Opinion
38490.
DECIDED OCTOBER 21, 1960. REHEARING DENIED NOVEMBER 10, 1960.
Action on account. DeKalb Civil Court. Before Judge Morgan. June 27, 1960.
Charles H. Hyatt, W. S. Northcutt, Northcutt, Edwards Johnston, for plaintiff in error.
Tindall Tindall, J. D. Tindall, Jr., contra.
The plaintiff in his petition alleged that the defendants named therein were indebted to him in a certain amount for building materials sold to them as per an itemized statement attached as an exhibit to the petition and that such materials were delivered to the defendants and used by the defendants in the improvement of a certain described tract of land belonging to them. Upon the trial of the case the plaintiff testified that he did not sell the building materials to the defendants but that he sold them to one Scott, who, he understood and was led to believe, was the defendants' lessee, and that he extended credit to Scott; that he had had no dealings with the defendants and that the materials were delivered to Scott and billed to him under his trade name, "Scott's Truck Stop"; that such materials were used in improving the property of the defendants. The evidence showed that the property involved was held by Scott, if at all, under a lease; that the plaintiff had seen and read that lease, which had, among its terms, the provision that "lessee, at his expense, may erect new buildings on said premises and may make or cause to be made such structural changes in any buildings now or hereafter located on leased premises as may be advantageous to his needs or requirements." Held:
Such evidence was wholly insufficient to show that the lessee in contracting for the materials was acting as agent for the defendant lessors so as to entitle the plaintiff to recover a general judgment against the defendant lessors for any sum due on account of the furnishing of such materials or to have foreclosed a lien on the defendant lessors' premises. Gignilliat v. West Lumber Co., 80 Ga. App. 652 (2) ( 56 S.E.2d 841); Morgan v. May Realty Co., 86 Ga. App. 261 ( 71 S.E.2d 438); Sol Abrahams Son Const. Co. v. Osterholm, 136 S.W.2d 86, 92 (Mo.App.); Lilly v. Munsey, 135 W. Va. 247 ( 63 S.E.2d 519). The trial court did not err in granting the defendants' motion for a nonsuit.
Judgment affirmed. Townsend and Frankum, JJ., concur.