Eastern Arkansas Hedge Fence Company v. Tanner

• Decision Date: 11 November 1899
• Citation: 53 S.W. 886,67 Ark. 156
• Parties: EASTERN ARKANSAS HEDGE FENCE COMPANY v. TANNER
• Court: Arkansas Supreme Court

53 S.W. 886

67 Ark. 156

EASTERN ARKANSAS HEDGE FENCE COMPANY v. TANNER

Supreme Court of Arkansas

November 11, 1899

Appeal from Lonoke Chancery Court THOS. B. MARTIN, Chancellor.

Decree reversed, and affirmed.

Norton & Prewett, for appellants; Jno. J. & E. C. Hornor, and Trimble & Robinson, of counsel.

The failure of appellees to perform their part of the contract authorized appellants to treat it as rescinded. 38 Ark. 174. The contract was severable. 1 Beach. Mod. Law of Cont §§ 731, 733. Appellant was entitled to judgment for the work done. 41 S.W. 763. The language, "other improvements," is broad enough to cover the improvement made by appellants. Sand. & . Dig., § 4731. The mechanics' lien law should be liberally construed. 30 Ark. 568; 32 Ark. 69; 49 Ark. 478. The appellees, being the defaulting parties, appellants are entitled to their lien the same as if the work were completed. 15 Am. & Eng. Enc. Law, 78; 120 Mass. 58. Equity has jurisdiction to enforce this lien. 30 Ark. 568; 56 Ark. 544.

OPINION

BUNN, C. J.

This is a suit, originally at law, on two promissory notes; answer setting up failure of consideration; amended complaint claiming mechanics' lien, and cause transferred to equity; and, upon the pleadings and exhibits and depositions of witnesses, the cause was tried, and the chancellor dismissed the amended complaint for want of equity.

The plaintiff had contracted to plant and set a hedge fence of bois d'arc for Tanner Bros., and they (Tanner Bros.) were to perform certain duties by way of trimming, pruning and cultivating the hedge while the same was growing to completion. The contract was one to be performed in installments or periods conforming to the growth of the plants and the seasons, and the payments by the defendants were to be made by installments, or periodically, as the work progressed. When payments were due for any of the work done if not made in cash, notes were given. Such were the notes sued on, given in January, 1892, and one due in March and the other in November next following.

The defendants, having made one or two of the early payments, gave two notes for the next, and when these became due and had remained unpaid for some time, the plaintiff declined to work further on the contract, because defendants had failed to make the payment, according to the terms of the contract and in July, 1895, about two and a half years after the last of the two notes became due, brought this suit for the work they had done under the contract.

The contract was evidently a divisible one, in the sense that it contemplated periodical part performance on the part of the plaintiff, and corresponding payments by installments on the part of the defendant, as well as a continuous cultivation, dressing and care of the hedge by them, as the owners, until the hedge should be considered completed or "grown," in the common acceptance of the term.

A majority of us are of the opinion that the giving of the notes in issue, and other evidence, show that up to the time the last one was due, and for some time after, there was no complaint of the defectiveness of plaintiff's work, but that the sole trouble then was that defendants were unable to raise the money to pay off the notes; and that the...