Morris v. Bessemer Lumber Co.

• Decision Date: 12 April 1928
• Docket Number: 6 Div. 93
• Citation: 217 Ala. 441,116 So. 528
• Parties: MORRIS et ux. v. BESSEMER LUMBER CO.
• Court: Alabama Supreme Court

116 So. 528

217 Ala. 441

MORRIS et ux. v. BESSEMER LUMBER CO.

6 Div. 93

Supreme Court of Alabama

April 12, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action by the Bessemer Lumber Company against R.T. Morris and wife to recover for materials furnished and to establish a lien therefor. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Cora R Thompson, of Birmingham, for appellants.

Goodwyn & Ross, of Bessemer, for appellee.

BOULDIN J.

A materialman furnishing materials for a building under contract with the owner is an original contractor, and the verified statement filed under Code, § 8836, within six months after the indebtedness accrues, is within time. Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276; Gilbert v. Talladega Hdw. Co., 195 Ala. 474, 70 So. 660.

If the owner or his agent opens the account in his own name with directions to furnish further materials to his contractor and they are so furnished and charged to the owner, the same rule applies. Avondale Lumber Co. v. Hudson, 214 Ala. 128, 106 So. 803.

The ledger sheet proven by the testimony of the secretary and treasurer of the plaintiff corporation to be the book of original entry, kept in the regular course of business by employees charged with that duty, and correct upon information and belief of the witness, was admissible under Code, § 7701. Booker v. Benson Hardware Co., 216 Ala. 399, 113 So. 256.

Appellants' criticism of the appearance of this sheet cannot be reviewed, as the original is not sent up. We find in the record no order directing it to be sent up.

Evidence tending to show Mrs. Morris opened the account with an agent who has since died, that she later advised Dillard, plaintiff's secretary and treasurer, of such account, that upon looking at the books the account was shown in the name of Mr. and Mrs. Morris and further materials were sold on the same account, and thereafter Dillard presented the account to both of them in person, and the husband then admitted the account was correct and issued a check in part payment, made an issue for the jury on joint liability of husband and wife. The verdict in this regard was supported either on the theory of original liability or of ratification.

True ratification requires knowledge of the facts; but an express recognition of liability implies knowledge of the facts. When ratification itself is implied from acquiescence or other conduct apparently inconsistent with...