78 So. 217 | Ala. | 1917
Lead Opinion
Under and by virtue of a contract with the owner, or its agent, appellee furnished to appellant a certain lot of lumber to be used in the building of three houses on, it seems, separate lots in College court. The contract did not set apart any part of the lumber to the separate houses, but appellee has been able to identify, segregate, and correctly estimate the amount and value of the lumber that went into the house on lot 14, and in the trial court had judgment for the value thereof and a lien for the same declared upon lot 14 and the building thereon.
Appellant insists, on several grounds, that appellee was not entitled to the lien. Of the first of these, viz. that the lumber did not go into the building on which the lien was declared, we need not repeat the conclusion, already stated, that appellee has been able to establish the fact that the lumber for which it has been awarded a lien did go into the building on the lot on which, also, the lien is laid.
In the next place it is insisted that the lumber was not furnished for the particular building or lot on which the lien has been decreed. We have made a summary statement of the facts, and we think on the facts so stated and under our statute appellee was entitled to its lien. "The whole theory of the statute is to give the materialman a preferred claim on a lot of land, for the amount which he has contributed in improving that particular land, or the building situated thereon." Eufaula Water Co. v. Addyston Pipe Steel Co.,
Finally, appellant contends that the claim of a lien was not filed in the office of the judge of probate within 6 months after the indebtedness accrued, as required by the statute. Section 4758 of the Code provides that:
"It shall be the duty of every original contractor within six months * * * after the indebtedness has accrued to file," etc.
Shorter times are provided for journeymen and others. That appellee was an original contractor within the meaning of the section is not denied. The materials were furnished to be paid for in 60 days, and the claim of lien was filed within 6 months after the expiration of the 60 days. It is true that, where there has been no agreement or mutual understanding to the contrary, the indebtedness becomes due and payable, accrues, on the delivery of the last item of the material furnished. Where, however, the materials are to be paid for at 60 days, the indebtedness accrues at the end of 60 days, and not sooner. The question hardly requires argument, but we note that in Cutcliff v. McAnally,
"The word 'accrued' is evidently used in the sense of having come to maturity, so as to be due and payable."
There is nothing in the statute which forbids the right to contract for a due date or imposes upon such a contract the penalty of forfeiture of the lien. The court recognized this in Garrison v. Hawkins Lumber Co.,
"The last item on the account filed is June 10, 1893, which, in the absence of anything else showing that it matured by agreement at a different date, may be treated as the date of the indebtedness sought to be secured by lien."
We are not concerned about the wisdom of the statute in every of its particular provisions. We deal with it as we find it, and, so dealing, we hold that appellee's claim was filed within 6 months from the date on which it accrued. We may note, however, that while the statute in its present shape provides that a suit for the enforcement of a lien under it must be commenced within 6 months after the maturity of the entire indebtedness thereby secured, that does not affect the quoted requirement of section 4758, nor does it affect the question raised on the pleading in this case.
We have thus considered the objections taken against the judgment without finding error. It results that the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS, J., concur. McCLELLAN, J., concurs in the conclusion.
Addendum
Application overruled. All the Justices concur, except McCLELLAN, J., who dissents.