McAnally v. Hawkins Lumber Co.

• Decision Date: 30 January 1896
• Parties: MCANALLY v. HAWKINS LUMBER CO.
• Court: Alabama Supreme Court

19 So. 417

109 Ala. 397

MCANALLY v. HAWKINS LUMBER CO.

Supreme Court of Alabama

January 30, 1896

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by the Hawkins Lumber Company against Catherine McAnally and another. From a judgment for plaintiff, defendant Catherine McAnally appeals. Reversed.

This action was brought by the Hawkins Lumber Company against Catherine McAnally and her husband, Patrick McAnally, to recover an amount alleged to be due for lumber furnished by the plaintiff at the request of the defendants, which lumber was used in building and improving certain houses on a specifically described lot. The plaintiff claimed a lien on said lot and building for the sum sued for, and claimed a further sum as a reasonable attorney's fee. The defendants pleaded the general issue, and the following special pleas: (2) "And for further plea, defendants say, that the premises upon which the material is alleged to have been furnished by plaintiff and used by defendants, were the homestead of these defendants, and they still reside upon the same as their homestead, and the same was not and is not subject to the lien by plaintiff." (3) "And for further plea the defendant Catherine McAnally says, that at the time said material is alleged to have been furnished or sold by plaintiff, this defendant was then and now is a married woman, the wife of Patrick McAnally, and that the property or premises described in said complaint was then and is now the separate property of this defendant; and that this defendant did not authorize the said Patrick McAnally to purchase said lumber, or to use the same upon said property but the same was purchased by said Patrick McAnally without the knowledge or consent of this defendant, and without any authority from her, either to purchase or use the same upon said property; and this defendant further avers that since said lumber was purchased and used, she has not ratified said purchase, nor promised to pay for said material." (4) "Comes the defendant, Catherine McAnally, by her attorney, and leave of the court being first had, for further plea to said complaint says: That the lumber and material claimed to have been furnished by plaintiff in said complaint was not used in building or improving or repairing, etc., nor in any other manner, upon said block 458 in the city of Birmingham, as in said complaint alleged; and this defendant is ready to verify, wherefore," etc. (5) "And for further plea in this behalf defendant says she did not purchase the lumber or material claimed to have been furnished by plaintiff, nor was said lumber furnished at her request or by her authority; but she avers the fact to be that said lumber was furnished while she was absent from home, and without her knowledge or consent; and if any was used on said premises, the same was used without her knowledge or consent; nor has she at any time since the alleged furnishing of said material by plaintiff, ratified the said purchase or agreed to pay for the same or any part thereof. And said defendant further alleges that said block upon which said lien is claimed is her sole property, and not the property of her codefendant, Patrick McAnally." The plaintiff demurred to the second plea on the ground that it contains no facts which are sufficient to prevent either a personal judgment against the defendants or a lien on the property described in the complaint. To the third and fifth pleas the plaintiff demurred on the grounds (1) that said pleas do not aver that Catherine McAnally did not ratify the purchase of the lumber and material by her husband, and (2) that said pleas do not aver that said Catherine McAnally gave the defendant written notice not to furnish the lumber and material, the price of which is sued for, and for which the lien is sought to be fastened upon the property described in the complaint. The demurrer to the second plea was sustained and the demurrer to the third and fifth pleas was overruled. There was a motion made by the plaintiff to strike the fourth plea from the file, which motion was sustained. It was shown that the plaintiff complied strictly with the provisions of the statute towards the establishment of the lien upon the property involved in the suit; and the witnesses for the plaintiff testified positively to the use of the lumber on the premises described in the complaint. The testimony for the plaintiff further tended to show that the lumber, the price of which is sued for in the present action, was sold to the defendant Catherine McAnally, the plaintiff refusing to sell the lumber to Patrick McAnally, but that it was ordered by Patrick McAnally for his wife, under her direction. The defendant as a witness in her own behalf testified that she did not purchase the lumber from the plaintiff and did not direct or authorize her husband to purchase the lumber; and that it was used in the building while she was away from her home. There was also evidence for the defendant tending to show that all of the lumber was not used in the house built on the lot described in the complaint, but was used upon other property. The amount claimed in the complaint was $58.39, and it was shown on the trial that $15 would be a reasonable attorney's fee. On the...