Long v. Abeles & Co.

• Decision Date: 18 November 1906
• Citation: 93 S.W. 67
• Parties: LONG v. ABELES & CO.
• Court: Arkansas Supreme Court

93 S.W. 67

LONG v. ABELES & CO.

Supreme Court of Arkansas.

November 18, 1906.

On Rehearing February 24, 1906.

Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor.

Suit by Abeles & Co. against one Long and another. From a decree for plaintiffs, defendant Long appeals. Reversed on rehearing.

See 91 S. W. 29.

This suit was brought by appellees against the appellant and T. L. Humphreys in the St. Francis chancery court to enforce a lien for material furnished, alleged to have gone into a building erected by T. L. Humphreys, as contractor for appellant. Long denied all the material allegations of the complaint, and alleged that he had paid out for material and labor a greater amount in the aggregate than the contracted price of said building.

P. D. McCulloch, and S. H. Mann, for appellant. N. W. Norton, for appellee.

WOOD, J. (after stating the facts).

First. On the questions of fact as to whether or not the materials were furnished to the contractor, and went into the building of Long, our conclusion is that the court's findings are not clearly against the weight of the evidence.

Second. Appellant Long, inter alia, testified that the contract price with Humphreys for the erection of the hotel building was $6,600. The building actually cost $9,637.34. All this amount was paid for material and labor that went into the building. Witness saw that payment was made to the material furnishers and the laborers. None of this amount was paid to the contractor, except some small sums for labor that he actually did on the building, amounting to about $60. Appellant contends that under this proof appellee has no lien. Section 4970 of Kirby's Digest gives every person who shall furnish any material for any building under any contract with the owner, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of the act, a lien upon such building.

Section 4975, Kirby's Dig., provides that: "Nothing herein contained shall be so construed as to give contractors, subcontractors, or laborers, or material furnishers, liens for any greater amount in the aggregate than that contracted for between the employer and the contractor; provided, that the owner, employer, or builder, shall pay no money to the contractor, until all laborers and mechanics employed on the same, and all material furnishers shall have been paid for work done and material furnished." Section 4979 provides: "The liens for work and labor done, or things furnished as specified in this act, shall be upon an equal footing, without reference to the date of the filing of the account or lien, and in all cases where such a sale shall be ordered, and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same, without reference to the date of the filing of the account or lien, shall be paid pro rata on the respective liens, provided, such account or lien shall have been filed and suit brought as provided by this act." There is a provision making it the duty of the contractor whenever any lien is filed by any one but himself, and suit is brought, to defend against the action, and the owner in the meantime may withhold from the contract or the amount of such lien, and if judgment be recovered against the owner, he shall be entitled to deduct the amount of such judgment from any amount due by him to the contractor. Section 4978, Kirby's Dig. Under another provision the owner may at any time apply to the contractor or subcontractor for a list of all parties doing work or furnishing materials for the building, and the amount due to each. Section 4980. The provisions of the statute show that the claims of the contractor are subordinated to the claims of laborers and materialmen, following what is known as the Pennsylvania, rather than the New York, system. Boisot on Mec. Liens, § 225.

Appellee having complied with the law as to notice and the filing of its account with the circuit clerk (which is not denied), and having shown that it furnished the materials to the contractor which went into appellant's building, and that the amount charged for such materials is less than the contract price, establishes prima facie its right to a lien, and casts upon appellant the burden of showing to the contrary.

The allegation in appellant's answer "that he had paid out for material and labor a greater amount in the aggregate than the contracted price of such building," does not state a defense to appellees' claim for a lien. Nor does the proof by appellant anywhere show that appellee is not entitled to a lien. Construing the provisions of the statutes together it is obvious that in order to make good a defense of no lien under section 4975 supra, which appellant invokes, it was necessary for him to allege and show that he had paid bona fide claims for work and materials that were contracted for by the contractor or subcontractor under the contract that was made by the employer with the contractor, which claims in full, or after being prorated, were, in the aggregate equal to or greater in amount than the contract price between the employer and the contractor; and to make the defense complete it would be necessary to show that appellees' claim, in full or its pro rata thereof was included. Either this or appellant would have to show that after the contract was abandoned by the contractor, in order to complete the building according to the plans and specifications of the contract, he had been compelled to pay out for work and materials an amount which, in the aggregate, was equal to or exceeded the contract price. The provisions of the statute show clearly that every person who furnished materials to the contractor that went into appellant's building, and who had complied with the law in other respects had a lien therefor, and that these and other liens under the contract were on an "equal footing"; that if they exceeded in the aggregate the contract price between the employer and the contractor, they had to be discharged pro rata; so that appellee, having complied with the law in other respects, to notice and the filing of its claim with the circuit clerk, could not be defeated of its lien by any payments that appellant may have made to other bona fide lien claimants or holders under the contract; for appellant could not discriminate between those who were entitled to liens. He could not pay one and refuse another. He must pay all in full if the aggregate amount does not exceed the contract price, or prorate between them it it does. To discharge appellees' claim for a lien it would be necessary to include it in any such payment.

But it is not contended that appellees' claim was discharged by payment, either in full, or pro rata. The defense is no lien. True appellant's testimony shows that the building cost about $3,000...