Long v. Charles T. Abeles & Co.

Citation93 S.W. 67,77 Ark. 156
PartiesLONG v. CHARLES T. ABELES & COMPANY
Decision Date24 February 1905
CourtSupreme Court of Arkansas

Appeal from St. Francis Chancery Court; EDWARD D. ROBERTSON Chancellor; affirmed.

This suit was brought by Charles T. Abeles & Company, a corporation, against E. A. Long and T. L. Humphreys in the St. Francis Chancery Court, to fix and enforce a lien for material furnished, amounting to $ 891.52, 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 contract price of said building.

The court found that the plaintiff was entitled to recover from defendants the amount sued for, less credits amounting to $ 156, and rendered a judgment in its favor for the remainder with interest, and decreed that the same should be a lien upon the lots upon which the building was erected, and provided for the enforcement of such lien.

Defendant Long has appealed.

Judgment reversed and cause remanded.

P. D McCulloch and S. H. Mann, for appellant.

1. The act, being in derogation of the common law, must be strictly construed. Jones on Liens, vol. 2 § 1554; 58 Ark. 81; 86 S.W. 395. If appellee was prejudiced at all by the payment to Humphreys, it would only be to the extent of the payment. 71 Ark. 55. The act confers liens for no greater amount in the aggregate than that contracted for between the owner and contractor. Kirby's Digest, § 4975.

2. The lien has its foundation in the use of the materials furnished upon the premises, putting them into the building and attaching them to the freehold. 15 Enc. Law, 5. The burden is on the furnisher to show that the materials entered into the building.

N. W. Norton, for appellee.

The statute provides that the owner pay no money to the contractor until all liens are satisfied. Kirby's Digest, § 4975. There were ample funds of the contract price remaining in the hands of appellant with which to satisfy the claim.

OPINION

WOOD, J.

1. 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.

2. Appellant, Long, inter ali, 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 be 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 Digest, 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 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 contractor 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 Digest. 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....

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