Opinion
5 Div. 830.
April 21, 1931.
Appeal from Circuit Court, Tallapoosa County; W. B. Bowling, Judge.
Attachment suit to recover for work and labor in cutting, hauling, or manufacturing lumber by Herbert Heard and others, against the Mills Lumber Company. From a judgment for plaintiffs, defendant appeals.
Reversed and remanded.
Jas. W. Strother, of Dadeville, for appellant.
The lien of a laborer, performed in the manufacture of timber into lumber under a contract with a person who is not the owner of the timber so manufactured, and who is merely hired by the owner to cut said timber into lumber, is subordinate to the title of the owner of the timber. McCord v. Rumsey, 19 Ala. App. 62, 95 So. 268; Code 1923, § 8902. There was no levy of the attachment, and consequently nothing upon which to base an order for sale of the lumber of appellant. Stanton v. Heard, 100 Ala. 515, 14 So. 359; Hamilton v. Maxwell, 119 Ala. 23, 24 So. 769.
Albert Hooton, of Dadeville, for appellees.
Plaintiffs had a lien on the lumber for their wages which was enforceable by attachment. Code 1923, §§ 8901, 8904. The promise of defendant to pay debts due plaintiffs was based upon a new and valuable consideration that they work at the time and continue to work, and was binding. Borden v. King Mill L. Co., 214 Ala. 308, 107 So. 455. Where the evidence is in conflict, the judgment of the trial court will be affirmed on appeal. Copeland Bros. R. Co. v. Jones, 214 Ala. 615, 108 So. 591.
This was a suit by appellees, aided by attachment on certain lumber, against appellant, seeking the recovery of wages, alleged to have been earned by them, etc., in manufacturing, etc., the said lumber. Code 1923, §§ 8901, 8904.
The case was tried below before the court sitting without a jury. For the purposes of our review, his findings, of course, have the force and effect of a jury's verdict.
But the judgment cannot stand. The undisputed testimony is that each of the appellees was employed by, worked for, and is due his wages from, one Stewart, who, as an independent contractor, cut, from timber owned by appellant, on his own mill, and with his own labor, for the appellant, the lumber sought to be subjected to a lien in favor of appellees in this proceeding, and that Stewart had been fully paid off and discharged by the appellant. Or that, rather, after getting "fully paid off" by appellant, he "ran away."
The fact, if it be a fact, that, after the work was done, "about the third week after this week we were to get our pay," according to one of the appellees (get pay, we interpolate, for work he had already done for Stewart), appellant, through its secretary and treasurer, told this appellee "he (it) would see that he (said appellee) got his money," could not — in the absence of a consideration, etc. — and did not, make appellant liable even to him (said appellee).
What this appellee testified, in this regard, is very different from what was shown by the testimony in the case Borden et al. v. King Mill Lumber Co., 214 Ala. 308, 107 So. 455, and the holding in the opinion in that case not, as we understand it, preclude the holding we have just announced.
The other appellees do not testify to anything tending to show that anybody, other than Stewart, ever expressed an intention of paying them for their work.
The timber from which the lumber in question was made belonging to appellant, Stewart, as an independent contractor, manufacturing said lumber, appellees being employees of Stewart, to whom appellant had paid the full amount due him, this suit by appellees against must fail. Allen et al. v. Clayton et al., 208 Ala. 29, 93 So. 658; Mathers v. Barrow, 202 Ala. 342, 80 So. 424. As, without a binding promise to pay them, it would fail, even if Stewart had not been fully paid, only, if there was a balance due Stewart by appellant, appellees could, in the appropriate way, have reached it.
Unnecessary to mention, but obvious, as bearing on the fatal invalidity of the judgment appealed from, is the fact that the undisputed testimony in this case is to the effect that the lumber "attached" by the sheriff, etc., was not the lumber manufactured by Stewart at all.
The judgment is reversed, and the cause remanded.
Reversed and remanded.