WALKER v. SCOTT LUMBER CO., 222 Ala. 604 (1931)

133 So. 695

WALKER et al. v. SCOTT LUMBER CO.

6 Div. 697.Supreme Court of Alabama.
April 9, 1931.

Page 605

Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.

Wilkinson Burton and Hollis O. Black, all of Birmingham, for appellants.

Where there is no contract with the owner or proprietor there can be no lien. Code 1923, § 8832; Copeland v. Kehoe, 67 Ala. 594; Sturdavant v. First Ave. Coal Lumber Co., 219 Ala. 303, 122 So. 178.

R. D. Gilliam, Jr., of Birmingham, for appellee.

Brief did not reach the Reporter.

THOMAS, J.

The appeal was from a decree overruling demurrer to the bill as amended to declare and enforce the materialman’s lien.

The averment that the contract was with the owner or proprietor of the land should not be left in inference as to this pleading; that is, by a challenge by demurrer. Section 8832, Code of 1928; Sturdavant v. First Avenue Coal Lumber Co., 219 Ala. 303, 122 So. 178; Grimsley v. First Avenue Coal Lumber Co., 217 Ala. 159, 115 So. 90, and authorities.

Construed most strongly against the pleader, the bill as amended does not show that, at the time the contract was made and executed, it was with the owner of the land or her authorized agent acting for her. It should be so specifically averred, and not leave such material fact to inference.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.