116 Ga. 813 | Ga. | 1902
Chambliss instituted a proceeding against Hawkins to foreclose his lien, as the proprietor of a sawmill, on material furnished by the defendant. The defendant filed a counter-affidavit contesting the existence of the lien. At the trial the evidence was conflicting as to whether plaintiff had complied with his contract. The court charged the jury that if they believed that the plaintiff had substantially complied with his contract, they would be authorized to find in his favor setting up the lien claimed, instructing
The lien laws are in derogation of common law and are to be strictly construed. One who claims a lien must bring himself clearly within the law. The proprietor of a sawmill who makes a contract to saw the lumber of another, and substantially complies with his contract, is entitled to a lien, but not otherwise. See Civil Code, §§2807, 2816 (3); Murphey v. McGough, 105 Ga. 816. A proceeding instituted to foreclose a lien of this character must fail altogether if the facts necessary to constitute a lien are not shown” at the trial. The only issue in such a case is lien or no lien. There can be no lawful finding on any other issue. The verdict shows that the jury did not find in favor of a lien. If it had not been for the erroneous instruction of the judge, the finding would have been for the defendant. The plaintiff may be entitled to recover for his services, but not in this proceeding, unless he shows that he has substantially complied with his contract.
Judgment reversed.