412 S.E.2d 622 | Ga. Ct. App. | 1991
Appellant-defendant (Owner) contracted with Georgia Mountain Contracting, Inc. (Contractor) for the construction of a building. Appellee-plaintiff (Materialman) supplied materials which were used in
The contract price as between the Owner and the Contractor establishes the maximum extent to which the Owner’s property may be subjected to liens. If the Owner had actually paid the full contract price to the Contractor and the Contractor had actually applied the full contract price toward the payment of the materialmen and laborers, then the Owner would have a complete defense to the instant lien foreclosure action. It is undisputed, however, that the Owner has paid all but $15,932.02 of the contract price to the Contractor. Accordingly, the owner clearly has no viable defense as to that unpaid $15,932.02. The Owner contends, however, that the Materialman has no viable claim in excess of $15,932.02 because the Owner is entitled to a credit for all such partial payments as have previously been made to the Contractor. “[SJhort of a complete defense, the [OJwner is also entitled to credit for any sums paid to the [CJontractor which were properly applied to bills for labor and material. ‘(T)he [OJwner is bound for the contract price and is bound to see that to the extent of this price the amounts paid to the [CJontractor are appropriated by him to the payment of valid claims of materialmen and laborers. . . .’ [Cits.]” (Emphasis omitted.) Sanford v. Hodges Builders Supply, 166 Ga. App. 86, 89 (3) (303 SE2d 280) (1983). Accordingly, the issue for resolution is whether a genuine issue of material fact remains as to the Materialman’s claim to the extent that it exceeds the unpaid $15,932.02.
At trial, the evidentiary burden would be on the Owner to establish that such sums as it had paid to the Contractor in partial payment of the contract price were properly appropriated by the Contractor toward payment of the materialmen and laborers. On summary judgment, however, the initial burden was on the Material-man to negate the Owner’s defense. Nothing in the Materialman’s motion for summary judgment purported to address the issue of the owner’s entitlement to a credit for such sums as the Owner had paid to the Contractor in partial payment of the contract price. Accordingly, there was no evidentiary burden on the Owner to come forward with evidence as to that issue.
Moreover, even if there had been a shift in the burden to the Owner, the record nevertheless shows that, in opposition to the Materialman’s motion, the Owner did submit evidence as to its entitlement
Judgment reversed.