Johnson v. Simmons & Bagwell , 123 Ala. 564 ( 1898 )

McCLELLAN, C. J.

The special finding of the 'facts does not support the judgment against Johnson for two hundred and ten dollars and condemning the house and lot to its satisfaction, for that it is not therein found as a fact that the lumber supplied by plaintiffs to Hawkinson was supplied for the purpose of being used in the building of the said house upon which it is sought to enforce a materiahman’s lien, nor does the evidence establish such fact.—Eufaula Water Co. v. Addyston Pipe & Steel Co., 89 Ala. 552, 555-6, and authorities there cited; Cook v. Rome Brick Co., 98 Ala. 409, and cases there cited; Code, § 2723.

And the evidence does not support the finding of fact, that plaintiffs supplied lumber to the value of two hundred and ten dollars which was used in the building of this house. To the contrary, while there is evidence that some lumber supplied by plaintiffs to the contractor, Hawldnson, was used by the latter in the construction of this house, it is in no way made to appear, nor are any facts deposed to from which it could be inferred how much of such, lumber was so used, nor the value of such lumber so used. Simmons himself, one of the plaintiffs, testifying in their behalf, after bringing himself to say in answer to a leading question on his original examination, “my best judgment is there was $210. worth of that lumber [i. e. lumber tallying with that supplied by his firm in general description] used in that house,” seems to have been troubled in his conscience about even so guarded a statement, and upon being recalled to the stand made this unqualified statement: “I do not know how much of the lumber I have specified was sold to Hawldnson for this house and went into said house.” The lumber he had “specified” and to which he here refers was that for the price of which he sought to fix a lien on this house and the lot upon which it ivas built, the lumber constituting the consideration, for his claim of $210 upon which the court below rendered judgment against Johnson, and ordered his house sold for its satisfaction. Hawkinson was at the same time building this and two other houses in the town of Fruithurst; and the fact is that plaintiffs sold him this and some other lumber on his personal credit and for such use as he chose to put it to, and not for use in this house, or indeed, so far as plaintiffs’ contemplation in a legal sense went, for use in the three houses. And no man knows or can say what of the lumber in specie or'in value went into this house or into the others. Hawkinson -failed in business, failed to complete this.house, and left the State. And then it was that 'plaintiffs took steps toward enforcing an alleged material-man’s lien on this house and lot. As we have seen they have failed in the proof.

The judgment in their favor against Johnson and the judgment condemning the house and lot must be reversed, and a judgment will be here entered in Johnson’s favor. The judgment against • Hawkinson will he affirmed. •

Affirmed in part, reversed and rendered in part.