142 Ga. 186 | Ga. | 1914
A suit to foreclose a materialman’s lien was instituted by the Consolidated Lumber Company of Georgia against John H. McKenzie’s Sons & Company as contractors, and the Ocean Steamship Company of Savannah as owner of the property against which the lien was sought to be asserted. The Ocean Steamship Company filed its demurrer to the petition, which was overruled; and exceptions pendente lite were taken to this ruling. Both defendants filed answers; and upon the close of the evidence the
The facts developed at the trial were these: The Central of Georgia Railway Company, on October 15, 1910, made a contract with John H. McKenzie’s Sons & Company to build certain wharves and shed at slip No. .3 on the property of the Ocean Steamship Company of Savannah. The final estimate of the work at the contract price amounted to $129,866.06. The Central of Georgia Railway Company has paid on account on the contract price $116,-678.34; of this amount $2,470.53 was paid after this suit was filed. The Consolidated Lumber Company of Georgia contracted with McKenzie’s Sons & Company to furnish certain lumber to build the wharves and shed on slip No. 3; and the lumber furnished under the contract, to the extent of the value claimed in the suit, actually went into the construction of these wharves and shed. The property on which the wharves and shed are located was owned by the Ocean Steamship Company, and was leased by the Central of Georgia Railway Company. That lease is dated August 2, 1904, and was for the term of five years from July 1, 1904, “to be completed and ended on the thirtieth day of June, 1909.” The lease was renewed from year to year on the same terms, and was in existence during the time of the contract involved in this case, and for some time thereafter. The remaining parts of the lease material to the questions to be decided are: “The Railway Company will pay from time to time, as they mature, all taxes, all assessments ordinary and extraordinary, premiums on fire insurance, cost of maintenance and operation, and all other expenses of every kind or nature (except as herein otherwise provided) in connection with the said leased property. The Railway Company will maintain the said leased property in good condition and repair (in all respects up to the standard of its present condition), and will, at the expiration of the lease, return it to the Steamship Company in like good condition and repair, ordinary wear and tear excepted. The Railway Company will complete, and will advance for account of the Steamship Company the money for t the improvements now going on by mutual consent of the parties in the Boston Slip, and
The provision in the lease contract did not contemplate that the railway company was to act as agent of the steamship company in constructing any improvement. All that the steamship- company covenanted was to have an equitable adjustment with the railway company, at the end of the lease, for such improvements as were made with its written consent. This does not amount to an obligation to reimburse the railway company for the money expended by the railway company. The improvements at the end of the lease may be worth much less than they cost, or they may be of a character mainly valuable to the tenant and of little value to the landlord. The lessor obligates to pay no certain sum, and the amount that may be due on an equitable adjustment may be much less than the contract price. Where a materialman is entitled to foreclose a lien on the property of a landowner on account of materials furnished to a contractor for the improvement of the real-estate, the amount of his recovery can not. exceed the contract price. Stevens v. Georgia Land Co., 122 Ga. 317 (50 S. E. 100). Hence, as the steamship company never agreed to pay any stated amount to the railway company, it could not be ascertained, in advance of the
Judgment affirmed on main bill of exceptions. Cross-bill dismissed.