DocketNumber： 6 Div. 334.
Citation Numbers： 104 So. 649, 213 Ala. 232
Judges： SOMERVILLE, J.
Filed Date： 5/28/1925
Status： Precedential
Modified Date： 1/11/2023
The bill of complaint is filed by three several parties to enforce their respective liens upon a certain dwelling house for the price of materials sold to respondent for use in its construction. One of the complainants — the Bessemer Construction Company — claims a lien also for services rendered in superintending the work of construction. The bill alleges that the Bessemer Lumber Company and the Bessemer Construction Company severally sold the materials "to said T. O. Murray, or to his agent for him, as original contractor for use in the erection of said house." It alleges that the Bessemer Plumbing Electrical Company sold materials "to T. O. Murray [for use in the construction of said house] under a contract or agreement therefor entered into between it and said T. O. Murray, or his agent acting for him."
Respondent construes the first allegation as meaning that theagent was an original contractor, and many grounds of the demurrer to the bill are predicated on that theory. It is clear, however, that the phrase "as original contractor" relates to the seller of the materials, and not to the purchasing agent, and those grounds of demurrer are without merit.
But the seventh ground of the demurrer makes the point that the bill fails to name the agent who, it is alleged, acted for respondent in the purchase of the materials. It is, we think, a sound rule of pleading that, when the complainant charges the defendant with liability, either ex contractu or ex delicto, by virtue of the act of an agent, the name of the agent should be stated. Naugher v. L. H. R. R. Co.,
For the error noted, the decree of the circuit court will be reversed, and a decree will be here rendered, sustaining the demurrer as to its seventh ground, and overruling all other grounds.
Reversed, rendered, and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.