Marshall v. Peacock
55 S.E.2d 354
Ga.
1949
Check Treatment
Head, Justice.

In the present case the plaintiff seeks to foreclose in equity an alleged materialman’s lien. No copy of the alleged lien is attached to the petition, and the allеgations with reference to such lien are vague and incomplete, it being alleged only that ‍​​‌​​‌‌‌‌​​‌‌‌​‌​​‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​‌‌‌‌‌‌​​‌‍beginning on or about May 17, 1948, and ending on July 26, 1948, the plaintiff furnished Jenkins material to build a house, that on July 28, 1948, the plaintiff filed his claim of lien for the material furnished, and that the lien was duly recorded.

In a prоceeding to foreclose a materialman’s lien the plaintiff must show that the amount for whiсh ‍​​‌​​‌‌‌‌​​‌‌‌​‌​​‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​‌‌‌‌‌‌​​‌‍he asserts a lien comes, in whole’or in part, within the contract .price agreed оn by the *893 contractor and the owner of the property improved. Stevens v. Georgia Land Co., 122 Ga. 317 (50 S. E. 100); Central Railway Co. v. Shiver, 125 Ga. 221 (53 S. E. 610); Georgia Steel Co. v. White, 136 Ga. 494 (9) (71 S. E. 890); Consolidated Lumber Co. v. Ocean Steamship Co., 142 Ga. 190 (82 S. E. 532); Young v. Harley-Mitchell Hardware Co., 173 Ga. 38 (159 S. E. 567).

In Central Railway Co. v. Shiver, supra, in a proceeding to foreclose a materialman’s lien, it was held in pаrt: “It seems to be the purpose of the statute to charge the owner of real estate with a lien for material furnished only when there was a specific contract for the improvements' made, either made by the owner or assented to by him. . . The statute provides that ‘in nо event shall the aggregate amount of liens ’ claimed exceed the contract рrice of the improvements made.’ There could be no limit upon the true owner’s liability for mаterial furnished, unless the material were furnished under some contract to which he was ‍​​‌​​‌‌‌‌​​‌‌‌​‌​​‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​‌‌‌‌‌‌​​‌‍a party expressly or by implication. . . There need be no contract between the materiаlman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. A contract is necessary to fix the liability of the owner and establish a privity between him and the materialman. A strаnger may not order work done upon real estate and thus charge the true owner. Neithеr may a tenant, unless there is some relation existing between him and his landlord other than that of lessor and lessee.” See Code, § 67-2001 (2); Reppard v. Morrison, 120 Ga. 28 (47 S. E. 554); Picklesimer v. Smith, 164 Ga. 600, 607 (139 S. E. 72); Georgia State Savings Assn. v. Wilson, 189 Ga. 21 (5 S. E. 2d, 14); Rutland Contracting Co. v. Gay Estate, 193 Ga. 469 (18 S. E. 2d, 835).

The plaintiff does not allege ' that he had a contract with Jenkins or any other person to furnish materials, nor does he allege that the lien which hе seeks to have foreclosed covers, in whole or in part, the contract price of the materials. In the absence of allegations of a contract, and ‍​​‌​​‌‌‌‌​​‌‌‌​‌​​‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​‌‌‌‌‌‌​​‌‍the аmount to be paid under the contract for materials, the petition failed to state a cause of action for any affirmative relief, for unless the plaintiff had a valid, subsisting lien, he would have no right to interfere with the collection of the execution described in his petitiоn.

*894 The allegation of the petition, that “The fact of the furnishing of the materials was well known tо the said Mrs. Kathleen R. ‍​​‌​​‌‌‌‌​​‌‌‌​‌​​‌‌​​‌​‌​​‌‌‌​​​​‌‌‌‌​‌‌‌‌‌‌​​‌‍Pape during the time they were being furnished and prior to the giving of the deed tо secure debt . . and consented to by her,” is wholly insufficient to show a contract with Mrs. Pape with reference to the materials furnished by the plaintiff.

In Carr & Co. v. Witt, 137 Ga. 373, 374 (73 S. E. 668), it was held: “The allegation that Carl Witt ‘ratified and assented to the contract’ means nothing more than that Carl Witt gave his consent that the improvements should be made under the contract between the tenant and the contractor, and does not mean that he adopted the contract as one made for him by the tеnant acting as his agent, so as to bring him into contractual relations with the contractor mаking the improvements and furnishing the material. Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723 (51 S. E. 725); Central of Georgia Railway Co. v. Shiver, 125 Ga. 218 (53 S. E. 610).”

Under the allegations of the petition, Mrs. Pape wаs not the “true owner” of the land at the time it is alleged that she consented to the furnishing of matеrials. On the contrary, the title to the land was in Mrs. Miller up until July 7, 1948, the date on which she executed a warranty deed to Jenkins, who in turn conveyed the property to Mrs. Pape by a deed to seсure debt. Construing the allegation quoted and relied upon to show the consent of Mrs. Papе most strongly against the pleader, as must be done on general demurrer, her alleged cоnsent was given at a time when she had no title or interest in the property, and no reason, аpparently, to offer any objection to any arrangement or agreement that might bе entered into by Jenkins with any person.

The plaintiff does not show any contract with Jenkins, nor doеs he show any contract with Mrs. Pape, or Mrs. Miller, who was the true owner of the land at the time the plaintiff alleges he started to furnish materials. Under the allegations of the petition, the execution in favor of Ii. K. Burns, as transferee of Mrs. Kathleen Pape, has priority over any аlleged claim of lien of the plaintiff. The trial court properly sustained the demurrers and dismissed the petition.

Judgment affirmed.

All the Justices concur.