Gantt v. Van der Hoek, 18806
| Decision Date | 08 July 1968 |
| Docket Number | No. 18806,18806 |
| Citation | 251 S.C. 307,162 S.E.2d 267 |
| Court | South Carolina Supreme Court |
| Parties | William A. GANTT and Dorothy June Gantt, Appellants, v. Cornelius VAN der HOEK, Van Builders, Inc., Atlas Lumber Co., Inc., and FivePoints Savings and Loan Association, of whom Atlas Lumber Co., Inc., is, Respondent. |
Lewis Cobb, Columbia, for appellants.
Calvo & Lee, Columbia, for respondent.
This action was brought in the Richland County Court of Common Pleas by William A. Gantt and Dorothy June Gantt, the appellants herein, against Cornelius Van der Hoek, Van Builders, Inc., Atlas Lumber Co., Inc., and Five Points Savings and Loan Association. The complaint prayed that a Mechanic's Lien previously filed by Atlas Lumber Co., Inc., the respondent herein, be dissolved and declared to be null and void. The respondent answered and filed its cross action asking for foreclosure of the Mechanic's Lien. Five Points Savings and Loan Association, a defendant below, was dismissed as a party defendant upon motion and without objection. The defendants below, Cornelius Van der Hoek and Van Builders, Inc. defaulted and there are no issues in this appeal regarding any relief sought by the appellants against them. The matter was referred to the Master in Equity for Richland County to take the testimony, determine the issues involved and report his findings of fact and conclusions of law to the Court of Common Pleas. On April 11, 1967, the Master filed his report wherein he concluded that the respondent was not entitled to a Mechanic's Lien. The respondent appealed to the Court of Common Pleas for Richland County. The exceptions of the respondent were heard by the Honorable John Grimball, Resident Judge, who, by his order dated and filed August 31, 1967, reversed the findings of the Master and upheld the Mechanic's Lien filed by the respondent. It is from the order of Judge Grimball that this appeal is prosecuted.
It appears from the transcript of record that William A. Gantt was and is the owner of a certain lot in Richland County. On March 4, 1965, he and his wife entered into a contract with Van Builders, Inc. by which it agreed to furnish all labor, materials, and supervision for the erection of a residence on the aforementioned lot for the total price of $19,000.00, $2,000.00 being paid at the time of the signing of the contract, with the balance of the contract price to be advanced by the appellants to Van Builders, Inc. in such amounts and at such times as might be approved by the Five Points Savings and Loan Association, from whom a construction loan was obtained by the appellants, in payment of the cost of construction of the appellants' residence.
Van Builders, Inc. commenced the construction of the residence on the said lot on or about March 10, 1966. Subsequently, on or about May 15, 1966, Van Builders, Inc. abandoned the contract, at which time construction of the residence was approximately half completed and the dwelling was thereafter completed by the appellants at their own expense.
The respondent supplied certain building materials to Van Builders, Inc. for use in the construction of the aforesaid residence. These materials were sold to Van Builders, Inc. on credit and delivery began on March 14, 1966. At the time Van Builders, Inc. abandoned the contract no payments had been made to the respondent on account of the materials so delivered. The amount claimed to be due by the respondent for such materials is $3,197.31. The respondent contends that the amount owed to it for the building materials, entitles it to a Mechanic's Lien upon the appellants' residence and lot of land upon which it is situated, by virtue of Section 45--251 of the Code, which creates a lien in favor of one to whom a debt is due '* * * for materials furnished and actually used in the erection * * * of any building * * * by virtue of an agreement with, or by consent of, the owner of such building * * * or any person having authority from, or rightfully acting for, such owner in procuring * * * materials * * *.'
The respondent contends that the requisite '* * * agreement * * * or consent * * *' was given by a statement signed by the appellant, William A. Gantt. The statement, written on paper bearing the letterhead of Van Builders, Inc., is as follows:
'March 12, 1966
'Mr. D. W. Baxter
Atlas Lumber Co., Inc.
'I, william A. Gantt, agree with the above named Corporation to pay at completion of contract a part of the total sum to Atlas Lumber Co., Inc., and Van's Builders Inc. jointly for the amount of Six Thousand Dollars ($6,000.00).
/s/ William A. Gantt.'
It is apparent from the record that the language of the foregoing statement was composed by Mr. Cornelius Van der Hoek, president of Van Builders, Inc.
The respondent required Van der Hoek (or Van Builders, Inc.) to obtain such a statement as a condition to its supplying building materials to him (or Van Builders, Inc.) on account. D. W. Baxter, Sr., Executive Vice President and Manager of the respondent, testified:
'We (i.e., he and Van der Hoek) also discussed that before I would furnish him with any materials on this job, he would have to supply me with a written statement from the owner agreeing to pay Atlas Lumber Company and Van's Builders, jointly, the amount; up to the amount of $6,000.00. The reason for this was to guarantee that I would be paid for the materials that we were putting on the job. * * *
'Mr. Van der Hoek had been a Building Speculator, and my opinion of things at that time was that Speculative Building was not the kind of building that I was interested in as far as furnishing materials.
And, also he was running a little bit behind on one of his other accounts, and this was just one way to guarantee that I would get my money.'
William A. Gantt testified that prior to the signing of the statement he had had no conversation or discussion with any of the officers or employees of the respondent nor had he made any promises to the respondent concerning the construction of his house. He testified that the statement was brought to him by Van der Hoek who gave him the following explanation:
'He (Van der Hoek) told me that he was short of cash; that he didn't have any money to go any further with it; and that Atlas Supply (Lumber) Company didn't want to put any more money in the house as far as the material ws concerned, because at the time we did not have the loan on the house, and that he needed me to sign this note so that when he finished the house I could make a check, the last check payable to him; not only to him but also to Atlas Supply Company.'
'And he said that he needed the paper because he was committed on several other projects, and that he was running short on funds, and that he needed to get this paper signed so that when the last check was drawn his name and the Atlas Lumber Company name would be on it.'
As hereinabove stated the language of the statement of March 12 was composed by Van der Hoek and the terms 'at completion of contract' were inserted by him without the knowledge or approval of the respondent. When the statement was returned to the respondent's office by Van der Hoek it was placed in the respondent's files without being read by D. W. Baxter, Sr., or other officers of the respondent familiar with the transaction. It was the testimony of Baxter that if he had known that the statement as signed by Gantt contained the language 'at completion of contract' he would not have extended credit to Van der Hoek (or Van Builders, Inc.) nor delivered the building materials.
The Master, in concluding that the respondent was not entitled to a Mechanic's Lien upon the property of the appellants, found the language 'at completion of contract' in the statement signed by Gantt on March 12, to create a condition precedent to any right of the respondent to be paid by the appellants. It was the further finding of the Master that since the contract was not completed there was no liability on the part of the appellants to the respondent. The circuit judge, in reversing the Master, held that the language quoted above did not create a condition precedent but merely designated a time for payment. He held that the statement constituted an agreement on the part of Gantt to pay the respondent and such agreement was not affected by the failure of Van Builders, Inc. to complete its contract with the appellants. In so holding, the circuit judge found that the agreement was ambiguous and that Van der Hoek was the agent of the appellants in negotiating the agreement and when he composed its language. Having made the last two findings, the trial judge determined that the ambiguity was created by the appellants and construed the agreement against them in favor of the respondent.
We think the circuit judge was in error in holding that Cornelius Van der Hoek was an agent of the appellants. We think that under the facts of this case Van Builders, Inc., operating solely through its president, Cornelius Van der Hoek, was an independent contractor and was so regarded by the respondent. His relation as such independent contractor was not contested by the respondent before the Master. There is no conflict in the testimony taken before the Master concerning the status of Van der Hoek or Van Builders, Inc. The testimony is that Van Builders, Inc. contracted with the appellants to build them a 'turn-key house'. The term 'turn-key' is one generally used in the building trade to designate those contracts in which the builder agrees to complete the work of building and installation to the point of readiness for occupancy. It ordinarily means that the builder will complete the work to a certain specified point, such as building a complete house ready for occupany as a dwelling, and that the builder agrees to assume all risk. See Robbins v. C. W. Myers Trading Post, Inc., 253 N.C. 474, 117 S.E.2d 438. Here, Van...
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