Williamson v. Hotel Melrose

• Decision Date: 30 March 1918
• Docket Number: 9946.
• Citation: 96 S.E. 407,110 S.C. 1
• Parties: WILLIAMSON ET AL. v. HOTEL MELROSE ET AL.
• Court: South Carolina Supreme Court

96 S.E. 407

110 S.C. 1

WILLIAMSON ET AL. v. HOTEL MELROSE ET AL.

No. 9946.

Supreme Court of South Carolina

March 30, 1918

Appeal from Common Pleas Circuit Court of Darlington County; Thomas H. Spain, Judge.

Action by Bright Williamson and others, as trustees, to foreclose a mortgage on realty against Hotel Melrose, the Perkins Manufacturing Company, and others, lien claimants. Decree for defendants, and plaintiffs appeal. reversed in part, and affirmed in part.

Gary C.J., dissenting.

The following exceptions were taken:

Exceptions of defendant J. M. Lawton:

"J M. Lawton duly served notice of intention to appeal to the Supreme Court from the decree herein, and now appeals upon the following exceptions:

(1) Because his honor erred in holding that the item of $250 for extra services, the item of $140.84 paid out for labor, the item of $107.84 for materials furnished, were for services rendered and materials furnished under an independent contract subsequent to the execution and recording of the mortgage; whereas, he should have held that all of said items were comprehended in the contract of January 7 1914, and the modifications thereof, therein provided for.

(2) Because his honor erred in finding that any services were rendered or any materials furnished under an independent contract; whereas, there was but one contract with J. M Lawton, to wit, the contract of January 7, 1914, which in the first article thereof expressly provided for modifications and alterations in the plans of the architect to be made from time to time by the owner and the architect, it being admitted that said plans were frequently changed and that the building cost greatly in excess of the amount contemplated at the outset.

(3) Because his honor erred in disallowing the item of $15 expense trip to Augusta, the item of $120 rent of hoist engine, and the item of 62 cents freight; whereas, he should have held that each of said items was contemplated by the contract, was authorized by Hotel Melrose, and was a necessary and proper expenditure.

(4) Because, having found that Mr. Lawton was entitled to every penny of his claim in justice and morals, that it was admitted his services were faithful and efficient, and that thereby the cost of the building was measurably lessened, that when the credit of Hotel Melrose was exhausted before the completion of the building he paid for the materials necessary for the completion out of his own funds, his honor erred in holding that he was bound by the narrow limitations of the contract and the statute; whereas, he should have held that the entire claim of $901.45 was for services rendered and material furnished pursuant to the contract of January 7, 1914, and the modifications thereof, and that for said claim J. M. Lawton had a lien paramount to the mortgage."

Exceptions of the plaintiffs, Bright Williamson, C. B. Edwards, and W. M. Haynsworth, trustees:

"The plaintiffs, Bright Williamson, C. B. Edwards, and W. M. Haynsworth, trustees, appeal to the Supreme Court from the foregoing decree on the following grounds:

(1) Because his Honor erred in holding that the mechanics' liens of the defendants, Perkins Manufacturing Company, H. W. Witcover, J. M. Lawton, Otis Elevator Company, and Bryce & Haynsworth, are prior and superior in rank to the lien of plaintiffs' mortgage, although it is admitted that the said mortgage was duly executed, delivered, and recorded, as required by law, long prior to the delivery to the clerk of court by the said defendants, or any of them, of the statements required by section 4117 of volume 1 of the Code of Laws of South Carolina 1912, to be filed and recorded in the office of the clerk of court of the county where property sought to be affected by a mechanic's lien is situated, and long prior to the filing and recording of any lien, or claim of lien, or of any contract, statement, or evidence of indebtedness which might then or thereafter constitute a lien upon the mortgaged premises.

(2) Because his honor erred in holding that the mechanic's lien of the said defendants, Perkins Manufacturing Company, H. W. Witcover, J. M. Lawton, Otis Elevator Company, and Bryce & Haynsworth, are prior and superior in rank to the lien of the plaintiffs' mortgage, although it is clearly shown by the undisputed evidence that the mortgagees, at the time of the execution and delivery of the said mortgage to them, had no notice whatever, either actual or constructive, of the existence of any lien or liens, or of any contracts or indebtedness whatever which might then or thereafter constitute a lien or liens upon the mortgaged premises.

(3) Because his honor should have held that the lien of the mortgage of the trustees was superior and paramount to any and all other liens which were set up and claimed herein, and should accordingly have sustained the plaintiffs' contention that the proceeds of sale of said property be first applied to the indebtedness due upon their said mortgage.

(4) Because his honor should have held, in conformity with the facts as established in this case, that the contract upon which the lien claimants herein base their claims were divisible contracts, especially the contracts of the Perkins Manufacturing Company, in that it appears that separate invoices were delivered to the Hotel Melrose for each and every shipment made, and that payment for each and every invoice was made at the time of delivery or soon thereafter, and that nothing was owing or due upon said divisible contracts at the time of the execution of the plaintiffs' mortgage, which it is submitted constitutes a prior lien upon the mortgaged premises of the Hotel Melrose as against liens claimed by any and all other parties herein.

(5) Because his honor erred in holding that Hyman W. Witcover, the architect, has a lien upon the property of the Hotel Melrose for the amount due him by the said Hotel Melrose for services rendered by him in the erection of the building on its property, although the evidence clearly shows, and it is admitted, that the said Hyman W. Witcover did not perform or furnish any labor or furnish any materials in the erection of said building, but only prepared plans and specifications therefor and supervised the construction thereof.

(6) Because his honor erred in holding that the defendant J. M. Lawton, the superintendent of construction, has a lien upon the property of Hotel Melrose to secure the amount due him for services rendered in the erection of a building on its property, although the evidence clearly shows, and it is admitted, that the said J. M. Lawton did not perform or furnish any labor or furnish any materials in the erection of said building pursuant to any contract or agreement with Hotel Melrose, but that he only contracted for labor and materials as agent for said Hotel Melrose, and superintended the construction of the building."

The amendment of 1882 (Gen. St. 1882, § 2354) was as follows:

"Sec. 2354. Such lien shall be dissolved, unless the person desiring to avail himself thereof, within ninety days after he ceases to labor on or furnish labor or materials for such building or structure, files in the office of the clerk of the court of common pleas of the county in which the same is situated a statement of a just and true account of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which certificate shall be subscribed and sworn to by the person claiming the lien, or by some one in his behalf, and shall be recorded in a book kept for the purpose by the clerk, who shall be entitled to the same fees therefor as for recording mortgages of equal length: Provided, that said lien shall not be valid to affect the rights of subsequent creditors, or purchasers for valuable consideration without notice, unless the statement be recorded within 40 days from the time of delivery to the clerk."

The amendment to Gen. St. 1882, § 2354, by Act Dec. 24, 1884 (18 St. at Large, p. 822) § 1, was as follows:

"Sec. 2354. Such liens shall be dissolved, unless the person desiring to avail himself thereof, within ninety days after he ceases to labor on or furnish labor or materials for such building or structure, files in the office of the register of mesne conveyance of the county in which the same is situated a statement of a just and true account of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which certificate shall be subscribed and sworn to by the person claiming the lien, or by some one in his behalf, and shall be recorded in a book kept for the purpose by the register, who shall be entitled to the same fees therefor as for recording mortgages of equal length. The delivery to the register for filing, as hereinbefore provided, shall be and constitute the delivery contemplated with regard to such liens in section 1776 of the General Statutes."

The decree of the circuit court is as follows:

In 1913 a corporation was duly organized under the laws of this state, called Hotel Melrose, for the purpose of erecting owning, and operating a hotel at Darlington. A site for the hotel building was purchased (to which more specific reference will hereinafter be made), and in July, 1913, Mr. H. W. Witcover, of Savannah, Ga., was employed by Hotel Melrose to furnish plans and specifications for, and to supervise the erection of, the proposed hotel building; and on January 7, 1914, the plans and...