109 Ga. App. 801 | Ga. Ct. App. | 1964
Code Ann. § 67-2001 (2) provides that the true owner of improved real estate can prevent a material-man’s lien from attaching thereto by producing the “sworn statement of the contractor, or other person, at whose instance the work was done, or material was furnished, or such services furnished or rendered, that the agreed price or reasonable value thereof has been paid.” (Emphasis supplied).
The affidavit of the contractor produced by the defendant-owner, Solomon, although showing that the contractor had received the full contract price and that the amount of the plaintiff’s lien was within the contract price, also showed only that $6,250 of the contract price was actually used by him in the payment for supplies, material and labor on the contract, without stating that the balance of the contract price, some $24,000, was similarly used. Furthermore, the affiant specifically swore that the materials furnished by the plaintiff company—along with a list of other bills for labor, material and services used on the contract, aggregating more than the $6,250—-had not been paid for. The contractor testified by deposition that out of a total of $32,050 paid directly to him by the owner, $6,420.62 was drawn for his personal use and not used for labor and materials on the job, and the balance of $25,623.38 was used for the labor and materials. Regard
Judgment affirmed.