Sullivan Timber Co. v. Brushagel

• Decision Date: 16 June 1896
• Citation: 20 So. 498,111 Ala. 114
• Parties: SULLIVAN TIMBER CO. v. BRUSHAGEL.
• Court: Alabama Supreme Court

20 So. 498

111 Ala. 114

SULLIVAN TIMBER CO. v. BRUSHAGEL.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Mobile county.

Action by the Sullivan Timber Company against Henry Brushagel. Judgment for defendant, and plaintiff appeals. Reversed.

The appellant, the Sullivan Timber Company, brought the present action against Henry Brushagel to recover an amount alleged to be due the plaintiff for lumber and timber sold to the defendant and used by him in the erection of certain buildings and improvements upon real estate, and sought to establish a material man's lien upon the buildings and property. The complaint averred that the amount sued for was due from the defendant "by account verified by affidavit." There was attached, as Exhibit A, to the complaint, a statement filed by the plaintiff in the office of the probate judge under the provisions of the statute for the establishment and enforcement of a material man's lien, and the property upon which the lien was sought to be fixed was described in detail therein. This statement was accompanied by the affidavit of John W. Black, president of the plaintiff corporation, in which he deposed that the facts alleged therein were true. To this exhibit there was attached an itemized statement of the lumber sold by the plaintiff to the defendant. There was indorsed on the summons and complaint the following statement: "The account sued upon is verified by affidavit." The defendant pleaded the general issue, and the following special plea: "(2) That, before purchasing the lumber constituting the account sued on, the plaintiff and defendant agreed that defendant was to procure the promissory notes of a third person for the amount of lumber desired to purchase, and indorse them to plaintiff, and that plaintiff would let them have the lumber therefor; that defendant did procure said notes and indorse them to plaintiff, and defendant then ordered said lumber and received the same; and that, except the lumber so obtained defendant did not purchase any lumber of defendant." On the trial of the cause, as is shown by the bill of exceptions, John W. Black, the president of the plaintiff corporation, was introduced as a witness, and testified that the plaintiff furnished the defendant with lumber at his request. Thereupon the witness was asked to look at the account attached to the statement for the establishment of the material man's lien, annexed to the complaint in this cause as Exhibit A, and see if the corporation furnished the lumber therein described. The witness testified that he had a copy of the account, but that he did not make the original entry on the books, and did not, in fact, deliver the lumber but had the clerks to do so, and that the account attached to Exhibit A is copied from the original order, and was a true copy of what the plaintiff sold to the defendant. The witness then testified to the defendant coming into the office of the plaintiff with a memorandum of the lumber he wished to purchase, of which the statement attached to Exhibit A was a copy, and wanted to know what such lumber cost, and, upon being told what would be the cost thereof, he asked to purchase it on time, which the plaintiff refused, and that the plaintiff afterwards accepted three notes made by R Moore & Co., payable to the defendant, and indorsed by the defendant to the plaintiff, each being made for one-third of the amount the defendant was told the lumber would cost. This witness further testified that he did not compare the account attached to Exhibit A with the memorandum or order the defendant left him; that the original from which the account attached to the statement for the material man's lien was made was taken from the books, and the account as contained in the books was a copy of the original order delivered by the defendant, and was entered therein by the bookkeeper. The defendant moved the court to exclude the testimony of the witness Black, as to the correctness of any portion of the account, on the grounds that his testimony shows he did not know anything about it, and because there was no itemized account filed in this cause, which could be denied under a sworn plea;...