{ "id": 1360541, "name": "Hess v. A. L. Ferguson Lumber Company", "name_abbreviation": "Hess v. A. L. Ferguson Lumber Co.", "decision_date": "1922-10-16", "docket_number": "", "first_page": "240", "last_page": "245", "citations": [ { "type": "official", "cite": "155 Ark. 240" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "42 Ark. 285", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723776 ], "opinion_index": -1, "case_paths": [ "/ark/42/0285-01" ] }, { "cite": "40 Ark. 429", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897200 ], "opinion_index": -1, "case_paths": [ "/ark/40/0429-01" ] }, { "cite": "76 Ark. 292", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501113 ], "opinion_index": -1, "case_paths": [ "/ark/76/0292-01" ] }, { "cite": "49 Ark. 475", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309255 ], "opinion_index": -1, "case_paths": [ "/ark/49/0475-01" ] }, { "cite": "30 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881136 ], "opinion_index": -1, "case_paths": [ "/ark/30/0568-01" ] }, { "cite": "51 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722411 ], "opinion_index": -1, "case_paths": [ "/ark/51/0302-01" ] }, { "cite": "93 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546839 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/93/0277-01" ] }, { "cite": "44 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893356 ], "opinion_index": -1, "case_paths": [ "/ark/44/0202-01" ] }, { "cite": "33 Ark. 497", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724824 ], "opinion_index": -1, "case_paths": [ "/ark/33/0497-01" ] }, { "cite": "95 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543539 ], "opinion_index": -1, "case_paths": [ "/ark/95/0032-01" ] }, { "cite": "114 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "51 L. R. A. 76", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "144 Ark. 464", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "122 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558193 ], "opinion_index": -1, "case_paths": [ "/ark/122/0141-01" ] }, { "cite": "38 Conn. 445", "category": "reporters:state", "reporter": "Conn.", "opinion_index": -1 }, { "cite": "114 Ark. 464", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536332 ], "opinion_index": 0, "case_paths": [ "/ark/114/0464-01" ] }, { "cite": "93 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546839 ], "opinion_index": 0, "case_paths": [ "/ark/93/0277-01" ] }, { "cite": "122 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558193 ], "opinion_index": 0, "case_paths": [ "/ark/122/0141-01" ] } ], "analysis": { "cardinality": 461, "char_count": 8714, "ocr_confidence": 0.488, "pagerank": { "raw": 1.1850200046748689e-07, "percentile": 0.5896419057636179 }, "sha256": "5be9e9f918b892f2a46689d8be3ce2f795b02521c8093ebcf1489847da74e978", "simhash": "1:7617e8dbc3ed2a91", "word_count": 1541 }, "last_updated": "2023-07-14T16:22:10.433219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hess v. A. L. Ferguson Lumber Company." ], "opinions": [ { "text": "Hart, J.\n(after stating the facts). The chancellor found that Hess purchased the materials for the construction of his house from appellees and agreed to pay for the same. This finding is in accord with the testimony of Aaderson, the manager of appellees. The materials were charged on the books to Hess by Wallace. The bookkeeper of appellees testified that Hess admitted to him that he owed the account and would pay the same as soon as he collected some money due him on the purchase price of some property he was selling.\nHess denied having agreed to pay for the materials, and is corroborated by Wallace. The original contract was made over the telephone. The testimony of Anderson and Hess as to what the contract was is in direct and irreconcilable conflict. Each one is corroborated by facts and circumstances introduced in evidence.\nThe finding of the chancellor in favor of appellees is not against the clear preponderance of the evidence, and for that reason, under the settled rules of this court, it will not be disturbed on appeal!\nIt is next insisted that the decree should be reversed because appellees did not give ten days \u2019 notice before the \u25a0filing of their lien, as required by sec. 6917 of Crawford & Moses\u2019 Digest. The material was furnished under a direct contract with the owner, who was liable as on an original undertaking, and the notice required by the statute was not necessary. ,\nSec. 6935 of the Digest provides that all persons furnishing things or doing work provided for by this act shall be considered subcontractors, except such as have contracts therefor directly with the owner, proprietor, or his agent, or trustee. So it has been held that if a person enters into a contract with the owner of the land to furnish material by which the owner becomes liable therefor, such person furnishing the material is not a subcontractor and is entitled to recover judgment therefor against the owner of the land, and also to a lien on the building constructed thereon. Leifer Manufacturing Co. v. Gross, 93 Ark. 277.\nIt is also contended that the judgment should be reversed because Wallace, the contractor, was not made a party to the suit, and reliance is placed upon Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, and Cruce v. Mitchell, 122 Ark. 141. In each of these cases the goods were sold to the contractor, and suit was brought against the owner without making such contractor a party.\nIn the present case the materials were sold directly to the owner, and he was liable to the person furnishing the materials upon an original undertaking. It W-as his debt, and no useful purpose could bave been served by making the 'contractor a party. Then, too, the record shows that the contractor had become a nonresident of the State, and service could not be had upon him, although he was named as a party defendant in the complaint.\nIt follows that the decree must be affirmed.", "type": "majority", "author": "Hart, J." } ], "attorneys": [ "John II. Vaughcm, for appellant.", "Hill & Fitshugh, for appellee." ], "corrections": "", "head_matter": "Hess v. A. L. Ferguson Lumber Company.\nOpinion delivered October 16, 1922.\n1. Appeal and error \u2014 conclusiveness of chancellor\u2019s finding.\u2014 A chancellor\u2019s finding not against the preponderance of the evidence will not be disturbed on appeal.\n2. Mechanics\u2019 liens \u2014 notice before filing lien. \u2014 Under Crawford & Mioses\u2019 Dig., \u00a7 6917, providing that subcontractors, wishing to avail themselves of the mechanics\u2019 lien act, shall give 10 days\u2019 notice to the owner before filing their liens, one who furnished materials under a direct contract with the owner was not required to give such notice.\n3. Mechanics\u2019 liens \u2014 parties.\u2014Where materials were sold di.r\u00e9etly to the owner of land, and he was liable to the person furnishing them as upon an original undertaking, it was the owner\u2019s debt, and it was unnecessary, in a suit to enforce a material man\u2019s lien, to make the contractor a party.\nAppeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourland, Chancellor;\naffirmed.\nSTATEMENT OE EACTS.\nAppellees brought this suit in the chancery court to enforce a lien upon certain real estate of appellant in the sum of $2,379.45, alleged to be due for materials sold to appellant and used by him in the construction of a dwelling house.\nJ. H. Anderson, the manager of the Ferguson Lumber Company, was the principal witness for appellees. According to his testimony, he sold to Wallace V. Hess lumber and other building supplies to be used by him in the construction of a dwelling house in the city of Fort Smith, Arkansas. Hess called Anderson over the telephone before he commenced to build his house and asked him if he knew B. M. Wallace, a carpenter. Anderson replied that he did. Hess then asked Anderson what kind of a man Wallace was. Anderson replied that he had not known Wallace very long, but so far as he knew he was a very good man. Anderson stated further that Wallace was building some other houses in the city and seemed to- be getting along very nicely. Hess then said that he was figuring on getting Wallace to build him a house, 'and Anderson replied that he did not know how Wallace was financially. Hess then said, \u201cThat will not make any difference; I have got to pay the men for their work every Saturday night, and I want to pay the material bill myself.\u201d After some further conversation Hess said that he would give the job to Wallace, and was figuring on buying the material from appellant.Hess told Anderson that Mr. Wallace would be around in a day or two to get some of the material. Anderson furnished materials for appellees to Hess for building his dwelling house and garage. The lumber furnished amounted to $2,679.45 and there was a balance due and unpaid of $2,379.45 at the time this suit was brought. Appellees filed a mechanics \u2019 lien within the time allowed by the statute, but no notice of filing same was given to Hess. Hess repeatedly promised, to pay the bill, and acknowledged that he had bought the materials and owed for the same. After putting off the payment of the bill from time to time on account of not having the money, Hess finally told Anderson that the time for filing the lien had expired and that he did not intend to pay for the materials. The materials were charged on the books of appellees to Wallace Y. Hess, by B. M. Wallace.\nGeorge P. Meadows was also a witness for appellees. According to his testimony, he kept the books of appellees, and knew .Wallace Y. Hess. He had a conversation with Hess about the account sued on. He came into the office one day to see Anderson about the account. Anderson was not in, and Hess told Meadows to tell Anderson that he would pay the account as soon as he could get the money due on some property which he was selling. This was in July or August, 1920, after the materials had been furnished.\nWallace Y. Hess was a witness for himself. According to 'his testimony he made a contract with B. M. Wallace to construct the house and furnish the materials to be used in erecting it. Hess did not buy the material from appellees. Hess denied having told Anderson that he owed for the materials and would pay for the same. The contract between Hess and Wallace for the construction of the house was exhibited in evidence, and it showed that Wallace was to furnish the materials.\nWallace was a witness for Hess, and testified that he purchased the materials from appellees. He also stated that he paid $300 of the purchase price. Hess gave him a check for the $300, and he indorsed the check to appellees.\nThe chancellor found the issues in favor of appellees, and the case is here on appeal.\nJohn II. Vaughcm, for appellant.\nThe court epred in overruling the demurrer to the complaint.\nThe testimony was not sufficient to show that there was a contract between Hess and the lumber company, whereby Hess was to pay for the lumber. 38 Conn. 445; 27 Cyc. 51. Consent alone is not sufficient. 27 Ont. App. 364; 27 Cyc. 51.\nThe contractor was a necessary party, and should have been made a codefendant. 122 Ark. 141; 144 Ark. 464; 51 L. R. A. 76; 114 Ark. 468; C. & M. Digest, sec. 6928.\nHill & Fitshugh, for appellee.\nThe demurrer should have been overruled. No defect of parties was pleaded. C. & M. Digest, secs. 1189-1192. This can only be raised by special demurrer, and is waived of not taken advantage of. 95 Ark. 32; 33 Ark. 497 ; 44 Ark. 202: 49\u2019 Ark. 277.\nWhere an original contractor brings suit there is no necessity for notice of a lien. 93 Ark. 277. The lien grows out of the material furnished that goes into the building. 51 Ark. 302; 30 Ark. 568; 49 Ark. 475.\nThe fact that Hess had a contractor who agreed to furnish the material and erect the building did not release Hess from liability. 93 Ark. 277; 76 Ark. 292; 40 Ark. 429; 42 Ark. 285; 20 Cyc. 182; 20 Am. & Eng. Ency. Law (2nd Ed.), 448." }, "file_name": "0240-01", "first_page_order": 264, "last_page_order": 269 }