Walker v. Scott Lumber Co.

133 So. 695, 222 Ala. 604, 1931 Ala. LEXIS 303

Opinion

THOMAS, J.

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

Tbe 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 tbe pleader, the bill as amended does not show that, at tbe time the contract was made and executed, it was with tbe owner of tbe 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, O. J., and SAYRE and BROWN, sTJ., concur. .