Campbell v. Kennerly

McCulloch, C. J. Appellant instituted this action against appellees in the chancery court of Independence County, to recover the contract price for furnishing and installing a heating plant in a building owned by the latter at Batesville, and to enforce a mechanic’s lien. The contract price was $875, of which $350 was paid during the progress of the work, and the action is to recover the balance. Appellees claim that there was not a substantial compliance with the contract in that the plant was not constructed and installed in a workmanlike manner and of proper material so as to afford satisfactory heat, and they defended on that ground. They also presented a counterclaim, asking the recovery of the sum of $350 which they had paid on the contract price. At the hearing of the cause, the chancellor found in favor of appellees, and rendered a decree for the amount prayed for in the counterclaim. According to the terms of the written contract introduced in evidence, appellant agreed, for the stipulated price, to install the plant, “the said heating apparatus to be placed in said building in such manner and located at such a point as shall he deemed best by said heating company for its most successful operation, it being guaranteed that said heating apparatus shall he constructed thoroughly in all respects of good material, and made smoke and gas tight, and that, subject to the requirements hereinafter specified, such heater shall furnish a pure, moist air and have a capacity to provide a temperature of 70 degrees for the building in the coldest and windiest weather.” The law is settled that a contractor of this sort can not recover unless there has been a substantial compliance on his part with the terms of the contract, or, in other words, unless he has furnished the material and performed the work substantially as provided in the contract. Ark-Mo Zinc Co. v. Patterson, 79 Ark. 506; Harris v. Graham, 86 Ark. 570; Mitchell v. Caplinger, 97 Ark. 278. The chancellor found that there had not been a substantial compliance with the contract by appellant, and on that ground found in favor of appellees. The record is very voluminous, and contains the testimony of numerous witnesses. There is a sharp and irreconcilable conflict in the testimony, and the state of it is such that we are unable to say that the chancellor’s finding is against the preponderance. Under those circumstances it is our duty to affirm the decree. It is insisted by learned counsel for appellants that there is a decided preponderance of the testimony of witnesses introduced by appellant who show an accurate knowledge of this kind of work, and that the testimony of many of the witnesses upon the part of appellees should be disregarded on account of obvious lack of such knowledge. They insist that there should be a considerable degree of expert knowledge on that subject before the testimony of witnesses can be accorded any probative force. We have duly considered these matters, and, upon the whole, we are convinced, as before stated, that the state of the testimony is such that it is impossible for us to say that there is any preponderance in appellant’s favor. No useful purpose would be served in setting out the testimony in detail, even if it were practicable to do so, voluminous as it is. We should add that, inasmuch as appellees rejected the work and refused to pay for same, it is still the property of appellant, and may be removed from the premises, as far as that can be done without injury to the building. Harris v. Graham, supra. This is doubtless the view that the chancellor took, though he made no mention of that in his decree. The parties have evidently so treated it, as nothing has been said about it in the briefs. We deem it proper to mention that, so that there will be no misunderstanding about the force of the decree which we now affirm. It is so ordered.