156 Ga. 783 | Ga. | 1923
(After stating the foregoing facts.) The Civil Code (1910), § 3352, provides that “All mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing; or improving any real
On the «trial of the case the evidence for the plaintiff showed that he entered with Spence into the contract as already stated, and completed his contract; that he had his lien recorded as prescribed by law, within three months from the completion of his contract; that he foreclosed his lien in the superior court within twelve months from the time of the completion of the contract, as prescribed by law; that he obtained a verdict and judgment setting up his lien against the property levied upon, and for the amount declared upon in the petition and as stated in the judgment; that an execution was duly issued upon such judgment and was levied upon the property in controversy; that the claimant purchased the property levied upon; and there is ample evidence in the record tending to show that the claimant had notice of plaintiff’s lien. The defendant in fi. fa., H. N. Spence, who was sworn as a witness for the plaintiff, testified that on December 20, 1920, the date of his deed to the claimant, and before that date, C. H. Stewart was president of the bank, Harry Kingsberry was eastiier, and Hallum and Boykin were vice-presidents. Hallum was officiating as a member of the finance committee, and “ I was officiating as cashier of the bank prior to that time and up until December 6th or 7th, 1920. Between December 6th and 7th, 1920, and the date of the execution of this deed I had a conversation with Mr. C. H. Stewart, practically every day at my. home, relative to the business of the bank and relative to the securing of my debts to the bank by the putting up of my property. In reply to the question as to what notice Mr. Stewart had of B. E. Wager’s work and lien and indebtedness on this property, I answer that he had absolute notice of it (italics ours). I discussed it with him on numerous occasions. . . The arrangement was to borrow enough from my uncle to liquidate the entire indebtedness, including the Wager claim; and my father failed to get the loan. The whole arrangements were made with Mr. Stewart for him to go and do it. We and Mr. Stewart understood that I owed Mr. Wager this amount and it had to be taken care of. We discussed that, I discussed it with him, I owed that as much as I did the bank. In discussing this question with Mr. Stewart we figured up the amount needful to pay it off. He understood the amount that it would take to
But it is argued that the direction of the verdict was not error, because the lien was claimed for $4.55 for material furnished, and the balance was claimed for labor done by Wager as a laborer and not as a mechanic, and his lien as filed claimed no lien as a laborer; and it is insisted that our statutes with respect, to the lien laws are in derogation of the common law and are to be strictly construed. It is further insisted that a mechanic is not necessarily such a laborer as is entitled to a lien. We do not agree to this 'contention. In the case of Adams v. Goodrich, 55 Ga. 233, this court held that “ A laborer, though a mechanic, who performs actual manual labor for his employer, is entitled to a laborer’s lien on the property of the latter.” In the opinion it was said: “ The court charged the jury that ‘ the plaintiff, Adams, was a mechanic, and not such a laborer as was entitled to a lien upon the property of his employer which could be foreclosed upon his own affidavit, under the law providing for the foreclosure of laborer’s liens,’ to which charge the plaintiff excepted. In our judgment, the court erred in its charge to the jury on the statement of facts disclosed in the record. Although the plaintiff was a mechanic, he was a laborer within the true intent and meaning of the statute, and was entitled to a lien on the property of his employer. A con
It is also insisted that the petition nowhere alleges that the plaintiff had completed his contract or finished the work contracted to be done within three months prior to the filing of the lien. This contention is without merit. The third paragraph of plaintiff’s petition alleges that plaintiff “substantially complied with his contract as above set forth, and finally completed the same on the 23d day of November, 1920; whereupon the said sum of $1168.19 became due' and payable.” The petition also alleges in the fourth paragraph that plaintiff claims a lien upon the
It is further insisted that if the bank had no actual notice of the claim of Wager prior to the time it took the deed, Wager could not recover in the suit; and it is argued, that, whatever information came to the president of the bank and the other officials, such actual knowledge that Wager claimed a lien would not be binding on the corporation unless these parties were acting for the bank. In the evidence of Spence, quoted above, it appears that he was dealing directly with Stewart as president of the bank, in order to borrow money to pay off this identical claim; and it can not be held, therefore, that he was acting in his individual capacity and not for the bank. Besides, at the conclusion of the evidence in the case, counsel for the bank, the claimant, moved the court to direct a verdict for the plaintiff, subjecting the property to the amount of $4.55; and unless the bank had notice, a verdict in no amount should have been directed for the plaintiff. Therefore the claimant will not be heard to say that the bank did not have notice.
One other point only needs to be considered, viz., that the plaintiff in setting out and recording his lien.did not set forth what amount was claimed for material furnished or as a contractor or mechanic, etc. A sufficient reply to this insistence is that the lien was recorded in the language of the statute, which does not declare that the amount of the claim shall be set out, but merely that the mechanic or materialman, or laborer, as the case may be, claims a lien upon certain property, etc. In the petition foreclosing this lien the amount was set out, the verdict was “for a specific amount, and the judgment was entered accordingly; and that is all that the law requires. The purpose of recording the lien is to put the world on notice that there is a lien against the property, and this the plaintiff did, and in doing so complied with the mandate of the statute. The evidence in the case, with all reasonable deductions or inferences therefrom, did not demand the verdict directed by the court; and it was therefore error for the court to direct a verdict for the plaintiff for the sum of $4.55. Civil Code (1910), § 5926.
Judgment reversed.