Withrow v. Wright

• Decision Date: 27 June 1949
• Docket Number: No. 4-8915.,4-8915.
• Citation: 222 S.W.2d 809
• Parties: WITHROW et al. v. WRIGHT et al.
• Court: Arkansas Supreme Court

222 S.W.2d 809

WITHROW et al. v.WRIGHT et al.

No. 4-8915.

Supreme Court of Arkansas.

June 27, 1949.

Rehearing Denied October 3, 1949.

Appeal from Pulaski Chancery Court, First Division; Frank H. Dodge, Chancellor.

Action by N. C. Withrow, Jr., and others against Oren Wright and others to recover damages for breach of a building contract and to enjoin contractor from filing a lien, wherein named defendant filed a counterclaim. From a decree in favor of named defendant, plaintiffs appeal.

Decree affirmed in part and in part reversed and cause remanded for proceedings not inconsistent with opinion.

Warren E. Wood and Griffin Smith, Jr., Little Rock, for appellants.

Digby & Tanner, North Little Rock, for appellees.

McFADDIN, Justice.

This suit involves a building contract.On March30, 1948 N. C. Withrow, Jr. (hereinafter called owner) entered into a contract with O. A. Wright(hereinafter called contractor) for the construction of a residence.Work began on April 1, 1948 and continued until some time in July, 1948, when the contractor left the job after the architect refused to allow the interior of the house to be plastered.On October 1, 1948 the owner filed this suit against the contractor, claiming damages in the sum of $4564.01, and seeking an injunction to prevent the contractor from filing a lien on the property.The contractor counter-claimed for $4901.51, as the balance on the contract.Trial in the Chancery Court resulted in a decree awarding and contractor (1) a judgment for $4652.81 and (2) a lien on the property for the payment of said judgment.To reverse that decree, there is this appeal.

The contract provided, inter alia: "The Contractor shall furnish all of the materials and perform all of the work shown on the Drawings and described in the Specifications entitled two (2) bedroom residence, as per plans and Specifications prepared by Nevil C. Withrow, Sr., with exceptions as noted on proposal dated February 6, 1948."

It is admitted by all parties that the contractor was not "to furnish all of the materials", even though so stated in the contract, since the specifications and also the proposal varied the quoted language.Section 6 of the specifications, even as deleted when offered in evidence, showed the materials to be furnished by the owner to be: "Metal frames and trim; copper coat paper, thresholds; sliding door, tracks and hardware; aluminum sills; waterproofing and dampproofing; cement floor colors; plate glass settings; aluminum windows and screens; Zonolite concrete and plaster aggregate."

Furthermore, the proposal of February 6, 1948 showed the following items to be furnished by the owner: "Metal door frames and trim; copper coat paper; thresholds; sliding door tracks and hardware; aluminum sills; waterproofing and dampproofing; cement floor colors; plate glass; window glass, glazing and setting; aluminum window trim and screens; Zonolite concrete and plaster aggregate; weather stripping; window cleaning; building paper; all cabinets; mirrors; fireplace dampers; insulation material; Parkay flooring and labor; electric wiring, fixtures and labor; heating system; landscaping."

The plans, Specifications and drawings were frequently changed by the architect, and during the course of the work the owner paid the contractor a total of $3854.15 on the contract and extras.From the inception of the work until the contractor left the job some time in July, there were ever recurrent changes in plans and also constant strife between the owner and architect on the one side, and the contractor and his workers on the other.The testimony is in the sharpest conflict as to who was at fault.

The architect is the father of the owner, and seems to have taken complete charge and acted both as architect and as owner in the place of his son, N. C. Withrow, Jr.At one time the owner asked one of the workmen why something was being done which was a change in the plans; and when the workman advised the owner that Mr. Withrow, Sr. had ordered the change, then the owner replied: "Well, don't ever ask me another thing about...