Roobin v. Grindle

• Decision Date: 04 April 1929
• Docket Number: 6 Div. 124.
• Citation: 219 Ala. 417,122 So. 408
• Parties: ROOBIN v. GRINDLE ET AL.
• Court: Alabama Supreme Court

122 So. 408

219 Ala. 417

ROOBIN v. GRINDLE ET AL.

6 Div. 124.

Supreme Court of Alabama

April 4, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill to establish and enforce a lien upon real estate by J. O Grindle and J. T. Branum against A. Roobin. From a decree for complainants, respondent appeals. Affirmed.

Silberman & Wurtzburger, of Birmingham, for appellant.

J. C Burton, of Birmingham, for appellees.

BROWN J.

The purpose of the bill is to enforce the statutory lien given by section 8832 of the Code of 1923 to "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," etc.

As a basis for the relief, the bill avers that complainants and respondent "entered into a contract whereby it was agreed that said complainants would build for said respondent a building on the premises known and described as 927 Conroy Road in the City of Birmingham, Alabama, to be used as a garage and servant's house, and it was further agreed that the said complainants would lay or place on said premises a concrete pavement or other pavement, and that said respondent agreed to pay them for the work and labor extended by said complainants in making said improvements on said real estate. Complainants further alleged that they have completed the said building and have laid the said pavement on the said premises, and have in every way performed their part of the contract; that one hundred and seventy dollars and twenty-three cents ($170.23) remain due and owing said complainants from said respondent for work and labor in making the improvements on said premises under said contract made with the respondent; that said amount is due complainants, after allowing all credits, offsets, and discounts due from complainants to respondent; and that this sum became due and owing to the complainants on the 14th day of August, 1925."

The respondent, by demurrer, challenged the sufficiency of these averments on the ground that the terms of the contract were not specifically stated. The demurrer being overruled, he now insists that this was error, citing in support of his contention Sloss-Sheffield Steel & Iron Co. v. Payne, 192 Ala. 69, 68 So. 359, and other authorities of like import.

It is sufficient to differentiate the cases cited from this to observe that they are special assumpsit for breach of contract, while here the complainants predicate their right to recover on the basis of a debt due for work and labor performed at defendant's instance, under circumstances which entitled them to a lien under the statute, and on the facts averred a recovery could be had on the common counts, and, when taken in connection with the averment showing a compliance with the statute in respect to filing the verified statement, were sufficient. 40 C.J. 425, § 584; Beloate v. Baker, 126 Ark. 67, 189 S.W. 354; Tisdale v. Alabama & Georgia Lumber Co., 131 Ala. 456, 31 So. 729; Christian & Craft Grocery Co. v. Kling, 121 Ala. 292, 25 So. 629.

Another contention is that the evidence fails to show that defendant was the owner of the property. This contention is fully answered by the averment of paragraph 5 of the bill, that respondent is the legal owner of the land, the building, and the improvements thereon; this averment being...