99 So. 266 | Miss. | 1924
delivered the opinion of the court.
This is a proceeding in which the appellants are seeking to- obtain a personal judgment against the appellee for services rendered and material furnished in the erection of a building, in which the personal judgment sought was obtained, but the lien on the building was denied. Suit was begun by a regular mechanic’s lien petition, setting forth a contract entered into between the parties hereto, by which, the appellants agreed to supervise the erection of a building” for the appellee and to furnish the labor and material therefor, for which they were to be reimbursed by the appellee and to receive for their services therefor seven and one-half per cent, of the total cost of
It appears from the evidence that the appellants com-. meneed and partially erected the building under their contract with the appellee, but before .its completion it developed that it would cost more than thirty thousand and five hundred dollars to build it, whereupon the appellee declined to pay any more of the appellants ’ bills for labor and material, giving as a reason therefor that under section 6 of the contract the appellants had guaranteed that the cost of the building would not exceed thirty thousand and five hundred dollars. The appellants, not being able to proceed with the erection of the building, unless these payments for labor and material should be made, quit work on the building, and it was thereafter completed by the appellee.
The recovery sought by the appellants embraces commissions earned and that would have been earned, had they been allowed to complete the building, labor and material furnished, and freight paid by the appellants on material. The appellants had not at the time of the trial paid all of the indebtedness incurred by them for labor and material, but no effort appears to have been made or to be contemplated by the parties to whom this indebtedness is due to collect it from the appellee.
The questions for decision can best be understood from a statement of the contentions of the appellee, which in effect are:
(1) That the contract for the erection of the building does not bring the' cause within section 3058, Code of 1906 (Hemingway’s Code, section 2418).
(2) That a count for a personal judgment only cannot be joined with one seeking in addition thereto the enforcement of a mechanic’s lien. Consequently the court below should not have permitted the appellants to amend their initial pleading, from which it necessarily follows’ that the court committed no error, after the amendment was made, in compelling the appellants to elect on which count they would stand.
(3) That, having elected to stand on the count for a personal judgment, the appellants waived their right to a lien claimed in the original count.
The theory upon which the first of these contentions is' based is that the appellants were employed merely to superintend the construction of the building and that in securing the labor and material therefor they were merely acting as the appellee’s agent.
This is a total misconception of the contract, the clear
We must not be misunderstood as intimating that, if the appellants’ contract had been merely for the supervision of the construction of the building they would have had no lien for their commissions for so doing. As the contract is not of that character, we are not called on to express an opinion thereon. Whether or not the appellants have paid the indebtedness incurred by them for the labor and material is of no concern to the appellee in so far as is disclosed by this record. The indebtedness is not his, but is the appellants.
The appellants were not entitled to a lien for commissions they might have earned, had they been permitted to complete the building, but in so far as the other items of the account sued on are concerned no amendment to the petition seems to have been necessary, for under section 3067, Code of 1906 (Hemingway’s Code, section 2427), a personal judgment therefor could have been rendered, in addition to a special order for the sale of the property on which the lien is sought. But there is no objection to joning in a mechanic’s lien proceeding a count for a personal judgment only with one for such a judgement and in addition a special order for the sale of the property on
The appellants, having elected under compulsion and over their protest to stand on the count for a personal judgment, cannot be held to have thereby waived their claim to the lien sought to be recovered under the original count. The appellee seems not to, and could not successfully, contend that under section 6 of the contract sued on the appellants guaranteed that the cost of the building would not exceed thirty thousand and five hundred dollars. In that section thirty thousand and five hundred dollars is simply estimated as the probable cost of the building, and the promise therein made by the appellants is to “execute this contract under the most economical method of procedure ... to the end” that the estimated “probable cost be not exceeded. ”
We do not understand from the record that there is or can be any contention on the part of the appellee that the appellants are not entitled to a lien on the building and the ground on which it stands, except for the reasons hereinbefore set out. If this is true, there can be no question either of fact or of law for the determination of which a new trial of the case in whole or in part is necessary. Consequently the court below should have sustained the appellants’ motion for the correction of the
The judgment of the court below will be set aside, and a judgment will be rendered here in accordance with this opinion. If it should be made to appear, by a motion within the time prescribed by the rules of this court for the filing of a suggestion of error, that justice requires that the cause be remanded, so as to permit the appellee to relitigate the appellant’s claim to the lien sought on grounds other than those hereinbefore set forth, the cause will be remanded for that purpose.
Reversed, and judgment here for appellant.
Reversed.