McFadden v. Stark

• Decision Date: 10 June 1893
• Citation: 22 S.W. 884,58 Ark. 7
• Parties: MCFADDEN v. STARK
• Court: Arkansas Supreme Court

22 S.W. 884

58 Ark. 7

MCFADDEN v. STARK

Supreme Court of Arkansas

June 10, 1893

Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.

Judgment reversed and cause remanded with instructions to deny the motion and overrule the demurrer, and for other proceedings.

Thornton & Smead for appellant.

1. The court erred in striking out the marginal amendment to the complaint. It was material, and entitled plaintiff to a lien upon complying with secs. 4403-4 and 4418 Mansfield's Digest. 11 Wis. 295; 4 Abb. Pr. (N.Y.), 432; 54 Wis. 474; 50 Mo. 306; 6 Bradw. (Ill.), 621; 53 Miss. 171; 33 Ark. 253; 12 id. 685; 9 id. 448; 32 id. 313; 49 F. 754; 14 id. 866; 31 Ark. 486; 51 id. 302. The complaint contained all the requirements of the act of 1885.

2. It was not necessary to set out the contract in extenso or substantially; the complaint charged there was a contract and that was all that was necessary, as the lien of a material-man or sub-contractor does not depend on contract but is created by use of the materials, or the work of the mechanic, on the building. 49 Ark. 479; Houck on Liens, p 106; 15 Ill. 189; 32 Md. 130; 14 Ala. 33; 21 Ind. 344; 3 Watts (Penn.), 141; 4 Minn. 546.

3. The complaint states that plaintiff furnished the materials at the request of the contractor, and that they were used in the construction of the buildings. 31 P. 316. An exact compliance with the statute is not required. The lien grows out of the use of the materials. 31 P. 316; 49 Ark. 479; 30 id. 29; Houck on Liens, p. 106. No technical omission will defeat the claim. 30 Ark. 573; Phillips, Mech. Liens, sec. 16, p. 27.

4. A substantial compliance with the statute is all that is required. See 61 Ind. 187; 58 id. 492; 37 Penn. 125; 2 Phila 102; 15 Am. and Eng. Enc. Law, p. 179; 4 Metc. (Ky.), 316; 42 Me. 141; 32 Ark. 69; 46 Mo. 337; Ib. 595; 51 Ark. 315, 307; 49 id. 572. The complaint with the exhibit constitutes a substantial compliance with the law. But if the exhibit was defective, the court should have allowed it to be amended. 15 Am. and Eng. Enc. Law; 7 Wis. 105; 32 Ark. 281; Green's Code Pl. sec. 407; Mansfield's Digest, sec. 5083; 53 Ark. 235.

5. If appellees had notice at the time the materials were furnished, etc., the lien was fixed at that time, and no subsequent payments could defeat appellant's claim. Mansfield's Digest, sec. 4402, 4421; 51 Ark. 313.

B. W. Johnson and Bunn & Gaughan for appellees.

1. Amendments are largely matters of discretion, and this discretion will not be controlled by appellate courts unless grossly abused. Bliss, Code Pl. secs. 428-9. The amendment of an account and affidavit, if filed in the clerk's office as the foundation of the lien is not allowable. 2 Jones on Liens, sec. 1455. The affidavit must set forth the particular matters entitling claimant to a lien. Acts 1885, p. 77; 2 Jones Liens, secs. 1390-1-2.

2. The mechanic's lien laws, being in derogation of the common law, are strictly construed, especially as to the steps taken to establish and fix the legal right. Jones on Liens, sec. 1555.

3. The complaint must set forth the facts which show that plaintiff has a lien and the right to enforce it; it must show a full compliance with the statute. 94 U.S. 545; 65 How. Pr. 146; 5 Minn. 74; 46 Tex. 599; 52 ib. 621; 24 Wis. 564; 34 Mo. 150; 43 Cal. 515; 36 Mo. 613; 30 Ark. 682. It is a special proceeding, and all jurisdictional facts must appear. 57 N.Y. 409; 63 id. 624.

4. The contract was not set out in the complaint in extenso or substantially. Under the law in Mansfield's Digest, secs. 4402-3, the owner is bound by the notice given by the sub-contractors, and in 30 Ark. 29 it is said the lien grows out of the fact that materials are furnished, etc., but the lien grows out of the fact that the owner has notice and by using the materials impliedly assents to it: Under the act of 1885, the owner is bound to the contractor and all who work or furnish materials by reason of the contract. 2 Jones on Liens, sec. 1289; 134 Pa.St. 277; Ib. 289; 16 S.W. 1045; 77 Mich. 199.

5. It is not shown that the materials were furnished to be put into the building under the contract. 2 Jones, Liens, sec. 1327, 1330.

6. There is a variance between the complaint and exhibit; while the former may be amended, the latter cannot.

BATTLE, J. Bunn, C. J., did not participate in the decision of this cause, being disqualified.

OPINION

BATTLE, J.

This action is based on the act of the General Assembly of this State, entitled "An act for the better protection of mechanics, artisans, material-men and other sub-contractors," approved March 17th, 1885, and was brought on the 8th of December, 1890, to enforce a lien for labor performed and materials furnished in the construction of a building on certain lots owned by the defendants, Stark and Moore. The complaint in the action, as amended by interlineation, is as follows:

"R. H. McFadden, Plaintiff,

vs.

"T. J. Moore, N. H. Stark, Chris Johnson, Defendants.

The plaintiff, R. H. McFadden, states that the defendants are justly indebted to him in the sum of nine hundred and eight dollars and seventy-nine cents for labor performed and materials used in the construction of a building owned by defendants, T. J. Moore and N. H. Stark, and known as the Stark and Moore building, and situated on parts of lots 14, 15, 16 and 17 of the old court house square in the city of Camden, county of Ouachita, and State of Arkansas, and more definitely described as follows, to-wit:

"'A lot of land situated on the corner of Adams and Jefferson streets, fronting on Adams street 59 feet and 91/3 inches, and running back the width of the front with Jefferson street 110 feet to Ouachita alley. Said parcel of land being the southwest corner of the old court house square. '

"That said labor was performed and material furnished at the request of the defendant, Chris Johnson, who had contracted with his co-defendants to construct said building, and by him used in the construction of said building. That he presented an itemized account of said labor and material to said defendant and contractor, Chris Johnson, who certified to the correctness of the items amounting to eight hundred and forty-eight dollars and seventy-nine cents, but refused to certify to the items amounting to sixty dollars. That thereupon plaintiff made affidavit to the correctness of the last named items, and also said refusal, and within ten days after the completion of the contract for said building by said Chris Johnson, on November 24, 1890, plaintiff, on 29th day of November, 1890, presented said itemized account, amounting to nine hundred and eight dollars and seventy-nine cents to defendants, T. J. Moore and N.H. Stark, certified and sworn to as above, and demanded payment of the same from them, which was by each of them refused, and at the same time (they) refused to endorse on the same the time of presentation or to hold back the whole or pro rata part thereof. That thereupon, and within ten days after the completion of the contract for said building by defendant Johnson, to-wit: on the 2nd day of December, 1890, plaintiff filed in the office of the circuit clerk of Ouachita county, in which said building is Situated, said itemized account so certified and sworn to, with an affidavit attached thereto, showing the presentation of said account to said contractor, Johnson, and his action thereon and the action of plaintiff in making affidavit to said disputed items, amounting to sixty dollars, and his subsequent presentation, within ten days after completion of said contract by contractor Johnson, of said account to defendants, T. J. Moore and N.H. Stark, and his demand of payment of the same by them, and their refusal, as well as their refusal to endorse on the same the time of presentation, and to hold out the full or pro rata share of said account. Said affidavit also contained a correct description of the building in the construction of which said labor and materials in said account mentioned were used and the ground on which the same is situated. A copy of said account sworn to as above is filed herewith and asked to be made a part of this complaint. Plaintiff says that he has a lien upon said building and the ground on which the same is situated for said labor and materials. Wherefore he prays judgment for the sum of nine hundred and eight dollars and seventy-nine cents and costs against defendant, Chris Johnson; that a lien be declared upon said building and land for the payment of the same, and for other relief." On the margin of the complaint is the following amendment: "And at the time of furnishing the material to contractor, Johnson, he notified said Stark and Moore of his intention of furnishing said material and performing said labor on said building and the value thereof."

The defendants, Stark and Moore, moved to strike out the marginal amendment and demurred to the complaint, both of which the court sustained, and rendered judgment against plaintiff in favor of Stark and Moore; and plaintiff appealed.

The defendant, Chris Johnson, made no defense; and judgment was rendered against him in favor of plaintiff for the amount of the account sued on.

1. The motion was improperly sustained. The statutes expressly authorize the amendment of pleadings by inserting allegations material to the case. The marginal amendment was made by leave of the court and was material, as will hereafter appear in this opinion.

2. Appellees insist that their demurrer was properly sustained because the contract between them and Johnson was not set out in the complaint. Under the laws of this State a contract with the owner of the ground upon which a building or other improvement is constructed is essential to the...