Hess v. A. L. Ferguson Lumber Co.

Hart, J. (after stating the facts). The chancellor found that Hess purchased the materials for the construction of his house from appellees and agreed to pay for the same. This finding is in accord with the testimony of Aaderson, the manager of appellees. The materials were charged on the books to Hess by Wallace. The bookkeeper of appellees testified that Hess admitted to him that he owed the account and would pay the same as soon as he collected some money due him on the purchase price of some property he was selling. Hess denied having agreed to pay for the materials, and is corroborated by Wallace. The original contract was made over the telephone. The testimony of Anderson and Hess as to what the contract was is in direct and irreconcilable conflict. Each one is corroborated by facts and circumstances introduced in evidence. The finding of the chancellor in favor of appellees is not against the clear preponderance of the evidence, and for that reason, under the settled rules of this court, it will not be disturbed on appeal! It is next insisted that the decree should be reversed because appellees did not give ten days ’ notice before the ■filing of their lien, as required by sec. 6917 of Crawford & Moses’ Digest. The material was furnished under a direct contract with the owner, who was liable as on an original undertaking, and the notice required by the statute was not necessary. , Sec. 6935 of the Digest provides that all persons furnishing things or doing work provided for by this act shall be considered subcontractors, except such as have contracts therefor directly with the owner, proprietor, or his agent, or trustee. So it has been held that if a person enters into a contract with the owner of the land to furnish material by which the owner becomes liable therefor, such person furnishing the material is not a subcontractor and is entitled to recover judgment therefor against the owner of the land, and also to a lien on the building constructed thereon. Leifer Manufacturing Co. v. Gross, 93 Ark. 277. It is also contended that the judgment should be reversed because Wallace, the contractor, was not made a party to the suit, and reliance is placed upon Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, and Cruce v. Mitchell, 122 Ark. 141. In each of these cases the goods were sold to the contractor, and suit was brought against the owner without making such contractor a party. In the present case the materials were sold directly to the owner, and he was liable to the person furnishing the materials upon an original undertaking. It W-as his debt, and no useful purpose could bave been served by making the 'contractor a party. Then, too, the record shows that the contractor had become a nonresident of the State, and service could not be had upon him, although he was named as a party defendant in the complaint. It follows that the decree must be affirmed.