Nunnally v. Dorand

• Decision Date: 06 June 1895
• Citation: 110 Ala. 539,18 So. 5
• Parties: NUNNALLY v. DORAND ET AL.
• Court: Alabama Supreme Court

18 So. 5

110 Ala. 539

NUNNALLY v. DORAND ET AL.

Supreme Court of Alabama

June 6, 1895

Appeal from circuit court, Jefferson county; James B. Head, Judge.

Action by A. H. Nunnally against J. H. Dorand and others. There was judgment by default against Dorand. From a judgment sustaining the demurrers of the other defendants, plaintiff appeals. Affirmed.

This action was to recover an amount for materials furnished to J H. Dorand, who was a subcontractor under Figh & Williams, who were original contractors with the mayor and aldermen of Birmingham; and sought to enforce a material man's lien upon the building which was erected by Figh & Williams under a contract with the mayor and aldermen. The court sustained the demurrers interposed by the defendants Figh & Williams and the mayor and aldermen of Birmingham, and rendered judgment by default against the defendant Dorand.

Gregg &amp Thornton, for appellant.

Webb &amp Tillman, for appellees, cited as to the right of lien, Phil Mech. Liens, § 179; Brinckerhoff v. Board, 37 How. Prac. 520; Williams v. Controllers, 18 Pa. St. 275; Charnock v. Colfax Tp., 51 Iowa, 70, 50 N.W. 286; Board v. Neidenberger, 78 Ill. 58; Wilson v. Commissioners, 7 Watts & S. 197; Poillon v. Mayor, etc., 47 N.Y. 666; Clark v. Chapman, 98 Cal. 110, 32 P. 812, and 33 P. 750; Knapp v. Swaney, 56 Mich. 345, 23 N.W. 162; 2 Dill. Mun. Corp. § 577, and authorities cited in note 2 to that section; Freem. Ex'ns, § 126.

HEAD J.

This cause is to be disposed of according to the mechanic's and material man's lien law as found in Code 1886, § 3018 et seq. The lien is there made to extend to the building or improvement, the land on which the same is situated to a limited area, and on such unpaid balance as may be owing by the owner or proprietor to the original contractor. When material is furnished by a material man to a subcontractor as in the present case, no lien is given by the statute upon any balance owing by the original contractor to the subcontractor, nor can any judgment be rendered against the original contractor in such a case. As we have said, the unpaid balance upon which the statute declares a lien is that which may be owing by the owner or proprietor to the original contractor. In this case, a municipal corporation-the mayor and aldermen of Birmingham-was the owner. Figh & Williams were the contractors to erect the building, and they subcontracted with Dorand to furnish the material and do the carpenter work. Plaintiff sold material to Dorand. The building which was to be and was erected was an addition to the Paul Hayne schoolhouse, owned by the municipal corporation, who also owned the lot on which it was situated, described in the complaint. The complaint is silent upon the point, but, taking it most strongly against the pleader, it must be deemed that the erection was a public schoolhouse, used by the city for public educational purposes. It is averred that Figh & Williams were indebted to Dorand, and that the mayor and aldermen were indebted to Figh & Williams in a given large sum....