-This bill was filed by appellee, and seeks to establish and enforce a lien upon the church building of appellant, an unincorporated religious society, for material furnished in its improvement. The church authorities insisted that no contract of purchase was made by them with the complainant, but that the contract for the improvements was made with one Blackburn, a contractor, who was to do the entire work and furnish the material for a stated sum. The cause was submitted for final decree in the court below upon the depositions taken, resulting in a decree in favor of the complainant, from which defendants prosecute this appeal.
“The statute of force when the present contract was made obviously contemplated the lien should exist only where there was an express, as distinguished from an implied, contract under which the work was done, or the materials furnished. It is a lien, for the price agreed upon, or compensation to be paid, the statute declared.”
So far as we are advised, no change has been wrought in this respect as to this rule, either by statute or decision. The foregoing authority has found frequent citation in the subsequent decisions. First Ave. C. & L.
*443
Co. v. McWilson,
Up to that time we do not see that it could be seriously contended that the church had contracted any debt with the lumber company for the materials furnished, even in the light of the testimony of the complainant’s manager, who stated that after the first estimate was made he saw the pastor, who told him “it would be all right, and they would see that it was paid,” for it is not pretended that such a declaration, even by the pastor, could bind the association. When the walls had been condemned, and the work stopped, there was, according to the evidence for the complainant, the sum of $170.87 due for material theretofore furnished. This amount, therefore, we conclude was unquestionably due by the contractor to the complainant, and not by the church, as no contract of purchase had been made.
Some arrangement had to be made for the completion of the work, which required of course the outlay of an additional sum, and on February 29, 1916, the contractor together with the church board members met in the complainant’s office, and, as testified by the complainant’s manager, drew up a contract referred to as supplemental to the original contract entered into between the church and the contractor. No doubt there were some estimates made as to the completion of the building under the changed condition. This supplemental contract was drawn by complainant’s manager, and signed by the contractor and the church authorities. It provided for the payment of $595, stipulating particularly as to what was to be done by the contractor. The above-named sum included the $170.87 for material theretofore furnished. The church authorities, by this contract, agreed “to pay the contractor and W. D. AVood Lumber Company the sum of $595 as follows, $85 to be paid the contractor March 3d, the balance to be paid him when job is completed in one cheek made to the W. D. AVood Lumber Company and John Blackburn and to be paid at the Alabama Penny Bank after check has been indorsed by both parties.” On this second estimate of the iriaterial furnished, referred to as Exhibit B in the testimony, the complainant’s manager had noted thereon that “the balance on the church account, $170.87, was to be paid out of check when church completed,” and was placed there, so he stated, -“merely as a memorandum for his personal use as to when he should expect payment of the balance.” The $85 cash payment under this contract [supplemental] was paid by the church to the contractor; but he worked under this contract only a short time — -just a week, according to his testimony. He then went to com-' plainant to get an additional sum released, that he might carry on the work; but he states that complainant refused, insisting that the check was to be made jointly when the job was completed. The contractor insists that the agreement as to- this joint check was made at the suggestion of complainant’s manager and for its protection; not being able to get further funds released he (contractor) had to abandon the contract, and the church authorities engaged the services of another contractor, one Hudson, to complete the work for $550.
The evidence for the complainant is to some degree reconcilable with that of respondents, wherein the complainant insists that these officers had stated that they “would see that the material was paid for,” in that the supplemental contract stipulated ■for the payment of the agreed sum by check *444 made payable to the contractor and the lumber company jointly; but, of course, aceording to its terms, this sum was only to be paid upon the completion of the work. As previously stated, under the first contract we do not think it could be seriously contended that the church could be held the purchaser of the material furnished therein, and after a most careful study of the evidence the conclusion has been reached that the supplemental contract was but a continuation of the first, and worked no change in this respect. Numerous witnesses for the respondents support the theory that the contractor was to furnish the material under both contracts, and that the church entered into no contract of purchase with the complainant. We think all the circumstances support this theory. The church authorities, it appears throughout, were making every effort to make one complete contract, what is termed “a lock and key job.” The first contract clearly so provided, and the supplemental agreement likewise named a definite sum for completion of the building. But under complainant’s contention the church might have become responsible for material furnished thereunder largely in excess of the stipulated sum, and thus have defeated their manifest purpose.
We are of the opinion the decree was erroneous, and that complainant has failed to establish a valid contract for the purchase ot the material by respondents. The decree wiil be reversed, and one here rendered, dismissing the bill.
Reversed and rendered.