Holmes v. Venable , 27 Ga. App. 431 ( 1921 )

Jenkins, P. J.

(After stating the foregoing facts.) The ruling upon the question as to whether the plaintiff is entitled to foreclose his lien until the contractor shall have first fully performed his obligations under his contract with the owner may properly be somewhat elaborated. It is the general rule that, where an owner of real estate engages a contractor to construct or improve a building thereon, and, under employment of the contractor, a mechanic perforins labor in constructing or improving the building, there is sufficient privity between the-mechanic and the owner to support a lien on the property. Logue v. Walker, 141 Ga. 644 (81 S. E. 849). But while the contract between the owner and the contractor furnishes the basis of the laborer’s or materialman’s lien, where the work is done or the material furnished upon the employment of the contractor, these liens are not entirely as of subrogation to the right of the contractor to his lien. Prince v. Neal-Millard Co., 124 Ga. 894, 884 (53 S. E. 761, 4 Ann. Cas. 615). The lien of such a mechanic is itself statutory, and is not affected by any private arrangement between the property owner and the contractor (Tuck v. Moss Mfg. Co., 127 Ga. 729 (2), 56 S. E. 1001); but it is subject to the exceptions and requirements imposed by the statute, such as that “ in no event shall the aggregate amount of liens set up hereby exceed the contract price of the improvements made.” Civil Code (1910), § 3352 (2). To this extent the statutory rights of the mechanic to his lien are controlled by the contract between the owner and the contractor, and the mechanic or laborer must show that the amount for which he asserts a lien comes, in whole or in part, within the contract price agreed between the contractor and the owner of the property improved. Stevens v. Ga. Land Co., 122 Ga. 317 (50 S. E. 100). Under the statute it is incumbent upon the owner to see that payments to the contractor are, to the full amount of the contract price, appropriated to outstanding claims of materialmen and laborers. Green v. Farrar Lumber Co., 119 Ga. 30 (46 S. E. 62). The owner may defend by showing that the lien “has been waived in writing,” by the material-man or mechanic, or that the owner has taken from the contractor the statutory affidavit that such material and labor claims have been paid, or that the money paid the contractor actually went to the discharge of liens created by the contractor in the purchase of material or the employment of labor. But he cannot defend against the suit of a mechanic or materialman to foreclose such a lien by showing that others are claiming liens against his property, and thus proving merely a possible or even probable future liability. Tuck v. Moss Mfg. Co., 127 Ga. 733 (supra).

The lien of the mechanic and the procedure for its enforcement being statutorjr, it is not necessary to allege or prove that the contractor completed his contract with the owner; but the mechanic need only show a compliance on his part with the statute, and that he comes under its protection. Arnold v. Farmers Exchange, 123 Ga. 731, 733 (51 S. E. 754). Still he cannot, in any event, recover an amount greater than the amount for which the owner has become liable to the contractor under their contract; and thus it would seem that on a foreclosure of a mechanic’s lien the owner might be able to defend completely by showing that the contract was an entire one, and that the contractor, by abandoning his contract before its completion, has necessitated its completion through another contractor at an. amount exceeding the original contract price and therefore at a loss to the owner. Rowell v. Harris, 121 Ga. 239 (48 S. E. 948); Prince v. Neal-Millard Co., supra. The evidence does, not, however, bring the instant case within the exception made by this rule. Judgment affirmed.

Stephens and Hill, JJ., concur.