Lake v. Brannin

• Decision Date: 17 June 1907
• Docket Number: 12,720
• Citation: 90 Miss. 737,44 So. 65
• Court: Mississippi Supreme Court
• Parties: WILLIAM W. LAKE v. ADDISON BRANNIN ET AL

44 So. 65

90 Miss. 737

WILLIAM W. LAKE v. ADDISON BRANNIN ET AL

No. 12,720

Supreme Court of Mississippi

June 17, 1907

FROM the circuit court of Monroe county, HON. EUGENE O. SYKES Judge.

Brannin appellee, was plaintiff in the court below; Lake, appellant was defendant there. From a judgment in favor of defendant the plaintiff appealed to the supreme court.

Lake the appellant, entered into a contract with Wheelis & McCulla, a firm of carpenters, to make certain improvements on his residence for a stipulated price, they to furnish all labor and material necessary. Two parties from whom the carpenters, obtained materials, to-wit, Rye and the McMillan-Paine Hardware Company, would not sell to them, but sold to appellant, and he obligated himself to pay these parties for any materials furnished the carpenters by them. In the meantime, Wheelis & McCulla had bought materials from other dealers, the appellees here. Afterwards, before the completion of the work, Wheelis & McCulla abandoned the contract. Thereafter the appellees served notice upon the owner that they had furnished material to the carpenters and had not been paid for same, and began suit in the court of a justice of the peace, seeking to enforce a materialman's lien. The owner answered, denying that he owed anything to the carpenters at the time of the service of the notice, but admitted that he had a balance in his hands, which, if applied to the payment of the indebtedness due Rye, would leave him owing nothing whatever to the carpenters, and which amount he paid into court and sought to have the parties contest for the same. Rye refused to contest, and entered suit, and obtained judgment for the balance still due him. The same course was taken by the McMillan-Paine Hardware Company. Both judgments were satisfied. The case of Brannin and others, after the judgments above mentioned had been rendered and satisfied, went to trial, and they each recovered a judgment for the full amount demanded by them respectively. On the trial de novo in the circuit court both sides asked a peremptory instructions. The court granted plaintiff's request, refusing defendants.

Case reversed and remanded.

Leftwich & Tubb, for appellant.

The proof shows that there was no contractual obligation or relation between appellees nor any of them and the appellant. The materials which these materialmen sold to the carpenters Wheelis & McCulla, were sold solely on the faith and credit of the carpenters and without one word or syllable on the part of Lake, the owner, to pay for them. These materialmen simply sold their goods to a firm of insolvents, they took the chances and they lost. They do not pretend, any of them, to show or claim that Lake, the owner, had ever directly or impliedly contracted to pay for any of these materials. They seek now through this proceeding to establish a lien under the Code.

It will be observed that materialmen and subcontractors or employes under the statute, can only bind by the written notice to the owner such sums as may be in his hands and due the contractor at the time of the service of the notice; at the time of the service of the notice the owner shall have paid the contractor already the sum which he agreed under his contract to pay him for the work, or if the payments made to the contractors and the debts assumed by the owner to others for the contract or to enable him to get materials and labor for the work aggregate the amount which he agreed to pay for the work, then in either case the notice cannot bind the owner to pay, if he has no funds in his hands at that time due the contractor. The statute never contemplated that the owner of the property when he makes a contract to erect a building or alter or repair a building or structure on his premises can ever be bound to any one, either the contractor or to laborers or materialmen for any sum over and above the amount he agreed and contracted to pay to the contractors for the work. It will be observed that in this case Lake, the owner, agreed by his written contract to pay the contractors $ 1,325 for the repairing and alteration of his residence. He can never be called upon by materialmen, subcontractors, laborers or employes to pay more than this sum to secure the performance of this work unless the parties who seek to enforce the payment can show contractual obligation with them upon his part upon which to base the action. In this case it will be observed that at the time the first notice was given by Brannin on May 4, 1906, Lake, the owner, had paid to the contractors the sum of $ 1,133.70. This money was paid...