Buettner Bros. v. Good Hope Missionary Baptist Church

• Decision Date: 18 May 1944
• Docket Number: 6 Div. 214.
• Citation: 245 Ala. 553,18 So.2d 75
• Parties: BUETTNER BROS. v GOOD HOPE MISSIONARY BAPTIST CHURCH ET AL.
• Court: Alabama Supreme Court

18 So.2d 75

245 Ala. 553

BUETTNER BROS. v GOOD HOPE MISSIONARY BAPTIST CHURCH ET AL.

6 Div. 214.

Supreme Court of Alabama

May 18, 1944

Appeal from Circuit Court, Cullman County; Julian Harris, Judge.

Pertinent parts of the amended bill are as follows:

"Paragraph 3A. During the month of January, 1942, complainants entered into an agreement with the respondents, in and by which agreement complainants agreed to furnish certain building material to be used in and as a part of the construction of a building on the hereinafter described property; that under the terms of said agreement, the complainant did (t)hereafter during, to-wit, the months of January, February, March April, May, June, July, 1942 furnish said building material which was used in and as a part of said building by the respondents; that the agreed purchase price under the terms of said contract for said material was $1,114.91. Of this amount payments were made by the Good Hope Missionary Baptist Church through its officers, agents, trustees or members, as follows, to-wit:

January 30, 1942 .. $161.91

March 5, 1942 ...... 212.28

June 5 1942 ........ 15.63

July 3 1942 ......... 1.35

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Total Payments .... $391.17

"Deducting the above credits from $1,114.91 leaves a balance of $723.74 with interest from to-wit: July 10, 1942 which is the balance due on the purchase price under the terms of said contract, which amount is still due and unpaid. This suit is brought within six months after said maturity date."

"Paragraph 6A. That sometime in December, 1941 J. S. McMinn, G. B. Wood, Paul R. Knight and Asa Blalock who were and are now members of Good Hope Missionary Baptist Church entered into a contract or agreement with J. E. Condra to construct or erect the church building and improvements on the above described property as a joint enterprise in and as a part of which said materials furnished by complainants were incorporated or used; that the authority of G. B. Wood, Paul R. Knight and Asa Blalock is unknown to complainants, that the credit and contract or agreement to furnish material and supplies was made between complainants and the respondents, Good Hope Missionary Baptist Church, D. H. Hathcock, Wallace Hathcock, M. H. Hays, J. R. Scott, all members of said church; W. F. Robinson, a member and a trustee of said church, and J. E. Condra, who were working on said church, received said material and supplies and built it into the said church building and that said supplies were furnished direct to the owner of said property, and the credit was extended to the owner of said property and the owner of said property, therefore, had notice of such credit. Said contract for said material was executed by the co-operation of the respondents, Good Hope Missionary Baptist Church, the owner of the property, by W. F. Robinson as trustee and a member; by M. H. Hays, J. R. Scott, Wallace Hathcock, D. H. Hathcock, as members; by J. S. McMinn, G. B. Wood, Paul R. Knight and Asa Blalock as members of said church and who signed the contract with J. E. Condra, a true copy of which is hereto attached and marked Exhibit B, and made a part of this bill as if fully set out herein. That said contract was unknown to complainants at the time the material was furnished--a copy of said contract was obtained in answer to interrogatories by respondents. And complainants further aver that Paul R. Knight purchased a part of said material and paid for same, that Wallace Hathcock was treasurer of said respondents, Good Hope Missionary Baptist Church and paid part of this account by check signed, 'Good Hope Church, by Wallace Hathcock'. And the undertakings was a joint interest between the said respondents as to the materials furnished and used in the improvements made on the said property above described."

"Paragraph 8. Complainants further aver that they furnished their building material in good faith and the legal title to their property has been obtained through actual fraud, misrepresentations and concealment of facts which should be unconscientious for the Good Hope Missionary Baptist Church and its members to retain and enjoy the beneficial interest of said material without paying complainants for same. Complainants further aver that the acts of these respondents in building the church and in the purchase of said material was so public and notorious in character that it was gross negligence on the part of Good Hope Missionary Baptist Church to remain silent and permit its old building to be torn down, removed from its premises, material purchased and a new building constructed on its property without making inquiry and giving notice or expressing dissent or return of building material and complainants aver that with each purchase made from them there was a sales ticket made to Good Hope Church and signed by either M. H. Hays, J. E. Condra, J. R. Scott, W. F. Robinson, D. H. Hathcock, Wallace Hathcock all of whom were members of this democratic organization and some of whom occupied official positions therein and engaged in the construction of said building. That some payments were made according to said sales tickets by checks signed Good Hope Church by Wallace Hathcock and thereafter complainants continued to furnish building materials. And complainants aver that Good Hope Missionary Baptist Church had notice of said charges and their authority was held out as apparently vested by Good Hope Missionary Baptist Church in other respondents in this joint undertaking, and failure to expressly dissent within a reasonable time should be a ratification of said co-operators' acts and especially where said church has derived benefit."

"Paragraph 9. Complainants further aver that if the respondents, Asa Blalock, J. S. McMinn, G. V. Wood and Paul R. Knight did not have authority from this democratic organization to-wit: Good Hope Missionary Baptist Church, to enter into the contract with J. E. Condra (Exhibit B), and if the said M. H. Hayhes, J. E. Condra, J. R. Scott, W. F. Robinson, D. H. Hathcock, and Wallace Hathcock had no authority from said democratic organization to purchase building material, receipt sales tickets for same, pay a part of the purchase price for same and to build same into the said church building, then said defendants are trustees in inadvitum and by their co-operation together have obtained said building material by actual fraud, misrepresentations, concealments or other similar means and built said material into said church, thereby becoming jointly and individually liable. All of said above named respondents are members of the democratic organization to-wit: Good Hope Missionary Baptist Church; and it should be unconscientious for them to retain and enjoy this beneficial interest without paying complainants for the building material which they purchased and built into said church. And the doctrine of Equitable Estoppel should apply either to the Good Hope Missionary Baptist Church or the other respondents to this bill of complaint in order that equity and justice might be done."

W. Marvin Scott, of Cullman, for appellant.

St. John & St. John, of Cullman, for appellees.

STAKELY Justice.

This is an appeal from a decree of the equity court sustaining the demurrer to the bill of complaint, as last amended. Obviously, in such a situation we shall only consider the allegations of the bill as last amended and the demurrer assigned thereto.

The purpose of the suit is to recover from the Good Hope Missionary Baptist Church and the various other respondents the price of building materials, furnished by Buettner Brothers, a partnership, which went into and was used in the construction of the church building of the Good Hope Missionary Baptist Church. Allegations of the bill show that the materials were furnished by the complainants, were used in the construction of the church building, and that there is an unpaid balance of the price, amounting to $723.74, with interest. Allegations further show that in December, 1941, the church entered into a written contract with one J. E. Condra to erect the church building in accordance with agreed plans and specifications at a price of $6,335, J. E. Condra to furnish material and labor, the work to be completed in a first-class workmanlike manner and turned over to the church "broom clean and ready to occupy." Averments of the bill further show that complainants were ignorant of this contract when they furnished the materials. According to the bill, claim was duly filed in the probate court. There is no allegation in the bill that prior to furnishing the materials complainants gave written notice that such materials would be furnished. No recovery is sought against J. E. Condra. (Report of the case will set out paragraphs 3A, 6A, omitting Exhibit B attached thereto, 8 and 9 of the bill, as last amended.)

Analysis of the bill, as last amended, shows that recovery for the price of the materials is sought on a number of theories which constitute separate phases of the bill, as last amended. These aspects may be stated as follows: (1) Recovery by establishment of a statutory lien on the church property, plus a personal decree against the respondents, on the basis of a contract between complainants and the respondents. (2) Recovery by establishment of a statutory lien on the church property, plus a personal decree against the owner and certain others named in paragraph 6A, on the basis of a contract between complainants on the one hand and on the other hand the owner and the others, the owner and the others being engaged in a joint enterprise. (3) Recovery against the owner and the other respondents to the bill, as last amended, by the establishment of a lien on the church property, plus a personal decree against the...