Wilmot v. West
| Decision Date | 21 March 1921 |
| Docket Number | 235 |
| Parties | WILMOT v. WEST |
| Court | Arkansas Supreme Court |
Appeal from Garland Chancery Court; J. P. Henderson, Chancellor affirmed.
STATEMENT OF FACTS.
E. O West brought suit in equity against S. G. Wilmot for $ 1,884.35, alleged to be due him for materials furnished and labor performed in making certain improvements upon a two-story frame dwelling house in the city of Hot Springs Arkansas, belonging to S. G. Wilmot, and also to have the amount recovered declared to be a lien on the house and the lot upon which it is situated.
E. B Mooney also brought suit in equity against S. G. Wilmot to recover $ 300 for materials furnished and labor performed upon the same house under a sub-contract with West and to have the amount recovered declared a lien upon said house and lot. The two suits were consolidated and tried together upon a state of facts substantially as follows:
Mrs. S G. Wilmot owned a two-story frame house situated on a lot in Hot Springs, Arkansas, which she had purchased for $ 5,000. She wished to have material alterations and repairs made on the property, and in September, 1917, entered into a written contract with E. O. West for that purpose. The contract provided that the repairs should be constructed in accordance with the specifications accompanying the contract, and that all the materials furnished and the labor done should be furnished and executed in a first-class and workmanlike manner. The consideration recited was $ 2,655. The specifications provided for the excavation for front steps and a driveway on the lot. It provided for a concrete retaining wall, a concrete walk, and other concrete work. It also provided for a cobblestone fence, 120 feet long, 12 inches thick, and not to exceed 2 1/2 feet high. It provided that the contractor might use all the materials taken out of the building available to be re-used and furnish the rest of the materials except as specified in the contract. The owner was to furnish shingles for the roof of the porch and the garage. The garage was to be one-story and of the size and specifications provided in the contract. The contract also provided for a butler's pantry, a kitchen, and a sleeping porch of the kind and character designated in the specifications. It provided for an extension of the front porch and the kind and character of materials to be used in constructing and roofing it.
Subsequently Mrs. Wilmot made additional agreements with West for material changes and alterations in her plans for repairing the dwelling house. The sleeping porch was changed into a room, and the front porch was altered so as to make it two stories high with a sleeping porch on the second story. The plans for the garage were changed so as to make it two stories high. The roofs of the garage and of the front porch were changed from shingle to some sort of composition roofs. This was done because the change of the front porch from one story to two stories and of the garage would make the roof so flat that it was not practical to have a shingle roof on either of them. Numerous other changes in the plans for the repairs of the interior of the house were agreed upon between the parties.
When the repairs were near completion, Mrs. Wilmot called in F. J. W. Hart, an architect of thirty years' experience, to inspect the work which had been done by Mr. West. Mr. Hart testified that the hardwood floors put in by West were better than the average, but that the general character of the work done by West on the remainder of the building was of very common grade. He stated in detail the defects in the work.
Mrs. Wilmot also testified in detail about the defects in the materials furnished and the work done by Mr. West on the house. Her husband was her agent in making the contract, and he also testified that neither the materials nor the workmanship came up to the specifications required by the contract.
E. B. Mooney was a sub-contractor under E. O. West and did the stone work required by the contract for West. Certain changes in the stone work were agreed upon by the parties during the progress of the work. West and Mooney were witnesses for each other. Each testified that the work strictly came up to the specifications of the original contract except where alterations were agreed upon between the parties, and that where alterations were agreed upon, the work both in regard to workmanship and materials came up to the specifications of the contract. They also testified that, after the contract had been completed, Mrs. Wilmot went with them to the building and examined the repairs in detail, and admitted to them that the work done and the materials used came up to the specifications of the contract and that she owed them respectively the amounts claimed. Each claimed the amount sued for in this action.
During the progress of the trial the chancellor appointed, with the consent of the parties, two persons to make an examination of the work and materials used and to make a report to him thereof. The men appointed were empowered to take additional testimony if necessary. They made their report to the court of the amounts which should be allowed West and Mooney, and the court substantially followed their report in making its finding of the amounts due by Mrs. Wilmot to West and Mooney.
Two witnesses testified that it would be difficult to tell whether the materials came up to specifications after they had been put into the building. One of them said that it was not a first-class job, and the other stated that it looked to be a fair job. Two other witnesses testified that the reputation of Hart in the community for truth was bad. Other testimony will be stated or referred to in the opinion.
The chancellor was of the opinion that E. O. West should recover of Mrs. S. G. Wilmot the sum of $ 1,154.18, and that E. B. Mooney should recover of her the sum of $ 300. It was decreed that these sums should be a lien upon the lot and dwelling house in question, and that the house and lot should be sold for the purpose of paying the amounts found to be due West and Mooney respectively, if payment was not made to them within thirty days after the date of the decree.
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