Selma Sash, Door & Blind Factory v. Stoddard

• Decision Date: 23 June 1897
• Citation: 22 So. 555,116 Ala. 251
• Court: Alabama Supreme Court
• Parties: SELMA SASH, DOOR & BLIND FACTORY v. STODDARD ET AL.

22 So. 555

116 Ala. 251

SELMA SASH, DOOR & BLIND FACTORY v. STODDARD ET AL.

Supreme Court of Alabama

June 23, 1897

Appeal from city court of Selma; J.W. Mabry, Judge.

Action by Selma Sash, Door & Blind Factory against Cora L. Stoddard and others to establish a mechanic's lien. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. E Jeffries, for appellant.

Pitts Pitts & Saffold, for appellees.

COLEMAN J.

The appellant filed its bill to enforce a lien for materials furnished and used in the construction of a dwelling house for Cora L. Stoddard. The substantial averments show that respondent Stoddard contracted with respondent Norris for the erection and completion by the latter of a dwelling house for the former for the express sum of $2,348, the completion of the building by the said Norris according to contract, and the payment to him by the said Stoddard of all the money agreed to be paid, except a balance of $72. The bill avers that complainant furnished to Norris materials which were used in the erection and completion of the building, and that there remained a balance due for materials thus furnished amounting to $300. The bill avers that complainant furnished to respondent Stoddard an itemized statement of the account for materials within 30 days after the completion of the building. The bill does not show that Stoddard had any notice of complainant's claim before all the payments were made by her to Norris. The bill prays for the establishment of a lien for materials, and the subjection of the property to sale, etc. The bill shows that complainant is a subcontractor, and it is obvious that relief is not sought under the general law of Code 1886, §§ 3018, 3022, 3026 declaring a lien for materials furnished. We have no doubt the bill was filed under a special act for Dallas county. Acts 1859-60, p. 514. The demurrer to the bill raises the question of the constitutionality of said enactment. The act declares a prior lien in favor of a subcontractor to the extent of his claim, not exceeding the entire amount agreed to be paid the original contractor or "master builder," merely upon the presentation of his claim to the owner of the premises within 30 days after the completion of the building, without regard to the terms of the original contract for the construction of the building, and whether notice of his claim has been given by the material man or not. There is no provision in the act which requires notice in fact or constructively to be given to the owner. It matters not what the terms for the construction of the building may be, nor how much may have been previously paid in good faith on the contract to the original contractor, nor as to the balance that may be due the contractor, nor that the owner has had no notice or knowledge of the claim for materials furnished, or the claim of some subcontractor. According to the provisions of the act, if the claim for materials or that of a subcontractor is presented to the owner within 30 days after the completion of the building and suit brought within 9 months this is sufficient to give a lien for the entire claim, provided it does not exceed the whole amount agreed to be paid for the construction and completion of the building. In Randolph v. Painters' Supply Co., 106 Ala. 501, 17 So. 721, in considering the sixth section of the mechanics and material men statute (Acts 1890-91, p. 580), we used the following language: "The sixth section of the act provides: 'That the fact the person performing labor or furnishing materials was not notified in writing not to perform such labor or furnish such materials by the person in whom the title was vested, at the time such labor was performed or materials furnished, shall be prima facie evidence that it was by and with the consent of the owner that such labor was performed and materials furnished.' This is a...