Harris v. Graham & Bordley

• Decision Date: 18 May 1908
• Citation: 111 S.W. 984
• Parties: HARRIS et al. v. GRAHAM & BORDLEY.
• Court: Arkansas Supreme Court

111 S.W. 984

HARRIS et al. v. GRAHAM & BORDLEY.

Supreme Court of Arkansas.

May 18, 1908.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Suit by Graham & Bordley against H. C. Harris and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with instructions.

This was a suit by Graham & Bordley, as contractors, to obtain judgment and enforce a lien for erecting a dwelling house for H. C. Harris and his wife, Lillie R. Harris. The contract price of the house was $2,755, and was to have been built by Sample & Hoaglan, whose performance of the contract was guaranteed by Graham & Bordley; and, Sample & Hoaglan failing to proceed with the work, it was assumed by Graham & Bordley. The contractors claimed a balance of $2,605 due them for the work of each of the said contractors, Sample & Hoaglan, and themselves. They filed a lien in substantial conformity with the statute, and brought suit for the said amount and to enforce said lien. The defendants denied that the house had been built pursuant to the plans and specifications, setting forth, with much detail, various and divers defects which they alleged occurred justifying them in rejecting the house as one built pursuant to their contract. The defendants further alleged that Mrs. Harris owned the property upon which the building was to be erected in her own right, and denied that she had entered into any contract with the plaintiffs or with Sample & Hoaglan or either of them, and denied that she was indebted to them or that the property was subject to lien. The contract was signed by H. C. Harris, and not by Mrs. Harris. The title to the lot stood in the name of Mrs. Harris. There was evidence adduced tending to prove that the contract was substantially complied with, and evidence tending to prove that it was not substantially complied with. There was also evidence that Harris notified the contractors before the completion of the work that it was not satisfactory, and he would not accept it, and for them to remove their material from his ground. There was sufficient evidence to have sustained a verdict either way on the issue of substantial compliance.

The record discloses the following facts: After the jury had the case submitted to them, and the argument of counsel closed, the jury returned into court, and announced the following verdict: "We, the jury, find for the defendants." And, upon being asked if that was their verdict, one of the jurors stated that it was, but it was intended by the jury that the plaintiffs should be permitted to remove the building from the lot of the defendant, whereupon the court, of its own motion, and over the objections of the defendants announced to the jury that it would not receive that verdict, and over the objections of the defendants ordered the jury dispersed for the night, but to return to the courtroom the following morning for further consideration of their verdict. Thereupon the defendants announced to the court that the defendants desired a judgment on the verdict of the jury, and to have the records show that the plaintiff should be permitted to remove the building from said lot of the defendants, but the court overruled the motion of the defendants, and refused to receive the verdict of the jury in behalf of the defendants, to which ruling of the court defendants saved their exceptions. Upon the following morning, the 12th day of December, 1906, the defendants renewed their motion for a judgment upon the verdict of the jury, and to have the judgment recite that the plaintiffs should have permission to remove buildings from the lot of the defendants, but the court overruled the motion of the defendants, and refused to receive the verdict of the jury in behalf of the defendants, to which they saved their exceptions. The record of the proceedings of the next day reads as follows: "Instruction No. 3, given by the court of its own motion, over the objections of the defendants, and given after argument of counsel had been made to the jury, and after the jury had received instructions on part of the plaintiff and the defendant, and the cause had closed, and after the jury had returned into court and announced a conditional verdict in favor of the defendants, which verdict was not received by the court, and which instruction was given by the court of its own motion over the objections of the defendants, to which the defendants at the time excepted, and asked that their exceptions be noted of record, which was done; said instruction being as follows: `If you believe from the evidence that the house had been completed substantially according to contract, but has slight defects in its construction, either in material or workmanship, and you further find that said house is on the land of defendants and said building inures necessarily to the benefit of said defendants, then you should find for the plaintiffs for the contract price, less whatever amount the evidence shows the defendants are damaged on account of said defects.'" Thereafter the jury returned the following verdict: "We, the jury, find for the plaintiffs $1,537.50." Judgment was entered thereon, and Harris and his wife have appealed therefrom.

Manning & Emerson, for appellants. Thomas & Lee, for appellees.

HILL, C. J. (after stating the facts as above).

Appellants criticise the instructions and allege various errors therein; but they have not set out the instructions in their abstract. They argue the instructions as if there were five transcripts here, and each judge had a transcript before him when he was reading their criticisms of the instructions. The rule that the abstract is to...