Appeal
from Common Pleas Circuit Court of Aiken County; Aldrich
Judge.
POPE
C.J.
On the
12th day of August, 1902, the North Augusta Electric & Improvement Company, owning lands in the town of North
Augusta, S. C., agreed to and with Mrs. M. M. R. Boatwright
to sell her two lots of land, to wit, lots known as lots Nos
4 and 5 in block No. 10, on a plan of lots made in 1891 by
Charles Broeck, bounded as follows: North by lot No. 3, east
by West avenue, south by lot No. 6, west by an
alley--fronting 100 feet on West avenue, and running back 200
feet to an alley, which said premises are owned
by the defendant North Augusta Electric & Improvement
Company, at the price of $400; and said North Augusta
Electric & Improvement Company agreed to and with Mrs. M. M
R. Boatwright that they would erect on said lot a dwelling
house for the sum of $1,900, but that the expense to said
company in the erection of said dwelling house should be
limited to $1,800. The said Mrs. M. M. R. Boatwright was
accorded the privilege of selecting the contractor to build
said dwelling house and furnish all the material therefor,
according to the plans and specifications of said dwelling
house previously agreed upon by and between the said North
Augusta Electric & Improvement Company and the said Mrs. M.
M. R. Boatwright. The said parties agreed upon B. F. Roberts
as the contractor to build said dwelling house, he furnishing
all the material necessary therefor, and the said North
Augusta Electric & Improvement Company agreed to pay said sum
of $1,800 for the erection of said dwelling house according
to the plans and specifications hereinbefore referred to. The
said North Augusta Electric & Improvement Company furnished
the sum of $1,350 to pay for the material and labor used in
the construction of said dwelling house, which latter was
nearly completed. But it was also agreed upon between the
North Augusta Electric & Improvement Company and Mrs. M. M.
R. Boatwright and the contractor, B. F. Roberts, that all the
material should be purchased from and furnished by the
Builders' Supply Company, a corporation under the laws of
Georgia, resident in the city of Augusta. After the payment
to the said Builders' Supply Company of the $1,350, there
was still a balance left unpaid, as they claim, of the sum of
$541.81. This the North Augusta Electric & Improvement
Company declined to pay. A mechanic's lien was filed in
the office of the clerk of the court for Aiken county, S. C.,
whereby the Builders' Supply Company sought to enforce
their lien to recover said $540.81. A petition was filed by
them against said North Augusta Electric & Improvement
Company and Mrs. M. M. R. Boatwright, as defendants. The
petition gave a history of the engagements of
these defendants, respectively, which has been heretofore
sketched. Mrs. Boatwright did not contest the same, though
she answered. The North Augusta Electric & Improvement
Company filed an answer, in which they vigorously contested
the petitioner's rights. By an order and agreement of the
parties, the testimony of each side to the controversy was
taken before the master. This testimony included not simply
oral testimony of the parties, but the documents which had
been signed, and which included Exhibits B, C, D, E, and F,
as follows:
Exhibit
B.
"State of Georgia, County of Richmond. This memorandum
of agreement entered into this 14th day of August, 1902,
between M. M. R. Boatwright, as party of the first part, and
North Augusta Electric and Improvement Co., a corporation of
the State of South Carolina, as party of the second part,
Witnesseth, That the said party of the second part agrees to
sell to the said party of the first part a certain house and
lot in Aiken County, State of South Carolina, for the sum of
$2,300, said house to be erected on a lot known as lots Nos.
4 and 5, block No. 10, on a plan of lots made by Charles
Broeck, C. E., in 1891.
The said party of the first part agrees to pay for the said
house and lot the said sum of $3,300, payable $400 cash and
the balance according to the tenor of certain promissory
notes, to bear date the 14th day of September, 1902, which
she hereby binds herself to execute and deliver to the said
party of the second part on or before the said date, as
follows: One note for the sum of $33.90, due the 14th day of
October, 1902, and eighty-three other notes for the sum of
$33.70 each, and due on the 14th day of each and every month
thereafter for eighty-three consecutive months.
In witness whereof, the said party of the first
part has hereunto affixed her signature the day and year
first above written. M. M. R. Boatwright.
Witness: Crommelin Fleming."
Exhibit
C.
"Augusta, Ga.
This agreement, made the 13th day of August, in the year
1902, by and between B. F. Roberts, party of the first part
(hereinafter designated the contractor), and M. M. R
Boatwright, party of the second part (hereinafter designated
the owner),
Witnesseth, That the contractor, in consideration of the
fulfillment of the agreement
herein made by the owner, agrees with the said owner as
follows:
"Article I. The contractor, under the direction and to
the satisfaction of M. M. R. Boatwright and North Augusta
Electric and Improvement Co., shall and will provide all the
materials and perform all the work shown on the drawings
furnished by M. M. R. Boatwright for a one and one-half story
dwelling to be built on lots Nos. 4 and 5, in block 10, in
North Augusta, S. C., according to the plans and
specifications signed by the contractor and owner and made
part of this agreement."
"Article III. No alterations shall be made in the work
shown or described by the drawings, except upon an order of
the owner, and when so made, the value of the work added or
omitted shall be computed by the contractors and owners, and
the amount so ascertained shall be added to or deducted from
the contract price.
Art. IV. The contractor shall provide sufficient, safe and
proper facilities at all times for the inspection of the work
by the owner, or her authorized representatives.
Art. V. Should the contractor at any time refuse or neglect
to supply a sufficiency of properly skilled workmen, or of
materials of the proper quality, or fail in any respect to
prosecute the work with promptness and diligence, or fail in
the performance of any of the agreements herein
contained, such refusal, neglect or failure being proved by
the owners, the owner shall be at liberty, after ten (10)
days' written notice to the contractor and bondsmen, to
provide any such labor or materials, and to deduct the cost
thereof from any money then due or thereafter to become due
to the contractor under this contract; and if the owner shall
prove that such refusal, neglect or failure is sufficient
ground for such action, the owner shall be at liberty to
terminate the employment of the contractor for the said work
and to enter upon the premises and take possession, for the
purpose of completing the work comprehended under this
contract, of all materials, tools and appliances thereon, and
to employ any other person or persons to finish the work, and
to provide the materials therefor; and in case of such
discontinuance of the employment of the contractor he shall
not be entitled to recover any further payment under this
contract until the said work shall be wholly finished, at
which time, if the unpaid balance of the amount to be paid
under this contract shall exceed the expense incurred by the
owner in finishing the work, such excess shall be paid by the
owner to the contractor, but if such expense shall exceed
such unpaid balance, the contractor shall pay the difference
to the owner.
Art. VI. The contractor shall complete the several portions,
and the whole of the work comprehended in this agreement by
and at the time or times hereinafter stated, October 12th,
1902. ***"
"Art. IX. It is hereby mutually agreed between the
parties hereto, that the sum to be paid by the owner to the
contractor for said work and materials shall be $1,800,
subject to additions and deductions as hereinbefore provided,
and that such sum shall be paid in current funds by the owner
to the contractor in installments as follows: (1/4)
one-fourth when framed and raised. (1/4) one-fourth when
weather-boarded and covered. (1/4) one-fourth when plastered
and floored. (1/4) one-fourth when completed according to
plans and specifications which form a part of this contract.
The final payment shall be made within ten days
after the contract is fulfilled. If at any time there shall
be any evidence of any lien or claim for which, if
established, the owner of the said premises might become
liable and which is chargeable to the contractor, the owner
shall have the right to retain out of any payment then due or
thereafter to become due an amount sufficient to completely
indemnify him against such lien or claim. Should there prove
to be any such claim after all payments are made, the
contractor shall refund to the owner all moneys that the
latter may be compelled to pay in discharging any lien on
said premises made obligatory in consequence of the
contractor's default.
Art. X. It is further mutually agreed between the parties
hereto that no certificate given or payment made under this
contract, except the final certificate or final payment,
shall be conclusive evidence of the
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