Wood v. Hardy

• Decision Date: 12 August 1959
• Docket Number: No. 17566,17566
• Citation: 110 S.E.2d 157,235 S.C. 131
• Court: South Carolina Supreme Court
• Parties: Richard WOOD d/b/a Westminster Lumber Co., Respondent, v. Robert H. HARDY, Jr., Appellant.

Page 157

110 S.E.2d 157

235 S.C. 131

Richard WOOD d/b/a Westminster Lumber Co., Respondent, v. Robert H. HARDY, Jr., Appellant.

No. 17566.

Supreme Court of South Carolina.

Aug. 12, 1959.

John M. Schofield, Walhalla, for appellant.

Ninestein & Pettit, Walhalla, for respondent.

MOSS, Justice.

This is an action brought by Richard Wood, doing business as Westminster Lumber Co., the respondent herein, against Robert H. Hardy, Jr., appellant herein, to foreclose a mechanic's lien on a lot of land owned by the appellant and located on U. S. Highway No. 76, about one mile west from the Town of Westminster, in Oconee County, South Carolina. It appears from the record that the disputed issues arising in this case were referred, by consent, to a Special Referee. A hearing was had before such Special Referee and he filed his report granting the respondent the entire amount claimed in his complaint, less a few minor items. There was an appeal from the report of the Special Referee and such was heard before the Honorable G. Badger Baker, Presiding Judge. By a decree, dated March 11, 1958, the Presiding Judge overruled all of the exceptions to the report of the Special Referee and confirmed the said report, and directed a sale of the premises in question in order to satisfy the mechanic's lien. The owner of the premises in question has appealed from the decree of the Circuit Judge to this Court.

It appears from the evidence that the appellant contracted with one J. Walter Duckworth to construct for him a dwelling on the premises above referred to. This contract was entered into on March 24, 1956. The total contract price for a 'turnkey job' was $6,050. This contract price was to be paid to Duckworth, $2,000 when the house was framed and the roof complete; $2,000 when the outside work was completed, and a final installment of $2,050 upon the completion of the dwelling. It further appears that the appellant, who was a veteran, was to obtain a Veterans' Administration approved loan through a mortgage company of Greenville, South Carolina. This dwelling was to be constructed according to plans and specifications approved by the Veterans' Administration, and the first installment of the construction price was to be paid when the house had passed the first inspection by an official of the Veterans' Administration. It is conclusive from the evidence that Duckworth did not build according to the agreed specifications, and the dwelling was not approved upon the first inspection. The contractor worked for a short period of time following the first inspection and then abandoned the contract and refused to complete the dwelling. It further appears that because of the failure of the contractor to build according to specifications, the appellant was unable to obtain financing, and the approved loan was cancelled.

It appears from the evidence that the respondent had furnished to the contractor all the materials used in the dwelling under construction upon the premises of the appellant. He had not been paid for any of the materials at the time Duckworth abandoned the performance of his contract. It is also conclusive from the evidence that Duckworth, the contractor, had not been paid any sum by the appellant, who was the owner of the premises upon which the dwelling was being constructed.

Upon the abandonment of the construction contract by Duckworth, the record shows that the appellant and the respondent agreed to hire carpenters and to complete the construction of the dwelling. The appellant employed one Lawrence to complete the carpenter work on the dwelling and paid him therefor the sum of $485. It was also agreed by the appellant and respondent that the necessary materials to complete the dwelling were to be furnished by the respondent. It is conclusive from the evidence that the respondent furnished all of the materials for the completion of the dwelling under this new agreement, and all the materials used in the house prior to the abandonment of the construction contract by Duckworth. Under the agreement between the appellant and the respondent, the respondent not only furnished all the materials for the completion of the house, but also advanced funds for certain plumbing work, the laying of bricks in the steps and for the painting of the said dwelling house, finishing the sheet rock, sanding the floors and finishing laying the tile kitchen and bath. It appears that the appellant moved into and occupied the dwelling on September 8, 1956. According to the record, the total outlay of the appellant for the dwelling in question was the sum of $485 paid to a carpenter to complete the dwelling after abandonment by the contractor. The appellant also bought a switch box and hot water heater for the dwelling.

The respondent testified that he thought the house was completed at the time the appellant moved into it, but upon complaint being made by the appellant to the respondent that 'My kitchen sink drain is stopped up' and 'it just goes on the outside of the house and stands there', referring to the drainage from the kitchen sink, the respondent sent a plumber back to the dwelling of the appellant on October 8, 1956, with two joints of pipe, and connected the kitchen sink drain with the septic tank, as should have been done under the original contract. The cost of the two joints of pipe was $4.12. The record does not show that any additional charge was made by the respondent for the installation of the two joints of pipe.

The record shows that the respondent did, on December 18, 1956, file in the office of the Clerk of Court for Oconee County, South Carolina, his mechanic's lien, and on the same day such was served upon the appellant. The filing and service of the mechanic's lien was within 90 days from the last item of material furnished on October 8, 1956, but was not within 90 days from the furnishing of any other material. The total claim by the respondent, under the mechanic's lien, as filed, was $5,101.38. The lower Court allowed the claim in the amount of $5,077.77, and declared the same to be a lien on the premises described in the complaint but such did not constitute a personal judgment against the appellant. The action to foreclose the mechanic's lien was commenced on January 21, 1957.

The appellant asserts, by his answer, that the respondent did not file any lien upon or against the premises in question within 90 days after any work was done thereon or any materials furnished.

The appellant asserts that the Court was in error in holding that the respondent had 90 days from October 8, 1956, within which to file and serve his mechanic's lien. The appellant takes the position that the furnishing of materials or the performance of labor, trivial or inconsequential in character, was not sufficient to extend the time for the filing of a mechanic's lien by the respondent herein, and particularly that the furnishing of the two joints of pipe and the installation thereof on October 8, 1956, was so trivial and inconsequential that such did not keep the respondent's mechanic's lien alive.

It is provided in Section 45-252 of the 1952 Code of Laws, that:

'Every laborer, mechanic, subcontractor or person furnishing material for the improvement of real estate when such improvement has been authorized by the owner shall have a lien thereon, subject to existing liens of which he has actual or constructive notice, to the value of the labor or material so furnished. Such lien may be enforced as herein provided.'

In Section 45-254 of the 1952 Code of Laws, it is provided:

'Whenever work is done or material is furnished for the improvement of real estate upon the employment of a contractor or some other person than the owner and such laborer, mechanic, contractor or materialman shall in writing notify the owner of the furnishing of such labor or material and the amount or value thereof the lien given by § 45-252 shall attach upon the real estate improved as against the true owner for the amount of the work done or material furnished. But in no event shall the aggregate amount of liens set up hereby exceed the amount due by the owner on the contract price of the improvements made.'

It is provided in Section 45-259 of the 1952 Code of Laws, that:

'such a 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, serves upon the owner * * * and files in the office of the register of mesne conveyances * * * a statement of a just and true account of the amount due him * * *' It is also provided in Section 45-262 of the 1952 Code of Laws, that:

'Unless a suit for enforcing the lien is commenced within six months after the person desiring to avail himself thereof ceases to labor on or furnish labor or material for such building or structures the lien shall be dissolved.'

In the recent case of Lowndes Hill Realty Co. v. Greenville Concrete Co., 229 S.C. 619, 93 S.E.2d 855, 860, we said:

'The manifest two-fold purpose of Sections 45-252 and 45-254 is:

'(1) The protection of one, not a party to a contract with the owner, who furnishes labor or material in the improvement of the owner's property, by giving him a lien for such labor or material; and (2) the protection of the property owner by limiting his liability and that of his property in respect of all such liens to 'the amount due by the owner on the contract price of the improvement made'. Snipes v. Horton, 129 S.C. 1, 123 S.E. 321.

'The materialman's lien, or rather his right to a lien, arises, inchoate, when the material is furnished, Section 45-252, Williamson v. Hotel Melrose, 110 S.C. 1, 96 S.E. 407; but in order to perfect and enforce it he must: (1) give notice to the owner 'of the furnishing of such * * * material and the amount or value thereof', Section 45-254; (2) serve and record a certificate of lien within ninety days after he ceases...