Porter & Blair Hardware Co. v. Lee

HEAD, J. There is clearly no equity in the present bill. J. H. Perdue, J. H. Bozeman and R. S. Lee, building contractors, contracted with the Greenville Hotel & Improvement Company, a corporation, to furnish the material and build for the latter a hotel in Greenville, Ala. When the building was approaching completion, the company failed in the payment of stipulated instalments of the contract price, and the contractors, for that cause, abandoned the work, and left the house in an unfinished state. Prior to the abandonment, they had procured, for use in the building, quantity of material of a kind and dimensions specially adapted to its construction. This material had been carried to the premises but had not been used. It was there in the possession of the contractors when they quit work. Afterwards, the contractors gave notice of, and filed their lien upon the land and building, under the mechanic’s lien law, for a large sum due them on the contract, and afterwards instituted suit against the company for the recovery of judgment and enforcement of their lien. In this action it was alleged as an element of special damage, amongst other demands, that plaintiffs, by virtue of the contract which defendant had broken, thereby forcing them to abandon the work, had purchased the aforementioned unused material for the special use of that building. There was no claim in the complaint for the [366] price or value of that material as upon a sale thereof to the company, but, as we have said, the claim was for special damages suffered by being put to purchase it, and the default of the company which justified them in abandoning the contract, whereby they did not use the material for the purpose intended. Indeed the price or value of the unused material was not alleged in the complaint. In the course of the suit, they recovered judgment by default, and their damages, upon all the demands set up in the complaint, were assessed by a jury at $8,025. In the complaint, it is alleged, that in the notice which plaintiffs gave defendant of their intention to claim a lien, they stated that plaintiffs “looked to their lien upon tire said hotel building and lot and material therein and thereabout for the payment of said sum,” — the total amount claimed in the suit; but it is alleged that in the lien they filed, they stated the “amount due for said material furnished and labor performed as aforesaid, and a description of said hotel, lot” &c. The previous averment was, that under and by virtue of the contract “ the plaintiffs entered upon the execution of the erection of said hotel on said lot and furnished material and did work and labor under and by virtue of said contract, that is now unpaid for, to the amount or sum of $13,559.32 ; and that on the first day of February, 1892, said sum was and is due and unpaid for said material furnished and work and labor done by the plaintiffs under said contract.” The special complaint or prayer was : “Wherefore the plaintiffs sue to recover a judgment for the said sum of $13,559.32, with the interest thereon, and an attorney’s fee of $25.00, and all costs in this behalf expended, and for the establishment and satisfaction of a material-man’s and contractor’s lien in their favor and for the condemnation and order of sale of the said hotel and lot and material therein and thereunto belonging for the sums aforesaid.” The lien is declared by the judgment in the following language : “That the said plaintiffs having a material-man’s and mechanic’s lien as contractors of the defendant upon said hotel and lot and material therein and thereunto belonging for the said sum of $8,025, and all costs in this behalf' expended, and that the said hotel building and material therein and thereabout, and the said lot of land hereinbefore described be and the same is hereby [367] condemned to the payment and satisfaction of said lien and the amount hereinbefore stated, to wit, $8,025. and all costs in this behalf expended, and that the clerk of this court issue a venditioni exponas commanding the sheriff of Butier county, Alabama, to sell the said hotel building and the said material therein and thereabout and the said lot of land upon which the same is situate and which is hereinbefore described for the satisfaction of said sum of $8,025 and the costs in this behalf expended.” This judgment was afterwards transferred by the plaintiffs therein to the complainant, R. A. Lee. The clerk afterwards issued a venditioni exponas to sell the lot or parcel of land, describing it, and the hotel building thereon ; and the sheriff returned that he sold the land pursuant to the venditioni exponas to said R. A. Lee for $3,500, and conveyed the same to him. Upon this state of case, the said R. A. Lee claims that he is, first, the legal owner of said unused material; or, if not, second, that the Greenville Hotel & Improvement Co. is the owner in equity, and that he has a lien thereon ; and he and the said company join in this bill to enjoin its sale, under execution in favor of Porter & Blair Hardware Company upon a judgment at law against the contractors. In the first place, it is very clear, that if one of the alternatives, viz., that Lee is the legal owner of the material, be true, all title, legal or equitable, on the part of the Hotel & Improvement Company is excluded ; for it is by virtue of his purchase at sheriff’s sale against that company that he claims to be such owner ; hence, that company has no place as a complainant here, and Lee has a complete and adequate remedy at law. Where alternative grounds of relief are stated in a bill, each must be good or the bill is bad. But, it is obvious, that neither Lee nor the Hotel & Improvement Company has any title to the material, legal or equitable. As we have seen, the action at law of the contractors against the company made no claim for judgment for the price or value of the material, as upon a sale, but only for damages for the loss sustained by being put to buj'- special material adapted to the use of the building. A recovery for that loss with satisfaction even, would not, in the least, affect or impair the titles of the contractors to the material. The fact that the contractors, in their suit, [368] claimed a lien on the material, in the manner we have stated, is of no legal significance. If the property had been sold by them to the company, the same not having been used in the construction of the building so as to become a part of it, the statute gave no lien upon it.—Lee v. King, 99 Ala. 246. The lien is upon the land and the building, article, improvement or utility erected thereon. — Acts 1890-91, p. 578. Sash, doors, blinds &c. lying loose upon the premises, put there by the contractors, constitute no part of the building. It belongs to the contractors who bought it and put it there; and to say they have a lien upon it is an anomaly ; quite as much so as the proposition that the contractors, by choosing, in their action against the company, to claim a lien upon it, thereby retained in themselves the legal title, but invested in the defendant company an equity, with a retention in themselves of a lien on that equity. The company suffered the action to go by default. In doing so, it relied upon the court to render such judgment as was authorized by law, upon the allegations of the complaint. The court had no authority to declare a lien on this material and the defendant knew it; hence the declaration of such a lien had no effect whatever upon it. It is manifest the bill can not be amended so as to give it equity. The decree of the chancellor is reversed and a decree will be here rendered dismissing both original and cross-bills. Appellees will pay the costs of this court and the chancery court. Reversed and rendered.