83—MATERIALMEN— iron work as a completed job is entitled to a CROSS-AP abstract the case sufficiently to show that the The duty devolves on a cross-appellant to lower court was wrong. Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Proceedings by J. B. Klein and others against Adolphine Fletcher Terry and others to enforce a mechanic's lien. From a decree for plaintiffs, both parties appeal. Affirmed. [4] But the court is of opinion that the | 5. MECHANICS' LIENS LABOR ITEMS. payment of $100 by appellant to appellee on the claim, accompanied by its letter of date July 18, 1916, presented a question of waiver to be determined by a jury. If the nonwaiver paragraph in the transmittal letter had said, "This allowance is made with the understanding that by taking this action the association neither admits nor denies any liability on account thereof," the appellee could not have misunderstood the letter. Unambiguous nonwaiver clauses will be upheld by the courts. Phoenix Insurance Co. v. Minner, 64 Ark. 590, 44 S. W. 75. But indefinite and uncertain nonwaiver clauses, which might lead an insured to go to the trouble and expense of conforming to further requirements under the terms of the policy, will not be upheld by the courts. The word "additional" in the nonwaiver clause in question may have led appellee to believe that the appellant admitted liability, but neither denied nor admitted the extent thereof. In other words, appellee may have reasonably concluded that appellant thought $100 would be ample to pay for the injury received by appellee. So believing, the appellee would naturally go to the extent of making additional and final proofs to show the company that his injuries entitled him, under the terms of the policy, to more than $100. This cause was tried by the court, sitting as a jury, without objection on the part of appellant. The court found appellant had waived its right to insist upon the exemption professional baseball clause in the policy. There is sufficient evidence to support the verdict. No error appearing in the record, the judgment is affirmed. David D. Terry, of Little Rock, for appellants. Cockrill & Armistead, of Little Rock, for appellees. McCULLOCH, C. J. Appellants are the own100 feet on Main street in the city of Little ers of two adjoining lots with a frontage of Rock, and in the year 1912 they let a contract to the Shenk Construction Company (an Oklahoma corporation) for the construction of a building to be occupied as a department store. The contractor proceeded with the work of constructing the building, but abandoned the building before the work was completed, and appellants had to complete the building themselves. Said principal contractor while engaged in carrying out the contract purchased material from appellees, who were manufacturers of structural and ornamental iron work in the state of Oklahoma. Appellees furnished certain materials which were used in the building by the principal contractor, and this is an action instituted by them against appellants to enforce the lien on the building and lot for the amount of the unpaid account. There are two gross items in the account, which, according to the testimony adduced by appellants, represent sepa TERRY et al. v. KLEIN' et al. (No. 192.) (Supreme Court of Arkansas. March 4, 1918.) 1. MECHANICS' LIENS 157(1)—FILING Ac-rate contracts made by them with the princiCOUNT NECESSITY FOR ITEMIZING. Failure to itemize the filed account under Kirby's Dig. § 4981, providing that a true and just account must be filed, does not defeat a materialman's lien, whether dealing with a contractor or the owner, although an itemized account may be insisted on when the claim comes up for enforcement in court. 2. NAMES 12-SEX. The fact that the name of one signing as a notary appeared to be that of a woman is not conclusive that the officer was of that sex. 3. ACKNOWLEDGMENT 57 - FEMALE NOTARIES OF OTHER STATES-FAITH AND CREDIT. Since Const. Okl. Schedule, § 6, provides that women may hold the office of notary public, acknowledgments taken by a female notary in that state must be treated as valid. pal contractor for iron work used in the building. At the time the principal contractor abandoned the job, one of the contracts between the present claimant and the principal contractor had not been completed, but was subsequently completed under a contract between appellants as owners and appellees. The work of completing the contract was paid for by appellants, and a credit of $285 was given on the account. Appellants defended against the asserted lien on numerous grounds. [1] In the first place, it is contended that there is no lien because an itemized account was not filed; it being contended on behalf 4. PAYMENT 43, 65(6)—ACCOUNT-APPLICA- of appellants that the statute requires an TION-BURDEN OF PROOF. The rule as to application of payments on an account to the earlier items will not be enforced when contrary to intention of parties, and the burden is on the debtor to show application of payment to such items. itemized sworn account, and that the failure to itemize the account defeats the lien. The statute provides that: In order to make the lien effectual, the lieno must "file with the clerk of the circuit court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a cor; rect description of the property to be charged with said lien, verified by affidavit." Kirby's Digest, 4981. woman. No evidence was adduced to prove the sex of the notary public, but it is assumed that the officer was a woman because the name appeared to be one ordinarily used as a woman's name. Statutes of this state provide that an affidavit may be made out of the state before a notary public. Kirby's Digest, § 3153. The fact that the name signed to the certificate appeared to be that of a woman is not by any means conclusive that the officer was of that sex. However, the Constitution of Oklahoma (Schedule, § 6) expressly provides that women may hold the office of notary public, and it is our duty in giving full faith and credit to the laws of our sister state to recognize the validity of a provision in the organic law prescribing the qualifications for public office. Conceding that the words "just and true account" mean, as ordinarily construed, an itemized account (Brooks v. International Shoe Co., 200 S. W. 1027) this court has decided that failure to itemize the account does not defeat the lien (Wood v. King, 57 Ark. 284, 21 S. W. 471). In reaching that conclusion the court followed the rule which had been repeatedly announced here that the lien of a mechanic or material furnisher "springs out of the appropriation and use by the landown- [4] One of the members of appellee's er of the mechanic's labor or the furnisher's firm testified in the case, and appellant inmaterials and not from the taking of those sisted upon the production of the whole of formal steps which the statute enjoins for the appellee's account from their books against preservation and assertion of the lien and the principal contractor, which embraced for giving notice to others of its existence many items not involved in this controverand extent"; that the statute is highly re- sy. It appears from the testimony that medial in its nature; and that, "when the the lessee of appellant's who was to occupy controversy is between the holder of the lien and the proprietor of the land, an exact compliance with the statute at all points is not indispensable." Anderson v. Seamans, 49 Ark. 475, 5 S. W. 799. the building made certain additions to the building under contract with the Shenk Construction Company, and that purchases were made by the contractors from appellees in carrying out that contract. No It is argued that the decision in Wood lien, however, was asserted for those items. v. King, supra, relates to a controversy The account exhibited by appellees purbetween a material furnisher under con- suant to the request of appellants showed tract with the owner himself, and that the a running account with credits on it, and statute ought not to be given that effect in appellants insist that those credits should a controversy between a subcontractor and be applied to the earlier items according the owner. The answer to that contention to the ordinary rule of application of payis that there is only one statute on the sub- ments on a running account, and that when ject which applies to liens asserted by sub- so applied they extinguish a portion of the contractors as well as those asserted by claim which appellees now assert. There principal contractors, and that the stat- is an explanation, however, given in the ute must be given the same interpretation testimony of the witness to the effect that in both cases. In fact, we see no reason all of the contract with Shenk Construcwhy the rule should be different in the two tion Company had not been completed by classes of cases, for, after all, the design appellees in furnishing materials when the of the lawmakers was to provide a method job was abandoned by the contractors, and for giving public notice of an assertion of that the items of credit were entered on the lien and the extent thereof. That de- the books at the time the payments were sign is fully carried out by giving the stat- made, all of which tended to show that the ute such an effect as will require a notice credits were not intended to be applied on which will apprise the public of the extent the earlier items as shown on the account. of the claim. Of course, when it comes to The rule as to application of payments on an enforcement of the claim by a suit in an account to the earlier items is not an court, then for purposes of defense the own- inflexible one to be enforced when contrary er may insist upon the presentation of an to the intention of the parties. We do not itemized claim. Brooks v. International think that appellants have shown that they Shoe Co., supra. But in testing the suffi- are entitled to credit of those payments on ciency of the account so far as concerns the the items for which the lien is now assertpreservation of the lien, we hold that it is ed. The burden was on them to prove not essential that the account filed be an payment. itemized one. [2, 3] The affidavit to the claim was made before and was certified by a notary public in the state of Oklahoma, and it is contended that the affidavit was void because it appears on its face that the notary is a Appellants invoke the rule laid down by this court in the construction of our lien statute with reference to the rights of lienholders under a subcontract where the principal contractor has abandoned the job, as in this case, to the effect that the balance Our conclusion is that the decree was correct in all respects and it is affirmed both as to the original appeal and the crossappeal. due the principal contractor after deduct- showing that the rulings of the court were ing the cost of completing the contract incorrect. is to be prorated among the lienholders. Long v. Charles T. Abeles & Co., 77 Ark. 156, 93 S. W. 67; Marianna Hotel Co. v. Livermore Foundry & Machine Co., 107 Ark. 245, 154 S. W. 952. The proof does not, however, bring this case within that rule, as it does not appear from the evidence that the sums paid by the contractor were for labor and material. [5] The account taken from the books of appellees contained items for labor; but the labor formed a part of the price of putting in the iron work as a completed job, and appellees were entitled to a lien, not as for labor, but as for the price of material furnished in the place to be used. We think the conclusions reached by the chancellor on all of the propositions raised by appellant were correct. There is a cross-appeal by appellees as to two items disallowed by the court, or rather for two credits placed by the court on the account of appellees. It appears that on one of the jobs which was incomplete at the time the principal contractor abandoned the work the cost of completion would have been the sum of $387, and, instead of completing the job under the old contract, appellees made a new contract with appellant to finish up the work for $285. That sum was paid in cash and was credited on the original account of appellees against the principal contractor; but the court held that there should have been a credit on the original contract price to the extent of the value of the item, which was $387. The court therefore allowed an additional credit of $102, which seems to us to be correct. The other item of credit allowed by the court was the sum of $175, which the proof showed was an item furnished under the contract with the lessee and erroneously charged up under the contract between the principal contractor and appellants. The court merely corrected that error and re quired appellees to credit it back, or rather struck it out of the account. EUART v. ALLING. (No. 191.) (Supreme Court of Arkansas. March 4, 1918.) SPECIFIC PERFORMANCE 102 - PoSSESSION OF PERSONALTY-NATURE OF ACTION. An action for possession of personal property, where only question involved was whether the property, was not one for specific performdefendant was agent for the other in purchasing ance of a contract for the sale and purchase of chattels. Appeal from Cross Chancery Court; Edward D. Robertson, Chancellor. Consolidated actions by Charles A. Alling against H. M. Euart, and by H. M. Euart against Charles A. Alling. Decree for Charles A. Alling in both cases, and H. M. Euart appeals. Affirmed. Killough & Lines, of Wynne, and R. J. Williams, of Forrest City, for appellant. C. W. Norton, of Forrest City, for appellee. McCULLOCH, C. J. This appeal involves the correctness of the decision in two consolidated actions instituted originally in the circuit court but transferred to the chancery court on motion of appellee. One of the actions was instituted by appellee against appellant to recover possession of 86 tons of cotton seed alleged to be the property of appellee and wrongfully detained by appellant. The other action was instituted by appellant against appellee to recover possession of 30 tons of cotton seed alleged to be the property of appellant and wrongfully detained by appellee. There was no objection, so far as is shown by the record, to the transfer to the chancery court. The answer of appellant in the action instituted by appellee against him contained a demurrer to the complaint on the ground that it did not set forth a cause of action for equitable relief, but it does not appear from the record that the demurrer was ever called to the attention of the court for a ruling. On the contrary, the record recites that the parties appeared before the chancellor and announced themselves ready for the trial of the cause. Appellee operates an oil mill at Forrest City, Ark., and purchased cotton seed in that territory to be crushed at his mill. Appellant operated a gin at Bay Village, in Cross county, Ark., and the seed in controversy was purchased by appellant at his gin from farmers during the cotton season of 1915-16. Appellee advanced money to appellant from time to time and the funds were used in purchasing the seed. [6] The duty devolves on appellees as cross-appellants to abstract the case sufficiently to show that the court was wrong in allowing those two credits, and we do not think that they have made satisfactory The contention of appellee was, and is, that appellant acted as his agent in the purchase of the seed, and that, after a large quantity of seed had been accumulated by purchase, the prices advanced, and appellant repudiated his agency and demanded pay for the seed at the market price. The proof adduced by appellee tended to show that the seed was purchased under an agreement whereby appellant was to act as agent of appellee in purchasing the seed, and was to receive a commission of $3 per ton for his services, which was to include the expense of hauling from the gin to the railroad shipping point. On the other hand, appellant contended that he did not act as the agent of appellee in purchasing the seed, but that appellee merely lent him money to use in buying the seed under an agreement that when seed was purchased appellee should have the privilege of repurchasing them from appellant at the prevailing market price, and that appellant had offered to sell the seed in controversy to appellee at the market price, but that the latter had declined to purchase the same. There is merely an issue of fact involved in the case, which the chancellor decided in appellee's favor, and we are of the opinion that the finding of the chancellor is not against the preponderance of the testimony. This is not a suit, as assumed by appellant, involving the right to require specific performance of a contract for the sale and purchase of chattels. Appellee is not attempting to enforce a contract for the sale of chattels, but insists that he is the owner of the property in controversy by virtue of the purchase thereof through appellant acting as his agent. He disputes the claim of appellant that the latter ever became the purchaser of the cotton seed in his own right. The two actions were consolidated and tried together, and the title to the property in each case depended upon the same proof. We are of the opinion that the chancellor reached the correct conclusion upon the testimony adduced before him, and the decree is therefore affirmed. STANLEY v. WHITE. (No. 200.) jury the question whether or not defendant had cleared and put into cultivation 10 acres of the witnesses for defendant testifying he did so. land during the first year of the lease; several Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge. Action by B. B. Stanley against John White. From judgment for defendant, plaintiff appeals. Affirmed. This is an action of unlawful detainer brought by B. B. Stanley against John White to recover possession of 20 acres of land in Phillips county, Ark. White had leased the land, and it was alleged in the complaint that he had failed to perform his contract and that he had forfeited his right to the possession of the land under the lease. The body of the lease contract is as follows: "This agreement made and entered into this the first day of January, 1916, by and between Kelley & Allen, parties of the first part, and John White, party of the second part, witnesseth: That said first parties hereby lease to second party for a period of two years from 1916, January 1, 1918, twenty acres of land known as lease No. 12, situated in the east half of section 26-4-2 upon the following conditions: Second party is to clear the land to the satisfaction of first party by sawing up, rolling the ground, by cutting down and burning all and burning all logs, brush, vines, etc., now on saplings eight inches and under, by deadening all worthless standing timber, and shall put into first year of this lease in a manner satisfactory cultivation not less than ten acres during the to the parties of the first part. He shall keep up and maintain the fences surrounding the land, and shall make no improvements or put up any first party. Lease is given for farming purposes buildings not approved by the superintendent of only, and no other business will be allowed. This lease is not transferable. It is agreed by second party that he will provide stock enough to work the land at all times during the term of this lease. Should the conditions of this lease not be fulfilled by second party, this lease will be null and void, and the property be at the dispos al of first party." The lessors transferred the lease to B. B. Stanley. The lessee, John White, entered into possession of the land and cleared up and put into cultivation 10 acres of it the the first year. John White and several other witnesses for him testified that he cleared and cultivated as much as 10 acres of ground during the year 1916; that he did not get all (Supreme Court of Arkansas. March 4, 1918.) the logs off of the ground during the first 1. LANDLORD AND TENANT 44(1) CONSTRUCTION OF LEASE-TIME FOR LESSEE TO BURN LOGS. Under a lease providing that the lessee should clear the land to the lessor's satisfaction by sawing up and burning all logs, brush, etc., and should put into cultivation not less than 10 acres during the first year of the lease, the lessee had only to clear and cultivate 10 acres the first year, and had the full term of the lease in which to roll and burn logs, brush, etc., and otherwise to perform the lease covenants. 2. LANDLORD AND TENANT 308(3) COVENANT AS TO CULTIVATION PERFORMANCE SUFFICIENCY OF EVIDENCE. In an action of unlawful detainer brought by the successor of a lessor against the lessee, plaintiff's testimony held insufficient to take to the year; but that he intended to get them off the second year and was busily engaged in doing so when he was notified that his lease on the land had been forfeited and a demand was made, in writing, upon him to surrender possession of the land. According to the testimony of the plaintiff, Stanley, the rental value of the land after it was cleared and put into cultivation was from $12.50 to $15 per acre. Stanley testified that there was considerable quantity of logs and brush left on the 10 acres of land which White cleared and put into Other testimony will cultivation in 1916. be referred to in the opinion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The court directed a verdict for the de- the jury the question of whether or not the fendant, and from the judgment rendered defendant had cleared and put into cultivathe plaintiff has appealed. tion 10 acres of the land during the first year. Fink Moore, Vineyard & Satterfield and J. G. Burke, all of Helena, for appellant. & Dinning, of Helena, for appellee. It follows that the judgment must be affirmed. RAMSEY et al. v. NEVILLS et al. (No. 203.) It is an infringement of ferry rights for individuals to form a company, operate a ferry and carry all relatives and servants of its members, using the wharves of a duly licensed ferry, though no fee is charged. HART, J. (after stating the facts as above). The record shows that the plaintiff and the defendant first got into a dispute about the meaning of the terms of the lease. It was contended by the plaintiff that it was not only the duty of the defendant to clear and put into cultivation ten acres of land during the year 1916, but that it was also his duty to burn all the logs, brush, and vines on the cleared land the first year and to cut down and burn all saplings eight inches and under and to deaden all the worthless standing tim-Tom Nevills and others. Decree for defendSuit by George and Ed. Ramsey against ants, and plaintiffs appeal. Reversed and remanded. ber. [1] On the other hand, it was contended by the defendant that he had only to clear and cultivate 10 acres of land the first year, and that he had the full term of the lease within which to roll and burn the logs, brush, etc., and to cut down the saplings and otherwise perform the covenants of the lease. We think it is plain, from a consideration of the language used in the lease contract, that the contention of the defendant in regard to its terms is correct. The trial court held that the defendant was only required to clear and put into cultivation 10 acres of land during the first year of the lease, and that he had the whole of the term within which to perform the other covenants of the lease. It was upon this basis that the court directed the jury to return a verdict for the defendant. D. Robertson, Chancellor. D. S. Plummer, of Marianna, for appellants. SMITH, J. Appellants operated a regularly licensed ferry over the St. Francis river at Phillips bayou, Ark., and brought this suit to enjoin an alleged infringement of their franchise. It was shown that about 20 men organized themselves into what was called a company and bought a boat. One hundred and forty dollars in money was raised for this purpose and paid to one Tom Nevills for a boat which he owned. These men, including Nevills, also paid a monthly fee of 50 cents, which was used in paying a colored man named Kelly to operate the company ferry. The licensed ferry and the company [2] It is now claimed by counsel for the ferry used the same landings. Kelly, the defendant that, even if the construction plac-ferryman, testified that the ferry was opered upon the lease by the trial court is cor- ated for the exclusive benefit of the company, rect, it erred in directing a verdict for the defendant. We do not agree with counsel in this contention. There were 20 acres of the land embraced in the lease, and several wit nesses for the defendant testified that he cleared and put into cultivation one-half of it the first year. It is true the plaintiff in one place in his testimony said that it did not look to him like there was quite 10 acres; but, upon being interrogated further in regard to the acreage, it was shown that his testimony, in this respect, was based upon conjecture merely and was not based upon any definite impression made upon his mind by viewing the land. As above stated, his controversy with the defendant arose in regard to the construction to be placed upon the lease contract and the difference between them in this respect formed the basis of this lawsuit. The court correctly construed the lease, and we do not think the testimony of the plaintiff just referred to is of such substantial character as to warrant submitting to and that under the instructions to him no that he ferried without charge "all of a memone was charged ferriage; but he also stated ber's brothers, aunts, uncles, sisters, and cousins," and he also testified that this arrangement included the employés of members of the company. That neighborhood is sparsely settled, and as a result of this arrangement most of the ferrying was done by the company ferry, and it was shown that the licensed ferry, through loss of patronage, was operated at a loss to its owners. The suit was defended upon the theory that each member of the company was but doing his own ferrying, and the court accepted this view and refused to enjoin the operation of the company ferry, and this appeal has been prosecuted to review that action. Our statute provides that where a ferry franchise has been granted, a similar franchise shall not be granted to any one else within a mile along the stream, and in the case of Hunter v. Moore, 44 Ark. 184, 51 Am. |
