Hensons’, Inc. (“Hensons”) sued Donald L. Deibert d/b/a Magna Timber & Pulp, and M. T. McDaniel, Jr. to recover for work Hensons performed on real property owned by McDaniel, which had been done at the direction of Deibert. Enumerating seven errors, McDaniel appeals the jury verdict.
Viewed on appeal in a light most favorable to the jury’s verdict, the evidence was as follows. Part of the property which McDaniel owned had been used by a previous tenant as a landfill and was blighted by a massive amount of discarded material consisting primarily of wood, stumps, logs, and dirt that rendered the property undevelopable. Deibert described it as a “million dollar property worth nothing.” Because McDaniel wanted to commercially develop the land, he entered into an arrangement with Deibert. McDaniel agreed to provide $50,000 in “seed money” to Deibert to get a cleanup project started. It was expected that the project would then become self-sustaining from the sale of wood chips, mulch, or other products. McDaniel agreed that Deibert would receive all profit after reimbursing McDaniel’s $50,000 initial investment. According to M. T. McDaniel III, who was heavily involved in his father’s business, it was estimated that the cleanup effort could cost up to $300,000.
Deibert negotiated with Hensons, who entered into a contract with Deibert’s company, Magna Timber & Pulp, whereby Hensons would be compensated on an hourly basis for its equipment and personnel. Using an excavator, grinder, and front-end loader, Hensons cleared part of McDaniel’s property. Hensons received payment from Deibert at the end of each of the first two weeks of work. As a condition for payment, Hensons was required to complete lien releases on which Deibert was denoted as the “owners agent.” During the third week, M. T. McDaniel III informed Deibert, but not Hensons, that “we’d reached the $50,000 limit” and did not intend to further fund any operations. McDaniel’s son admitted that he knew that Hensons was continuing to work but claimed that it was his understanding that Deibert would be responsible for Hensons’ payment. When Deibert failed to pay Hensons at the end of the third week, he assured Hensons that payment would be forthcoming. At the conclusion of the fourth week, not having been paid, Hensons ceased all work having completed 35 to 40 percent of the project. The decision to halt work was a mutual one between Deibert and Hensons.
Hensons then filed the underlying action against McDaniel and Deibert d/b/a Magna Timber & Pulp. Hensons also filed a material-man’s lien against McDaniel’s real property for furnishing material and labor used in the clearing and improvement of the property. Throughout the trial, the nature of the relationship between Deibert and McDaniel was hotly disputed, especially because there was no written contract between them. McDaniel contended that Deibert was an independent contractor with no authority to enter into contracts on his behalf. Deibert denied being a contractor, and on a number of documents, Deibert identified himself as McDaniel’s agent. The jury determined that Hensons
1. The trial court did not err in denying McDaniel’s motion for judgment notwithstanding the verdict and motion for new trial. A j.n.o.v. is improper unless there is no conflict in the evidence and the evidence demands a particular verdict. First Union Nat. Bank &c. v. Cook,
Even assuming arguendo that Deibert contracted for Hensons’ work without authority, McDaniel was liable for the expense because he subsequently ratified the unauthorized act when he required and obtained Hensons’ lien releases after paying Deibert who paid Hen-sons. See OCGA §§ 10-6-1; 10-6-51. Ratification may occur by the principal’s partial payment on an allegedly unauthorized agreement. Pioneer Concrete Pumping Svc. v. T & B Scottdale Contractors,
Although Hensons admitted it did not know the identity of the property owner, a principal, like McDaniel here, can be bound by his agent’s acts, even when the principal remains undisclosed. Campbell v. Alford,
Moreover, a contract between a materialman and the property owner is not necessarily required. Central of Ga. R. Co. v. Shiver,
Applying the rule set forth in Palmer, supra, to this case, after Hensons’ work improved McDaniel’s real estate, the jury could find that McDaniel, as the property owner, became the responsible party.
3. The trial court properly declined to charge on Hensons’ alleged duty to mitigate its damages because that instruction was not supported by the evidence. As soon as Hensons learned that it would not be paid, it ceased all work and took no action to its own detriment. See J. C. Penney Cas. Ins. Co. v. Woodard,
4. The trial court did not err in charging the jury that a lien could be enforced against McDaniel’s real property. Despite McDaniel’s contrary contention, Hensons’ work in removing the debris enhanced the value of his real property and could properly be the basis for a lien under OCGA § 44-14-361 et seq. See Thompson v. Crouch Contracting Co.,
McDaniel’s claim that he discharged his obligations by paying the “full” contract price to Deibert is without merit. An owner must prove that all amounts paid to the contractor were appropriately paid to materialmen and laborers or that the contractor’s statutory affidavit was obtained. D & N Elec. v. Underground Festival,
Judgment affirmed.
Notes
The parties agreed to stipulate that McDaniel had a life estate and owned the property.
Because McDaniel failed to raise below the issue that Hensons failed to sue the proper party, we will not consider that issue on appeal. Dupree v. State,