Cook v. Rome Brick Co.

• Decision Date: 13 April 1893
• Citation: 98 Ala. 409,12 So. 918
• Parties: COOK ET AL. v. ROME BRICK CO.
• Court: Alabama Supreme Court

12 So. 918

98 Ala. 409

COOK ET AL. v. ROME BRICK CO.

Supreme Court of Alabama

April 13, 1893

Appeal from circuit court, De Kalb county; John B. Tally, Judge.

Action by the Rome Brick Company against E. B. Cook and J. D. Rawls a partnership, and N.W. Smith and H. H. Spencer, a partnership, to enforce a lien on certain described property for brick furnished Smith & Spencer for the building of a storehouse for the defendants Cook & Rawls. From a judgment for plaintiff, defendants appeal. Reversed.

L. A Dobbs, for appellants.

Davis &amp Haralson, for appellee.

McCLELLAN J.

The averments of the complaint, which are intended to make a case for the declaration and enforcement in plaintiff's favor of a material man's lien on the building of Cook & Rawls in which the brick supplied by plaintiff were used, and on the lot upon which said building is situated, are the following: "The plaintiff, the Rome Brick Company, a body corporate under the laws of Georgia, claims of the defendants [Smith & Spencer and E. B. Cook and J. D. Rawls] $340.65, due by account made on the _________ day of March 1889, _________ day of April, 1889, and _________ day of May, 1889, with the interest thereon, by Smith & Spencer, for brick used by said Smith & Spencer, contractors employed by E. B. Cook and J. D. Rawls to build their three-story brick house on Gault avenue, on lots one and two, in block eighty-two, in the town of Ft. Payne, De Kalb county, Ala. And plaintiff avers that E. B. Cook and J. D. Rawls are the owners of said building and lot; that said Smith & Spencer built said house on said lots by contract with said owners, and that the brick so sold by plaintiff were used by said Smith & Spencer in said building, in its construction. And plaintiff avers that they did on the 9th day of July, 1889, file in the office of the judge of probate of the county of De Kalb *** a statement, in writing, containing a just and true account of the demand here sued upon, after allowing all just credits and offsets, and verified by the oath of J. L. Camp,-that, more than ten days before said statement was so filed, plaintiff gave to said E. B. Cook and J. D. Rawis, as the owners of said house and lots, notice, in writing, that they claimed a lien on said house and lots for the said amount of three hundred and forty dollars and sixty-five cents, and showing from whom said amount was due, and for what it was due,-the same being due for material furnished for said building,-and plaintiff claims a lien on said building and lots for said sum of three hundred and forty dollars and sixty-five cents, with the interest on the same." Defendants interposed many assignments of demurrer to the complaint, some of which were overruled, and the rulings of the court in that regard are made the bases of several assignments of error.

1. The court did not err in overruling those assignments which proceeded on the theory that it was necessary for plaintiff to aver that it had complied with our laws in respect of having a known place of business in Alabama, and an agent thereat. The sale of brick in another state, to be delivered here, or the filling of an order sent from this state for brick in another state, is an act of interstate commerce, which is not affected by our laws, which require foreign corporations to have a place of business and an agent here, as a condition precedent to their capacity to do business in Alabama. Ware v. Shoe Co., 92 Ala. 145, 9 South. Rep. 136. Nor is the institution and prosecution of suits in our courts the doing of business, within these requirements of our laws. Christian v. Mortgage Co., 89 Ala. 198, 7 South. Rep. 427.

2. That assignment of demurrer which is in these words, "If every allegation and averment of said complaint be true, it fails to show enough to entitle plaintiff to a lien on the property of Cook & Rawis," was properly overruled on account of its generality. Code, § 2690; 3 Brick. Dig. p. 704; 2 Brick. Dig. pp. 346, 347.

3. In actions by which it is sought to declare and enforce the lien given by statute to mechanics, material men, and the like, every fact necessary to the creation of the lien must be alleged and proved. This is the general rule of pleading, which is applied with much strictness to this class of actions. Phil. Mech. Liens, § 402 et seq.; Corrugating Co. v. Thacher, 87 Ala. 458, 6 South. Rep. 366. And our statute specifically requires "the facts necessary to entitle the plaintiff to the lien" to be stated. Code, § 3029. Among the facts thus necessary to be averred and proved is the filing, in the office of the judge of probate of the county in which is situated the property proposed to be subjected, of the statement required by section 3022, within the time therein prescribed, verified by the oath of the claimant, or some other person having knowledge of the facts. If this statement is not so filed, the lien is expressly declared to be lost. The present action seeks to have a lien declared and enforced in favor of material men. It is essential to the existence of such lien that the statement should be so filed within four months after the indebtedness has accrued, and this must appear by the complaint, and be established by the testimony. The averment of the present complaint, in this connection, is that some part of the indebtedness accrued in March, 1889; another part, in April; and the balance, in May of that year,-the particular days in said months not being stated. Nor does it appear what sum accrued severally in said months. The statement was filed in the office of the judge of probate on the 9th day of July, 1889. Applying to these averments the rule which requires us to construe the complaint most unfavorably to the plaintiff, it must be held that some part of the indebtedness accrued prior to the 9th day of March, 1889, and hence more than four months before the statement was filed. The complaint, therefore, makes no case for the enforcement of a lien, to any extent, against the property sought to be subjected, since, it not appearing what part of the indebtedness accrued within, and what part beyond, the four months, it cannot be said to allege with requisite certainty any indebtedness which could be charged on the house and lots of the defendants Cook & Rawls. The assignments of demurrer which were addressed to this infirmity of the complaint should have been sustained.

4. We construe the complaint to aver that the materials furnished by plaintiff were supplied for the purpose of being used, and were used, in the construction of the house upon which, with the lots on which it was erected, it is sought to fasten the lien. So far as this...