Long v. McDaniel
| Decision Date | 08 July 1905 |
| Citation | 88 S.W. 964,76 Ark. 292 |
| Parties | LONG v. MCDANIEL |
| Court | Arkansas Supreme Court |
Appeal from St. Francis Circuit Court, HANCE N. HUTTON, Judge.
Affirmed.
STATEMENT BY THE COURT.
E. A Long was the owner of a building in Forrest City, Ark., known as the "Imperial Hotel." One of the lower rooms of the building was rented by Long to D. F. Keath to be used as a barber shop. S. P. McDaniel, a plumber, fitted up this room with bath tubs, a range, boiler and heater, drain pipes, etc. He afterwards brought his action against Long, the owner of the building, to recover $ 186.40, the value of his work and labor, and for material and merchandise furnished in making such improvements. The defendant denied that the plaintiff had done any work or labor or furnished any materials or merchandise at his instance or request. He further denied that he had any control over the barber shop at the time the improvement was made, or that he has any interest in the bath tub, boiler and heater, etc., for which suit is brought.
On the trial the plaintiff testified in substance that Keath wanted the bath tubs and other improvements put in his barber shop. That he agreed with Keath upon the price, but that, before he ordered the material or did the work, he went to see the defendant, Long, and asked him what he thought about it. Long replied, "You go ahead and put the stuff in, and if Mr Keath don't pay for it I will, but don't say anything about my agreement, for I don't want him to know about that; but I want the fixtures to stay in the house." He further testified that, but for this agreement on the part of Long, he would not have ordered the material unless Keath had "put up the money for it." In other parts of his testimony he spoke of Long as being "security" for the debt, but said that he ordered the goods on the promise of Long to pay for them. The plaintiff was corroborated by testimony of the traveling salesman through whom the material was purchased by McDaniel. He said:
On the other hand, the testimony of the defendant tends strongly to show that the material was purchased and the work done by McDaniel for Keath, and that Long took no part in the transaction, and made no promise in reference thereto.
After being instructed by the court, the jury returned a verdict in favor of the plaintiff for $ 96.45, and defendant appealed.
Judgment affirmed.
S. H Mann, for appellant.
The alleged undertaking of Long was collateral, and within the statute of frauds. 12 Ark. 174; 45 Ark. 67.
John Gatling, for appellee.
The statute of frauds does not apply. 40 Ark. 429; 12 Ark. 174.
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