| Ga. | Nov 9, 1906
The plaintiff, under the Civil Code, § 2801, par. 2, as amended by the act of 1897 (Acts 1897, p. 30) and the act of 1899 (Acts 1899, p. 33), seeks to foreclose a lien for the value of certain material furnished by it which went toward the improvement of'the property of the defendants. This court has construed this law 'as operating to give a lien only to materialmen who have furnished material for the improvement of real estate “to one who occupied the legal relation of a contractor, or to one who had some contractual relation with the true owner in connection with the improvements to be made.” See Pittsburg Glass Co. v. Peters Co., 123 Ga. 726; Prince v. Neal-Millard Co., 124 Ga. 884. In the present case the petition alleges that the material was furnished to one Smith, a subcontractor employed by one Harris, who was himself the “original contractor” engaged by the defendants to do the work. It is not pretended that Smith occupied the legal relation of contractor to the defendants, or that he was under any contractual relation whatsoever with* them. On the contrary, it is evident from the petition that Smith’s contract was with Harris, the principal contractor, only, and that the defendants were not parties to that contract nor bound in the slightest degree by it. The petition was therefore demurrable.
Leave was granted to review the case of Heard v. Holmes, 113 Ga. 159, and, upon consideration, it is overruled in so far as it conflicts with the decision here made. ' ,
Judgment affirmed.