123 Ga. 731 | Ga. | 1905
(After stating the facts.) This is a proceeding by a materialman to enforce a statutory lien for materials furnished to and used by a contractor in the improvement of certain real estate belonging to Mrs. Arnold. A materialman who furnishes material for the building, repairing, or improving of real estate is entitled to a lien thereon, as against the owner, when the material is furnished to and used by a contractor in making improvements on the premises, unless the owner shall show that the lien has been waived in writing, or produces the sworn statement of the contractor that the agreed price or reasonable value of the material so furnished has been paid, “provided that in no event shall the aggregate amount of liens set up . . exceed the contract price of the improvements made.” Civil Code, §2801; Acts of 1899, p. S3, Yan Epps’ Code Supp. § 6176. The claim of lien must be
One of the points raised by the demurrer is that the plaintiff’s petition did not affirmatively allege a completion of the contract by the contractor. The statute does not require this to be alleged, and in the prosecution of his statutory remedy it is not incumbent on the materialman to allege anything more than the statute declares shall constitute a prima facie right to assert and enforce his claim of lien. It may be that the owner of the premises can urge, as a defense, not only that the lien has been waived in writing or that the contractor was settled with upon a sworn statement that all'materials and labor had been paid for, but that nothing is due to the contractor under the contract because it was voluntarily abandoned by him before its completion. Rowell v. Harris, 121 Ga. 239. We are content to rest our decision in this case upon the principle that, in the prosecution of a -statutory remedy, all the plaintiff need allege is enough to show that he has complied with all of its essential requirements and has at least a
Judgment affirmed.