College Court Realty Co. v. J.C. Letcher Lumber Co.
Decision Date | 15 November 1917 |
Docket Number | 3 Div. 313 |
Citation | 78 So. 218,201 Ala. 362 |
Parties | COLLEGE COURT REALTY CO. v. J.C. LETCHER LUMBER CO. |
Court | Alabama Supreme Court |
Rehearing Denied March 23, 1918
Appeal from City Court of Montgomery; Gaston Gunter, Judge.
Proceedings by the J.C. Letcher Lumber Company against the College Court Realty Company, to enforce a mechanic's lien. Judgment for plaintiff, and defendant appealed. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449). Affirmed.
Tyson Arrington & Arrington, of Montgomery, for appellant.
Thomas & Wiley, of Montgomery, for appellee.
The action is by appellee against appellant, to recover for the price of lumber sold, and to establish a materialman's lien on property improved by the use of the lumber through the erecting of building thereon. The trial resulted in a judgment for the plaintiff as for the price of the lumber, with the fixing of the lien, and from this judgment the defendant appeals.
No question is raised as to the price of the lumber, but it is insisted that there was no right to the materialman's lien, as established.
There are but two assignments of error, and, as counsel for appellant state in their brief, these two assignments of error raise three propositions, which are as follows: First. The lumber was not furnished for a particular building or lot on which a lien is claimed. Second. That the claim of lien was not filed in the office of the judge of probate within six months after the indebtedness accrued. Third. That the lumber did not go into the building on which the lien is claimed. These are questions purely of law and fact, as appears from the record and the briefs of counsel. We cannot agree with counsel for appellant as to every one of the propositions, and hence the judgment must be affirmed.
While it is true that the record does not show a contract specific in terms as to how much lumber was to be used on any particular lot or house, it does show that all the lumber was to be used, and was used on several lots of defendant's and went into several houses thereon; and the evidence, we hold, sufficiently shows how much was used in each particular building, to meet the requirements of our statute as heretofore construed by us. Here the lumber or material purchased was to be used in three buildings to be erected on a piece of property or place known as "College Court." All the materials did go into the three houses and the evidence, showing the amount and value of the lumber entering into each house, was sufficient to support the lien judgment. The case was tried by the court without a jury, and we agree with the trial court in its findings.
The amount and value of the material that went into each house was ascertained, and was sufficiently specified in the claims filed in the probate court; and it does not defeat the lien that this amount or value going into each house was not ascertained at the time the sale of the lumber was agreed upon. It was so ascertained before there was any attempt to enforce the lien, and the claim filed in the probate office fully met the requirements of the statute. There was no attempt here to fasten a lien upon any particular building or lot, as for the value of the materials which went into other buildings or other property, as there was in the cases relied upon by appellant. It is very true that no lien attaches to one piece or parcel of property or to a building or improvement thereon, as for the materials furnished for, or the work done upon, another lot, building, or improvement; but it is not necessary that the original contract to furnish specify the amount or value that is to be furnished for, or that is to go into, each particular house or lot, where it is intended that the whole shall be used on several different lots or buildings, as was done in this case. It is sufficient if that is ascertained before the lien or claim therefor is filed in the probate court.
It is probable that the liens on all three of the houses could have been declared and enforced in one suit in equity, as was done in the case of Wade v. Wyker, 171 Ala. 466, 55 So. 141, but it does not follow that the lien could not be enforced in a court of law, on one or more of the lots and houses, if the material furnished to each separate lot or house be ascertained, and account therefor is made out before the lien or the claim thereof is filed in the probate court. If the three actions or suits had been brought at once, and were pending at the same time, they probably could have been consolidated; but as to that we need not decide, because the question is not before us.
We are not willing to hold that, in order for the lien to arise against each of the several lots or buildings, the original contract of sale should fix the exact amount which was to go into, or be used in, the several buildings, where the sale of material is in gross for several houses, but hold that it is sufficient if it is thereafter ascertained what was used upon or put into each separate house or lot, and the claim and account is made as to each house or lot separately, and the claim therefor is filed in the probate court within the time required, and in the manner and form specified, by the statute. We are not of the opinion that the case of Eufaula Water Co. v. Addyston, etc., Co., 89 Ala. 552, 8 So. 25, holds to the contrary. In that case it is said:
Likewise we find nothing to the contrary in the cases of Cook v. Rome Co., 98 Ala. 409, 12 So. 918; Johnson v. Simmons & Bagwell, 123 Ala. 564, 26 So. 650; Cocciola v. Wood-Dickerson Co., 136 Ala. 532, 33 So. 856; Robinson v. Crotwell Co., 167 Ala. 566, 52 So. 733, in which last-cited case appear the following quotations from two older decisions of this court:
We hold that the facts of this case bring the lien within the stated rule. While there is some conflict in this testimony as to how much of the lumber went into each house, yet we agree with the trial judge in his finding. The same condition as to evidence occurred in the case of Wade v. Wyker, supra, and we there said:
We cannot agree with appellant that the lien was...
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