20 Adv. S. 22 | Miss. | 1953
J. O. Williams and Johnny May, doing business as a partnership under the name of Williams & May, and K. B. Starling and C. F. Black doing business as a partnership under the name of Starling & Black, and D. B. George, brought suit in chancery against Bill Baggett and J. D. Taylor and others seeking to enforce subcontractors’ liens under Section 372, Code of 1942, for labor and materials in the construction of five houses in Glen-wood Subdivision in or near the City of Jackson. The chancellor gave complainants a personal decree against Bill Baggett for the respective amounts due them but declined to give a decree against J. D. Taylor or- to impose a lien upon any of the houses in question. From the latter action the complainants appeal.
Appellants contend that under the facts they are entitled to personal decrees against Taylor and a lien upon the houses pursuant to Section 356, Code of 1942, and that Taylor does not come within the protection of Section 372, and that the decree is contrary to the great weight of the evidence because, as they contend, there was no prime contract between Taylor and Baggett and that Baggett was merely an employee of Taylor, the owner of the lots.
Taylor was the owner of twenty lots in Glenwood Subdivision and on July 7, 1950, he entered into a written contract with Bill Baggett, a building contractor, by the terms of which Baggett agreed to construct a house and garage on each of said lots in accordance with plans and specifications attached to the contract and at least in accordance with minimum Federal Housing Administration requirements.
Baggett agreed to furnish all materials and perform all work called for in the plans and specifications and to provide all tools and appliances necessary for perfor
The contract price was $6,100.00 for each house and was to be paid after final approval of the completed structure by Federal Housing Administration, but the contract provided that there might be a deviation from the plans and specifications on any house in which event Baggett would do the extra work called for in any written order for such deviation and would be entitled to additional compensation for such extra work.
The contract further provided that at least six houses would be constructed thereunder and that thereafter Baggett would give Taylor at least five days notice before the commencement of construction on any particular house and that Taylor would have the right to cancel the contract as to such house by giving Baggett at least three days written notice of such intention prior to commencement of construction on such house.
Pursuant to said contract Baggett began the construction of houses and it soon developed that he was unable to finance himself. He appealed to Taylor to make advances to him as the work progressed. Taylor was the owner of a sawmill but had no experience in the building trade. He arranged with G-. B. Sanders, a real estate agent who was to handle the sale of the houses as completed, to make periodic inspections of the work and
He notified Baggett of Baggett’s breach of the Contract and then obtained bids for completion of the two unfinished houses. The lowest bid was $2,120.00, made by one Hinkle, and he contracted with Hinkle to complete these houses. Adding this to what he had already advanced to Baggett, it appeared that his advances amounted to $194.27 more than the contract price with Baggett plus some extra work on one of the houses which had been done by Baggett. After notice of the claims of appellants Taylor paid nothing further to Baggett.
■ Appellants claim that the contract between Taylor and Baggett was abrogated by the acts of the parties and that thereafter Baggett was merely an employee of Taylor as a consequence of which Taylor is liable for the labor and materials furnished by them. The principal acts which appellants claim constituted an abrogation of the contract are that neither the first house nor any of the subsequent
In the case of Chancellor v. Melvin, 211 Miss. 590, 52 So. 2d 360, numerous authorities were reviewed and we reiterated what had been previously held by this Court. Among the principles there stated and here applicable are these: (1) Under a building contract such as here involved subcontractors, laborers and materialmen, who have dealt only with the prime contractor, have no lien on the money owed by the owner to the contractor until the statutory stop notice is given in accordance with Code Section 372; (2) if nothing is then owing by the owner to the contractor, the subcontractors, laborers and materialmen have no lien on the property nor any valid claim against the owner for the debts owing to them by the contractor; (3) even though the contract does not require that the owner pay anything before completion of the job, the owner may nevertheless make advances to the principal contractor during the progress of the work in any method and at any time they may agree upon and he will be protected in so doing.
Applying these principles and the terms of the written contract to the contentions of appellants, we find it practically undisputed, or at least established by the overwhelming weight of the evidence, that appellants dealt only with Baggett in the work they did and the materials they furnished, that Taylor knew nothing of their claims until November 17, 1950, and received no statutory stop notice from them until November 26,1950, and that Taylor paid nothing to Baggett after November 17,1950, and had then already overpaid him for the work he had done. On that date he owed Baggett nothing. He had a right to make advances to Baggett before completion of the work
Affirmed.