This is an action to foreclose appellants’ asserted materialmen’s liens against the residence owned by appellee Allen G. Talbot. Appellee Catherine Talbot is his wife. Both appellants alleged they sold building materials to a man named Scarborough and the materials were delivered and used in the remodeling and repair of Talbot’s house which was occupied by the appellees. Upon completion of appellants’ evidence, the appellees filed a written demurrer to appellants’ evidence (Ark. Stat. Ann. § 27-1729 [1962 Repl.]) which was sustained by the chancellor. On appeal it is appellants’ contention for reversal that they established a prima facie case as to their asserted materialmen’s liens and, therefore, the chancellor erred in sustaining appellees’ demurrer to the evidence. The appellees strenuously respond that ‘‘[T]he entire record in this cause is void of any evidence of any contract with the owner of the property on which the lien is asserted.” Also, “[A]t best, the appellants attempted to show an inference that Scarborough may have been a contractor by the mere fact that he was working on the Talbot residence.” We are of the view the appellants are correct.
Evidence was adduced that the appellant Gillison Discount, during the months of July, August and September of 1970, sold to Bill Scarborough certain building materials which were delivered to and used in the Talbot house. Tickets were marked “Talbot job.” Scarborough said he would pay for the material when Talbot paid him. Scarborough wrote “Talbot job” on purchase tickets. Some of the material was picked up by Scarborough and his employees. Invoices totaling $1,038.71 identifying the materials allegedly delivered and used in the Talbot job were introduced into evidence. One of appellant’s employees, who delivered material to the house on several occasions, observed the remodeling and testified of Scarborough’s presence during some of the deliveries. An electrician bought supplies from appellant Gillison and charged them to Scarborough, as directed by him, and installed the material in the Talbot home. He observed Scarborough working at the Talbot residence during the “remodeling job.” According to one of Scarborough’s own employees, who assisted in remodeling the Talbot house, Scarborough had no other job in progress at that time and all building materials delivered by Gillison Discount were used in the Talbot home. He observed both of the Talbots at the residence during the remodeling.
The manager of appellant Lake Village Lumber Co. testified that Scarborough “said he had the job” of remodeling Talbot’s house, that materials were sold to Scarborough during July and August and were designated for use in the Talbot residence. He, also, observed construction work on the Talbot house. The amount of this appellant’s asserted lien is $149.56 for materials furnished at Scarborough’s direction. A plumber testified that he acquired materials for the house from both appellants at Scarborough’s direction and installed the materials in the Talbot residence.
We agree with appellees that the record is void of any proof of a contract between appellants, as material-men, and Talbot, as owner of the residence. However, Ark. Stat. Ann. § 51-601 (1971 Repl.) provides:
“Every **** person who shall **** furnish any material **** for any building, **** or for repairing same, under or by virtue of any contract with the owner **** or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act #*** shall have for his **** materials ###* furnished a lien upon such building ****.”
Thus a lien can be created if a contract is shown to exist between a materialman and a contractor representing the owner. The necessary contract can be by express agreement or implied from the circumstances or conduct of the parties.
We consider our decision in Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), controlling in the case at bar as to the written demurrer. There we held:
“By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.”
Further, the trial court’s action in sustaining a demurrer to the evidence can be affirmed only if the plaintiff offered no substantial testimony upon the controlling question of fact. Lafayette Co. Inc. Dev. v. 1st Nat’l Bank, 246 Ark. 109, 436 S.W.2d 814 (1969). There we recognized:
‘“The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.’”
In the case at bar the appellants presented undisputed evidence that they furnished material to Scarborough in the belief his status was that of a contractor; that the ‘‘Talbot job” was the only job being performed by him at that time; that Scarborough had some authority inasmuch as the materials, at his direction, were being delivered and used in remodeling Talbot’s house; and, further, that Talbot himself and his wife were observed at the residence on occasions when material was delivered and being used in a substantial and visible remodeling (i.e., a room and bath and extending a room). After giving this evidence its strongest probative force and all reasonable inferences deducible therefrom most favorable to appellants, as we are required to do on a demurrer, we are of the view there is sufficient evidence of Scarborough’s status as Talbot’s contractor and of a contract between Scarborough and the materialmen, appellants, to establish a prima facie case as to the asserted material-men’s liens. Therefore, the written demurrer should have been overruled. A different “holding would be plainly contrary to the rule that on demurrer doubts are to be resolved in favor of the pleader, not against him.” Watkins v. Johnson, 235 Ark. 85, 356 S.W.2d 655 (1962).
The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
Brown, Fogleman and Byrd, JJ., dissent.