Opinion
38783.
DECIDED JUNE 14, 1961.
Materialman's lien. Fulton Civil Court. Before Judge Wright.
S. S. Robinson, for plaintiff in error.
Fryer Harp, William R. Harp, contra.
1. ( a) Where material is furnished by a materialman for the improvement of real estate and charged on an open account, a lien for it recorded by the materialman within three months from the furnishing of the last item of material charge upon the count is timely recorded under Code Ann. § 67-2002 (2).
( b) A petition for imposition of a lien upon real property in favor of a materialman which alleges a contract between the contractor and owner of the realty and that the amount of lien claimed was within the contract price is sufficient under the lien statute, although it does not allege the price the owner had agreed to pay the contractor.
( c) Where the petition alleged a contract between the contractor and the owner of the realty improved, there is no necessity for the materialman to allege a contract between himself and the owner, and under the present statute the materialman does not have to allege that he made a demand upon the owner of the realty for payment.
2. The materialman's lien as filed in the records of the superior court, being timely recorded, was properly admissible in evidence in the action to impose the lien upon the property.
3. Under the mechanics' and materialmen's lien statute, it is not necessary that the materialman, in selling the materials, act in reliance upon the contract between the owner of the property and the contractor. Code Ann. §§ 67-2001, 67-2003.
4. Where the materialman seeks to impose a lien for material furnished a contractor for improving real estate, the owner of the realty has the burden of showing that the money paid to the contractor was applied only to liens which could be asserted against the property, and where this is not shown, payment is no defense.
DECIDED JUNE 14, 1961.
The plaintiff brought this action under Code §§ 67-2001-2, to impose a lien in its favor upon the property of the defendant Hill for materials supplied by the plaintiff to the Whitakers, doing business as Whitaker's Heating Contracting Co., and used to improve the defendant Hill's property. The petition alleged that the materials as itemized in an attached exhibit were supplied to the Whitakers, and that the Whitakers used the materials to improve the real property of the defendant Hill pursuant to a contract between the Whitakers and Hill. The petition further alleged that the plaintiff had filed its claim of lien with the Clerk of Fulton Superior Court within three months of the time of furnishing the materials.
The defendant Hill filed general and special demurrers which contended that the petition was defective in that it failed to show a contract between the plaintiff and himself, and failed to allege facts to show on his part any knowledge, consent, authorization, approval, or ratification of the sale of any of the materials to be used on his property, and that it is further defective in failing to allege facts to show a demand for payment had been made upon him. These demurrers were overruled.
The defendant Hill then amended his answer alleging that he had paid the contractor in full, and charging that one of the items sold was unsound and unsuitable.
It was stipulated by counsel at the trial that all the merchandise described in the invoice attached to the petition was in fact delivered by the plaintiff to the defendant Hill's residence with the exception of the last two items. One of these last two was installed by the sales engineer of the plaintiff to correct some excessive vibration plus some charges for the service.
The defendant Hill admitted at the trial that he had engaged the Whitakers to do some air conditioning work on his property, and that the amount to be paid for this work was in excess of $1,411.26 claimed by the plaintiff under the materialman's lien.
Paragraph 3 of the petition alleged a contract between the two defendants, but the answer merely denied the existence of a contract between the plaintiff and one of the defendants.
At the conclusion of the trial, the trial court entered judgment against the defendant contractors, and adjudged that the plaintiff's lien as a materialman to the amount of the judgment and cost be set up upon the property of the defendant Hill.
Hill made a motion for new trial on the general grounds, to which by amendment were added the following special grounds: 4. Because the materialman's lien of the plaintiff as filed in the records of the Superior Court of Fulton County, Georgia, was illegally admitted into evidence over the movant's objections, for the reasons that, in Hill's language: "a. At the time said exhibit was offered and admitted into evidence, there was no proof that the items set out in [enumerated invoices] were based on a written contract or an open or running account but rather that they were separate and individual sales and that at the time said lien was filed of record, as appears from the face thereof, it was barred by the statue [sic] of limitations as respects those items under date prior to September 3, 1959; b. That no where in the record, even after said lien had been illegally admitted into evidence, is there evidence to authorize it without qualification as to the items entered on invoices under prior to September 3, 1959; c. That the evidence, in favor of K. B. Hill, was uncontradicted that the items set out in said invoices were paid for by K. B. Hill on a cash and carry basis and prior to the time said lien was filed of record as aforeshown; d. That evidence in favor of K. B. Hill was uncontradicted that the items set out in [certain invoices] were so defective as to be entirely unserviceable to said movant for the purpose for which they were sold."
5. "Because the court erroneously overruled movant's motion for judgment at the conclusion of plaintiff's evidence for the reason that: a. Plaintiff alleged that its claim was based on the existence of a contract between defendants Arthur Whitaker, Sr. and Arthur Whitaker, Jr. individually and d/b/a Whitaker's Heating Contracting Company and defendant K. B. Hill which was denied by plaintiff by its own testimony through its agent, Doyle Comer and the defendant, K. B. Hill. b. That plaintiff's case was wholly unsupported by any evidence that it had sold the merchandise set out in the aforestated invoices to the defendants, Arthur Whitaker, Sr. and Arthur Whitaker, Jr. d/b/a Whitaker's Heating Contracting Company in reliance upon the existence of any type of contract or open account between said defendants and the defendant, K. B. Hill. c. That plaintiff's testimony that the items set out in [two invoices, one dated August 7, 1959, and one dated September 3, 1959] constituted a part of the original sale of the items set out in invoice . . . dated July 2, 1959, are in unreconcilable contradiction with plaintiff's pleadings and its evidence in that plaintiff's testimony showed conclusively that the items set out in invoice . . . dated July 2, 1959, constituted a complete and going air condition system whereas the items set out in [the two invoices dated August 7, 1959, and September 3, 1959, respectively] were either repairs, replacements or additions to said system for which charges for said items and the labor expended were separately made."
6. That the judgment of the court is illegal and void for the reasons: a. That the amount alleged to be due plaintiff by reason of their lien in the sum of $1,411.26 "was in excess of the superior evidence produced on behalf of movant . . . as shown by his exhibit marked `D-2' in the amount of one thousand three hundred fifty ($1,350) dollars, the total sum of the payments made to defendants, Arthur Whitaker, Sr. and Arthur Whitaker, Jr. d/b/a Whitaker's Heating Contracting Company. b. That, based upon the testimony of the plaintiff's witness . . . in respect to the condition and serviceability of Luxaire condition system set out in invoice . . . dated July 2, 1959, in its relation to the items set out in [the ones dated August 7, 1959, and September 3, 1959, respectively] in applying its definition of the word `defective', to wit: The court. `The word "defective" means "having a defect or defects, faulty, imperfect, incomplete, also wanting or locking [sic], one who or that which is affected."' To said testimony, the court committed reversible error in construing the items set out in [two numbered invoices] as constituting an original part of the sale of the unit as set out in Invoice [dated July 2, 1959] rather than as repairs to it for the reason that if said items had been an original part of the sale of the Luxaire conditioning system, but had been left off inadvertently, their subsequent addition to said system would have been without charge either for the items or the labor connected with their attachment to it."
That the court erred in admitting into evidence, over defendant's objection, the following question: "Q. But what I am getting at, the same vibration might disturb one person whereas it might not disturb another person, isn't that right." Mr. Robinson: "That calls for an opinion." The Court: "You put him up here as an expert on air conditioning machines, and he is talking about the noise. Overruled."
"The overruling of defendant's objection was error for the reason that said question called for the expression of an opinion on the part of the witness in the field of medical-psychology, a matter upon which the witness had expressed no special claim of qualification and upon which plaintiff had laid no foundation for such a question."
8. That the court erred in failing to enter judgment in favor of the defendant, for the reasons that in paragraph 1 of the amended plea and answer of the defendant the defendant alleged that the items set out in five designated invoices attached to and made a part of the plaintiff's petition constituted a single, entire, and complete order of sale, and that they were not filed as liens within the time required by law; and (b) that in paragraph 2 of the amendment the defendant alleged that the air conditioning unit set out under the invoice was unsound, unsuitable for the purpose for which sold, and was of no service to the defendant; and (c) that the defendant paid cash to the contractor for the materials purchased, and this payment was made before the plaintiff made a claim against the defendant Hill and prior to the time the materialman's lien was filed; and d. That on the trial of said case the defendant, K. B. Hill, presented uncontradicted testimony in proof of each of the allegations set out in his said amendment."
The defendant Hill excepted to the trial court's overruling of the motion for new trial as amended on all grounds.
1. We first turn our attention to the question as to whether the trial court correctly sustained the general and special demurrers to the plaintiff's petition. The defendant Hill contends that there must be sufficient allegations in the petition to show there existed between the contractor and the owner of the property improved a specific type of contract or general account which would constitute all of the sales set out in the plaintiff's Exhibit "A" as one single transaction. The petition alleges that the petitioner furnished the building material as shown by the exhibit to the petition to the contractor pursuant to an agreement between the contractor and the defendant Hill, and that the building materials were furnished for use on the property of Hill.
(a) The claim of lien is properly filed if it is recorded within three months of the date of the last item furnished. Thus, "Where material furnished by a materialman for the improvement of real estate is charged on open account, a lien for it recorded by the materialman within three months from the furnishing of the last item of material charged upon the open account is recorded within three months from the completion of the contract. . ." Pippin v. Owens, 29 Ga. App. 789 (1) ( 116 S.E. 549). See also Crane Co. v. Hirsch, 61 Ga. App. 632 ( 7 S.E.2d 83). The evidence in the record shows the materialman charged the materials to the contractor on open account and also justifies the trial court's upholding the lien as timely filed.
(b) The defendant urges that language used by the Supreme Court compels the sustaining of the general demurrer to the petition in the present case. This language, found in the case of Marshall v. Peacock, 205 Ga. 891 ( 55 S.E.2d 354), at page 893, is as follows: "In the absence of allegations of a contract, and the amount to be paid under the contract for materials, the petition failed to state a cause of action for any affirmative relief. . ." In the Marshall case a materialman claiming a lien sought to enjoin the sale of the property by the holder of a deed to secure debt. The facts recited there show that the materialman's petition did not allege a contract with the owner or any other person to furnish material, nor did it allege that the lien which he sought to have foreclosed covered in whole or in part the contract price of the material. On the other hand, in the present case the petition alleges a contract between the contractor and the owner and that the amount of lien claimed by the materialman was within the contract price between the owner and the contractor. Reading the Marshall case as a whole, the statement that the amount to be paid under the contract between the owner and the contractor for materials must be alleged in the materialman's petition appears to be dictum. It was not necessary for the decision in that case, since the plaintiff did not allege a contract between the owner and the contractor, which is required under the statute. If the materialman had to allege in his petition the amount the owner had agreed to pay the contractor for the materials, it would appear impossible for the materialman to frame his petition to meet this requirement, since there is no feasible way for the materialman to determine at the time he files his petition the provisions of the contract between the other two parties. There would be placed an almost insurmountable obstacle to the enforcement of the materialman's lien, since the owner and contractor by refusing to divulge the price agreed upon for materials could by this means prevent the materialman from stating a cause of action in his petition. The Marshall case is cited with approval in Lumber Fabricators, Inc. v. Gregory, 213 Ga. 356 ( 99 S.E.2d 145). However, in those cases there was in the petition no allegation that the materialman had a contract with the contractor or any other person to furnish materials, nor was there any allegation of a contract directly between the plaintiff materialman and the owners of the property.
For these reasons we do not find it to be necessary that the materialman allege in his petition the amount the owner had agreed to pay the contractor for the materials furnished.
(c) The second ground of demurrer, that the petition failed to allege a contract between the materialman and the owner, is obviously without merit, and so is the contention in the demurrer that the materialman has to make demand for payment upon the owner prior to seeking to enforce his lien. The relevant statutes do not require such a demand. Furthermore, the statutes governing the establishment of materialmen's liens are expressed in considerable detail, and the absence of any enunciated requirement in the statutes that a demand be made against the property owner is, we feel, conclusive upon this issue.
The trial court did not err in overruling these general and special demurrers to the petition.
2. The first special ground of the amended motion for new trial contends the materialman's lien as recorded in the records of the Superior Court of Fulton County was illegally admitted, because the material on seven of the invoices was delivered more than three months prior to the filing of the materialman's lien. Under the rulings in Pippin v. Owens, 29 Ga. App. 789 (1), supra, and Crane Co. v. Hirsch, 61 Ga. App. 632, supra, this objection was without merit.
3. The second special ground urges that the evidence does not show that the plaintiff materialman sold the merchandise to the contractors in reliance upon the existence of any contract between them and the defendant property owner. We do not find anything in the statute or the decisions which requires that the materialman, in selling the materials, act in reliance upon the contract between the contractors and the property owner. But even if this were required, the petition alleges the existence of a contract and that the materials were delivered pursuant to it. This, in any event, would be a sufficient allegation to comply with Code Ann. §§ 67-2001-2.
4. The third and fifth special grounds contend that the judgment in favor of the materialman was illegal and void because some of the items sold were defective. The record reveals there is some dispute as to this and that approximately $25 would be required to repair the air conditioning unit. This ground is without merit. The defendant's contract was with the contractor who installed the unit, and his remedy for any improper installation, damage, or defects in the items installed would be against the contractor and not against the plaintiff materialman, with whom the defendant admittedly had no contractual relationship.
Also included in the fifth special ground of the amended motion for new trial is a contention that the court erred in failing to enter judgment in favor of the defendant owner of the property because he had paid cash for the materials purchased from the contractor. This ground is also without merit. The fact that the contractor has been paid for the material, without more, is no defense against the subsequent claims of laborers or materialmen. Thus, "In a suit by a materialman to foreclose his lien for material furnished a contractor for the improvement of the real estate of another, the latter may defend by showing that he has paid the full contract price to the contractor, and that the money has been applied by the contractor to the settlement of debts incurred in the performance of his contract, which would have been liens upon the property improved. The burden is upon the property owner to show that the money which was paid to the contractor was applied only to liens which could be asserted against the property. Prince v. Neal-Millard Co., 124 Ga. 884 [53 S.E. 761, 4 Ann. Cas. 615]." Tuck v. Moss Mfg. Co., 127 Ga. 729, 731 ( 56 S.E. 1001). (Italics ours). The record here reveals that while the defendant property owner proved payment to the contractor, he did not go further and carry the burden of showing that the contractor had applied the payment to valid claims of laborers and materialmen. The defendant cites Wooten v. Ford, 46 Ga. App. 50 (3) ( 166 S.E. 449), which seems to hold that the mere fact of payment by the owner of the building of all the money due to the contractor under the contract prevents a judgment in favor of the materialman. If this interpretation of the Wooten case is correct, that case is in error and conflicts with the prior case of Tuck v. Moss Mfg. Co., 127 Ga. 729, supra, which is controlling, and we think is the proper conclusion. The other grounds of error assigned in the amended motion for new trial are without merit.
Judgment affirmed. Felton, C. J., and Hall, J., concur.