294 S.W. 361 | Ark. | 1927
Appellee, being the owner of a certain oil lease in Ouachita County, and being desirous of having same drilled for oil, entered into a contract with the Alliance Drilling Company for this purpose, in which the erection of a wooden derrick was called for. He decided that he preferred to have a steel derrick, and the drilling company agreed that, if he would erect the steel derrick and release its from the erection of the wooden derrick, it would abate $650 from the contract price. Appellee then entered into contract with D. D. Nowlin, a derrick contractor, to erect on his lease a steel derrick, referred to as a No. 881 Marion tubular rotary derrick of 2x2s with four sets of relegs of 4x4-inch drill stem, of first-class material and construction, for the price of $1,900. The contract was dated July 10, 1925. Appellant, on July 15, 1925, sold to Nowlin the No. 881 Marion tubular rotary derrick for $836, and on July 20 sold and delivered to him four sets of relegs for $619.20, making a total of $1,455.20, on which Nowlin made a payment of $309.60, leaving a balance due $1,145.60. The Stout Lumber Company, on July 14, sold and delivered to Nowlin certain supplies amounting to $288.10. Nowlin proceeded to the erection of said derrick, and completed same on July 21. The drilling company began to drill a well on said lease, and, after drilling approximately 2,550 feet during a period of about 30 days, the drill-stem got stuck in the hole, and, in an effort to extricate same, on account of the great strain placed on same in pulling the drill-stem, as claimed by appellant, the steel derrick collapsed. Appellee claims that the collapse and destruction of the derrick were caused by defective material used therein. After the collapse of the steel derrick the appellee caused a wooden derrick to be erected, the material in the steel derrick being so twisted, bent and *92 distorted that it was useless to him in the further drilling of his well. Thereafter, on October 19, Nowlin, not having been paid by Colcord for the construction of the derrick, brought this suit, in which the material furnishers mentioned joined, for the amount of the contract price, and to have a lien declared and enforced on the lease, etc., as provided by act 615 of the Acts of 1923, and that the materialmen be protected for the amount of their claims. The court, after hearing the evidence, entered a decree in favor of appellant for $495.50, being the difference between $1,145.60, the balance due it by Nowlin, and $650, the cost of the new wooden derrick, and in favor of Stout Lumber Company on its bill of $228.78, and in favor of Nowlin for $525.62. From this decree comes this appeal and a cross-appeal.
Neither the appellant nor the contractor, Nowlin, filed an affidavit for a lieu. Appellant furnished its last material on July 20. It brought suit or joined with Nowlin in bringing suit on October 21, more than 90 days thereafter, and therefore was barred on this account. Moreover, appellee was not indebted to appellant. It had no contractual relation with him and could not maintain a separate action against him. The contractor, Nowlin, was its debtor, the material being sold to him, and he was a necessary party defendant, against whom a judgment must have been had before a lien could be declared and enforced against appellee's leasehold. Simpson v. J. W. Black Lbr. Co.,
However, Nowlin, the contractor, brought suit against appellee in apt time, and he, being the original contractor with the owner, was not required to give the 10 days' notice and file an affidavit for a lien with the circuit clerk, the bringing of suit within the 90 days being *93
sufficient to entitle him to a lien. Leifer Mfg. Co. v. Gross,
We find no reversible error, and the decree is affirmed. *94
