Wood v. RH HARDY, JR.Wood v. RH HARDY, JR.
This is an action brought by Richard Wood, doing business as Westminster Lumber Co., the respondent herein, against Robert H. Hardy, Jr., appellant herein, to foreclose a mechanic’s lien on a lot of land owned by the appellant and located on U. S. Highway No. 76, about one mile west from the Town of Westminster, in Oconee County, South Carolina. It appears from the record that the disputed issues arising in this case were referred, by consent, to a Special Referee. A hearing was had before such Special Referee and he filed his report granting the respondent the entire amount claimed in his complaint, less a few minor items. There was an appeal from the report of the Special Referee and such was heard before the Honorable G. Badger Baker, Presiding Judge. By a decree, dated March 11, 1958, the Presiding Judge overruled all of the exceptions to the report of the Special Referee and confirmed the said report, and directed a sale of the premises in question in order to satisfy the mechanic’s lien. The owner of the premises in question has appealed from the decree of the Circuit Judge to this Court.
It appears from the evidence that the respondent had furnished to the contractor all the materials used in the dwelling under construction upon the premises of the appellant. He had not been paid for any of the materials at the time Duckworth abandoned the performance of his contract. It is also conclusive from the evidence that Duckworth, the contractor, had not been paid any sum by the appellant, who was the owner of the premises upon which the dwelling was being constructed.
Upon the abandonment of the construction contract by Duckworth, the record shows that the appellant and the respondent agreed to hire carpenters and to complete the con
The respondent testified that he thought the house was completed at the time the appellant moved into' it, but upon complaint being made by the appellant to the respondent that “My kitchen sink drain is stopped up” and “it just goes on the outside of the house and stands there”, referring to the drainage from the kitchen sink, the respondent sent a plumber back to the dwelling of the appellant on October 8, 1956, with two joints of pipe, and connected the kitchen sink drain with the septic tank, as should have been done under the original contract. The cost of the two joints of pipe was $4.12. The record does not show that any additional charge was made by the respondent for the installation of the two joints of pipe.
The record shows that the respondent did, on December 18, 1956, file in the office of the Clerk of Court for Oconee
The appellant asserts, by his answer, that the respondent did not file any lien upon or against the premises in question within 90 days after any work was done thereon or any materials furnished.
The appellant asserts that the Court was in error in holding that the respondent had 90 days from October 8, 1956, within which to file and serve his mechanic’s lien. The appellant takes the position that the furnishing of materials or the performance of labor, trivial or inconsequential in character, was not sufficient to extend the time for the filing of a mechanic’s lien by the respondent herein, and particularly that the furnishing of the two joints of pipe and the installation thereof on October 8, 1956, was so trivial and inconsequential that such did not keep the respondent’s mechanic’s lien alive.
It is provided in Section 45-252 of the 1952 Code of Laws, that:
“Every laborer, mechanic, subcontractor or person furnishing material for the improvement of real estate when such improvement has been authorized by the owner shall have a lien thereon, subject to existing liens of which he has actual or constructive notice, to the value of the labor or material so furnished. Such lien may be enforced as herein provided.”
“Whenever work is done or material is furnished for the improvement of real estate upon the employment of a contractor or some other person than the owner and such laborer, mechanic, contractor or materialman shall in writing notify the owner of the furnishing of such labor or material and the amount or value thereof the lien given by § 45-252 shall attach upon the real estate improved as against the true owner for the amount of the work done or material furnished. But in no event shall the aggregate amount of liens set up hereby exceed the amount due by the owner on the contract price of the improvements made.”
It is provided in Section 45-259 of the 1952 Code of Laws, that:
“such a lien shall be dissolved unless the person desiring to avail himself thereof, within ninety days after he ceases to labor on or furnish labor or materials for such building or structure, serves upon the owner * * * and files in the office of the register of mesne conveyances * * * a statement of a just and true account of the amount due him * * *”
It is also provided in Section 45-262 of the 1952 Code of Laws, that:
“Unless a suit for enforcing the lien is commenced within six months after the person desiring to avail himself thereof ceases to labor on or furnish labor or material for such building or structures the lien shall be dissolved.”
In the recent case of
Lowndes Hill Realty Co. v. Greenville Concrete Co.,
229 S. C. 619,
“The manifest two-fold purpose of Sections 45-252 and 45-254 is:
“(1) The protection of one, not a party to a contract with the owner, who furnishes labor or material in the improvement of the owner’s property, by giving him a lien for suchlabor or material; and (2) the protection of the property-owner by limiting his liability and that of his property in respect of all such liens to ‘the amount due by the owner on the contract price of the improvement made’. Snipes v. Horton, 129 S. C. 1, 123 S. E. 321 .
“The materialman’s lien, or rather his right to a lien, arises, inchoate, when the material is furnished, Section 45-252, Williamson v. Hotel Melrose, 110 S. C. 1,96 S. E. 407 ; but in order to perfect and enforce it he must: (1) give notice to the owner ‘of the furnishing of such * * * material and the amount or value thereof’, Section 45-254; (2) serve and record a certificate of lien within ninety days after he ceases to furnish material, Section 45-259; and (3) bring suit to foreclose the lien within six months after he ceases to furnish material, Section 45-262.
“Section 45-254 specifies no time at which or within which notice of the furnishing of material is to be given to the owner. Such notice may be given at any time. Cf. Hughes v. Peel, 221 S. C. 307,70 S. E. (2d) 353 ; but of course it will be ineffectual if the other requisites to the perfection and enforcement of the lien, Sections 45-259 and 45-262, are not met. Delay in giving the notice cannot operate to the detriment of the owner, because his liability under the lien is limited to the balance due by him to the prime contractor at the time he received the notice.”
In the case of
Hughes v. Peel,
221 S. C. 307,
“The only requirement of the law is that the account be filed within ninety (90) days after he ceases to labor on or furnish labor or materials for such building or structure.”
In 57 C. J. S. Mechanics’ Lien § 125, at page 632, it is said:
“* * * qq^ statute runs from the date of the last item, even though the doing of the last item of work is somewhat delayed, provided the delay is not for the purpose of extending the period for giving notice. * * *”
In the case of
Burel v. East Arkansas Lumber Co.,
In the case of
Breeding v. Melson, 4
W. W. Harr. 9,
“* * * It is quite true that very little material was supplied by the plaintiff, and that the value of the same was insignificant, but that fact cannot have any bearing on his status as a contractor, as the statute does not specify that any particular amount of labor or material shall be furnished.”
In
District Heights Apartments, Section D-E v. Noland Company, Inc.,
“* * * But where a claimant, after a contract is substantially completed, does additional work or furnishes additional material which is necessary for the proper performance of his contract, and which is done in good faith at the request of the owner or for the purpose of fully completing the contract, and not merely as a gratuity or act of friendly accommodation, the period for filing the lien will run from the doing of such work or the furnishing of such materials, irrespective of the value thereof. Harrison v. Stouffer,193 Md. 46 , 65 A. (2d) 895. * * *”
We conclude that the respondent, in good faith, and at the request of the appellant, did furnish materials and do additional work necessary for the completion of his contract, and that having filed his lien within 90 days after the furnishing of such labor and materials, even though the value thereof was insignificant, the filing of such lien was timely made.
The next question to be determined is whether or not the lower Court was in error in holding that the claim for materials furnished Duckworth, the contractor, was properly asserted in the Mechanic’s lien and in the complaint of the respondent.
It should be pointed out that upon the default of Duck-worth that a contract was entered into by the appellant and respondent, by the terms of which it was agreed that the appellant would hire one Lawrence to complete the carpenter work on the dwelling, and the respondent agreed with the appellant to supply the remaining necessary materials, and to furnish a painter to complete the painting of the building, and other incidentals necessary for the completion of said dwelling. The evidence conclusively shows that this agreement was carried out. Certainly, the appellant cannot complain of the assertion in the mechanic’s lien and in the complaint of the respondent that a contract existed between them for the completion of the dwelling after Duckworth had abandoned the contract he made with the appellant. There is no denial of the agreement that appellant had with the respondent.
The mechanic’s lien, as filed and served, includes charges for materials furnished by the respondent when Duckworth was constructing the dwelling. It also includes charges for labor and materials pursuant to the new contract made by the respondent with the appellant. An examination of the mechanic’s lien, as filed and served, shows that the respondent claimed, a lien upon a lot owned by the appellant for the amount of labor and materials furnished, according to an itemized statement attached thereto, and such claim was stated in the following language:
“That the said claim is made for and on account of the said furnishing of labor and materials which were actually used for labor and materials for the said Robert H. Hardy which said buildings and structures are situated on a tract■ of land owned by and in possession of the said Robert H. "Hardy * *
The mechanic’s lien, as filed and served, describes with particularity, the lot owned by the appellant and upon and against which a lien is asserted for labor and materials used in the construction of a building thereon. Then follows the statement that the materials furnished were pursuant to a • contract between the appellant and the respondent. The complaint also alleges, with additions, what was contained in ■ the mechanic’s lien as filed and served. There is an allegation in the complaint that the labor and materials were furnished -pursuant to a contract between the respondent and appellant.
We do not think that the statement in the mechanic’s lien, as filed and served, and in the complaint, that the labor and materials were furnished pursuant to a contract between the respondent and the appellant was fatal, even though the statement as to the materials furnished while Duckworth was constructing the dwelling in question was erroneous.
We again quote from the case of Lowdes Hill Realty Co. v. Greenville Concrete Co., supra, where we said:
“Service of this certificate was sufficient compliance with the requirement of Section 45-254 in regard to notice. Nor was its effectiveness vitiated by the fact that in addition to its contents quoted above it contained a statement to the effect that the material had been furnished pursuant to a contract between the owner and the claimant, for this, though erroneous, was mere surplusage.”
The mechanic’s lien, as filed, meets the requirements of section 45-259 of the 1952 Code of Laws. This statute provides for the filing and service of a statement of the amount due the claimant, with all just credits, given for the labor and material used in the erection of some building or structure on the property against which the lien is claimed; a description of the property intended to be covered by the lien sufficiently accurate for identification; and the name of the owner of the property.
“* * * Disregarding the surplusage matter as to the mechanic’s lien, we find left in the pleading of the petitioner statements to the effect that it furnished certain material for the enlarging and improvement of the schoolhouse, owned by the respondents-trustees, of the value of $1,128.43, for which it had not received payment, and that the respondents were due to the petitioner the said sum. All of these are allegations appropriate to a suit at law for the recovery of money.”
Applying the converse of the rule here stated to the instant case, we find, disregarding the surplusage matter as to the existence of a contract between the appellant and respondent, the pleading sufficient to the effect that the respondent furnished certain material and labor for the construction of a dwelling owned by the appellant, for which the respondent has not received payment, and that he has a mechanic’s lien upon the property of the appellant. These allegations are appropriate to a proceeding to foreclose a mechanic’s lien.
During the course of this trial before the Special Referee, the appellant took the position that the materials furnished and charged to Duckworth, the contractor, could not be the basis of a lien in favor of the respondent. The appellant also asserts that the burden was upon the respondent to prove a direct contract with the appellant because such had been alleged in the complaint. When objection was made, the Referee said:
“* * * The question is whether he did supply labor and materials and whether the labor and materials did go into the Robert Hardy job, and if he did not have a contract with the defendant, and if the defendant paid the bound contract before getting any notice why the owner, of course, wouldn’t be required to pay again. If you will so move to amend your complaint so to delete the allegation, if that is your position — that the plaintiff did not have a contract with the defendant, but did supply behest to the bound contractor — ”
In response to this statement by the Special Referee, counsel for the respondent said: “I will so move. I will amend my complaint to read: at the request of Hardy — ”
The appellant takes the position that the respondent did not follow the recommendation of the Special Referee but seeks to apply the amendment to the materials and labor furnished after Duckworth abandoned the construction of the dwelling. We do not think this position is sound because the very purpose of the objection made by the appellant was to exclude the materials furnished by the respondent to Duckworth. There could be no valid objection to the allegation of the complaint if it referred to the materials furnished to the appellant after an express contract was made with him by the respondent.
It is proper, during the trial of a case, for the Court to allow an amendment to conform the pleading to the facts proved, provided such amendment does not materially or substantially change the claim or defense of the party seeking the same. The allowance of an amendment for the purpose aforesaid is a matter largely in the discretion of the trial judge.
Grist v. Caldwell,
123 S. C. 240,
Finally, the appellant asserts that the Court below, in allowing the respondent a lien for practically the full amount claimed, accorded to the respondent greater rights than those possessed by Duckworth, the contractor. The appellant says that the respondent should not be allowed a mechanic’s lien for any amount greater than the balance due by the appellant, the owner, to the contractor, at the time he received notice of the mechanic’s lien. He argues that the contractor failed to construct the dwelling according to the plans and specifications of the Veterans’ Administration. He takes the further position that the contractor, having abandoned the construction of the dwelling, was not entitled to recover any sum from the appellant.
Section 45-254 of the Code provides that “in no event shall the aggregate amount of the liens set up hereby exceed the amount due by the owner on the contract price of the improvement made.”
We refer again to the case of Lowndes Hill Realty Company v. Greenville Concrete Company, supra, where we said an owner’s liability under a mechanic’s lien is limited to the balance due by him to the prime contractor at the time he receives the notice.
It is uncontradicted that the appellant has not paid anything to Duckworth, nor has he paid for any of the materials furnished to Duckworth by the respondent. It further appears that the work done by Duckworth was so unsatisfactory that it failed to pass the first inspection.
There is testimony in the record, which was admitted without objection, that Duckworth failed to erect the dwelling for the appellant according to the plans and specifications, and did, without justification, abandon his construction contract. What amount of damages has been sustained by the appellant as a result of the failure of Duckworth to erect the dwelling according to the plans and specifications, and for abandoning the contract, does not appear from the evidence. This is an issue that should be determined by the lower Court.
The judgment of the lower Court is affirmed as to materials furnished by the respondent to the appellant on and after July 18, 1956 and the judgment of the lower Court is reversed and the case remanded to the trial Court for further proceedings consistent with the views herein expressed. Affirmed in part and reversed in part.