Wood Lumber Co. v. Greathouse

• Citation: 226 Ala. 644,148 So. 125
• Decision Date: 30 March 1933
• Docket Number: 6 Div. 128.
• Parties: WOOD LUMBER CO. v. GREATHOUSE et al.
• Court: Alabama Supreme Court

148 So. 125

226 Ala. 644

WOOD LUMBER CO. v. GREATHOUSE et al.

6 Div. 128.

Supreme Court of Alabama

March 30, 1933

Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by the Wood Lumber Company against J. O. Greathouse and others to enforce a materialman's lien. From a decree dismissing the bill, complainant appeals.

Reversed and remanded.

London Yancey & Brower, J. K. Jackson, and Al. G. Rives, all of Birmingham, for appellant.

B. F Smith, of Birmingham, for appellees.

THOMAS Justice.

This bill was against J. O. Greathouse, J. I. Harden, and C.J Donald to enforce a materialman's lien against land and the improvements thereon.

It is alleged that the materials were furnished to Greathouse and used in making the improvements on the land; that a verified statement of the lien was duly filed; and that complainant "has been informed and believes that respondents, J. I. Harden and C.J. Donald claim to be the owners of some right, title or interest in the property described in paragraph three of this bill of complaint."

The prayer was to make J. O. Greathouse, J. I. Harden, and C.J. Donald parties respondent, and prays that they each be required to plead, etc., and that upon final hearing it be decreed "that * * * complainant may have a judgment against the respondent, J. O. Greathouse, for the amount of said indebtedness, and interest thereon, and that in the event the respondents, J. I. Harden and C.J. Donald have any interest in, or lien or encumbrance upon the property referred to in paragraph three of this bill of complaint, your Honor will settle the priorities of equities as between complainant and respondents, J. I. Harden and C.J. Donald, and that your Honor will order a sale of said land and the improvements thereon in satisfaction of complainant's lien if the said claim is not fully paid and discharged within such time as may be fixed by your Honor."

The answer of Harden and Donald was that they entered into a lease sale contract with Greathouse; that he failed to comply therewith, was never in possession of the property, and owned no interest therein by virtue of said lease sale contract, or by any other instrument or contract, oral or written at the time the bill was filed; that Greathouse abandoned said contract soon after it was entered into; that they, as lessors and owners, had to take charge and complete the same.

Respondents Harden and Donald further plead and answer as follows:

"J. I. Harden and C.J. Donald further state in answer to said paragraph four of the bill of complaint, that they nor their agents or any person authorized to represent them, ever solicited complainant for building material of any character or description, to be wrought into a building located on the property described in the bill of complaint. That they never at any time had any contract, either oral or written, with complainant to furnish said respondents or J. O. Greathouse, or any other person, lumber or building material of any character to be wrought into a building or improvements located on the property described in paragraph three of the complaint. That said respondents, J. I. Harden and C.J. Donald never received notice in writing or orally from complainant or any one representing complainant, advising said respondents that complainant was about to furnish the said J. O. Greathouse or any other person, building material of any character to be wrought into improvements on the premises described in paragraph three of the bill of complaint. That said respondents did not know and were not advised either by complainant or respondent J. O. Greathouse, or any other person or persons, that complainant was or had furnished building material to be wrought into improvements on said premises, until the filing of the bill of complaint in this cause; that said respondents never at any time before the filing of this bill of complaint or since, acknowledged indebtedness to complainant for the matters and things set out in its bill of complaint, nor have said respondents agreed to become responsible or pay said complainant for property alleged to have been furnished the said J. O. Greathouse as stated in paragraph four of the complaint.

"* * * That the said J. O. Greathouse or someone acting for him, did soon after the execution of the lease sale contract above referred to, commence the construction of a residence or building on said Lot Twenty-five (25), Block Four (4), Steiner's Addition, but that said building was soon abandoned, and that the lease sale contract entered into between the parties above referred to, was also abandoned thereafter. That during the period the work on said premises above referred to was in progress, a large quantity of material was placed on said premises by parties unknown to respondents, and that soon thereafter, before said material was wrought into improvements on said premises, it was moved or hauled away either by the said J. O. Greathouse or by the parties selling or furnishing the said material, and that but little of it was wrought into the building commenced as above described.

"* * * That after the said J. O. Greathouse abandoned his contract with respondents, J. I. Harden and C.J. Donald and after abandoning the building commenced on the premises above described, respondents took over the property, as they had a right to do under their contract, the terms of which not having been complied with by the said Greathouse, and the said Greathouse having abandoned said contract, said respondents completed the building commenced on said premises, paying for the lumber and material necessary to complete said building."

The lien sworn to and filed on April 20, 1929, named as owner and proprietor of the property, "J. O. Greathouse, and/or J. I. Harden and C.J. Donald"; the lien claimed was of and from January 21, 1929, "for supplies sold to J. O. Greathouse and * * * used * * * in the construction and erection of a building on the property described," amounting to $968.16, and was claimed as to "both the buildings and improvements thereon and the said land."

Recent cases are collected in Richardson Lumber Co. v. Howell, 219 Ala. 328, 122 So. 343; Schwab v. Estes Lumber Co., 225 Ala. 452, 143 So. 829; Byrum Hardware Co. v. Jenkins Building Supply Co. (Ala. Sup.) 147 So. 411,

and authorities cited.

Mr. Wood testified for his corporation that he was its official with knowledge of the facts; that his company furnished to Greathouse a quantity of the material for this and two or more other houses; that construction originally started on three other lots on 41st street and then moved to three other lots, namely 5, 25, and 26, located in Belview Heights; that is, there were "three lots to start with," and, because of a mistake here immaterial, they moved the construction and some of the accumulated material to the lot described in the bill (lot 25) and lots 5 and 26; that his corporation moved as much of the material as they were told by Greathouse to move, and such material "that was not already fabricated"; that the house being erected on lot 25 of said map or subdivision was a "brick veneer"; that he did not furnish all the brick that went into that house; that he did not know whether his company furnished them all or not, but it furnished quite a few; it furnished more than enough to build the house. Witness was further asked, and answered, as follows:

"Q. On this particular house? A. I have no way of segregating what went on this particular house.

"Q. Have you invoices for the material that was furnished on all of the lots? A. Yes.

"Q. Did you have delivery tickets? A. Yes, sir.

"Q. Do you have them with you now? A. Yes.

"Q. Where are they? A. Right here (indicating).

"Q. These are the delivery tickets? A. Yes, sir."

The delivery tickets were excluded from evidence because witness did not know what went into the instant house. The contractor lessee rendered this evidence material by his more specific statement that witness said he knew "what went into the two lots"-that house.

The last invoice was of date of December 21, 1929, and due, according to the contract with Greathouse, on January 21, 1929. The plaintiff's agent as a witness did not show that specific material went into the house on the lot in question. However, the lessee, Greathouse, testified that he received its brick, flooring, angle iron, sand, slag, etc., from the complainant; that the price charged was reasonable, and that he had not paid therefor; that the amount due therefor was $968.16, and some went to the house on this lot. The cross-examination of the witness showed doubt as to which of the three houses certain of the material was used in; that it was used "in one of the three jobs * * * couldn't say which one * * * can't tell you which items went into which house"; that they furnished material to the six different lots; that the three houses erected by him on lots 5, 25, and 26 were finished about or a short time after November 20, 1928, to Greathouse.

Harden testified that no material was delivered by Wood's Company after December 12, 1928, and that he paid out the large sums necessary to complete the house, and that neither he nor Donald ever gave a deed to the house to Greathouse that he had no agreement with the Wood Lumber Company to furnish material; that they gave him no notice or bill for material, but "merely asked" witness "a time or two when we were going to have the case settled" after this suit was filed. Witness, however, stated the price of the lot was $1,750; that he and the joint owner advanced, on labor, $1,005, paid for flooring, $130; and paid material bills to the amount of $1,403.10; paid for insurance $67.12...