227 So.2d 403 (Ala. 1969), 6 Div. 420, Chapman v. Rivers Const. Co.

Docket Nº:6 Div. 420.
Citation:227 So.2d 403, 284 Ala. 633
Opinion Judge:COLEMAN, Justice.
Party Name:William A. CHAPMAN et al. v. RIVERS CONSTRUCTION COMPANY, Inc., et al.
Attorney:Cato & Hicks, and Percy B. Watkins, Birmingham, for appellants Chapman. Jenkins, Cole, Callaway & Vance, Birmingham, for Stamper Construction Co. Warren B. Lightfoot, and Bradley, Arant, Rose & White, Birmingham, for Hughes Construction Co.
Case Date:September 11, 1969
Court:Supreme Court of Alabama

Page 403

227 So.2d 403 (Ala. 1969)

284 Ala. 633

William A. CHAPMAN et al.

v.

RIVERS CONSTRUCTION COMPANY, Inc., et al.

6 Div. 420.

Supreme Court of Alabama.

September 11, 1969

On Rehearing Motion to Amend Judgment Denied Oct. 9, 1969.

Page 404

[284 Ala. 634] Cato & Hicks, and Percy B. Watkins, Birmingham, for appellants Chapman.

Jenkins, Cole, Callaway & Vance, Birmingham, for Stamper Construction Co.

Warren B. Lightfoot, and Bradley, Arant, Rose & White, Birmingham, for Hughes Construction Co.

COLEMAN, Justice.

Complainants appeal from a decree rendered in a suit which was commenced by a bill of interpleader filed by complainants. They seek a decree distributing $6,000.00 among three respondents. Two respondents filed cross bills seeking additional relief. The court rendered a decree distributing the money and, in addition, awarded to one respondent a judgment for $2,000.00 against complainants and also a lien on certain property of complainants to secure payment of the $2,000.00.

Bill of Complaint.

Complainants are partners doing business in Jefferson County. They will sometimes be referred to as the owner or as Chapman.

In December, 1965, the owner entered into a contract with the respondent who is hereinafter called Rivers, a corporation, whereby Rivers agreed to erect a steel radio or television antenna tower on Red Mountain in Jefferson County. Chapman had bought the tower in Virginia where it had formerly been used. The disassembled tower had been transported to the erection site. The height of the completed tower was to be approximately 450 feet. When the contract was made, the tower had already been erected to a height of 72 [284 Ala. 635]

Page 405

feet. The tower was to be erected on land leased to Chapman.

Chapman agreed to pay Rivers eleven thousand dollars for the work. Chapman avers that, pursuant to the contract, they had paid Rivers $5,000.00 when the erection job was fifty per cent completed, as follows: $3,390.08 paid to Rivers on March 30, 1966, and $1,609.92 paid to A. R. Watson Construction Co., Inc., herein called Watson, on April 6, 1966, at the request of Rivers, to satisfy a writ of garnishment issued in a case in the Civil Court of Jefferson County in which Watson was plaintiff, Rivers was defendant, and Chapman was garnishee. Watson is not a party to the instant suit.

After payment of the $5,000.00 as aforesaid, there remained a balance of $6,000.00 due from Chapman to Rivers. Chapman avers that they have paid the $6,000.00 to the register of the court. Complainants pray that the respondents be required to propound their respective claims to the $6,000.00 and to litigate between themselves their rights to the money, and that complainants be discharged from further liability to respondents.

The second respondent is a corporation herein called Hughes. On March 31, 1966, a writ of garnishment was served on Chapman in another case in the Civil Court in which Hughes is plaintiff, Rivers is defendant, and Chapman is garnishee. It appears that Hughes' claim against Rivers is for the sum of $2,018.27.

Neither Watson nor Hughes had any connection with erection of the tower. They are strangers to the contract entered into between Chapman and Rivers. Watson and Hughes merely seek to collect the respective debts allegedly owed to them by Rivers.

Complainants aver that erection of the tower was completed on or about April 8, 1966.

The third respondent is a corporation herein called Stamper. Stamper is organized under the laws of Indiana. Complainants aver that on March 10, 1966, Stamper entered into a contract with Rivers whereby Stamper agreed to complete erection of the tower and that Stamper did complete erection of the tower on the land leased to complainants. The contract provides for erection to start approximately March 16, 1966, and to be completed in about two weeks.

As we understand the briefs, Stamper began work on March 18, 1966, and completed the job on April 8, 1966. Complainants aver that Rivers had agreed to pay Stamper $8,000.00 for the work, but Rivers has not paid Stamper, and Stamper is or may be entitled to a lien on the leased premises and a claim on the $6,000.00 due from Chapman to Rivers.

Stamper's Cross Bill.

Stamper filed answer and cross bill in which Stamper claims from Chapman $8,426.00 and avers in substance that in March, 1966, Stamper was engaged in the erection of telephone transmission towers in Alabama for a telephone company; that Rivers, through its president, Willis, contacted Stamper, and:

'6. That pursuant to the solicitations and representations of difficulty made by Rivers Construction Company, Inc. through its president, Aubrey F. Willis, with the knowledge and consent of the cross-respondents, Chapman Communications, a contract was entered into on March 10, 1966 in Oklahoma City, Oklahoma, by which the cross-complainant agreed to provide work and labor for the completion of the erection of said television tower for the sum of Eight Thousand Dollars ($8,000.00) plus certain extra amount for delay in furnishing of material; that the cross-respondent was awre of this contract and of its terms.'

Stamper further avers that, on March 30, 1966, with full knowledge of the contract between Rivers and Stamper and that the [284 Ala. 636]

Page 406

television tower was nearing completion and that Stamper had not been apid, without informing Stamper 'but rather concealing said fact' and with knowledge that judgments were outstanding against Rivers, Chapman paid to Rivers $3,390.08 and, on April 6, 1966, paid to Watson $1,609.92 on the instruction of Rivers, with knowledge that as a result of said payments there would not be enough money remaining in the hands of Chapman to pay Stamper for its work.

Stamper prays for decree that Chapman is indebted to Stamper in amount of $8,426.00 for the work and that complainants be required to pay into court the additional sum of $2,426.00.

In its answer, Stamper admits that Stamper has not been paid and has an inchoate statutory lien but denies '. . . that it is only to the extent of the unpaid balance of Six Thousand Dollars . . .' and '. . . denies that Rivers Construction Company, Inc. or R. W. Hughes Construction Co., Inc. are entitled to any monies belonging to respondent.'

Rivers' Cross Bill.

Rivers filed answer and cross bill averring that Stamper is a nonresident corporation not qualified as required by law to do business in Alabama, and praying that the balance of the $6,000.00 paid into court, after deduction of the amount due Hughes, be paid to Rivers.

Hughes' Answer.

The Chapman's bill of complaint, Hughes answered, averring that it had recovered judgment against Rivers and caused garnishment to issue to Chapman and praying that $1,994.92 be paid to Hughes, plus solicitor's fee.

To the cross bill filed by Rivers, Hughes filed answer to like effect, in substance.

Stamper's Answer and Cross Bill to Rivers' Cross Bill.

To Rivers' cross bill, Stamper filed answer and cross bill and '. . . denies that it has no right or entitlement to the funds paid into court . . . but specifically avers that it is entitled to the funds together with additional funds . . . and that it is entitled to assert a Mechanic's and Materialman's Lien.'

Stipulation.

The parties stipulated:

(1) That Hughes recovered judgment against Rivers for $1,994.92 plus costs, on February 25, 1966.

(2) That, pursuant to said judgment, garnishment issued requiring Chapman to answer what it was indebted to Rivers at the time of service of the writ of garnishment or time of answer, or what Chapman would owe Rivers by contract existing at the time of service.

(3) Said writ of garnishment was served on Chapman on March 31, 1966.

(4) The amount of Hughes' judgment against Rivers was $1,994.92 plus costs amounting to $23.35.

After taking testimony, the court rendered final decree in substance as follows:

1. Relief to Rivers is denied. Rivers has filed no brief and this ruling is not challenged.

2. Hughes is awarded $2,018.27 of the money deposited in court.

3. Stamper is awarded the balance of the money deposited, $3,981.73, less costs. This ruling is not challenged.

4. Stamper is awarded a judgment for an additional $2,000.00 against Chapman and a lien for the amount of the judgment is established against the real estate, buildings, and improvements thereon described[284 Ala. 637]

Page 407

in the pleadings. The decree recites:

'. . .. As a basis for this ruling, the Court finds as fact that complainants did induce Stamper Construction Co., Inc., a corporation, to enter into a contract with Rivers Construction Company, Inc., for the erection of the television tower described in the pleadings for the use and benefit of such complainants, and that at the time of making such inducements, said complainants had been served with a writ of garnishment directing them to appear before the Civil Court of Jefferson County in connection with monies that it might then owe to Rivers Construction Company, Inc., a corporation, and that said complainants did not at the time of such inducements reveal the existence or service of such garnishment process to Stamper Construction Co., Inc., as they in good conscience and equity, should have. That as a result of such failure, Stamper Construction Company, Inc., has sustained substantial damage and is entitled to recover judgment against complainants in the sum of $2,000.00 as aforesaid; . . ..'

5. Stamper is awarded a judgment against Rivers for $2,444.27. This ruling is not challenged.

6. All claims for attorney's fees are denied.

Chapman has appealed and Stamper has cross-assigned errors. We will consider the challenged rulings...

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