5 Ga. App. 533 | Ga. Ct. App. | 1909
This was a suit to foreclose a materialman’s lien. At the conclusion of the evidence the court directed a verdict for the full amount, as a lien against the property described in the claim of lien. The bill of exceptions makes several assignments of error. We think none are meritorious except the assignment that the verdict directed was unauthorized by the evidence. The
Under this evidence we do not think the plaintiff was entitled to a lien on the property of Eeed and Farmer. The evidence showed that the plaintiff had been paid for all the inatqjrial that it furnished Williams to be used in the improvement of the property of Eeed and Farmer. If it neglected to give the proper credit, the fault was not Eeed and Farmer’s, and the loss should not fall upon them. When a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons,, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time'to time on account of the material so furnished, it is incumbent upon the materialman to keep separate accounts and to find out from the contractor on what contract the money is paid, and to what account it should be applied. If he does not do so, but applies the money as a credit on a general account against the-contractor, he thereby waives his right to a lien, on the owner’s, property, and must look alone to the contractor. The lien-claimant, is presumed to keep his lien in mind; and if he is to seek its enforcement, the law requires him to preserve its unity as a claim against the particular property. If he does not, but so mingles, it with other claims as 'to necessitate a process of- separation by the courts, it may well be held that he has waived his lien. With the state of accounts between the contractor and the. materialman, relating to materials furnished for other buildings than his owh the owner has nothing to do. He has the right to have all the money that has been paid to the materialman on his account applied for his benefit, and not appropriated by the materialman to the payment of a general account against the contractor, in
The undisputed evidence in this case showing that the owners of the property on which the plaintiff claimed a lien had in fact paid the plaintiff, either by the contractor or directty, for all of the material used in the improvement of their property, and that the plaintiff had appropriated the money so paid, in whole or in part, to a general account against the contractor, which included debts for material furnished for the improvement of property of other persons, the plaintiff was not entitled to a lien against this property.
What is here held is not in conflict with the general rule of law that a creditor has the right, in the absence of direction by his debtor, to apply a payment on account to the oldest open item of the account. This is the rule as between the creditor and the debtor; but where the rights of third persons are involved, the law will make the credit according to principles of justice and •equity. It will not permit the money of one man to be used in the payment of the debt of another man, or declare a lien on the property of the man who has paid in full for all the material furnished to improve his property, and 'thus relieve from a lien the property of the man who still owes for the material that was used to improve his property. Under the facts, the plaintiff had lost the right to a lien on the property of the defendants Beed and Farmer; and a verdict to the contrary should not have been directed.
The motion to dismiss the writ of error is without merit.
Judgment reversed.