Johnson v. Simmons

• Decision Date: 30 June 1899
• Citation: 123 Ala. 564,26 So. 650
• Parties: JOHNSON v. SIMMONS ET AL.
• Court: Alabama Supreme Court

26 So. 650

123 Ala. 564

JOHNSON v. SIMMONS ET AL.

Supreme Court of Alabama

June 30, 1899

Appeal from Cleburne county court; J. R. Barker, Special Judge.

Action by Simmons & Bagwell against August Johnson and S. O Hawkinson. From a judgment for plaintiffs, defendant Johnson appeals. Affirmed as to defendant Hawkinson, and reversed as to Johnson.

This action sought the enforcement of a material man's lien upon the property of August Johnson, which is described in the complaint as a two-story frame building or dwelling house on lot No. 9, in block No. 5, in the city of Fruithurst. It was alleged in the complaint that the amount sought to be recovered was the price of certain material furnished by plaintiff to S. O. Hawkinson, the original contractor, to be used by him in the construction of said building for the defendant August Johnson. The defendant S. O. Hawkinson having become a nonresident, was served by publication, but he made no defense to the action. The defendant Johnson filed the plea of the general issue, and also filed several pleas denying the fact of indebtedness to the contractor, S. O Hawkinson, at the time of the service of the notice of the claim of a lien by plaintiff, or since that time, and also denying that the material mentioned in the complaint was used in the construction of his building. Issue was joined upon these pleas. The uncontroverted facts were that defendant S O. Hawkinson was the original contractor; and as such built a two-story frame dwelling in the city of Fruithurst, Ala., for appellant; that the contract between defendants for the erection of said building was made on the 20th day of March 1896, and that the work was to be begun on or before the 25th day of March, 1896, and completed by the 15th day of May 1896, defendant Johnson agreeing to pay defendant Hawkinson for building said house the sum of $1,000, to be paid as follows: $400 when the roof was on, and $300 when the plastering was done, and the remaining $300 when the house was fully completed; that, when the roof was on, defendant Johnson paid said Hawkinson $400, and when the plastering was done he paid him $300, after which said Hawkinson left Fruithurst, and never did complete the job; that he left Fruithurst about the 23d of June, 1896, and never returned, and that appellant had the job completed himself; that the kitchen room of the house was fixed so that appellant moved his family therein about the 19th of May, 1896, but it was not completed. It was further shown that plaintiff furnished said Hawkinson lumber while he was building said house, some of which was used in the house of appellant, and that said Hawkinson was at the same time building one or two other houses in Fruithurst, and that there was a balance of $210 due plaintiffs for material furnished said Hawkinson; that appellant stated to A. J. Simmons, a member of plaintiff partnership, on the 3d day of July, 1896, that he would owe said Hawkinson $300 when he (Hawkinson) completed his house; also, that plaintiff got about 3,000 feet of lumber from appellant's place, which was left there by said Hawkinson. A. J. Simmons testified as a witness for plaintiff, on direct examination, that S. O. Hawkinson was due plaintiff for lumber used by said Hawkinson in the said building the sum of $210, and that the same was unpaid. On cross-examination he testified that plaintiff sold said Hawkinson lumber and material for other buildings during the same period, and that said Hawkinson had some payments on said material, and that he could not say what material had been paid for, but that none of the material for which this demand was claimed had been paid for. Said witness also testified that he did not know how much of the lumber he had specified was sold to said Hawkinson for said house of appellant, and was used in said house. There was some controversy in regard to the testimony as to the notice alleged to have been given appellant prior to the filing of the statement of lien in the probate office. There was also conflict in the testimony as to the description of the property on which the lien is claimed. The testimony of plaintiff described it as lot No. 9, in block 5, in the town of Fruithurst, while all the other evidence in behalf of both plaintiff and defendant described it as lot No. 5, in block 8, in...