Leifer Manufacturing Company v. Gross

• Court: Arkansas Supreme Court
• Writing for the Court: FRAUENTHAL, J.
• Citation: Leifer Manufacturing Company v. Gross, 93 Ark. 277, 124 S.W. 1039 (Ark. 1910)
• Decision Date: 24 January 1910
• Parties: LEIFER MANUFACTURING COMPANY v. GROSS

124 S.W. 1039

93 Ark. 277

LEIFER MANUFACTURING COMPANY v. GROSS

Supreme Court of Arkansas

January 24, 1910

Appeal from Garland Chancery Court; Alphonso Curl, Chancellor reversed.

Judgment reversed.

Downie Rouse & Streepey, for appellant.

I. The preponderance of the evidence is to the effect that Gross was a party to the contract, and appellant was not therefore within the statutory requirement as to the giving of ten days' notice as subcontractor. Kirby's Dig §§ 4976 and 4993. The statute should be liberally construed. 30 Ark. 29; 30 Id. 569; 49 Id. 475; 51 Id. 302; 58 Id. 7; 84 Id. 560.

2. The lien was filed in proper time. 56 Ark. 516.

3. The contract was not within the statute of frauds. 76 Ark. 292.

4. The chancellor's finding being against the preponderance of the evidence, the decree will be reversed. 31 Ark. 85; 41 Id. 292; 42 Id. 521; 55 Id. 112; 75 Id. 72.

5. Appellant complied with its contract; and there is no evidence upon which to base an award of damages for appellee. 77 Ark. 150.

Greaves & Martin, for appellees.

1. The evidence shows that appellant was a subcontractor, as defined in section 4993, Kirby's Dig., and that the notice required in § 4976 was not given. This requirement is mandatory. 2 Jones on Liens, §§ 1389-1391; 30 Ark. 568; 51 Id. 102.

2. The evidence further shows that appellee has sustained damages in excess of the amount sued for.

OPINION

FRAUENTHAL, J.

The plaintiff below, Leifer Manufacturing Company, instituted this suit in the Garland Chancery Court against the defendant, B. Gross, upon an account for materials furnished in the construction of a building in the city of Hot Springs, Arkansas. The account consisted principally of concrete building material or blocks, and amounted in the aggregate to $ 1,016.20. It is credited with a payment of $ 200, thus leaving a balance of $ 816.20, for which amount judgment is sought. It is alleged in the complaint that the materials were furnished upon a contract made with the defendant, who is the owner of the building; and proper allegations are made therein for having a lien declared upon the building in cases where the materials are furnished by those having contracts therefor directly with the owner. The defendant denied that he entered into any contract with the plaintiff whereby the above materials were furnished. He alleged that he had entered into a contract with one L. W. Rose to construct the building for him, and that said Rose was the contractor for the erection thereof; that, if plaintiff furnished any materials for the construction of the building, he furnished them to Rose, the contractor, and not to plaintiff; and he alleged that no notice was served upon him prior to the filing of the alleged mechanics' lien. He also alleged that the plaintiff had unreasonably delayed the furnishing of the materials, and that the materials furnished were defective and of an inferior quality, and that thereby Rose or the defendant was damaged in a sum largely in excess of the amount sued for. He asked that the claim of plaintiff for a mechanics' lien be dismissed.

The chancery court entered a decree dismissing the complaint for want of equity; and the plaintiff prosecutes this appeal from that decree.

The defendant Gross was the owner of a lot in the city of Hot Springs, and had entered into a contract with L. W. Rose, by which said Rose agreed to construct a building for him thereon for the sum of $ 5,600. The building was constructed of concrete blocks, and the plaintiff furnished the concrete materials set out in its complaint, which were used in the construction of the building. The plaintiff contends that he furnished the materials under a contract made therefor directly with the defendant. The defendant contends that the materials were furnished under a contract therefor made by plaintiff with said Rose, the original contractor, and that plaintiff was only a subcontractor. It is conceded by the plaintiff that he did not give the notice required by section 4976 of Kirby's Digest. That section provides that: "Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of this act, shall give ten days' notice before the filing of the lien, as herein required, to the owner, owners or agents or either of them, that he holds a claim against such building or improvements setting forth the amount and from whom the same is due." Under this provision of the law, before a subcontractor can be entitled to a lien upon the building or improvement for the materials furnished by him in its construction, he must give this notice in the time and manner prescribed by this statute. 27 Cyc. 118; Schubert v. Crowley, 33 Mo. 564; Hahn v. Dierkes, 37 Mo. 574; Faulkner v. Bridget, 110 Mo.App. 377, 86 S.W. 483.

Section 4993 of Kirby's Digest defines and determines who is an original contractor and who is a subcontractor within the meaning of the mechanics' lien law. That section provides: "All persons furnishing things or doing work provided for by this act shall be considered subcontractors except such persons as have contracts therefor directly with the owner, proprietor, his agent or trustee." If, therefore, the plaintiff furnished the materials to the contractor, Rose, and under a contract therefor made solely with him, then the defendant would not be liable for the materials; and, inasmuch as it is conceded that the above notice of the filing of the lien was not given by the plaintiff, he would not in such event be entitled to a lien on the building. But, on the other hand, if the plaintiff entered into a contract with the defendant to furnish the materials by which the defendant became liable therefor, then he would not be a subcontractor; and in such event would be entitled to recover judgment therefor against defendant, and also to a lien on the building. The question is one chiefly of fact.

The only persons who were present when the agreement was made under which the plaintiff furnished the materials were George Leifer, the president and manager of the plaintiff, and the defendant and said Rose. When the defendant first employed Rose to construct the building, he had determined to construct it of brick. Later he decided to construct it of concrete. The plaintiff's place of business and plant were located at Little Rock, Arkansas, and the defendant Gross, in company with one Shank, in whose opinion as to concrete he seems to have had confidence, visited plaintiff's plant and secured a sample of the concrete, which he took to Hot Springs and had tested. Later, Rose saw the plaintiff's manager, and asked as to the prices of the concrete; and thereafter both Rose and defendant saw the plaintiff's manager, at which time the contract was made for furnishing the materials. The plaintiff understood that the defendant was the owner, and that Rose was the contractor for the construction, of the building.

George Leifer, the plaintiff's manager, testified as follows relative to the contract: "A. In the first place, Mr. Rose came down there and asked the prices on stuff, and then Mr. Gross came over with him and made a bargain for the stuff for the house at a certain price. Then there were some extras afterwards that were put on the list. So we shipped the stuff direct to Mr. Gross, just as we understood it was to be. * * * Q. Why was it you shipped them to Mr. Gross, and not to Mr. Rose? A. Because he did all the talking. When he came back, he said that we should ship the stuff over there to him, and he would see that it was paid. That's the reason we shipped to Mr. Gross. * * * A. Mr. Gross said for us to ship the stuff, and he would pay if Rose didn't. So I shipped the stuff direct to Gross, and looked to him for payment."

He further testified that he made the contract with defendant Gross, and furnished the materials solely upon his credit and his promise to pay therefor.

L. W. Rose testified as follows:

"Q. When you and Mr. Gross came over here, was there any contract made by either you or him for the materials? A. Nothing more than Mr. Gross told Mr. Leifer, when he selected the blocks, 'You send the blocks over.' I did not say a word while I was over here to Mr. Leifer later in regard to the business. Mr. Gross did the talking. Q. What contract was made at that time? A. He just told him to send the blocks to my order, and he said, 'If Rose don't pay for them, I will.' * * * A. He came over with me and selected the blocks. He said, 'If Rose don't pay for them, I will.' I never said a word to Mr. Leifer any more about the price."

The defendant Gross testified that he only selected the kind and color of concrete blocks which he wanted put in the building, and made no contract or agreement of any kind therefor with the plaintiff. He further testified as follows: "Q. Now, in regard to this contract, Mr. Gross, isn't it a fact that you directed the Leifer Manufacturing Company to ship those different blocks in a certain manner; to ship them at a certain time; and that you made a statement to Mr. Leifer that if Mr. Rose didn't pay the bill that you would pay it? A. It certainly is not a fact that I made any contract with Mr. Leifer for anything. Q. Now, that isn't the question. I asked you if you made that statement to Mr. Leifer that if Mr. Rose made a contract and failed to pay for those building blocks you would pay for them? A. I don't remember that I said that. Q. You don't remember that you didn't? A. I don't think that I did say it. Q. Well, you wouldn't swear to it, would you? A. I can swear to it to the best of my recollection that I didn't say it."

The plaintiff shipped the materials at different times by freight from Little Rock to Hot Springs; and in all the bills of...