Womack v. Myrick Lumber Co.

• Decision Date: 15 November 1917
• Docket Number: 7 Div. 901
• Citation: Womack v. Myrick Lumber Co., 200 Ala. 591, 76 So. 949 (Ala. 1917)
• Parties: WOMACK v. MYRICK LUMBER CO.
• Court: Alabama Supreme Court

76 So. 949

200 Ala. 591

WOMACK v. MYRICK LUMBER CO.

7 Div. 901

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, Etowah County; John H. Disque, Judge.

Action by the Myrick Lumber Company against Kate A. Womack and others. From a judgment for plaintiff, the named defendant appeals. Transferred from Court of Appeals under section 6 p. 449, Acts 1911. Judgment reversed, and judgment rendered discharging the named defendant.

J.S Franklin, of Alabama City, for appellant.

O.B Roper, of Gadsden, for appellee.

McCLELLAN J.

This action to enforce a materialman's lien (Code, § 4765) was instituted by appellee against R.J. and K.A. Womack. R.A. Mitchell, who was also joined as a defendant, was, on plaintiff's motion, stricken out as a party defendant. The single count on which the submission to the court (without jury) was had was introduced by amendment after demurrer sustained to the original complaint. No demurrer to the count thus introduced appears to have been filed. So the sufficiency of the count is not considered.

The plaintiff was permitted to show by G.H. Myrick that the account for the materials used in improving two dwellings on two lots belonging to Mrs. Womack was stated on the books of the plaintiff against the husband, "R.J. Womack, agent." The objections to questions apt to elicit the matter indicated were general (Johnston v. Johnston, 174 Ala. 220, 224, 225, 57 So. 450); and, since the subjects they concerned were relevant to the issues involved, the court cannot be said to have erred in overruling the general objections interposed, nor in overruling motions to exclude on the same general grounds. Books of account, when properly supported by suppletory oath, are usually the best evidence of their contents (Code, § 4003; 2 Ency.Ev.p. 629); but there was no objection leading to the application of this rule to the inquiry as to whom the materials were "charged" on the books of the plaintiff.

In order to sustain the plaintiff's right to effect and have adjudicated and enforced a materialman's lien upon the lots described in the complaint, it was essential to show that either the husband, R.J. Womack, acted authoritatively for and as agent of the owner, K.A. Womack, in the premises or that, being fully advised of the facts, she, the owner, ratified the acts of R.J. Womack in the premises. Wadsworth v. Hodge, 88 Ala. 500, 506, 7 So. 194; Wilson v. Andalusia Mfg. Co., ...