Allen v. Schweigert
| Decision Date | 26 March 1901 |
| Citation | 38 S.E. 397,113 Ga. 69 |
| Parties | ALLEN v. SCHWEIGERT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where this court decides that a certain petition is good as against a demurrer filed thereto, the decision cannot be reviewed and overruled when the same case is again brought to this court, but is binding in the case, and must control on the trial, if the facts proved raise the same question.
2. Where, however, the evidence adduced on the trial does not sustain all of the material allegations of the petition, and the decision made upon the demurrer is not applicable to the case made by the facts proved, that decision is, of course not controlling.
3. Where a mechanic has recorded his lien for work done and material furnished, and sought, under the provisions of the act approved December 18, 1897, to have such lien foreclosed and enforced as against the owner upon the real estate improved, and where it conclusively appeared that the owner had fully settled with the contractor before the giving of the written notice required by the act, and owed the contractor nothing at the time such notice was given, a verdict in favor of the mechanic was contrary to the evidence, and the court did not err in setting it aside; the act expressly providing that the lien shall not attach "for a sum greater than such balance as the owner may be indebted to the person having the contract at the time of the service of such notice." (a) This is true, although, at the time the notice was given, the contractor had not completed his contract, and had been paid for only such part as had been completed, where such contractor had made a settlement with the owner whereby he surrendered the contract, and released the owner from the payment of the balance of the contract price of the work, in consideration of his own release from his obligation to complete the building, and from liquidated damages already amounting to more than the balance which would have been due him had he completed the contract within the stipulated time.
4. Where there are several grounds in a motion for new trial and the judge grants a new trial upon one ground only, this is equivalent to overruling the other grounds; and, upon exceptions to the grant of the new trial, this court cannot consider such other grounds unless a cross bill of exceptions is filed, complaining of the refusal to sustain them.
Error from city court of Richmond county; W. F. Eve, Judge.
Action by C. B. Allen against William Schweigert. Judgment for defendant, and plaintiff brings error. Affirmed.
Sam. F Garlington and Jas. C. C. Black, Jr., for plaintiff in error.
Wm. K. Miller and J. S. & W. T. Davidson, for defendant in error.
The present case is a suit by Allen, a mechanic and material man for the enforcement of his lien against certain real estate as against the owner and the contractor by whom the plaintiff was employed. When the case was here before, it was decided that the petition, as against the general and special demurrers thereto, set out a good cause of action under the act approved December 18, 1897 (Acts 1897, p. 30). The judgment of the court below, sustaining the demurrers, was reversed, 110 Ga. 323, 35 S.E. 315. When the case was called in the lower court for trial upon its merits, the plaintiff showed that one McKeown had contracted to build a house for Schweigert upon a certain lot of land owned by the latter. The plaintiff made an agreement with the contractor, McKeown, to do certain work and furnish certain material to be used in the construction of the house. Under this agreement, plaintiff was to be paid $550 for his services and material. Of this amount he had been paid $200, and had taken a promissory note of the contractor for the balance. He completed his contract and had his claim of lien recorded, and on May 12, 1898, served the owner with the written notice required by the statute. He also proved that Schweigert had contracted to pay McKeown $4,210 for building the house, and that only about $3,000 of this had ever been paid to McKeown. The owner of the realty showed that, by the terms of the contract for the construction of the house, the contractor was to complete it not later than January 1, 1898, and that there was a stipulation that for every day thereafter to the time when the house was actually completed the contractor was to pay him $10 as liquidated damages; also, that, sometime prior to May 4, 1898, he had paid McKeown $3,023.32; that McKeown was unable to complete the house because of the refusal of certain material men to extend him further credit; that on May 4, 1898, he and McKeown executed a contract or agreement of settlement whereby McKeown surrendered the house in its then condition to Schweigert, and released the latter from the balance which would have been due had the contract of construction been completed, and whereby Schweigert, on his part, released McKeown from all obligation to complete the house or do any further work upon it, and also from some $1,250 already due as liquidated damages for delay in the completion of the house. Schweigert also showed that the amount paid to McKeown was full compensation for the work done; that to have the house completed he had to pay to another contractor exactly the amount which would have been due McKeown had the latter finished the job according to contract; and that the stipulation for liquidated damages was reasonable, and the damages not susceptible of exact computation. The judge directed...
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