Ark. Code Ann. » Title 18 Chapter 44
Arkansas Code Annotated

Ark. Code Ann. § 18-44-124 (2020)

Contractor to defend actions on liens by third persons — Liability

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  1. In all cases in which a lien shall be filed under the provisions of this subchapter by any person other than a contractor, it shall be the duty of the contractor to defend at his or her own expense any action brought thereupon. During the pendency of the action, the owner may withhold from the contractor the amount of money for which the lien shall be filed.
    1. In case of judgment against the owner or his or her property upon the lien, the owner shall be entitled to deduct from any amount due by him or her to the contractor the amount of the judgment and costs.
    2. If the owner shall have settled with the contractor in full, he or she shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally liable.

History. Acts 1895, No. 146, § 8, p. 217; C. & M. Dig., § 6919; Pope's Dig., § 8878; A.S.A. 1947, § 51-610.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Business Law, 5 U. Ark. Little Rock L.J. 91.

Case Notes

Applicability.

This subchapter was enacted for the benefit of persons doing work and furnishing material for private individuals or corporations and therefore this section is not applicable in the case of public improvements. Holcomb v. American Sur. Co., 184 Ark. 449, 42 S.W.2d 765 (1931).

Contractor's Claims.

Claims of contractor are subordinated to claims of laborers and materialmen. Long v. Charles T. Abeles & Co., 77 Ark. 156, 93 S.W. 67 (1905).

Deduction by Owner.

Where contractor failed to pay all bills for materials, such unpaid bills were deducted from the amount the contractor would have otherwise been entitled to from the owners. West v. Page, 228 Ark. 13, 305 S.W.2d 336 (1957).

Parties.

The contractor is a necessary party to action to enforce lien. Simpson v. J.W. Black Lumber Co., 114 Ark. 464, 172 S.W. 883 (1914); Cruce v. Mitchell, 122 Ark. 141, 182 S.W. 530 (1916); Rasmussen v. Reed, 255 Ark. 1064, 505 S.W.2d 222 (1974); Johnson v. Southern Elec., Inc., 29 Ark. App. 160, 779 S.W.2d 190 (1989).

Alleged “contractor” not required to be made a party where evidence established that he actually owned property at time lien was filed and subsequently deeded property to defendants. McCool v. Jones, 221 Ark. 123, 252 S.W.2d 80 (1952).

Cited: Superior Iron Works & Supply Co. v. Saulsberry, 226 Ark. 1032, 295 S.W.2d 626 (1956).

Notes of Decisions
Cited in 3 cases, 1989–2019 · leading case: Johnson v. S. Elec., Inc., 779 S.W.2d 190 (Ark. Ct. App. 1989).
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Johnson v. S. Elec., Inc., 779 S.W.2d 190 (Ark. Ct. App. 1989). · cites it 8× “They also alleged that appellee was not entitled to a lien because appellants had not been served with the statutory notice required by Ark. Code Ann. § 18-44-115 (1987). Appellants further alleged that Milburn was a contractor and had not been made a party to the action as…”
Travelers Cas. & Sur. Co. of Am. v. Sweet's Contracting, Inc., 2014 Ark. 484, 450 S.W.3d 229. · cites it 2× “According to that statute, the “bond shall be conditioned for the payment of the amount of the lien, or so much of the lien as may be established by suit, together with interest and the costs of the action, if upon trial it shall be found that the property was subject to the…”
Weyerhaeuser NR Co. v. Premier IEC LLC, No. 2:19-cv-00928 (W.D. Wash. Oct. 21, 2019). “the requirements of Ark. Code Ann. § 18-44-124 {a), Premier did not defend Weyerhaeuser in that action.”
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