Stevens v. Georgia Land Co. , 122 Ga. 317 ( 1905 )

Evans, J.

1. The act of December 19, 1899 (Van Epps’ Code Supp. §6176), creating a lien in favor of materialmen for material furnished to a contractor for the improvement of real estate belonging to a third' person, in terms provides that “in no event shall the aggregate amount of liens set up [thereunder] exceed the contract price of the improvements made; ” and it follows that, in a proceeding to foreclose a materialman’s lien, it is incumbent upon the plaintiff to show, that the amount for which he asserts a lien comes, in whole or in part, within the contract price agreed on between the contractor and the owner of the property improved. A prima facie case is not made out by proving merely the value of the material furnished and that it was used in the improvement of the real estate, the contract price of the improvements made not being a matter so peculiarly within the knowledge of the owner of the property as to cast upon him the burden of showing that the claim of lien exceeds the amount which he agreed to pay the contractor.

Argued February 2, — Decided March 6, 1905.

Foreclosure of lien., Before Judge Reid. City court of Atlanta. May 9, 1904

Walter MeElreath, for plaintiff. John L. Hopkins & Sons, for defendant.

2. In the present case the evidence introduced in behalf of the plaintiff warranted a finding by the jury that his claim of lien was, to the extent of $165, enforceable; and this being so, the trial judge erred in awarding a nonsuit.

Judgment reversed.

All the Justices concur.