
    Willingham v. Long.
    
      Action by Material-Men to enforce Statutory Lien on House.
    
    1. Statutory lien of material-man. — A person who furnishes lumber and materials to be used in the construction of a house, and which_ are so used, has a'statutory lien on the house, and on the lot on which it is situated (Code, §§ 3440-61), whether his contract was made directly with the owner, or with the mechanic who undertook to do the work.
    Appeal from the Circuit Court of Russell.
    Tried before the TIon. James E. Cobb.
    This action was brought by W. A. Willingham, against James W. Long, to recover the sum of $205.83, the price of lumber and materials furnished by plaintiff to defendant, to be used in the construction of a house, and also to enforce a statutory lien on the house (and the lot on which it was situated, which was particularly described in the complaint); and was commenced on the 18th September, 1879. The complaint alleged, and the proof showed, that the lumber and materials were furnished by the plaintiff, under a verbal contract made personally with the defendant, between the 7th December, 1878, and the 16th Februai’y, 1879, to be used in the construction of a house by the defendant, and- were so used; that on the 11th June, 1879, “within four months after the said indebtedness accrued,” plaintiff filed in the office of the probate judge a just and true account of his said' demand, with a description of the house and lot, verified by affidavit, as required by the statute. The plaintiff himself testified, as a witness in his own behalf, to the terms of his contract with the defendant, the furnishing of the lumber and materials as specified in the account, and the price or value; and he proved by one George W. Cooper, who did the work on the house, that the lumber and materials were used in its construction. As to these matters, and as to the due registration of the claim, there was no controversy. “It was admitted, that the defendant’s said house and lot were correctly described in the complaint, and in the claim filed in the Probate Court; that plaintiff’s account was correct, and that the articles therein mentioned were used in the construction of the defendant’s said house. This being all the evidence, the court charged the jury, that if they believed, from the evidence, that the materials so furnished by plaintiff to defendant were furnished under and by virtue of a contract made between them, then plaintiff had no lien, and no right to a lien, upon the defendant’s said house, or house and lot.” This charge, to which the plaintiff excepted, is now assigned as error.
    Hoopers & Waddell, for appellant.
   STONE, J.

On the authority of Welch v. Porter (63 Ala. 225), and Geiger v. Hussey (Ib. 338), the judgment in this cause must be reversed.— See, also, Phil. Mech. Lien,§§ 12, 112.

Reversed and remanded.  