Cary-Lombard Lumber Co. v. Thomas

• Decision Date: 20 May 1893
• Parties: CARY-LOMBARD LUMBER CO. et al. v. THOMAS et al.
• Court: Tennessee Supreme Court

22 S.W. 743

92 Tenn. 587

CARY-LOMBARD LUMBER CO. et al. v. THOMAS et al.

Supreme Court of Tennessee.

May 20, 1893

Appeal from chancery court, Shelby county; W. D. Beard, Chancellor.

Suit by the Cary Lombard Lumber Company and the Bluff City Manufacturing Company against F. L. Thomas and others to enforce a mechanic's lien. Judgment, from which both parties appeal. Reversed.

L. W Finlay, for plaintiffs.

Smith & Trezevant, for defendants.

WILKES J.

Mrs Flora L. Thomas, a feme covert, was the owner of a lot holding a fee-simple title thereto, as her general estate. Desiring to improve it as a home, she, through her husband as her agent, and personally, entered into a contract with one Marcus Miller to build her a dwelling upon the lot at a cost of not exceeding $2,000. Miller put up the framework of the house, and did some other work upon it, but left it in an unfinished condition, after having drawn $500 of the contract price, and Mrs. Thomas and her husband were compelled to expend very much more than the price agreed upon in order to have the same completed. The Cary-Lombard Lumber Company furnished material and lumber in the construction of the house, amounting to about $1,249. The Bluff City Brick Manufacturing Company furnished brick for the house to the amount of about $80.50. These bills for materials not having been paid, the Bluff City Manufacturing Company gave notice to Mrs. Thomas that it would claim a lien upon the building and had the same registered. The Cary-Lombard Lumber Company gave notice to Mr. and Mrs. Thomas that it would claim the benefit of the second section of the act of 1889, providing for the removal of lumber and other materials furnished for buildings upon property belonging to a married woman in the amount they were not paid for. Suit was thereafter brought to enforce the liens and remedies given by the act, and also to hold E. R. Thomas, the husband, personally liable for the debts, upon the ground that Marcus Miller was simply his agent in the purchase of the materials. On the hearing the chancellor was of opinion that the proof did not warrant any personal judgment against the husband, and denied that relief, and dismissed the bill as to the husband. He also denied any relief whatever to the Bluff City Manufacturing Company because of insufficiency of the notice given, but gave judgment that the Cary-Lombard Lumber Company was entitled to remove from the premises of Mrs. Thomas such property and materials as it had furnished, and as had gone into the construction of the house, and had not been paid for, and referred the matter to the master to report what materials had been so furnished and used and not paid for, and whether the same could be removed from the premises without serious damage and injury to the remainder of the house. Pending this reference the Cary-Lombard Lumber Company and the defendants each appealed, and, the bill being dismissed as to the Bluff City Manufacturing Company, no appeal was prayed by it; so that the only contention and controversy in this court is between the Cary-Lombard Lumber Company and the defendants.

The lumber company insists that the chancellor erred in not giving judgment in its favor against the husband, E. R. Thomas; and the defendants insist that the chancellor should not have decreed the removal of any of the material from the lot or building, and should have granted no relief against the property of Mrs. Thomas. We have carefully examined the record upon the facts of the case. While the evidence is quite conflicting and contradicting, we are of opinion that the weight of the consistent, reliable testimony is very decidedly in favor of the chancellor's finding, and we affirm the decree so far as it declines to hold the husband, E. R. Thomas, individually liable for the debt sued on. As to the relief sought against the property, it is insisted that there is no sufficient legal proof of the survice of the notice required by the second section of the act of 1889.^[1]The notice is copied in the record, together with the indorsements thereon, and it is conceded that it is sufficient in substance and form; but it is contended that there is no legal evidence of its service upon Mrs. Thomas. It is claimed that such a notice is not process, but simply a private paper, and that, in order to prove the service of such notice, the testimony of the party making the service must be taken as the testimony of any other witness to prove any other fact material to the controversy. In this case the notice was served by a deputy sheriff, and his return of service is indorsed upon the notice, and his affidavit, made out of court, and before a notary public, of the fact of service is also indorsed upon the notice, or a paper accompanying it. This, we think, is sufficient. While the affidavit was unnecessary, the return of the officer was in itself all that was necessary to make legal evidence of service, and has all the verity and effect of such an indorsement upon any process. This return of the officer indorsed upon the notice is sufficient proof of service. There is nothing in the case of Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, in conflict with this holding.

Again it is insisted that complainant is not entitled to any relief, because it is a foreign corporation, and at the time the lumber was furnished and contracts entered into it had not complied with the provisions of Acts 1891, c. 122, and Acts 1877, c. 31, prescribing the terms upon which foreign corporations may transact business in Tennessee. These acts require that any foreign corporation desiring to own property or carry on business in this state, of any kind or character, shall...