Opinion
38820.
DECIDED JUNE 1, 1961. REHEARING DENIED JUNE 12, 1961.
Materialman's lien. Muscogee Superior Court. Before Judge Calhoun.
Copland Copland, Dan Copland, Thomas E. Sikes, for plaintiff in error.
J. Gordon Young, J. M. Flournoy, contra.
In an action to foreclose a materialman's lien the mere allegation that the owner employed the contractor to make improvements on the owner's property does not establish a basis for a lien inasmuch as it does not allege a contract which shows that the contractor was to supply the materials for such improvements rather than merely to furnish labor and skill.
DECIDED JUNE 1, 1961 — REHEARING DENIED JUNE 12, 1961.
J. M. Wells Supply Co., Inc., plaintiff, filed an action to foreclose a materialman's lien in the Superior Court of Muscogee County which alleged that the defendants, C. M. Arnold and L. W. Arnold, doing business as Arnold Construction Co., were "contractors employed by" defendant Andrew T. Shiels, owner of a described tract of land, to erect and improve a dwelling on the described property; that plaintiff is a building material dealer, and as such furnished to defendant, Arnold Construction Co., building material to be used in the erection and improvement of said dwelling, the value of said materials being $1,125.26; that defendant Arnold Construction Co. is indebted to plaintiff in this sum by reason of having furnished such material; that plaintiff duly filed its materialman's lien within three months after said materials were so furnished by plaintiff to Arnold Construction Co., as provided by law; that plaintiff made demand upon Arnold Construction Co. for payment of the account past due and unpaid, and defendant failed and refused to pay same. A default judgment of $1,125.26 plus costs was entered against C. M. Arnold and L. W. Arnold, doing business as Arnold Construction Co.
Defendant Shiel's general demurrer, the grounds of which were that the petition did not set forth a cause of action because no sufficient contract was alleged between the plaintiff and the defendant Arnold Construction Co., that the amount of the attempted lien is not alleged to be within the contract price and that no allegation was made that no personal security was taken by the plaintiff to secure the debt, was sustained, and the special demurrers were not ruled on. The judgment sustaining the general demurrer is assigned as error.
The mere allegation that the owner "employed" the contractor to make improvements on the owner's property does not meet the requirement of the law for the reason that such an allegation does not necessarily mean that the contract contemplated that the contractor was to supply the materials for the improvement. Such an allegation could mean that the contractor was to furnish only labor and skill. Lumber Fabricators, Inc. v. Gregory, 213 Ga. 356 ( 99 S.E.2d 145), while it is an equity case, is an unequivocal ruling that the allegation going no further than alleging employment is insufficient as against a general demurrer. Since the contract under which the contractor is to furnish materials is the principal basis upon which a materialman's lien on the owner's property is based, the failure to allege such a contract in a lien foreclosure against the owner is fatal. Whether or not a foreclosure action would be bad as against a general demurrer for a mere failure to allege that the amount sought to be established is within the contract in whole or in part is not decided. Here, both deficiencies appear. Failure to allege that no personal security was taken by or to secure the debt was not a defect subject to demurrer. It has been held that while it may be that mechanics who have taken personal security thereby waive their right to a lien (under Code § 67-2001), materialmen have a lien as well when they take personal security as when they do not. Ford v. Wilson Co., 85 Ga. 109 (3), 115 ( 11 S.E. 559). Contractors, materialmen, machinists and manufacturers of machinery do not by the taking of personal security waive the lien given them under Code § 94-1104. Chicago Bldg. c. Co. v. Talbotton Creamery c. Co., 106 Ga. 84 (3) ( 31 S.E. 809). Since the one ground of general demurrer was properly sustained, a contrary ruling on the other two grounds would not save the petition.
The trial court did not err in sustaining the owner's general demurrer to the materialman's petition to foreclose its lien.
Judgment affirmed. Bell, and Hall, JJ., concur.