Richardson Lumber Co. v. Howell

• Decision Date: 09 May 1929
• Docket Number: 8 Div. 62.
• Citation: Richardson Lumber Co. v. Howell, 219 Ala. 328, 122 So. 343 (Ala. 1929)
• Parties: RICHARDSON LUMBER CO. v. HOWELL ET AL.
• Court: Alabama Supreme Court

122 So. 343

219 Ala. 328

RICHARDSON LUMBER CO. v. HOWELL ET AL.

8 Div. 62.

Supreme Court of Alabama

May 9, 1929

Appeal from Circuit Court, Colbert County; Charles P. Almon, Judge.

Bill in equity to enforce materialman's lien by the Richardson Lumber Company against Alfred L. Howell and Calvin T. Graves partners under the name and style of Howell & Graves, and A L. Ward and C. L. Titus, partners under the name and style of Ward & Titus. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded.

Kirk &amp Rather, of Tuscumbia, for appellant.

Mitchell & Hughston, of Florence, for appellees.

THOMAS J.

There is equity in the bill in the effort to enforce the materialman's lien on several houses and lots, the subject of one contract. There is averred the required unity of contract to furnish the material for the erection of the several houses of respondents on their lands, and the satisfaction sought is out of the alleged unpaid balance due by the owners when they received the required notices. In Wade v. Wyker, 171 Ala. 466, 55 So. 141, the effort was to subject an unpaid balance due by the owner to the contractor, as was the purpose of this suit, and it is there observed that such a bill afforded "interlacing of rights, and consequently remedy, as to necessitate the joinder of the separate liens in one bill for their enforcement." College Court Realty Co. v. J. C. Letcher Lumber Co., 201 Ala. 362, 78 So. 218.

However, the claims filed in the probate office in Code form (section 8832) were collectively, under the one contract for the buildings and material furnished and employed therein, and against each house and lot to meet the requirements of the proof as to the several lots. College Court Realty Co. v. J. C. Letcher Lumber Co., supra; Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918; Johnson v. Simmons et al., 123 Ala. 564, 26 So. 650; Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276.

The decree of the court would necessarily conform to the rulings here that only material that went into a particular house was charged as a lien thereon, and that only the specific balance due to contractors by the owner on a designated and separate structure could be thus intercepted and subjected. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

The fact of the contract is averred; this is sufficient under the statute made for the protection of laborers, contractors, and materialmen not immediate parties to the original contract.

When the bill and its pleading are considered together as one, and as must be done, full compliance with the statute is shown as to the amounts, lots, and notices given. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

Though the date of filing of the statements is not shown by the exhibits, this is supplied by the specific averment in complainant's bill that they were filed in the probate office within "four months after the indebtedness (had) accrued." It is not possible to make the allegation more definite.

The averment in perfecting the lien states the contract under which the alleged materials were procured and furnished, the just and true account of the demand secured by the lien after all just credits are given, describes the property as required, states the amount that has accrued, due and unpaid, and is a sufficient statement of the claim and a substantial compliance with the statute. The defendants had the right, when sued, to demand a list of the items composing the sum sought to be collected, and were thereby protected from surprise when the proof was offered as to the respective houses, lots, and materials furnished for the improvements thereon. Greene v. Robinson, 110 Ala. 503, 20 So. 65; Ala. State Fair & Agricultural Ass'n v. Alabama Gas Fix. & Plumb. Co., 131 Ala. 262, 31 So. 26; Ala. & Ga. Lumber Co. v. Tisdale, 139 Ala. 256, 36 So. 618. This was sufficient, after due notice, to subject any unpaid balance due the contractor or to become due under the contract in the hands of the owner or proprietor that is "subject to such lien" under the contract and statute. Dothan Groc. Co. v. H. L. Wofford & Son, 200 Ala. 490, 76 So. 432; Cranford Mercantile Co. v. Wells, 195 Ala. 251, 254, 70 So. 666; McDonald Stone Co. v. Stern & Marx, 142 Ala. 506, 38 So. 643.

There is no merit in the grounds of demurrer for nonjoinder of parties. It does not appear from the record that the contractor executed a bond for the faithful performance of the contract, nor is it shown that there were other creditors of Howell & Graves who had given notice or perfected their claims or liens upon the property in question, or any part thereof. If such claims and security were given, by due pleading and process they may be brought in and liability, priorities, or proration of the fund duly declared and safeguarded in the one decree to be rendered. Sturdavant v. First Avenue Coal, etc., Co. (Ala. Sup.) 122 So. 178.

The ground of demurrer that the description of the lots by numbers and plats is insufficient is not borne out by inspection of the record. The description employed is sufficient to enable a person familiar with the locality to identify the property, though the aid of the map may be resorted to and to which recourse may be had under the pleading. Hughes v. Torgerson, 96 Ala. 346, 11 So. 209, 16 L. R. A. 600, 38 Am. St. Rep. 105; Bedsole v. Peters, 79 Ala. 133, 136; Vesuvius Lumber Co. v. Ala. Fidelity, etc., Co., 203 Ala. 93, 82 So. 107.

The ground of demurrer-"It does not appear as a matter of law that complainant has or can have any lien on the lots in question"-presents the construction of the two statutes, sections 8832, 8840. A cardinal rule of statutory construction or interpretation is to arrive at the legislative intent and in this effort look to the object of the enactment against which it was intended to provide, the defect to be supplied, and the mischief thus sought to be prevented, averted, or ameliorated. Cocciola v. Wood-Dickerson Sup. Co., 136 Ala. 532, 33 So. 856; Thompson v. State, 20 Ala. 54; Huffman v. State, 29 Ala. 40, 43.

Did section 8840 of the Code, providing that "every person except the original contractor, who may wish to avail himself of the provisions of this article, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. But the provisions of this section shall not apply to the case...