Roland v. Lindsey

CourtSupreme Court of Arkansas
Writing for the CourtWOOD, J.
Citation146 S.W. 115,104 Ark. 49
PartiesROLAND v. LINDSEY
Decision Date01 April 1912

146 S.W. 115

104 Ark. 49

ROLAND
v.
LINDSEY

Supreme Court of Arkansas

April 1, 1912


[146 S.W. 116]

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge; affirmed on remittitur.

STATEMENT BY THE COURT.

This is a suit against the appellants to recover damages for the alleged breach of a building contract. The firm of Roland & Gray were contractors and builders, and the other appellants were their bondsmen.

The plaintiffs entered into a contract with Roland & Gray whereby, for a consideration of $8,800, Roland & Gray agreed with plaintiffs to "provide all the material and perform all the work for the erection of a two-story brick building according to plans and specifications to be furnished by the architect."

Plaintiffs alleged that Roland & Gray failed to complete the building within the time stipulated in the contract, and that they abandoned the contract when the building was in an unfinished condition, and notified plaintiffs in writing that they would not complete the same; that there were outstanding claims for work performed and material furnished to Roland & Gray, and which they used in the construction of the building, and that these claims constituted liens against the building; that the amount of these liens is greatly in excess of the balance due Roland & Gray under the contract, and that plaintiffs were compelled to pay off these claims in order to avoid the expense incident to the enforcement of such claims as liens against their building. They alleged that the amount of these lien claims, after deducting the amount due on the contract, was $1,182.21, not including an item of $243.74 claimed by Tobin Brothers, who were sureties on the bond of Roland & Gray; that appellees were compelled, after Roland & Gray abandoned their contract, to complete the building according to the terms of the contract at a cost of $218.09 for labor and materials; that plaintiffs were damaged in the sum of $110, specified to be paid to them as liquidated damages if Roland & Gray failed to complete the building according to the terms of the contract; that by reason of the breaches of the contract on the part of Roland & Gray plaintiffs have been damaged in the sum of $1,505.30. Plaintiffs prayed that they have judgment in that sum, and also prayed that the claim of Tobin Brothers be adjudicated, and that if same be declared a lien they be allowed to pay the same and have judgment over against the defendants for the amount thereof.

The defendants Roland & Gray filed a separate answer, in which they admitted the execution of the contract and bond. They alleged that they used their best efforts to complete the building under the contract until the 5th day of July, 1911, when plaintiffs refused to make further payments for labor, and that, being unable to complete same without further advancements, they surrendered the building to plaintiffs. They admitted that they surrendered the building to plaintiffs, who completed the same. They alleged that the building was practically completed when they abandoned it, and that it should have been completed for a sum not to exceed $ 150, and that if plaintiffs paid more than that it was because they added to the work and changed the plans and specifications. They alleged that plaintiffs, after taking charge of the work, took out certain molding which Roland & Gray had placed in the building, according to the contract and under the directions of the architect, and which had been accepted by him, and substituted therefor molding more costly and not included in the contract, and for which additional expense the defendants are not liable. They alleged that when they abandoned the contract there was due them on the contract price the sum of $ 458.50, which sum was more than sufficient to complete the building according to the contract; that plaintiffs did in fact complete it for a much smaller sum, and there was still due the defendants Roland & Gray the sum of $ 300. They alleged that after they abandoned the contract the amount they owed for labor and material did not concern the plaintiffs, further than to see that the claimant got his pro rata part of what remained of the contract price after completing the building according to the contract. They admitted that they owed bills for material and labor, but alleged that, if plaintiffs elected to pay off these claims, they did so voluntarily, and had no right to enforce same against the defendants in this action. They alleged that, while the building was not completed by the 20th day of June, 1911, (the time specified in the contract for the completion of same), they were delayed by the unwarranted interference of plaintiffs, who procured one Ferrell "to hang around the building and interfere with" the men in the employment of Roland & Gray, frequently requiring or demanding of them to "change, tear out and replace work which was being done strictly in accordance with the contract." That such interference delayed Roland & Gray ten days in their work. They alleged that they were also delayed by an unprecedented rainfall, amounting to an unavoidable casualty. They alleged that they applied to the architect for an extension of sixteen days on account of this, and alleged that they were not indebted to plaintiffs in the sum of $ 110 for delay in finishing the building.

They alleged that the plaintiffs committed the first breach of the contract by buying metal ceiling for the building without the knowledge or consent of the defendants; that in refusing to permit or allow defendants to buy any other ceiling plaintiffs breached their contract. They alleged that plaintiffs further breached their contract by failing to provide and maintain insurance as specified in the contract.

The bondsmen, who were also defendants, filed a separate answer, in which they admitted the execution of the contract and the execution and delivery of the bond as alleged. They admitted that Roland & Gray abandoned the work on July 5, 1911, and that the bondsmen were notified of such action on the part of Roland & Gray. They alleged that they immediately notified plaintiffs that they denied any liability whatever on the bond, and would not complete the building. They admitted that the plaintiffs did take charge of the building and complete the same. They denied the other allegations of the complaint. They set up that the plaintiffs breached the contract with Roland & Gray, first, by paying to the contractors Roland & Gray $ 8,341.50, which sum was in excess of 85 per cent. of the contract price, and also in excess of 85 per cent. of the value of the work done and material furnished; that plaintiffs also breached their contract by buying metal ceiling without the knowledge or consent of the contractors, and by refusing to permit the contractors to buy other ceiling. They alleged that the plaintiffs, after taking charge of the building, instead of finishing same according to the plans and specifications, made many material changes. They removed the moulding that had been put on according to the contract and substituted a more expensive moulding. They alleged other changes which it is unnecessary to set out.

They alleged that plaintiffs paid off claims amounting to $ 1,737.21, which could not have became liens, had plaintiffs complied with the law in such cases made and provided. They reiterated the allegations of the answer of Roland & Gray as to the interference by Terrell, and as to the failure of plaintiffs to maintain insurance according to the contract. They alleged that...

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4 cases
  • United States Fidelity & Guaranty Co. v. Parsons, 25685
    • United States
    • United States State Supreme Court of Mississippi
    • March 21, 1927
    ...upon this provision in the contract. Piaggio v. Somerville, 119 Miss. 6; G. & S. I. R. R. Co. v. Horn, 135 Miss. 804; Roland v. Lindsey, 104 Ark. 49, Ann. Cas. 1914C 332; Story's Equity Jurisprudence, section [147 Miss. 340] 325; 32 Cyc., pages 176-177; Gallagher v. St. Patrick's Church, 45......
  • United States Fidelity & Guaranty Co. v. Parsons, 25685
    • United States
    • United States State Supreme Court of Mississippi
    • March 21, 1927
    ...upon this provision in the contract. Piaggio v. Somerville, 119 Miss. 6; G. & S. I. R. R. Co. v. Horn, 135 Miss. 804; Roland v. Lindsey, 104 Ark. 49, Ann. Cas. 1914C 332; Story's Equity Jurisprudence, section [147 Miss. 340] 325; 32 Cyc., pages 176-177; Gallagher v. St. Patrick's Church, 45......
  • Blackstad Mercantile Co. v. Bond
    • United States
    • Supreme Court of Arkansas
    • June 3, 1912
    ...the judgment, nor that there was any design on the part of the appellant, or its attorneys, to practice deception either upon the court or [104 Ark. 49] upon appellees in taking judgment. The judgment was entered on the eighth day of the term, which gave appellees abundant time to prepare t......
  • Roland v. Lindsey
    • United States
    • Supreme Court of Arkansas
    • April 1, 1912
    ... 146 S.W. 115 ROLAND et LINDSEY et al. Supreme Court of Arkansas. April 1, 1912. Appeal from Circuit Court, Sevier County; Jeff T. Cowling, Judge. Action by E. B. Lindsey and others against R. R. Roland and Gray, doing business as Roland & Gray, and others. From a judgment for plaintiffs, d......

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