Timmons v. Citizens' Bank of Waynesboro

• Court: Georgia Court of Appeals
• Writing for the Court: POTTLE, J.
• Citation: Timmons v. Citizens' Bank of Waynesboro, 74 S.E. 798, 11 Ga.App. 69 (Ga. App. 1912)
• Decision Date: 16 April 1912
• Docket Number: 3,927.
• Parties: TIMMONS et al. v. CITIZENS' BANK OF WAYNESBORO.

74 S.E. 798

11 Ga.App. 69

TIMMONS et al. v. CITIZENS' BANK OF WAYNESBORO.

No. 3,927.

Court of Appeals of Georgia

April 16, 1912

Syllabus by the Court.

A contract made with a building contractor stipulated that he should be paid a specified sum for the work, payable in monthly installments in such sums as the architects might in writing certify to be due. The owner reserved the right to withhold the payment of any installment when necessary to protect himself against any outstanding claims or liens for either labor or material. Held, when the architects issued a certificate that a specified sum was due under the terms of the contract, the certificate was assignable, and the assignee could enforce it in a court of law, as a legal assignment of a particular fund.

In such a suit by the assignee, it was not necessary that the petition should negative the existence of liens for labor or material. This was matter of defense.

(Additional Syllabus by Editorial Staff.)

Only a court of equity can enforce a partial assignment of a fund when the debtor has not assented to the assignment.

Error from City Court of Tifton; R. Eve, Judge.

Action by the Citizens' Bank of Waynesboro against W. W. Timmons and others, as trustees of the Baptist Church of Tifton. Judgment for plaintiff, and defendants bring error. Affirmed.

J. H Price, J. B. Murrow, and J. J. Murray, all of Tifton, for plaintiffs in error.

Perry Foy & Monk, of Sylvester, for defendant in error.

POTTLE J.

The Citizens' Bank of Waynesboro sued certain named persons as trustees of the Baptist Church of Tifton; the allegations of the petition being substantially as follows: The church is an unincorporated voluntary association of persons for the purpose of divine worship. The association is composed of a congregation of members of this church, and owns certain real estate situated in the city of Tifton, consisting of a lot of land together with the church edifice thereon, which constitutes the only property owned by the assemblage of persons. The property is held and controlled for the use of the congregation by certain persons, designated as trustees of the church. The plaintiff holds a claim in the principal sum of $1,200 against the trust estate in the control of the defendant trustees, which claim arose as follows: A written contract was entered into between a committee representing the church and Wagener, a contractor, for the building of the church edifice situated on the lot above referred to. This contract provided that the work of construction should be done under the direction and superintendence of certain named architects, and that the contractor should provide all materials and labor for all the work mentioned in the specifications and drawings prepared by the architects. There are other details in the contract which are not material to the questions presented for decision. The contract further provided, in substance, that if for any reason, during the progress of the work, the contractor refused or neglected to carry on the work in accordance with the plans and specifications, the owner should have a right to terminate the employment and complete the building, and that in that event the contractor should not be entitled to receive any of the payments until the work was wholly finished, at which time final settlement should be had. The contract contained this provision: "It is hereby mutually agreed that the sum to be paid by the owners to the contractor for the said work and materials shall be $25,400, subject to additions and deductions as hereinbefore mentioned. Payments are to be made on the 1st of each month for not more than 85 per cent. of the amount of the materials and labor furnished, and shall be made on written certificates of the architects to the effect that such payments have become due. Final payment is to be made when the work is completed and accepted by the architects and owners. If at any time there shall be evidence of any lien or claim for which, if established, the owners of the said premises might become liable, and which is chargeable to the contractor, the owners shall have the right to retain from any payments then due, or thereafter to become due, an amount to sufficiently indemnify them against such lien or claim." It was further stipulated that "no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials." On February 20, 1908, while the contractor was actually engaged in the erection of the church building, and "while actually entitled to the amount designated in the certificate hereinafter mentioned, as part payment for work done and material furnished in the erection of said building," the architects issued to the contractor a certificate reciting that he was entitled to $1,200, "as seventh payment as per terms of contract dated July 6, 1906, with 15 per cent. reserve." This certificate was assigned to the plaintiff for a valuable consideration. The plaintiff has presented said certificate to the defendants for payment, notifying them of the assignment, and payment has been refused.

Numerous grounds of demurrer were filed to this petition as finally amended, but the only...