Noland Co. v. Southern Development Co., Inc.

• Decision Date: 20 January 1984
• Citation: 445 So.2d 266
• Parties: NOLAND COMPANY v. SOUTHERN DEVELOPMENT CO., INC., et al. 82-491.
• Court: Alabama Supreme Court

Page 266

445 So.2d 266

NOLAND COMPANY v. SOUTHERN DEVELOPMENT CO., INC., et al.

82-491.

Supreme Court of Alabama.

Jan. 20, 1984.

Harry Asman, Birmingham, for appellant.

Fred Ray Lybrand, Anniston, for appellees.

EMBRY, Justice.

This is an action to establish a materialman's lien on real property in Piedmont, Alabama. Appellant, Noland Company, commenced the action by filing a complaint against Southern Development Co., Inc., Southern Development Company of Piedmont, Ltd., Management Builders, Inc., Lovelace Plumbing Contractors, Inc., and First National Bank of Montgomery, Alabama.

In the process of pretrial pleading and during the oral hearing no issue was taken nor testimony introduced against the interests of Southern Development Co., Inc., and First National Bank of Montgomery. The trial court entered a judgment in favor of Noland Company, but only against Lovelace Plumbing Contractors, Inc., which had, meanwhile, changed its corporate name to Lovelace Brothers, Inc. Therefore, the appellees are Southern Development Company of Piedmont, Ltd. (Southern Development), Management Builders, Inc., and Lovelace Brothers, Inc.

The trial court's findings were as follows:

"Southern Development Co. [Ltd.] contracted with G.B. Construction Co. for it to build a project known as Piedmont Manor in Piedmont, Alabama; that G.B. Construction Co. as general contractor retained Management Builders, Inc. to supervise the construction project; that the subcontract for plumbing was let to Lovelace Plumbing Contractors, Inc. on May 8, 1978; that on May 26, 1978, Noland Company and Management Builders entered into an agreement wherein Management Builders would guarantee payment of purchases by Lovelace Plumbing Contractors for the Piedmont Manor project. On June 26, 1978, Noland Company subordinated this agreement to allow payments to be made to Lovelace's bank with reservations to rescind the subordination agreement of June 16 1978. That on August 10, 1978, Management Builders sent a check to Lovelace and Noland in the sum of $7,689.96, and that this was the last payment made to Lovelace Plumbing Contractors; that there is no evidence that Management Builders or Southern Development Co. [Ltd.] owed Lovelace Plumbing Contractors any sum of money after the payment on August 10, 1978; that the sum of $21,384.00 is owed by Lovelace Plumbing Contractors to Noland Company as of this date.

"The Court is of the opinion that the plaintiff is entitled to a judgment against Lovelace Plumbing Contractors, Inc. [Lovelace Brothers, Inc.] in the sum of $21,384.00, plus costs. The Court is further of the opinion that plaintiff did not give notice to owner of furnishing material to subcontractor as required by law. The plaintiff made a contract with Management Builders to protect their interest, but voluntarily subordinated their contract and later reinvoked their contract, which was honored by Management Builders as long as Lovelace Plumbing Contractors were the subcontractors. The Court is further of the opinion that the plaintiff is not entitled to a judgment or lien against any of the other defendants."

The trial court's factual findings have the effect of a jury's verdict. A judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust. Mayo v. Andress, 373 So.2d 620 (Ala.1979); Cauley v. Sanders, 388 So.2d 891 (Ala.1980); Elmer Tallant Agency, Inc. v. Bailey Wood Products, Inc., 374 So.2d 1312 (Ala.1979).

Noland Company presents two issues for this court's review. The first is whether the trial court erred by refusing to impose a lien in its favor against the Piedmont Manor property, owned by Southern Development Company, Ltd., because of Noland's alleged failure to meet statutory notice requirements prerequisite to the establishment of a lien. Second, Noland Company contends the trial court erred in determining that Noland's contract of guarantee with Management Builders estopped Noland from asserting a statutory lien against Piedmont Manor.

Because the evidence is basically uncontroverted, we will make no further statement of the facts except as relevant to the issues here presented.

I

Section 35-11-210, Code 1975, essentially provides that when a materialman furnishes materials to a subcontractor, and complies with the provisions of that section, he can take a lien on property involved. Two types of liens are provided for therein. First, the statute provides:

"Every mechanic, person, firm or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler or machinery for any building or improvement on land, or for repairing, altering or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor or subcontractor, upon complying with the provisions of this division, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city or town; or, if not in a city or town, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and such employees and materialman shall also have a lien on such unpaid balance...."

Noland Company claims under the above section.

The second portion provides a more inclusive lien in the event the materialman notifies the owner of the property of its plan to supply materials prior to furnishing them:

"But if the person, firm or corporation, before furnishing any material, shall notify the owner or his agent in writing that such certain specified material will be furnished by him to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his agent objects thereto, the furnisher of such material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for such material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his agent shall notify such furnisher in writing before the material is used, that he will not be responsible for the price thereof. Such notice may be given in the following form, which shall be sufficient:

" 'To ________, owner or proprietor:

" 'Take notice, that the undersigned is about to furnish ________, your contractor or subcontractor, certain material for the construction, or for the repairing, altering or beautifying of a building...