(dissenting) :
It is my opinion that summary judgment for the appellee was properly granted. Therefore, I respectfully dissent.
The Alabama statute, Tit. 50, § 16, covers materials supplied “for * * * the prosecution of the work.” As the majority point out, this encompasses materials diverted from the job as well as those incorporated into, or used on, the job. Once the issue of diversion as a defense was out of the way, there remained no genuine issues of material fact, and the supplier was entitled to summary judgment. In my view it had shown by affidavit that it had supplied the materials involved “for * * * the prosecution of the work” and that it was unpaid; the surety did not by its affidavit put in issue any material fact relating thereto by anything that reached the dignity of admissible evidence.
There is one additional point. The majority refer to the “mental state” cases such as Alabama Great Southern1 and Azalea Meats 2 Some of the cases of suits by suppliers use the term “good faith” in a redundant manner to emphasize or paraphrase that the materials really were supplied for the prosecution of the job involved. In fact the district court used the term in granting summary judgment in this case. But the statutory requirement is that the materials be “for * * * the prosecution of the work.” The mental operations of the supplier have no significance except in terms of the statute. Whether the supplier meets the statutory requirement involves some subjective elements — for instance it is obvious that a supplier would not be furnishing materials for the prosecution of job A if he knew they were for job B but billed them to job A anyhow.
But it seems to me to be a source of possible misunderstanding, especially in summary judgment cases, to engraft a *279judicial gloss that can be construed to be a subjective requirement of a scope broader than what the statute calls for and of undefined limits. I do not understand that any such broadening is intended by the majority in this case.
. Alabama Great Southern R.R. v. Louisville & N. R.R. 224 F.2d 1 (5th Cir. 1955).
. Azalea Meats, Inc. v. Muscat, 386 F.2d 5 (5th Cir. 1967).