Opinion
32010.
DECIDED JULY 16, 1948.
Complaint; from Fulton Civil Court — Judge Carpenter. February 9, 1948.
F. L. Breen, S. L. Mascotti, Winfield P. Jones, for plaintiff in error.
Reuben A. Garland, contra.
1. Ordinarily before a lien on real property can be enforced in accordance with the provisions of Code § 67-2301, it must be shown that the plaintiff has fully completed the contract. However, if the completion of the contract was prevented by a breach thereof by the defendant, this is equivalent to a completion of the same, as a remedial element. See Ballard v. Daniel, 18 Ga. App. 449 (1) ( 89 S.E. 603); Taylor v. Rainwater, 54 Ga. App. 315 ( 187 S.E. 704); Payne v. Trammell, 29 Ga. App. 475 ( 115 S.E. 923); Lewis v. Owens, 124 Ga. 228 (2) ( 52 S.E. 333); Haralson v. Speer, 1 Ga. App. 573 ( 58 S.E. 142).
2. Assignments of error on special grounds of motion for a new trial expressly or impliedly abandoned in the brief of the plaintiff in error will not be considered and points not insisted on in argument or brief of counsel are treated as abandoned. See Smith v. State, 73 Ga. App. 77 ( 35 S.E.2d, 486); Plummer v. State, 200 Ga. 641 (2) ( 38 S.E.2d, 411); Brown v. Salter, 59 Ga. App. 581 (5) ( 1 S.E.2d, 468); Albany Federal c. Assn. v. Henderson, 198 Ga. 116 ( 31 S.E.2d 20).
DECIDED JULY 16, 1948.
The defendant in error, C. C. Moore, hereinafter referred to as the plaintiff, brought a petition in the Civil Court of Fulton County against the plaintiff in error, Joe Allen, hereinafter referred to as the defendant. The action is to foreclose a lien on certain real property described in the petition. It is alleged that the parties entered into a contract by which the plaintiff was to build upon the property of the defendant a certain described house; that the plaintiff has completed said contract and the balance due for labor and materials used in connection therewith is the sum of $658. By amendment these items are particularly detailed. The petition alleges that a claim of lien was recorded on said property in the office of the Clerk of the Superior Court of Fulton County; that demand has been made and payment refused, and prays for a general judgment against the defendant and for a special judgment providing a lien on the real estate described in the petition.
The defendant filed an answer denying all material allegations of the petition. By way of further answer the defendant contends; that the plaintiff contracted to build the house according to certain plans and specifications; that the plaintiff commenced construction of the building and actually built the foundation wall; that the wall was then inspected and condemned by the Inspection Department of Fulton County; that thereupon the plaintiff abandoned his contract, leaving an unsightly, insecure and unsafe foundation wall upon said premises, damaging the defendant in the sum of $675; that as an excuse for the abandonment and breach of said contract, the plaintiff claimed he could not secure necessary materials to complete the job.
The defendant prays for judgment in the sum of $675 against the plaintiff by way of cross-action.
The case was tried before a judge of the Civil Court of Fulton County without the intervention of a jury, said judge passing upon all questions of both law and fact.
The evidence is undisputed that the plaintiff entered into the contract with the defendant to complete a 5-room brick-veneer house with one bath according to certain plans and specifications which were introduced in evidence. The evidence is also undisputed that upon construction of the foundation wall to the building, the plaintiff ceased further operations in connection with the completion of the building. It is also undisputed that upon the completion of the foundation wall, the same was not exactly right and in accordance with plans and specifications. The amount of material and labor furnished by the plaintiff in the construction of this wall, being in the sum of $658 is undisputed.
The evidence with reference to what was wrong with the wall, what would be required in order to correct it and which of the parties breached the contract, is in sharp conflict. However, construing this evidence in its most favorable light to support the judgment of the trial court, he was authorized to find that the foundation wall when complete was slightly out of line and that approximately 3 man-hours of labor would be required in order to correct it; that certain stumps had also been left within the area around which the wall was built which the plaintiff was obligated to remove; that while the plaintiff was in the process of doing this work the defendant came upon the premises and told the plaintiff that he would not pay him for this work if he did it, as he had canceled the loan that both parties knew the defendant relied upon to obtain the funds with which to pay for the work. That thereafter the defendant told J. A. Moore, a brickmason working on the job for the plaintiff that he had canceled the loan and decided not to build the house and that he would pay for no more work in connection with it.
The trial judge entered a judgment in favor of the plaintiff in the sum of $650. The defendant filed a motion for a new trial on the general grounds. This motion was later amended by adding two special grounds. However, no reference to the special grounds appears in the brief of counsel for the plaintiff in error. The case was not argued orally before this court.
1. The trial judge was authorized to find from the evidence, as a matter of fact, that the defendant breached the contract. The plaintiff testified that the defendant came upon the job where the work was progressing and informed the plaintiff that even if he completed the job he would not be paid for it as he had canceled the loan upon which the plaintiff knew he was depending for the proceeds with which to pay him. Another witness testified that the defendant informed him he had canceled the loan and was not going to complete the building. This evidence is sharply contradicted. However the trial judge, as the fact finding tribunal, was authorized to believe which ever he chose, and so long as the judgment is supported by competent evidence this court can not disturb it on the general grounds of a motion for a new trial.
It is insisted by counsel for the defendant that since the contract was not completed the lien does not attach and therefore can not be enforced in this proceeding. In Ballard v. Daniel, 18 Ga. App. 449 (1) (supra), the following is held: "Ordinarily, before a laborer's lien can be foreclosed, it must be shown that the laborer has fully completed the contract. However, if the completion of the contract was waived or prevented by the other party thereto, this is equivalent to a completion of the same as a remedial element." See also Taylor v. Rainwater, Payne v. Trammell, Lewis v. Owens, and Haralson v. Speer, supra.
It is true that the foregoing cited cases apply to the foreclosure of special liens on personal property. However, the same provision with reference to the completion of the contract is made as to the enforcement of those liens as is made with reference to the enforcement of a lien on real property. This principle of law therefore is applicable with equal logic in cases of enforcement of liens on real property. The defendant contends that the contract is indivisible and that the lien is unenforceable on a part thereof. His position would be well taken and the authorities he cites in support thereof applicable, were it not for the evidence in the record that authorizes the trial judge to find that the contract was terminated by reason of his wrongful act.
2. Assignments of error on special grounds of a motion for a new trial expressly or impliedly abandoned in the brief of the plaintiff in error will not be considered and points not insisted on in argument or brief of counsel are treated as abandoned. See Smith v. State, Plummer v. State, Brown v. Salter, and Albany Federal c. Assn. v. Henderson, supra.
Since the special grounds of the amended motion for a new trial are not insisted upon by counsel for the plaintiff, the same are treated as abandoned.
The general grounds of the amended motion for new trial constitute no cause for a reversal of the judgment because the evidence authorizes the same.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.