Pratt v. Nakdimen

• Decision Date: 08 May 1911
• Citation: 138 S.W. 974,99 Ark. 293
• Parties: PRATT v. NAKDIMEN
• Court: Arkansas Supreme Court

138 S.W. 974

99 Ark. 293

PRATT v. NAKDIMEN

Supreme Court of Arkansas

May 8, 1911

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor affirmed with modification.

STATEMENT BY THE COURT.

Appellee Nakdimen, entered into a contract with one Charles Miller doing business as the Miller Construction Company, for removing a three-story brick building on a certain lot in the city of Fort Smith, and for the erection of a six-story fireproof building thereon. The contract price was $ 51,900. Miller removed the old building, for which work he was allowed $ 681.50. He sold the material in the old building for $ 415.50. He began the erection of the new building, but failed to complete it. On December 5, 1909, he abandoned his contract, and left the State, with the intent of defrauding his creditors, laborers and material furnishers, and without leaving enough property to satisfy their claims. The appellants furnished material for the building. The Chickasaw Iron Works furnished certain steel and iron work, especially designed and constructed for that building. All this material had been delivered pursuant to the contract before the contractor abandoned the work. Material of the value of $ 2,286 had been used in the building, and material of the value of $ 1,400 was on the ground, but had not been incorporated in the building. Miller had paid appellant Chickasaw Iron Works $ 1,320.15, leaving a balance due it under his contract for the iron and steel work furnished, of $ 2,365.85. The appellant, Chickasaw Iron Works, filed its lien and brought suit in the chancery court to have same enforced on the building, and also procured an attachment against Miller, and had same levied on certain steel work, corrugated iron bars, pressed brick and window frames that had been delivered on the building site but had not been used in the building. W. D. Pratt, another appellant, had furnished materials to the amount of $ 1,005, all of which had been used in the building. Miller had paid on this bill the sum of $ 502.40, leaving a balance of $ 502.60 due. Pratt brought suit at law, and had attachments issued against Miller, and had the above-mentioned property levied upon to secure his claim. The appellant Corrugated Bar Company furnished Miller corrugated bars worth $ 889. He paid $ 166.22, leaving a balance of $ 722.88. Bars of the value of $ 170.78 had been used in the building. The remaining bars had been delivered at the building site. The Corrugated Bar Company likewise brought suit similar to Pratt's, and in addition to having attachment levied on the same property attached by the other appellants, had certain window frames then on the ground attached. These several attachments were levied in the following order: First, W. D. Pratt; second, Corrugated Bar Company; third, Chickasaw Iron Works. By agreement of all parties the suits at law were transferred to the chancery court, and there consolidated and tried. No appearance was made by Miller, though he was duly served. Nakdimen answered, denying that any of the appellants were entitled to liens against his building, alleging, in substance, that the sums paid by him to Miller and by Miller paid out on lienable claims, together with the amount necessary to complete the building according to his contract, after Miller had abandoned the same, exceeded the original contract price with Miller, and that therefore he, Nakdimen, was not liable to the creditors of Miller in any further sums. No question was made in the answer as to the validity of the attachments. The amount of appellants' claim was not denied, and it was conceded that appellants had complied with the law in respect to notice and the filing of their claims for lien. After Miller abandoned the contract Nakdimen entered into a contract with the Manhattan Construction Company to perform all the work and provide all necessary materials to complete the Nakdimen building in accordance with the original plans, for $ 41,412, $ 35,632 of which was for materials and labor and $ 4,000 of which was for "services or profit" of the contractor, the Manhattan Construction Company. It was provided that the bills for labor, materials and other expenses of the contractor should not exceed the sum of $ 37,412, and that the sum of $ 4,000 as "services or profit" was to be paid to the contractor at the final completion of the work. It was further agreed between Nakdimen and the Manhattan Construction Company that all materials on the ground, including certain mill work from the Cole Manufacturing Company, stored at railroad depot, and window frames from the Wise Manufacturing Company, if used by the Manhattan Con-Construction Company, should be paid for by Nakdimen; that the Manhattan Construction Company should contract for said material with the owners of same, and that the cost thereof should be added to the contract price to be paid the Manhattan Construction Company. It was also further agreed that, in case the Manhattan Construction Company should not use said material, it could get like material from other parties, same to be paid for by Nakdimen in addition to the aforesaid contract price. The appellants and the appellee entered into an agreement whereby the Manhattan Construction Company was allowed to use so much of the materials under attachment as might be necessary for the completion of the building, paying the invoice price thereof into the Merchants' National Bank, to remain until such time as the parties could settle their conflicting demands. It was further agreed "that no lien or other liability shall attach to the real estate of said Nakdimen by reason of the use of said brick, steel, etc., in said building, neither party waiving any right to mechanics' lien, if any acquired." The court found that the entire cost of the completion of the building, after Miller abandoned it, was $ 41,412, plus the material on the ground not used by Miller but afterwards used by the Manhattan Construction Company, to wit: $ 3,504.62, making a total, for the completion of the building, of $ 44,916.62; that the total sum to be figured as liens is $ 9,306.22, paid by Miller before he abandoned the building, and the following claims now allowed by the court as liens, to wit: Chickasaw Iron Works, $ 2,365.85; Corrugated Bar Company, $ 722.78; W. D. Pratt, $ 502.60; and others, making a total of $ 16,263, lien claims. The difference between the original contract price with Miller, $ 51,900, and the cost to complete the building after he abandoned it ($ 44,916.62), amounting to $ 6,983.38, is the sum to be distributed to all the lienors, making the ratio to each equal to 4294 per cent. This percentage is to be figured upon the entire amount of the original claims of the lienors, and from the pro rata or percentage thus obtained shall be taken the amount already paid by Miller. If this exceeds the pro rata or percentage, the lienor takes nothing; if it be less, he is entitled to the difference between the said percentage and the said payment. The court found that the appellants obtained no liens on the property they had attached, and that the agreement between them and the vendors of such property, as to the disposition of the proceeds of the sale thereof under the attachments, was void. The court further found that the money spent by the Miller Construction Company in removing the old buildings and foundations is a sum for which a lien could have been claimed by the Miller Construction Company, and is properly included in the total sum of the liens against said building for the purpose of fixing the percentage due upon the liens fixed by the decree; that the amount received by the Miller Construction Company for material sold from the wreckage of the old building is not to be credited upon the sum paid out by it and classed herein as lienable items; that the $ 4,000 item termed as "for their services or profit" in the contract with the Manhattan Construction Company is properly included as a part of the cost of completing said building, for which said Nakdimen is entitled to credit. The court rendered a decree in favor of appellants in accordance with its findings, declared a lien for the amounts to be ascertained under those findings, and directed the property sold to satisfy the judgments if not paid within thirty days. W. D. Pratt and Corrugated Bar Company excepted to so much of the decree as declared the attachments and the liens thereby obtained null and void, and to that part of the decree annulling the contracts and agreements by which the Manhattan Construction Company used the attached material in completing the building. Appellants prayed an appeal to the Supreme Court, which was granted, and has been duly prosecuted.

Decree affirmed and cause remanded.

Read & McDonough and Kimpel, for appellants.

Vendors of materials can obtain a mechanics' lien for only such part of their materials as is actually incorporated in the building; the doctrine that a mechanics' lien results from the mere delivery of material upon a job has been repudiated. 84 Ark. 561-2.

Coleman & Lewis and Falconer & Woods, for appellants.

1. The attachments were valid. There can be no waiver of one remedy simply because the other is invoked. 36 Ark. 355. Filing an attachment is not a waiver of a mechanics' lien, and the converse is true. Merely taking additional security, or changing the form of the indebtedness, or pursuing one remedy rather than another, does not defeat a statutory lien. 178 Mass. 163; 50 N.E. 630; 59 A. 398; 69 L. R. A. 497; 49 P 768; 83 N.W. 366; 40 S.W. 876, 966; 87 N.W. 458; 90 Ark. 340; 63 Id. 367; 48 Id. 267; 45 Id. 313; 32 Id. 233.

2. Nakdimen was not entitled to credit for $ 4,000 paid to the second contractor for "services and profits" in...