Cranford Mercantile Co. v. Wells

SAYRE, J. (1) Errors are assigned upon the action of the trial court in overruling plaintiff’s (appellant’s) demurrers to [254] pleas numbered 4 and 8, and in sustaining defendant’s demurrers to replications 2, 3, and 4, filed in reply to various pleas. These pleas and replications will be set out in the report. It appears from the complaint that defendant Mrs. Wells entered into a contract with one Smith by which he was to furnish materials and build a home for her. Plaintiff had furnished materials to Smith in order to enable him to execute his contract, and sought judgment against Mrs. Wells and a lien by virtue of section 4762 of the Code, which, to state its effect with reference to the facts and needs of this case, provides that, if a material-man who has furnished material to a contractor shall give notice in writing to the owner, he shall have a lien upon any unpaid balance in the hands of the owner after such notice. The question presented is this: Whether, after the contractor had breached his contract and abandoned the work, and after notice of the materialman’s claim, the owner, proceeding under a stipulation of the contract made for just that emergency, had the right, as against the materialman’s claim, to expend in the completion of the work any balance that would thereafter have become due to the contractor had he continued the work and completed the building according to contract. This question has been settled against the plaintiff in our cases of Alabama & Georgia Lumber Co. v. Tisdale, 139 Ala. 250, 36 South. 618, and McDonald Stone Co. v. Stern & Marx, 142 Ala. 506, 38 South. 643. There are expressions used in the court’s argument of the case first above named that would seem on casual reading to lend color to plaintiff’s contention; but in the more recent case, McDonald Stone Co. v. Stern & Marx, the court, speaking through the same justice, made it clear that the judgment in the first case had been determined by the fact that the owner, after notice of the materialman’s claim, had made payment to the original contractor. And in the first case the court had said that: “Doubtless, if the owner should proceed with the improvement, expending what the contractor would have been entitled to had he not abandoned the contract, his property could not be subjected” — citing 43 Am. St. Rep. 903. This view was repeated in the last-named case. (2) Plea 4, after setting forth the substance of the contract, alleged that before service of the notice the contractor had aban-. [255] doned his contract and ceased work upon the building then unfinished, and that defendant owner “took charge and control of the work and building aforesaid and completed the same, and the necessary, fair, and reasonable cost of completing the said building, under the terms of said contract, was largely in excess of the amount agreed to be paid to the said Smith.as aforesaid, and this defendant paid the said cost for the completion of said building.” This language of the plea refutes the only ground of demurrer here urged against it, which has been thus formulated in the brief: The plea does not sufficiently show that the reasonable cost of completing the work, added to the amount already paid Smith, was equal to the total amount provided for in the contract. (3,' 4) Plea 8, setting forth the contractor’s breach of the contract and abandonment of the work, before plaintiff’s notice, alleged that defendant owner, acting under a stipulation of the contract, in substance set out, had retained 20 per cent, of the contract price, and had used this money in completing the building, and that “it took more money to complete said building according to the terms of said contract than the 20 per cent, so retained.” The argument of the demurrer is a good deal more definite in its statement of supposed faults in this plea than is the demurrer found in the record. But neither is well taken. By his notice the subcontractor or materialman acquires the right to subject any unpaid balance due — that is, earned — at the time or any sum of money that may subsequently become due to the contractor under his contract. The subcontractor or materialman mhst take notice of the terms and character of the contract between the owner and the original contractor, and after notice: the contract cannot be. changed to the prejudice of any one having a legal interest in it, owner, original contractor, subcontractor, or materialman. — Selma Sash, Door & Blind Factory v. Stoddard, 116 Ala. 251, 22 South. 555. But it is a mistake to assume-that the owner, on the facts shown by this record, entered into any new contract to the materialman’s prejudice. The original parties had a constitutional right to contract on the terms shown,, by which the 20 per cent, was not earned until the building should be completed; no fraud or collusion is alleged; the original contractor breached and abandoned his contract, a thing the owner could not prevent; thereupon the owner used the unpaid, [256] but unearned balance in the completion of the building as the original contract provided; in this the owner affected no right of the materialman; the materialman’s only legal recourse is against the contractor. The demurrer took no tenable point against the plea, and there was no error in the court’s ruling. (5) Keeping in mind the foregoing principles, which have been settled by the reason and authority of our cases, it appears that the special replications filed amounted in fact to the general replication, also pleaded, denying the allegations of the several special pleas, or they were intended to assert the proposition that, if the owner by her contract got more than her money’s worth, the difference must be applied in satisfaction of the materialman’s claim. In the first case, the plaintiff had full benefit of his denial in the general replication; in the second, the special replications were bad for the reason that they denied to the owner the full benefit of a contract she had a perfect right to make. No error appearing, the judgment is affirmed. Affirmed. Anderson, C. J., and McClellan and Gardner, JJ., concur.