McGeever v. Harris & Sons

41 So. 930 | Ala. | 1906

Tyson, J.

— The first assignment of demurrer to the complaint before and after amendment was general, and therefore properly overruled. The second proceeds upon the theory that this action is by a subcontractor, and therefore the plaintiffs should have given the defendant, as owner, before filing their statement in the office of the judge of probate for the purpose of perfecting a lien under the statute, 10 days’ notice in writing, etc. — Acts, 1900-01, p. 2115 et seq. This ground is clearly not well taken, since it appears from the averments of the complaint that the materials furnished, etc., were in pursuance of a contract entered into between plaintiff and defendant; thus showing that they were original contractors. The averments of the complaint as amended are likewise sufficient with respect to the nature, character, and legal sufficiency of the statement filed in the office of the judge of probate. It is not necessary that the facts recited in that statement should be alleged in detail. The complaint alleged that plaintiffs are entitled to a lien upon a certain described house and lot by virtue of a certain alleged contract for materials furnished and work done upon the house and lot described, that a verified statement of the lien was filed in the office of the judge of probate of Jefferson county on a certain day within the period prescribed by the statute, and that it was verified by the oath of one of the plaintiffs. This is all that good pleading requires.

It is next insisted that the complaint is defective, in that it is not averred that defendant’s husband was her authorized agent to bind her personally in the making of the contract with plaintiffs, and therefore a judgment in personam cannot be rendered against her upon the complaint. The averment is that the sum claimed is due “for materials furnished and work and labor done in pursuance of a contract entered into by and between plaintiffs and defendant, through and by her husband.” This language ex vi termini, includes the affirmation of an authorization on the part of the husband to make the contract for her. For it is not perceivable how. there could be, as averred, a contract between the parties, which must be taken as true as against the demurrer, unless the husband was authorized to represent the defendant in the .making of it.

The next point pressed upon our consideration is that the court erred in refusing to exclude the statement filed in the office of the judge of probate, which was' offered in evidence by the plaintiffs. The legal sufficiency of the statement is' assailed alone upon the ground that it is not verified as required by the statute. It is undoubtedly time that the requisites of the statute; with respect to the verification of the statement, must be strictly complied with.—McConnell v. Meridian S. & B. Factory, 112 Ala. 582, 20 South. 929, and case there cited. The language of this requirement, as found in the statute, is in these words: “A statement in writing, verified by the oath of the person claiming the lien or by somfe other person having knowledeg of the facts.” The statement allowed in evidence shows that the firm of S. H. Harris & Sons, a partnership composed of S. H. Harris, S. H. Harris, Jr., and T. H. Harris, who are the plaintiffs in the case, claimed a lien upon the property described in it, being the same property described in the complaint, and that it is verified by the oath of S. H. Harris, a member of the partnership, but does not contain the statement that he has a knowledge of the facts. It is on account of this omission that the objection to its legal sufficiency is predicated. S. H. Harris being one of the persons claiming the lien, the verification is clearly sufficient. It is only when the verification is by the oath of some other person not claiming the lien that it must contain the statement that the affiant has a knowledge of the facts. This is the plain import of the language of the statute. It follows, therefore, that the ruling of the court was correct.

The case was tried by the presiding judge without the intervention of a jury, and, under the act creating the court from which this appeal is prosecuted, it is made our duty to review the conclusion and judgment of the court upon the evidence, and, if error intervened, to render such judgment as the trial court should have rendered.- — Acts 1888-89, p. 998. The judgment appealed from is in personam and in rem. This was entirely proper, provided the evidence sustained the findings of a personal liability on the part of the defendant and that plaintiffs have a lien upon the property sought to be subjected. — Section 2739 o fthe Code of 1896. There was no evidence whatever that defendant was personally bound by the contract which the plaintiffs made with her husband. He is not shown to have ever undertaken to make the contract declared on for her. On the contrary, the evidence establishes, without dispute and beyond all adverse inferences, that the contract was between plaintiffs and her husband, and solely on his credit. The judgment, therefore, is clearly incorrect as one in personam.

As to -whether it is correct as a judgment in rem depends upon the weight of the testimony, whi ch was clearly in conflict. That on the part of the plaintiffs tends to show that the contract with the husband was made before the material was furnished and the labor performed by them, with a knowledge and consent on the part of defendant that the materials were being furnished and the labor performed for the improvement of her house and lot; while the testimony on the part of the defendant tended to show the contrary. If it be true that defendant had knowledge of the- fact that the improvements were being made by plaintiffs upon her house under a contract with her husband, and consented to their being made, the plaintiff have a lien upon her house and lot. Such lien is expressly declared by section 11 of the act (page 998), which changes the provision of the Code in this respect. The case of Hawkins Lumber Co. v. Brown, 100 Ala. 217, 14 South. 110, and other like cases, arose under the Code, and therefore have no application. Whether she was chargeable with such knowledge and consent, under the testimony, was a question of fact to be determined by the trial judge sitting as a jury, and his findings in this respect will not be disturbed unless plainly erroneous.—Woodrow v. Hawving, 105 Ala. 240, 16 South. 720; Callahan v. Nelson, 128 Ala. 676, 29 South. 555. We are unwilling to affirm that his findings were erroneous. If it be conceded that the contract, alleged as being one with defendant, is different from the one proven, this is not insisted upon here.

It follows, therefore, from what we have said, that the judgment appealed from must be corrected, so as to adjudge that the plaintiffs are entitled only to subject the property of defendant to the satisfaction of their lien.

Corrected and affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., concur.