69 So. 2d 288 | Ala. | 1953
Bill filed in the Circuit Court of Jefferson County, in equity, by appellee-complainant against appellant-respondent to enforce a materialman's lien given by Code 1940, Tit. 33, § 37. As a basis for the relief, the bill alleges the following:
"(2) Complainant and respondent entered into a contract or agreement on, to-wit the 28th day of May, 1951, wherein complainant agreed to furnish building material to the respondent for the purpose of using the same in the construction of a dwelling house or improvement upon respondent's property, hereinafter described, at and for the price of Three Thousand Eight Hundred Six Dollars and Eighteen Cents ($3806.18).
"Complainant avers that in compliance with its part of said contract, it did furnish said material to the respondents for use in the construction of or improvement of the hereinafter described real estate, and said building material was used by the respondent in the construction of a building or improvement upon the hereinafter described property.
"(3) Complainant further avers that there remains unpaid of the purchase price of the building material so furnished, the sum of Three Thousand Eight Hundred Six Dollars and Eighteen Cents ($3806.18), with interest at the rate of 6% per annum from the 28th day of May, 1951, evidenced by an instrument in writing. Complainant avers that as a part of said instrument respondent waived her right to exemption as to personal property and agreed to pay a reasonable solicitor's fee, which complainant also claims. * * *"
The bill also alleges the filing in the office of the Judge of Probate of Jefferson County of the verified statement of lien as required by Code 1940, Tit. 33, § 41.
Respondent demurred to the bill on the ground that it fails to exhibit a copy of the alleged contract and that "the allegations of the bill as to the contract are vague, indefinite, uncertain and insufficient to appraise this respondent of the matters and things she is called upon to defend." From a decree overruling the demurrer, *181 this appeal is taken. Our view is that the demurrer was properly overruled.
Although the contract is neither set out in the bill nor made an exhibit thereto, we think its terms are sufficiently stated. "It is permissible in pleading a contract to state its substance and legal effect." Schley v. Cleaners Hanger Co.,
Affirmed.
LIVINGSTON, C. J., and SIMPSON and CLAYTON, JJ., concur.