Opinion
1 Div. 713.
June 2, 1932. Rehearing Denied June 23, 1932.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
J. G. Bowen, of Mobile, for appellant.
A party to a contract upon breach of the other party must elect between treating the contract as dissolved in toto, and insisting on further performance. Lowy v. Rosengrant, 196 Ala. 337, 71 So. 439. Forfeitures are not favored in equity. Gatewood v. Hughes, 214 Ala. 674, 108 So. 562; Barton v. Broyles Co., 212 Ala. 658, 103 So. 854; Phillips v. Sipsey C. M. Co., 218 Ala. 296, 118 So. 513. The abandonment or the right to declare the forfeiture was at the election of the holder of the contract benefited by the clause. Brigham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28; Prot. L. I. Co. v. Thomas, 223 Ala. 106, 134 So. 488. The statute of six months within which to file suit and file the materialman's lien does not begin to run until the maturity of the last note or accrual of the entire indebtedness. Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331; College Ct. R. Co. v. Letcher, 201 Ala. 362, 78 So. 218. Where one party is unable to perform his part of the contract, he is not entitled to demand performance. McGowin L. E. Co. v. Camp. Lbr. Co., 16 Ala. App. 283, 77 So. 433.
The demurrers filed to the original bill were never refiled to the amended bill, and should not be considered as to the amended bill. Sims, Ch. Pr. § 446; Kinney v. Reaves Co., 139 Ala. 386, 36 So. 22.
D. P. Moore, of Mobile, for appellees.
The bill is subject to the demurrer for that it is multifarious. Globe I. R. C. Co. v. Thacher, 87 Ala. 458, 6 So. 366; Siglin v. Smith, 168 Ala. 398, 53 Ala. 260. It is obvious therefrom that complainant has an adequate remedy at law. If complainant has a lien, a conveyance pending the lien would avail nothing. It was not essential that a court of equity decree the conveyance to the wife subject to the lien. Le Grand v. Hubbard, 216 Ala. 164, 112 So. 826; Vesuvius Lbr. Co. v. Fidelity, etc., Co., 203 Ala. 93, 82 So. 107. Sections 8832 et seq. define the nature of the lien. Enforcement in courts of law is contemplated, and section 8935 gives the court of equity jurisdiction where the remedy may be doubtful.
The bill does not show that complainant acquired title from the North American Roofing Engineering Company. The contract is exhibited as a material part of the bill and does not show transfer as required by statute. Code 1923, § 9231; Bohanan v. Thomas, 159 Ala. 410, 49 So. 308; Jemison v. B. A. R. Co., 125 Ala. 378, 28 So. 51; Phillips v. Sellers, 42 Ala. 658; Kelley v. Kelley, 9 Ala. App. 306, 63 So. 740; Flexner v. Dickerson, 65 Ala. 72; So. R. Co. v. Brewster, 9 Ala. App. 597, 63 So. 790; Ala. St. Bank v. Barnes, 82 Ala. 607, 2 So. 349; Allen, Bethune Co. v. Maury Co., 66 Ala. 10; Lehman, Durr Co. v. Marshall, 47 Ala. 362. The word "accrued" as used in the statute means the statement of lien must be filed within six months from the completion of the work. The lien was not filed in time. Lane Bodley Co. v. Jones, 79 Ala. 157; Bolen Coal Co. v. Ryan, 48 Mo. App. 512; Gt. West. Mfg. Co. v. Burns, 59 Mo. App. 391; Stine v. Austin, 9 Mo. 558; Gen. F. E. Co. v. Farmers' Co., 165 Mo. 171, 65 S.W. 318; Otis Elev. Co. v. Sheffield R. Co., 205 Ala. 489, 88 So. 566; Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276; Chandler v. Hanna, 73 Ala. 393; Long v. Pocahontas C. Co., 117 Ala. 587, 23 So. 526. The making of a special contract and the taking of notes should be a waiver of a lien, and it is a waiver unless the notes are to mature within six months after the indebtedness accrued. Lane Bodley v. Jones, supra; S. S. Charlotte v. Hammond, 9 Mo. 59, 43 Am. Dec. 536. Two of the notes had not matured, and complainant could not file a lien until the contract was due, if it can be maintained that liens can be fixed by contract. College Ct. R. Co. v. Letcher, supra. The sworn statement was not properly verified. There is no averment that the contract was performed. Ravisies v. Stoddart, 32 Ala. 603; Wadsworth v. Hodge, 88 Ala. 500, 7 So. 194; Osborn v. Johnson Co., 99 Ala. 309, 13 So. 776.
The bill of complaint alleges the execution of a contract to repair a house of respondent, and seeks to enforce a lien under section 8832, Code, but does not allege, except by inference, the performance of the contract and that the work and labor was done and material furnished as provided in it. It was therefore subject to the fourteenth assignment of the demurrer. The decree sustaining the demurrer was therefore without error.
But as complainant may amend the bill to cure that defect, it is proper that we consider other assignments discussed by counsel. The first five grounds of the demurrer are answered by section 8842, Code, conferring jurisdiction on the chancery court. Bennett Realty Co. v. Isbell, 219 Ala. 318, 122 So. 337; Roobin v. Grindle, 219 Ala. 417, 122 So. 408. The sixth and seventh grounds are answered in paragraph 6 of the bill. The ninth, tenth, eleventh, and twelfth grounds also pointed out a defect which justifies the decree. The bill does not show that the statement in writing required by section 8836, Code, to be filed, was verified by the oath of the person claiming the lien. The copy attached as an exhibit to the bill is not a completed instrument, for that the verification was not completed, and it does not appear to have been signed.
By the eighth ground of demurrer the question is raised as to whether the bill shows that the statement was filed within six months of the accrual of the claim. The point is made that the bill shows that the claim accrued upon the completion of the work and not at the maturity of the debt. By the terms of the contract the debt was to mature in ten monthly installments, the first due July 1, 1930, and the last due April 1, 1931. The statement was alleged to have been filed February 6, 1931. In several cases this court held that when the debt matured, as contracted, it then accrued within the meaning of this statute. Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331; College Court Realty Co. v. Letcher Lumber Co., 201 Ala. 361, 78 So. 217; Id., 201 Ala. 362, 78 So. 218; Hagan v. Riddle Co., 209 Ala. 606, 96 So. 863.
The case of Tyler v. Birmingham Realty Co., 207 Ala. 210, 92 So. 264, was not intended to conflict with the foregoing authorities. On the other hand, the case of Woodall v. Southern Mfg. Co., 223 Ala. 262, 135 So. 446, supports our earlier cases on that subject, and also the conclusion we have reached in other aspects of this case.
The contract also provided that the amount of the debt "becomes due in full, after default in two successive monthly notes." It is claimed therefore that by the contract the entire debt accrued when default was made in the payment of notes due July 1st and August 1, 1930, and the period of six months then began and expired before February 6, 1931, when the statement is alleged to have been filed. So that the question is: Did the entire debt thus mature in the absence of an election of the holder of the notes and contract so to treat it? The notes were unconditional obligations by the maker to pay at a certain time, not before nor after. The acceleration of the maturity of the notes by reason of such a stipulation is not intended to confer a right upon the maker to change his unconditional contract by reason of his own default. Jones v. Hert, 192 Ala. 111, 68 So. 259; Wood Lumber Co. v. Morris, ante, p. 281, 142 So. 508; 8 Corpus Juris 417; Walter v. Kilpatrick, 191 N.C. 458, 132 S.E. 148; see section 9030, Code.
We cannot therefore concur in the contention of appellee that for this reason the bill shows that the statement was filed more than six months after the claim accrued.
It is also contended that upon the theory of that conclusion the claim was prematurely filed, in that two of the monthly payments had not matured at that time, and that the claim matured only when the last installment became due. But we think that if the holder of the notes and contract filed his statement making claim for the entire debt embracing the amount of all the notes, before the maturity of two of them, but "after default in two consecutive monthly notes," he thereby exercises his option to accelerate the maturity of those not otherwise due, so that then and thereby they all accrued, and fixed the time in which the statement was due to be filed pursuant to section 8836, Code. We do not think that the decree sustaining demurrer to the original bill can be supported upon the theory that it does not show a filing in the time fixed by that Code section.
But the amendment alleges that complainant never exercised its option to declare the indebtedness due until the bringing of the suit. While the filing of the declaration may show prima facie that such option was so exercised, there may be circumstances which would show a contrary purpose. So that when the amendment expressly alleges that there has been no election to accelerate the payment of the notes before their due date, such prima facie showing to that end is contradicted, and complainant is concluded by its express allegations. The effect of such amendment is to show that the declaration was filed in the probate office before the claim matured, though the suit was begun within the time declared by statute. Section 8855, Code.
The general rule is that if the statement is prematurely filed, it does not comply with the statute, and does not preserve the lien. Snellings Lumber Co. v. Porter, ante, p. 164, 142 So. 560; 40 Corpus Juris, 187, 196.
But the bill as amended was therefore subject to the eighth ground of demurrer assigned to the original bill.
The record shows that such grounds were reassigned after the bill was amended.
But for the reasons we have indicated, we think the decree sustaining the demurrer to the bill as originally filed and as amended, was free from error, and it is affirmed. We note that the bill has not been dismissed, and it is therefore subject to amendment to cure the defects we have noted.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.