Garrison v. Hawkins-Lumber Co. , 111 Ala. 308 ( 1895 )

HARALSON, J.

The suit was instituted by appellees against appellant and Mahala B. Garrison,to enforce a mechanic’s lien for lumber and materials furnished by appellees to them for building upon and improving certain lots. The case was tried below by the court without a jury, and judgment rendered in favor of Mahala B. Garrison,one of the defendants,and against the other defendant, the appellant. There was but one count in the complaint, alleging that “plaintiffs claim of defendants $235, due from them to plaintiffs for lumber and material sold by plaintiffs to them, at their request, on March 1, 1893, which said sum with interest thereon is now due and unpaid. Plaintiffs further aver that defendants bought said above lumber and materials for building upon and improving lots of land [specifically described]” &c. The complaint further avers, that on August 26,1893, they filed a statement of their claim against said defendants, as required by statute, in the office of the judge of probate of Jefferson county. An attorney’s fee of $25 was also claimed, and a lien was asked to be declared on the land to pay the same.

The defendants filed joint pleas, of the general issue ; that the statement required was not filed in the probate office within 90 days from the day on which the last item of material was furnished, and that the right of lien is barred ; payment, and set-off of $300 .There were other pleas, but they are ' not insisted on. The account made out and filed in the probate office was against Jerome and Mahala B. Garrison, for $235, and is stated to have been duly verified. It was not itemized, but it states: “Itemized bill rendered to J. Garrison.” It is admitted that J.Garrison was the owner of the property described in the complaint, and that, if the plaintiffs were entitled to attorney’s fees in the case, the fee should be ten per cent, of the recovery against defendants.

It will be seen that the complaint alleges that the contract for the lumber which is sued on, was made by the two defendants, Jerome and Mahala B. Garrison, and the claim is made against them jointly. There is no. proof that Mahala ever had anything to do with the purchase of the lumber, and what relation, if any, she sustained to her co-defendant; but the plaintiffs’ evidence is full and clear, that they contracted with Jerome Garrison alone, and furnished the lumber to him. When the complaint alleges, as here, that the contract was made by two defendants jointly, and the proof showed a contract by one of them only, there isa fatal variance. No judgment in such case should be rendered against one of the defendants alone, no matter having been pleaded going to the personal discharge of'the other.— Gamble v. Kellum, 97 Ala. 677; Lee v. Wimberly, 102 Ala. 539; McAnally v. Hawkins Lumber Comyany, 109 Ala. 397. The coiu’t erred, therefore, in rendering judgment against appellant

The objection against the filing of the lien in the probate office, which was within the time required by statute, (and within ninety days after the maturity of the claim), without the itemization of the account, is not tenable. The filing of the account as it appears, was a substantial cempliance with the statute: — Leftwich Lumber Co. v. Florence M. B. L. & S. Asso., 104 Ala. 584.

The last item on the account filed, is Tune 10th, 1893, which, in the absence of anything else showing that it matured by agreement at a different date, may be treated as the date of the indebtedness sought to be secured by lien. This suit was not commenced until the 20th, January, 1894, more than six months after the maturity of the claim, on June lObh preceding. Section 3041 of the Code provides, that the lien is lost “unless suit for the enforcement thereof is commenced within six months after the maturity of the ’ entire indebtedness secured thereby.” But, the defendant did not plead, and thereby waived this defense.

The evidence as to the amount remaining due on the account is conflicting, and we will not now pass on the finding of the lower conrt as to that' matter. We are not informed how the judge arrived at the particular amount, $174.43, for which he rendered judgment against appellant, and for which he declared a lien on the property. If it included attorney’s fees, it was erroneous.

Reversed and remanded.