Southern Mfg. Co v. R. L. Moss Mfg.Co

• Decision Date: 31 March 1914
• Docket Number: (No. 1905.)
• Citation: 81 S.E. 263,13 Ga.App. 847
• Parties: SOUTHERN MFG. CO. v. R. L. MOSS MFG.CO.
• Court: Georgia Court of Appeals

(13 Ga.App. 847)

81 S.E. 263

SOUTHERN MFG. CO.

v.R. L. MOSS MFG.CO.

(No. 1905.)

Court of Appeals of Georgia.

March Term, 1914.

(Syllabus by the Court.)

1. Mechanics' Liens (§ 249*) — Right to Foreclose—Completion of Contract.

In the absence of an express stipulation to the contrary, the statutory lien of a builder and materialman for labor and material furnished in improving real estate, arising under an entire contract, cannot be foreclosed until the completion of the contract.

[Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. §§ 433-^137; Dec. Dig. § 249.*]

2. Contracts (§§ 287, 2S9*)—Building Contract—Right of Action.

A stipulation in a building contract, to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer, is a condition precedent, and an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract, and to enforce its collection by the foreclosure of the materialman's lien. And though this stipulation may be waived, still the mere failure or refusal of the umpire, chosen by the parties, to give a certificate does not entitle the builder to sue upon the contract. If the engineer named in the contract as the arbiter has given a certificate stating that the contract has not been completed nor complied with, a recovery cannot be had under the contract, and a suit upon a quantum meruit, to recover the value of the services and material furnished, would be the plaintiff's appropriate remedy.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1308, 1309, 1310, 1312-1316, 1318-1338, 1340-1342, 1344-1346, 1348, 1350, 1351; Dec. Dig. §§ 287, 289.*]

3. Contracts (§ 305*) — Estoppel (§ 52*) — Building Contract.

In case of dispute between the parties as to the performance of any of the conditions or stipulations of a written contract, the mere submission of a proposal to arbitrate the matters in dispute, which was not acted upon by the opposite party, is not such a waiver as will operate as an estoppel. Unless the party to whom this proposal is made accepts it and acts thereupon, the party making the proposition to arbitrate is not estopped from insisting upon the original contract. No right of the party to whom the proposal was made has been prejudiced or affected. The right to claim an estoppel by waiver is based on the loss or surrender of an equivalent right which would still exist but for some act of the opposite party which has altered the position of him who insists upon the waiver. To derive the benefit of an estoppel by waiver, he who asserts a waiver must show either that he has lost something, or that the opposite party gained something, by the act in question by reason of which it would be unjust to permit the beneficiary of the intervening act to assert his pre-existent rights.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1398, 1399, 1400, 1463, 1464, 1467-1475: Dec. Dig. § 305;* Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. § 52.*]

Error from City Court of Athens; Howell Cobb, Judge.

Suit by R. L. Moss Manufacturing Company against the Southern Manufacturing Company. Judgment for plaintiff, and defendant brings error. Reversed.

E. K. Lumpkin, of Athens, for plaintiff in error.

T. S. Mell, of Athens, for defendant in error.

RUSSELL, J. In this case the statutory lien of a builder and materialman was foreclosed upon the real estate of the opposite party to a written building contract, in which it was stipulated that the decision of all questions as to the completion of the contract, as well as the builder's compliance with the specifications, should be submitted to engineers as agents of both the contracting parties. Since we are of the opinion that the nature of the plaintiff's action could not be disregarded, nor a new contract be substituted for that entered into by the parties, and which was necessarily the foundation of the action sub judice, and that therefore the lower court should have disposed of the case upon the defendant's motion, it is unnecessary to refer to the contentions of the defendant as set forth in its answer, and we shall state only the case as made by the plaintiff in the petition, with the amendments allowed by the court, and the defendant's objections to the proceeding.

The R. L. Moss Manufacturing Company, a corporation, brought suit in the city court of Athens, against the Southern Manufacturing Company, to foreclose a builder's lien for a balance alleged to be due the plaintiff for building 25 operatives' houses for the Southern Manufacturing Company, which the petition alleged were built under a written contract between the parties, according to plans and specifications referred to in the contract. The petition alleged that the plaintiff complied with the terms of its contract and built the houses as it had contracted to do; that as the work progressed the defendant paid the plaintiff sums aggregating $12,725, but failed and refused to pay the balance due on said written contract, and that the defendant was liable for an additional sum of $721.75 for extra material and work and insurance on three houses, as set forth in the declaration. It was further alleged that the plaintiff filed and recorded its contractor's lien within three months after the completion of the contract, as required by law.

The written contract which was the basis of the suit was not attached to the petition, and the defendant demurred to the petition, as follows: To the second paragraph (which alleged the written contract for the building of the 25 houses according to the plans and specifications which were a part of the said contract), upon the ground that the written contract and the plans and specifications were not set out, either by copy or in substance, and that the second paragraph is vague and uncertain by reason of the fact that it does not disclose what are the terms and conditions either of the contract or of the plans and specifications. For the same reasons the defendant demurred also to para-graphs 3, 4, 5, and 6 of the petition. Pending a ruling upon the demurrer the plaintiff, by way of amendment, attached a copy of the original contract and of the plans and specifications, and offered another amendment, setting up that during the progress of the work the engineers in charge, under the contract, were frequently upon the ground where the work was in progress, and that no objection, verbal or in writing, was ever made by them to any of the material placed in said houses, or to any of the workmanship done on them, although the petitioner repeatedly requested said engineers to inspect the work as it progressed and to point out to the petitioner anything objectionable in the material or workmanship, and that the engineers failed to inspect or point out defects; that when some of the houses were completed and the petitioner urged the engineers to inspect them and give to the petitioner a certificate for payment, the engineers declined (as averred by the plaintiff) solely because the defendant did not have any money and did not wish them inspected and a certificate given; that the petitioner called the attention of the engineers to that item of the specifications which called for a second coat of plastering, to be put on in accordance with the directions of the manufacturers and to be floated down to a sand finish, and that the manufacturers said that on lathwork the plastering must not be floated, and that some of the plasterers were floating it and some troweling it, and requested the engineers to direct how the plastering should be put on, and the engineers failed and refused to give any direction as to how the plastering should be put on; that one of the engineers was taken into one of the houses and shown the plastering, after it was completed, and inspected it and made no objection; that this inspection was made before the plastering in any of the other houses was completed, and no objection was made to the plastering, or direction given; that the engineers frequently passed by the houses while they were in course of construction and saw the material and workmanship, and made no objection to either; that when the work was in process of construction the petitioner repeatedly urged the engineers and the defendant to inspect the same and point out any defects in material and workmanship; that the defendant's authorized agents were often on the ground where said houses were being erected, at all periods of the work, and were urged to have the engineers point out any defects, and that they failed and refused to do so, but permitted petitioner to proceed with the construction of the said houses to completion, and until it was practically impossible to remedy any defects in material or workmanship, if any existed. The amendment further alleged that when the houses were completed and tendered to the defendant, the defendant refused to pay the contract price, upon the ground that they were not up to the contract, and offered to arbitrate the differences between petitioner and defendant. It was further alleged that the defendant did not at any time demand that the petitioner get a certificate from the engineers, and did not at any time refuse to pay the contract price because the certificate was not obtained, but based its refusal to pay entirely upon the ground that the houses were not built according to specifications; that the petitioner urged the defendant and the engineers to point out any defects in material or workmanship in said houses, and they both refused to do so, declaring that the petitioner and the defendant must get together and make such adjustment of the matter as they could. In fine, the amendment to the petition alleged that, by reason of the defendant's conduct as therein set forth, it had waived its right to have the engineer's certificate produced, under the terms of...