*203ON REHEARING
Vulcan Materials applies for rehearing and asks this Court to decide whether Western Concrete Co. was a “subcontractor” or a “materialman.” The trial court, in its final decree, had found that Western was a “subcontractor.” Since we did not decide this issue on original submission, we now consider it. Vulcan alleged in its cross-bill:
“4. Cross-complainant further avers that in said construction contract between the Board and Fuller, the following provision is contained:
‘It is mutually understood that the Industrial Development Board of the City of Scottsboro is a public corporation of the State of Alabama and that as such its purchases and consumption or use of certain goods, materials and supplies are or may be exempt from Alabama sales and use tax. The Owner and Contractor agree to cooperate in good faith in availing themselves of any such sales and use tax exemption to the maximum extent economically feasible. It is mutually contemplated that the parties shall adopt substantially the following procedure in availing themselves of such exemption:
Purchases by the Board shall be on its purchase order forms and shall be from vendors selected and at prices negotiated by the Contractor; the Contractor will receive and check the purchased items and audit supplier’s invoices and approve them for payment by the Board and will warrant the purchased items and in general assume such other responsibilities with respect thereto as the Contractor would assume under the terms of this Contract in the case of its own purchase of such items. The purchase cost of such items purchased pursuant to this Article XIII plus 4% thereof shall be deducted from the Guaranteed Contract Price but not from the Contractor’s fee portion of such guaranteed amounts. In the event that any such exemptions are disallowed, then the amounts due shall be payable by the Owner who agrees to hold the Contractor harmless from any liability for such amounts.’
“5. Cross-Complainant avers it has furnished materials and supplies in the prosecution of the work provided for in such contract between the Board and Fuller to Western, a sub-contractor of Fuller, and to the extent hereinafter set forth, Cross-Complainant has not been paid for such materials and supplies furnished in the prosecution of the work provided for in such contract; that Cross-Complainant is due the sum Eight Thousand Three Hundred Two and no/100 Dollars ($8,302.00) for materials and supplies furnished for the prosecution of the work provided for in said contract between the dates of June 17, 1966 and August 24, 1967, with interest thereon from August 24, 1967.”
It is apparent that I.D.B. made purchases from Western on I.D.B. purchase orders and that I.D.B. paid Western. It is apparent also that the purpose of such arrangement was to get a tax benefit. Nevertheless, there is a letter in evidence which shows that Vulcan knew that the purchase orders would be made by I.D.B. In original brief, Vulcan argues as follows:
“Appellant argues that there was no contractual relationship between Fuller and Western. It is to be noted that Appellant argues Fuller’s contracts with I. D.B. provide that I.D.B. was given the right to purchase materials from various claimants and that the applicable sales tax was to be deducted from Fuller’s contract. Appellee Vulcan argues that this was merely a sham to save Fuller the 4% sales tax. This arrangement in no way mitigated against the fact that Western was a subcontractor of Fuller.
“Appellant argues that no evidence was introduced as to any contract between Fuller and Western. However, the question arises as to why Revere paid Western’s bill (Vulcan Ex. No. 9).”
*204Exhibit 9, referred to in Vulcan’s brief, was a letter from Revere to Vulcan which said, in part: “We have been authorized by Western Concrete Incorporated to remit directly to you through the Morgan Guaranty Trust Company of New York the sum of $8,916.13 representing $5,916.13 for July purchases and $3,000 for the August pickup.”
The evidence was overwhelming that there was no contractual relationship between Fuller and Western.
In each of Fuller’s contracts with I.D.B., I.D.B. was given the right to purchase certain items of material and the cost of these materials plus 4%, representing the applicable sales tax, was to be deducted from Fuller’s contracts. I.D.B. chose td purchase the concrete for use by Fuller under its contracts in this manner. The record shows that the concrete was prtrchased from Western by I.D.B., not Fuller, pursuant to purchase orders. The cost of this concrete plus 4% was deducted from Fuller’s contracts. It should be noted that this purchasing procedure was also used for the purchase of materials from other suppliers. Western was paid by I.D.B. for the concrete supplied, pursuant to the purchase orders; however, toward the end of the job I.D.B. had the trustee of the bond proceeds, Morgan Guaranty, make joint payments to Western and its creditors. Exhibit 9 referred to above seems to indicate this arrangement was followed.
We find no evidence was introduced by any of the appellees that there was a contract between Fuller and Western. Indeed, the testimony of the Vulcan witness, Lazenby, was to the effect that on July 26, 1966, he received a letter from Revere stating that it had been decided that the concrete would be purchased by I.D.B. on I.D.B.’s purchase order rather than by Fuller on its purchase order. This letter further stated that Western would receive its payment from I.D.B. and not through Fuller. Mr. Lazenby and Vulcan were then directed to negotiate the matter of payment directly with Western.
We think the trial court’s finding that Western was a “subcontractor” of Fuller, under these facts, was clearly erroneous.
Having so decided, we pretermit consideration of argument of Fuller and Aetna that Western, as a supplier of premixed concrete, was a “materialman” instead of a “subcontractor.” We do note that the purchase orders from I.D.B. to Western called for Western to deliver vast quantities of premixed concrete. These purchase orders do not require Western to furnish any labor or equipment in constructing the building. We note two decisions which have held that suppliers of ready-mixed concrete are “materialmen,” not “subcontractors.” United States ex rel. Bryant v. Lembke Construction Co., 370 F.2d 293 (10th Cir. 1966); Dupree v. Gaubert Industries, Inc., 403 F.2d 207 (5th Cir. 1968).
The opinion is extended and Vulcan’s application for rehearing is denied.
Opinion extended: Application for rehearing denied.
MERRILL, HARWOOD, McCALL and FAULKNER, JJ, concur.