Hawkins Lumber Co. v. Brown

• Decision Date: 29 November 1893
• Citation: 100 Ala. 217,14 So. 110
• Parties: HAWKINS LUMBER CO. v. BROWN ET UX.
• Court: Alabama Supreme Court

14 So. 110

100 Ala. 217

HAWKINS LUMBER CO. v. BROWN ET UX.

Supreme Court of Alabama

November 29, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by the Hawkins Lumber Company against D. H. Brown and wife to recover the price of lumber sold and to enforce a lien therefor on the wife's land. There was a judgment against D. H. Brown, but the lien was denied, and plaintiff appeals. Affirmed.

John H Miller and F. E. Blackburn, for appellant.

Bush &amp Brown, for appellees.

COLEMAN J.

The suit was brought to recover the price of a bill of lumber sold and used in improving and adding to a certain dwelling described in the complaint, and also to declare and enforce a material man's lien upon the lot and dwelling. The property belongs to Emma Brown, the wife of D. H. Brown. Every legal question affecting the liability of Emma Brown raised by the evidence was considered and decided by this court in the case of Wadsworth v. Hodge, 88 Ala 500, 7 So. 194. The evidence shows conclusively that the lumber was purchased by D. H. Brown in his own name, that he did not undertake to contract for his wife or as her agent and that credit was given solely to him for the materials furnished. The statute does not create a lien upon the property of the wife for materials furnished, under such a state of facts. The doctrine of estoppel invoked by appellant, and the authorities cited, have no application to the case at bar. If the husband had contracted in the name of the wife, representing himself as her authorized agent, and with a knowledge of this fact, she had acquiesced, or had given countenance to the exercise of such authority as her agent; or if the husband had represented to the material men that the property to be improved belonged to him, and on this false representation the goods were obtained, and the wife, with knowledge of such false representation, had permitted the improvements to be made without objection,-probably the equitable rule of estoppel might be invoked. But there is no pretense of any misconduct on her part, or misrepresentation in the matter on the part of D. H. Brown. It is a clear case where credit was extended to D. H. Brown on his personal responsibility alone. There was no error in rendering judgment in favor of the defendant Emma Brown, and in refusing to declare a lien upon her property. The court gave judgment against the defendant D. H. Brown. In this there was...