Cutcliff v. McAnnally

• Decision Date: 31 January 1890
• Citation: 88 Ala. 507,7 So. 331
• Parties: CUTCLIFF v. MCANNALLY.
• Court: Alabama Supreme Court

7 So. 331

88 Ala. 507

CUTCLIFF v. MCANNALLY.

Supreme Court of Alabama

January 31, 1890

Appeal from circuit court, Jefferson county; J B. HEAD, Judge.

Action by William Cutcliff against Catherine McAnnally to enforce a mechanic's lien on a house partially built by plaintiff but which, before completion, had been destroyed by fire. The court directed a verdict for defendant, and plaintiff appeals.

Code Ala. 1886, § 2346, provides: "The wife has full legal capacity to contract in writing as if she were sole with the assent or concurrence of the husband expressed in writing." Section 3018 creates a lien in favor of every mechanic or other person for work or labor done or material furnished in constructing or repairing any building on land "under or by virtue of any contract with the owner or proprietor thereof, or his agent," etc. Section 3046 provides: "Every person, including married women and cestuis que trustent, for whose use, benefit, or enjoyment any building or improvement shall be made, is embraced within the words 'owner or proprietor,' as used in this chapter."

R L. Thornton, for appellant.

ickell, Harris & Eyster, F. S. Ferguson, and W R. Houghton, for appellee.

SOMERVILLE J.

1. The first question raised on the record in this case is whether a married woman can create a mechanic's or material-man's lien on her separate estate by her verbal contract, and without the written assent of her husband; or whether, on the contrary, her legal capacity to contract for such a lien is limited by section 2346 of the present Code, which restricts her general power to contract as a feme sole to an instrument in writing, with the superadded assent of her husband, also expressed in writing. The case of Wardsworth v. Hodge, ante, 194, (decided at the present term,) settles this question against the contention of the appellee. We there held that a married woman could charge her separate estate under the provisions of the mechanic's lien law, as embraced in sections 3018-3048, Code 1886, by her oral contract for labor or improvements, and without her husband's consent, written or otherwise. Our ruling was placed upon the broad basis of the statute itself, which provides for the creation of liens of this nature by an oral contract, and expressly authorizes such a contract to be made by a married woman. Code 1886, § 3046.

2. A second point of inquiry is whether the requisite written statement of the plaintiff's demand was filed in the office of the judge of probate within the time prescribed by statute. If not, the lien is admitted to be barred and lost. The contract in this case was made under the Code of 1876, and must therefore be governed by its provisions. The statute then required every original contractor to file his demand within 6 months after the indebtedness had accrued, and actions to enforce the lien were required to be commenced within 90 days after filing such demand. Code 1876, §§ 3444, 3454. The present Code contains the same provision as to filing, limiting the time to six months after accrual of the indebtedness, and declares, further, that, with certain exceptions, all liens arising under this law "shall be deemed lost unless suit for the enforcement thereof is commenced within six months after the maturity of the entire indebtedness secured thereby." Code 1886, §§ 3022, 3041. We are concerned here, however, only with the question of filing. Was the statement of the demand filed with the judge of probate within six months after the indebtedness accrued, within the meaning of the statute? In this connection, the word "accrued" is evidently used in the sense of having come to maturity, so as to be due and payable. Or, in other words, it indicates the time when the work contracted for is comfleted, or the materials purnished,-one or both, as the case may be,-and the account for the same is past due. This is implied in the further description of such indebtedness, thus required to be filed, as "a just and true account of the demand due him." Code 1876, § 3444. Requiring suit to be instituted on such claim within 90 days after filing, moreover, implies that the demand must have been due and payable when filed.

It has accordingly been held, both under our own statute and the similar one in Missouri, that, where work is done and materials furnished under one continuous or running contract, the indebtedness created is said to accrue from the last item of the account, and the time of filing must be computed from this date. But if there be several distinct and independent contracts, separately made, for the different parts of a building,-as, for example, one for the brick-work, another for the woodwork, and a third for the painting,-each must be filed within the time of its own separate accrual. Lane & Bodley Co. v. Jones, 79 Ala. 156; Livermore v. Wright, 33 Mo. 31; Rev. St. Mo. 1879, § 3172; Page v. Bettes, 17 Mo.App. 366; 2 Jones, Liens, §§ 1432-1437; Peck v. Bridwell, 10 Mo.App. 524; Henry v. Hinds, 18 Mo.App. 497.

It is an uncontroverted fact in this case that the building in process of erection was never completed, but was destroyed by fire, when approaching completion, without the fault of the plaintiff, on September 12, 1888, having been willfully burned by the husband of the defendant, who was superintending the work as her agent. The sum sued for-something over $200-was a percentage retained by the defendant, as usual in such contracts, as a security for the faithful completion of the work; and it was not due to plaintiff until the house was completed. On the 15th of October, 1887, the parties compromised the indebtedness; and, as a convenient mode of liquidating the same, the defendant executed her note to the plaintiff for $200, payable in 60 days after date. The required statement of the demand was filed April 9, 1889.

The defendant contends that the...