Stewart-McGehee Construction Co. v. Brewster and Riley Feed Manufacturing Co.

• Decision Date: 24 May 1926
• Docket Number: 5
• Citation: 284 S.W. 53,171 Ark. 197
• Parties: STEWART-MCGEHEE CONSTRUCTION COMPANY v. BREWSTER AND RILEY FEED MANUFACTURING COMPANY (2 CASES)
• Court: Arkansas Supreme Court

284 S.W. 53

171 Ark. 197

STEWART-MCGEHEE CONSTRUCTION COMPANY v. BREWSTER AND RILEY FEED MANUFACTURING COMPANY (2 CASES)

No. 5

Supreme Court of Arkansas

May 24, 1926

Appeal from Jefferson Circuit Court; T. C. Parham, Judge; affirmed.

Judgments reversed, and causes dismissed.

Abner McGehee, for appellant.

Rowell & Alexander and Harry T. Wooldridge, for appellee.

OPINION

WOOD J.

These were separate actions filed in the Jefferson Circuit Court bye the appellees, material furnishers, against the appellants. The complaints alleged, in substance, that the respective plaintiffs had furnished material to one J. C Shepherd, which material was used in the Hippodrome Theater building in the city of Pine Bluff, and which material had not been paid for; that Shepherd was a subcontractor of the Stewart-McGehee Construction Company, hereafter called company, and had a contract for building the theater; that the company was liable to the appellees under a bond containing the following provisions, to-wit: "That we, Stewart-McGehee Construction Company, a corporation, as principal, and the Fidelity and Deposit Company of Maryland Baltimore, Md., as surety, are held and firmly bound unto the State of Arkansas, for the use of the Hippodrome Theater Company, a corporation incorporated under the laws of the State of Louisiana, its successors and assigns, and all persons in whose favor liens might accrue, under chapter 110 of Crawford & Moses' Digest of the Statutes of Arkansas, including all subcontractors, laborers, workmen, mechanics and material furnishers, and other persons having claims which might be the basis of liens, both jointly and severally, as their interests may appear, in the full sum of three hundred and twenty-four thousand dollars ($ 324,000) lawful money of the United States of America, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, administrators, executors, assigns and successors."

The company demurred and answered. It denied liability, and set up that the appellees had failed to file with the clerk of Jefferson County an itemized statement of account for the material alleged to have been furnished by them, duly verified. The causes were by consent consolidated for trial and tried by the court sitting as a jury. After hearing the testimony, the court rendered judgments in favor of the appellees.

1. The only question presented by this appeal is whether or not the company is liable under the provisions of its bond. No issue is raised as to the amounts of the judgments. The company contends that it is not liable because the appellees failed to comply with the provisions of § 6922 of C. & M. Digest, requiring them to establish their liens by filing with the circuit clerk of the county in which the building is situated, within ninety days after the material was furnished, a just and true account of the demand due and owing them, etc. Section 6912 of C. & M. Digest is as follows: "The principal contractor may execute a bond to the State of Arkansas, for the use of all persons in whose favor liens might accrue, under § 6906 et seq., conditioned for the payment of all claims which might be the basis of liens; which bond shall be in a sum of not less than double the amount of the contract price, with good and sufficient sureties, whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, and may file such bond in the office of said clerk; provided, that if such bond is not filed, all laborers, mechanics, and material furnishers, except the principal contractor, shall have a lien for the unpaid amount of their claims against the building erected and improved and against the lot of ground upon which the same is situated, and provided in this chapter. Provided, that if the owner shall require the contractor to execute bond, and the same shall be executed, approved and filed, as herein provided, he shall not be liable, nor shall the building, erection or improvements, nor shall the lot or ground upon which the same is situated, be liable for any sum or sums of money due subcontractor, laborers or materialmen because of any work done, labor performed, or material furnished in the erection of said building erected, or improvements under contract with said principal contractor or subcontractor. Suit may be brought on said bond by any person interested."

Section 6922, supra, requiring liens to be established, is § 11 of the comprehensive lien law enacted April 20, 1895. Section 6912, supra, permitting the principal contractor to execute a bond for the use of all persons in whose favor liens might accrue, is the first section of act 446 of the Acts of 1911, enacted June 2, 1911. The provisions of the last enactment show that it was an amendment to the prior lien law, related to the same subject-matter, and is in part materia. Therefore, to ascertain its meaning, it must be construed in connection with the provisions of chapter 110 of C. & M. Digest, relating to mechanics', laborers' and material furnishers' liens. Pope v. Nashville, 131 Ark. 429 at 429-437, 199 S.W. 101; State v. Boney, 156 Ark. 169 at 169-174, 245 S.W. 315; McIntosh v. Little Rock, 159 Ark. 607 at 607-610, 252 S.W. 605. See also Beloate v. Baker & Co., 126 Ark. 67 at 67-71, 189 S.W. 354. Giving due consideration to the above rule for the construction of the statute, we are convinced that it was the intention of the Legislature to provide an entirely different method to be pursued by the owner, the contractor, and the person in whose favor liens might accrue under the provisions of chap. 110, § 6906, C. & M. Digest, for the establishment, security and payment of claims, than that to be pursued under that chapter prior to the enactment of act 446, supra.

It will be observed that it is not obligatory upon the owner of the improvement to require the principal contractor to execute a bond. He may do so or not, as he deems to his interest. Likewise, the contractor is not required by virtue of the law to execute a bond. He may refuse to do so. It is entirely a matter between the contractor and the owner as to whether the bond provided by statute shall be executed. But, where such bond is required by the owner and executed by the principal contractor, then the persons for whose use and benefit the bond is executed (§ 6906 supra) must look to the bond as their security for the payment of their claims and not to a lien on the improvement. In other words, where the bond provided for under § 6912 of C. & M. Digest is not executed, those who are given a lien under § 6906, supra, must comply with the provisions of § 6922, supra, in order to avail themselves of the benefit of such lien; but, if the bond is executed as provided by § 6912, supra, then the parties having claims which might be the basis of liens do...