The statute gives a lien to every mechanic, or other person, who shall furnish any materials, fixtures, engine, boiler or machinery, for any building, erection, or improvement upon land, or for repairing the same, under and. by virtue of a contract with the owner or proprietor thereof, upon such building, erection, or improvement, and upon the lot upon which the same is situated, if in any town, city or village. The lien may be lost or defeated by non-compliance with the subsequent provisions of the statutes. To complete the lien, the claimant, if an original contractor, must, within six months after the indebtedness has accrued, file with the judge of probate, of the county in which the property is located, a just and true account of the demand due him, after all just credits have been given, with a description of the property, or so near as to identify the same, on which the lien is intended to apply, and the name of the owner, which statement must be verified ; and must commence suit within ninety days after filing the lien. Code, 1876, §§ 3440, 3444, 3454. " .
It appears from the record that the plaintiffs furnished materials for a planing-mill, erected on the land described in the complaint, under a contract with the owner thereof. They are, in the meaning of the statute, material-men, and original contractors.—Geiger v. Hussey, 63 Ala. 342.
It is objected, that no lien attaches, because, as alleged in the statement filed, and as set forth in the complaint, the plaintiffs claim a lien on two distinct lots, for materials for a mill erected only on one of them. The ground of the objection is, that a lien is asserted on the lot, on which the mill is erected, and on the wharf and water privileges in front. The contention is not supported by the statement as filed, or as alleged in the complaint. If it were conceded that a lien was claimed on two lots, the statement and complaint show on what lot the mill is erected, and describe it with reasonable certainty. The claim of a lien on the wharf and water privileges, to which no lien attaches, does not vitiate the lien on the lot, on which the mill is located, the same being sufficiently described.—Bedsole v. Peters, at present term; ante, 133.
The material questions are, did the plaintiffs take the necessary steps to complete the lien % or have they waived it by their conduct and dealings? The undisputed facts are: The Danner Land and Lumber Company owned and operated several mills in the counties of Mobile and Baldwin ; the plaintiffs furnished materials for all the mills, and kept a current account, including all the items furnished for all the mills, according to the dates of delivery, which commenced in October, 1883, and continued until June 28,1884. At stated dates, the company executed to the plaintiffs four several notes of *161different amounts, bearing different dates, and maturing at different times, which were entered as credits on the account. The notes, in the aggregate, covered the amount of the current account, at the time the last note was given, except a small balance. The notes were given without reference to the mill for which any particular items were furnished. The last note bears date September 8, 1884, and is payable six months after date. The notes were given for the amounts due f.or materials furnished for the different mills indiscriminately, so that it is impossible to tell what particular items entered into any particular note. On December 20, 1884, a verified statement was filed in the office of the judge of probate, and the suit was commenced January 6, 1885.
Generally, the- acceptance of the note of a debtor is not, ‘prima facie, payment of an antecedent debt. To operate an extinguishment of the original indebtedness, the note must, by agreement of the parties, express or implied, be received in payment. A contractor may accept, in consideration of the materials furnished, the note of the owner or proprietor of the land, as a convenient mode of liquidating the account, without waiving the lien. The original indebtedness is not thereby extinguished, but the right of action is suspended until the maturity of the note. After maturity, the note being unpaid, he may bring suit on the original indebtedness, and surrender the note. If the notes were not received in payment, and matured before the expiration of the time within which suit must be commenced, the statutory lien, is not thereby waived or defeated, the statutory requirements having otherwise been complied with.—McMurray v. Taylor, 30 Mo. 263; Miller v. Moore, 1 E. D. Smith, 739. The plaintiffs had ninety days after filing the lien within which to commence suit, and all the notes matured before the expiration of the time. The charge given at the request of defendants asserts the legal proposition, that there is no lien, if any material portion of the account was embraced in a note, which extends the time of payment beyond the day on which the suit was actually brought, though the extension is not beyond the time in which suit must, under the statute, be commenced. The legal effect of the mere acceptance of the notes is to postpone the time of bringing the action, and does not defeat or waive the lien, unless by the time of extension the plaintiffs disable themselves to commence suit within the time prescribed by the statute.—Steamboat Charlotte v. Hammond, 9 Mo. 58; Phillips on Mec. Liens, § 282.
But, when a note is taken, which does not extend the credit beyond the time in which suit must be commenced to complete the lien, though received as conditional payment, the *162contractor can not ’maintain an action, to enforce the lien, on the original indebtedness, without producing and surrendering the note at the trial, or satisfactorily accounting for its absence. The policy of the law is to guard the owner or proprietor against a double liability by reason of its assignment to an innocent holder, especially when the note is commercial paper. Mooring v. Mo. M. D. & M. Ins. Co., 27 Ala. 254; Phillips on Mec. Liens, § 277; 2 Benj. on Sales, § 1084. The notes were filed in the office of the register in chancery, after the commencement of this action, as evidences of a valid and subsisting indebtedness due by the Danner Land and Lumber Company, in a suit pending in the Chancery Court, wherein the assets of the company are being marshalled. At the same time, the plaintiffs claimed alien on lan'ds of the company for materials furnished the several mills, and filed an account showing the amount of materials furnished each mill. The plaintiffs, have received a dividend of $903.90. being fifteen per cent, on the aggregate sum of $6,026.05. The notes were not produced at the trial, nor was there any offer to surrender them. The use made of the notes, the reception of the dividend, and suffering them to remain on file,-are incompatible with their surrender. The charge requested by the plaintiffs is abstract, there being no evidence tending to show a surrender of the notes, and was properly refused. Whether the plaintiffs, under the circumstances, have placed themselves in a position so that they can not surrender the notes as required by law, is a question not raised in the trial court, and which we do not decide.
On July 4, 1884, the Danner Land and Lumber Company conveyed the land in controversy to the Bank of Mobile, and thereafter, during the same month, the Bank of Mobile executed a general assignment of all its property to Jones, for the benefit of its creditors. The real controversy, as respects the lien, is between the plaintiffs and Jones, as assignee. It is insisted that the judgment should be affirmed, though there may be error in the rulings of the court. In order to perfect a lien, which shall override subsequent incumbrances, the contractor must; within six months after the indebtedness has accrued, file with the judge of probate a just and true account of the demand due 'him, after all just credits have been given. The bill of exceptions states, that evidence was introduced tending to show that the materials were furnished under “ a single continuing contract,” while the invoices indicate that they were furnished under different contracts, evidenced by separate and distinct orders. If the materials were furnished in pursuance of a single continuing contract, such as to1 furnish materials for a building about to be erected, or in pro*163cess of construction, the period within which the statement must be filed with the judge of probate commences to run from the delivery of the last items. But, if the materials were furnished under separate orders or requests, in pursuance of a general agreement or understanding to furnish such materials as may be needed, from time to time, for repairing or replacing machinery in the mill, and as ordered, then each order or request is a separate contract, and the statement must be filed within the time limited after delivery upon each order. In such case, no lien attaches for any materials furnished exceeding six months prior to the filing of the statement. Livermore v. Wright, 33 Mo. 31; Phillips on Mec. Liens, § 324. Although, on admitted or uncontroverted facts, whether the materials were delivered under one or several contracts, would be a question of law, where the facts are disputed, the question is for the determination of the jury.
It appears that cash payments were made at different times, amounting in the aggregate to nearly one-third of the entire account, and were entered as general credits on the account current for materials furnished for all the mills,without special appropriation to the indebtedness for materials delivered for any particular mill. When the plaintiffs filed the account for a lien for materials furnished the planing-mill, no portion of these payments were given as credits. When neither the debtor nor creditor makes a special appropriation of the payments at the time they are made, but they are entered as general credits on the general account, the creditor is without right to make a special application thereafter to any special part of the account, to serve his-interests, as maybe subsequently developed. A pro-rata portion of the payments should have been given as credits on the account filed for a lien on the planing-mill. The omission to give such credits was not filing “a just and true account,” as required by the statutes; and if intentionally omitted, for the purpose of increasing the amount of the lien on the planing-mill, such omission would be a fraud in law, and would vitiate the entire lien as against the title of Jones.—Hoffman v. Walton, 36 Mo. 613; McWilliams v. Allen, 45 Mo. 573. The dividend received should also be apportioned.
As the evidence is not clear and satisfactory in respect to the contract, and as the subsequent appropriation of payments may be subject to explanation, we can not concur in the proposition of counsel for appellee, that the judgment should be affirmed, though the charge requested by defendants is erroneous. An erroneous ruling or instruction is not regarded as error without injury, unless, on the evidence disclosed by the record, the court would be justified in giving the affirmative *164charge in favor of the appellee.—Donley v. Camp, 22 Ala. 659; Baker v. Barclift, 76 Ala. 414.
We discover no error in the record, other than the one mentioned.
Neversed and remanded.