152 Ark. 590 | Ark. | 1922
(after stating the facts). The chancery court erred in holding that John A. Moore had a mechanics’ lien for $1,330.75. According to Ms own testimony, he made a contract to repair 'Gilliam’s house on a basis of eight per cent, commission on the entire cost- of the labor performed and materials furnished. So far as the record discloses, nearly all of the amount claimed by Moore represents the profits made by him in repairing the house and the amounts paid by him to laborers and mechanics for working on it.
Therefore, he had. no lien under the statute. The court had the precise question before it so far as the repair or construction of railroads is concerned in Little Rock, Hot Springs & Texas Railway Company v. Spencer, 65 Ark. 183. The statute in that case provided that “every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fiitures or other thing toward the equipment, or to facilitate • the operation of any railroad, shall have a lien therefor upon the roadbed, ’ ’ etc. It was held that a contractor who furnished the labor and appliances to build the roadbed and paid for the same, but did not personally labor or work upon said roadbed, was not entitled to a lien thereon.
Sec. 6906 of Crawford & Moses’ Digest provides in substance that “every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work upon, or furnish any material, fixtures,” etc., for any building, erection, improvement upon land, etc., shall have for his work or labor done, or materials furnished, a lien upon such building, erection or improvement, etc.
It will be observed that the same classes ‘of laborers and mechanics are mentioned in each statute, and, if the court should hold in the case of railroads that the statute only gives a summary remedy for the enforcement of mechanics’ and laborers’ liens upon the property in question when the debt is due for the labor actually performed by them and the materials furnished by them, there seems to be no good reason for holding otherwise in the case of the construction of a building or other improvement of that character. In other words, if the contractor who undertakes by contract with the owner to construct a railroad. does not come within the letter or spirit of the act or within any of the classes enumerated therein, for like reason such contractor should not be held entitled to a lien for erecting a building except for' materials furnished by and labor actually performed by himself.
In the one case the court has already held that where the contractor did not labor as a mechanic, but superintended work done by others, or paid for the same, he is not entitled to a lien. It seems then that the object of the statute is not to secure the contractor, who can take care of himself in his contract with the owner, but those who may suffer loss by confiding in the contractor, and who do not stand in any contractual relation with the owner.
The aim and policy of the act in each case seems* to have been to protect the mechanics, laborers, and materialmen from being defrauded by insolvent owners and dishonest contractors. This, too, was the effect of our decision in Royal Theater Company v. Collins, 102 Ark. 539, where it was held that a contractor had no lien under the statute for profits made by him in erecting the building. The court said that the statute only gives the contractor a lien for work done by him or materials furnished by him.
It follows that the court erred in holding that John A. Moore had a mechanics ’ lien superior to the mortgage of Mrs. Cook. As we have already seen, he could only have a lien prior to that of Mrs. Cook’s mortgage lien for materials actually furnished by him and labor actually performed by him in the repair of the building.
This brings us to the question of whether or not the Van Houten Lumber Company had the lien claimed by it. According to the testimony of its employees and of John A. Moore, the Van Houten Lumber Company had a contract to furnish materials to be used in the repair of Gilliam’s house. Pursuant to the contract, the company did furnish materials from time to time which were used in repairing the house. The last item was furnished on the 4th day of November, 1920. The contract was an indivisible one, and the lien was filed within ninety days after the last item was furnished.
It is true that the evidence for the Van Houten Lumber Company was contradicted by that offered in behalf of Mrs. Cook; but the chancellor found this issue of fact in favor of the materialman, and we cannot say that the finding is against the preponderance of the evidence. All of the items were furnished during the progress of the work done under a single contract, and the claim was filed under the statute within ninety days after the last item was furnished. Hence the lien attached. Hill v. Imboden, 146 Ark. 99.
Again, it is claimed that the money was borrowed from Mrs. Cook and an agreement made with her to execute a mortgage on the property in question to secure the same before the materials were furnished. This does not make any difference. Sec. 6911 of Crawford & Moses’ Digest provides that the lien for work and materials furnished shall be preferred to all other incumbrances which may be attached to the property subsequent to the commencement of such building or improvement.
The Yan Houten Lumber Company made the contract to furnish supplies to be used in the building and did furnish the greater part of them before the mortgage to Mrs. Cook was executed. Its lien was perfected in accordance with the terms of the statute, and it was prior to the lien acquired by Mrs. Cook. She did not acquire any lien until her mortgage was filed for record on the i8th day of July, 1920. O’Neil v. Lyric Amusement Co., 119 Ark. 455.
The decree in favor of John A. Moore will be reversed and the cause remanded with directions to the chancellor to hold that he has no lien on the property in question under1 the statute, except for materials actually furnished by him and labor performed by him in the repair of the house. The decree in favor of the Yan Houten Lumber Company is affirmed.