Miller-Jones Furniture Co. v. Ft. Smith Ice & Cold-Storage Co.

• Decision Date: 18 March 1899
• Citation: 50 S.W. 508
• Parties: MILLER-JONES FURNITURE CO. v. FT. SMITH ICE & COLD-STORAGE CO.
• Court: Arkansas Supreme Court

50 S.W. 508

MILLER-JONES FURNITURE CO. v. FT. SMITH ICE & COLD-STORAGE CO.

Supreme Court of Arkansas.

March 18, 1899.

Appeal from circuit court, Sebastian county, Ft. Smith district; Edgar E. Bryant, Judge.

Action by the Miller-Jones Furniture Company against the Ft. Smith Ice & Cold-Storage Company. From a judgment, plaintiff appeals. Reversed.

The Ft. Smith Ice & Cold-Storage Company, desiring to have a building erected for cold-storage and other purposes, contracted with one Wickshire for the erection of the same. The building was to be one story high, and constructed of brick. Wickshire was to furnish all material except the brick, and was to receive the sum of $7,875 for constructing same. He agreed to finish the building on or before the 14th day of October, 1895, and that, if he failed to complete the building at that time, he would pay the owner, by way of liquidated damages, the sum of $25 for each day thereafter the building remained incomplete. The contract also contained the following provision: "It is further agreed that the said party of the second part may make any alterations, deviations, additions, or omissions from the aforesaid plans, specifications, and drawings, or either of them, which they shall deem proper, and the said architect shall advise, without affecting or making void this contract; and, in all such cases, the architect shall value or appraise such alterations, and add to or deduct from the amount heretofore agreed to be paid to the said party of the first part the excess or deficiency occasioned by such alterations." Wickshire gave bond for the performance of his contract, with the Miller-Jones Furniture Company as surety. He afterwards, about the 1st of October, 1895, made a supplemental contract with the cold-storage company, by which he agreed to make the building two stories high, instead of one, and was to receive an additional consideration of $1,175. The furniture company, surety on the bond for first contract, was told by Wickshire on the 1st of October, 1895, that he and the cold-storage company had agreed to make the building one story higher; and on that day the furniture company, at request of Wickshire, ordered material to be used in the construction of said second story. The price of material furnished Wickshire by the furniture company, and used in the construction of said building, amounted in all to $3,260.86, of which Wickshire paid $2,000, leaving a balance of $1,260.86 due the furniture company. The furniture company filed its lien for said sum against the building of the cold-storage company, and afterwards brought this action against Wickshire and said cold-storage company to enforce said lien and recover said debt. The cold-storage company filed an answer and counterclaim, asking judgment against Wickshire, and the plaintiff as his surety, for delay in completing the building. The circuit judge, sitting as a jury, found that Wickshire was indebted to the plaintiff, furniture company, in the sum of $1,260.86, for materials furnished; that the defendant, cold-storage company, was entitled to $600 damages against Wickshire and plaintiff, as surety on his bond, for delay in completing the cold-storage rooms; and, further, that plaintiff was entitled to a judgment against Wickshire for $1,260.86, and to a lien on building for $660.86, balance of debt after...