71 So. 413 | Ala. | 1916
By this bill the complainant (appellant here) seeks a foreclosure of materialman’s lien upon a certain lot and a four-stock brick structure thereon, known as the “Manhattan Hotel,” situated' in Birmingham, Ala., and which is the property of the respondent to the bill.' The bill shows that during a series of month's in the years 1913-14 the complainant as the original contractor furnished to the defendant plumbing and heating materials used in the construction of said building, the last item being furnished on March 30, 1914, and that the balance of the account and the entire indebtedness accrued on April 1, 1914. The filing of the affidavit and claim of lien in the probate office of Jefferson county is shown to have been done on May 16, 1914. The answer contains a general denial of all the allegations of the bill and also special pleas of the statute of 'limitations.
Such is, also, the holding of the Supreme Court of Missouri, under a statute very similar to ours, the decisions of which court find frequent reference in our cases upon this subject. In Grace v. Nesbitt, 109 Mo. 9, 18 S. W. 1118, speaking to this subject it was said: “There is no provision of the statute requiring a-separate account to be filed for each separate contract, under which material may have been furnished, though the material may be entirely different and the. contracts independent. The statute requires the account filed to be ‘a just and true account of the demand due him or them after all just credits have been given.’ The statute evidently contemplated filing only one account, and no reason can be seen for adding anything to its requirements.”
There is nothing in the case of Lane & Bodley Co. v. Jones, 79 Ala. 156, holding to the contrary. The language of the opinion relied upon by counsel for appellee was dealing with the question as to the time within which the claim must be filed, and was to the effect that, when the material is furnished under separate contracts, the statement must be filed within the time limited after delivery upon each separate contract. And such was also the holding of the Missouri court in Grace v. Nesbitt, supra.
No indication is found in the answer of respondent, that insistence would be made that the materials for which the lien was sought to be established were furnished under separate contracts, and, as the answer to the bill was but a mere general denial of its allegations, it may be seriously questioned whether such a defense is available to respondent. An examination of the evidence does not disclose that this was a question given serious consideration by the respective parties on the trial of the cause. However, as the question of the sufficiency of the answer in this respect is not pressed upon us by counsel for appellant, we pass it by and determine the cause upon its merits.
Aside from the question we have here discussed, and that of the statute of limitations insisted on by counsel for appellee, there is very little by way of defense to this bill that needs consideration here. While the husband of the respondent, who was confessedly her agent, in these matters, seems to doubt that some of the material went into the building and questioned the authority of some of the laborers to receive the same, yet an examination of the evidence discloses that the insistence for the complainant remains practically without dispute, and that its claim, so far as the merit of the situation is concerned, is fully and completely established.
It appears from the evidence that, when the building was in the course of construction, the husband of respondent made inquiries as to prices on plumbing and heating materials for it, and that complainant in this cause was negotiated with. Arrangements for the furnishing of same were made by him, for respondent, and it appears that the understanding in regard to the plumbing was reached a few days prior to that for the heating materials. This is indicated by the facts that on December 4, 1913, the complainant wrote out an order for the respondent to sign, directing that the plumbing material be furnished as ordered by the contractors; and that a similar order as to the heating material and fixtures was signed on December 16, 1913. The two orders are practically the same, and in each the respondent agreed to pay for the material on the Saturday following each delivery of same. Materials for the heating and plumbing for
“Where the parties to a contract have given it a particular construction, such construction would generally be adopted by the court in giving effect to its provisions, and the subsequent acts of the parties, showing the construction they had put upon the agreement themselves, are to be looked to by the court and in some cases may be controlling.” — 9 Cyc. 588.
Speaking to this subject of the entirety of contracts, Mr. Phillips, in his work on Mechanics’ Liens (section .229, p. 405), said: “But when work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such, work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account must be treated as a unit, or as being but a single contract.”
The following cases recognized and applied the foregoing principle: Joplin S. & D. Wks. v. Okla. College, 36 Okl. 547, 129 Pac. 40, 43 L. R. A. (N. S.) 158; Miller v. Batchelder, 117 Mass. 179; Kiser Lbr. Co. v. Mosely, 56 Ark. 544, 20 S. W. 409; Page v. Bettes, 17 Mo. App. 366; Matthews v. Waggenhaeuser Ass’n, 83 Tex. 604, 19 S. W. 150; Jones, etc., Co. v. Murphy, 64 Iowa, 165, 19 N. W. 898; Hooven, etc., Co. v. Featherstone, 111 Fed. 81, 49 C. C. A. 229.
Nor do we find any conflict in the conclusion here reached and the holding of the court in Cutliff v. McAnally, 88 Ala. 507, 7 South. 331.
Upon careful consideration, we have reached the conclusion that the complainant was entitled to the relief it sought. From the statement of the account, attached as Exhibit F, of J. J. Lee, witness for complainant, the balance due by respondent on August 1, 1914, was the sum of $1,331.93, which we conclude is correct.
The decree of the court below will be reversed, and one here entered declaring the complainant entitled to the relief it seeks and to a foreclosure of the lien upon the property described in the bill, for the enforcement of payment of said sum of $1,-331.93, with interest at the legal rate of 8 per cent, from August 1, 1914; and the cause will be remanded to the court below for a further decree foreclosing said lien in accordance with the practice of the chancery court in such cases.
Reversed, rendered, and remanded.