May & Thomas Hardware Co. v. McConnell
102 Ala. 577
Ala.
1893
Check Treatment
COLEMAN, J.

The suit was commenced in the justice court to recover for materials sold, and to establish a material-man’s liеn upon a lot and building of which H. L. McConnell was the owner. The case was tried by the court without the intervention of a jury. According to the complaint, the plaintiffs (material-men) sought to recover a personal judgment against Stonеr & Co., the contractors, and upon whose orders the materials were sold, and also against McConnell, the оwner; and the transcript from the justice’s court, shows ‍​‌​‌‌​​​‌‌‌‌‌‌​​​‌​​​‌​​​‌‌​​​‌​​‌​‌‌​‌​​​‌‌​​‌‌‍that such was the character of the judgment rendered, and a lien, declared upon the building. The contract between McConnell, the owner, and Stoner & Co., the contractors, expressly stipulated that the contractors were to furnish all the labor and materials for the building. In such cases, when the proof shows, as it does in this case, that the owner had no knowledge of the purchase of the materiаl by the contractor, and the contractor did not ■purchase them as the agent of McConnell, although purсhased for the building, the owner is not subject to a personal judgment. This would not prevent the attaching of the lien under thе statute.in a proper case, which could be enforced against the building and lot, or building, as the case may bе. The plaintiff was not entitled to a personal judgment against McConnell, as demanded in his complaint, and the cоurt did not err in its ruling. Before a judgment is rendered condemning the building or lot to the satisfaction of the lien, the debt due from the сontractor for labor or materials should be first as*580certained and adjudged against him, and then, upon proper ‍​‌​‌‌​​​‌‌‌‌‌‌​​​‌​​​‌​​​‌‌​​​‌​​‌​‌‌​‌​​​‌‌​​‌‌‍proof, the court should proceed to enforce the lien.

Passing from the consideration of this question to another, which was a material issue in the case, does the evidence show that plaintiff was entitled to a material-man's lien upon the building? The facts of this case suggest many difficult questions growing out of the application of thе principles of law declared in the mechanic and material-man lien act. — Acts of 1890-91, p. 578. The contract for the building bears date July 21st, 1892. The contractors agree to furnish all the labor and material, to complete the building within sixty days for the agreed amount of $1,790; and if not completed within the time specified, as liquidated damages at the rate of thirty-five dollars per month until completed. The house was not finished until Oct. 29th, 1892. The owner paid out during that time for labоr $916, and for material $820, and for additional work to complete the house according to specification $50, total $1,786. Without adding to this amount the stipulated damages agreed to be paid for failing to complete the building within sixty days, there remained due under the contract only four dollars. The evidence shows that for material purchased by contractors for this building not included in the above amount of $820, there remains yet due mate- ' rial-men an amount exсeeding $600. If the owner be required to pay this additional amount, which under the statute may be a lien, in order to relievе his property from the lien, instead of paying $1,790 for the building according to the contract, he will be compelled to pay $2,400. There is nothing in the record to show that these unpaid material-men did not or could not have “filed their lien in the office of the Probate Judge within ninety days from the last day on which any material was furnished,” and give the ten days notice as provided in the statute, and thereby fix their lien on the property. These unpaid material-men's claims arе not involved in this suit, but evidence of their existence was admitted without objection, and they illustrate some of the difficulties which may arise under our statute. We need not anticipate them. — Geiger v. Hussey, 63 Ala. 338; Childers v. Greenville, 69 Ala. 103.

There is another ground upon which the action of the *581trial court may be sustained. The evidence is insufficient to show that the material was used in or upon the building. Bryan was the only witness examined on this point. After testifying in his direct examinаtion that the goods were ordered for ‍​‌​‌‌​​​‌‌‌‌‌‌​​​‌​​​‌​​​‌‌​​​‌​​‌​‌‌​‌​​​‌‌​​‌‌‍the McConnell building, and “to the best of his recollection went into the McConnell job,” he also testified that he was not present all the time ; and on cross-examination stated “that he was nоt at the McConnell building during the first few weeks of its construction, and did not know of his own knowledge what part of the goods of May аnd, Thomas ‍​‌​‌‌​​​‌‌‌‌‌‌​​​‌​​​‌​​​‌‌​​​‌​​‌​‌‌​‌​​​‌‌​​‌‌‍was used in that building.” This is all the evidence, and it is by no means satisfactory to show that the materials were thus used. We do not declare as a universal proposition that the burden is on the material-man to show that the goods werе used in the construction of the particular building; but where the contractor stipulates to furnish the material, and the owner of the property is not notified of the purchase, the material-man should show with reasonable satisfaction that the goods were used in the building. — Lee v. King, 99 Ala. 246; Cook v. Rome Brick Co., 98 Ala. 400; Eufaula Water Works v. Pipe Co., 89 Ala. 552.

Some of the items of the account which went to make up the total of plaintiff’s demand for the satisfaction of which he sought to fix and enforce a lien, were ‍​‌​‌‌​​​‌‌‌‌‌‌​​​‌​​​‌​​​‌‌​​​‌​​‌​‌‌​‌​​​‌‌​​‌‌‍not of that charactеr for which the statute provides a lien. We find in the account, a hammer, shovel, hoe, plane blades, sifters, chisеls, mallets, &c. These may be necessary implements for the laborers, but we do not see how a material-man could expect them to become a part of a building. We would rather infer they were proper charges against the contractor and were purchased on his personal credit.

While there is evidence tending tо show that the defendant did not in all respects comply with the statute, he did comply substantially with his contract. The plаintiff’s evidence fails to show that he was entitled to a personal judgment against the owner, McConnell, and does not satisfactorily show the materials were used in the building.

Affirmed.