Cook v. Rome Brick Co.

McCLELLAN, J. The averments of the complaint, which are intended to make a case for the declaration and enforcement in plaintiff’s favor of a materialman’s lien on the building of Cook & Balls in which the brick supplied by plaintiff were used, and on the lot upon which said building is situated, are the following: “The plaintiff, The Borne Brick Company, a body corporate under the laws of Georgia, claims of the defendants (Smith & Spencer and E. B. Cook and J. D. Balls) $340. G5, due by account made on the -- day of March, 1889,-day of April, 1889, and-day of May, 1889, with the interest thereon, by Smith and Spencer for Brick used by said Smith and Spencer contractors, employed by E. B. Cook and J. D. Balls to build their three story brick house on Gault Avenue on lots one and two in block eighty-two in the town of Fort Payne, DeKalb county, Alabama. And plaintiff avers that E. B. Cook and J. D. Balls are the owners of said building and' lot, that said Smith and Spencer built said house on said lots by contract with said owners, and that the brick so sold by plaintiff were used by said Smith and Spencer in said building in its construction ; and plaintiff avers that they did on the 9th day of July, 1889, file in the office of the judge of probate of the county of DeKalb.a statement in writing containing a just and true account of the demand here sued upon after allowing all just credits and offsets, and verified by .the oath of J. L. Camp, that more than ten days before said statement was to be filed, plaintiff gave to said E. B. Cook and J. D. Balls as the owners of said house and lots notice in writing that they claimed a lien on said house and lots for the said amount of three hundred and forty dollars and sixty-five cents, and showing from whom said amount was due and for what it was due, the same being due for material furnished for said building, and plaintiff claims a lien on said building and lots for said sum of three hundred and forty dollars and sixty-five cents, with the interest on the same.” Defendants interpose many assignments of demurrer to the complaint, some of which were overruled, and — 413 — tbe rulings of the court in that regard are made the bases of several assignments of error. 1. The court did not err in overruling those assignments which proceeded on the theory that it was necessary for plaintiff to aver that it had complied with our laws in respect of having a known place of business in Alabama and an agent thereat. The sale of brick in another State to be delivered here, or the filling of an order sent from this State for brick in another State, is an act of interstate commerce which is not affected by our laws which require foreign corporations to have a place of business and an agent as a condition precedent to their capacity to do business in Alabama.—Ware v. Hamilton Brown Shoe Co., 92 Ala. 145. Nor is the institution and prosecution of suits in our courts the doing of business within thesé requirements of our laws.—Christian v. American Freehold Land Mortgage Co., 89 Ala. 198. 2. That assignment of demurrer, which is in these words : “If every allegation and averment of said complaint be true, it fails to show enough to entitle plaintiff to a lien on the property of Cook & Balls,” was properly overruled on account of its generality.—Code, § 2690; 3 Brick. Dig. p. 704; 2 Brick. Dig. pp. 346-7. 3. In actions by which it is sought to declare and enforce the lien given by statute to mechanics, material men and the like, every fact necessary to the creation of the lien must be alleged and proved. This is the general rule of pleading which is applied with much strictness to this class of actions.—Phil. on Mec. Liens, §§ 402 et seg.; Globe Iron Roofing and Corrugating Co. v. Thacher, 87 Ala. 458. And our statute specifically requires “the facts necessary to entitle the plaintiff to the lien” to be stated. — Code, § 30.19. Among the facts thus necessary to be averred and proved is the filing, in the office of the judge of probate in the county in which is situated the property proposed to be subjected, of the statement required by section 3022 within the time therein prescribed, verified by the oath of the claimant, or some other person having knowledge of the facts. If this statement is not so filed, the lien is expressly declared to be lost. The present action seeks to have a lien declared and enforced in favor of material men. It is essential to the existence of such lien that the statement should be so filed within four months after the indebtedness has accrued, and this must appear by the complaint and be established by the testimony. The averment of the present complaint in this connection is that some part of the indebtedness accrued — 414 — in March, 1889, another part in April, and the balance in May of that year, the particular days in said months not being stated, nor does it appear what sums accrued severally in said months. The statement was filed in the office of the judge of probate on the 9th of July, 1889. Applying to these averments the rule which requires us to construe the complaint most unfavorably to the plaintiff, it must be held that some part of the indebtedness accrued prior to the 9th day of March, 1889, and hence more than four months before the statement was filed. The complaint, therefore, makes no case for the enforcement of a lien to any extent against the property sought to be subjected since, it not appearing what part of the indebtedness accrued within and what part beyond the four months, it can not be said to allege with requisite certainty any indebtedness which could be charged on the house and lots of the defendants Cook and Ralls. The assignments of demurrer which were addressed to this infirmity of the complaint should have been sustained. 4. We construe the complaint to aver that the materials furnished by the plaintiff were supplied for the purpose of being used and were used in the construction of the house upon which, with the lots on which it was erected, it is sought to fasten the lien. So far as this point is concerned, the averments of the complaint are sufficient.—Eufaula Water Co. v. Addystone Pipe and Steel Co., 89 Ala. 552. 5. The statute requires that the statement to be filed in the office of the probate judge shall be “verified by the oath of the claimant or some other person having knowledge of the facts,” but it is not provided, where the verification is made by a person other than the claimant, that the statement shall affirm that such person had knowledge of the facts. On the contrary, the necessary contents of the statement are specified and the affirmation of this fact is not set down as essential. The present statement follows the statute in this respect and is sufficient, the prima fade presumption being that one who deposes to certain facts has knwoledge of their existence. — Code, § 3020. This case is distinguishable from that of the Globe Roofing Co. v. Thacher, 87 Ala. 458, in the connection under consideration. 6. It was not essential to the perfecting of plaintiff’s lien that the statement filed for record in the office of the judge of probate should show that it was filed within four months after the indebtedness had accrued. The statute required it to be filed within that time and that it was so filed must, as we have seen, be averred in the complaint and proved on — 415 — tbe trial, but tbe statute does not require tbe statement wbicli is filed to set forth tbe fact tliat it was filed within tbe time limited or facts showing that it was so filed; and tbe conclusion that tbe statement need not itself show that it is filed within tbe statutory limitation is further aided by tbe fact that tbe contents of tbe claim required by tbe statute are therein stated and this is not among them. Nor is tbe date of accrual of tbe indebtedness a necessary part of a “just and true account of tbe demand” which tbe statement is required to embrace in tbe sense in which these terms are used. It is manifest from tbe context that they have reference to tbe amount claimed “after all just credits have been given,” and not to tbe date of maturity of tbe demand. Phillips on Mechanic’s Liens, §§ 350, 353. And so with respect to tbe fact that tbe materials are supplied for tbe purpose of being used in tbe erection or betterment of a certain building; this must be alleged in tbe complaint and proved, but it is not by tbe terms of tbe statute required to appear in tbe statement filed for record with tbe probate judge. Code, § 3022. Tbe statement filed by the plaintiff was a sufficient compliance Avith tbe statute and tbe objections to its admission in evidence were properly overruled. 7. It is assigned as error that tbe court overruled “defendant’s objections to questions and answers in original interrogatories, as shown by tbe record.” Tbe record snows only this: “To tbe interrogatories and the answers tbe defendants filed objections which are shown by tbe written objections on file, which objections tbe court overruled and tbe defendants excepted.” These objections nowhere appear in tbe record, and we, of course, can not pass on them. 8. Charges 1 and 2 given for tbe plaintiff may possibly be objectionable because of their argumentative character, but, if so, this furnishes no ground for reversal. Tbe propositions they assert are sound. If, as hypothesized, tbe defendants paid tbe contractors in full except an amount equal to tbe claim of plaintiff for ”brick furnished, and agreed to pay this amount to tbe plaintiff, without making any claim for damages, or asserting any right to recoup damages incident to tbe delay beyond tbe contract date in tbe completion of tbe building, it was competent for tbe jury to look to these facts, in connection with all other evidence in tbe case in determining whether defendants bad. waived such claim or right; and if they were satisfied from all tbe evidence that tbe defendants and tbe contractors made a settlement in reference to tbe building, that tbe former paid the latter tbe full amount of tbe contract price except tbe amount of plain — 416 — tiff’s claim and undertook and agreed with tbe contractors to pay tbis to tbe plaintiff, tbey thereby cut themselves off from the defense of recoupment tbey now attempt to assert. If these charges involved any tendency to mislead in preter-mitting reference to an aspect of tbe evidence that defendants in said settlement and upon making said agreement reserved tbe right, if any tbey bad, to recoup damages for delay of plaintiffs in delivering tbe brick, an explanatory instruction should have been requested, and for aught that appears, such explanation may have been asked and given. Tbe principle of these charges does not rest on tbe idea that defendants undertook merely to pay tbe debt of tbe contractors to tbe plaintiff, but on the theory that tbey, in tbis way, settled in full with tbe contractors, and accepted what tbey bad done, in tbe time and manner in which it was done, as a complete performance of tbe contract. 9. Charge 3 given for plaintiff is bad. Conceding, though tbe propriety of so doing is not altogether clear, that if Smith and Camp' — tbe contractors, and tbe material-man — bad in their minds, when tbe materials were supplied, that tbey were to be used in tbe erection of tbe bouse against which tbe lien is asserted, tbis would be tbe equivalent of an intention and purpose on their part that tbe supplies should be so used, yet the purpose must have been more specific than is hypothesized in tbis instruction. It must have bad reference to tbe particular building to tbe erection of which tbe materials were devoted, and which is now sought to be subjected to the payment of tbe price thereof, and not merely to a bouse which the contractors were building in a named city.—Eufaula Water Co. v. Addystone Pipe & Steel Co., 89 Ala. 552, 555, 556; Tyler v. Jewett, 82 Ala. 93; Weaver v. Sells, 10 Kansas, 609; Rodgers v. Currier, 13 Gray, 129. 10. Of tbe charges refused to defendants, and tbe soundness of which is now insisted on in argument, that numbered 2 involved a tendency to mislead and hence was well refused. It-is very true that where materials are supplied to a contractor solely on bis own credit and without reference to tbe security offered by tbe statute, no lien exists. Authorities, supra. — 15 Am. & Eng. Encyc. of Law, pp. 40-1. But there was evidence here from which tbe jury might have inferred that some of tbe material furnished by plaintiff was so furnished for tbe purpose of being used in tbe erection of tbis particular building, and there being no negation of an intention on tbe part of tbe material-man to look to tbis property for payment, if necessary, tbe law presumes tbe existence of such intention. Tbe charge would probably — 417 — bave led the jury away from a consideration of this evidence. 11. We find no evidence in this record which either directly or through legitimate inference tends to show that when the two car loads of brick first ordered were delivered to the contractors the plaintiff had any knowledge whatever that they were to be used in the building of the house now, with the lot on which it is situated, sought to be subjected. There is nothing therefore from which the jury could have concluded, if they believed all the evidence, that the plaintiff supplied this material to be used and for the purpose of its being used in this building or even that such use was contemplated by or in the minds of the parties of either of them. Charges 4 and 6 requested by defendants should therefore have been given. It is apparent from what has already been said that charges 7 and 8 requested by defendant were, to say the least, misleading when referred to the evidence. They were properly refused. The judgment of the Circuit Court is reversed and the cause remanded. Reversed and remanded.