Wade v. Brantley Crawley Const. Co.

Appellant complains that the opinion did not respond to some of his contentions. One is that the answers are not sufficient, being in the nature of a categorical denial of insolvency, fraud, etc.

This contention would be better supported, if the narrative part of the answer were all. But the bill has an interrogating feature, and defendants are required to answer the interrogatories on oath. The answers to the interrogatories are properly filed as a feature of the answer to the bill. They set out fully the details showing that defendants were not insolvent, where their property is located, in what it consists, all incumbrances and other debts. This is pursuant to rule 9, Chancery Practice. Sims Chancery Pr. § 283. This is not the same as answers to interrogatories under section 6569 et seq., Code; Carmichael v. Pond, 190 Ala. 494, 67 So. 384.

The answers to the interrogatories propounded in the bill should be accorded at least as much effect as are exhibits. They are taken and held as a part of the pleading to which they are attached. Rule 16, Chancery Practice; Grimsley v. First Ave. Coal Lumber Co., 217 Ala. 159, 115 So. 90. It is rather commendable, we think, not to repeat that which is otherwise clearly alleged in the answer and sworn to.

Appellant has submitted a carefully prepared and well-reasoned theory that there is a lien or trust in favor of materialmen, subcontractors, etc., created by law on the funds paid by the state to a road contractor. The theory would be plausible if there existed, as argued, a specific duty enjoined by law to use those state funds to pay such materialmen and subcontractors. But none is specified. There is no more than the ordinary implied legal duty to pay a debt contracted. The law which requires a bond to secure the claims of such creditors had as one inducement the circumstance that in respect to public works they had no lien either on the property or on the debt due the contractor. Jefferson County Board of Education v. Union Indemnity Co., 218 Ala. 632, 119 So. 837.

The security thus provided for the materialmen also tends to show a purpose to enable the contractor to be free from embarrassment so that without obstruction by them he may assign the account due him by the state to obtain financial aid, or may deposit the funds in bank with other money and be free to operate his business without hindrance from materialmen fully protected by the bond. In fact, we have distinctly held that materialmen have no such claim on the fund as to prevent that sort of operations. United States F. G. Co. v. R. S. Armstrong Bros., 225 Ala. 276, 142 So. 576. That is what was done by the contractors in this suit. They hypothecated the claim to the bank, and when the money was collected, paid the bank, after depositing it along with other moneys in their general deposit account. Unless creditors for material, labor, and supplies pursue the statutory remedies, they are remitted to such as are available to simple contract creditors to collect their debts.

Appellant Wade also insists that he has a contract lien on the money paid the partnership by virtue of the road work done by him.

The argument is that defendants admitted the allegations of paragraph 3 of the bill, which is supposed to allege facts from which a lien is implied by law in favor of Wade, one of the complainants. It alleges that he "was to receive the contract price for said work less ten per cent. thereof to be retained by the said Brantley and Crawley Construction Company."

But we think those allegations merely serve to fix the amount, not the manner of paying it. It is not a clear statement that payment was to be made out of a certain fund, nor indicated clearly an intention to appropriate the fund to that purpose. It is not within the rule which declares a lien when that is true. 37 Corpus Juris 315; Carroll v. Kelly,111 Ala. 661, 20 So. 456; Curry v. Shelby, 90 Ala. 277, 7 So. 922; Newlin v. McAfee, 64 Ala. 357; Geddes v. Reeves Coal Dock Co. (C.C.A.) 20 F.(2d) 48, 54 A.L.R. 282.

The bank, however, did not admit those allegations, but alleged that it neither admitted nor denied them. Unless a respondent in equity has, prima facie, special knowledge of facts alleged in the bill, a failure to deny them is not an admission. Burton v. Meeks, 222 Ala. 681, 134 So. 28. So far as the bank was concerned, the burden was by such answer put on complainant to prove paragraph 3, assuming the facts there alleged showed an implied lien.

As to the exact terms of the contract, Wade testified in response to the question, "And they sublet it to you for the same rate for the surfacing and grading less ten per cent. which they were to retain?" A. "Yes, sir." Crawley testified as shown by the following questions and answers:

"Q. What price did you agree to pay him for doing the work? A. My price from the Highway Department less ten per cent.

"Q. That was the price you agreed to pay him? A. Yes sir.

"Q. You would pay him an amount equal to ten per cent. less than the price of that work? A. That is right."

That testimony is not at all clear that there was an agreement to devote the fund derived by the construction company from the road work to the payment of Wade. But it only serves to fix the amount agreed to be paid. Moreover, we do not think the evidence is reasonably satisfactory that the bank had notice of the details of the contract, either actual or constructive. The burden to prove this was on complainant, since it was proven that the bank received an assignment of the claim as collateral security for a larger sum then advanced, which was subsequently paid in part by the use of that fund. Bank of Luverne v. Birmingham Fertilizer Co., 143 Ala. 153,39 So. 126; Barton v. Barton, 75 Ala. 400; Marsh v. Elba Bank Trust Co., 207 Ala. 553, 93 So. 604; Patton v. Darden, 227 Ala. 129,148 So. 806.

There was no occasion for the bank to plead that it was an innocent purchaser for value, since the bill manifests no purpose to charge it on account of any such lien. The purpose of the bill disclosed by its averments and prayer is wholly on the theory treated in the original opinion.

Complainant should not have relief for the failure of the bank thus to plead, on the assumption that the general prayer is sufficient, when such theory is not suggested by the allegations nor the special prayer. The court will not permit a bill framed for one purpose to answer for another, to be saved by the general prayer, if the defendant would be taken by surprise and prejudiced by so doing. Sims Chancery Practice, Secs. 288-9; Strange v. Watson, 11 Ala. 324, 336.

There is no distinct allegation in the bill that the bank received the fund derived from the work sublet to Wade, except by way of a general deposit to the checking account of the construction company. It is not now proposed to reach that deposit in the hands of the bank.

Appellants also renew their contention that the transaction of October 23d constituted a general assignment, and complain that we did not treat their claim in that respect. There was left in the bank over $6,000 after that day's transaction; all subject to the claims of creditors. Appellants' debt aggregated about $7,000. This was not a conveyance of substantially all their property. Section 8040, Code.

Our treatment of the facts and legal principles relating to the solvency of the partnership and fraud in the transaction expresses our views without further elaboration. It is not contended that we have misunderstood the facts.

Application overruled.

All the Justices concur.