Lloyd v. Stewart

60 So. 2d 911, 258 Ala. 627, 1952 Ala. LEXIS 346

• Court: Supreme Court of Alabama
• Decided: May 15, 1952
• Docket: 7 Div. 144
• Status: Published

Opinions

BROWN, Justice.

This is the second appeal. The first appeal was by the complainant from a final decree denying relief and dismissing his bill, which sought to establish a 'material-man’s lien for work done and material furnished in the improvement of the building specifically described in the bill, at the instance of a lessee of the owner, who had notice of the work being done and made no objections thereto but in fact approved the same. On the hearing resulting in the first decree, it appears that the circuit court did not take account of § 39, Title 33, Code of 1940, which authorizes the establishment of a lien on the improvement and the removal thereof, if removal may be effected without damage to the building, where the lessee is not prohibited from making the improvement in the lease. Stewart v. Lloyd, 254 Ala. 465, 48 So.2d 788.

After remandment of the cause further testimony was taken ore tenus and on submission for final decree the trial judge made the following observations in the final decree of May 23, 1951:

“The Court decided on the former hearing of this cause that the contract for repairs and improvements mentioned and described in the Bill of Complaint, was.had between the Complainant, FI. A. Stewart, and O. G. Megginson, and not with E. C. Lloyd, the owner of the building repaired and improved. No evidence has been introduced tending to show that E. C. Lloyd was a party to the said contract for repairs. However, the Court is convinced that the Respondent, Lloyd, knew that repairs and improvements were being made to his building by his Lessee, Megginson, and that it would be unfair and unjust, since he remained silent while the work was being done, to allow him at this time to escape liability because of a provision in the lease with Megginson prohibiting Megginson from making any repairs or improvements to the building without the written consent of the owner. If such lease existed at the time of the repairs the action of the Respondent Lloyd waived said provision or he is estopped from now invoking said provision by reason of his silence. Other work had been done on the building prior to the time Stewart installed the glass. In fact the front of the building had been changed in preparation for the installation of the glass, and this work was not done by Stewart. There is no evidence that the respondent Lloyd expressed any objection to the repairs' being made; in fact he himself admitted that he knew that Mr. Stewart was doing work on the said building. * *

From that decree Lloyd on June'6th appealed and executed with sureties a supersedeas bond. That appeal was returnable to the first Monday after the expiration of sixty days. 790, Title 7, Code of 1940.

On a regular motion day — January 15th, 1952 — the case was submitted on appellee’s motion to affirm under Supreme Court Rule of Practice 18, in which he alleged, under oath, with supporting affidavits of the court reporter and the register of the circuit court, that the case was brought into this court merely for delay. And on the appellant’s suggestion of a diminution of the record, supported by oath, it was' suggested that the record is incomplete. Supreme Court Rule 19, Code of 1940, Tit. 7, Appendix, p. 1012. On consideration of said motions and the proof in support thereof along with the partial record filed on December 5, 1951, we are of opinion that ■the case is “a delay case” within said Rule ■of Practice 18 and that the decree of the ■circuit court should be affirmed. It is so •ordered by the court.

Affirmed.

LIVINGSTON, C. J., and FOSTER and STAKELY, JJ., concur.

On Resubmission.

The judgment of affirmance entered on May 15, 1952, in pursuance of Supreme Court Rule of Practice No. 18, Code of 1940, Tit. 7, Appendix, p. 1011, was set aside on motion of appellant and the cause was resubmitted on the merits as presented by the assignments of error.

We have reexamined the testimony taken on both trials in open court and find the same in sharp conflict on the several controversial points: — (1) Whether or not the plate glass front was installed by the •original contractor under the contract with Lloyd’s lessee before the written lease was ■signed and became effective. (2) Whether •or not Lloyd, the owner, knew of the proposed improvement and in fact approved and authorized the same. (3) Whether or ■not the plate glass can be removed without ■damage to the building. However, the ■weight of the evidence tends to sustain the •conclusion stated in the decree of the circuit court, that said plate glass can be removed without detriment to the building, •except the absence of the glass from the setting.

The evidence is without dispute that before the bill was filed the complainant proposed a settlement to Lloyd and offered to remove the glass and square the deal. Mr. Lloyd refused to allow him to do so.

After due consideration we are of opinion that the decree is well sustained by the evidence and should be and is affirmed. So ordered.

LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur.