Bell v. Teague , 85 Ala. 211 ( 1887 )

CLOPTON, J.

The special count in the complaint sets forth a substantial cause of action. It alleges the contract, the indebtedness, and the facts necessary for securing a lien, and a description of the property charged therewith, which is a substantial compliance with the statute. We discover no material variance between the contract as alleged and the contract as proved, and none has been pointed out.

The statute requires an original contractor, within six months after the indebtedness has accrued, to file with the judge of probate a just and true account, after all just credits have been given, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner, and to verify the statement, which, when so filed, shall be a lien upon the property. It is also made the duty of the judge of probate, to make an abstract thereof in a book kept for the purpose, properly indorsed and indexed, containing the date of the filing, the name of the contractor seeking to enforce the lien, the amount claimed, the name of the person against whose property the lien is claimed, and the description of the property charged with the same. — Code, §§ 3444, 3445. Filing the claim is preliminary to securing the lien, and the statute intended that notice thereof shall be given; but the notice intended and provided for by the statute, is the record of the abstract required to be made by the judge of probate. The statement itself is not a record, and after the abstract has been made and entered, the removal of the statement does not defeat the notice of the lien, and no prejudice to any person can result therefrom. No sufficient reason exists why it should remain on file, after the abstract has been made and entered in the book kept for that purpose. The statute is complied with, when the statement is filed as required, and the abstract thereof recorded. — Mars v. McKay, 14 Cal. 127; Phillips Mech. Liens, 564.

The defendant may have acted as the agent of the Garfield Memorial Union Association, and the plaintiff may have known that he was so acting in making the contract for building the bouse; and yet tbe defendant may bave contracted in sucb manner as to incur a personal liability, wbicb there was evidence tending to prove. Also, though the corporation may have had authority to contract debts for building houses, if the defendant assumed to bind it, but had no authority as agent to make such contracts binding the corporation, a personal liability was self-imposed. — Drake v. Flewellen, 33 Ala. 106. The authority of the defendant is left to be inferred from oral evidence. The entire hypothesis of the charge requested by the defendant, in this regard, may be true, and yet, in one aspect of the evidence, the plaintiff may be entitled to recover. It withdrew from the consideration of the jury the proof tending to show that the defendant contracted in his own name, and on his personal credit.

Though the plaintiff may not have done the work according to the stipulations of the contract, if, nevertheless, the defendant accepted the house, the plaintiff was entitled to recover, at least, what it was reasonably worth. The instruction asked by defendant denied the right of plaintiff to recover, unless he showed a complete performance of the contract, though the defendant may have accepted the house, and directed that it be rented, and the rent applied to pay the expenses of building. — Kirkland v. Oates, 25 Ala. 465; Merriwether v. Taylor, 15 Ala. 735.

Affirmed.