Midland Valley Railroad Co. v. Moran Bolt & Nut Manufacturing Co.

• Decision Date: 14 June 1909
• Citation: 120 S.W. 396,91 Ark. 108
• Parties: MIDLAND VALLEY RAILROAD COMPANY v. MORAN BOLT & NUT MANUFACTURING COMPANY
• Court: Arkansas Supreme Court

120 S.W. 396

91 Ark. 108

MIDLAND VALLEY RAILROAD COMPANY v. MORAN BOLT & NUT MANUFACTURING COMPANY

Supreme Court of Arkansas

June 14, 1909

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Ira D Oglesby, for appellant.

1. All the items are barred except the last item, as the materials were furnished under separate orders, in pursuance of a general agreement to sell such material as might be needed and not under a single continuing contract. Phillips on Mech Liens, § 325; 33 Mo. 31; 79 Ala. 156.

2. The defendant's requests 5 and 6 should have been given, as the suit was not commenced within one year.

Robert A. Rowe, for appellee; Kineady & Kineady, of counsel.

1. Every question was settled by 80 Ark. 399, except the amount of material furnished and used. The statute of limitations must be pleaded; if not, it is waived. 77 Ark. 379.

2. The questions are res judicatae. 44 Ark. 383; 55 Id. 170; 60 Id. 50; 63 Id. 141.

3. The jury settled the amount furnished, there was evidence to sustain the verdict, and this court will not disturb it. 25 Ark. 474; 31 Id. 163; 22 Id. 213; 23 Id. 131. There must be a total want of evidence to support it before it will be disturbed. 40 Ark. 144; 60 Id. 250; 36 Id. 260. The finding of a court setting as a jury is equally conclusive. 38 Ark. 139; 45 Id. 41; 50 Id. 305.

4. The statute only began to run from the last item furnished.

OPINION

HART, J.

The Moran Bolt & Nut Manufacturing Company brought suit in the circuit court of Sebastian County for the Greenwood District to enforce a lien for materials furnished to Mike Kelley in the construction of the Midland Valley Railroad. On appeal this court held:

"The judgment in this case was correct in form in fixing a lien on all the property of appellant railroad in the State of Arkansas, but it was erroneous in allowing that lien to be made up of material furnished and used in the construction of appellant's road in the Indian Territory." Midland Valley Rd. Co. v. Moran Bolt & Nut Mfg. Co., 80 Ark. 399, 97 S.W. 679.

Upon a new trial of the cause, the circuit court sitting as a jury found that $ 1,794.21 for the material furnished by plaintiff entered into the construction of the road in the State of Arkansas; that $ 913.35 had been paid upon the same, leaving a balance of $ 880.86, for which plaintiff was entitled to a lien on defendant's road; and from that judgment this appeal is taken.

It is earnestly insisted by counsel for the defendant that the testimony shows that materials of the value of $ 1,517.58 and no more were used in the construction of defendant's railroad in the State of Arkansas; and that, after deducting the credits of $ 913.35, the judgment of the court should have been for $ 604.23 instead of $ 880.86.

It has always been the settled rule in this State that the findings of the circuit court sitting as a jury are equally as conclusive in this court as the verdict of a jury. The rule has been recognized and followed so often as to render a citation of authorities unnecessary.

Mike Kelley, the sub-contractor, in his testimony says that all the shipments of material consigned to him at Montreal, Arkansas, were used in the construction of the road in the State of Arkansas. He undertakes to give the date and amount of each shipment, and in the aggregate they amount to $ 1,794.21. While his testimony is considerably weakened by cross-examination, and is contradicted by that of the engineer for the railroad company, who made an estimate of the amount that was so used, we cannot say that there was no evidence to support the finding of the court.

Counsel for appellant also urges that the court erred in not sustaining its plea of the statute of limitations. He contends that each order was a separate contract, and that the lien accrued as each separate order was furnished.

In the case of the Kizer...