Allen v. Moore

• Decision Date: 16 July 1948
• Docket Number: No. 32010.,32010.
• Citation: 49 S.E.2d 121
• Parties: ALLEN. v. MOORE.
• Court: Georgia Court of Appeals

49 S.E.2d 121

ALLEN.

v.MOORE.

No. 32010.

Court of Appeals of Georgia, Division No. 2.

July 16, 1948.

Motion for Rehearing Dismissed July 29, 1948.

Syllabus by the Court.

1. Ordinarily before a lien on real property can be enforced in accordance with the provisions of Code § 67-2301, it must be shown that the plaintiff has fully completed the contract. However, if the completion of the contract was prevented by a breach thereof by the defendant, this is equivalent to a completion of the same, as a remedial element. See Ballard v. Daniel, 18 Ga.App. 449(1), 89 S.E. 603; Taylor v. Rainwater, Adm'x, 54 Ga.App. 315, 187 S.E. 704; Payne v. Trenmell, 29 Ga.App. 475, 115 S.E. 923; Lewis v. Owens, 124 Ga. 228(2), 52 S.E. 333; Haralson v. Speer, 1 Ga.App. 573, 58 S.E. 142.

2. Assignments of error on special grounds of motion for a new trial expressly or impliedly abandoned in brief of plaintiff in error will not be considered and points not insisted on in argument or brief of counsel are treated as abandoned. See Smith v. State, 73 Ga.App. 77, 35 S.E.2d 486; Plummer v. State, 200 Ga. 641(2), 38 S.E.2d 411; Brown v. Salter, 59 Ga. App. 579, 581(5), 1 S.E.2d 468; Albany Federal &c. Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20.

Error from Civil Court of Fulton County; Robert Carpenter, Judge.

Action by C. C. Moore against Joe Allen to foreclose a lien on realty for labor done and materials used in construction of a house thereon, in which defendant filed a cross-action for breach of the construction contract. Judgment for plaintiff, and defendant brings error.

Affirmed.

The defendant in error, C. C. Moore, hereinafter referred to as the plaintiff, brought a petition in the Civil Court of Fulton County, against plaintiff in error, Joe Allen, hereinafter referred to as the defendant. The action is to forclose a lien on certain real property described in the petition. It is alleged that the parties entered into a contract by which the plaintiff was to build upon the property of the defendant a certain described house; that plaintiff has completed said contract and the balance due for labor and materials used in connection therewith is the sum of $658. By amendment these items are particularly detailed. The petition alleges that a claimof lien was recorded on said property in the office of the Clerk of the Superior Court of Fulton County; that demand has been made and payment refused, and prays for a general judgment against the defendant and for a special judgment providing a lien on the real estate described in the petition.

The defendant filed an answer denying all material allegations of the petition. By way of further answer defendant contends that the plaintiff contracted to build the house according to certain plans and specifications; that the plaintiff commenced construction of the building and actually built the foundation wall; that the wall was then inspected and condemned by the Inspection Department of Fulton County; that thereupon plaintiff abandoned his contract, leaving an unsightly, insecure and unsafe foundation wall upon said premises, damaging defendant in the sum of $675; that as an excuse for the abandonment and breach of said contract, plaintiff claimed he could not secure necessary materials to complete the job.

Defendant prays for judgment in the sum of $675 against plaintiff by way of cross action.

The case was tried before a judge of the Civil Court of Fulton County without the intervention of the jury, said judge passing upon all questions of both law and fact.

The evidence is undisputed that the plaintiff entered into the contract with the defendant to complete a 5 room brick veneer house with one bath according to certain plans and specifications which were introduced in evidence. The evidence is also undisputed that upon construction of the foundation wall to the building, the plaintiff ceased further operations in connection with the completion of the building. It is also undisputed that upon the completion of the foundation wall, the same was not exactly right and in accordance with plans and specifications. The amount of material and labor furnished by the plaintiff in the construction of this wall, being in the sum of $658 is undisputed.

The evidence with reference to what was wrong with the wall, what would be required in order to correct it and which of the parties breached the contract, is in sharp conflict. However, construing this evidence in its most favorable light to support the judgment of the trial court, he was authorized to find that the foundation wall when complete was slightly out of line and that approximately 3 man hours of labor would be required in order to correct it; that certain stumps had also been left within the area around which the wall was built which the plaintiff was obligated to remove; that while the plaintiff was in the process of doing this work the defendant came upon the premises and told the plaintiff that he would not pay him for this work if he did it, as he had canceled the loan that both parties knew the defendant relied upon to obtain the funds with which to pay for the work. That thereafter the defendant told J. A. Moore, a brick mason working on the job for the plaintiff, that he had canceled the loan and decided not to build the house and that he would pay for no more...