Wyatt Lumber & Supply Company, Inc. v. Hansen

• Decision Date: 09 December 1940
• Docket Number: 4-6121
• Citation: 147 S.W.2d 366,201 Ark. 534
• Parties: WYATT LUMBER & SUPPLY COMPANY, INC. v. HANSEN
• Court: Arkansas Supreme Court

147 S.W.2d 366

201 Ark. 534

WYATT LUMBER & SUPPLY COMPANY, INC. v. HANSEN

4-6121

Supreme Court of Arkansas

December 9, 1940

Appeal from Union Chancery Court, Second Division; W. A. Speer Chancellor; affirmed.

Decree affirmed.

Mahony & Yocum and G. E. Snuggs, for appellant.

Sam Goodkin, for appellee.

OPINION

SMITH, J.

On August 25, 1938, Otto Hansen entered into a building contract with M. Friedman to remodel the latter's residence in the city of El Dorado. This contract was upon the consideration of $ 2,400, to be paid after the completion of the work. Friedman resided in the house to be remodeled, and continued to live in it while the remodeling work was in progress. During the progress of the work Friedman advanced Hansen $ 200, but made him no other payment. The contract did not require this payment until the work was completed.

The contract detailed the work to be done, but provided that "The owner may, at any time during the progress of the work, alter, or change or subtract from or add to the plans and specifications without violating the contract, or the terms thereof, provided, that, if the cost of the work be increased by any such change or alteration, the amount of such increase shall be added to the contract price herein agreed upon and paid upon the completion of the work." Various changes and additions were made to the plans and specifications, but, under the provisions of the building contract above copied, they became a part of the contract.

While the parties were operating under this contract, the Wyatt Lumber & Supply Company, Inc., hereinafter referred to as the Wyatt Company, furnished the building materials required. These amounted to the sum of $ 1,267.36. Hansen, the contractor, was unable to meet his labor payrolls, and the Wyatt Company furnished Hansen money for this purpose in the sum of $ 1,263.32. The advances of money and the sales of materials occurred between the dates of September 19th and December 3rd, 1938, on which last-named date Hansen quit the job.

Included in the extra work which Hansen was directed to do, and agreed to do, was the erection of a new garage and the construction of a concrete driveway leading thereto, as the place of the erection of the new garage rendered the driveway leading to the old garage unavailable. The floor of the old garage was demolished and the garage was rendered unusable, and was not replaced by Hansen, nor did he construct the new driveway.

After Hansen quit the job, Peters & Cramer, building contractors, were employed to make an estimate of the cost of the unfinished work and the cost of the extra work not called for in the original contract which Hansen had done. This estimate amounted to $ 469.52, and represented work which Hansen was expected and had agreed to do and to be paid the cost of any part thereof not included in the original contract, in addition to the $ 2,400.

About January 1, 1939, a leak developed in the roof valley, and the manager of the Wyatt Company testified that the Friedmans called upon that company to complete the job Hansen had contracted to perform. The roof was repaired, at a cost of $ 14.37, of which $ 8.37 was for materials, and $ 6 for labor.

Upon the allegation that this work was a continuation of the Hansen job, being a repair upon a job otherwise substantially completed, the Wyatt Company filed suit to collect this $ 14.37 item, together with its bill for materials furnished and for labor paid for the account of Hansen. All of this account, except the item of $ 14.37, had been charged on the books of the Wyatt Company against Hansen, and, for identification, was referred to on the books as the "Friedman Job."

Hansen had left the State, and constructive service by the publication of a warning order was had against him. Friedman and his wife were served with summons. In addition, a writ of garnishment was issued against Friedman, in which it was sought to impound any balance due by him to Hansen. Interrogatories were propounded to Friedman, in which he was required to answer what money, if any, he owed Hansen. Friedman filed an answer containing a general denial of indebtedness, in which he reserved the right to answer in greater detail, and thereafter he filed an amendment to his answer in which he set out the substance of the defense which he interposed at the trial.

There was no denial of the garnishee's amended answer, as required by § 6125, Pope's Digest. It was held in the case of Beasley v. Haney, 96 Ark. 568, 132 S.W. 646, that this denial must be in writing, and that the answer of a garnishee must be taken as prima facie true, and, if not controverted, or if no issue is taken thereon, it will not be presumed to be absolutely true. And in the case of Southwestern Gas & Electric Co. v. W. O. Perkins & Son, 185 Ark. 830, 49 S.W.2d 606, it was said that unless there was a denial of the garnishee's answer entered of record, the presumption as to the truth of its allegations becomes conclusive. See, also, Hoxie Lumber Co. v. Chidister, 184 Ark. 612, 43 S.W.2d 69; Bank of Shirley v. Bonds, 178 Ark. 1079, 13 S.W.2d 816.

Another reason why relief by way of garnishment may not be awarded the Wyatt Company is that the building contract was not fully completed. It is argued that there had been a substantial compliance with the original written building contract. But the court made a specific finding to the contrary; and we cannot say that this finding is contrary to the preponderance of the evidence. But, even so, by the terms of the written contract, additions thereto became a part thereof.

In Friedman's brief, twelve items are enumerated in respect to all of which it is insisted that the contract was incomplete, but, if performed at all, had not been performed in a "good and workmanlike manner," as the...