Avondale Lumber Co. v. Hudson

• Decision Date: 14 January 1926
• Docket Number: 6 Div. 552
• Citation: 214 Ala. 128,106 So. 803
• Parties: AVONDALE LUMBER CO. v. HUDSON.
• Court: Alabama Supreme Court

106 So. 803

214 Ala. 128

AVONDALE LUMBER CO. v. HUDSON.

6 Div. 552

Supreme Court of Alabama

January 14, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by Mrs. Jackie N. Hudson against T.M. Martin, Avondale Lumber Company, and others, and cross-bill by Avondale Lumber Company. From a decree on demurrer, cross-complainant appeals. Affirmed.

Murphy & Hanna and Jerone Edmundson, all of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

BOULDIN J.

This is a bill in equity to adjust mechanics' liens. The original bill, filed by Mrs. Jackie N. Hudson, the owner of the property, alleges the building was erected by respondent T.M Martin, an original contractor, pursuant to a contract in writing; alleges omissions and defects in construction and materials, for which complainant seeks an abatement of the contract price; alleges that certain materialmen subcontractors, and laborers claim liens on the building exceeding the unpaid balance, if any, due the contractor. These are made parties respondent; and complainant prays the amount of their several liens be ascertained, and the unpaid balance due the contractor be apportioned among them.

Avondale Lumber Company, one of the respondents, by answer and cross-bill, claims a materialman's lien for the full amount due without regard to the balance due the contractor. Demurrer to the cross-bill, as amended, was sustained, and from this decree, the appeal is taken.

There are two events in which one who furnishes material to be used, and which is used, in the building shall have a lien for the full price: First, when furnished "under and by virtue of any contract with the owner or proprietor thereof, or his agent"; Second, when notice in writing is given to the owner that "certain specified material" at "certain specified prices" will be furnished to the contractor, unless the owner, on receiving such notice, shall give a return notice in writing, before the material is used, that he will not be responsible for the price. Code, § 8832 (4754).

The last amendment to the cross-bill reads:

"That said building material was furnished by cross-complaint, its agents, officers, or employees after written notice by this cross-complainant had been served upon the said Mrs. Jackie N. Hudson that cross-complainant would furnish said building material and before the said Mrs. Jackie N. Hudson or her agent objected thereto; that said building material was furnished on the faith and credit of the said Mrs. Jackie N. Hudson and charged to her account at her instance and request."

This clause is added to section 8 of the cross-bill, setting out the grounds on which the lien is claimed for the full price. The cross-bill, before amendment, alleged that cross-complainant, "as principal contractor, entered into an agreement with the said Mrs. Jackie N. Hudson or her agent, T.M. Martin, with the said Mrs. Jackie N. Hudson's knowledge and consent, to furnish" building materials to be used, and which were used, in the building, and thereby Mrs. Hudson became indebted in the sum named. The amendment adds that the materials were furnished on her faith and credit, and charged to her account at her instance and request.

These averments bring cross-complainant within the class of an original contractor under the first alternative of the statute. Although Martin was a contractor, charged with the duty to furnish materials, if he dealt with materialmen, not as a contractor, but as an agent of the owner, buying on her credit, with her knowledge...