Planters' Cotton Oil Co. v. Galloway

Hart, J., (after stating the facts). The record shows that H. Galloway filed an itemized account of lumber and materials furnished for the gin plant of W, J. Somers, verified, as provided by § 6922 of Crawford & Moses’ Digest, in the office of the circuit clerk of Lonoke County on December 15, 1923. The record further shows that an amended complaint was filed in the chancery court on December 24, 1923. The filing of the account in. compliance with the statute, within ninety days after the last item of the materials was furnished, gives the material-man a lien under the statute. Burel v. East Arkansas Lumber Co., 129 Ark. 58; Hill v. Imboden, 146 Ark. 99; and Ferguson Lumber Co. v. Scriber, 162 Ark. 349. It is the contention, however, of counsel for the appellant that the claim for the lien was not filed within ninety days after the last item of the materials was furnished. In making this contention, counsel claim that the materials furnished after the 15th day of September, 1923, were furnished under a separate contract for an oil engine house, and therefore do not constitute la part of the account for materials furnished in building the gin house, cotton house, and cotton seed house, which alone were considered when the first contract for furnishing materials was made. The record does show that Somers first contemplated operating a gin plant with electricity, and that the original contract was entered into with Calloway to furnish materials when this was his intention. Afterwards, when the gin house and cotton and cotton seed houses were about completed, Somers changed his plans, and decided to add an oil engine house. The substitution of an oil engine for an electric one did not have the effect to change the contract originally made by Somers with H. Calloway in any particular. Somers told Calloway that he intended to rebuild 'his gin plant, and wanted to make arrangements to purchase materials from him for that purpose. Calloway agreed to furnish the materials to Somers in such quantities and on the dates required. He only knew in a general way that he was to furnish materials to Somers with which to rebuild his gin plant. It did not make any difference to him whether Somers made alterations or additions to the plans. Calloway was to furnish lumber and nails to be used in rebuilding the gin plant. It was all one contract, and it did not make any difference to him whether the power to )be used in operating the plant was electricity or oil. Any change of plans or additions to the original plans could not in the very nature of things affect the contract of Calloway to furnish lumber, nails and other materials to be used in constructing the gin plant. The oil engine house was built into and constituted a substantial part of the gin house. The first material furnished by H. Calloway was on May 12, 19:23, and the last item was on October 25, 1923. A substantial quantity of material was furnished within ninety days of the filing of the claim, and it is fairly inferable from the evidence that these items constituted a part of the construction of the oil engine house, or of the gin house proper. The amount of the items furnished within the ninety days is not the test of whether they are embraced within the original account. But the test is whether or not the items fiall naturally and ordinarily within the account. The size and number of the items furnished within the ninety days indicated that they were furnished under the original contract, and not merely for the purpose of bringing the claim within ninety days after the furnishing of the last item.- According to the testimony of Cecil E. Calloway, he delivered most of the items which constituted the account embraced in this action. He stated further that, after the gin plant had been completed, his father asked Somers for payment of the account, and that Somers kept putting him off until he could borrow some money with which to pay it. This constitutes proof of the correctness of the account. Indeed, there is no serious contention that the account is not correct, but the main reliance for a reversal of the decree is that the claim is barred because it was not filed within the ninety days provided by statute. Again it is insisted that the decree should be reversed because the court erred in admitting certain slips in evidence to establish the items of the account. According to the evidence of Cecil E- Calloway, his father kept the books, and he used the single-entry system. In connection with it, he had a ticket system which served as an itemized statement of the accounts. When articles of merchandise were furnished, three tickets showing the items were run off of a machine. One of these tickets remains in the office, another is given to the purchaser, and the third is given to the driver to show him what materials to deliver to the purchaser. Iu keeping the books only the amount of each ticket would be written in the book. The system seems to provide a simple, correct and economical manner of keeping books, and altogether serves as an itemized statement of the accounts so kept. We are of the opinion that no error was committed by the court in permitting the account to be proved in this way. A careful examination of the record convinces us that the decree of the chancery court was correct, and it will therefore be affirmed.