Jefferson Plumbers & Mill Supply Co. v. Peebles

• Decision Date: 10 February 1916
• Docket Number: 6 Div. 154
• Citation: 195 Ala. 608,71 So. 413
• Parties: JEFFERSON PLUMBERS & MILL SUPPLY CO. v. PEEBLES.
• Court: Alabama Supreme Court

71 So. 413

195 Ala. 608

JEFFERSON PLUMBERS & MILL SUPPLY CO. v. PEEBLES.

6 Div. 154

Supreme Court of Alabama

February 10, 1916

Rehearing Denied March 30, 1916

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by the Jefferson Plumbers & Mill Supply Company against Mrs Alice L. Peebles. From a decree for defendant, complainant appeals. Reversed, rendered, and remanded.

Francis M. Lowe and Nisbet Hambaugh, both of Birmingham, for appellant.

Samuel B. Stern, of Birmingham, for appellee.

GARDNER J.

By this bill the complainant (appellant here) seeks a foreclosure of materialman's lien upon a certain lot and a four-story brick structure thereon, known as the "Manhattan Hotel," situated in Birmingham, Ala., and which is the property of the respondent to the bill. The bill shows that during a series of months in the years 1913-14 the complainant as the original contractor furnished to the defendant plumbing and heating materials used in the construction of said building, the last item being furnished on March 30, 1914, and that the balance of the account and the entire indebtedness accrued on April 1, 1914. The filing of the affidavit and claim of lien in the probate office of Jefferson county is shown to have been done on May 16, 1914. The answer contains a general denial of all the allegations of the bill and also special pleas of the statute of limitations.

The chancellor dismissed the bill for the reason, as given in his opinion, that he found from the record that the material for the plumbing and that for the heating was furnished under separate and distinct contracts; that in order to fix a lien there should have been filed separate accounts in the probate office; and that complainant acquired no lien by filing the account in which the two classes were blended. This seems to be the only objection urged against the sufficiency of the account filed in this cause, so far as its substance is concerned.

The evidence discloses that the materials for the plumbing and for the heating were furnished the defendant for the said building practically simultaneously and while the building was in course of construction. Here the parties are the same the same property is improved, and the rights of no third person are shown to be involved. In such a situation, we cannot agree that the lien would be lost by a failure to file separate accounts. Indeed, such was the holding of this court in Ala. State Fair Ass'n v. Ala. Gas, etc., Co., 131 Ala. 256, 31 So. 26, wherein the opinion concludes with the following statement:

"Nor is the lien prejudiced either in whole or in part by the fact that the demand includes work and material furnished under two separate agreements, since the same property was included under both agreements, and the rights growing out of the same are identical in character and as to parties."

Such is, also, the holding of the Supreme Court of Missouri, under a statute very similar to ours, the decisions of which court find frequent reference in our cases upon this subject. In Grace v. Nesbitt, 109 Mo. 9, 18 S.W. 1118, speaking to this subject it was said: "There is no provision of the statute requiring a separate account to be filed for each separate contract, under which material may have been furnished, though the material may be entirely different and the contracts independent. The statute requires the account filed to be 'a just and true account of the demand due him or them after all just credits have been given.' The statute evidently contemplated filing only one account, and no reason can be seen for adding anything to its requirements."

There is nothing in the case of Lane & Bodley Co. v. Jones, 79 Ala. 156, holding to the contrary. The language of the opinion relied upon by counsel for appellee was dealing with the question as to the time within which the claim must be filed, and was to the effect that, when the material is furnished under separate contracts, the statement must be filed within the time limited after delivery upon each separate contract. And such was also the holding of the Missouri court in Grace v. Nesbitt, supra.

From the view which we take of the case, however, the question just discussed is not one of controlling importance here. We are not persuaded that these materials were furnished under separate and distinct contracts, but are inclined to the view, rather, that the orders were, for all practical purposes and as understood by the parties themselves, merely items of one and the same transaction.

No indication is found in the answer of respondent that insistence would be made that the materials for which the lien was sought to be established were furnished under separate contracts, and, as the answer to the bill was but a mere general denial of its allegations, it may be seriously questioned whether such a defense is available to respondent. An examination of the evidence does not disclose that this was a question given serious consideration by the respective parties on the trial of the cause. However, as the question of the sufficiency of the answer in this respect is not pressed upon us by counsel for appellant, we pass it by and determine the cause upon its merits.

Aside from the question we have here discussed, and that of the statute of limitations insisted on by counsel for appellee, there is very little by way of defense to this bill that needs consideration here. While the husband of the respondent, who was confessedly her agent, in these matters, seems to doubt that some of the material went into the building and questioned the authority of some of the laborers to receive the same, yet an examination of the evidence discloses that the insistence for the complainant remains practically without dispute, and that its claim, so far as the merit of the situation is concerned, is fully and completely established.

It appears from the evidence that, when the building was in the course of construction, the husband of respondent made inquiries as to prices on plumbing and heating materials for it, and that complainant in this cause was negotiated with. Arrangements for the furnishing of same were made by him, for respondent, and it appears that the understanding in regard to...