Southern Brick and Tile Company v. Walker

288 S.W. 685, 216 Ky. 760, 1926 Ky. LEXIS 997

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 26, 1926
• Status: Published

Opinion

Opinion of the Court by

Drury, Commissioner—

Affirming.

The appellant, whom we will refer to as the brick company, sought to enforce a lien for brick used in improving the property of William Walker. It was unsuccessful, and has appealed. In its answer, counterclaim and cross-petition, the brick company alleges that “at the special instance and request of B. F. Jarboe' general contractor, and George Leezer, subcontractor, it furnished by contract with B. F. Jarboe, general contractor, and George Leezer, subcontractor, for the use and benefit of William Walker, the owner of property described in the petition, . . . material used in the improvement of a building and repairing of a house situated on the property described.”

The statement filed in the clerk’s office, as required by section 2468, Kentucky Statutes, contains this allegation: “Said materials were furnished by contract with B. F. Jarboe, general contractor, and George Leezer, sub contractor.” The statement of account filed with the brick company’s cross-petition, shows that it is making claim for “balance for material furnished at 708 W. Walnut street, $675.74,” and said statement further shows that this material was “sold to Mr. George Leezer.”

The proof showed that this material was sold to George Leezer. It was charged on the books of the brick company to George Leezer. The notice given to Mr. Walker under section 2463, Kentucky Statutes, notified him that the brick company would claim a lien for a balance of $675.74, for material furnished to George Leezer.

In order for the brick company to succeed, it was necessaiy for it to prove the allegations of its cross-petition. It failed to do so. The allegation that this material was furnished to Jarboe and Leezer is not sustained by proving it was furnished to Leezer.

The action of the trial court in refusing a lien to the brick company is approved, as it is in accord with opinions of this court found in Tischendorf-Chreste Lumber Company v. Hegan, 134 Ky. 1, 119 S. W. 163; Whitfield v. Ky. Sales Corp., 211 Ky. 809, 278 S. W. 105; Phalin v. Standard Planing Mill Co., 199 Ky. 495, 251 S. W. 635.

The judgment is affirmed.