Terry v. Little
| Decision Date | 01 July 1929 |
| Docket Number | 71 |
| Citation | 18 S.W.2d 916,179 Ark. 954 |
| Parties | TERRY v. LITTLE |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; affirmed.
Judgment affirmed.
Buzbee Pugh & Harrison and McCaleb & McCaleb, for appellant.
Cunningham & Cunningham, for appellee.
The cases named in the caption were consolidated in the circuit court for the purpose of trial, and, as consolidated, have been brought to this court on appeal. For convenience this court will consider first case, No. 1020, W. E. Lemay and A D. Little v. E. L. Terry and Southern Surety Company, the defendants in the court below being the appellants here.
E. L. Terry was engaged, in the year 1927, as a general contractor, in building certain roads between Alicia, Arkansas, and Tuckerman, Arkansas. A. D. Little was employed as subcontractor on said road, and did certain dirt work in building a dump, and also did some day work on the road. The Southern Surety Company was the surety on the bond of E. L. Terry, and obligated itself, by the terms of the bond, to insure the payment of the work and material done or furnished. W. E. Lemay seems to have been engaged in furnishing supplies to the subcontractor, A. D. Little, and to other subcontractors, and in the case of Little there was an agreement between Little, Lemay and Terry that the latter was to pay to Lemay the amounts due Little, and Little executed an assignment of the amount due him to Lemay. After the completion of the work which Little had agreed to do, Lemay and Little brought suit against Terry and his surety, the Southern Surety Company, for the balance alleged to be due of $ 859.04, and incorporated in their complaint the following statement:
The defendant Terry moved the trial court that the plaintiffs be required to file an itemized and verified account, alleging that the statement filed was insufficient in that it failed to show each separate item of work claimed to have been done or material furnished, the dates of same, et cetera. The court overruled the motion, to which action the defendant excepted. The defendant Terry then filed a demurrer to the complaint, which was overruled, and thereupon he filed his answer, and motion to transfer the case to the chancery court. The motion to transfer to chancery was overruled, and the case was submitted to the court sitting as a jury, who, after having heard the testimony, rendered judgment in favor of the plaintiff for the sum of $ 7.50 against the defendant Terry and for an additional sum of $ 560.56 against the defendants E. L. Terry and the Southern Surety Company.
The appellants, as ground for reversal, insist that the court erred in refusing to require appellees to file an itemized and verified account of the claim sued on, and also that it was error for the court to refuse to transfer the case to equity, and because the court allowed judgment for the item of $ 125 for "balance of yardage not paid for in June."
The court is of the opinion that the statement of the items in the complaint was sufficient, and that no additional information was necessary to apprise defendants of the nature of plaintiff's claim, especially because the very information sought was at their command (Brooks v. International Shoe Co., 132 Ark. 386, 200 S.W. 1027), and that there was no such involved or complicated account as would make a transfer to chancery and the appointment of a master necessary. Cherry v. Kirkland, 138 Ark. 33, 210 S.W. 344; McCraw, Perkins & Webber Co. v. Yates, 175 Ark. 220, 298 S.W. 1001. The evidence, while confused and unsatisfactory, was sufficient to show that there was practically no dispute as to the amount and character of the work done or the price agreed upon, the question being whether the work on the Little contract was paid for; but the appellees do not challenge the sufficiency of the testimony. From the judgment rendered it is evident that the court reduced the amount of plaintiff's claim, and we are unable to determine what particular item it rejected, so that it might have been that the item of $ 125 for "balance yardage not paid for in June" was the item excluded. But, even if that were not the case, the complaint was treated as amended to conform to the proof, and there is no allegation of surprise or request for any continuance to meet the change in the issue, so that, in any view of the case, the appellant's third ground for reversal must be rejected. The conclusion of the court is that no reversible error was committed, and that the finding and judgment of the trial court should be and the same is hereby in all things affirmed.
We next consider case No. 1019, E. L. Terry and Southern Surety Co. v. W. E. Lemay. For his cause of action W. E. Lemay, in his original complaint, alleged that the defendant Terry was a general contractor, building State Road No. 67 between the towns of Swifton and Tuckerman, in Jackson County, Arkansas, and that the defendant employed the teams of plaintiff, known as "three-up teams," at the rate of 75 cents per hour per team for 417 hours, and that he was due for this the sum of $ 312.75, which was past due and unpaid. The defendant Terry moved the court to require the plaintiff to file an itemized and verified account of the claim sued on, which motion was overruled, and exceptions duly saved by the defendant.
After cases No. 1019 and 1020 were consolidated, the plaintiff Lemay in this case filed an amended complaint making the same allegations as in his original complaint, with the addition of the words "and drivers" after the words "three up-teams," and also alleged that the Southern Surety Company was bound on its bond for the payment of this item, and exhibited a copy of the bond with his amended complaint. To this amended complaint the defendant Southern Surety Company demurred, and it and the defendant Terry filed their separate answers. Upon the issues thus joined the case was submitted to the court sitting as a jury, and a judgment was rendered in favor of the plaintiff and against both defendants for the sum sued for.
It is urged on the part of the appellant Terry, first, that the court's refusal to require the appellee to file an itemized account, duly verified as required by law, was prejudicial error, and cites the case of Brooks v. International Shoe Company, 132 Ark. 386, 200 S.W. 1027, in support of his contention. The accounts in the Brooks case and in the instant case are essentially different. In the Brooks case the account was for merchandise, and contained a number of debit items, presumably for the gross amount of invoices, without setting out the different items; and in the case at bar what is called an account by the appellant is the following statement: As stated in Brooks v. International Shoe Co., supra, ."
In the instant case it is evident that Lemay had no information relative to the work done except such as was furnished him by the foreman and time-keeper, so that it was stated with as much particularity as the nature of the transaction would admit, and the party called upon to account is not subjected to the necessity of doing an impracticable thing. Inasmuch as the statement which is the basis of this suit was made by the foreman and time-keeper, it was sufficiently definite to apprise the opposite party of the evidence to be offered, so the court is of the opinion that ...
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