Wade v. Wyker

55 So. 141 | Ala. | 1911

McCLELLAN, J.

A bill is not multifarious that does not set forth several distinct matters, perfectly unconnected.—Chapman v. Chunn, 5 Ala. 397; Alexander v. Rea, 50 Ala. 450; 16 Cyc. p. 241; 23 Cyc. pp. 395, 396.

This bill seeks the enforcement, after appropriate averments, of two liens, separately filed (Crawford v. Sterling, 155 Ala. 511, 46 South. 849), by a material-man, upon two separate lots and buildings in the city of New Decatur. It is insisted that both liens caaxnot be enforced in one bill. It appears from the bill that the buildings were constructed under one contract between appellant, the owner, and Waltz, the contractor, to whom appellee furnished the material; and, in keeping with the precedent to that end prevailing under our •statutory system, the satisfaction sought by the bill is out of the alleged unpaid balance due, when the notice was given the owner by the appellee, by the owner to the contractor. The unity of contract, for the construction of both buildings, and the limited source from which the liens are to be satisfied, under this bill, afford such interlacing of rights, and- consequently remedy, as to necessitate the joinder of the separate liens in one bill for their enforcement. The objection is untenable.

After careful review of the whole evidence heaving on the issue of indebtedness vel' non by appellant to Waltz, we are not convinced that the learned chancellor pronounced an erroneous conclusion thereon. It will serve no useful purpose to comment.

The additional agreements to the original contract between the owner and the contractor, covering what are called “extras,” for these buildings, cannot avail to defeat or impair these liens.—Alabama State Fair Association v. Alabama Gas Company, 131 Ala. 256, 263, 31 South. 26. It was shown that the appellee’s furnishing of the materials was undertaken and performed in reference to the construction, etc., of the buildings in question under the contract between the owner and the contractor, and so within the doctrine of Eufaula Water Co. v. Addyston Pipe Co., 89 Ala. 552, 555, 556, 8 South. 25.

The addenda agreements for extras shown, were but extensions, of the original contract. If the appellee engaged to furnish the material to the contractor, and did so, and it was so employed, it is not important that the engagement between the owner and the contractor for the extras was entered into. subsequent to the original contracting. The basis, in this particular, of the right to . the lien, is that the materialman furnished material for a certain building, evincing no purpose or intent to waive his rights against the property itself, whereupon the legal implication is that he contracts upon the faith of the security afforded by the property.—Cook v. Rome Brick Co., 98 Ala. 409, 12 South. 918; Eufaula Waterworks v. Addyston Pipe Co., supra; Rockel on Mechanics’ Liens, §§ 21, 22.

While the evidence is not as conclusive as it might have been in respect to the application of each (of a few only) item to the building against which it is particularly charged in the statement exhibited with the bill, there was ground in the evidence for the finding made in these respects. That the conclusion, in these few particulars, reached below, was not warranted, we cannot say. The buildings were very nearly duplicates; the materials furnished by appellee being practically similar. This may well account for the asserted wabbling (if so) of the witness Waltz (the contractor) in certain parts of his testimony in this connection, whereas he had theretofore testified that the materials furnished were correctly listed and correctly charged to the respective buildings. The decree is affirmed.

Affirmed.

Simpson, Mayfield, and Somerville, JJ., concur.