139 Tenn. 687 | Tenn. | 1918
delivered the opinion of the Court.
Lumber, being material that is lienable, as relates to a theater building, under the statute (Thompson’s Shannon’s Code, section 3531), is the furnisher thereof to be denied a lien by reason of the, fact that a temporary and nonconsuming use is made of .the lumber in making forms for concrete work, notwithstanding he did not supply the same with knowledge or intent that it would be so used, but, on the contrary, did so under a special contract which looked to the material being wrought into the structure?
In Cohn & Goldberg v. Construction Co., 131 Tenn., 445, 175 S. W., 536, it was held that a furnisher of
Here, the lumber was not practically destroyed or consumed in the work on defendants ’ premises; only ten per cent, of it being wasted, and fifteen per cent, being damaged, and the furnisher did not have notice that the lumber was to he so used, or utilized otherwise than in the permanent structure.
These facts made applicable the rule announced in Daniel & Co. v. Weaver, 5 Lea (73 Tenn.), 392, and in Jonte v. Gill (Ch. App.), 39 S. W., 750 (opinion by the present Chief Justice), to the effect that it is not the actual use of lumber in a building by the owner that gives the furnisher a lien, but the furnishing under a contract for that use, and that the lien exists whether the lumber was used or not.
It is not essential that the materials furnished in good faith, under a special contract for use in the erection of such a structure be actually used, under Thompson’s Shannon’s Code, section 3531, providing for a lien in favor of one who furnishes material for the building contemplated.
Therefore the fact that there was only a partial waste or consumption of the lumber, seventy-five per cent, at least of which was usable at another place
Both of the lower courts so held. Writ of certiorari to bring under review the judgment of the court of civil appeals is denied.
