Wilmot v. West , 148 Ark. 41 ( 1921 )

Hart, J.

(after stating the facts). To reverse the decree, counsel for appellant invoke the rule laid down in Harris v. Graham, 86 Ark. 570, and later cases to the effect that where there has been a lack of substantial performance of a contract by a contractor, he can not establish a lien upon the property. We can not agree with counsel for appellant in their contention. The chancellor found that there had been a substantial compliance with the contract by both West and Mooney. It cannot be said that his finding of fact in this respect is against the preponderance of the evidence.

The record comprises five hundred and thirty-four pages of type-written matter, and it will therefore be impractical to set out an abstract, or even a synopsis of all the testimony. Indeed, to do so would serve no useful purpose. The testimony is in direct and irreconcilable conflict, and we deem it sufficient to say that we have given all of it careful consideration.

In the first place, it may be stated that West and Mooney both testified that after the work had been finished Mrs. Wilmot went to the house and examined the work in detail. She expressed herself to them as being satisfied with the work done by them as well as the materials used in doing it. She said that she had.been caused some dissatisfaction by her husband’s employing Mr. Hart, an architect, to look over the work, and his report; but that she had great confidence in Mr. West, and after examining the house she was satisfied that he had made the repairs in accordance with his agreement.

It may be noted here that numerous changes were made in the plans during the progress of the work. This indicates that Mrs. Wilmot was present and examined the work as it progressed. She made no complaint during all this time concerning the workmanship or the materials used. It is true that Hart, the architect, stated that the general character of the work was bad. But in this respect he is directly contradicted by the two men appointed by the chancellor to examine the work and to make a report thereon to him.

J. I). Brock and Eugene Patton were appointed by the court with the consent of the parties to make an examination of the work done by West and Mooney for Mrs. Wilmot. They were directed to ascertain the actual value of the work as per prices charged for such work at the time the 'same was done and were empowered to hear evidence of witnesses as to the same. The order provided that the parties to the suit might be present at the examination of the work. Patton and Brock examined the work and filed a detailed report to the court of the results of their examination. They reported that they had inspected and appraised the work done and the materials used in repairing the house. They further reported that where all risk is assumed by the builder, and the contractor only charges a commission for superintending or carrying on the work, ten per cent, of the cost of the labor and materials is the usual amount allowed him. West and Mooney testified that their profits were no greater than ten per cent, of the cost of the labor and the materials.

It is true that two carpenters employed by Mrs. Wii-mot testified that it was impossible to ascertain what kind of materials went into the building; but, if their testimony should be accepted as true, it would not help Mrs. Wilmot any, for it would with equal force lessen the credit which should be given to Hart’s testimony. This would leave West and Mooney testifying that they had performed the contract in accordance with their contract, and Mrs. Wilmot and her husband testifying to the contrary. Brock and Patton were appointed by the court as disinterested persons with the consent of both parties for the express purpose of examining in detail the work done and materials used in'the repair of the house and premises. Their report showed that they made a careful and detailed examination as they were ordered to do. Their report also shows that Mrs. Wilmot was indebted in the respective amounts found by the chancellor, and, as above stated, tvhen all the surrounding circumstances are considered, we do not think it can be said that the finding of the chancellor, in this respect, is against the preponderance of the evidence.

E. O. West has taken a cross-appeal, and it is earnestly insisted by his counsel that he is entitled to the amount sued for, instead of the amount’allowed him by the chancery court. He bases his contention upon the fact that the parties made a contract, and that the evidence shows that West is entitled to the amount sued for under his contract. But little need be said on this branch of the case. As we have just seen Brock and Patton, with the consent of the parties to this lawsuit, were appointed to inspect the work and make a report as to its value. Brock and Patton made a detailed report in accordance with the order appointing them, and it can not be said that their finding is against the express contract made by the parties. The parties agreed that they should ascertain the actual value of the work done by West as per prices charged for such work at the time same was done, and they are in no attitude to complain now that this was done.

Therefore the decree will be affirmed.