McGeever v. S.H. Harris & Sons

• Decision Date: 10 April 1906
• Parties: MCGEEVER v. S. H. HARRIS & SONS.
• Court: Alabama Supreme Court

41 So. 930

148 Ala. 503

MCGEEVER v. S. H. HARRIS & SONS.

Supreme Court of Alabama

April 10, 1906

Rehearing Denied June 30, 1906.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by S. H. Harris & Sons against Clara McGeever. From a judgment in favor of plaintiffs, defendant appeals. Corrected and affirmed.

John H Miller, for appellant.

W. E Martin, for appellees.

TYSON J.

The first assignment of demurrer to the complaint before and after amendment was general, and therefore properly overruled. The second proceeds upon the theory that this action is by a subcontractor, and therefore the plaintiffs should have given the defendant, as owner, before filing their statement in the office of the judge of probate for the purpose of perfecting a lien under the statute, 10 days' notice in writing, etc. Acts 1900-01, p. 2115 et seq. This ground is clearly not well taken, since it appears from the averments of the complaint that the materials furnished etc., were in pursuance of a contract entered into between plaintiff and defendant; thus showing that they were original contractors. The averments of the complaint as amended are likewise sufficient with respect to the nature, character, and legal sufficiency of the statement filed in the office of the judge of probate. It is not necessary that the facts recited in that statement should be alleged in detail. The complaint alleged that plaintiffs are entitled to a lien upon a certain described house and lot by virtue of a certain alleged contract for materials furnished and work done upon the house and lot described, that a verified statement of the lien was filed in the office of the judge of probate of Jefferson county on a certain day within the period prescribed by the statute, and that it was verified by the oath of one of the plaintiffs. This is all that good pleading requires.

It is next insisted that the complaint is defective, in that it is not averred that defendant's husband was her authorized agent to bind her personally in the making of the contract with plaintiffs, and therefore a judgment in personam cannot be rendered against her upon the complaint. The averment is that the sum claimed is due "for materials furnished and work and labor done in pursuance of a contract entered into by and between plaintiffs and defendant, through and by her husband." This language, ex vi termini, includes the affirmation of an authorization on the part of the husband to make the contract for her. For it is not perceivable how there could be, as averred, a contract between the parties, which must be taken as true as against the demurrer, unless the husband was authorized to represent the defendant in the making of it.

The next point pressed upon our consideration is that the court erred in refusing to exclude the statement filed in the office of the judge of probate, which was offered in evidence by the plaintiffs. The legal sufficiency of the statement is assailed alone upon the ground that it is not verified as required by the statute. It is undoubtedly true that the requisites of the statute, with respect to the verification of the statement, must be strictly complied with. McConnell v. Meridian S. & B. Factory, 112 Ala. 582 20 So. 929, and cases there cited. The language of this requirement, as found in the statute, is in these words: "A statement in writing, verified by the oath of the person claiming the lien or by some other person having knowledge of the facts." The statement allowed in evidence shows that the firm of S. H. Harris & Sons, a partnership composed of S. H. Harris, S. H. Harris, Jr., and T. H. Harris, who are the plaintiffs in the case, claimed a lien upon the property described in it, being the...