Thomas v. Jackson

• Decision Date: 18 November 1912
• Parties: THOMAS v. JACKSON.
• Court: Arkansas Supreme Court

151 S.W. 521

THOMAS v. JACKSON.

Supreme Court of Arkansas.

November 18, 1912.

Appeal from Circuit Court, Lawrence County; R. E. Jeffery, Judge.

Action by Earl Thomas against W. T. Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee brought suit against appellant for a balance of $329.21 due upon a contract for the building of a bungalow in Hoxie, and for foreclosure of a mechanic's lien. Appellant filed answer and cross-complaint, denying any indebtedness, admitted the payment of $450 on the contract price for use in the purchase of materials and paying of laborers, denied that appellant complied with his contract, claimed damages for defective and unworkmanlike construction and bad materials, alleged that it would cost the sum of $600 more than the balance claimed under the contract to put the house in such condition as appellee agreed to construct it, and that it was not constructed in substantial compliance with the contract, and that he was damaged in the said sum of $450 already expended thereon. The facts are, substantially, that the written contract was entered into between the parties for the construction of a one-story bungalow in the town of Hoxie, appellee agreeing to furnish materials and build the house for $743.46; the house to be built according to a certain plan drawn by appellant, with the interior and exterior arrangements as shown in the plan and certain photographs, the contract not including the canvassing, papering, and painting of the house. "Said plan includes one fireplace, chimney exposed inside, and is to be built outside of red pressed brick." Appellee testified that he was to be paid certain amounts for extras, as set out; the whole amount of the contract price, with extras, being $781.46. He acknowledged receipt of $450, and also a credit of $2.25 for broken glass, and claimed a balance due of $329.21.

The appellant moved into the house with his family at about the time appellee was constructing the chimney, and, discovering that he was not going to use a certain kind of brick made in Coffeyville, refused to permit him to build the chimney, notwithstanding appellee was insisting on doing so and using a red pressed brick purchased from Jonesboro, which he claimed and stated was in accordance with the terms of the contract, and also that he was unable to get the Coffeyville brick because of the excessive freight rate. Appellant testified that the house was not placed upon a level foundation; that the floors sagged; that one wall was 12 inches lower than the opposite wall; that the window and door casings were not square; and that one side of the roof was longer than the other — the comb not being in the center of the house — and that it would cost more to build the house properly in accordance with the contract than the original contract price; and that it had cost him $75 to construct the chimney, which he refused to let appellee build, because he was not going to use the Coffeyville brick therein. After the contract was entered into, appellee showed appellant a brick made in Coffeyville, which was being used at the Baptist Church, and told him he thought he could get the brick to build the chimney from the church, and would use that kind if he could procure it. He was unable to get this brick and was using another red pressed brick, which he claimed was in accordance with the contract, when appellant refused to...