The question in controversy certified by the referee for consideration and decision by the court is whether or not the claimant, the T. J. Rossell Manufacturing Cоmpany, complied with the requirements of the statutes of Alabama necessary to give it the lien claimed by it in this case. The claim is one for priority of рayment for material furnished by claimant under a contract with the bankrupt to be used, and that was used, in the construction of a building by said bankrupt. The referee dеcided in favor of the trustee, who contested said claim, and disallowed the lien claimed, holding that the lien was not filed within four months after the debt accrued, as required by the state statute.
The important — indeed, the main — question to be determined in this case is: When did the debt, on which the lien is claimed for its prior payment, accrue? The claimant, T. J. Rossell Manufacturing Company, and J. E. Hellams (the bankrupt), who was the contractor and builder of a residence for E. M. Ladd, of Mobile, Ala., made a contract in words and. figures as 'follows, to wit:
“Mobile, Ala., Aug. 16, 1912.
“Mr. J. E. Hellams, Mobile, Ala. — Dear Sir: We will furnish all mill work for the residence of Mr. F. M. Ladd, of Mobile, Alabama, as per plans and specifications, for the sum of twenty-seven, hundred and eighteen (82,718.00) dollars f. o. b. Mobile, Ala. This estimate includes all lattice for upper and lоwer rear galleries, also sash weight and cord, but does not include comer boards or ceiling; doors in foundation six frames for basement are to be оmitted, but sash for same are to be furnished.
“.Respectfully, T. ,T. Rossell Mfg. Co.
“Byrd Enochs, Pres.
“Accepted: J. E. Hellams.”
The entire fulfillment of the promise by Rossell Manufacturing Company to furnish the material mentioned in the contract as per plans and sрecifications was a condition precedent to the implied promise by J. E. Hellams to pay the sum of $2,718 named in the contract. Whenever there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire. The contract between the parties being entire, it required the complete fulfillment of both sides — by Rossell Manufacturing Company furnishing all the material
It appears from the evidence that some parts of the material furnished by the claimant Were on two ocсasions condemned, and acceptance refused by the architect, as not being in compliance with the specifications. The condеmned material was, however, put into the building temporarily until claimant could deliver material which would be in compliance with the specifications аnd acceptable to the architect. Subsequently material in accordance with the specifications was delivered on the job, acсepted, and installed in .the building in the place of the condemned material, which had been temporarily used. The accepted material, cоnsisting of glass as being up to the specifications, was delivered under and in pursuance of the terms of the contract, to take the place of the condemned glass that was delivered prior to March 31, 1913, and there was no extra charge made, by claimant therefor.
In the case of Great Western Manufacturing Company v. Burns & Company,
“The indebtedness accrued when it came into existence as a- completed obligation owing by defendant to the plaintiff, for a debt to accrue is nothing more nor less than for it tо exist in a complete form.. * * * When the purchase of property, accompanied by delivery, occurs, the Indebtedness accrues and becomes fixed when the delivery is made.”
Rossell Manufacturing Company’s failure to deliver some part of the material, not accepted by the purchаser, Hellams, as not in compliance with the specifications of the contract, was a matter of which only said purchaser could take advаntage, and if the purchaser “elects to stand to the contract, he may do so.” He may, if he elects to, overlook the seller’s fault or failure, and the contract, as a matter of course, remains unimpaired.”
The evidence does not show that the said failure of claimant to furnish some parts оf the material which was not acceptable to the contractor was intentional, and there is no evidence that Contractor Hellams clаimed the contract with Rossell Manufacturing Company breached, or claimed any damage as arising from said alleged failure, or for the delay in delivеring the material which was accepted by the architect and contractor as being in compliance with the specifications-
When the last material was delivered and accepted, the contract was completed, and the indebtedness therein provided for accrued. Cutliff v. McAnally,
And the court further finds that on November 1, 1913, claimant, in order to fix its lien, filed a statement in thе probate court of Mobile county, containing the necessary allegations, and in form required by section 4758 of the Code of Alabama of 1907, and on November 13, 1913, claimant filed in the law and equity court of Mobile county, a court of competent jurisdiction, its original bill of complaint in equity against said owner, E. M. Eаdd, and said bankrupt contractor, J. E. Hellams, claiming the sum of $1,596.04, and seeking a materialman’s lien on said residence therefor, as required by law.
The order of thе referee denying the petition for a rehearing is affirmed, and his decree disallowing the lien claimed by Rossell Manufacturing Company is reversed and remanded, with directions to the referee to allow the lien claimed on the balance due claimant. And it is so ordered.