Opinion
34618.
DECIDED MAY 27, 1953. REHEARING DENIED JULY 1, 1953.
Materialman's lien. Before Judge Hendrix. Fulton Superior Court. March 3, 1953.
Poole, Pearce Hall, for plaintiff in error.
Norman I. Miller, contra.
The petition alleged a good cause of action for the foreclosure of a materialman's and laborer's lien as against the demurrers urged, and the court did not err in overruling such demurrers.
DECIDED MAY 27, 1953 — REHEARING DENIED JULY 1, 1953.
F. M. Gregory and G. J. Gregory, partners, doing business as F. M. Gregory Son Plumbing Company, sued Evelyn Elaine Pickard to foreclose a materialman's and laborer's lien. The petition alleged substantially: that the plaintiffs are, and at all times hereinafter mentioned were, mechanics, contractors, plumbers, and furnishers of materials and labor, and engaged in the business of furnishing labor and plumbing materials and installing same in houses, buildings, etc.; that the defendant, Evelyn Elaine Pickard, by and through her agent, James S. Pickard, on or about April 12, 1951, obligated to pay the plaintiffs $325 for plumbing materials including one bathtub, one [water] closet and one basin, and for labor in setting said fixtures and in the setting of one sink furnished by the defendant, said materials to be furnished and said labor to be performed in connection with the construction of a dwelling-house building having two apartments on one floor and one in the basement thereof, situated on the real estate hereinafter described; that it was agreed by said Pickard, acting as agent aforesaid, and the plaintiffs, that the plaintiffs were to furnish and set the bathtub, closet and basin and to set said sink, and the materials and labor in the setting of same, for the agreed price of $325, which it was agreed was to be paid the plaintiffs upon the completion of said work; that the plaintiffs furnished the fixtures and performed the labor in accordance with the aforesaid contract with the defendant; that the materials were furnished and the labor was performed in improving certain described real estate belonging to the defendant; that G. J. Gregory, one of the plaintiffs, has performed personal work and labor and the workmen furnished by them have performed work and labor required in the completion of the work contracted to be done, and the plaintiffs have furnished the fixtures and materials contracted to be furnished, all of which has been done as agreed and contracted for by the defendant, acting by and through her agent, James S. Pickard; that the defendant received and retained the benefit of said fixtures, materials, and work and labor as contracted for as aforesaid by and through her said agent and husband, James S. Pickard; that, having performed said contract, the plaintiffs are now due $325, and no part thereof has been paid them, although demand therefor has been made by the plaintiffs; that the defendant fails and refuses to pay same; that the plaintiffs claim a lien upon said real estate and the improvements thereof for $325, besides interest, and show that in order to secure the payment of such indebtedness they asserted and caused to be recorded their claim of lien upon said real estate and improvements thereon within three months after the furnishing of the materials and completion of the work as aforesaid, in the office of the Clerk of the Superior Court of Fulton County, a copy of which claim is attached to the petition and marked as an exhibit; that this action is brought within twelve months from the time said claim became due.
The court overruled general and special demurrers to the petition, and the defendant excepts.
1. Grounds 4, 6, and 11 of the demurrer allege that the allegations of the petition relating to agency of the defendant's husband are insufficient and too vague, indefinite, and generalized to support a cause of action. The petition alleges: "That the defendant, Evelyn Elaine Pickard by and through her agent, James S. Pickard, on or about April 12, 1951, obligated to pay petitioners . . . Petitioners further show that the defendant Evelyn Elaine Pickard received and retained the benefit of said fixtures, materials and work and labor as contracted for as aforesaid by and through her said agent, James S. Pickard, and being her husband." These simple allegations of agency are sufficient in this case as against both general and special demurrers. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324, 328 (2) ( 58 S.E.2d 559); Rothberg v. Manhattan Coil Corp., 84 Ga. App. 528, 531 ( 66 S.E.2d 390); Suber v. Black, 168 Ga. 439, 441 (2) ( 148 S.E. 81); Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 230 (2f) ( 177 S.E. 760); Herrington Braswell v. Garlick, 27 Ga. App. 368 ( 108 S.E. 304).
2. Grounds 8, 9, and 13 of the demurrer complain that the petition is faulty, because it does not set out "precisely" when the labor and materials were actually furnished and installed in the premises. It is also argued that for this reason the general demurrer to the petition should have been sustained. To support such contention, the plaintiff in error cites Smith v. Turner, 169 Ga. 641 ( 151 S.E. 368), which held: "So it is not necessary to say more than that to offset this proof in behalf of the intervenor the original petitioner, who claimed a lien as a materialman, did not show when the lien assigned to it was filed (other than the statement that it was filed within three months after the work was done, without any statement as to when the work was actually done), or for what the lien was claimed other than the statement that it was for work and labor installing the plumbing in the house in question, without stating when the work was done, or whether it was done by order of the owner, or, if not, what agent of the owner directed the installation; so that as proof in support of a lien the various statements of the petition are too vague and indefinite to have authorized the foreclosure of a lien." Those facts which the court said were not alleged in that case are alleged in the instant case. Here it is alleged that the defendant contracted, by and through her named agent, on or about April 12, 1951, to pay the plaintiffs a sum certain for the furnishing and installation of a bathtub, a water closet and a basin, and for the installation of a sink furnished by the defendant, in certain property owned by the defendant. It is further alleged that the lien was filed within three months after the furnishing of the material and the completion of the work. The recorded lien attached to the petition as an exhibit shows that it was filed for recording in the Clerk's Office, Fulton Superior Court, on June 13, 1952. The ground of the demurrer was that it was not precisely alleged when the labor and materials were actually furnished and installed in the premises. This demurrer was properly overruled, because it would not be absolutely necessary for the plaintiff to allege the precise minute or hour or day the labor and materials were furnished and materials installed. It would be sufficient to allege that these things took place within such a definite period as would show that the lien was recorded in time, even though the exact date or hour could not be alleged. Even if we construe the demurrer as not meaning the exact day or hour, or eliminate the word "precisely" altogether, the demurrer was properly overruled. Burkhalter v. Burkhalter, 35 Ga. App. 315 (5) ( 132 S.E. 914).
The remaining grounds of the demurrer are expressly abandoned.
The court did not err in overruling the demurrer.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.