954 TERRY v. LITTLE. [179 • TERRY V. LITTi.Z. TERRY V. LEM4y. Opinion delivered Jnly 1, 1929: ACCOUNT—;ACTION ON—ITEMIzED ‘ STATEMENT. ID an action . by a subcontraCtor aga : in st a road contractor 'and his SuretY, a statement of the items iii the complaint, sh6wing the amotia Of yard-' age, andnumber Of hours . of team and'wagon uied, etc.; Was ` suffi---cient as-against a motion to require an itemizedaccount, where nO - additional information was necessary to apprise defendants, of the nature of the information sought. , .• '2: TRIAL—JURISDICTION OF ACCOUNT. —In an action against , a "rOad contractor and his surety for work done by a subcontractor, held that the acc6unt was not so complicated as te• render 'it neces-- • sary to transfer the cause to chancery•and .appoint a master. 3: APPEAL AND ERROR—ERROR NOT 'sHoWN.—On „ah assignment of ° error in allowing an item Of $125 "for balancv .: of, yardage, not paid for -in June," in an action against, a contractor: by..a subContractor, where'the evidence fails tO shoW that the' item *is allowed, but shoWs that the Court reduced* plafntiff's claim by an amount exceeding $125, and allowed an aggregat& sum, not itemized, held that:no error was shown. . • • 4. ACCOUNT—REQUIREMENT OF ITEMIZED ACCOUNT.—Where an.account for work done was stated with as much particularity as the nature of the transaction would admit, -and was sufficiently definite to apprise thr defendant of the evidence to be offered, a motion to require an itemized statement wag properly refused. 5. WORK AND LAROR--PARTIES.—Where' teams were furnished to .a road contractor by a mortgagee in possession, who.was ratognized
TERRY v. LITTLE. 955 as oWner by the contraCtor, it was unnecessary, in .an action against, the contractor, to make the mortgagor -a; party. 6.. ACCOUNT—AMENDMENT OF STATEMENT.—In an action against a ,road- contractor for money due for the use of teams, it Was not error to permit the coinpiaint ,t:o be amendvd to show that the wages of the driver were' included in 'the' nbSence bf a 'showing a-surprise or request frit- cOntinuance: 7. EthHWAYS—LIABILITV OF' 'CONTRAiYi‘0111.' sdiE4 stirety on thra bond of a_road contractor held liable for the aniount due-to • plhintrff for the use of teams, where the condition of the bond ; L:..was that the surety . should ,"pay all bills for material and. labor ,s entering into the construction of said work, or used in the course of the performance of the work." A75pea1 from Lawrence Circuit Court, .Eastern M: Bon(; Judge'; -affirmed: s', . iBitzbee,:Pu,gh &-Hcirrisowand McCaleb ,c6 McCaleb; for appellant , •. . . C'ainimingham, for appellee. Bu4LEn;, J. The casesmamed in the caption werereon, solidated in th'e, circuit. court ,fa the.purpose of trial,- and, as:bonsolidated, have 'been brought to' this court on- appeal.: , For convenience this!-court will consider -first ease, No-.; 1020; W.-E.-LemaY and :A: D. Little v. E: L. Terry and Sonthern, Surety' Company,. the defendants. -in the court below.being the apPellants here: L.:Terry-was engaged,.in 'the-year 1927, as a general 'c ontractor, in ; building certain ronds between - Alicia; Arkansas . , and. Tuckerman, 'Arkansas: A: D: Little was einploYed- as subcontfactoi; On said road, and.did certain dirt ;work..iii. building -a dump,..and- also did .sonie day work on !the ' road...The Soukhern Surety : CompanY was the surety- on' the bond . of E. L. T6rry, andnibligated itself; by. the terms of- the bond; to -insure the r paym.ent of 'the wOrk . and -material, done- ur . ,furnished., W. E Lemay seems ko .haVe been engaged.in furnishing, supplies- to the subcontractor, , A: D.Little, and: to other ;sulkontiaCtors; and in the case of Little there was an agreenient'betWeen Lemay and Terry, that. the 1atter . wa g to ay to
Lemay the hniounts due Little,. and , - Little akecuted. an assignment of 'the amount due him . to Lemay. After .the
956 TERRY v. LITTLE. [179 completion of the work which Little had agreed to do, Lemay and 'Little brought suit against Terry and his surety, the Southern Surety Company, for the balance alleged to be due of $859.04, and incorporated in their complaint the following statement : "Balance yardage not paid for in June $125.00 Yardage held back, 2,041 yds. at 20c 408.20 2,500 yards at 2c extra 50.00 Overhaul, 6,832 yds., at 2a. 136.64 Ten per cent, extra for completed work 132.40 Team and wagon without driver, 30 hours 7.50 Total $859.04" The defendant Terry moved the trial court that the plaintiffs be required to file an itemized and verified account, alleging that the statement filed was insufficient in that it failed to show each separate item of work claimed to have been done or material furnished, the dates of same, et cetera. The court overruled the motion, to which action the defendant excepted. The defendant Terry then filed a demurrer to the complaint, which was overruled, and thereupon he filed his answer, and motion to transfer the case to the chancery court. The motion to transfer to chancery was civerruled, and the 'case was submitted to the court sitting as a jury, who, after having heard the testimony, rendered judgment in favor of the plaintiff for the sum of $750 against the defendant Terry and for an additional sum of $560.56 against the defendants E. L. Terry and the Southern Surety Company. The appellants, as grofind for reversal, insist that the court erred in refusing to require appellees to file an itemized and verified account of the claim sued on, and also that it was error for the 'court to refuse to transfer the case to equity, and because the court allowed judgment for the item of $125 for "balance of yardage not paid for in June." The court is of the opinion that the statement of the items in the complaint was sufficient, and that no additional information was necessary to apprise defendants
ARK.] TERRY V. LITTLE. 957 of the nature of plaintiff's claim, especially because the very information sought was at their command (Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027), and that there Was no such involved or complicated account as would make a transfer to chancery and the appointment of a master necessary. Cherry v. Kirkland, 138 Ark. 33, 210 S. W. 344; McGraw. perkins & Webber Co. v. Yates, 175 Ark. 298, 298 S. W. 1001. The evidence, while confused and unsatisfactory, was sufficient to show that there was practically no dispute as to the amount and Icharacter of the work done or the price agreed upon, the question being whether the work on the Little contract was paid for ; but the appellees do not challenge the sufficiency of the testimony. From the judgment rendered it is evident that the court reduced the amount of plaintiff's claim, and we are unable to determine what particular item it rejected, so that it might have been that the item of $125 for "balance yardage not paid for in June" was the item excluded. But, even, if that were not the case, the complaint was treated as amended to conform to the proof, and there is no allegation of surprise or request for any continuance to meet the change in the issue, so that, in any view of the case, the appellant's third ground for reversal must be rejected. The conclusion of the court is that no reversible error was committed, and that the finding and judgment of the trial court should be and the same is hereby in all things affirmed. • We next •consider case No. 1019, E. L. Terry and Southern Surety Co. v. W. E. Lemay. For his cause of action W. E. Lemay, in his original complaint, alleged that the defendant Terry was a general contractor, building State Road No. 67 between the towns of Swifton and Tuckerman, in Jackson County, Arkansas, and that the defendant employed the teams of plaintiff, known as "three-up teams," at the rate of 75 cents per hour per team for 417 hours, and that he was due for this the sum of $312.75, which was past due and unpaid. The defendant Terry moved the court to require the plaintiff to file an itemized and verified account of the claim sued on,
958 TERRY V. LITTLE : 11179 . which motion was overruled, and exceptions duly saved by the, defendant. • • • After caSes-No..1019 and 1020 were consolidated, the plaintiff Lemay in this case filed an amended complaint making the same allegations as in his original complaint, .with the addition of the words "and drivers" after the words." three up-teams,". and also alleged that the Southern SUrety: Company was bound on its. bond for the payment of thisitem,- and exhibited a copy-of the bond.With his amended -complaint.. To this amended complaint the defendant Southern. Surety Company demurred, and it And the defendant. Terry filed their separate answers. T1J-pon the::issiles thus joined the case was subMitted to the Court sitting as a jury,-and a judgment was rendered in' favor of the plaintiff and against both defendants for the sum. suedlor.. • It is urged on the part of the appellant Terry, first, That -the 'colirt'S • Tefusal to require the appellee to file an itemized-•account, dilly verified as required by law, was prejudicial error, and cites the case of Brooks v. Inter national:Shoe Company, 132 Ark. 386, 200 S. W..1027, in suppOrt Of his . contention: The accounts in the Brooks caSe and in'the, instant case are essentially different. lu the Brooks- case fhe account was for merchandise, and Contained a number of debit items, presumably for the gross amount of -invoices . , without setting out the different items and in the case at bar what is called.an acCount by the appellant is the following statement: "This is• to certify. that W. E. Lemay has made team time to-the amount of 417 hours between October 21 and.31,.inclusiVe; three-up., teams,. - at 753 per hour: This amount is due today for WOrk on Cat-tail road. (Signed) F. M. Eason, foreman and time-keeper." As stated in Brooks v. International Shoe Co., supra; "the word 'account' is said to have-no inflexible; . technical meaning, and is differently c -onstrued according to the connection in which it is used. However/ in. Mercantile transactions it'is invariably used in. the sense of a, detailed or itemized alecount.' In that . case the• rule in Sutherland on Code Pleadings, vol.
ARK.] TEnny v. LITTLE. 95 9 2, § 2297, was quoted with approval, and is: as follows : • ' The items of the account furnished must be set forth ,with as much particularity: as the nature of the , case admits of. A bill of particulars fs sufficiently, specific if it apprises the opposite party of . the evide : nce , to be offered'."' , . %In the instant case it . is evident that' Lemay„ had no information relative to the :work , aone excep . t, such as. was furnished him by the foreman.and time:keeper, „so that ,it was stated with as much particularity:a.s the, nature . of the , transaction would admit, and : the party called.upon.to - accpunt _is. not subjected to the-necessity- of-doing=.an practicablo thing : Inasmuch, as the statement which is' the ;basis, of this suit was made..by the foreman and=timekeeper, it was sufficiently, definite:to' apprise the , opposite .party, of the .evidence to be offered, : so the court is of:the opinion that .the ease cited _by: the . .a.p.pellant .settles the first assignment of error against .him... . .Appellant Terry insists, as'ia 'second" ground for :re'- versal; that there was . such a variance-between . the 'plead-ings and' proof as' woUld ;preClude- "any recovery by the plaintiff ;' that the proof ' Shows' that Lemay had" no ;righi 'to 'maintain the action because, if anything . was due, it was"due" to one Little,"and-,.bef ore recoverV could be had, "Little must have been mad'é 'a party.; :The facts afe undisPuted. Little was the owner of the-teams, and had 'giVen .a" mortgage to the .appellee-Lomay covering : them, and, afterthaving completed certain wOrk, he became sick and 'could' not take care Of the teams. He fUrned them' Over to Lemay, who put theni in his pasture .and fed them for "some time, when Little discovered they could be hired out, and so told Lemay. Lemay sent , Little with the . teams' to the place where the. workwas to "be ! done." They were Put to 'work, _and it_ was recognized by the. contractor; that, for the purpose of that transaction, they were Lemay2:s teams, for the statement, is: demonstrative of : that :fact. Lemay was the mortgagee in : poSsession, , and it was ;immaterial whom he sent with ,the teams.to . .their; place . of ..
960 TERRY V. LITTLE. [179 work, whether Little or any one else, for the person so sent would be merely the agent of Lemay for that purpose. It was unnecessary to make Little a party, and the cases cited are not in point. - The third assignment of error which is pressed in the brief of appellant is that, nothing having been said in the original complaint about any drivers in charge of the teams, it was error for the trial court, over the objection and exception of the defendant, to allow the complaint to be amended during the course of the trial to show that the wages of the drivers were also included in the , sum of $312.75 claimed to be due. It may be said, as a matter of common knowledge, that mules do not drive themselves, but it is necessary for some one to be present to control and direct their work, and when the expression "teams" ia, used and a price per hour has been charged for the use of such teams, this price includes the work of the man as well as the animals. Alsb the expression "up-teams," among those who do contract work, such as building roads or levees, has a well-recognized meaning, and includes the animals and the driver. But, if we should be wrong in this assumption, still appellant is in no attitude now to complain, for he does not appear to have been surprised or taken off his guard, as he made no request for a continuance of the case in order to meet the additional allegation of the amended complaint. There is competent testimony to sustain the finding of the court, for it is shown by Little's testimony that the mules were put to work, and Lemay's testimony shows that he took charge of the teams and sent Little to get a job and put them to work to help pay for their feed, and received from the foreman and time-keeper of the appellant a certificate showing that the work was actually done. The next question presented in this case is the liability of the Southern Surety Company'. It contends that there should be no judgment against it, even though the court should hold that a judgment against Terry should stand, for it claims that there was an oral assignment of
ARK.] TERRY V. LITiLE. 961 the aecount in this ease by Little to Lemay, and that, as Little was a necessary party, no judgment can go against the defendant surety company. We have sufficiently answered this question aboye. The question as to whether the appellant snrety company is liable under the terms of its bond for the item sued for is the serious one in this •case upen which the 'court is divided. The appellant relies - upon the case Of St. L. I. M. & S. R. Co: v. 1 Love, 74 Ark. 528, 86 S. W. 395, and the case of Gbode v. "Etna Casualty & Surety Co., 178 Ark. 451, 13 S. -W. (2d) 6, The 'majority of-the --court . are - able-J6 —disti -ngUish -between the instant case and the cases above cited. There is a difference in the verbiage of § 8555 of Kirby's Digest, construed in the case of Rwilway v. Love, supra, and that used in the bond executed by the appellant company. In the first there is a lien declared in favor of any person "who Shall do or perform any work or labor; or Cause to be done or performed any work or labor upon, or furnish any materials, machinery, fixtures . , or other things, toward the building, et cetera, of the railroad, * * * and every person who performs any work of any kind in the construction or repair of anY railroad * * * shall have a lien," et cetera. The court-had in mind *and construed that paragraph which reads "or furnish any material, machinery, fixtures, or other things toward the bnild-ing," et cetera, and held, under the rule ejusdem generi.s, that mules were not included within the terms of the statute, as the words, "or other things," in the statute had reference to similar things as those denoted by the- preceding words. It will be noted that the bond in the instant case is framed in different language froin that of the statute supra, the condition being that the surety "shall pay all bills for material and 'labor entering into the construction of said work,. or Used in the course of the performance of the work." This bond follows the language of § 67 of act 5 of the Special Acts of 1923, known as the Harrelson Road Law. The- words used in
962 TERRY V. LITTLE. [179 that statute regarding the bonds to be executed are as follows , : "Shall contain conditions making it (the contractor) liable for material and labor used in the work." This act was not expressly repealed by act No. 11 of the Acts of 1927, as § 6 of that act, in speaking of the bonds required, used the following- language: "Conditioned as the commissioners may require." As the bond in question was filed with the State Highway Commission, it is evident that the conditions it was then requiring were those stated in the Harrelson Act, and the word "used" is of much broader import than any contained in the section of the Digest mentioned. It connotes any means employed for the accomplishment of a purpose and the employment of any instrumentality fitted for its performance, so that, as teams of mules are necessary, under conditions as they now exist, for the construction of highways, the majority of the court has concluded that the language of the bond quoted is broad enough to bring the up-teams used on the highway within its conditions, and for that reason the case from 74 Ark. cited above .by the appellant is not in point. The instant case may be distinguished from the case of Goode v. 2Etna Casualty & Surety Co., supra, for in that case the question involved was whether.the surety on the bond was liable for feed furnished for the stock used in the work on the highway, while in this case the appellee seeks to recover not only for the labor of the mules, but also for that of the drivers. The laborers' lien statute, providing that "laborers who perform work and labor .on any object, material, or property, shall have an absolute lien on such object," etc. (§ 6864, C. & M. Digest), has been held to give a lien on property where one used a wagon and team actually driven by the one who files the claim for labor. Klondike Lumber Co. v. Williams, 71 Ark. 334, 75 S. W. 854. It follows that the trial court was correct in its judgment, both as to the defendant Terry and the defendant Southern Surety Company, and the judgment is therefore affirmed.
ARK.] 963 As to the Southern Surety Company, the CHIEF JusTICE, Mr. Justice SMITH and the writer think no proper distinction can be made 'between this case and St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, 86 S. W. 395, and Goode v. .zEtna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6, by which this case should be ruled, and they therefore. dissent from the majority decision.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.