Trammell v. Hudmon

SOMERVILLE, J. The conversation between the defendants, Worthington and Hudmon, as proved by the witness Hobson, was not, in our opinion, admissible as evidence against the plaintiff, it being as to him res inter alios acta, or mere hearsay. The cpiestion at issue was the indebtedness vel non of Hudmon to Worthington; the effort of the plaintiff, in one aspect of the place, being to subject any balance in the hands of Hudmon due Worthington, at or after the time of giving the notice and filing his claim in the Probate Court, as prescribed by statute. The declaration made by Worthington ■ — that Hudmon had paid him all he owed, and that nothing remained due — although competent as an admission against the defendant, was not binding on a third person whose rights might be affected by it. Such declarations, although made against interest, are regarded as mere hearsay, except when it is shown that the declarant is since deceased, and then they are [224] admitted only on the principle, that they constitute the best evidence of which the nature of the case will admit. — Humes v. O’Bryan, 74 Ala. 64; 1 Green. Ev. (14th Ed.), § 147. For the error of the court in admitting this evidence, the judgment must be reversed. The principles necessary to be stated for the guidance of the Circuit Court upon another trial are few and familiar. The case, under the pleadings and proof, may be viewed in two aspects. In the first aspect, the plaintiff claims that his contract to furnish materials for the construction of the defendant ITudmon’s house was, in effect, a contract directly with him, by which the credit was given to Iludmon himself, and that the debt was therefore one for which ITndmon was personally liable. In the second aspect, it is claimed that the credit was given to Worthington, and that TIudmon owed Worthington a balance on the building contract, and that this unpaid balance could be subjected — or, rather, that the house and lot of ITudmon could be subjected to the payment of plaintiff’s claim to the extent of this balance. The law is well settled by our decisions, that under the state of facts just mentioned — where the credit for materials furnished is extended to the owner or proprietor, he becoming the original debtor therefor — the lien of the plaintiff can be enforced for the entire debt. But, in the second case — where the materials are sold to the contractor, on his credit, and he uses them in constructing the building — the plaintiff, by complying with the requirements of the statute, can enforce his lien only to the extent of any unpaid balance in the hands of the owner or proprietor, which he may owe to the contractor or builder.— Willingham v. Long, 70 Ala. 587; Geiger v. Hussey, 63 Ala. 338; Welch v. Porter & Co., Ib. 235; Code, 1876, §§ 3440, 3444. We do not think that there is any misjoinder of counts in the complaint, occasioned by uniting these two phases of the case. The whole proceeding is in the nature of a bill in equity for the enforcement of a lien on land, all persons interested in the matter in controversy, or in the property sought to be subjected to the lien, being authorized to be made parties. — Code, § 3447. The lien authorized to be enforced in each case is the plaintiff’s claim for materials furnished for the construction of the building. The main difference is, that in the one case it is for the whole claim, and, in the other, it is limited by the amount of the unpaid balance due to the builder by the proprietor of the premises. The question is unaffected by the fact that the lien is worked out by a species of subrogation in the one case, and by personal liability in the other. [225] If the debt was due by Worthington, and not by Iludmon, it was immaterial that the latter had promised, for his protection, to withhold enough money to pay all claims for materials furnished, and did in fact make one or more payments on the plaintiff’s claim. Nor would any liability be fastened on Iludmon by the mere expectation of the plaintiff that he would pay the plaintiff’s debt. And even if Iludmon promised to pay the debt after it had become the debt of Worthington, his promise to do so, unless supported by a new consideration, would not be binding on him, because it was a promise to answer for the debt of another, and, as such, would be void under the operation of the statute of frauds, this defense being properly presented. — Thornton v. Guice, 73 Ala. 321; Foster v. Napier, 74 Ala. 393. We make no application of these principles to the charges, many of which are unintelligible by reasons of manifest mutilations in copying. Others are ‘not insisted on in argument as erroneous, and the phase of their bearing on the case will probably be changed upon another trial. Reversed and remanded.