{ "id": 1481905, "name": "McKay v. Millner", "name_abbreviation": "McKay v. Millner", "decision_date": "1944-12-04", "docket_number": "4-7480", "first_page": "1001", "last_page": "1005", "citations": [ { "type": "official", "cite": "207 Ark. 1001" }, { "type": "parallel", "cite": "183 S.W.2d 780" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "78 S. W. 746", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "72 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505566 ], "opinion_index": 0, "case_paths": [ "/ark/72/0132-01" ] }, { "cite": "36 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872393 ], "opinion_index": 0, "case_paths": [ "/ark/36/0575-01" ] }, { "cite": "107 S. W. 171", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "85 Ark. 58", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523361 ], "opinion_index": 0, "case_paths": [ "/ark/85/0058-01" ] } ], "analysis": { "cardinality": 349, "char_count": 5990, "ocr_confidence": 0.525, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05546288606015254 }, "sha256": "2a1edeaf0de15e02eb5b28f94341802dc9c934b2ad4af8e90e1569b10cfb7490", "simhash": "1:ffb75f0b98e8ce9f", "word_count": 1065 }, "last_updated": "2023-07-14T21:46:39.394631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McKay v. Millner." ], "opinions": [ { "text": "Smith, J.\nAppellee filed in the municipal court of the city of Blytheville, an affidavit averring the following facts: That the defendant, Dan Ashcraft, was indebted to him in the sum of $39.02, for work and labor done on 1,066 feet of piling; that said piling was made for the defendant Ashcraft under a contract with Eoy McKay who sold the piling to one -Hughes. Ashcraft, McKay and Hughes were all made defendants, and it was prayed that plaintiff have judgment against said defendants for $39.02, and that he have an attachment against the piling, the product of his labor, to enforce his lien as a laborer.\nAn attachment was issued as prayed,' comm\u00e1nding that the piling be seized, and that the defendants be required to answer plaintiff?s claim.'- It does not appear that the attachment was ever served, and the judgment rendered in municipal court contains no reference to it. A controverting affidavit was filed by McKay which denied any indebtedness to plaintiff, or that plaintiff was entitled to a lien on the piling. The judgment rendered in the municipal court recites merely that upon a trial, judgment was awarded in favor of the plaintiff for the amount sued for, against McKay and that appeal was prayed and granted. Upon the trial of this appeal in the circuit court, judgment was again rendered against McKay in favor of plaintiff for $39.02, and from that judgment is this appeal.\nTestimony was offered at the trial in the circuit court sufficient to sustain plaintiff\u2019s claim for a laborer\u2019s lien on the piling, had it been seized under the attachment, but the sale of the piling to Hughes by McKay had apparently defeated that relief.\nMuch of the testimony offered at the trial from which is this appeal, by the plaintiff, was objected to upon the ground that it sought to establish a different cause of action from that sued upon. The theory upon which the cause was submitted to the jury is reflected by the following instructions given over the objection of McKay:\n\u201cGentlemen of the jury, in this case the plaintiff, Jesse L. Millner, sues to recover the sum of $39.02 which he claims is due him for making certain piling for one Dan Ashcraft.\u201d\nNo objection was made by plaintiff to this statement of the case.\nAnother instruction given over McKay\u2019s objection reads as follows: \u201cIf you find from the evidence in this case that after the piling was made that the defendant \u2022McKay did agree with the plaintiff Millner to make payment for same to him after said piling had been inspected and the amount due ascertained, then you will return a verdict for the plaintiff. Otherwise, your verdict will he for the defendant. \u201d\nIt will he observed that this instruction is predicated upon the hypothesis that McKay agreed, after the piling was made, to pay for the labor and it was not therefore an original promise in consideration of which labor was performed.\nPlaintiff testified that he had been employed by Ash-craft to get out, or make, the piling, some to he paid for at 3 cents per 1,000 feet, other at 4 cents per 1,000 feet, and that he was to be paid when McKay inspected the piling; that Ashcraft gave him one order on McKay, but he was given no order for the labor for which he had not been paid. Plaintiff testified that McKay told him he would pay an order from Ashcraft to anyone, and that he presented one such order and it was paid. Plaintiff\u2019s testimony is somewhat equivocal, and he was asked by the court: \u201cDid I understand you to say that you went to Mr. McKay and that he agreed to pay you, to hold your money and pay it to you directly?\u201d and the answer: \u201cThat is what I asked of him and he didn\u2019t refuse, hut just his answer I don\u2019t remember just what it was. \u2019\u2019 This conversation occurred after the labor had been performed and when given its highest probative value amounts to nothing more than a promise on McKay\u2019s part to pay plaintiff what Ashcraft owed him. The plaintiff had previously testified when asked \u201cDid you have \u2019any conversation with Mr. McKay about the pay?\u201d he answered, \u201cYes, sir, I saw him and told him to keep my money, and also told Dan, and told him to leave it with Koy (McKay).\u201d This language is susceptible to no construction other than that McKay had agreed to pay not what he owed plaintiff, but what Ashcraft owed plaintiff.\nMcKay requested the court to charge the jury that such a promise, if made, was in effect an undertaking to pay the debt of another, and was therefore within the statute of frauds, and not being in writing could not be enforced. This instruction should have been given and for the error in refusing to give it, the judgment must be . reversed.\nThe testimony appears to establish the fact that McKay, by selling the piling -to Hughes, had converted property upon and against which plaintiff was entitled to enforce a laborer\u2019s lien. But even so, he cannot hold McKay liable in this action for so doing. Such- is the effect of our holding in the following cases: Barrett v. Nichols, 85 Ark. 58, 107 S. W. 171; Reavis v. Barnes, 36 Ark. 575; Judge v. Curtis, 72 Ark. 132, 78 S. W. 746. In the first of these cases, the headnote reads as follows:\n\u201cA demurrer should be sustained to a complaint in an action at law begun in the common pleas court which states a cause of action that is cognizable in equity only, as where it alleges that defendant disposed of cotton upon which plaintiff held a laborer\u2019s lien.\u201d\nIf plaintiff elects to proceed further at law, he must show an agreement in writing on McKay\u2019s part to pay the debt due plaintiff by Ashcraft. Par. 2, \u00a7 6059, Pope \u2019& Digest.\nIf plaintiff elects to sue for the \"conversion of property on which he had a lien, he must sue in equity, the only court having jurisdiction to grant' that relief.\nThe judgment is, therefore, reversed and the cause remanded for further proceedings, if plaintiff so elects.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Claude F. Cooper, for appellant.", "H. R. Partlow, for appellee." ], "corrections": "", "head_matter": "McKay v. Millner.\n4-7480\n183 S. W. 2d 780\nOpinion delivered December 4, 1944.\nClaude F. Cooper, for appellant.\nH. R. Partlow, for appellee." }, "file_name": "1001-01", "first_page_order": 1039, "last_page_order": 1043 }