Opinion
16959.
FEBRUARY 16, 1950.
Interpleader. Before Judge D. S. Atkinson. Chatham Superior Court. November 1, 1949.
Aaron Kravitch, for plaintiff.
Brannen, Clark Hester, Hitch, Morris, Harrison Smith, Casper Wiseman, Edwin Maner Jr., and William G. Norwood, for defendants.
1. Ordinarily services of an attorney must be paid for by the client who employs him, and accordingly the court did not err in its ruling on demurrer, which struck allegations wherein the petitioner sought to recover attorney's fees because she had been compelled, by the arbitrary attitude of the defendant, to employ counsel to bring the action for interpleader.
2. The evidence authorized the finding by the auditor that the petitioner owed $1051.25 on the contract.
3. In the present case for interpleader, in which neither party emerged victorious, the auditor did not abuse his discretion in recommending that the costs be assessed equally against both the petitioner and the defendant.
4. An examination of the record in its entirety shows that the exceptions to the findings of the auditor are without merit.
No. 16959. FEBRUARY 16, 1950.
Mrs. Hazel (S. T.) Hill filed in Chatham Superior Court, against John C. Bush, and others, a petition for interpleader. As amended it alleged: That the petitioner entered into a contract with Bush, wherein it was agreed that the latter in consideration of $3865 would make certain improvements upon the petitioner's property known as 110 Palm Avenue. During the construction the parties agreed upon extras to be performed, which were to cost approximately $220, making the total amount of the contract $4085. Bush commenced work under the contract, and the petitioner paid him $1950, which was used by him in the payment of claims for labor and materials. In addition the petitioner paid $1063.75 to named concerns for materials furnished, or a total payment to the contractor of $3013.75. Bush finished all of the work except the following items: installation of awnings that are being installed at a cost of $225, and $150 for insulation, making the amount of money which the petitioner is being called upon to expend for the completion of the work $375, and leaving $696.25 due under the contract. In addition to the above, the petitioner has been compelled to employ counsel to bring the action, at an expense to her of $200, thus finally leaving due to the contractor, and to the materialmen, $496.25. The amount which is still due named defendants for material is $2396.66. The petitioner has no adequate remedy at law, and the action for interpleader is brought in equity to marshal assets and to avoid a multiplicity of suits. The prayers, besides for process and general relief, were: that all of the defendants be required to interplead, and for a decree adjudicating the rights of each and the amount due each; that the petitioner be allowed reasonable attorney's fees for bringing the proceeding; that, upon the payment of such amounts as the court may find that the petitioner is required to pay, she be forever discharged from any claim on the part of the defendants; and that any liens which they may seek to file against the property be decreed to be extinguished. A copy of the contract was attached as an exhibit and made a part of the petition.
Bush filed a special demurrer, which was sustained with leave to amend. Stated defects in the petition were cured by amendment; but the petitioner excepted pendente lite to the portion of the ruling on special demurrer which struck the allegations seeking to recover attorney's fees.
Bush also filed an answer, denying material allegations of the petition, and averring that after the commencement of the work the petitioner took over the job; that her acts caused the defendant to cease to be an independent contractor as contemplated by the original contract; and that he thereafter acted only as the agent of the petitioner, who is liable for the total amount of labor and materials used in doing the work required by the petitioner. The other defendants filed separate answers, averring in effect that they had furnished materials on the contract in question, and that the amounts alleged to be due them were correct.
By consent of the parties the case was referred to an auditor to pass upon all questions of law and fact. The uncontradicted evidence showed the following facts: The amount of the contract was $4065. The petitioner paid Bush $1950, and paid $1063.75 to named materialmen, or a total of $3013.75, thus leaving $1051.25 due on the contract. The amount due materialmen was $2396.66. There was evidence that the awnings and insulation were not a part of the contract. After hearing evidence, the auditor made four rulings designated as findings of law, and four rulings designated as findings of fact.
The findings of law were: "1. The owner is liable to the contractor for the full amount of the established contract of $3865, plus reasonable extras of $200, making the amount due $4065. 2. The owner has actually paid out on labor and material which would have been a lien against the job the sum of $3013.75. 3. That the liability which the owner owes to the laborers and materialmen, unless there has been a novation in the contract, is fixed by the primary liability of the owner to the contractor, which in this case would be a net of $1051.25. 4. That, the court having already ruled that the plaintiff, Mrs. Hill, is not entitled to charge off attorney's fees, this claim by Mrs. Hill is disallowed."
The findings of fact were: "1. That the contract, including the extras, is $4065, and that a fair value of the extras to include the awnings and the insulation is $200. 2. That there has been no such a novation in the contract as to render the owner subject to unlimited liability for the total cost. 3. That the total unpaid bills for material and labor run in the sum of $2111.86, but the owner, Mrs. Hill, is only liable for the unpaid balance which she owes on the contract, of $1051.25, and that the sum of $1051.25, less the costs which may be assessed by the court and the fee of the auditor, should be paid to the remaining creditors. 4. That the Davis Paint Company (L. Davis) was served and it failed to intervene; and the sheriff was unable to locate C. T. Beckum, another defendant, who failed to file any claim of lien; therefore these two claims in the sum of $4.80 and $280 respectively are not considered in this report for distribution."
The auditor recommended: 1. That judgment should be rendered in favor of the defendants filing interventions against Mrs. Hill in the sum of $1051.25, less one-half the costs as hereinafter set out, and against Bush, in the sum of $1060.61, representing the difference between the contract price and the amount of their claims. 2. That the costs be assessed equally against both the petitioner and the defendants, including the fee of the auditor. However, that $25 should be assessed against the petitioner, for taking the interrogatories of Bush, a witness used by the petitioner; also the further sum of $25 should be assessed against the petitioner, for an expert witness who was called in by the auditor at the request of the petitioner.
The auditor, with the consent of counsel for all interested parties, amended his report, and recommended that the claim of C. T. Beckum in the amount of $280 be included in the list of defendants to participate in the distribution of the funds collected, representing the difference between the amount of the contract and the total amount of unpaid bills charged to the job.
On exceptions by the petitioner to the findings of law and findings of fact contained in the auditor's report, the court sustained the findings of the auditor, and a decree was duly entered, to which judgment and decree the petitioner assigned error in a direct bill of exceptions. Error was also assigned on the exceptions pendente lite.
1. Ordinarily the services of an attorney must be paid for by the client who employs him. Code, § 20-1404; Murphey v. Brock, 206 Ga. 9 (2 c) ( 55 S.E.2d 564). Applying the above principle, the court did not err in sustaining the defendant's demurrer, and striking allegations to the effect that the petitioner had been compelled, by virtue of the arbitrary attitude on the part of the defendant, to employ counsel to bring the action at an expense to her of $200, and that she was entitled to reasonable attorney's fees. See, in this connection, Helmken v. Meyer, 118 Ga. 657 (1) ( 45 S.E. 450); Little v. Madison Supply Hardware Co., 146 Ga. 95 (1) ( 90 S.E. 713); City of Atlanta v. Screws, 194 Ga. 214 ( 21 S.E.2d 424); New York Life Ins. Co. v. Bidoggia (Idaho), 15 F.2d 126. It follows that the auditor did not err in disallowing the claim for attorney's fees.
2. The petitioner excepted to the findings of law as set out in paragraphs 2 and 3 of the auditor's report, in that the petitioner had actually paid the sum of $3388.75 instead of the amount of $3013.75 credited by the auditor, leaving a balance due of $676.25 instead of $1051.25 as set out by the auditor. This exception is based on the contention that the auditor misconstrued the evidence. Another complaint, similar in all respects but designated as an exception to the findings of fact, is based on the contention that the auditor miscalculated the evidence.
The controlling question, presented by each of the above exceptions, is whether the petitioner was entitled to a credit of $375 to install awnings and insulation. The petition alleged that $375 was necessary to complete the job. However, an inspection of the copy of the contract together with the specifications, which were attached to and made a part of the petition, fails to show that awnings and insulation were included therein. Furthermore, there was evidence that the above items were not a part of the contract. In these circumstances, it can not be held, as contended, that the auditor misconstrued or miscalculated the evidence.
3. The petitioner excepted to the recommendations made by the auditor that costs should be assessed equally against both the petitioner and the defendant, and also that $25 be assessed against the petitioner for attorney's fees in taking interrogatories, and $25 for paying a witness who was called at the petitioner's request.
Under our statutes, in equity cases "it is the province of the judge . . . to determine upon whom the costs shall fall" (Code § 37-1105; Bush v. Little, 171 Ga. 206 (2), 154 S.E. 886); and "this court will not interfere unless [his] discretion has been abused." Hicks v. Atlanta Trust Co., 187 Ga. 314 (2), 315 ( 200 S.E. 301); Fitzgerald v. Vaughn, 189 Ga. 707 (3), 711 ( 7 S.E.2d 78); Sangster v. Toledo Manufacturing Co., 193 Ga. 685 (7) ( 19 S.E.2d 723). In the present case, in which neither party emerged victorious but each party won a partial victory, the auditor did not abuse his discretion in recommending that the costs be assessed equally against both the petitioner and the defendant. Nor was it an abuse of discretion in recommending that the costs be assessed against the petitioner for paying a named witness, and for taking interrogatories, where it appeared as here, that the witness was called, and the interrogatories were taken, at the request of the petitioner.
4. An examination of the record in its entirely shows that the exceptions to the findings of the auditor are without merit, and that all such rulings and findings of the auditor, as approved by the trial judge, are supported by the evidence and in accordance with law.
Judgment affirmed. All the Justices concur.