Opinion
17430.
ARGUED MARCH 12, 1951.
DECIDED APRIL 9, 1951. REHEARING DENIED MAY 16, 1951.
Petition for injunction. Before Judge Pharr. Fulton Superior Court. January 2, 1951.
Stanley P. Meyerson, for plaintiff.
Herbert Johnson, for defendant.
The trial court did not commit error in denying the injunction sought in this case.
No. 17430. ARGUED MARCH 12, 1951 — DECIDED APRIL 9, 1951 — REHEARING DENIED MAY 16, 1951.
John P. Ogletree filed his petition in equity against West Lumber Company, seeking to enjoin the company from proceeding with a suit in the Civil Court of Fulton County against Ewing Brothers Inc., to foreclose a materialman's lien against described realty; the contention being that John P. Ogletree had contracted with Ewing Brothers Inc. to construct a house on the described premises, and that Ewing Brothers Inc., after partially constructing the house, abandoned the contract, and the sole owner of Ewing Brothers Inc. has absconded, that Ogletree was forced, in order to complete the house, to expend more than the amount of his contract to construct the house, and for that reason, West Lumber Company, which had furnished material to the contractor, Ewing Brothers Inc., was not entitled to enforce the materialman's lien as against the property.
Upon the hearing before the trial judge, the evidence disclosed that John P. Ogletree conveyed by warranty deed the property in question to Ewing Brothers Inc. on May 25, 1949, and the deed was recorded on July 20, 1949. Thereafter, Ewing Brothers Inc. began the construction of the house. Between July 12, 1949, and November 25, 1949, West Lumber Company sold and delivered to Ewing Brothers Inc. material to be used in the construction of the house, this being the basis of the materialman's lien to be enforced in the Civil Court of Fulton County, the materialman's lien having been properly recorded. On December 5, 1949, John P. Ogletree recorded an agreement dated May 25, 1949, by the terms of which Ewing Brothers Inc. agreed to construct a house according to a certain plan on the premises, and then to sell the premises to Mrs. John P. Ogletree and J. P. Ogletree for a stated sum. Ewing Brothers Inc., before the house was completed, abandoned the contract, and J. P. Ogletree expended more than the amount for which Ewing Brothers Inc. had agreed to construct the house, in order to pay off certain obligations incurred by Ewing Brothers Inc. and to complete the house. Certain receivership proceedings, not material here, were introduced in evidence.
The trial judge denied the injunction, and the exception here is to that judgment and to the exclusion of certain evidence offered by the plaintiff in error.
1. It is insisted by the plaintiff in error that the materialman's lien should not be enforced as a lien against the property here involved, for the reason that John P. Ogletree has been required to pay out on the obligations of Ewing Brothers Inc., and on additional expenses to complete the house, more money than the contract provided was to be paid Ewing Brothers Inc. to construct the house. Rowell v. Harris, 121 Ga. 239 ( 48 S.E. 948); Arnold v. Farmers Exchange, 123 Ga. 731 ( 51 S.E. 754); Holmes v. Venable, 27 Ga. App. 431 ( 109 S.E. 175); and other cases following the reasoning laid down in these cases are cited and relied upon.
It is next contended that the materialman furnished the material with notice of the contract to build the house, and for that reason could not proceed under the facts in this case. Poole v. Atlanta Joint Stock Land Bank, 189 Ga. 59 ( 5 S.E.2d 368), and other cases are cited and relied upon for this position.
It is next contended that West Lumber Company furnished the material with notice of Ogletree's equity, and for that reason can not proceed with the lien foreclosure. Code, § 37-116; Elrod v. Bagley, 154 Ga. 670 ( 115 S.E. 3), and other cases of like import are relied upon to sustain this position.
The trouble with all these contentions, in the case now under consideration, is that we do not have, as is the case in the decisions relied upon, a situation where the materialman furnished material to a contractor who did not complete his contract; but in this case the materialman furnished material to the owner of the property, and the owner of the property was unable to comply with his contract to sell the property to Ogletree, for the reason that the contractor never finished the house. The principles of law discussed in the cases above enumerated have no application to the state of facts in this case. Ogletree conveyed title to the property to Ewing Brothers Inc., and West Lumber Company furnished the material to Ewing Brothers Inc., the owner of the property, and, of course, is entitled to enforce its lien against the property improved with the material furnished. Ogletree made this situation possible when he conveyed title to the property to Ewing Brothers Inc.
2. The plaintiff in error complains because the trial court refused to allow him to testify that he was promptly making the payments on an obligation in the nature of a deed to secure debt that Ewing Brothers Inc. had executed as against the property in question. This testimony clearly could not in any way illustrate any question here involved.
From what has been said above, it follows that the trial court did not err in denying the injunction.
Judgment affirmed. All the Justices concur.