Harkrider v. Howard

• Decision Date: 22 April 1918
• Docket Number: 307
• Parties: HARKRIDER v. HOWARD
• Court: Arkansas Supreme Court

203 S.W. 14

134 Ark. 575

HARKRIDER v. HOWARD

No. 307

Supreme Court of Arkansas

April 22, 1918

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

W. D Brouse, for appellant.

1. E L. Cotton was a necessary party. 30 Cyc. 31, 141-2.

2. The testimony was prejudicial and the instructions erroneous. 197 S.W. 1177; Kirby's Dig., § 5999. Harkrider has been paid for all the time spent for which he had a lien. Part of the time he had no lien, as his labor did not contribute to producing the staves. 71 Ark. 334; 69 Id. 23.

3. For error in the instructions, see 71 Ark. 334; 199 S.W. 73. They did not properly present appellant's theory.

Henry Berger, for appellee.

1. Appellee had a lien. 128 Ark. 280; 71 Id. 338.

2. There is no error in the instructions and the verdict is sustained by the evidence. No valid defense was shown. Appellee was not a party to the settlement between Hamlen & Son and Harkrider, nor was he paid the amount of his lien. Kirby's Dig., chap. 101 (128 Ark. 280), settles this case.

STATEMENT OF FACTS.

In the month of May, 1916, one E. L. Cotton had one Starks making staves for him. He became dissatisfied with Starks and told one Harkrider that he wanted him to finish up the job. Harkrider replied that he knew nothing about the stave business, and for that reason would not undertake it alone. Cotton then suggested to Harkrider that he get Mr. Howard who was an experienced stave man, to go in with him. Harkrider and Howard agreed to make staves on halves. Cotton agreed to pay them $ 20 for oil staves and $ 40 for wine staves per thousand, stacked on the yard. After Harkrider had worked making staves about two weeks, Cotton insisted upon Harkrider getting rid of Howard, telling Harkrider that Howard was a rascal and that the Hamlen Stave Company, to whom Cotton had contracted to sell staves, would not stand for him. Harkrider then agreed to give Howard $ 3 per day for his labor. The kind of work done by Howard was taking up bolts, stacking staves, and sawing some staves except a part of the day. He also stacked staves on the yard when he was not sawing, and filed the saws at noon and evening. It was in the month of June when Harkrider agreed to pay Howard $ 3 per day. The work of getting out the staves was finished about the tenth of July. All told Howard worked forty-two days including the time he was working as a partner with Harkrider. He worked some twenty, twenty-six or twenty-eight days after Harkrider agreed to pay him $ 3 per day for his services. Harkrider was paid by Hamlen & Son, who purchased the staves from Cotton, the balance due on the staves. Howard was not paid anything for his labor in connection with the staves. He brought this action in the justice court to recover for work and labor on the staves, the sum of $ 126 alleged to be due him from Harkrider. He had a specific attachment issued and levied upon twenty thousand staves as the property of Harkrider and J. H. Hamlen & Son, upon which he claimed a lien for his labor, all under the provisions of subdivision 3, chapter 101, of Kirby's Digest. No written answer was filed, but the testimony adduced showed that issue was joined on the allegations of the complaint and affidavit. The defendants contended under the evidence that the plaintiff did not work forty-two days in producing the staves; that part of the time charged for was work done by plaintiff as a partner, and part of the work charged for was not such as to entitle plaintiff to a laborer's lien; that there was no definite showing as to the time when his labor contributed to the manufacture of the staves as a laborer and not as a partner; that if plaintiff ever had a lien for any amount same was lost or plaintiff was estopped from asserting same by his conduct in not notifying the defendant J. H. Hamlen & Son, or any one connected with it, that he had or claimed a lien when it was his duty to speak; that if he had a lien the attachment could not be sustained because E. L. Cotton, the party with whom the contract was made for the manufacture of the staves, was not made a party.

The court at the request of appellee and over the objection of appellants granted among others the following prayers for instructions:

"1. The court instructs...