Marianna Hotel Co. v. Livermore Foundry & Machine Co.

Wood, J., (after stating the facts). Tinder the undisputed evidence the contract to furnish structural iron and the contract to furnish sash weights should be treated as one entire contract for the purposes of having a lien declared upon the hotel building in suit. The acceptance by the contractor of the written proposal by the appellee to furnish structural iron for appellant’s building was bottomed upon the condition that appellee would also furnish sash weights at a certain price. The rule that contemporaneous verbal agreements shall not be allowed to annul or vary the terms of a written contract is not applicable to the undisputed facts of this record. Here there is no attempt by one of the parties to a contract to vary its terms, but the evidence shows that the contracts, even though they were separate and independent, were entered into at the same time and each became binding at the same time. The appellee was a material furnisher, and its account shows that it furnished the contractor for appellant’s hotel building not only structural iron, but also agreed to furnish at the same time sash weights, which were just as much a part of the material with which the building was constructed as the structural iron and steel, although not nearly so great a part. It is clear from the undisputed evidence that so far as the appellee and the contractor were concerned it was contemplated at the time the written contract for furnishing structural iron and the verbal contract for furnishing sash weights were entered into that they should be regarded as but one entire contract. At any rate, we are of the opinion that they should be so treated so far as the time for filing the lien is concerned. The appellant, without objection, permitted the manager of the appellee to testify as follows: “There was but one contract. There was a writing regarding the structural iron and Nelson signed an acceptance and put his name on the proposal, but he put it there upon that condition.” That is, upon condition that appellee would “agree to furnish the sash weights at a certain price.” In a suit to declare the lien the obligations of this contract are collateral so far as the hotel company is concerned, the law fixes the time “within ninety days after the things aforesaid shall have been furnished,” and, so far as appellant is concerned, we think, under the undisputed evidence, that the structural iron and steel were, in law, under the terms of the contract, furnished when the sash weights were furnished. In Kizer Lumber Co. v. Mosely, 56 Ark. 544, it is said: “If the materials were furnished under one contract, he should file the account within ninety days after the last was delivered; but if the materials were furnished under separate and distinct contracts, it should be filed under each contract within the time limited. ’ ’ The undisputed testimony, as we have stated, shows that the appellee and the contractor regarded the contract to furnish structural iron and steel and the contract to furnish sash weights as but one contract. The court therefore correctly construed the contract, and did not err in giving instructions numbered 1 and 2 on behalf of appellee and in refusing the request for instruction numbered 1 on behalf of appellant. Instruction numbered 3, given at the request of the appellee was erroneous and prejudicial. Taking all ,the testimony together, it was a question for the jury under the evidence as to whether or not appellant paid the contractor moneys in excess of the amount of appellee’s claim which he used for his own private purposes. The appellee (plaintiff below) contended that appellant paid Nelson, the contractor, sums of money largely in excess of plaintiff’s claim, which he converted to his own use. Even if this were true, it would not, under the law, have entitled plaintiff to recover to the full amount of its claim. In such, case plaintiff (appellee) would not be entitled to the full amount of the claim, but only its pro rata, according to the rule announced in Long v. Abeles, 77 Ark. 156. Nor is it true that if appellant paid the contractor a less sum than the amount of appellee’s claim which the contractor used for his own purposes, that the appellee (plaintiff) would be. entitled to recover for this amount. In either event, the plaintiff (appellee) would be entitled to recover the amount of its pro rata with other lien claimants according to the rule announced in Long v. Abeles, supra. The court correctly declared the law as to the pro rata in its instruction numbered 4, given at the instance of the appellee. But this instruction was in conflict with instruction numbered 3, and where there are conflicting instructions the jury would have no correct guide. That the appellant was prejudiced by the first part of instruction numbered 3, supra, is manifest from the fact that the jury did return a verdict in favor of the appellee for the full amount of its claim, whereas, if the jury had not been confused by the conflicting instructions and had the law been correctly declared they could only have returned a verdict for appellee, if they found the other facts in its favor, for the percentage of its claim when pro rated with the other lien claimants. We find no prejudicial error in the giving and refusing of other prayers for instructions. We aré of the opinion that they are in accord with the. rule declared by this court in former cases. Long v. Abeles, supra; Central Lumber Co. v. Braddock Land & Granite Co., 84 Ark. 560; Cost v. Newport, 85 Ark. 407; Pratt v. Nakdimen, 99 Ark. 293. We find no prejudicial error in the rulings of the court upon the admission or rejection of testimony. Inasmuch as the case must be reversed and remanded for a new trial we deem it proper to say that the court should allow any testimony that may be offered tending to prove any valid liens existing against the hotel building of appellant as such testimony will be germane to the question, of pro rating the amount of appellee’s claim with other lien claimants, and in determining what per cent, if any, appellee will be entitled to recover. See Long v. Abeles, and other cases supra. For the error in granting the appellee’s third prayer for instruction the judgment is reversed and the cause remanded for a new trial.