Raines v. Sanders

• Decision Date: 05 April 1926
• Docket Number: 11947.
• Citation: 132 S.E. 581,134 S.C. 284
• Parties: RAINES v. SANDERS et al.
• Court: South Carolina Supreme Court

132 S.E. 581

134 S.C. 284

RAINES v. SANDERS et al.

No. 11947.

Supreme Court of South Carolina

April 5, 1926

Appeal from Common Pleas Circuit Court of Kershaw County; W. H Townsend, Judge.

Action by J. E. Raines against J. W. A. Sanders, the Kirby Electrical Service Company, the Beam Lumber Company, the Shand Builders' Supply Company, and others. From the judgment plaintiff and three last-named defendants appeal. Affirmed.

Following is the decree of Judge Townsend directed to be reported:

Decree.

This is a special proceeding for the enforcement of an alleged mechanic's lien. The testimony has been taken and reported by the master, together with his findings of fact and conclusions of law. The matter was heard by me upon exceptions taken by the respondent, Sanders, to the master's findings and conclusions. The first question is What was the contract between Raines and Dr. Sanders with reference to the dwelling house? The evidence clearly shows that Dr. Sanders was desirous to build a dwelling house, and met Raines, an experienced contractor, who showed him plans or a sketch, "Exhibit A," and furnished him an estimate, "Exhibit B," itemized, proposing $8,467.25 as the cost of the dwelling. Dr. Sanders then proposed cutting out certain items, which reduced the estimated cost to about $7,300. Sanders testifies he then told Raines he could not put over $7,000 in the house, and Raines replied: "I think I can do it; we figured it down to a little over $7,000, and I think I can squeeze it down to $7,000"-and stated that his compensation for building the house would be $500. After further discussion, Dr Sanders said: "Well, the whole thing will cost me $7,500?" Sanders testifies that Raines replied "Yes." Whereupon Sanders testifies he said "That is $500 more than I have to put in the house, but if you build that house like you describe here, for $7,500, including your commission, or compensation, go ahead and build it; if you can't build it for $7,500, you had better not start it." And Sanders testifies that Raines then agreed to take the contract to complete the house for that sum, furnishing the material and performing the work. Raines contradicts his testimony, and testifies that he declined to take the job at this price, and that he did not agree to build the house and furnish the material for such, and testifies that he undertook the building without any set amount in view for expense, and that they were to try to get out as cheap as they could. Raines stated he told Sanders he would charge $500 as his compensation for supervising the work on the dwelling, including the first floor, stairway to second floor, and hall, and would furnish plans, tools, and a competent foreman, to be paid by Sanders, and would furnish all materials, approved by Sanders, and save him on every item he possibly could, and Raines testifies that both parties agreed to this latter plan for the work, and that he never heard any claim of a contract for $7,500 until in April, 1923.

The statement of Dr. Sanders as to the contract is corroborated by the testimony of his father, J. J. Sanders, and his wife, Mrs. M. L. Sanders, and also by C. W. Lee, a bricklayer employed by Raines, who testifies: "Raines told him he had a contract to build the house, and it was going to cost about $7,500"-and by R. L. Kelley, brother-in-law of and witness for Raines, who testifies that Raines told him he was to do the job for Dr. Sanders for $7,000 and $500 for his services, but that extras added to the house and work on the drug store had run it over. Dr. Sanders' testimony is further corroborated by the circumstances that Raines took out fire insurance on the building while in course of construction in his name, which is the customary practice where the contractor carries the liability until the completion of the building; by testimony of John Reynolds, that the same workmen employed by Raines to work on the Sanders house were used by Cathey, the foreman employed by Raines in doing at the same time a small job on the house of Mr.

James Team, and that these workmen carried material from the Sanders house to use in the Team's job; and the further circumstance that the material used in erecting the Sanders dwelling was bought by Raines in his own name, and not as agent for Dr. Sanders.

Upon the consideration of all the evidence in the case, I find that Raines undertook and contracted to build the dwelling for Dr. Sanders, in accordance with the plans which Raines submitted to Sanders, and for the entire price of $7,500. Here, I find from the evidence that Raines submitted the plans, prepared the bill of quantities which he estimated as necessary, and undertook to build the dwelling house in accordance with these plans, for the estimated amount, $7,000, plus $500 called his commissions, or compensation, and later, after commencing the work, agreed to give Dr. Sanders the benefit of any saving in the estimated quantities and expenses. I conclude, that Raines, an experienced contractor, must be presumed, under the evidence in this case, to have known and understood his business, and to have undertaken the work at his own risk. Williams v. Fitzmaurice, 3 H. & N. 844, cited in 4 Elliott, Contracts, § 3621. I further find from the evidence that Raines was not the agent of Dr. Sanders, or authorized to purchase on Dr. Sanders' account material to be used in the erection of the dwelling house. Where a contractor undertakes a job for a stipulated price, he impliedly undertakes to furnish everything reasonably necessary for the completion of the building.

The eleventh and fourteenth exceptions to the master's report are sustained.

I further find from the evidence that the contract for the building of the dwelling house was made between Raines and Dr. Sanders in November, 1922, and contemplated that the work should commence about the 1st of December, when it did commence, and, unless prevented by bad weather, should be completed within eight weeks, or by the 1st of February. The completion of the work was delayed by bad weather during this period; and I cannot say that the delay in completing the house was inexcusable under the contract. Hence, I conclude Dr. Sanders is not entitled to any offset against petitioner's claim on account of such delay .

The next inquiry involves a determination of the contract between Raines and Sanders with regard to the building of the drug store or office building and garage. It is obvious from the evidence produced that the contract for the building of these structures was essentially different from that relating to the building of the dwelling house in some particulars.

The contention of the defendant, Sanders, that, under the contract for the drug store or office and garage, he was to furnish the material, and that the cost of the garage was not to exceed the sum of $100, and that of the drug store or office the sum of $1,000, inclusive of labor and materials, finds corroborative support in the testimony offered. The witness J. M. Smith, for example, testified in substance that he furnished some of the lumber for the dwelling house, and that the bill for the lumber was made out to the plaintiff; that Sanders had nothing to do with the buying of the lumber for the dwelling house; that Sanders bought other lumber, which was billed to him personally, and this lumber was for the drug store or office, barn, chicken house, fences, etc.; that the bill for the latter lumber was paid by Sanders and that for the lumber used for the dwelling house was paid for by the plaintiff. The evidence also shows that Sanders purchased and paid for a carload of brick for the offices, which fact is not in the least disputed by the plaintiff. Sanders also bought other material for the office. The plaintiff does not attempt to give in detail the amount expended by him on the office building. A careful review of the testimony sustains the contention of the defendant Sanders on this phase of the case.

The evidence disclosed that only one of the defendants, the Rush Lumber Company, attempted to give notice provided for by section 5641 of the Code of Laws 1922, and an examination of the evidence on this point clearly shows that the record is not sufficient to establish such notice as would entitle this defendant to the protection of the statute, or to a preferred status as against its codefendants in an equitable distribution of the balance found due by the defendant Sanders to the plaintiff.

The witness J. E. Campbell, an employee of the defendant Rush Lumber Company, testified in a vague and uncertain way that he notified the defendant Sanders of its claim for materials furnished by depositing a letter addressed to him in the post office. He could not recall the date of the letter,...