Opinion
No. 33392.
December 5, 1938.
1. MECHANICS' LIENS.
The advancing of money by materialman to contractor, by checks payable to contractor, to pay laborers on pay rolls made up by contractor did not constitute furnishing labor on the job so as to entitle materialman to lien, where contract for procuring and paying laborers, to which materialman was not a party, was between contractor and owner.
2. MECHANICS' LIENS.
A materialman which had furnished material to contractor for use in constructing building, and had also furnished money for paying laborers on the job, was entitled to recover from owner only the amount owing by owner to contractor at time of receipt of notice from materialman of claim against amount due contractor (Code 1930, section 2274).
APPEAL from the circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.
Howie, Howie McGowan, of Jackson, for appellant.
We respectfully submit that where a lumber company or lumber yard furnished the principal part of the material on a construction project and furnishes the labor, it is entitled to a lien for its payroll money as well as the material.
We submit that it would be grossly unfair and unjust and a disruption of a legitimate business custom, which is clearly within the intention of the statute and law, to hold that the lumber yard as principal materialman could not be protected for the payroll money put up every Saturday, as well as the material advanced during the week. No interest, of course, is charged upon the payroll money and no profit whatsoever is made upon the same. The lumber companies make a profit upon the material but no profit upon the payroll money, and should all the more be protected.
Plumbing Wholesale Co. v. Planters Lbr. Co., 181 So. 140; White Lbr. Co. v. Rea, 131 So. 259.
The contractor himself in most instances furnishes the labor and material. Sub-contractors furnish labor and material. In the case at bar the appellant was a subcontractor in the sense that it furnished labor and material.
U.S. v. American Surety Co., 200 U.S. 197, 50 L.Ed. 437, 26 S.Ct. 168.
A corporation can furnish labor.
American Surety Co. v. U.S. ex rel. Barrow Agee Lab., 76 Fed. 2d 67; Maryland Casualty Co. v. Gottsche, 18 F.2d 582.
Appellant respectfully submits that by the showing made in this record that it should have had judgment against the appellee, Gulf Refining Company, for $629.87, or at least for said amount less the claim of Plumbing Wholesale Company, which would be for $343.12. This the court denied it.
The courts in numerous jurisdictions have held that anyone paying off labor and seeking a subrogation thereto shall have it.
60 C.J. 816; A. Stef Lbr. Co., Inc. v. Mattingly, 122 So. 893.
However, we make it plain that we do not rely upon subrogation. This appellant is not seeking to be subrogated to something some one else once had, but is merely seeking that which was its own from the beginning. This appellant actually furnished the labor as well as the material and it was the labor of the appellant.
We respectfully submit that the holding we are insisting for in this case is in conformity with the statutes and the spirit and intent of our lien law.
Central Lbr. Co. v. Schroeder, 114 So. 644; Plumbing Wholesale Co. v. Planters Lbr. Co., 181 So. 140.
The notices served on the 25th of June were valid and affective to bind, and did bind, the money in the hands of the owner, Gulf Refining Company. It was the same as a garnishment.
Citizens Lbr. Co. v. Netterville, 102 So. 178, 137 Miss. 310; Enochs Lbr. Co. v. Garber, 76 So. 730.
Green, Green Jackson, of Jackson, for appellees.
It has been our understanding that money advanced to a contractor by anyone to pay for labor and material is not subject to any lien, nor would the stop notice be effective unless there was a lien for labor and material.
18 R.C.L. 925, sec. 55.
A mechanic's lien law provides exclusively for the security of contractors, materialmen and laborers, and one who advances money as a loan, although it is expressly for the purpose of paying for materials and labor devoted to the erection of a building, can claim no benefit of such law.
Weathersby v. Sleeper, 42 Miss. 732; Haraway v. Planters Agricultural Credit Corp., 178 Miss. 489, 173 So. 448; Citizens Lbr. Co. v. Netterville, 137 Miss. 310, 102 So. 178; Wenger v. First National Bank of Biloxi, 174 Miss. 311; U.S.F. G. Co. v. Parsons, 122 So. 544; Herrin v. Warren, 61 Miss. 509; Stubbs v. Capital Paint Glass Co., 160 Miss. 832, 131 So. 806, 135 So. 495; Chears Floor Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426; Whites Lbr. Supply Co. v. Rea, 131 So. 259, 158 Miss. 695.
Cases from other jurisdictions that hold that one paying off labor for a contractor or paying off materialmen has no lien, as follows:
Sweet v. Fresno Hotel Co., 174 Cal. 789, 164 P. 788; Carr Hdw. Co. v. Chicago, etc., Surety Co., 190 Iowa, 1320, 181 N.W. 680; Red River Valley Bank v. Louisiana, etc., Co., 142 La. 838, 77 So. 763; Thompson v. O'Leary, 146 La. 843, 84 So. 116; Barth v. Schmitz, 170 N.Y.S. 51, 103 Misc. Rep. 267; Central Lbr. Co. v. Schroeder, 164 La. 759, 114 So. 644.
Argued orally by M.M. McGowan and J.H. Howie, for appellant, and by Forrest B. Jackson, for appellee.
This is an appeal from the Circuit Court of Hinds county, first district, by the City Coal Lumber Company, Inc., from a judgment against the Gulf Refining Company for $252.39, and a judgment in favor of the City Coal Lumber Company against George Emmett, in the sum of $2,563.43. The judgment, so far as the Gulf Refining Company is concerned, was given on a peremptory instruction by the trial judge, limiting recovery against that company to $252.99.
It appears that the City Coal Lumber Company supplied George Emmett with material to be used in building filling stations which he was constructing for the Gulf Refining Company, under two separate contracts, one station at Cleveland, Mississippi, and the other at Kosciusko. George Emmett had contracted to build these filling stations, furnishing labor and material, for a given amount, each filling station being under a separate contract. Emmett arranged with the City Coal Lumber Company to furnish him certain materials to go into these buildings, and to furnish him money for payrolls with which to pay the labor employed by him in the construction of the said buildings. The City Coal Lumber Company, under this arrangement, issued its checks to Emmett for the amount of the payroll made up by him, and submitted to them; and furnished building material in certain amounts, delivered in trucks, for the use of Emmett; and also paid for some material bought by Emmett in the local market.
The City Coal Lumber Company, when it gave a check for labor, and delivered material, upon receiving a payment on these accounts from Emmett, would notify the Gulf Refining Company of the amount of such payment; but prior to June 25, 1937, did not give notice that it claimed any rights against the buildings under section 2274, Code of 1930. On the 24th of June the amount of Emmett's debt to the appellant was supplied to an agent of the Gulf Refining Company at Jackson; and on that day that company had issued a check payable to the order of Emmett, which its agent in Jackson had Emmett endorse, the check being put through the Deposit Bank Trust Company in Jackson, procuring either bank exchange or a cashier's check, payable to the Gulf Refining Company or its agent, and this money was turned over to parties who had furnished labor and material to Emmett on these projects, the payments being made on the afternoon of June 24th.
On the following day, June 25th, the City Coal Lumber Company consulted its attorneys; and not having given the notice under the section above cited, section 2274, Code of 1930, that they would claim the lien upon the property, the attorneys wrote a letter to the Gulf Refining Company, making formal demand, in accordance with section 2274 of the Code. The proof shows that this notice was mailed, and received about the 28th of June by the Gulf Refining Company; but on the 25th some agent of the Gulf Refining Company in Jackson was notified, and demand made for the bill.
The amount of material and money furnished to Emmett by the City Coal Lumber Company appears to have been in excess of the contract price that was to have been paid for the erection of the filling stations. The only amount due Emmett at the time the notice was received by the Gulf Refining Company was the amount for which the peremptory instruction was given by the trial court. The City Coal Lumber Company offered proof tending to show that agents of the Gulf Refining Company had avoided service of notice in order to pay off other materialmen and persons who had supplied labor.
It is contended by the City Coal Lumber Company that advancing money to Emmett by checks payable to his own order, and deposited to his own account, to pay laborers on payrolls made up by him, constitutes furnishing labor on the job. We do not think this contention can be sustained as against the Gulf Refining Company, because the statute requires proof in order to establish a lien against the property, and liability of the owner. The contract was between Emmett and the Gulf Refining Company, and the City Coal Lumber Company was not a party to such a contract. Consequently Emmett was not its agent for procuring and paying laborers, but the money was merely advanced to Emmett under a contract with him to make such payments.
We think the principles controlling the case are well settled in this state in Citizens' Lumber Co. v. Netterville et al., 137 Miss. 310, 102 So. 178; Wenger et al. v. First Nat. Bank of Biloxi, 174 Miss. 311, 164 So. 229; United States F. G. Co. v. Parsons, 154 Miss. 587, 122 So. 544; Herrin v. Warren Mobley, 61 Miss. 509; Stubbs v. Capital Paint Glass Co., 160 Miss. 832, 131 So. 806, 135 So. 495; Chears Floor Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426; White's Lumber Supply Co. v. Rea et al., 158 Miss. 695, 131 So. 259.
The judgment of the court below is affirmed.
Affirmed.