Ala

provements made by plaintiff, as original contractor, on grounds, houses, tenements, and buildings located on that certain parcel or lot of land known as 'Smith's Park,' in the city of Birmingham, Jefferson county, Alabama," and that at the time of erecting said buildings and improvements, and furnishing the materials and fixtures, the defendant was the lessee in possession of said parcel of land, and that the materials furnished, and the buildings and improvements erected, were not in violation of the terms or conditions of the lease between the defendant and the owners of said Smith's Park; that a statement in writing, duly verified by affidavit, containing a just and true account of the demand sued on, had been filed in the office of the judge of probate, and that the plaintiff claimed "a lien on said buildings and improvements, and also on the unexpired term of the leasehold by the defendant, on said parcel or lot of land, for the said sum" sued for. The defendant pleaded eight pleas. The first three pleas were the general issue. The other pleas were as follows: "(4) Now comes the defendant, and for answer to the plaintiff's complaint says that the plaintiff was employed by defendant to do certain work about the fair grounds, which he undertook, and in the performance thereof he did said work in such an unskillful manner as to be entirely useless, and that the plaintiff's suit is for the recovery for such work, and that said work was and is valueless, and that defendant has paid the plaintiff more than the value of the material furnished and labor performed. (5) The defendant, for further answer to the fifth count of the complaint, which seeks to establish a lien on the buildings and improvements on defendant's premises, says defendant holds said lands by virtue of a lease thereof for a term of seven years, beginning the 1st day of September, 1899, and that by the terms of the lease the improvements are not to be removed from the premises unless the rent of the entire term is paid in advance. (6) For further answer to the fifth count of the complaint, defendant says plaintiff has no lien on the property described in complaint. (7) For further answer to the fifth count of the complaint, which seeks to enforce a lien on the leasehold, the defendant says that the acre of land on which the plaintiff claims his lien is not described in the complaint and the account filed. (8) For further answer to the fifth count of the complaint, defendant says the account filed to enforce by plaintiff a mechanic's lien does not purport to be a just and true account of the demand, after all just credits have been given." To the fourth plea the plaintiff demurred upon the ground that it was vague and indefinite, and that it did not set forth the facts upon which the defendant's claim as therein set out arose, and it failed to state any facts upon which the issue could be joined. To the fifth plea the plaintiff demurred upon the grounds that

27

it did not present a sufficient answer to the fifth count of the complaint, and did not aver that said improvements were erected in violation of the terms of the lease. To the sixth, seventh, and eighth pleas the plaintiff demurred upon the following grounds: (1) Said pleas did not state any facts upon which plaintiff can join issue; (2) said pleas state but the conclusions of the pleader; (3) said pleas did not constitute a sufficient answer to the fifth count of the complaint; (4) said pleas question the sufficiency of the complaint in a matter of law. These demurrers were sustained. The trial was had upon issue joined upon the pleas of the general issue. On the trial of the case, Charles H. Colvin was introduced as a witness, and testified that he was the president and treasurer of the Alabama Gas Fixture & Plumbing Company, and was the president and treasurer of said corporation during the months of October, November, and December at the time the work done under the contract involved in this case was performed. He testified that all of the work and labor performed, and the materials and fixtures furnished, were under contracts made by the plaintiff with the defendant; that the plaintiff at first contracted by a written contract, and afterwards made an oral contract for additional work; but that all of the work under both contracts was performed upon the buildings and improvements sought to be subjected to the lien, which were situated upon the lot in question. The statement which was filed by the plaintiff in the office of the judge of probate was introduced in evidence. It was made by "C. H. Colvin, of the Alabama Gas Fixture & Plumbing Company," and was signed by him before a notary public. The contents of this statement are sufficiently shown in the opinion. The defendant objected to the introduction of this statement in evidence upon the following grounds: (1) It does not purport to have been sworn to by the plaintiff or its agent; (2) it does not purport to be a just and true account of the demands secured by the lien after all just credits should have been given; (3) said statement fails to state that the land upon which the lien is claimed is in a city, town, or village. The court overruled the objection, allowed the statement to be introduced in evidence, and to this ruling the defendant excepted. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the general affirmative charge in its behalf, and to this ruling the defendant duly excepted. There were verdict and judgment for the plaintiff, and the lien was de clared in its favor. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Morris Loveman and Smith & Smith, for appellant. Brown & Murphy, for appellee.

SHARPE, J. For work and material employed in making buildings and improvements on leased land under a contract with the lessee, a lien may under the statute be made to "attach to the building or improvement, and to the unexpired term of the lease," when "the erection thereof is not in violation of the terms or conditions of the lease." Code, § 2725. A provision in a lease which, like that averred in plea 5, merely prohibits the removal of improvements from the premises unless the rent be paid, is not violated by the erection of the improvements, and does not in itself prevent the establishment or enforcement of the statutory lien therefor.

In failing to aver the character of the work contracted for, and wherein it was not performed, plea 4 is lacking in that certainty which in a special plea is required in order that the court may see that facts relied on constitute a defense, and that the plaintiff may know what he is called on to meet by proof if the plea is traversed, or to confess and avoid by counter pleading. Railroad Co. v. Parker, 123 Ala. 683, 27 South. 323. Plea 6 also lacks certainty, being the statement purely of a legal conclusion without a single fact. Plea 8 is bad for a like reason. should have set out the account it refers to, that the court might judge of its purport from what appears thereon. The seventh plea tenders an issue as to what the complaint contains rather than answer thereto, and so assumes the office of a demurrer. The court's action in sustaining demurrers to each of these pleas was without error.

It

The evidence without conflict proves that the debt claimed is due plaintiff as an original contractor for work and material employed in improving the land described in the complaint. It shows that within six months of the debt's accrual, and for the purpose of establishing a lien under the statute, a statement was filed in the probate court purporting to show the unpaid balance due plaintiff from defendant for such work and material used in building, etc., on land on which defendant had a lease described as "Smith's Park, in or near the western limits of the city of Birmingham, Jefferson county, Alabama." It is verified by an affidavit which affirms the truth and correctness of the statement in positive terms. In our opinion, this statement conforms substantially to the statute, which, in respect of the statement to be filed in proceedings to establish the lien, directs that it shall be "verified by the oath of the person claiming the lien or of some other person having knowledge of the facts, containing a just and true account of the de mand secured by the lien after all just credits have been given, a description of the property on which the lien is claimed, and the name of the owner or proprietor thereof." Code, 2727; Greene v. Robinson, 110 Ala. 503, 20 South. 65; Roofing Co. v. Thacher, 87 Ala. 458, 6 South. 366. It is the sum of

the demand, rather than the items composing it, that is required to be stated (Leftwich Lumber Co. v. Florence Mutual Building, Loan & Savings Ass'n, 104 Ala. 584); and, that the public may be definitely informed as to the extent of the incumbrance, the further requirement is that the balance owing, rather than the original claim, shall be the demand exhibited. It is neither directed nor intended that the statement shall declare in terms that "all just credits have been given," but that fact is by the law itself injected into a demand which, like the one in question, is merely of a balance due.

When in a city, the land which may be subjected to the lien is not by the statute limited in area. Code, 2730. The tract here involved is by the amended complaint described as lying wholly within the city. If, as some evidence tends to show, a part of Smith's Park lies out of the city, that fact is immaterial, since none of the improvements claimed for are on that part, and that part is not included in the judgment of condemnation. Nor is the lien prejudiced, either in whole or in part, by the fact that the demand includes work and material furnished under two separate agreements, since the same property was improved under both agreements, and the rights growing out of same are identical in character and as to parties.

The judgment will be affirmed.

WARNER-SMILEY CO. v. COOPER. (Supreme Court of Alabama. Nov. 26, 1901.) PLEADING-IMMATERIAL ISSUES-EVIDENCEHARMLESS ERROR-VARIANCE.

1. Where the sufliciency of several pleas interposed is not tested by demurrers, but issue is taken upon them, the defendant is entitled to recover upon said pleas if he proves the facts averred, although such pleas were insufficient or presented an immaterial issue; and evidence tending to prove the facts set up in such pleas is admissible, although, upon proper issue in the case, they would be irrelevant and immaterial.

2. If, in the examination of a witness, the court erroneously allows a question to be asked, such ruling is error without injury, when it appears that the question was not answered.

3. The introduction in evidence of illegal and irrelevant evidence is without prejudice to the person objecting to the introduction of such evidence. The fact sought to be established thereby had been previously proved and admitted in the case.

4. Where an action of assumpsit is prosecuted by "Warner-Smiley Co., a partnership composed of W. M. Newton and G. D. Smiley," and there is no evidence that the defendant owed Newton and Smiley, or the firm composed of these persons, but the testimony shows that the firm of Warner-Smiley Co. was composed of said Newton and Smiley and one Shaw, there is a variance which is fatal to the recovery by the plaintiffs, and the defendant is entitled to the general affirmative charge against the plaintiffs' claim.

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Attachment by Warner-Smiley Company against Guy Cooper. Judgment for plaintiffs before a justice on appeal. Judgment for defendant, and plaintiffs appeal. Affirmed.

The affidavit shows that the amount claimed to be due the plaintiffs from the defendant, Guy Cooper, was for board of a horse. The complaint filed in the case on the day of trial in the justice court, August 11, 1898, however, describes the plaintiffs as a body corporate; but no point was made on this variance between the plaintiffs as described and mentioned in the affidavit and in the complaint, and the final judgment in the case designates the plaintiffs as a partnership composed as aforesaid, and it is in such capacity that the appeal is taken by them. The complaint also claims an amount, there stated ($13.70), for board of one brown horse. A judgment was rendered for the plaintiffs by the justice of the peace, and an appeal was taken by defendant to the city court of Birmingham, where the case was tried de novo, upon the same pleadings filed in the justice court. Four pleas were interposed by the defendant, the first being nil debet; the second, the general denial of the allegations of the complaint; the third, a special plea setting up that the horse for the board of which the suit was brought was bought by defendant from plaintiffs with a warranty that he was sound and well, and was suitable for the purposes for which defendant wanted a horse, and that there was a breach of the warranty, that the horse was not sound and well, and that the horse was, because of said breach, left at plaintiffs' stable, at their request, for treatment, and defendant did not agree to pay plaintiffs for the board of the horse. The fourth plea was a plea of recoupment, in which the defendant averred that the account sued on was for the board of a horse which the defendant bought from the plaintiffs, with a warranty that the horse was sound and well and suitable for the purposes for which the defendant wanted a horse; that there was a breach of said warranty, in that the said horse was not sound and well, and was not suited for the defendant's purposes; and that the defendant was damaged by reason of said breach of warranty to the extent of $80, which he asked to be recouped against the amount claimed, with judgment against the plaintiffs for the excess. There were no demurrers interposed to these pleas. The plaintiffs introduced in evidence the account sued on, amounting to $16.70, and one of the plaintiffs testified that the defendant had made a payment on this account, reducing it to $13.70. J. B. Smiley, one of the plaintiffs, testified that the items of the account sued on were for the board of a horse which the plaintiffs had sold to the defendant; that this horse was sold to the defendant for $159,-$75 cash, and for the balance the de

fendant gave his note; that this note was discounted by one Bob Garry, who at the time was the owner of said note. The evi dence for the plaintiffs further tended to show that at the time of the sale of the horse to the defendant they did not guaranty him to be well and sound, nor did they guaranty him to be suitable for a lady to drive. The defendant, as a witness in his own behalf, testified that he went to the stable of the plaintiffs for the purpose of buying a horse, and told the plaintiffs that he wanted a horse that was fast, and that was gentle and suitable for a lady to drive; that the plaintiffs showed him the horse in question, and told him that he would answer every purpose, and warranted him to be well and sound; that after having purchased the horse he carried him home, and in a few days found that he was sick; that he complained to the plaintiffs about the horse's condition, and the plaintiffs asked him to leave the horse at their stable and they would get him all right; that in accordance with this request he carried the horse to the plaintiffs' stable, and it is for his board for the time he was there that the suit is brought. During the examination of the defendant as a witness he testified "that the horse was not gentle or safe for a lady to drive behind." Plaintiffs objected to this statement, and moved to exclude it from the evidence, upon the ground that it was illegal, immaterial, and irrelevant. The court overruled the objection and motion, and the plaintiffs duly excepted. There was evidence introduced on the part of the defendant tending to show that the horse was not well at the time of his purchase, and had never recovered, and was not well and strong, as he was warranted to be, according to the plaintiffs' testimony. In rebuttal, the plaintiffs examined Bob Garry as a witness, and this witness testified that he had discounted the defendant's note, and was the owner of it at the time. He further testified that he was present at the time of the trade, and that the plaintiffs did not guaranty the horse purchased by the defendant to be sound, and all right. On the cross-examination of this witness he was asked "whether or not he was suing Guy Cooper [the defendant] upon the above-mentioned note." The plaintiffs objected to this evidence because it called for immaterial and illegal evidence. The court overruled this objection, and the plaintiffs duly excepted. The bill of exceptions fails to show that these questions were answered. In rebuttal the plaintiffs offered to introduce in evidence the note referred to. The defendant objected to the introduction of this note, the court sustained the objection, and the plaintiff's duly excepted. It was admitted by plaintiffs that the horse in question was too wild to be safe for a lady to drive. Upon the introduction of all the evidence, the court, at the request of the defendant, gave

to the jury the following written charges, to the giving of each of which the plaintiffs separately excepted: "(1) The court charges the jury that if they believe from the evidence that the horse was left at plaintiffs' stable at their request, so that the horse could be treated, and defendant did not agree to pay for the board thereof, then they shall find for the defendant. (2) The court charges the jury that if they find from the evidence that the defendant told the plaintiffs the purposes for which he wanted a horse, and the plaintiffs sold the said horse to defendant, with a representation that the horse was suitable for such purposes, then they shall find for the defendant, if they find further from the evidence that the defendant was damaged thereby as much or more than the amount claimed in this action. (3) The court charges the jury that if they find from the evidence that the plaintiffs requested the defendant to leave the horse at their stable so that he could be treated and be got in condition for the defendant to use, and it was not the understanding by and between the plaintiffs and defendant that the defendant should pay the board of the horse while at the stable for such treatment, then they shall find for the defendant." There were verdict and judg. ment in favor of the defendant on his plea of recoupment, fixing his recovery of the plaintiffs in the sum of $83.30.

J. W. Bush, for appellants. James A Mitchell, for appellee.

MCCLELLAN, O. J. The sufficiency of pleas 3 and 4 was not tested by demurrer, but issue was taken upon them. Therefore whether the facts set up in plea 3, abstractly considered, presented a good defense to plaintiffs' claim for board of defendant's horse or not, defendant was entitled to a verdict upon proof of them. Similarly, though plea 4 may have in point of legal fact been bad as a plea of recoupment, because the matters set up in it did not grow out of or were not sufficiently connected with the transaction counted on by the plaintiffs, yet the defendant was entitled to recover the damages he claimed therein if he proved the facts averred; and he was entitled, of course, to adduce evidence under, and to have the issues presented by, the pleas respectively submitted to the jury, if there was any evidence tending to support them. There was evidence tending to show that defendant told plaintiffs the purposes for which he wanted a horse, viz. for a lady to drive, and that plaintiffs represented that this horse was suitable for that purpose. All this was competent under plea 4, and it was further competent for defendant to show that the representation was untrue that "the horse was not gentle nor safe for a lady to drive |

behind." If it was error to allow defendant to ask the witness Garry whether or not be was suing Cooper on the note given for part of the price of the horse, it was error without injury, as the question was not answered. It is insisted for appellants that they were prejudiced by the exclusion of this note from the jury, because the paper showed that it was negotiable, and hence would have rebutted any inference of interest on the part of Garry as a witness to testify favorably to plaintiffs, arising from the fact that he was suing Cooper on the note, etc. But that the note was negotiable was already a fact proved and admitted in the case, so that plaintiffs could not have been hurt by the refusal of the court to allow the paper to go in evidence.

There was a material variance between the complaint and the proof in respect of the membership of the partnership prosecuting the suit and holding the alleged claim against Cooper. It is made to appear that the suit was prosecuted by "Warner-Smiley Co., a partnership composed of W. M. Newton and G. D. Smiley." This was, in legal effect, an action by Newton and Smiley. There was no evidence that the account sued on was due to such partnership, or the members composing it. To the contrary, Newton testified "that he was a member of the firm of Warner-Smiley Co., and that the other members of said firm were G. D. Smiley and E. T. Shaw; * that said firm had an account against the defendant, Guy Cooper, for sixteen dollars and seventy cents;" that Cooper paid certain items of the account after suit brought (possibly while the suit was prosecuted as a corporation); "and denied that he owed the other items, and that said account was just, correct, and unpaid;" and this was all the evidence on the point. There being no evidence that defendant owed Newton and Smiley, or a firm composed of Newton and Smiley, as alleged in the complaint, but the only evidence being of an indebtedness to a partnership composed of Newton, Smiley, and Shaw,-that is, to Newton, Smiley, and Shaw,-there was a variance fatal to a recovery by plaintiffs, and defendant was entitled to the affirmative charge against plaintiffs' claim. It follows that, if errors were committed by the court in giving the first and third charges requested by defendant, they were not prejudicial to the plaintiffs.

It was proved beyond controversy and admitted by plaintiffs that the horse was not suited for a lady to drive. Referring the second charge given for defendant to this admission and proof, appellants can take nothing on account of the court's action in giving it.

The judgment must be affirmed.

HIERONYMUS et al. v. BIENVILLE WATER SUPILY CO.

(Supreme Court of Alabama. Nov. 27, 1901.) WATER RENT - PAYMENT IN ADVANCE-DEFAULT-CUTTING OFF SUPPLY-EVIDENCE QUESTION FOR JURY.

1. A water company, though exercising quasi public functions, may reasonably require payment in advance by the consumer and enforce the requirement by cutting off the supply for noncompliance therewith.

2. A provision in a contract with a water company for a supply of water that it shall continue "until either party shall give the other thirty days' notice of their desire for a discontinuance" does not affect the right of either party to stop performance on the default of the other.

3. A contract with a water company for a supply of water which provides that it shall continue for one year and "thereafter until either party shall give the other thirty days' notice of their desire for a discontinuance" cannot be construed as running from year to year, after the first year, or as committing the company to supply water during the whole of a subsequent year merely by failing to act on the consumer's default at the commencement of such year.

4. Where an agreement between a water company and a consumer, separate and distinct from the contract for water supply, provides that the rent shall be paid in advance, the company's recovery by suit of an installment for a particular period will not preclude it from subsequently setting up a right to shut off the water during such period for nonpayment therefor.

5. Where the written contract with a water company was silent as to whether the water rent was payable in advance, and the evidence as to whether a subsequent additional agreement so provided was conflicting, the question was for the jury.

6. On an issue whether water rent was payable in advance, evidence relating to transactions between the parties under the contract was admissible as revealing their understanding as to the time for payments.

Appeal from circuit court, Mobile county; John C. Anderson, Judge.

Action by Hieronymus Bros. against the Blenville Water Supply Company. Judgment for defendant, and plaintiffs appeal. Reversed.

Gregory L. & H. T. Smith, for appellants. Bestor & Gray, for appellee.

SHARPE, J. This suit is upon a contract which included an undertaking on defendant's part to supply water to a hydrant at plaintiffs' sawmill, and intended to be used for the extinguishment of fires. The cause of action averred is. in substance, that defendant on April 17, 1897, discontinued the supply of water, in consequence of which, on May 1, 1897, plaintiffs suffered a loss by fire of their mill and other property located thereat. The seventh count of the complaint sets out the contract relied on as having been in writing, and which contains recitals of the uses for which the water was desired, and the water company's willingness to supply the same "in accordance with their rules and regulations governing their water consumers," and the following provisions: "As an inducement to the

party of the second part to make to the party of the first part a rate of charges for water less than their established regular meter rates, the party of the first part agrees to take from the party of the second part at least 1,600,000 gallons of water per year, and to pay therefor monthly at the rate of ten cents per 1,000 gallons. The party of the first part further agrees to pay to the party of the second part for the use of the fire hydrant twenty-five dollars per year, in semiannual installments of $12.50 on the first day of May and November of each year, and to use the hydrant for the extinguishment of fires only. In consideration of the agreement of the party of the first part to take from the party of the second part at least 1,600,000 gallons of water per year, and to pay therefor monthly, the party of the second part binds itself to accept payment for the measured water at the rate of ten cents per 1,000 gallons; said payment to be made in lawful money during the month following the time the monthly consumption was reckoned for. The life of this agreement is for one year, commencing January 1st, 1894, and to continue thereafter until either party shall give the other thirty days' notice in writing of their desire for a discontinuance." The defense, as set up by several special pleas and by a rejoinder, is substantially that by agreement of the parties the water supply to the fire hydrant was due and payable in advance for the period extending from November 1, 1896, to May 1, 1897; that the same was not paid at any time before the fire occurred, wherefore the defendant avers by the second plea that it "terminated said contract by cutting off said water," and by the third plea that it "rescinded said contract and cut off said water," and by other pleas that it had a right to turn off the water from the fire hydrant. Demurrer to these pleas having been overruled, plaintiffs, besides replying generally, filed special replications, one of which, after referring to the written contract, averred that "on the 1st day of January, 1897, defendant had given no written notice to the plaintiffs of its intention or desire to terminate said contract, and the parties entered upon its performance for the term of another year, viz., from the 1st day of January, 1897, to the 1st day of January, 1898, and under the terms of said contract the first installment upon the rent for said term was not payable until the 1st day of May, 1897, which day had not arrived at the time of said fire." To this there was a rejoinder setting out the written contract, and averring a subsequent promise by plaintiff to pay in advance, which averment was put in issue after demurrer overruled. Some counts of the complaint and some replications averred substantially that in a former suit defendant recovered of plaintiffs for water supplied to the fire hydrant between November, 1896, and May, 1897. These replications were, on demurrer, disallowed.

That damage by fire may be shown to have