Richardson v. Lanius

• Decision Date: 21 June 1924
• Citation: 263 S.W. 799,150 Tenn. 133
• Parties: RICHARDSON v. LANIUS ET AL.
• Court: Tennessee Supreme Court

263 S.W. 799

150 Tenn. 133

RICHARDSON v. LANIUS ET AL.

Supreme Court of Tennessee.

June 21, 1924

Appeal from Chancery Court, Maury County; Thos. B. Lytle, Judge.

Suit by T. S. Richardson against J. R. Lanius and others. From an adverse decree, defendant Mattie Loftin appeals. Modified and affirmed.

Greenlaw & Whitthorne, of Columbia, for appellant.

Smiser & Dinning, of Columbia, for appellee.

HALL J.

The bill in this cause was filed by complainant, Richardson against defendants J. R. Lanius, P. C. Dooley, and Mrs Mattie Loftin.

Complainant sought a decree against defendants Lanius and Dooley for the sum of $785.55, with interest from the date of the filing of his bill, balance due for materials furnished Lanius and Dooley, who had a contract with Mrs. Loftin to remodel and make certain additions to her dwelling house situated on a certain lot mentioned and described in the bill located in the city of Columbia, Tenn., and to set up and enforce a furnisher's lien for said materials which were used upon the premises of Mrs. Loftin.

The chancellor rendered a decree against Lanius and Dooley for the sum of $785.55, together with the sum of $52.87 interest or a total of $838.42, which amount was declared a lien on Mrs. Loftin's house and lot, and said property was ordered sold in bar of the equity of redemption to satisfy said lien unless the decree was paid within 30 days from the date thereof.

From this decree Mrs. Loftin appealed to the Court of Civil Appeals. That court reversed the decree of the chancellor and both complainant and defendant Mrs. Loftin have filed petitions for writs of certiorari, which have heretofore been granted, and the cause is now before this court for review.

Mrs. Loftin answered complainant's bill, averring that by a written contract with Lanius and Dooley the cost of the improvement to be made upon her premises was limited to $1,900, and that it was stipulated that any old material used in said improvement by Lanius and Dooley (contractors) with her consent should be credited to her at the price of new materials; that she had paid to laborers performing labor on the improvement the sum of $759.75, and that Lanius and Dooley had used old material belonging to her (Mrs. Loftin) in making said improvement to the amount of $72.62; that they had abandoned the improvement before its completion, and she had been compelled to spend $58.82 to complete it; that she had paid complainant the sum of $750 on his account for materials furnished her contractors, Lanius and Dooley. She therefore, claimed that, while she was indebted to complainant in some amount, she did not owe him the full amount of his claim of $1,535.55, less the credit of $750, which she had paid complainant during the progress of the work, but admitted that she did owe him a pro rata of the contract price of $1,900, which her answer averred should be reduced by the items of old material used in said improvement, to wit, $72.62, and the further sum of $58.82, which she was compelled to expend in the completion of the job after it had been abandoned by her contractors; therefore that the amount which she owed complainant was that per cent. of $1,900 (the contract price) thus reduced, which the entire amount of the materials furnished by complainant, to wit, $1,535.55, bore to the total expenditures of the improvement, less the $750 which she had paid complainant.

The chancellor found that Lanius and Dooley (contractors) had a contract in writing with Mrs. Loftin, whereby they were to build three rooms and remodel her residence for the sum of $1,900; that the contract provided, however, that all old material which Mrs. Loftin agreed could be used in said improvement should be paid for at the price of new material; that the contract also provided that Mrs. Loftin was to advance money to pay for the material and labor used in making said improvement to within $500 of the contract price; that complainant sold to said contractors materials for said improvement amounting to $1,770.44; that Mrs. Loftin had paid upon this amount the sum of $750, and had returned to complainant material unused amounting to $134.89, both of which items were credited on complainant's account, leaving a balance due of $785.55.

The chancellor further found that Mrs. Loftin had paid the laborers, who performed the work on said improvement, the sum of $759.75, that the contractors had used $72.62 worth of old material which belonged to Mrs. Loftin in the new improvement, and that Mrs. Loftin had expended $58.82 to complete the improvement according to contract after it had been abandoned by her contractors.

In this finding of the chancellor the Court of Civil Appeals concurred. The Court of Civil Appeals, however, reversed the decree of the chancellor, and held that Mrs. Loftin's property could not be bound for more than the contract price, and that the chancellor committed error in declaring complainant's decree a lien against her property for the full amount of the recovery awarded complainant, but that the lien should have been limited to the pro rata part, or per cent. which $1,900 will pay on the entire cost of the improvement, after adding to said contract price the cost of four extra windows, which were added to the improvement.

The Court of Civil Appeals declined to allow Mrs. Loftin credit for the sum of $72.62 for old material used by her contractors in said improvement, and credit for the $58.82 expended by her in completing the improvement in accordance with the contract.

The Court of Civil Appeals ordered the cause remanded to the chancery court for a reference to ascertain and report the cost of putting in the four extra windows, which amount, when ascertained and reported, the court ordered added to the contract price of $1,900. The total cost of the improvement, as thus ascertained, is fixed by the Court of Civil Appeals as the basis upon which complainant's lien will be determined, and the court ordered that complainant's decree be declared a lien upon the premises of Mrs. Loftin on a pro rata basis only; that is, a lien only in that proportion which the decree bears to the total cost of the work under the contract, as increased by the four extra windows--that is, "the total cost of the work is now shown to be the expenditures heretofore made by Mrs. Loftin, amounting to $1,509.45, plus complainant's decree of $838.42, or a total of $2,347.87, and that per cent. of the latter sum, which $1,900 plus the cost of the four windows will pay, is the per cent. of complainant's decree of $838.42, which will be declared a lien upon defendant's said premises."

Mrs. Loftin assigns as error the action of the Court of Civil Appeals in ordering that the "cost of the four extra windows" be added to the contract price, if it is meant by this to include the materials which went into the four extra windows, but if only the cost of installing the windows in the building is to be added she makes no objection. She claims that the materials which went into the four extra windows are evidently included in complainant's account for materials for which he claims a decree, and therefore these materials should not be considered.

It is a sufficient answer to this contention that the record fails to disclose that the materials which went into the four extra windows are included in complainant's bill for materials on which he seeks a recovery. The record is silent as to this. Therefore we cannot say that these materials are included in complainant's account, and we are unable to say that the holding of the Court of Civil Appeals as to this item was error.

It is next insisted that the Court of Civil Appeals committed error in not allowing Mrs. Loftin credit for the item of old material which was used in the improvement amounting to $72.62, and also credit for the item of $58.82, which she was compelled to expend to complete the improvement after her contractors had abandoned the job.

We are of the opinion that the Court of Civil Appeals was in error in not allowing Mrs. Loftin credit for these two items. These two credits are therefore allowed. She was certainly entitled to credit for the $72.62, which represented the old material that belonged to her and was used in the improvement. This had the effect of reducing the contract price of the improvement, as was also true of the $58.82, which she was compelled to expend to complete the work after the contract had been abandoned by Lanius and Dooley. The Court of Civil Appeals was of the opinion that the credit for old material could not be allowed because the proof failed to show that it was used in the improvement with Mrs. Loftin's consent, and furthermore, because she had not filed any cross-bill seeking affirmative relief.

The evidence shows that the old material was used in the improvement, and, while the evidence does not show...