Trinity Universal Ins. Co. v. Willbanks
| Decision Date | 18 November 1940 |
| Docket Number | No. 4-6087.,4-6087. |
| Citation | 144 S.W.2d 1092 |
| Parties | TRINITY UNIVERSAL INS. CO. v. WILLBANKS et al. |
| Court | Arkansas Supreme Court |
Buzbee, Harrison, Buzbee & Wright, of Little Rock, for appellant.
Donham, Fulk & Mehaffy, and Cooper Jacoway, all of Little Rock, for appellees.
On October 18, 1938, appellee Willbanks entered into a written contract with Alfred M. Bracy, a building contractor, whereby the latter was to construct a residence and garage for the former according to plans and specifications at an agreed price of $7,798. On the same day appellant issued its bond guaranteeing the performance of the contract, in which Bracy was principal, appellant was surety and Willbanks obligee, and in which the penalty of the bond was fixed at $7,798. Bracy entered upon the construction of the buildings and completed same, but failed to pay all labor and material bills for which liens were filed and established totaling $1,498, including the claim of appellee Stebbins & Roberts, Inc., in the sum of $127.20. Bracy died and Van Manning was appointed administrator of his estate. Thereafter, Willbanks, brought suit against Bracy's administrator, appellant and all lien claimants to determine his rights under the bond. Appellant answered denying liability under its bond on grounds hereinafter mentioned. Stebbins & Roberts, Inc., intervened claiming a lien by virtue of a contract with Willbanks for the sale of wallpaper. There is no dispute as to any other lien claimant. Trial resulted in a judgment against appellant and the administrator for $1,489.80 which included the claim of Stebbins & Roberts, Inc., for $127.20, and a lien on the property was fixed, all claims bearing interest at 6% from December 4, 1939, less a credit of $391.75 retained by Willbanks and not paid to Bracy, which was the net amount held by Willbanks after deducting an allowance of $50 to complete certain minor repairs and adjustments found by the architect to be necessary in order to complete the construction contract. From this judgment there is an appeal and a cross-appeal by Willbanks as to the Stebbins & Roberts, Inc., claim.
For a reversal of this judgment appellant first says the court erred in allowing as a lien covered by its bond the claim of Stebbins & Roberts, Inc. The last material was furnished by the latter on January 11, 1939. On April 4, 1939 it gave notice to Willbanks that it would file its claim for a lien and on April 10, only six days after notice, it filed its affidavit for a lien. By Section 8876, Pope's Digest, the lien claimant is required to give 10 days' notice to the owner, and its cross-complaint was not filed within 90 days after furnishing the last material. It would appear, therefore, that the lien must fail, unless the claimant sold his material directly to the owner, in which case the notice is not necessary. Hess v. A. L. Ferguson Lbr. Co., 155 Ark. 240, 244 S.W. 5. The trial court found there was such a contract and sustained the lien. This finding depends on the evidence which is in dispute and we cannot say this finding is against the preponderance thereof.
But, appellant says that if such is the case, its bond does not cover "for the reason that the bond never had any relation to contracts of the owners to a third party". We cannot agree. The contract, plans and specifications provided for papering the house to the taste of the owner and the contractor made an allowance of $125 to cover the cost of these materials and it could make no possible difference to appellant whether Willbanks purchased the material or Bracy did. The court correctly allowed this claim as a lienable one against the property and as one covered by the bond.
It is next argued by appellant that its bond was discharged because the construction contract was...
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