Womack v. Myrick Lumbert Co.

76 So. 949 | Ala. | 1917

This action to enforce a materialman's lien (Code, § 4765) was instituted by appellee against R. J. and K. A. Womack. R. A. Mitchell, who was also joined as a defendant, was, on plaintiff's motion, stricken out as a party defendant. The single count on which the submission to the court (without jury) was had was introduced by amendment after demurrer sustained to the original complaint. No demurrer to the count thus introduced appears to have been filed. So the sufficiency of the count is not considered.

The plaintiff was permitted to show by G. H. Myrick that the account for the materials used in improving two dwellings on two lots belonging to Mrs. Womack was stated on the books of the plaintiff against the husband, "R. J. Womack, agent." The objections to questions apt to elicit the matter indicated were general (Johnston v. Johnston, 174 Ala. 220, 224, 225,57 So. 450); and, since the subjects they concerned were relevant to the issues involved, the court cannot be said to have erred in overruling the general objections interposed, nor in overruling motions to exclude on the same general grounds. Books of account, when properly supported by suppletory oath, are usually the best evidence of their contents (Code, § 4003; 2 Ency. Ev. p. 629); but there was no objection leading to the application of this rule to the inquiry as to whom the materials were "charged" on the books of the plaintiff.

In order to sustain the plaintiff's right to effect and have adjudicated and enforced a materialman's lien upon the lots described in the complaint, it was essential to show that either the husband, R. J. Womack, acted authoritatively for and as agent of the owner, K. A. Womack, in the premises, or that, being fully advised of the facts, she, the owner, ratified the acts of R. J. Womack in the premises. Wadsworth v. Hodge,88 Ala. 500, 506, 7 So. 194; Wilson v. Andalusia Mfg. Co.,195 Ala. 477, 478, 70 So. 140. The evidence in this regard does not even tend to establish either one or the other of these alternative essentials. The mere act of charging the price of the materials to "R. J. Womack, agent," did not tend to prove that the owner authorized or empowered R. J. Womack to act as agent for her in the premises; much less did it tend, in any degree, to show a ratification by the owner, she, the owner, not being shown to have had the knowledge or information of the facts necessary to effect a binding ratification. This case is, for all practical purposes, controlled by the doctrine of Wilson v. Andalusia Mfg. Co., supra.

The judgment is reversed in so far as it concludes against the appellant K. A. Womack, as well as in the respect it undertook to fix a lien on the lots described in the judgment; and a judgment will be here entered discharging said appellant.

Reversed and rendered.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.