Inerarity v. A. S. Wade & Co.

Cook, J., delivered the opinion of the court. This is an appeal from a judgment of the circuit court of Forrest county in favor of the appellee in a suit filed by the appellee to enforce a. materialman’s lien against a certain dwelling house and lot belonging to the appellant, for the purchase price of lumber furnished to appellant and used in the construction of the house in question. The lumber was furnished by the appellee to the appellant during the month of March, 1922, while *555 the suit to enforce the lien was filed on the 16th day of August, 1924. To the petition a plea of the one-year statute of limitation was interposed averring that the lien was barred by reason of the fact that the petition had not been filed within one year after the material was furnished and the debt became due, and the only question presented for decision arises under this plea. According to the testimony for the appellee, the lumber was furnished upon an agreement that the appellant should pay for the same in such sums monthly as he was able to pay, provided a payment of some .amount was made each month. The last delivery of lumber was made on March 31, 1922, and a payment was made thereon in May following, but-no further payment was made until September, 1922. Where no time is fixed by contract to pay for material, the law implies a contract to pay on delivery, and if there have been several deliveries on one contract, the debt will, by implication, be due on the last delivery, and suit may be brought within one year from that date, but no mere indulgence or forbearance on the part of the creditor will extend the time when the lien will attach. In the case of Jones v. Alexander, 10 Smedes & M. 627, the court said: “The lien appended by the statute to mechanics and others mentioned therein, gives them a preference over other creditors of a party, and, therefore, can only be claimed by those who bring themselves strictly within its provisions. Such statutory liens cannot be preserved if their beneficiaries deviate from the contract as originally made -and secured by the statute. Parties will not be permitted to extend the time when the lien shall attach, and thus indefinitely postpone others less favored.” Applying- these principles to the case at bar, it seems clear that the lien here sought to be enforced is barred. Conceding that under the contract to pay for the lumber in such monthly installments as the appellee was able to pay, provided a payment of some amount was *556 made each month, the debt was not due so long as the monthly payments were made, still the default in the payments under the contract rendered the debt due, and the creditor could not, by his indulgence, extend the time when the limitation of one year should begin. If the defaults of June, July, and August could be waived and the lien thereby extended, the creditor could, by indulgence or forbearance, extend the lien indefinitely; but as said in Jones v. Alexander, supra, “such . . . liens cannot be preserved if their beneficiaries deviate from the contract as originally made,” and “parties will not be permitted” indefinitely “to extend the time when the lien shall attach.” The judgment of the court below will therefore be reversed, and judgment entered here for the appellant. Reversed, and judgment for appellant.