| Ark. | May 18, 1908
(after stating the facts.) Appellants criticise the instructions, and allege various errors therein; but they have not set out the instructions in their abstract. They argue the instructions as if there were five transcripts here, and each j-udge had a transcript before him when he was reading their criticisms of the instructions. The rule that the abstract is to acquaint the judges with the material .parts of the record seems to be overlooked. The court has so often said that it will not review instructions thus presented that it is unnecessary to cite the cases.
The property stood in the name of Mrs. Harris, and the contract was made by Mr. Harris, and it is insisted that there can be no recovery against her upon the terms thereof, and that a lien cannot be enforced upon her property without the contract having been signed by her or her agent.
In Hoffman v. McFadden, 56 Ark. 217" date_filed="1892-05-16" court="Ark." case_name="Hoffman v. McFadden">56 Ark. 217, the court said: “A married woman may, by silently acquiescing in the contract of one who to her knowledge assumes to act as her agent, be es-topped to deny the agency. And where the husband contracts for the improvement of his wife’s property with one who believes him to be the owner, and the wife, knowing this fact, permits the work to be done without disclosing her right, it has been held that she will be estopped to set up her title in defense of an action to enforce the contractor’s lien.”
The evidence here is sufficient to justify the jury in finding against Mrs. Harris upon either of these propositions.
The principal question in the case is as to the verdict rendered by the jury in favor of the defendants and the refusal of the court to accept it when one of the jurors announced that the jury intended by that verdict for the plaintiffs to have the building, and that they be permitted to remove it. Under sec-, tions 6203-6204 of Kirby’s Digest, if any juror dissents from the verdict as delivered by the foreman, the jury must be sent out for further deliberation. But this is not a case falling within the statute. The juror’s announcement was not a dissent, but an explanation of the intended effect of the verdict 'for the defendants. As shown in the statement of facts, there was a sharp conflict as to whether there were material variations from the contract, or whether there had been a substantial performance .of it. The verdict of the jury for the defendants necessarily found that there were substantial and material deviations from the contract which justified the defendant in not accepting the building, and the statement of the juror showed that the jury .intended in so finding that the house which had been .erected by the contractors should belong to them, and that they should be entitled to remove it. If this was the effect of the verdict, then the statement of the intention of the jury neither added to it or took from it;' if it was not the effect of the verdict, then they should have been remanded for further deliberation. Where there has been a lack of substantial performance of a contract by a contractor, he cannot establish a lien upon the property. Phillips on Mechanics’ Liens, § 134; 20 A. & E. Enc. 367; Dermott v. Jones, 2 Wall. 1" date_filed="1865-01-18" court="SCOTUS" case_name="Dermott v. Jones">2 Wall. 1; Smith v. Brady, 17 N.Y. 173" date_filed="1858-03-05" court="NY" case_name="Smith v. . Brady">17 N. Y. 173; Fox v. Davidson, 36 N. Y. App. 159; Ark-Mo Zinc Co. v. Patterson, 79 Ark. 406.
In New York the rule is rigidly adhered to that the contractor can recover nothing where he has failed to substantially comply, and although this may inflict upon him a heavy pecuniary punishment by giving the other party what the contractor has done whhout paying for it, still it is said that this consideration is unimportant, weighed against the healthy and beneficial effect of the rule denying recovery unless there is substantial compliance with the contract. Phillips on Mech. Liens, § 134.
I-n some jurisdictions it is held that while the contractor cannot recover upon his contract where he has failed to substantially comply, yet he may recover upon a quantum meruit for labor done and quantum valebat for material furnished. Phillips, supra.
Thus in Massachusetts it was said: “We think the weight of modern authority is in favor of the action, and that upon the whole it is conformable to justice, that the party who has the possession and enjoyment of the materials and labor of another shall be held to pay for them, so as in all events he shall lose nothing by the breach of contract. If the materials are of a nature to be removed, and liberty is granted to remove them, and notice to that effect is given, it may be otherwise. But take the case of a house or other building fixed to the soil, not built strictly according to contract, but still valuable and capable of being advantageously used, or profitably rented — there having been no prohibition to proceed in the work after a deviation from the contract has taken place — no absolute rejection of the building, with notice to remove it from the ground; it would be a hard case indeed if the builder could recover nothing.” Hayward v. Leonard, 7 Pick. (Mass.) 180.
Under neither rule can the action of the court in refusing to render judgment upon this verdict be sustained. The owner had given notice before the completion of the building several times that he would not accept the building, and that the material belonging to the contractor should be removed.
Immediately upon the juror saying that the jury intended that the contractor be permitted to remove the building, the owner offered to consent thereto. This consent, if not theretofore given, certainly then removed any objection to refusing recovery to the contractor, where there had not been substantial compliance, irrespective of whether the strict New York or the liberal Massachusetts rule is adopted.
When a contractor agrees to build and deliver a certain house on the land of another, the building does not become that of the landowner until it is finished in substantial conformity with the contract or accepted by him. Phillips on Mech. Liens, 135; Dermott v. Jones, 2 Wall. 1.
In some instances, as in the Massachusetts case, supra, and others mayjbe found in 20 A. & E. Enc. 367, where a contractor in good faith has performed services and delivered material, he may have compensation for their value, notwithstanding he cannot recover on the contraer. But those all -seem to be cases where the building has become the landowner’s, and grave injustice would be done the contractor- unless he was allowed some compensation for what he had imperfectly done, and recovery is allowed to the extent that 'he had improved the landowner’s property. None of these instances are in point here.
The second verdict, rendered after the court refused to accept the first one and gave instruction number 3, was, in round numbers, for $1100 less than the contract price. In other words, the jury said in this verdict that the contractors lacked by $1100 having fulfilled a $2755 contract. This was a second finding that there was a substantial and material deviation from the contract, and was but a confirmation in another form of the finding in the first verdict. This finding is' supported’ by ample evidence, and, accepting it as true, then the jury’s verdict for the defendants entitled the contractors to remove the house from the landowner’s lots. This the landowner had requested, and again offered to consent to.
The court erred in not entering' judgment upon this verdict. Reversed and remanded with directions to enter judgment upon the first verdict.