Robinson v. Crotwell Bros. Lumber Co.

• Decision Date: 02 June 1910
• Citation: 52 So. 733,167 Ala. 566
• Parties: ROBINSON ET AL. v. CROTWELL BROS. LUMBER CO.
• Court: Alabama Supreme Court

52 So. 733

167 Ala. 566

ROBINSON ET AL. v. CROTWELL BROS. LUMBER CO.

Supreme Court of Alabama

June 2, 1910

Appeal from Bessemer City Court; William Jackson, Judge.

Bill by the Crotwell Bros. Lumber Company against Tom F. Robinson and others to foreclose a materialman's lien. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Trotter & Odell, for appellants.

Pinkney Scott, for appellee.

SIMPSON J.

The bill in this case was filed by the appellee to enforce a materialman's lien on a building owned by said respondent Robinson, which had been erected by Fred. Jay, contractor. The assignments of error relate to the action of the court in overruling the demurrer to the original bill.

The first insistence is that the bill does not allege, nor do the exhibits show, that the materials furnished were used in the building described. The third section of the amended bill alleges that the material was furnished for the building. This court has said that: "In actions by which it is sought to declare and enforce the lien given by statute to mechanics, materialmen, and the like, every fact necessary to the creation of the lien must be alleged and proved. This is the general rule of pleading which is applied with much strictness to this class of actions." Cook v. Rome Brick Co., 98 Ala. 409, 413, 12 So. 918, 919. We have also held that the lien does not attach to material furnished for the building not used in it, but left lying on the premises after the completion of the building. Lee v King, 99 Ala. 246, 13 So. 506; Porter & Blair Hardware Co. v. Lee et al., 105 Ala. 361, 368, 17 So 216. This court also said: "We do not declare as a universal proposition that the burden is on the materialman to show that the goods were used in the construction of the particular building; but, where the contractor stipulates to furnish the material, and the owner of the property is not notified of the purchase, the materialman should show, with reasonable satisfaction, that the goods were used in the building." May & Thomas Hardware Co. v McConnell, 102 Ala. 577, 581, 14 So. 768. In another case where there was a contract to build two houses, this court said: "It does not appear by the statement of the claim filed in the office of the judge of probate what part of the gross amount claimed was for materials used in the building of this house. Very clearly, in principle, and upon all authority, the statement thus filed was wholly bad and inefficacious to fix a lien upon either of the lots and houses in question." Leftwich Lumber Co. et al. v. Florence, etc., Ass'n, 104 Ala. 584, 595, 596, 18 So. 48, 51.

The act of March 4, 1901 (Acts 1900-01, p. 2115), provides for the enforcement of the lien, where two or more buildings are erected under a general contract; and this court in commenting on that act said: "Prior to this statute, in order to acquire a lien, the particular goods must have been furnished for the erection of the particular building on which the lien is sought, and, to secure the benefits of the lien, it was necessary to allege and prove that each piece of material so furnished was actually used upon the particular building so designated." Cocciola et al. v Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856. In that case the bill alleged that the material was purchased for the building "and so used" (italics supplied), so that, taking the statement of the court in connection with the statute in question, we hold that this case, in connection with the others cited, is authority for the principle that "it must be alleged and proved" that the material was actually...