Huffman Wholesale Supply Co. v. Terry

• Decision Date: 07 March 1966
• Docket Number: No. 5-3787,5-3787
• Citation: 399 S.W.2d 658,240 Ark. 399
• Parties: HUFFMAN WHOLESALE SUPPLY CO., Appellant, v. E. M. TERRY et al., Appellees.
• Court: Arkansas Supreme Court

Page 658

399 S.W.2d 658

240 Ark. 399

HUFFMAN WHOLESALE SUPPLY CO., Appellant, v. E. M. TERRY et al., Appellees.

No. 5-3787.

Supreme Court of Arkansas.

March 7, 1966.

Gardner & Steinsiek, Blytheville, for appellant.

James E. Hyatt, Jr., Osceola, for appellees.

HARRIS, Chief Justice.

This case concerns a materialman's lien. E. M. Terry, a building contractor of Bytheville, entered into a contract on March 6, 1964, with the trustees of the Rozelle estate for the construction of a home for Mrs. Mattie Rozelle in Osceola, Arkansas. Pursuant to the contract, Terry commenced construction, and purchased certain materials from Huffman Wholesale Supply Company, appellant herein, and used these materials in building the home. Terry subsequently left the job, but it was completed by sub-contractors. Whether or not the job was 'completed' in July, or in September, is the controlling fact in the litigation. Terry, according to Huffman, made some payments on other jobs that he was working on during the same period, but made no payment on the Rozelle job. ¹ Work ended on the Rozelle construction about July 13, 1964, except for three instances, as follows: Air grills were purchased on August 20 to replace defective or improper air grills which had been originally installed; on September 17, and 23, a water faucet and installation accessories were purchased by the plumber and installed.

On December 3, appellant caused to be served upon Terry, and Bowen Thompson, Mattie P. Rozelle, and Roy E. Cox, the last three being executors and trustees of the Rozelle estate, notice of intention to file a lien; on December 22, 1964, appellant filed its affidavit for a lien, and on January 20, 1965, suit was instituted against the aforementioned persons, seeking recovery for materials allegedly furnished for the construction of the residence for Mrs. Rozelle, in the amount of $2,557.58. Appellant prayed that a lien be declared on the home property to secure the payment of this judgment. On February 5, 1965, appellees filed an answer, and cross-complained against Terry, alleging breaches of the contract on the part of that defendant. ² In their answer, the trustees asserted that they had paid to Terry, the sum of $27,450.00 (leaving a balance due of $1,603.69), through July 24, 1965; that Terry had agreed to pay all labor and material costs in connection with construction of the residence; they denied that appellant was entitled to a lien. The case proceeded to trial before a jury, and after appellant had completed its testimony by various witnesses, appellees moved for a directed verdict, and this motion was granted by the court. Judgment was entered for appellees, and appellant was given judgment against Terry in the amount of $2,557.58. Appellant appeals the judgment insofar as it directs a verdict in favor of appellees. Appellant correctly states the issue between the parties as follows:

'Appellant contends that the material furnished from March through September was for material contemplated by the contract between the landowners and Mr. Terry. If the purchases made in September were for material not anticipated in the original construction of the house or was for repair on the original construction of the house, then the purchase of such material would not extend the lien time. On the other hand, if the material purchased in September was merely the finishing up of the original contract, then the time for filing a lien would not begin to run until the date of the last purchase made.' ³

Of course, we are here dealing with a directed verdict, and this court has said on numerous occasions that, in determining the correctness of the trial court's action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed, and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury. See Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S.W. 328, and cases cited therein. Also, in Smith v. McEachin, 186 Ark. 1132, 57 S.W.2d 1043, we said:

'* * * In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.'

Applying the rule set out in these cases, let us proceed to examine the evidence in this case. The proof reflects that original plans for the house called for two water faucets to be placed on the outside of the structure. One of these was installed prior to July 13, but the other, which was to be placed on the front of the house, was not installed. According to appellant's evidence, the porch came out farther than had been anticipated under the plans, and the workers were directed not to install that faucet. Frank McGruder, plumbing contractor, who had charge of installing the plumbing, stated in his testimony.

'These tickets [referring to the two September tickets] both pertain to materials necessary to move a sealed faucet from a location on the porch around the corner of the house. As far as I know, the materials were drawn for...