| Ark. | May 8, 1911
(after stating the facts). First. The question presented by the appeal of Pratt is, can an attachment be levied upon 'materials which have been furnished a contractor, and delivered at the site of a building, to be used in its construction, but which, at the time of the levy, have.not been incorporated in the building? It is necessary for us to pass upon the validity of Pratt’s attachment, for the reason that the remedies sought by him are not inconsistent but concurrent and cumulative. He is not seeking to have an attachment on materials furnished by him, and also at the same time asking to have a material furnisher’s lien declared for the amount of such materials. Plis case in this respect differs, as we shall see later on, from that of the other appellants. In Central Lumber Co. v. Braddock Land & Timber Co., 84 Ark. 560" date_filed="1907-11-11" court="Ark." case_name="Central Lumber Co. v. Braddock Land & Granite Co.">84 Ark. 560, we held that “under Kirby’s Digest, § 4970, giving a material man a lien for materials furnished for an}'- building, by virtue of a contract with the owner, materials furnished for the building must be actually used in it before a lien will be acquired.” The only question in that case was, when does the lien of the material furnisher attach under the mechanics’ lien statute? It was held that it could not attach until the materials had been used in the building, but that the presumption obtained that materials delivered at the building site, to be used in the construction of the building, had been so used until the contrary was shown. The question, whether or not the contractor had an ownership in the materials after they had been delivered at the building site, but before they, had been used in the building, that would .subject them to attachment, was not presented in the above case. It could have made no difference in the decision of that case whether the contractor was the owner or not, but here, in order to sustain his attachment, it is necessary for Pratt to show that the materials levied upon under his order of attachment were owned -by the contractor. Under the mechanics’ lien law, where materials are furnished a contractor to be used in the construction of -a building, the presumption will be that the materials were furnished on the credit o:f the building and its owner, and such presumption will become conclusive unless rebutted by evidence showing that they were furnished on the personal credit of the contractor. See Deatherage v. Henderson, 43 Kan. 684" date_filed="1890-01-15" court="Kan." case_name="Deatherage & Ewart v. Henderson">43 Kan. 684; Stephens v. Ward, 11 B. Monroe (Ky.) 337. In the absence of proof that the materials were furnished the contractor on his personal credit, he can, at most, be held to have only a conditional or qualified ownership in the materials, for section 4980 of Kirby’s Digest (mechanics’ lien law) provides: “Any contractor or subcontractor, who shall purchase materials on credit and represent at the time of the purchase that the same are to be used in a designated building or other improvement, and shall thereafter use or cause to be used the said materials in the construction of any building or improvement, other than that designated, without the written consent of the person - from whom the materials were purchased, with intent to defraud such person, shall be deemed guilty of a misdemeanor,” etc.
If the contractor were the absolute owner, he would not be confronted with the above statute, “to molest and make him afraid” if he disposed of the materials furnished contrary to its provisions. If the absolute owner, he could do as he pleased with them. Whether the title to materials furnished, between the time of the delivery of the same and the use thereof in the building, be in the vendor of the materials or the owner of the building, it is certain that the contractor has no such ownership as would subject the materials to the attachment of appellant Pratt. See White v. Miller, 18 Pa. St. 52; Phillips, Mechanics’ Liens, § 152; Boisot, Mechanics’ Liens, § 121. Although appellee Nakdimen did not, in his answer, deny the validity of the attachment, the record shows that the suits at law were, by agreement of all parties, transferred to the chancery, court and consolidated with the suit of appellant Iron Works, and all tried as one suit. Pratt’s attachment being prior to that of the other appellants, it would have been impossible for the court to have determined the equities of all the parties without passing upon the validity of Pratt’s attachment. Under their prayer for general relief, the other appellants were entitled to have their equities not only adjusted as against the appellee, but also as among themselves. The effect of the transfer and consolidation was to bring all the questions at issue by and between all the parties in review before the chancellor. The adjustment of the equities of appellants between themselves necessarily involved the validity of Pratt’s attachment, because it was prior in time to that of the other appellants, and, if valid, would lessen, to the extent of his claim, that of the next attaching claimant in the order of time, provided, of course, the other .attachments were also valid. The question having been decided by the trial court, Nakdimen is entitled to insist here upon the ruling that inures to his benefit, although he did not specifically deny the validity of the attachments in his answer.
Second. The court did not err in dissolving the attachments of the Corrugated Bar Company and the Chickasaw Iron Works, the other appellants. The material furnishers had a right to recover and hold the materials furnished by them before they had gone into the building, after the contractor had abandoned his contract without paying for such materials. Equity will disregard the form by which the materials were impounded, and will give appellants the benefit of the attachments for that purpose. But appellants were assuming inconsistent positions in pressing these attachments and at the same time asking that a material furnisher’s lien be declared for the amount of the materials which they had furnished. Under the rule announced in Central Lumber Co. v. Braddock Land & Timber Co., supra, the appellants could not have a lien declared under the mechanics’ lien law except upon the theory that the materials furnished by them had been delivered to Nakdimen, the owner of the building, and had been used by him in the construction of the building, and had become his property. On the other hand, the attachments could only be sustained upon the theory that this material furnished by appellants had not been used in the building, and had not been delivered to the owner and become his property. The positions are conflicting, and the appellants were pursuing inconsistent remedies. They could not acquire both an attachment and a material furnisher’s lien, for the same property. The court, having granted the prayer of appellants for a lien for the entire amount claimed by them for materials furnished under the mechanics’ Lien law, co.uld not, in the same suit, also grant an attachment on the same property for the entire amount claimed by appellants. The prayer for mechanics’ lien assumes that the materials have gone in the building, and are therefore not subject to attachment. “One is not allowed to avail himself of the advantages of inconsistent positions in a litigation concerning the same .subject-matter.” Cox v. Harris, 64 Ark. 215.
Appellants did not elect in the court below between the inconsistent remedies. Appellants might have had a material furnisher’s lien for the amount of the material that was used in the building and a lien in equity on the residue of the material that had not gone in the building, but they could not have the material man’s lien for the entire amount of their claims and the attachments, too. They pressed them both below, and are still insisting here that both the attachments and the material furnisher’s liens should be sustained. There is a vast difference between asking cumulative remedies that are consistent with each' other and asking for remedies that are wholly, inconsistent.
Third. In determining the amount to be prorated among the lienors, the court should have added the $415.50, received by Miller for the old material, to the contract price of $51,900. Miller was to get the sum of $51,900 and the old material for removing the old building and erecting the new.- The old material was sold by Miller for $415.50. So, in adjusting the equities' of lien claimants, the contract price to be paid by Nakdimen should be fixed at $52,315.50. The court correctly ruled that the sum of $681.50, paid by Miller for 'removing the. old material, was a lienahle claim. That sum represented the cost of labor that really went into the construction of the new building, for it was impossible to build the new building without the removal of the old. The court also correctly ruled that the sum o:f $4,000 should be allowed as a part of the cost of completing the building after Miller abandoned his contract. This sum, designated as “for their services or profit,” under the contract, represented -an amount which the owner actually had to pay in order to have the building completed according to the contract, and was therefore a necessary part of its cost.
The court erred in crediting Nakdimen, as part of the cost of completing the building, with the sum of $2,505.55, which was paid into the bank to cover the price of the attached material. It is true that Nakdimen, under his contract with the Manhattan Construction Company, was to pay for the material on the ground, but that material cost him nothing, since the money in bank is to be refunded on dissolution of the attachment. The result is the .same as if the material had been placed in the building b}r Miller, appellants being given a lien for the price.
The decree of the chancery court will he modified by allowing the sum of $415.50 as a part of the contract price, making the total sum of the contract price $52,315.50. It will also be modified by striking said sum of $2,505.55 from the amount -found to be the cost of completing the building, leaving the amount of $42,411.07 to he deducted from the original -contract price. In all other respects the decree of the -chancery court is affirmed, and the cause will be remanded with directions for further proceedings not inconsistent with this opinion.