{
  "id": 1877660,
  "name": "Herbert DUNCAN and Silersteen DUNCAN v. DAVIS AND EARNEST, INC. d/b/a DAVID DISCOUNT AND GENERAL SHEET METAL CO.",
  "name_abbreviation": "Duncan v. Davis & Earnest, Inc.",
  "decision_date": "1985-03-04",
  "docket_number": "84-261",
  "first_page": "143",
  "last_page": "147",
  "citations": [
    {
      "type": "official",
      "cite": "285 Ark. 143"
    },
    {
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      "cite": "685 S.W.2d 509"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "reporter": "Ark.",
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        8720218
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      "year": 1981,
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    {
      "cite": "229 S.W. 716",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "weight": 2,
      "year": 1921,
      "pin_cites": [
        {
          "page": "717"
        }
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    {
      "cite": "148 Ark. 242",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8719202
      ],
      "weight": 2,
      "year": 1921,
      "pin_cites": [
        {
          "page": "246"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/148/0242-01"
      ]
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  "last_updated": "2023-07-14T21:18:39.025760+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Herbert DUNCAN and Silersteen DUNCAN v. DAVIS AND EARNEST, INC. d/b/a DAVID DISCOUNT AND GENERAL SHEET METAL CO."
    ],
    "opinions": [
      {
        "text": "David Newbern, Justice.\nDavis and Earnest, Inc., hereafter referred to as \u201cDavis,\u201d claims a materialman\u2019s lien on property owned by the Duncans. The notice required by Ark. Stat. Ann. \u00a7 51-608.1 (Supp. 1983) to be given by the materialman to the owner prior to supplying material, and ordinarily necessary to perfection of the lien, was not given. Davis claimed, and the trial court held, that the notice was not required because the transaction or transactions fell within an exception to the notice requirement. The exception is created by Ark. Stat. Ann. '\u00a7 51-608.5 (Supp. 1983) in the case of a \u201cdirect sale\u201d by the materialman to the property owner.\nThe question on this appeal is whether the determination that the statutory exception to the notice requirement applied was clearly erroneous, i.e., clearly against the preponderance of the evidence. As we are required to interpret the statute, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29 1. c.\nThe statute, \u00a7 51-608.5, provides that the notice requirement of \u00a7 51-608.1 does not apply if there is a direct sale by the materialman to the property owner. It further provides that \u201c[a] sale shall be a direct sale only if the owner or his authorized agent personally orders such materials from the lien claimant.\u201d\nThe chancellor\u2019s findings were that the notice was not required because the Duncans had dealt personally and directly with Davis. The judgment says Davis \u201c. . .by virtue of its direct contact with the defendants, has availed itself of the statutory exception to the requirement for notice. ...\u201d However, the primary position of Davis in this appeal is that the Duncans made their builder, Leard Burks, their \u201cauthorized agent\u201d and thus entitled Davis to the exception to the notice requirement. As there was no finding on the agency point by the trial court, we assume Davis is asking us to say the chancellor reached the correct result for the wrong reasons and should be affirmed notwithstanding the reason given.\nWe will first explore whether the findings of the chancellor were clearly against the preponderance of the evidence and then whether the record supports Davis\u2019s \u201cauthorized agent\u201d theory.\n1. Direct Dealing\nThe Duncans hired Burks to build a house in Hot Spring County while they continued to reside in Ohio, making occasional visits to Arkansas.\nThe evidence of direct dealing between Davis and the Duncans cited by Davis was that the Duncans went to the store several times and picked out some items to be used in the construction of their home. Davis contends that the Duncans \u201cordered\u201d the items, but the very exhibit to which they point to support the contention is just a list made by a Davis employee of items such as a bathtub, sink and windows. It contains no prices or delivery specifications. The only name on the paper is \u201cL. Burks,\u201d the builder.\nThere was also testimony that on the occasion of selecting the materials Mr. Duncan left his business card with a Davis employee, saying to let Burks have whatever was needed and to call him in the event of a problem and that \u201cmoney is no problem.\u201d\nBy contrast, the Duncans\u2019 Exhibit 3 consists of twelve invoices totaling $11,992.31, the amount of the lien sought. On each of the invoices, the customer\u2019s name is shown to be Leard Burks. All but one show delivery to Leard Burks or a carpenter on the job, and the one exception does not show who the recipient was.\nA Davis employee testified he gave the statutory lien notice form to Burks to be signed by the Duncans but that it was not returned. Mr. Duncan testified he had refused to sign the form.\nThe trial court\u2019s finding that Davis dealt directly with the Duncans is clearly against the preponderance of the evidence. All of the documents show Burks was their customer. The mere act of picking out items to be supplied to Burks is no evidence that the Duncans placed an order with Davis. Had Davis thought it was dealing directly with the Duncans surely the Duncans rather than Burks would have been billed for the materials, but that was not the case. We find the clear preponderance of the evidence shows Burks was Davis\u2019s customer, having been engaged to build a house for the Duncans as an ordinary contractor. If Davis planned to assert a lien on the property, it should have complied with the clear statutory notice requirement by obtaining a signed notice form.\n2. Authorized Agent\nThe testimony of a Davis employee that Mr. Duncan told him to let Burks have whatever was needed is some evidence showing an agency existed. However, in view of the already recited overwhelming evidence that Davis regarded Burks as its customer and not as agent for the Duncans, we are disinclined to go beyond the trial court\u2019s findings on this record to say the notice requirement did not apply.\nThe statutory notice requirement and exception scheme enacted in 1979 is apparently in some measure a codification of the earlier common law. In Malone v. Holly Grove Lumber Co., 148 Ark. 242, 229 S.W. 716 (1921), the question whether a builder was an agent of the property owner for purposes of the materialman\u2019s lien arose. There we were dealing with the ten-day notice requirement contained in \u00a7 51-608. We said the notice requirement does not apply if the owner himself purchased the material. We upheld the chancellor\u2019s determination that purchases had been made by a builder as agent for the owner and thus the purchases were by the owner and the notice was not required. We said,\n. . .[t]he fact that the material was charged to, shipped to, and received by, appellant [the property owner] and the testimony that an invoice and monthly statement were sent to appellant are strong corroborative circumstances that it was sold directly to said appellant on the order of [the builder]. . . .[148 Ark. at 246, 229 S.W. at 717]\nIn this case, none of those factors were present. Quite the contrary is shown by the record.\nConclusion\nWe find the evidence of agency, when compared with evidence that Burks was an independent contractor and the customer of Davis, insufficient for the exercise of our de novo review power to reach a factual determination different from that of the chancellor but in support of the result he reached.\nWe hold the chancellor\u2019s finding that Davis dealt directly with the Duncans is clearly erroneous, i.e., clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a), City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664(1981).\nReversed.",
        "type": "majority",
        "author": "David Newbern, Justice."
      }
    ],
    "attorneys": [
      "James C. Cole, for appellant.",
      "G. Christopher Walthall, for appellee."
    ],
    "corrections": "",
    "head_matter": "Herbert DUNCAN and Silersteen DUNCAN v. DAVIS AND EARNEST, INC. d/b/a DAVID DISCOUNT AND GENERAL SHEET METAL CO.\n84-261\n685 S.W.2d 509\nSupreme Court of Arkansas\nOpinion delivered March 4, 1985\nJames C. Cole, for appellant.\nG. Christopher Walthall, for appellee."
  },
  "file_name": "0143-01",
  "first_page_order": 167,
  "last_page_order": 171
}