Adams v. B & D, Inc., No. 22972

CourtSouth Carolina Supreme Court
Writing for the CourtHARWELL; GREGORY
Citation377 S.E.2d 315,297 S.C. 416
Decision Date10 January 1989
Docket NumberNo. 22972
PartiesCharles F. ADAMS, d/b/a Charlie's Electrical Service, Respondent, v. B & D, INC., Betty R. Rowell and McGee & Sons, Inc., Defendants, of whom B & D, Inc., and Betty R. Rowell are Appellants, and McGee & Sons, Inc. is a Respondent. . Heard

Page 315

377 S.E.2d 315
297 S.C. 416
Charles F. ADAMS, d/b/a Charlie's Electrical Service, Respondent,
v.
B & D, INC., Betty R. Rowell and McGee & Sons, Inc., Defendants,
of whom B & D, Inc., and Betty R. Rowell are Appellants,
and
McGee & Sons, Inc. is a Respondent.
No. 22972.
Supreme Court of South Carolina.
Heard Jan. 10, 1989.
Decided Feb. 21, 1989.

Page 316

[297 S.C. 417] John R. Clarke, North Myrtle Beach, for appellants.

Joseph F. Singleton and Ronald R. Norton of Cross, Singleton & Burroughs, P.A., Conway, for respondent Adams.

H.T. Abbott, III, Conway, for respondent McGee & Sons, Inc.

HARWELL, Justice:

This is an appeal from the foreclosure of a mechanic's lien. The special referee ruled that the mechanic's lien had been established and entered judgment in favor of the subcontractor. We affirm in part and remand in part.

[297 S.C. 418] FACTS

Appellant Betty R. Rowell (Rowell) owns a building in North Myrtle Beach. Rowell leased the building to B & D, Inc. (B & D), which used it to operate a supermarket. The lease specifically provided that Rowell "... is not and never shall be liable to any creditor of [B & D] or to any claimant against the estate or property of [B & D] for any debt, loss, contract or any other obligation of [B & D]."

B & D contracted with Respondent McGee & Sons, Inc., the general contractor, for renovations and repairs to the supermarket. The general contractor, in turn, hired Respondent Charles F. Adams (Adams), doing business as Charlie's Electrical Service, to do electrical wiring on the project. Subcontractor Adams agreed to do the work on a "cost-plus" basis: he would be reimbursed for all labor and materials costs incurred plus ten percent (10%).

B & D authorized numerous changes and construction expansions which doubled the original estimated cost of the project. The increased costs were of great concern to B & D. In March 1986, agents of B & D asked general contractor McGee & Sons to submit a final billing figure to reflect all costs anticipated to complete the job. Doug McGee, president of the general contractor, approached all subcontractors and explained that a final billing, to include all costs for completion, should be submitted to him. On March 25, Adams submitted an estimate of $2500.00 to Mr. McGee. Mr. McGee added this figure to the estimates submitted by the other subcontractors on the project to reach a completion amount of $9200.00. B & D issued McGee & Sons a $9200.00 check marked "paid in full". McGee & Sons then paid off all its subcontractors, including $2500.00 to Adams based on Adams's estimate.

Adams continued working on the project through April 11, 1986. By that date, Adams had received additional materials invoices and incurred labor expenses totalling $4600.00 over and above the $2500.00 estimate. Adams reported the additional costs to Mr. McGee, but was never paid by McGee & Sons or B & D. Adams later filed the mechanic's lien against the supermarket property.

The parties do not dispute that Adams worked through April 11, nor do they dispute the value of his labor and [297 S.C. 419] materials. Neither Mr. McGee nor the general manager of B & D disputed at trial that if Adams had submitted the additional $4600.00 figure when final billing was requested in March, he would have been paid.

Both McGee & Sons and B & D believed that all subcontractors' estimates were final and that no further payments from B & D would be necessary. The special referee

Page 317

found that both McGee & Sons and B & D were therefore operating under a mistake of fact at the time "final payment" was made. He ruled that Adams had established...

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24 practice notes
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...Inc. v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931)). There must be an intention to create a novation. Adams v. B D, Inc., 297 S.C. 416, 377 S.E.2d 315 (1989). There can be no novation unless both parties so intend. Id. The party asserting a novation has the burden of proving......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...1994)). The failure to plead an affirmative defense is deemed a waiver of the right to assert it. See, e.g., Adams v. B & D, Inc., 297 S.C. 416, 419, 377 S.E.2d 315, 317 (1989) (ruling that an affirmative defense not pleaded in the answer or raised before the trial court will not be address......
  • Vandeventer v. All American Life & Cas. Co., No. 2-01-145-CV.
    • United States
    • Court of Appeals of Texas
    • March 13, 2003
    ...is released from performing those duties. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind. 1994); Adams v. B & D, Inc., 297 S.C. 416, 377 S.E.2d 315, 317 (1989); Honeycutt v. Billingsley, 992 S.W.2d 570, 576 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (defining "novation"......
  • Parrish v. Allison, No. 4322.
    • United States
    • Court of Appeals of South Carolina
    • December 19, 2007
    ...affirmative defense is deemed a waiver of the right to assert it." Craft, 372 S.C. at 21, 640 S.E.2d at 497 (citing Adams v. B & D, Inc., 297 S.C. 416, 419, 377 S.E.2d 315, 317 In construing a complaint or responsive pleading, the court must review the entire pleading. See Doe ex rel. Legal......
  • Request a trial to view additional results
24 cases
  • Moore v. Weinberg, No. 4209.
    • United States
    • Court of Appeals of South Carolina
    • February 20, 2007
    ...Inc. v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931)). There must be an intention to create a novation. Adams v. B D, Inc., 297 S.C. 416, 377 S.E.2d 315 (1989). There can be no novation unless both parties so intend. Id. The party asserting a novation has the burden of proving......
  • Wright v. Craft, No. 4181.
    • United States
    • Court of Appeals of South Carolina
    • November 27, 2006
    ...1994)). The failure to plead an affirmative defense is deemed a waiver of the right to assert it. See, e.g., Adams v. B & D, Inc., 297 S.C. 416, 419, 377 S.E.2d 315, 317 (1989) (ruling that an affirmative defense not pleaded in the answer or raised before the trial court will not be address......
  • Vandeventer v. All American Life & Cas. Co., No. 2-01-145-CV.
    • United States
    • Court of Appeals of Texas
    • March 13, 2003
    ...is released from performing those duties. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 (Ind. 1994); Adams v. B & D, Inc., 297 S.C. 416, 377 S.E.2d 315, 317 (1989); Honeycutt v. Billingsley, 992 S.W.2d 570, 576 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (defining "novation"......
  • Parrish v. Allison, No. 4322.
    • United States
    • Court of Appeals of South Carolina
    • December 19, 2007
    ...affirmative defense is deemed a waiver of the right to assert it." Craft, 372 S.C. at 21, 640 S.E.2d at 497 (citing Adams v. B & D, Inc., 297 S.C. 416, 419, 377 S.E.2d 315, 317 In construing a complaint or responsive pleading, the court must review the entire pleading. See Doe ex rel. Legal......
  • Request a trial to view additional results

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