Thе sole issue in this appeal is whether or not the trial court erred in concluding that privity existed between the appellant property owner and the appellee subcontractor of the owner’s general contractor.
As stated in the appellant’s brief, this case рresents the classic story wherein a property owner enters into a contract with a general contractor to make certain improvements on the owner’s land (apartment buildings); the general contractor enters into a contract with the *510 subcontractor to furnish a portion of the labor and materials (insulation) required under the general contract; the general contractor does not pay the subcontractor and the subcontractor sues bоth the general contractor and the owner. That is the scenario in this case. It is admitted by appellant that the subcontractor has proved that it has a valid claim of lien on its proрerty, that it is entitled to judgment against the general contractor for the full amount of its claim, and thаt the labor and materials furnished improved and benefited its property. The trial court so found and concluded that both the general contractor and owner were jointly and severally liаble to the subcontractor. The owner appeals, contending that there was no privity оf contract between the owner and the subcontractor. Held:
The subcontractor relies upon
Powell v. Ferguson Tile &c. Co.,
The owner relies
on D. H. Overmyer Warehouse Co. v. W. C. Caye & Co.,
The latter position is cоrrect." 'Where a materialman seeks to foreclose his lien against real estate which has been improved with material furnished by him to a contractor for such purpose, he cаn not recover a general verdict and judgment against the owner of the land for the value оf the material furnished,’ and 'a materialman can not recover a general judgment against the owner of the land for the material furnished, for the simple reason that
*511
he is no party to the contract for the purchase of the material.’ [Cits.]”
Gignilliat v. West Lumber Co.,
In the present case, the owner was not a named pаrty to the contract between the subcontractor and general contractor, did not sign the contract, nor become obligated in any way thereunder. The subcontractor sent invoices only to the general contractor, and was paid in part by check drawn on the general contractor’s bank account.
There were certain provisions in the subcontraсt in the present case which injected the name of owner. These provisions were: that the subcontractor was not to be paid until acceptance of his work by the contraсtor and owner; that the subcontractor would hold harmless the contractor and owner; that subcontractor would obtain approval from the contractor and architect or owner of estimated costs of each part of the work done; and that, in the event subcontrаctor ceased work, he would not be paid until full payment had been made by owner to cоntractor. These provisions did not have the effect of making the contractor the agеnt of the owner. See e.g.
Sasser & Co. v. Griffin,
The circumstances that created a principal-agent relationship between the ownеrs and the general contractors in the cases of
Christian v. Bremer,
Vulcan Materials Co. v. D. H. Overmyer Warehouse Co.,
Judgment reversed.