Williams v. Gallyon

COLEMAN, J. The appellants instituted proceedings to recover a judgment against Gallyon & Son, and to enforce a material-man’s lien for slating furnished to roof certain property described in the complaint, belonging to the Memphis & Charleston Railroad Company. No others are parties defendant to the suit. The case was tried by the court without a jury and judgment rendered for the defendants. We will first consider the liability of Gallyon & Son to the plaintiffs. It appears from the evidence that Gallyon & Son contracted with the Railroad Company “to put up the building;” that the Railroad Company contracted with the Cornice Company to furnish “the slate necessary to cover the shops and houses,” and that the Cornice Company, through J. C. Banks, its manager, contracted with the plaintiffs who owned a slate quarry in Virginia to furnish the slate for roofing. Under this arrangement the slate was furnished during the year 1890. On the 19th of January, 1891, J. C. Banks, as manager of the Cornice Company “drew an order payable to plaintiff on J. A. Gallyon & Son, contractors, for the sum of $2,654.94.” The bill of exceptions states that this order was given “in payment of the balance [442] for said slate roofing.” The order was sent to oneE. J. Davis at Knoxville, Tenn., where Gallyon & Son resided, “tobe presented for acceptance or payment or refusal to pay.” The liability of Gallyon & Son, if such exists, grew out of their agreement and conduct with reference to this order, when presented by Davis, as the agent of plaintiffs, for acceptance or payment, or refusal to pay. The order itself is not copied in die record, and we are loft to determine its character and legal effect from parol evidence admitted without objection. Davis . testifies that “he took the order to the office of Gallyon & Son, that Gallyon said he did not owe Banks, that amount of money at that time, he thought he did owe him between five and six hundred dollars. He took the order and put it in his safe, and has never returned it, said he did not think he owed more than five or six hundred dollars, said he would pay it when the money was due to Banks ; told his son not bo pay Banks any more money.” There is no evidence to show that Gallyon & Son were ever requested to return the order to Davis or to plaintiffs,-or that it was retained against their consent. The foregoing statement is substantially the testimony of Davis. J. A. Gallyon testified, that his contract to furnish the roofing was with J. O. Banks, manager of the cornice works; that he did not know Williams & Co. in the transaction ; that about the 5th or 7th of February, 1891, he received from J. C. Banks, as manager, through E. J. Davis, an order in favor of Williams & Co. in the following words: “Chattanooga, Tenn., Jan. 19th, 1891. “J. A. Gallyon & Son, . “Knoxville, Tenn. “Gentlemen: — We hereby authorize and request the payment of any and all money to Jno. R. Williams & Co. that may hereafter become due us for slate work on the Sheffield Railroad shops, until their claim of twenty-six hundred and fifty-four and 94-100 dollars is paid for and receipt for same is in our possession, and shall be shown you by us, as they Jno. R. Williams & Co. notify you that their claim has been paid and charge same to us and oblige. “[Signed.] Southern Cornice Works, “By J. C. Banks.” The plaintiff objected to the introduction of this let [443] ter, but upon what grounds is not stated. The plaintiff also objected, without stating any grounds of objection, to the introduction of the following letter written by Gallyon & Son to plaintiffs : “Knoxville, Tenn., Feb. 7th, 1891. “ J. R. Williams & Co : “Gents: — We are in receipt of an order from J. G. Banks, manager Southern Cornice Works, asking us to pay what we may become due to him to you, which we agree to do until ordered otherwise by you. “ [Signed.] J. A. Gallyon & Son.” The order of the Southern Cornice Works bears the same date as the order testified to by plaintiffs, delivered at the same time and by the same person, the agent for plaintiffs. The letter bears date the same time as the presentation of the order, and refers to it. The court did not err in overruling a mere general objection to the introduction of the evidence. Gallyon further testified that he t)ld Davis that he thought he owed Banks (manager) five or six hundred dollars. That upon examination of the accounts and payments made to the Cornice Company, he ascertained that he did not owe the Cornice Company any amount, and in fact had overpaid them, and that on the 14th of May, 1891, he notified Williams & Co. by letter that there was nothing due them. He further testified, that nothing ever became due or owing the Cornice Company subsequently. There is no evidence that plaintiffs sold or shipped any roofing sifter the 5th or 7th of February, the date of the presentation of the order by Davis to Gallyon & Son. We have stated substantially a,ll the evidence which bears upon the issue of the liability of Gallyon & Son. Our conclusion is the same as that reached by the trial court. Gallyon & Son did not bind themselves unconditionally to pay the amount of the order ; that the retention of the order was with the acquiescence and consent of plaintiffs, with the understanding that they were to pay plaintiffs such amounts as might be owing or become payable to the Cornice Company on its contract to furnish the roofing, and that nothing thereafter became due. This result follows, whether the facts applicable to the order are controlled by the statutes of this State or otherwise. — Auerbach v. Pritchett, 58 Ala. 451; Anderson v. Jones, 102 Ala. 537; Code, §§ 1766, 1770. The [444] plaintiffs not being entitled to recover a judgment against Gallyon & Son, tliere wa3 no basis to enforce a material man’s lien upon the buildings or land described in the complaint. We would not be understood as bolding, that plaintiff’s statement was filed within the time prescribed by statute to entitle them to a lien, but under the view taken of the evidence, it is unnecessary to consider this question. Affirmed.