Opinion
No. 33863.
November 13, 1939.
MECHANICS' LIENS.
Where contractor abandoned his contract and turned house over to owner who completed it at a loss, a materialman from which contractor had bought certain material but which did not serve any notice on owner prior to time contractor turned unfinished building over to owner acquired no lien on the property, and in absence of promise in writing to pay contractor's debt, owner was not liable to materialman.
APPEAL from the circuit court of Lee county; HON. THOS. H. JOHNSTON, Judge.
Blair Anderson, of Tupelo, for appellant.
There is no controversy about the fact that the materials were furnished to Green, charged to him by appellee and went into the house of appellant. Nor is it contended that any notice of any kind was ever given to appellant by appellee. In order to create liability on the part of appellee he must have contracted to pay for the materials put in his house; or it was necessary for appellee to serve notice on appellant that Green was indebted to it and appellee must have owed Green moneys at the time of the service of the notice on him.
Lake v. Branning et al., 90 Miss. 737, 44 So. 65.
The lower court seemed to have come to the conclusion that because appellant and Green entered into a contract to which appellee was not a party, this contract required appellant to pay appellee for debts that Green contracted. All of the bricks were furnished to Green while Green was on the job and they were charged to Green on the books of appellant. When Green quit the job appellant owed him nothing. After the cancellation of the contract, no brick were bought of appellee, and none charged to appellant. It is true that appellant and Green agreed appellant would complete the contract and if any money was saved on it, Green would get it.
Adams Long, of Tupelo, for appellee.
The proof showed that at the time we brought our suit that the owner had paid the contractor Fifteen Dollars ($15) only, and this is all that has ever been paid on the Twenty-one Hundred Twenty Dollars ($2,120), and, therefore, we had a right at any time before he paid the balance of the $2,120 to this contractor to give notice under the statute and tie up the balance due on this contract for the payment of our brick.
There are some old decisions that hold that the contractor before notice is given the owner can assign the contract or assign the proceeds of same and defeat the materialmen and the laborers under our materialmen's and laborers' lien sections, but these are old cases and were decided prior to the passage of Section 2275 of the 1930 Code, which is Chapter 128 of the Laws of 1918, and all of the decisions holding that the contract could be assigned or the proceeds of the contract assigned to defeat the laborers and the materialmen were decided prior to the passage of this statute and in our opinion this state was passed to nullify those decisions such as the case of Rosenbaum v. Carlisle, 78 Miss. 882, and Spengler v. Stiles-Tull Lumber Company, 94 Miss. 780.
"A promise to `assume' a contract is construed to include the duty of making the payments therein specified."
12 Am. Jur. 812, par. 264.
It was never contemplated that Green should pay for any of these materials until the building was completed, at which time Turman was to pay Green, and so when Turman takes over the contract from Green it follows as a matter of course that he is to pay for all of this material, including plaintiff's brick, when the building is completed.
There is no more reason under the terms of this contract to hold that Turman would not be due to pay for the brick that were already worked up in the foundation at the time he assumed the contract than it would be to exempt him from paying for material that went into the building later and after the date of August 13, 1937, the date he agreed to complete the building, for none of these materials were supposed to be paid for under the contract until the entire building was completed.
It is also our contention that the agreement to complete the building of necessity means a completed building with all bills for material therein paid and this contract of August 13, 1937, definitely relieves Green from paying this or any other bill and puts the obligation squarely on S.P. Turman to pay all the bills.
S.P. Turman, the appellant, contracted with one W.W. Green to build a house for Turman, Green to furnish the material and labor and to turn the property over to Turman for a given sum when completed. This is what is known as a lock and key job. The contract provided that W.W. Green was to furnish all materials and labor necessary to complete the seven room and bathroom frame residence according to plans and specifications prepared by one Lester Johnson, with all the addenda to specifications as inserted by pencil, for the sum of $2,120. Green was to furnish all materials and labor, for all plumbing, gas connections, and outlets to each room, and wiring, Green also to furnish the owner with a list of all parties furnishing materials and labor on the job, and upon completion to furnish the owner with release in full of all the lien rights. In consideration of these considerations, Turman agreed to pay Green on Saturday of each week a weekly payment in accordance with the work completed as allowed by Lester Johnson. Money for the materials, plumbing, and electrical work was to be paid at the completion of the building.
Green entered upon contract, but, before completing it, decided he was unable to complete it, and turned the house over to Turman with the understanding that if Turman could save any money on the original contract in completing the building, that such saving would be paid to Green. Green had bought certain materials from the Tupelo Brick and Tile Company and had been charged with them upon the books of that Company. Turman completed the house, but at a loss. In other words, he had to pay more in finishing the house than he would have paid under the original contract. Consequently, there was no saving on the contract.
The Tupelo Brick and Tile Company did not serve any notice upon Turman prior to the time Green turned the building unfinished over to Turman. Consequently, the Tupelo Brick and Tile Company acquired no lien upon the property. There was no promise in writing by Turman to pay the debt of Green. Under the facts stated, there was no liability by Turman to the Tupelo Brick and Tile Company. The court granted a peremptory instruction for the plaintiff for $90, the amount of this demand, with six per cent interest from the 13th of September, 1937, from which judgment this case is appealed here.
We think the court was in error in granting the peremptory instruction for the plaintiff, but that it should have granted the request of the defendant for the peremptory instruction. The judgment will therefore be reversed and judgment rendered here in favor of the defendant, Turman.
Reversed and rendered.