Lyle v. Latourette

• Decision Date: 11 February 1946
• Docket Number: 4-7820
• Citation: 192 S.W.2d 521,209 Ark. 721
• Parties: Lyle v. Latourette
• Court: Arkansas Supreme Court

192 S.W.2d 521

209 Ark. 721

Lyle v. Latourette

No. 4-7820

Supreme Court of Arkansas

February 11, 1946

Rehearing Denied March 11, 1946.

Appeal from Craighead Chancery Court, Western District; E. L Westbrooke, Jr., Chancellor.

Modified and Affirmed.

Claude B. Brinton, for appellant.

Foster Clarke and Roy Penix, for appellee.

OPINION

McFaddin J.

This appeal stems from an attempt by the appellee to enforce a materialman's lien on certain real estate owned by appellant. There is considerable dispute on some of the facts; but we give the version adopted by the Chancery Court and supported by the preponderance of the evidence.

Appellant, J. E. Lyle, was desirous of repairing and improving his residential property in Jonesboro, Arkansas. P. M. Latourette owned and operated a retail lumber yard in Jonesboro under the trade name of "Jonesboro Builders' Supply Company"; and J. N. Swanson was Latourrette's trusted employee, being in fact in this case the "alter ego" of Latourette. In order to sell the lumber and supplies for the Lyle job, Swanson not only prepared the specifications for the work, but also persuaded Walter Hollingsworth and Ace Patillo -- local carpenters -- to become the contractors to do the Lyle work.

Accordingly, a written contract was signed on March 27, 1943, whereby Hollingsworth and Patillo, for $ 3,584, to be paid by Lyle as the work progressed, undertook to furnish all labor, materials, and supplies, and to complete the repair work and improvements, according to the specifications. One of the specifications called for ceiling the attic with insulation board or beaver board. In order to induce Hollingsworth and Patillo to take the Lyle contract at the price named, Latourette -- either in person or by Swanson, who was acting for him at all times -- agreed with Hollingsworth and Patillo to furnish the material and complete the attic insulation for $ 540 as a subcontract. This is referred to herein as the "attic subcontract," and is separately discussed. After deducting the attic subcontract, the net to Hollingsworth and Patillo was to be $ 3,044. As the work progressed, and up until July 28, 1943, Latourette furnished lumber, brick and supplies for the Lyle job in a total in excess of $ 1,400, independent of the attic subcontract. Lyle paid out on the contract during this period of time a total of $ 2,527, of which $ 1,000 went to Latourette on his said account, and $ 1,527 went to Hollingsworth and Patillo for their services.

The work, begun so auspiciously, ended in misfortune for all concerned: In August, 1943, Hollingsworth and Patillo found that they could not complete the contract at a profit, so they abandoned the work. Then a dispute arose between Lyle and Latourette; and on August 9, 1943, Lyle's attorney addressed to Latourette a letter which gives most clearly the situation then existing between Lyle and Latourette:

"Confirming our telephone conversation of this morning, will say:

"The job of attic insulation is a separate and independent job which your firm received by subcontract from Patillo and Hollingsworth and upon satisfactory completion the contractors were under obligation to pay you the sum of $ 540.

"It is our understanding that to date Mr. Lyle has paid to Patillo and Hollingsworth $ 2,527, of which you received some payments on the material bill and that you have a balance charged of $ 317.

"It is understood that you will complete the attic insulation immediately.

"All work and material must be according to specifications of the original contract."

The $ 317 mentioned in the letter -- by subsequent purchases and returns, and by correction of bookkeeping errors -- became $ 401.50, for which amount Latourette filed his lien claim on September 27, 1943. Then, on October 5, 1943, Latourette filed this suit against Hollingsworth and Patillo as the contractors, and Lyle and his wife as owners, seeking to obtain and enforce a materialman's lien under § 8865, et seq., of Pope's Digest. Hollingsworth and Patillo each defaulted, and gave depositions for the other defendants. Lyle, by answer and cross-complaint, made various defensive and offensive attacks upon the claim. These attacks will be listed and discussed hereinafter. The trial resulted in a default decree, against Hollingsworth and Patillo for the full amount of the claim, and also a decree and lien for Latourette against Lyle's property for $ 386.50 and interest at 6 per cent. as hereinafter mentioned, and also a foreclosure of the lien. Lyle brings this appeal, urging the contentions here which he urged below. The Chancery Court made detailed findings which are in the decree, and which have been most helpful to us in our deliberations.

I. The Position of Latourette in the Building Contract. Lyle claims that Latourette was the real party in interest in the $ 3,584 contract, and that Hollingsworth and Patillo were virtual "stooges"; that Latourette and Swanson were supervising the entire work, and Lyle dealt with them and not with Hollingsworth and Patillo. On this claim Lyle contends that he should recover on his cross-complaint against Latourette for several hundred dollars which it cost Lyle to complete the repairs and improvements according to the specifications. There is much testimony going to support Lyle's contention: (1) Latourette undertook to repair the stairs which were no part of the attic subcontract. (2) Swanson approved all checks signed by Lyle before they were delivered. (3) Most of Lyle's complaints were made to Swanson, who undertook to relay them to Hollingsworth and Patillo, and thereby gave the impression that Swanson was supervising the work. As we say, these facts and others in the record are strong circumstances tending to support Lyle's contention that Latourette was the contractor in fact.

But a careful review of the record necessitates that we deny this contention. Here are our reasons: The signed contract was between Lyle on the one part and Hollingsworth and Patillo on the other. Before we would be justified in setting aside this written contract, then the evidence going in that direction would have to be clear and satisfactory. As we said in Morrilton Ice Co. v. Montgomery, 181 Ark. 180, 25 S.W.2d 15: " 'The solemn written agreement of contracting parties cannot be reformed or amended, except upon clear and satisfactory proof that the writing fails, by reason of fraud, accident or mutual mistake in the preparation or execution thereof, to express the agreement intended to be entered into.' Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S.W. 880 . . ."

We cannot say that the evidence, as claimed by Lyle, rises to the required level of "clear and satisfactory." Latourette and Swanson both testified that the contract, as written, reflected the real intention of the parties, and that Hollingsworth and Patillo were the contractors. Lyle identified the contract with Hollingsworth and Patillo; and even though he said he thought he was dealing with Swanson and Latourette, still Lyle did not testify that the contract was fraudulent. Patillo admitted that he and Hollingsworth made the contract with Lyle, and then sublet a portion of it to Swanson (who was acting for Latourette as we have previously stated). Here is Patillo's testimony: "Q. Ace, you and Mr. Hollingsworth, you as superintendent, made a contract with Jimmie Lyle to do what you called this second job for $ 3,584? A. That's right. Q. That was everything? Then following that you and Mr. Hollingsworth made a contract with Mr. Swanson for Mr. Swanson to do certain work in connection with the attic for a sum of $ 540? That was Jim's (Swanson's) personal contract? A. Yes, as far as I know. Q. You made the contract with him, not with Latourette? A. Yes, with Jim Swanson."

Lyle's attorney in the letter previously copied admitted that Hollingsworth and Patillo were the principal contractors and Latourette was a subcontractor on the attic insulation. With all of the foregoing evidence in the record, we cannot say that the chancellor was in error in finding, as he did, that Hollingsworth and Patillo were the principal contractors and Latourette was a subcontractor only on the attic insulation. So, we deny Lyle's contention that Latourette was the principal contractor.

II. Delivery of the Materials. Lyle claims that there was not sufficient proof that all of the materials sued for were actually delivered to the job; and he lists twelve invoices totalling $ 157.78 which were either totally unsigned or signed by persons whose authority to sign for Hollingsworth and Patillo was not shown. The law is well settled that a materialman must both allege and prove that the material, for which he claims a lien, was furnished for, and used in, the work. Hill v. Imboden, 146 Ark. 99, 225 S.W. 330; Central Lumber Co. v. Braddock Land & Granite Co., 84 Ark. 560, 105 S.W. 583, 13 Ann. Cas. 11. But in the case at bar the appellee made sufficient proof. Lyle testified that all the material used on the job was purchased from Latourette so far as he knew. Patillo examined the itemized statement sued on by Latourette and testified that all the material shown on the statement was received. There was no complaint about the receipt of the material. The only complaint was the quality of the material. Patillo said: "Q. Now, then, you have seen this itemized statement that he had -- that was practically correct, wasn't it? A. That statement -- if it had been correct . . . Q. Did you get the material? That's what I'm talking about. A. That's right. Q. The complaint that you have about it would be that he furnished materials that were not up to specifications? A. That's right."

The testimony of Latourette and Swanson about the itemized statement and the...