Rice & Santos, Inc. v. Jones, 21945

• Decision Date: 06 July 1983
• Docket Number: No. 21945,21945
• Citation: 305 S.E.2d 74,279 S.C. 201
• Court: South Carolina Supreme Court
• Parties: RICE & SANTOS, INC., Respondent, v. Marvin D. JONES and Betsy Jones, Appellants.

Page 74

305 S.E.2d 74

279 S.C. 201

RICE & SANTOS, INC., Respondent, v. Marvin D. JONES and Betsy Jones, Appellants.

No. 21945.

Supreme Court of South Carolina.

July 6, 1983.

G. Dana Sinkler, Charleston, for appellants.

Joseph F. Runey, Charleston, for respondent.

LEWIS, Chief Justice:

This appeal is from an order of the trial judge confirming the report of the Master for Charleston County, which granted foreclosure of a Mechanic's Lien. The material facts are not in dispute.

Appellants experienced a breakdown of their furnace in their home just before Christmas, 1977. Servicemen from the respondent corporation attempted unsuccessfully to repair the furnace. In accordance with previous plans, appellants left for North Carolina to spend the Christmas vacation, returning on December 29. Prior to leaving, the key to the home was left with a neighbor so that respondent could repair the furnace in their absence.

While in North Carolina appellants were notified by respondent that the furnace had a cracked heat exchanger which would have to be ordered and could take up to three months to obtain. A new heat exchanger would cost $326.00, while a new furnace would cost $687.00 installed. Based upon this information, it was agreed that respondent would install a new furnace, which was done on December 29 or 30.

It developed that respondent's determination that the furnace had a cracked heat exchanger was a good faith mistake of judgment in diagnosing the trouble and that the furnace could have been repaired by installation of a new gas valve at a cost of about $150.00, obviating the necessity of securing a new furnace.

Respondent fully installed the new furnace; but appellants refused to pay the contract price, claiming that they had only learned of the cheaper alternative gas valve repair subsequent to installation of the new furnace.

It is undisputed that appellants have enjoyed the benefit of a completely new furnace, trouble free, since December 1977, and apparently retain the old furnace as well.

Respondent timely preserved its Mechanic's Lien under Section 29-5-10 et seq. of the 1976 Code of Laws, and thereafter proceeded to foreclosure pursuant to the statutes. The issues were referred to the Master under a general order of reference. The Master concluded that respondent was entitled to the contract price ($687.00) for the new furnace, but appellants were entitled to an offset for an initial repair bill in the amount of $52.50 plus the amount ($150.00) for which the old furnace could have been repaired. In addition an attorney's fee of $229.00, plus court costs, was awarded.

The trial judge confirmed the recommendations of the Master and entered judgment against appellants.

Under the South Carolina Mechanic's Lien statute (Code Section 29-5-10) in order for a lien to arise, the work done or labor furnished must have been provided "by virtue of an agreement with, or by consent of the owner of such building or structure...."

There is no dispute in this case that appellants entered into an agreement for, and consented to, the installation of the furnace before respondent commenced performance. Appellants argue, however, that the lien lacked the requisite "agreement" or "consent" of the owner, because of respondent's "misrepresentation" regarding the need for a new furnace.

There is no finding in this case of actual fraud or bad faith. On the contrary, it is conceded that respondent's misrepresentation to appellants, that they needed a new heat exchanger, was a good faith mistake of judgment.

We have held that the word consent "implies more than mere acquiescence in a state of things already in existence. It implies an agreement to that which, but for the consent, could not exist, and in which the party consenting has a right to forbid." Guignard Brick Works v....