Thornton v. Vines

• Citation: 106 So. 42,213 Ala. 646
• Decision Date: 29 October 1925
• Docket Number: 6 Div. 381
• Parties: THORNTON et ux. v. VINES.
• Court: Supreme Court of Alabama

106 So. 42

213 Ala. 646

THORNTON et ux. v. VINES.

6 Div. 381

Supreme Court of Alabama

October 29, 1925

Appeal from Circuit Court, Jefferson County; J.E. Bowron, Special Judge.

Action by L.R. Vines, doing business as the Ensley Lumber Company against Will Thornton and Callie Thornton. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

M.L Ward, Oliver Henderson, and Harsh, Harsh & Harsh, all of Birmingham, for appellants.

J.Q Smith and B.F. Smith, both of Birmingham, for appellee.

SOMERVILLE J.

Under the first four counts of the complaint it was necessary for plaintiff to show to the reasonable satisfaction of the jury that the building materials used in the construction of defendants' houses were sold directly to them so that they became personally liable for the purchase price, or else that for a valuable consideration they assumed its payment as a primary obligation of their own, not merely as equitable garnishees of a debt due primarily from the contractor alone.

When the materialman, before he furnishes materials to the contractor, notifies the owner of his intention so to do, the failure of the owner to object thereto, and to notify the materialman in writing that he will not be responsible for the price, gives to the materialman a lien for the full price of the materials furnished as specified in the notice. Code 1923, § 8832 (Code 1907, § 2723). But it very clearly does not make the owner personally liable as the primary purchaser of the materials.

Under the fifth count plaintiff could not recover unless he proved its material allegations, among others: (1) That he "was solicited by defendants and defendants' said agent, G.W. Pearson, for the purchase of building material"; (2) that "plaintiff did agree to sell defendants certain building materials on the assurance from defendants that the purchase price for same would be paid to the plaintiff"; (3) that prior to the delivery of the material plaintiff notified the defendants in writing that "he would look to them for the payment of the purchase price"; and (4) that "defendants acknowledged same, and again agreed to assume payment of the purchase price of all material delivered defendants on the above-described property."

We have examined the testimony of all the witnesses, and also examined the documentary evidence, with the most critical care, and we are convinced beyond a reasonable doubt that the building materials were sold to G.W. Pearson, the contractor, and not to these defendants; that Pearson was the primary debtor, and that these defendants became liable, and were intended to be made and held liable, only as the owners of the property, by virtue of the lien given to plaintiff by the statute, and the notice given to them by plaintiff as owners of the property and not as purchasers of the materials. Indeed, it is doubtful if there is anything in the evidence to contradict this conclusion, and the notice given defendants by plaintiff is in itself morally conclusive of the relations of the three parties concerned--the owners, the contractor, and the materialman. If plaintiff sold the materials to defendants, why notify them as owners of the land that he was delivering them to George Pearson, contractor? Obviously, for the purpose of enlarging his lien on the property so as to cover the full price of the materials furnished instead of merely any unpaid balance due the contractor.

McWilliams the principal witness for plaintiff, testified, as did plaintiff himself, that def...