First Avenue Coal & Lumber Co. v. Renfroe

• Citation: 215 Ala. 424,110 So. 899
• Decision Date: 13 January 1927
• Docket Number: 6 Div. 791
• Parties: FIRST AVENUE COAL & LUMBER CO. v. RENFROE et al.
• Court: Supreme Court of Alabama

110 So. 899

215 Ala. 424

FIRST AVENUE COAL & LUMBER CO. v. RENFROE et al.

6 Div. 791

Supreme Court of Alabama

January 13, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the First Avenue Coal & Lumber Company against E.S Renfroe and another. From a decree for respondents complainant appeals. Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Smyer & Smyer, of Birmingham, for appellees.

MILLER J.

This is a bill in equity filed by the First Avenue Coal & Lumber Company, a corporation, against E.S. Renfroe and the Birmingham Trust & Savings Company, a corporation, to enforce a mechanic's lien on a certain lot and improvements thereon, owned by E.S. Renfroe, for an indebtedness contracted by him with the complainant for material furnished and used in the construction of the improvements on this lot, and to declare this lien prior and paramount to a mortgage, on the lot and the improvements, given by E.S. Renfroe to the Birmingham Trust & Savings Company. The defendants answered and denied that E.S. Renfroe contracted with the complainant this debt for this material, and aver: That he purchased no material for the improvements on this lot. That if any material was purchased from and furnished by the complainant for the erection of the improvements on the lot, it was by and to one A.C. Rooke and not E.S. Renfroe. That A.C. Rooke and E.S. Renfroe entered into a written contract by which Rooke agreed to erect certain improvements on this lot, to furnish all labor and material therefor, for which Renfroe was to pay him a certain sum named therein. At different times Renfroe paid Rooke the price as agreed. That he paid him the balance thereof, which was in excess of the amount to which he was entitled under the terms of the contract. And the answer also avers:

"Respondents further aver that at the time said balance was paid by the respondent E.S. Renfroe to the said A.C. Rooke, the respondent E.S. Renfroe had no notice of the existence of the complainant's alleged lien or claim of lien upon said property or upon the balance due to said contractor, under said contract."

The court on the pleading and proof held the complainant was not entitled to relief, by decree dismissed the bill, and taxed the complainant with the court cost. The complainant prosecutes this appeal from that decree, and it is one of the errors assigned.

The defendants were permitted by the court over the objection of the complainant, to which ruling exception was reserved, to introduce in evidence the written contract entered into by E.S. Renfroe and A.C. Rooke for the erection of the improvements on this lot. The appellant insists that in this ruling the court erred. A copy of the contract was attached to the answer and made a part thereof by exhibit. It is not required that the trial court or this court point out or indicate what testimony, if any, should be excluded or not considered, but on the hearing of the cause the court shall consider only such testimony as is relevant, material, and competent, and not consider any testimony which is irrelevant, immaterial, or incompetent, whether objection shall have been made thereto or not. The contract is in evidence in the record, and it is not necessary for this court to decide whether the trial court erred in that ruling. This court will consider in reaching its conclusion on the litigated issue only the relevant, material, and competent testimony. Section 6565, Code of 1923. Mason v. Calhoun, 213 Ala. 491, headnote 3, 105 So. 643; King v. Price, 212 Ala. 344, headnote 1, 102 So. 702.

There is legal evidence to sustain the decree, and this court will presume that the trial court followed the statute and considered and based its conclusion on the relevant material, and competent testimony. Copeland v. Warren, 214 Ala. 150, headnote 13, 107 So. 94; section 6565, Code of 1923. A.C. Rooke, the contractor, is dead--died before this cause was tried,...