Opinion
37749.
DECIDED SEPTEMBER 14, 1959.
Action to foreclose subcontractor's lien. Fulton Civil Court. Before Judge Henson. April 30, 1959.
Hamilton Douglas, Jr., Haas, White Douglas, for plaintiff in error.
Haas, Holland Zinkow, contra.
Although an improvement installed by a subcontractor may be faulty or defective because of improper construction of the foundation by his prime contractor, the subcontractor may assert his lien against the property, but only to the extent of the reasonable value of the improvement to the owner.
DECIDED SEPTEMBER 14, 1959.
Joe Barberi filed his action in the Civil Court of Fulton County to foreclose a subcontractor's lien against the property of Mrs. Audrey F. McCrary. It appears from the evidence that in August, 1957, the plaintiff entered into a verbal agreement with Peace Company, general contractors, to install tile floors and walls in two bathrooms of the defendant's home at an agreed price of $537. This installation was completed by the plaintiff, who, not having been paid therefor, obtained a judgment against the prime contractor in April, 1958, and subsequently filed the present action. While no complaint was received by the plaintiff from the defendant prior to the institution of the suit, he testified that "now we know there is room for complaint"; that when he inspected the job prior to the trial he found that in the large bathroom "the floor is just in a mess. It's cracked It's falling. It's sinking down on the sides of the wall. The tub is sinking and is bringing the tile with it, and the floor, as they say, is unfit for its purpose"; that "if the bathroom was mine, I'd lock the door and not let anybody get in the bathtub because it looks like one of these days, it's going to fall through." The plaintiff also testified that he did not inspect the floor foundation prior to installing the tile and that he never did so on any of his installation jobs. He further testified that it would cost more to tear up the defective tile in the large bathroom than it did originally to put it down; that the cost of tearing up the present floor tile in the large bathroom and replacing would be $151, not including the cost of taking out the tub and reworking the plumbing thereto; that the cost of repairing the wall tile work in the small bathroom would run about $20 or $25.
William Turner testified on behalf of the plaintiff that he was a general contractor, and, at the plaintiff's request, inspected the two bathrooms in question prior to the trial and found that the floor had sagged in both of the bathrooms, the large bathroom being a lot worse that the other; that the sinking of the floor was what caused the damage to the tile work; that he had inspected the structural supports under the large bathroom and found that there was not sufficient support thereunder to carry the weight of the bathroom fixtures, "that's where there's no support for eleven feet, and under an ordinary room, under a bedroom or any room except a bathroom, that's fine," but that additional support is needed under a bathroom to support the extra weight of tub and tile; that he had found an actual bow in the floor joists and that "it's actually dangerous now, too"; that according to the custom of the trade, the wall and floor is supposed to be ready for the tile man when he comes and that the prime contractor is supposed to see that everything is right before subcontractors are called in.
The defendant testified that she employed Peace Company, Inc., to construct an addition to her home located at 51 Peachtree Way, N.E., in Atlanta, for $11,750 and had paid $10,300 thereof; that the addition to the house is sinking; that she began to notice tiles on the floor and walls breaking loose about one month after the tile work was completed; that "it really is a mess."
At the conclusion of the evidence the trial judge, sitting without a jury, entered judgment in favor of the plaintiff for $537. The defendant's motion for a new trial on the general grounds was denied and she excepts.
We are not dealing with a situation where the prime contractor has abandoned his contract or failed to perform it in its entirety, as in Holmes v. Venable, 27 Ga. App. 431 (4) ( 109 S.E. 175) or Roberts v. Georgia So. Supply Co. 92 Ga. App. 303 ( 88 S.E.2d 554). Here, the prime contractor's work has been completed, but in a faulty or defective manner. This appeal involves the right of a subcontractor to assert a lien for improvements made by him, where, because of faulty construction of the foundation on the part of the prime contractor, such improvements are partially defective. The uncontradicted evidence demands a finding that, except for slight defects of an immaterial nature, the tile floors in the defendant's bathrooms were installed in good and workmanlike manner by the plaintiff subcontractor and that the substantial defects now present in the floors and wall bases are due to the faulty installation of the floor foundation which was the responsibility of the prime contractor.
In this State, a subcontractor has a special lien for work done. Code § 67-2001 et seq., as amended by Ga. L. 1956, pp. 564-570. Mere trivial defects or omissions in the work done by either the prime contractor or the subcontractor in completing the particular improvement which is the subject of the subcontract will not defeat the right to a lien. Here, however, the defect is a substantial one.
Where part of a construction contract is sublet to a subcontractor by a prime contractor, the owner may not be subjected to a lien for any claim or amount which the main contractor could not assert against the owner. Subcontracts are made subject to prime contracts in this connection. The subcontractor is therefore bound by the terms of the prime contract and performs his work subject to notice that his rights to liens against an owner depend on whether the prime contractor could recover a judgment against the owner for the work which is the subject matter of the subcontract. This ruling applies only to work which it is the duty of both the prime contractor and the subcontractor to satisfactorily complete. It does not apply to situations where a prime contractor could not recover from the owner for a part of the work with which the subcontractor was not concerned.
While the question under consideration is novel in this jurisdiction, it has been adjudicated to some extent elsewhere with varying results. See 16 A.L.R. 981. We are impressed by the decisions of the appellate courts of Kentucky as summarized in Monyahan v. City of Lancaster, 168 Ky. 677, 685 ( 182 S.W. 862), which states the following rules: "In other words, the rule laid down in these cases is: (1) That where the original contractor completes the work in accordance with the contract, the property owner will be responsible to mechanics, material men, and subcontractors who have fulfilled their contracts, and who have observed the requirements . . . of the statutes for the amount of their claims that do not aggregate more than the contract price, although the owner may have paid the original contractor the full contract price; (2) that although the improvement may not have been constructed in accordance with the contract, and hence the owner does not owe the full contract price, he will yet be liable to subcontractors, material men, and mechanics who have observed the requirements of the statutes to the extent of the reasonable value of the improvement to him, and cannot set off any claim for damages he may have against the original contractor for failing to perform the work according to contract against the claims of the subcontractors, mechanics or materialmen, although he may have an abatement of their claims to the extent that he was damaged by their failure to perform the contracts they had made with the original contractor; (3) that if the improvement contracted for is wholly worthless to the property owner and of no value at all to him on account of the failure of the contractor to fulfill the contract, then a subcontractor, mechanic, or materialman can assert no claim against the property owner or lien on the property, although he may not be responsible for the conditions that resulted in the improvement being worthless and of no value to the property owner; (4) that in every state of case the property owner may have an abatement of the claim asserted by the subcontractor, mechanic, or materialman to the extent that the property owner sustains damages by his failure to perform his part of the contract." Applying rule (2) to the facts in the instant case, we hold that although the improvement may have been faulty or defective because of improper construction of the foundation by the prime contractor, the defendant owner is liable to the plaintiff subcontractor, but only to the extent of the reasonable value of the improvements to him, which must, of course, be determined by the trier of fact. Since the evidence demands a finding that the tile floors of one or both bathrooms are substantially defective, the verdict for the entire amount of the subcontract price is unsupported by the evidence, and the trial court erred in failing to grant the defendant's motion for a new trial on the general grounds.
Judgment reversed. Nichols, J., concurs. Quillian, J., concurs in the judgment.