Lathrop Lumber Co. v. Fitts

• Decision Date: 26 October 1922
• Docket Number: 2 Div. 801.
• Citation: 94 So. 354,208 Ala. 334
• Parties: LATHROP LUMBER CO. v. FITTS ET AL.
• Court: Alabama Supreme Court

94 So. 354

208 Ala. 334

LATHROP LUMBER CO. v. FITTS ET AL.

2 Div. 801.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.

Bill to declare and enforce a common-law lien by R. E. Fitts and J E. Melton against J. L. Gardner and the Lathrop Lumber Company. From a decree overruling demurrers, Lathrop Lumber Company appeals. Reversed and remanded.

Frank S. White & Sons, N. L. Steele, and Edward T. Rice, all of Birmingham, and Jerome T. Fuller, of Centerville, for appellant.

Lavender & Thompson, of Centerville, and John D. McQueen and H. A Jones, both of Tuscaloosa, for appellees.

McCLELLAN J.

The original bill was filed by appellees against one Gardner and Lathrop Lumber Company, a corporation. The court overruled demurrers to the bill as amended, and this appeal results. The object of the bill, original and as amended, is to have declared and enforced a common-law lien on a large quantity of lumber which, under contract with the defendant Gardner the appellees had manufactured from timber belonging to Gardner and stacked on the yard. Lathrop Lumber Company is interested as a purchaser or security holder from Gardner after Gardner's timber had been changed into the manufactured product by the efforts of appellees under the mentioned contract, and, as the bill avers, after the Lathrop Lumber Company knew or had notice of the service and labor bestowed to this end by the appellees. It appears from the amended bill and exhibits thereto that, upon the failure of Gardner to pay periodic installments stipulated in the contract for labor and service contemplated thereby, the appellees procured the levy by the sheriff of a writ of attachment upon lumber so manufactured; the complaint at law claiming some $3,000 as then due them from Gardner. The cause is argued here, consistent with the bill's averments, upon the theory that the appellees conceived they had for their services and labor the statutory lien provided by the act approved September 10, 1915 (Gen. Acts, p. 374). Not being "employees" or "laborers" under their contract with Gardner, the appellees were not within that act's purview; and being so advised, they, after levy of the writ of attachment, abandoned that theory of their right in the premises, and, by the court's permission or order, filed the present bill (later amended) upon the equity side of the circuit court to have declared and enforced a common-law lien upon the lumber.

One who by his labor and service converts timber into lumber, thereby imparting an additional value to the product, has a common-law lien thereon. Arians v. Brickley, 65 Wis. 26, 26 N.W. 188, 56 Am. Rep. 611; 25 Cyc. pp. 661, 662; Alexander v. Mobile Auto Co., 300 Ala. 586, 76 So. 944.

Possession is essential to the creation of a common-law lien; and "if," as was said long since in Voss v. Robertson, 46 Ala. 483, 487, the party claiming the lien "once part with the possession after the lien attaches, the lien is gone." Alexander v. Mobile Auto Co., supra; 25 Cyc. pp. 661, 662; Mobile, Building & Loan Ass'n v. Robertson, 65 Ala. 382, 390.

To preserve the lien the possession must be continuous, since the essence of the lien is the right to retain possession until the just demand is satisfied. Authorities supra; 1 Jones on Liens (3d Ed.) §§ 20-22. "It [lien] merely secures the lienor in the possession of the property on which the lien attaches, to hold it as security for the debt or obligation, but not to sell it" (25 Cyc. pp. 661, 662)-thus stating the generally accepted doctrine.

The lien results from implication of law, and the right it assures "rests on principles of natural equity and commercial necessity." 17 R. C. L. pp. 607, 608; Arians v. Brickley, supra; 1 Jones on Liens (3d. Ed.) § 4. Such a lien cannot be implied if the engagements the parties have assumed in their contract are inconsistent with a lien by implication. 17 R. C. L. p. 607.

While the parties to a contract may, without preventing the creation of a common-law lien, stipulate for a fixed sum, yet, if the time or mode of payment stipulated by the contract contemplates the asserted lienor's release or surrender of possession of the chattel before the period for stipulated payment arrives, a lien at common law does not come into existence. 17 R. C. L. pp. 607, 608; 1 Jones on Liens (3d Ed.) § 6; Wiles Laundry Co. v. Hahlo, 105 N.Y. 234, 11 N.E. 500, 59 Am. Rep. 496, 500; Stoddard v. Huntley, 8 N. H. 441, 31 Am. Dec. 198; Burdict v. Murray, 3 Vt. 302, 21 Am. Dec. 588; Hutchins v. Olcutt, 4 Vt. 549, 24 Am. Dec. 634; Chandler v. Belden, 18 Johns. (N. Y.) 157, 9 Am. Dec. 193; Steinman v. Wilkins, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Freeman's note, p. 259.

The contract, executed antecedent to the service contemplated between appellees, called therein "party of the second part," and Gardner, who was described as the "party of the first part," provided terms of payment inconsistent with a lien that otherwise might be implied by law. Among other things, the contract contained these provisions:

"Party of the second part agrees to manufacture into lumber all of the timber of the dimension named above in a workmanlike manner and to stack all such lumber that party of the first part may

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