Jonas v. Central Georgia Lumber Co. , 35 Ga. App. 172 ( 1926 )

Luke, J.

B. A. Jonas filed a foreclosure affidavit alleging that he was employed by W. G. Smallwood to work and labor, that as such laborer he operated the saw at the sawmill of said Small-wood in sawing 80,000 feet of lumber, that he completed his contract, that he earned $127.00 which was due and unpaid, and that he demanded said sum from said employer and that the same had not been paid. Central Georgia Lumber Company, a partnership composed of several persons, filed a statutory claim to 5,000 feet of lumber levied on under the lien foreclosure. “By way of amendment and joinder of issue” the plaintiff offered an amendment substantially as follows: (1) Claimant owned a large body of timber, and contracted with Smallwood to saw same for $7.50 per thousand feet. (2) Smallwood employed affiant to operate said sawmill, and especially to cut said timber into lumber. (3) After affiant had been so employed, a member of claimant's partnership who was its general manager “came to the mill where affiant was at work, and on several different occasions gave him instructions as to the size and length, width and thickness, to saw said lumber, and told him that if the lumber was not cut according to said instructions that the company would not pay for said lumber.” (4) “Said company, through its agents and managers, knew that affiant was performing the work in sawing their timber into lumber, and they never at any time gave him notice that they would not pay for his labor if done according to instructions, and they gave him instructions as to how the labor should be performed, and he performed the labor according to such instructions, with the result that the partnership property was greatly enhanced in value, and they accepted the services and the benefits of his labor.” (5) “The lumber levied on by virtue of said foreclosure was cut and sawed by plaintiff, and said claimant could have deducted the amount due him from the amount paid to affiant’s employer, and therefore, if either party should sustain a loss, it should be the claimant rather than the plaintiff, because the claimant knowingly accepted plaintiff’s services.” (6) “Defendant in fi. fa. owns no property out of which his said lien can be satisfied, and the products of his labor is the only thing out of which he can collect his debts.”

The case was submitted to the court for decision upon the following agreed statement of facts: “It is agreed by the parties that the plaintiff was in the employ of W. G. Smallwood, performed the labor as alleged in the affidavit to foreclose the lien, and that the plaintiff had not been paid for said labor, and that the said sum as alleged in the foreclosure was and is due; that the lumber levied upon was the products of plaintiff’s labor, and that W. G. Smallwood owned no property out of which the lien could be satisfied; that the lumber levied upon was the property of claimant, and that claimant contracted with W. G. Smallwood to saw said lumber, and that the said claimant had paid the said W. G. Smallwood for sawing said lumber.” The court rendered judgment in favor of the claimant, and the plaintiff excepted.

It will be noted that the plaintiff’s amendment is in substance and almost in words identical with the plea in Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 (75 S. E. 898). He contends in his brief that the words in the agreement, “performed the labor as alleged in the affidavit to foreclose the lien,” had the effect of making “the pleadings as much a part of the agreed facts as if incorporated therein,” and that therefore this case was necessarily controlled by decision in the case cited above. To this we can not accede. We think the words, “performed the labor as alleged in the affidavit to foreclose the lien,” referred to the allegations in the original affidavit of foreclosure, and that to hold as contended by the plaintiff would be to contort, contradict, and entirely change the agreed statement of facts. The judgment in favor of claimant was demanded by the following decisions: Lanier v. Bailey, 120 Ga. 878 (48 S. E. 324); Tallent v. Hunter, 32 Ga. App. 656 (124 S. E. 361); Hobbs v. Broad River Lumber Co., 32 Ga. App. 447 (123 S. E. 756); Quillian v. Central R. Co., 52 Ga. 374.

Judgment affirmed.

Broyles, O.J., and Bloodworih, J., concur.