Terry v. Klein, 192

CourtSupreme Court of Arkansas
Writing for the CourtMCCULLOCH, C.J.
Citation201 S.W. 801,133 Ark. 366
PartiesTERRY v. KLEIN
Docket Number192
Decision Date04 March 1918

201 S.W. 801

133 Ark. 366

TERRY
v.
KLEIN

No. 192

Supreme Court of Arkansas

March 4, 1918


Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor; affirmed.

Decree affirmed.

David D. Terry, for appellants.

1. The lien claim was not a just and true account under our lien statute. Kirby's Digest, § 4981; 103 S.W. 518; 78 N.W. 344; 86 Mo. 277; 60 S.W. 64; 10 N.W. 338; 11 S.W. 225; 8 Mo.App. 587; 80 Va. 573.

2. A sub-contractor should itemize his account for a lien. 2 Jones on Liens, (3d Ed.) § 1416; 59 W.Va. 370; 44 Pa.St. 47; 12 Phil. 458; 168 Pa.St. 634; 244 Id. 6; 48 N.E. 956; 87 Pa.St. 142; 180 Id. 168; 57 Ark. 284; 72 Me. 106; 117 Ark. 626.

3. No notice of intention to claim lien for labor was served. 2 Jones Liens (3 ed.), §§ 1419, 1412, 1323; 152 S.W. 119.

4. Only a lien for materials actually used under contract with principal contractor can be asserted. 51 Ark. 309.

A partnership is not entitled to a lien for labor performed by its employees. Kirby's Digest § 4970; 65 Ark. 183; 80 Id. 516; 71 Id. 338.

The lien claim was defective because it did not contain requisite averments. Kirby's Digest § 4976, 4981; Rockel on Liens, § 100; 57 A. 957; 47 La.Ann. 533; 30 Mo.App. 595; 59 N.W. 110; 39 P. 509; 32 Oh. C. C. 16.

The sub-contractor was only entitled to his pro rata of amount due to principal contractor. 77 Ark. 156; 107 Id. 245.

The claim was not properly verified. It was before a Notary Public of a foreign State who was a woman. 2 Jones Liens (3d Ed.) § 1481; 73 Ala. 390; 42 Ark. 103; 107 Id. 272; Kirby & C. Dig. §§ 3465, 7160.

The partners were not made parties plaintiff. 67 Ark. 27; 91 Id. 10; 93 Id. 447; 114 Id. 464.

Cockrill & Armistead, for appellees.

1. The account filed complied with the statute. Kirby's Dig. § 4981; 30 Ark. 568; 49 Id. 478; 51 Id. 309; 51 Id. 302; 54 Id. 93; 56 Id. 544; 57 Id. 284; 83 Me. 22, A. 388; 97 Mo. 365; 27 Cyc. 188.

It was a just and true account and was for materials actually furnished and used and all proper credits were given.

The claim should not be pro rated. 85 Ark. 410; 122 Id. 522.

The claim was properly verified. Kirby's Dig. §§ 3465, 4981; 7 L. R. A. 149; 44 N.W. 308; 47 S.E. 965. There is no proof that the Notary was a woman.

There is no defect of parties. The partners' names appear in full.

On the cross-appeal the two items should have been allowed.

OPINION

[133 Ark. 368] MCCULLOCH, C.J.

Appellants are the owners of two adjoining lots with a frontage of 100 feet on Main Street in the City of Little Rock, and in the year 1912 they let a contract to the Shenk Construction Company (an Oklahoma corporation) for the construction of a building to be occupied as a department store. The contractor proceeded with the work of constructing the building, but abandoned the building before the work was completed, and appellants had to complete the building themselves. Said principal contractor while engaged in carrying out the contract purchased material from appellees, who were manufacturers of structural and ornamental iron work in the State of Oklahoma. Appellees furnished certain materials which were used in the building by the principal contractor, and this is an action instituted by them against appellants to enforce the lien on the building and lot for the amount of the unpaid account. There are two gross items in the account which, according to the testimony adduced by appellants, represent separate contracts made by them with the principal contractor for iron work used in the building. At the time the principal contractor abandoned the job one of the contracts between the present claimant and the principal contractor had not been completed, but was subsequently completed under a contract between appellants as owners and appellees. The work of completing the contract was paid for by appellants and a credit of $ 285.00 was given on the account. Appellants defended against the asserted lien on numerous grounds.

In the first place it is contended that there is no lien because an itemized account was not filed, it being contended on behalf of appellants that the statute requires an itemized sworn account, and that the failure to itemize the account defeats the lien. The statute provides that in order to make the lien effectual the lienor must "file with the clerk of the circuit court [201 S.W. 802] of the county in which the building, erection or other improvement, to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit." Kirby's Digest, sec. 4981.

Conceding that the words "just and true account" mean, as ordinarily construed, an itemized account, (Brooks v. International Shoe Co., 132 Ark. 386, 200 S.W. 1027) this court has decided that failure to itemize the account does...

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4 practice notes
  • Ford Hardwood Lumber Co. v. Bryant, 83
    • United States
    • Supreme Court of Arkansas
    • January 7, 1929
    ...an account to the earlier items is not an inflexible one, to be enforced when contrary to the intention of the parties." Terry v. Klein, 133 Ark. 366, 201 S.W. 801. Not only did both parties testify that the note was not to be paid at once, but the testimony also shows that statements of th......
  • Georgia State Sav. Ass'n v. Marrs, (No. 176.)
    • United States
    • Supreme Court of Arkansas
    • October 15, 1928
    ...by the claimant himself. It is a sufficient compliance with the law if the affidavit is made and filed. In the case of Terry v. Klein, 133 Ark. 366, 201 S. W. 801, the court, in holding that section 6922, C. & M. Digest, did not require that an itemized account be filed, "* * * For, after a......
  • Augusta Cooperage Co. v. Parham, (No. 37.)
    • United States
    • Supreme Court of Arkansas
    • June 16, 1919
    ...debtor as to the application. Faisst v. Waldo, 57 Ark. 270, 21 S. W. 436; Everton v. Day, 66 Ark. 73, 48 S. W. 900, and Terry v. Klein, 133 Ark. 366, 201 S. W. As will be seen from the statement of facts made above, there is a direct and irreconcilable conflict in the testimony as to the ap......
  • B. S. Halbert & Son v. Baker, (No. 306.)
    • United States
    • Supreme Court of Arkansas
    • March 26, 1928
    ...is the same where the lien is sought to be enforced by one with a contract direct with the owner and by a subcontractor. Terry v. Klein, 133 Ark. 366, 201 S. W. In that case it is also held that, where labor and material are placed in the construction of a house as a completed job, the cont......
4 cases
  • Ford Hardwood Lumber Co. v. Bryant, 83
    • United States
    • Supreme Court of Arkansas
    • January 7, 1929
    ...an account to the earlier items is not an inflexible one, to be enforced when contrary to the intention of the parties." Terry v. Klein, 133 Ark. 366, 201 S.W. 801. Not only did both parties testify that the note was not to be paid at once, but the testimony also shows that statements of th......
  • Georgia State Sav. Ass'n v. Marrs, (No. 176.)
    • United States
    • Supreme Court of Arkansas
    • October 15, 1928
    ...by the claimant himself. It is a sufficient compliance with the law if the affidavit is made and filed. In the case of Terry v. Klein, 133 Ark. 366, 201 S. W. 801, the court, in holding that section 6922, C. & M. Digest, did not require that an itemized account be filed, "* * * For, after a......
  • Augusta Cooperage Co. v. Parham, (No. 37.)
    • United States
    • Supreme Court of Arkansas
    • June 16, 1919
    ...debtor as to the application. Faisst v. Waldo, 57 Ark. 270, 21 S. W. 436; Everton v. Day, 66 Ark. 73, 48 S. W. 900, and Terry v. Klein, 133 Ark. 366, 201 S. W. As will be seen from the statement of facts made above, there is a direct and irreconcilable conflict in the testimony as to the ap......
  • B. S. Halbert & Son v. Baker, (No. 306.)
    • United States
    • Supreme Court of Arkansas
    • March 26, 1928
    ...is the same where the lien is sought to be enforced by one with a contract direct with the owner and by a subcontractor. Terry v. Klein, 133 Ark. 366, 201 S. W. In that case it is also held that, where labor and material are placed in the construction of a house as a completed job, the cont......

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