McLendon v. Indianola Lumber Co.

90 So. 885 | Miss. | 1922

Cook, J.,

delivered the opinion of the court.

The Indianola Lumber Company, appellee, instituted suit in the circuit court of Sunflower county, seeking to enforce a materialman’s lien on a certain building erected by a contractor for John M. McLendon on land belonging to Alba Wilson McLendon, his wife. The contractor and John McLendon and wife were made parties defendant, and upon the trial of the cause there was a final judgment in favor of the contractor and Mrs. McLendon, and judgment was entered against John M. McLendon for the balance due by the contractor to appellee, and also condemning the building to be sold to satisfy this judgment, and from this judgment the defendant, John McLendon, prosecutes this appeal.

For the decision of the one question which we consider controlling in this case, we deem it unnecessary to state the facts as developed on the various issues presented in the trial court. It will be sufficient to state that appellant entered into a written contract with H. C. Runyan, a contractor, to construct a residence for him; that this building was constructed on a lot belonging to appellant’s wife; that appellee furnished to this contractor certain materials which were used in the construction of this residence and for which the contractor did not pay; that this material was charged to appellant, but without authority from him so to do; that this material was charged to appellant principally for the purpose of identifying the building for which the materials were furnished; that when the building was nearing completion, appellee delivered to appellant an itemized statement of the amount of the materials it had furnished for this building; that this statement of accounts showed that the materials had been charged to appellant and also showed the dates when furnished, the quantity, the prices, and the total amount due. The testimony as to what was said between the parties at the time this statement of account was delivered to appellant, and as to Avhether appellant understood that ap-pellee Avould demand of him the payment of the account and claim the benefit of the statutory lien in favor of ma-terialmen, is very conflicting.

The decisive question involved in this record is whether under the provisions of chapter 128, Laws of 1918, the statement of account delivered to the owner of the' building is sufficient notice to» bind in the hands of the owner the amount then due the contractor, and to establish a lien on the building for the materials used in its construction.

Omitting the parts thereof which are not applicable to the facts here, section 3074, Code of 1906, section 2434, Hemingway’s Code, provided that, Avhen any contractor shall not pay any person Avho. may have furnished materials used in the- erection of any building, such person may give notice, in writing, to the owner thereof of the amount due; and thereupon the amount that may be due by such owner to the -contractor shall be bound and liable in the hands of such owner for the payment of the sum so claimed. This section was amended by chapter 128, Laws., of 1918, and leaving out of this statuté the parts thereof which are not applicable to the facts here, section 1 of said chapter 128, Laws of 1918, reads as follows:

“When any contractor shall not pay any person who may have furnished materials used in the erection of any building . . . such person may give notice in writing to the owner thereof of the amount due him and claim the benefit of this section; and, thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor shall be bound,” etc. (Italics, ours.)

It will be noted that the 1918 amendment of the Code section adds the words “and claim the benefit of this section” to the provision that the materialman “may give notice in writing to the owner of the amount due him.” Does this addition require that the materialman must also give the owner notice of his intention to avail himself of the statutory scheme to bind the amount then due the contractor and to fix a lien on the building? If not, the addition of these words serves no purpose whatever. Ap-pellee contends that these added words simply describe the right which the claimant would have after he had given the written notice of the amount due, or, in other words, that these words simply mean that a claimant who has given the written notice of the amount due thereby puts himself in a position where he»can claim the benefit of the section. If such be the only purpose of this addition to the statute, the added words are entirely useless, for it is perfectly clear that under the Code section as it existed prior to the 1918 amendment, the right to claim the benefit of the section flowed to the claimant immediately upon service of written notice of the amount due by the contractor. If a person who has furnished to a contractor material for the construction of a building desires to claim the benefit of this section to enforce payment of the amount due him by the contractor, we think it is entirely reasonable that he should be required to give the owner of the building notice of his intention so to do, and that such was the legislative purpose in adding these words to the statute.

No particular form of notice is prescribed or required, but we are of the opinion that a claimant under this section, in order to bind the amount in the hands of the owner of the building, must give notice in writing of the amount due him, and also of his intention to hold the owner for the amount and to assert a lien on his building if the amount is not paid by him, or, in other words, some notice of his intention to claim the benefit of this statute.

The statement of account delivered to appellant in this case does not comply ivith this statutory requirement, and the judgment of the court below will therefore be reversed, and judgment will be entered here for appellant.

Reversed, and judgment here for appellant.