33 S.E.2d 910 | Ga. Ct. App. | 1945
1. Where the affidavit for the foreclosure of a mechanic's lien on personal property alleges that the plaintiff has possession of the property or *448 has recorded the claim of lien as required by law, a denial by the defendant in his counter-affidavit that the plaintiff has a lien raises an issue.
2. 3. The defendant's counter-affidavit may be filed at any time before the sale of the property levied upon, and the court did not err in overruling the plaintiff's motion to dismiss the counter-affidavit or in allowing the amendment thereto, where the defendant, before the levy, mailed to the plaintiff a check in the amount admitted by him to be due, which check was retained by and without any advice from the plaintiff until the trial, and where at the trial the defendant paid into court the sum he admitted owing.
4. The evidence showing that the plaintiff parted with possession of the property in exchange for a check given by the defendant, payment of which was stopped, whether or not the defendant's conduct was in good or bad faith and estopped him from asserting that the plaintiff did not have possession of the property, was a question for the jury, and it was error to grant a nonsuit; and the appellate division of the court erred in affirming that ruling.
1. A corporation or a firm engaged in the business of repairing motor vehicles, and employing others to do expert mechanical work, and furnishing material in the making of such repairs, is entitled to a mechanic's lien on the property repaired the same as a natural person so engaged. Loudon v.Coleman,
2. The Code, § 67-2401 (7), requires the defendant to pay any amount admittedly due before his affidavit shall be received by the levying officer. Cases are cited by the plaintiff holding that an affidavit of illegality to the foreclosure of a retention-of-title or conditional-sale contract will be dismissed where it appears that the defendant did not tender to the sheriff the amount appearing to be due without contest or denial. SeeCarter v. Commercial Credit Co.,
3. The objections to the amendment of the counter-affidavit were that there was nothing to amend by, and that the payment of the $93.50 into court was made too late. Our holding in division 1 of this opinion, that the counter-affidavit as originally filed made an issue, disposes of the first objection. The amendment merely alleged a date when the check referred to was mailed to the plaintiff, and that the plaintiff still held the check, and recited that the sum of $93.50 was being paid into court by the defendant. Under the ruling in Gardner v. Parker, supra, that a counter-affidavit may be filed at any time before the sale of the property, and under the Code, § 81-1203, which permits amendments to counter-affidavits, we are compelled to hold that the last objection was without merit.
4. The Code, § 67-2003, provides for special liens of mechanics on personal property improved by them, "which may be asserted by retention of such property, or the mechanic may surrender such personal property and give credit." When possession of the property is surrendered to the debtor, "such mechanics shall record their claim of lien, within 10 days after such work is done and material furnished." Clearly under the statute the surrender of the property by the mechanic, so as to require the recording by him of his claim of lien in order to preserve it, contemplates the giving of credit to the owner. The evidence is definite and undisputed that the plaintiff did not extend credit to the defendant. An officer of the company, who was its office and credit manager, testified that the defendant wanted credit for a part of the repair bill, but *452
when the defendant stated that he did not know when he could pay the balance he was told by the witness that the entire bill would have to be paid before the truck would be released. The defendant thereupon gave the check to the cashier. "A bank check tendered in payment is not such until paid." Code, § 20-1004; Sims v.Bolton,
Judgment reversed. Sutton, P. J., and Felton, J., concur.