¶1The action in this case was instituted by the appellee, Robinson, to recover judgment against A. M. Bagby for materials furnished and labor performed under a contract with him, who had contracted with R. M. Greene, owner or proprietor of a lot and brick building, and to enforce a material-man’s and laborer’s lien upon the property. It is manifest that the whole proceeding, trial and judgment, were begun and completed under the act of 1890-91, p. 578, which act in its entirety has been declared unconstitutional and void.—Randolph et al. v. Builders and Painters Supply Co., 106 Ala. 501. The view we take of the. case renders it wholly unnecessary to consider in detail a question the subject of so much controversy, and that is, as to what pleas were filed by the defendant Greene on the'trial. The act of 1890-91, supra, having been declared unconstitutional, plaintiff must recover, if he recovers at all, under the provisions of the Code, the only valid law in force, under which the rights of the parties accrued. The complaint shows that Bagby had contracted with Greene to furnish the material and labor for the repair and improvement of the building. Bagby was the original contractor, and the plaintiff’s right and lien, whatever they are, arose from his contract with Bagby. The law is very clear that it is only the “unpaid balance in the hands of the owner or proprietor” at the time of notice to him, that can be made subject to plaintiff’s claim, and for which a lien can be enforced. — Code of 1886, § 3026. The plaintiff’s testimony showed that he gave *508notice of his claim on the 19th of November, 1894. It was entirely competent for the defendant Greene to prove, if he could, that nothing was due Bagby at that time. The court erred in excluding evidence to that effect.
¶2If the material furnished and labor performed to build the hearth was an independent contract made with McCullough, and was no part of the contract for repairing and improving the building under which the plaintiff claims, and imposed a distinct and separate liability to a different person, this item of charge could not operate to avoid the statute of limitations of six- months. Under the influence of the decision of Leftwich Lumber Company v. Florence Association, 104 Ala. 584, we are of opinion the account filed was sufficient. The defendant when sued had the right to demand a list of the items which composed the sum demanded and thereby protect himself from surprise.
¶3It is not clear whether the court intended to render a personal judgment against both the contractor and owner or proprietor. It can be amended nunc pro time so as to relieve the case of this embarrassment. It may be that the pleadings may be so amended, as to bring plaintiff’s demand entirely within the provisions of the Code. Wo will, theiefore, annul the judgment of the circuit court, declaring a lien and condemning the property to sale, and. reverse and remand the cause.
¶4Reversed and remanded.