Williams v. Gallyon

• Decision Date: 18 June 1895
• Parties: WILLIAMS ET AL. v. GALLYON ET AL.
• Court: Alabama Supreme Court

18 So. 162

107 Ala. 439

WILLIAMS ET AL. v. GALLYON ET AL.

Supreme Court of Alabama

June 18, 1895

Appeal from district court, Colbert county; W. P. Chitwood, Judge.

Action by John R. Williams and others against J. A. Gallyon and another and Memphis & Charleston Railroad Company to enforce a material man's lien. Defendants had judgment, and plaintiffs appeal. Affirmed.

J. B Moore, for appellants.

Thos G. Jones and Jackson & Sawtell, for appellees.

COLEMAN J.

The appellants instituted proceedings to recover a judgment against Gallyon & Son, and to enforce a material man's lien for slating furnished to roof certain property described in the complaint, belonging to the Memphis & Charleston Railroad Company. No others are parties defendant to the suit. The case was tried by the court without a jury, and judgment rendered for the defendants. We will first consider the liability of Gallyon &amp Son to the plaintiffs. It appears from the evidence that Gallyon & Son contracted with the railroad company "to put up the building"; that the railroad company contracted with the cornice company to furnish "the slate necessary to cover the shops and houses," and that the cornice company, through J. C. Banks, its manager contracted with the plaintiffs, who owned a slate quarry in Virginia, to furnish the slate for roofing. Under this arrangement the slate was furnished during the year 1890. On the 19th of January, 1891, J. C. Banks, as manager of the cornice company, "drew an order payable to plaintiff on J. A. Gallyon & Son, contractors, for the sum of $2,654.94." The bill of exceptions states that this order was given "in payment of the balance for said slate roofing." The order was sent to one E. J. Davis at Knoxville, Tenn., where Gallyon & Son resided, "to be presented for acceptance or payment, or refusal to pay." The liability of Gallyon & son, if such exists, grew out of their agreement and conduct with reference to this order, when presented by Davis, as the agent of plaintiffs, for acceptance or payment, or refusal to pay. The order itself is not copied in the record, and we are left to determine its character and legal effect from parol evidence admitted without objection. Davis testifies that "he took the order to the office of Gallyon & Son; that Gallyon said he did not owe Banks that amount of money at that time; he thought he did owe him between five and six hundred dollars. He took the order and put it in his safe, and has never returned it; said he did not think he owed more than five or six hundred dollars; said he would pay it when the money was due to Banks; told his son not to pay Banks any more money." There is no evidence to show that Gallyon & Son were ever requested to return the order to Davis or to plaintiffs, or that it was retained against their consent. The foregoing statement is substantially the testimony of Davis. J. A. Gallyon testified that his contract to furnish the roofing was with J. C. Banks, manager of the cornice works; that he did not know Williams & Co. in the transaction; that about the 5th or 7th of February, 1891, he received from J. C. Banks, as manager, through E. J. Davis, an order in favor of Williams & Co. in the following words: "Chatt., Tenn., Jany. 19th, 18...