Wahouma Drug Co. v. Kirkpatrick Sand & Cement Co.

• Decision Date: 14 May 1914
• Docket Number: 714
• Citation: 65 So. 825,187 Ala. 318
• Parties: WAHOUMA DRUG CO. et al. v. KIRKPATRICK SAND & CEMENT CO.
• Court: Alabama Supreme Court

65 So. 825

187 Ala. 318

WAHOUMA DRUG CO. et al. v. KIRKPATRICK SAND & CEMENT CO.

No. 714

Supreme Court of Alabama

May 14, 1914

Rehearing Denied June 24, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Action by the Kirkpatrick Sand & Cement Company against the Wahouma Drug Company and others. From a decree granting relief certain of the defendants appeal. Affirmed.

Burgin Jenkins & Brown, of Birmingham, for appellants.

Thomas J. Wingfield and Jos. E. Robinson, both of Birmingham, for appellee.

McCLELLAN J.

This bill was filed by the appellee (a corporation) against the appellants and I.J. Smith and W.T. Hayden. It seeks the establishment and enforcement of a lien for building material furnished by the appellee to the appellants for the construction of a business house on the lot described in the bill. The chancellor's decree was in favor of I.J. Smith and W.T. Hayden, but established the lien prayed as against these appellants. Hayden's relation was tat of mortgagee. He had made a loan to appellants; and the decree made the lien of the appellee subordinate to the charge of the mortgage to Hayden.

The demurrer of respondents, which was overruled, took this objection to the bill: That in perfecting the lien sought to be established and enforced the appellee did not give the owners of the lot the notice required by the Code, § 4762, to be given by all persons, except original contractors desiring to perfect such a lien. This criticism of the bill raised the question whether the terms and legal effect of the agreement expressed in the letter to be quoted--a proposal that was accepted by the appellee--constituted the appellee an original contractor within the exceptions made in Code, § 4762. If so, the notice therein required to be given by all persons other than original contractors was not required of appellee. The letter set out in the bill, was addressed to the appellee. It reads:

"Please deliver to Mr. J.L. Morris what material he may need in the way of brick, sand, lime, cement, plaster, laths etc., to go in our building at Woodlawn, Ala. We own this property and will see that you get your money for what material is delivered. In other words, this material is to be charged to our company, the bills to be O.K.'d by Mr. Morris, and we will see that same are paid as per agreement."

It is clear from the terms of the agreement, made upon the basis and faith of the letter, that the credit for the materials of the character referred to in the letter was extended to the proprietors. Where the credit for materials furnished is extended to the owner or proprietor, he becoming the original debtor, as here, the lien of the party furnishing the materials used in the improvement can be enforced for the entire debt--not simply for an unpaid balance due a contractor. Trammel...