Herrin v. Burnett

SAYRE, J. Appellee, as assignee of the Wood Lumber Company, sued appellant on the law side of the circuit court to establish and enforce according to the statute — section 8832 et seq., of the Code declaring a lien in favor of materialmen— a lien for the value of lumber furnished for the building of a garage on tbe property of appellant. The account in dispute dated from November 3, 1924. The lumber was used in the construction of a garage on a lot the property of appellant. Then and previously appellant’s husband, W. B. Herrin, conducted a grocery store and a filling station on the lot in question, but whether he conducted the business for bimself or as agent for his wife was in dispute, and the evidence as to that was contradictory as was that relating to the question whether the lumber had been furnished on the credit of appellant or her husband. The value of the lumber was also in dispute. The witness Rogers was allowed, over appellant’s objection, to say to the jury, “I would consider that,” meaning the lumber furnished by appellee, “to be about No. 2.” This witness had built tbe garage under contract with appellant’s husband, but, in addition to his specific statement that he was no expert, said that he “was not much on lumber.” The qualification of the witness was not otherwise shown. He was not further interrogated to the end of showing that he had given any special attention to the subject of lumber grades, or that he had ever had uncommon occasion to know them. His competency was left to be determined upon consideration of the facts stated above. Our judgment is that his expressed opinion, such as it was, should have been excluded on appellant’s motion. Adler v. Pruitt, 169 Ala. 229, 53 So. 315, 32 L. R. A. (N. S.) 889. As the question is presented, the opinion of the witness was nothing more than a mere conjecture on his part. The burden of appellant’s argument —though other assignments of error are so argued as to require notice — is laid upon that ruling by which the court refused the general charge requested by appellant. It is the settled law of this jurisdiction "that, to bind the property of the wife for the value of materials furnished for the improvement of her property: “The contract must be either originally that' of the wife, through herself, or her authorized agent; or else the husband, or other agent, must assume to contract for her and in her own behalf, and such contract be subsequently ratified by her, with full notice or knowledge of its nature. In the absence of a contract of this character, no lien will attach to her property. And where the credit is given solely to the husband, he alone is bound, although it may appear that the wife knew that the building or improvements were in process of erection on her land, and said nothing, or that she and other members of the family afterwards occupied the building as a dwelling.” Wadsworth v. Hodge, 88 Ala. 506, 7 So. 194. This rule has been consistently followed in tbe construction of the statute and cannot now be. gainsaid in any respect. Wilson v. Andalusia Mfg. Co.,. 195 Ala. 477, 70 So. *25 477, 4 A. L. R. 1016; Fries v. Acme White Lead, 201 Ala. 613, 79 So. 45. The evidence by which appellee sought to bring her case within the statute was in dispute. It may be conceded that appellee’s testimony on this subject was in some respects equivocal; still, under that testimony, there was warrant for a finding that appellant, along with her husband,- took personal part in selecting and ordering the lumber for the specific purpose of improving her property, and this, in connection with the fact that it was so used, sufficed, under the authorities to which we have referred, to make the question now at issue between the parties one of disputed fact necessary to be referred, in the first place at least, to the jury for decision, the emphatic denials of appellant and her husband and the fact that the lumber was charged on the books of the lumber company to appellant’s husband to the contrary notwithstanding. The general charge was therefore correctly refused to appellant. Charge 2, requested by appellant, was also properly refused. If it be conceded that appellee’s testimony in some of its parts warranted the conclusion that appellee, who at the time was clerk and bookkeeper for the lumber company and negotiated with appellant’s husband, or, as she testified, with both appellant and her husband, about the selection and sale of the lumber, was directed by them to “charge” the price of the lumber to the husband — and no more conclusive effect can be attributed to it — that did not operate as a “contract” to the effect that appellant's husband was alone to be held responsible for the price. The charge was therefore misleading, and for that reason was refused without error. The paper writing signed by the lumber company and purporting to show that on the day of its date the lumber company was indebted to W. B. Herrin, the husband, in the'sum of 92 cents, was properly rejected by the court. In the usual course of business between the lumber company and the business conducted by appellant’s husband, whether on his own account or as agent for appellant, each trading with the other, accounts had been.set off one against the other and a balance struck in favor of one or the other as the case might be. That was the process by which the balance of 92 cents was ascertained and stated on September 30, 1924, the day of the date of the paper writing .offered in evidence by appellant and rejected by the court. The avowed purpose of the evidence thus disposed of was to show that “the husband paid the bills previous to the bill sued on.” We do not see that the proposed evidence tended to shed any appreciable light on the issue controverted in the present case. The lumber about which the present contest was carried on went without dispute to the improvement of appellant’s property, thus materially differentiating this, from all other transactions between the same parties and leaving its merits to be determined on its own peculiar facts. Other assignments of error raise no different questions. It is argued that the court erred in overruling appellant’s motion for a new trial. We might be willing to concede that a preponderant weight of evidence was on the side of appellant’s contention, but that fact did not authorize the court to take the cáse from the jury, nor was the motion for a new trial rested upon any ground other than the refusal of the general charge and the other charge which we have heretofore discussed. By the motion no contention was made that appellant’s case was sustained by the great weight of the evidence, and, of course, the court was without authority to consider that aspect of the case. However, for the error indicated the judgment will be reversed and the cause remanded for another trial. Reversed and remanded. ANDERSON, O. L, and GARDNER and BOULDIN, JJ., concur.