Floyd v. Rambo

• Decision Date: 15 January 1948
• Docket Number: 5 Div. 439.
• Citation: 33 So.2d 360,250 Ala. 101
• Parties: FLOYD v. RAMBO.
• Court: Alabama Supreme Court

33 So.2d 360

250 Ala. 101

FLOYD v. RAMBO.

5 Div. 439.

Supreme Court of Alabama

January 15, 1948

Appeal from Circuit Court, Lee County; Albert Hooton, Judge.

Jacob A. Walker and R. C. Smith, both of Opelika for appellant.

Denson & Denson, of Opelika, for appellee.

BROWN, Justice.

The bill in this case was filed by the appellee, the original contractor, against the appellant, the owner, to enforce a mechanics lien for work and labor performed and material furnished in installing in a dwelling house owned by the defendant a 'Lennox Forced Air Heating System with D. L 30 Iron Fireman' and labor furnished to remove from said building the furnace then installed in said building and the iron fireman and carry the same away to complainant's shop with agreement to make allowance for the old equipment in the price for the labor and material and installing of the new equipment. The written contract between the parties stipulated:

'The Buyer agreed to provide a good and sufficient smoke flue for the heating system without expense to the contractor; to permit the contractor to select the location of the heating unit and all auxiliary apparatus; to follow the direction of the contractor in the selection and firing of fuels and the detailed operation of the heating system; to provide Electrical and Water connection, Excavating, Cement Carpenter, and Plumbing work not expressly otherwise provided for in this contract; and to pay for the above work as above specified the sum of One Thousand Two Hundred Thirty-Five and no/100 Dollars ($1235.00) as follows: 50% upon delivery the balance upon installation to be evidenced by a promissory note executed and delivered to the contractor payable in * * * consecutive monthly installments, beginning * * * 194 * * *

'On the following the terms and conditions each and every (one ) of which are made conditions precedent to the passing of the title, which title shall be and remain in the contractor until the fulfillment of each and every term of this contract, namely:

'Payment of the above sum in the manner and form herein specified.

'It is expressly agreed that the buyer will execute and deliver to contractor negotiable promissory note, or notes, in the amount above specified falling due on or before the dates above specified covering all deferred payments.

'It is further expressly agreed and understood that time being the essence of this contract any default in the payment of any installment of principal, the entire amount of principal shall, at the option of the contractor its successors or assigns, immediately, without notice, become due and payable with costs of collection and attorney's fees of fifteen percent.

'It is further expressly agreed that all of the aforesaid property is to be and remain personal property, notwithstanding any attachment thereof to real estate, and that title to, and ownership of, said property and the right of possession in event of any default shall be and remain in the contractor until the purchase price is fully paid with interest. * * *.'

The bill further alleges that the defendant has paid $625.00 on the contract price leaving a balance due of $610, which the defendant fails and refuses to pay. The bill prays that on final hearing and proof 'it be adjudged and decreed by the court that the respondent is indebted to complainant as original contractor in the amount of $610.00 with interest thereon; and that complainant have judgment against the respondent therefor; that it be adjudged and decreed by the Court that the complainant has a lien on said dwelling house and the lot on which the same is situated, as herein described, as security for the payment of said indebtedness of $610.00, with interest, together with 15% thereof as attorney's fees, as provided by the terms of said contract; * * * and for general relief.'

The defendant demurred to the bill on the following, among other, grounds;

'There is no equity in the bill. * * *

'The bill shows on its face that complainant has no mechanics and materialman's lien on the property described in the bill. * * *

'The complainant is estopped to assert an improvement of the real estate in that by the terms of the written agreement the material furnished by the complainant remained personal property.'

The court overruled the demurrer. Hence this appeal.

Section 48, Title 33, Code of 1940 provides: 'When the amount involved exceeds fifty dollars, actions for the enforcement of liens under this article may be brought in the circuit court or court having like jurisdiction, of the county in which the property is situated, and where resort is had to chancery proceedings in circuit court, no special ground of equitable jurisdiction need be alleged or proved. In all other cases actions to enforce such liens shall be brought before justices of the peace.'

It has been uniformly ruled that this section of the code gives to a lien-claimant a concurrent remedy in equity. Bynum Mercantile Co. v. First Nat. Bank, 187 Ala. 281, 65 So. 815. That the lien is a creature of statute and not of contract. Crawford v. Sterling, 155 Ala. 511, 46 So. 849; First Colored Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433.

The general policy of the statute is to secure to the materialman and laborer a just reward of his labor and material and is based upon the general equitable principle that one should not enjoy the benefits thereof without making just compensation therefor. Le Grand v. Hubbard et al., 216 Ala. 164, 112 So. 826; Lupton's Sons Const. Co. v. Hugger Bros. Const. Co., 227 Ala. 25, 148 So. 610.

The jurisdiction conferred upon courts of equity by § 48, supra, being concurrent with a proceeding at law, the complainant may have a general judgment against the contracting owner for the agreed price for the work and material furnished under the contract though he may not be able to establish the mechanics lien under the statute. Lavergne v. Evans Bros. Const. Co., 166 Ala. 289, 52 So. 318; Wood Lumber Co. v. Greathouse, 226 Ala. 644, 148 So. 125; Gorr Lumber Co. v. McMillan, 225 Ala. 303, 143 So. 173.

The demurrer is addressed to the bill as a whole and in view of well settled principles above stated, the court did not err in overruling the demurrer.

The other question presented and strenuously insisted upon is that the reservation of the title in the contractor, coupled with the provision that the materials and equipment used should remain personalty constituted a waiver of the mechanic's lien. The great weight of authority is to the effect that the reservation by the contractor of the title to the material and equipment used in the improvement of the real property does not preclude him from asserting a mechanic's lien on the property improved, as provided by statute. Code of 1940, Tit. 33, § 37; Annotations to East New York Electric Co. v. Petmaland Realty Co., 243 N.Y. 477, 154 N.E. 530, 58 A.L.R. 1119, pages 1122-1124; 36 Am.Jur. p. 135, p. 136, § 205; Annotations 65 A.L.R. pages 305-308; 40 C.J. p. 324, § 427. While the lien created by the statute may be waived or released just as any other lien may be waved or released, the presumption is that the right to the lien exists if the claimant has brought himself within the protection of the statute by complying with all the formalities prescribed. This appearing, it rests upon the defendant to show that the claimant has knowingly surrendered or waived his lien. 2nd Jones on Liens, pp. 739, 740, § 1500.

'Whether or not the taking of collateral security by the contractor will amount to a waiver of his lien is a question upon which the courts are not in accord. Quite a number hold that it will, but it is believed that the weight of opinion is that unless there is manifest intention between the parties that it shall so operate, this will not be equivalent to a waiver. And especially is this true where the enforcement of the lien will not affect the vested rights of any one. * * *.' Rockel on Mechanics' Liens, p. 450, §§ 178, 180.

The appellant cites and relies on Alexander v Mobile Auto Co., 200 Ala. 586, 76 So. 944, and ...