Simpson v. J. W. Black Lumber Co. ( 1914 )

Kirby, J.,

(after stating the facts). (1) The court erred in not sustaining the demurrer to the complaint because of the defect of parties. The suit was brought by the materialman, with whom the owners had made no contract and from whom they had purchased no materials, against them to fix a lien against their property for the amount claimed to be due for materials furnished the contractor, of which they knew nothing, that were alleged to have been used in the construction of the improvement. Section 4978, Kirby’s Digest, provides that when a, lien is filed under the provisions of the law by a person other than a contractor, “it shall be the duty of the contractor to defend any action brought thereupon, at his own expense; and during the pendency of such action, the owner may withhold from such contractor the amount of the money for which such lien shall be filed; and in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due by him to the contractor the amount of such judgment and costs, and, if he shall have settled with the contractor in full, shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally liable. ’ ’

(2) No notice was given by appellee of an intention to claim a lien for the materials furnished, and no statement of account and the amount claimed due was filed with the circuit -clerk within. ninety days after the last materials were furnished to the contractor, and it is questionable whether the suit was commenced in time, depending upon whether the improvement was in charge of the contractor’s foreman for one week after he abandoned tbe job, during which materials were furnished, or Doctor Simpson, the husband of the owner. The evidence is conflicting on this point, and we can not say that the chancellor’s finding is clearly against the weight 'of it. This court has determined.-that the commencement of a suit by the material furnisher within ninety days after the last materials are furnished fixes a lien against the owner’s property and dispenses with the necessity of ten days’ notice to the owner of an intention to claim a lien and the filing of the account upon which it is claimed with the circuit clerk. Anderson v. Seamans, 49 Ark. 475; McFadden v. Stark, 58 Ark. 7.

(3) The contractor was a necessary party and should have been made codefendant with the owners, who knew no tiling about what amount of materials had been furnished, nor how much of the materials furnished had gone into the construction of the improvement. He was a necessary party, both for his own and the owner’s protection. The owners had the right to look to him for the payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement, and can not be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered. Kirby’s Digest, § 4978; Horstkotte v. Menier, 50 Mo. 159; Janes Sons Co. v. Farley, 76 S. E. 169; Augir v. Warder, 70 S. E. 719; Clayton v. Farrar Lumber Co., 45 S. E. 723; State Bank v. Plummer, 129 Pac. 819; Boissot on Mechanics’ Liens, § 537; Phillips on Mechanics’ Liens, § 397.

(4) The undisputed testimony shows that Doctor Simpson made the contract with T. J. Evans to remodel the home situated on lots belonging to his wife, agreeing to pay him a certain amount for the completed improvement, all materials to be furnished by the contractor, and that the lumber, for the price of which ajien is attempted to be enforced herein, was furnished to the contractor by appellee, and not to the owners. And although the bringing of this suit within ninety days of the date the last materials were furnished dispensed with the necessity for giving notice and filed the lien with the circuit clerk,' so far as the owner was concerned, the law requires that an action to enforce such lien shall be commenced within fifteen months after it is filed, and the contractor is a necessary party to such suit as already stated. The decree will be reversed because of the failure to make the contractor a party, but wifi not be remanded for that purpose and further proceedings since the time for beginning suit to enforce the lien has already expired, and the fact that the suit was sooner brought against the owners can not relieve against the limitation, because the joining now of the necessary party, without which judgment should not be rendered, would but be in effect a new action begun after the expiration of the time. The decree is reversed and the cause remanded with directions to render judgment and enforce the lien for the amount only of $29.36, ■the balance remaining due upon the materials furnished and used by Doctor Simpson in the completion of the work.