 (1987), and Duncan v. Davis & Earnest, Inc., 285 Ark. 143, 685 S.W.2d 509 (1985)). The court found that galvanized steel was shipped to and received by Georgia-Pacific, but all Westside invoices ......
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Hammerhead Contracting & Dev., LLC v. Ladd
...18–44–115. Citing National Lumber Co. v. Advance Development Co rp ., 293 Ark. 1, 732 S.W.2d 840 (1987) and Duncan v. Davis & Earnest, Inc., 285 Ark. 143, 685 S.W.2d 509 (1985), it asserted that in determining whether notice was required, it is necessary to consider whether the materials an......
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National Lumber Co. v. Advance Development Corp., 86-202
...to, and received by" the property owner and whether an invoice and monthly statement were sent to the owner. Duncan v. Davis & Earnest, Inc., 285 Ark. 143, 685 S.W.2d 509 (1985). Here, there was testimony from which the chancellor could have found that the materials were ordered by McGowan ......
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