King v

Rutledge, 208 Ga. 172, 65 S.E.2d 801, 1951 Ga. LEXIS 315 (1951). Averment of delivery insufficient to show notice that materials were furnished. — A mere averment, that a materialman on a certain date “furnished and delivered material on the premises,” without any other fact, will not suffice to support a bare legal conclusion by the pleader that “such delivery constituted actual implied notice” to the security-deed holder that material was being furnished. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619, 1942 Ga. LEXIS 571 (1942). Materialmen who give wrong premises in claim despite knowledge of error cannot recover in equity. — Materialmen are charged with knowledge of 44-14-361 the premises upon which they filed their claim of lien, and they are charged with knowledge of the premises to which they delivered the materials and where they knew that these premises differed, in plenty of time to properly record a claim of lien as required by law, they cannot seek the aid of a court of equity to relieve them from their own negligence. King v. Rutledge, 208 Ga. 172, 65 S.E.2d 801, 1951 Ga. LEXIS 315 (1951). Owner has burden of showing contractor properly paid claims. — It is the owner’s responsibility to see to it that the payments which the owner makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials, and in establishing the owner’s defense to the foreclosure the owner has the burden of showing that this was done. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782, 1969 Ga. App. LEXIS 889 (1969). Burden on materialman to show amount claimed falls within total contract price. — In a proceeding to foreclose a materialman’s lien, it is incumbent upon the plaintiff-materialman to show that the amount for which the materialman asserts a lien comes, in whole or in part, within the contract price agreed on between the contractor and the owner of the property improved. Young v. HarleyMitchell Hdwe. Co., 173 Ga. 35, 159 S.E. 567, 1931 Ga. LEXIS 252 (1931). Subcontractor has burden of showing claim less than total contract amount. — The burden of showing that the amount for which a lien is claimed by a subcontractor, is not more than the contract price of the improvements, lies on the subcontractor. Stevens v. Georgia Land Co., 122 Ga. 317, 50 S.E. 100, 1905 Ga. LEXIS 193 (1905); Georgia Steel Co. v. White, 136 Ga. 492, 71 S.E. 890, 1911 Ga. LEXIS 116 (1911). Satisfactory evidence of “furnishing.” — A showing by the materialmen of actual use of the material in the improvement of the real estate will satisfy the statutory requirement of “furnishing.” Bryant v. Ellenburg, 106 Ga. App. 510, 127 S.E.2d 468, 1962 Ga. App. LEXIS 749 (1962). Variation of contract makes price jury question. — In suit by materialman 721 44-14-361 Foreclosure (Cont’d) to foreclose a lien, where the owner and the contractor had varied the terms of the original contract so as to include additional construction, for which additional work no price was agreed upon, and subsequently defendant owner caused the contractor to cease work and employed other workmen to complete the construction, because of the variation of the written agreement, it was for the jury to say what the contract price for the complete work was. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65, 1947 Ga. App. LEXIS 374 (1947). Form of verdict. — While it is true that the purpose of a foreclosure suit is to establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner, the better practice in such cases is for the verdict to show a distinct finding by the jury that the plaintiff-materialman is entitled to a lien and to a given amount. But where, in such a proceeding, the verdict is for the full amount claimed, it can have no other construction than that the jury intended to find in favor of the lien claimed. Spirides v. Victory Lumber Co., 76 Ga. App. 78, 45 S.E.2d 65, 1947 Ga. App. LEXIS 374 (1947). No general verdict against landowner for materials furnished to contractor. — Where a materialman seeks to foreclose a lien against real estate which has been improved with material furnished by the materialman to a contractor for such purpose, the materialman cannot recover a general verdict and judgment against the owner of the land for the value of the material furnished. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841, 1949 Ga. App. LEXIS 896 (1949). A materialman cannot recover a general judgment against the owner of the land for the material furnished, for the simple reason that the owner is no party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841, 1949 Ga. App. LEXIS 896 (1949). Unless owner shown party to contract to buy material. — A materialman cannot recover a general personal judg- ment against the owner of the land for the material furnished in placing improvements thereon, unless it is shown that the owner is a party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652, 56 S.E.2d 841, 1949 Ga. App. LEXIS 896 (1949). Foreclosure of surety bond unavailable for off-site work. — Although sewer work was required by a city for the completion of a subdivision, a subcontractor’s off-site work was not an “improvement to the property” pursuant to O.C.G.A. § 44-14-361; consequently, the trial court properly granted summary judgment to the surety in the subcontractor’s action to foreclose on a bond. Trench Shoring Servs. of Atlanta, Inc. v. Westchester Fire Ins. Co., 274 Ga. App. 850, 619 S.E.2d 361, 2005 Ga. App. LEXIS 839 (2005), cert. denied, No. S05C2055, 2006 Ga. LEXIS 58 (Ga. Jan. 17, 2006). Judgment in rem against landowner. — While a personal judgment cannot be entered against a defendant landowner who is not a party to a contract for a purchase of material and labor in which a lien has been filed against the landowner’s property, it is not necessary that there be a contract between the landowner and the materialman to obtain a judgment in rem. Chambers Lumber Co. v. Hagan, 118 Ga. App. 392, 163 S.E.2d 847, 1968 Ga. App. LEXIS 1408 (1968); Columbus Square Shopping Ctr. v. B & H Steel Co., 150 Ga. App. 774, 258 S.E.2d 600, 1979 Ga. App. LEXIS 2372 (1979). Waiver of Lien Lienholders who do not waive lien by taking personal security. — Contractors, materialmen, machinists, and manufacturers of machinery do not by the taking of personal security waive the lien given them under O.C.G.A. § 44-14-361. J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822, 121 S.E.2d 36, 1961 Ga. App. LEXIS 1068 (1961); Rembrant, Inc. v. Phillips Constr. Co., 500 F. Supp. 766, 1980 U.S. Dist. LEXIS 14642 (S.D. Ga. 1980). Mechanics, but not materialmen, waive lien by taking personal security. — While mechanics who have taken personal security thereby waive their 722 44-14-361 MORTGAGES, SECURITY, LIENS right to a lien, materialmen have a lien as well when they take personal security as when they do not. J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822, 121 S.E.2d 36, 1961 Ga. App. LEXIS 1068 (1961). Taking of personal security does not constitute waiver of lien given materialmen under O.C.G.A. § 44-14361. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49, 198 S.E.2d 687, 1973 Ga. App. LEXIS 873, cert. denied, 414 U.S. 1092, 94 S. Ct. 723, 38 L. Ed. 2d 550, 1973 U.S. LEXIS 1757 (1973). Materialman waives lien by applying payments to general account. — Where an owner makes payments to a contractor and the latter makes payments to a materialman, the materialman by applying the payments to a general account waives right to a lien. It is the materialman’s duty to keep the accounts in such shape as to be able to make out a right to a lien. Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533, 63 S.E. 584, 1909 Ga. App. LEXIS 55 (1909). No implied waiver of a materialman’s statutory lien results from accepting other collateral security. — O.C.G.A. § 44-14-361 is silent as to other security, in case of materialmen, not mechanics. Ford v. Wilson & Co., 85 Ga. 109, 11 S.E. 559, 1890 Ga. LEXIS 5 (1890). Promissory note not waiver of lien. — The taking by the materialman of a promissory note from the person to whom the material was furnished, is not, in the absence of an express agreement, an extinguishment of the materialman’s right to a lien for the indebtedness represented by the note. Pippin v. Owens, 29 Ga. App. 789, 116 S.E. 549, 1923 Ga. App. LEXIS 194 (1923). Contractor’s agreement to indemnify materialman not waiver as to owner without notice. — Contract be- 44-14-361 tween materialmen and a contractor that the former will indemnify the latter against liens is not a waiver as between the materialmen and the owner who has no notice of the contract. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499, 83 S.E. 210, 1914 Ga. LEXIS 442 (1914), writ of error dismissed, 241 U.S. 687, 36 S. Ct. 451, 60 L. Ed. 1237, 1916 U.S. LEXIS 1857 (1916). Materialman’s refusal of the contractor’s tender of partial payment did not constitute a waiver of a special lien otherwise properly created on property to which materials were supplied. Sanford v. Hodges Bldrs. Supply, Inc., 166 Ga. App. 86, 303 S.E.2d 280, 1983 Ga. App. LEXIS 2073 (1983). Waiver of lien by subcontractor. — A subcontractor contractually waives its right to file a lien on property by agreeing that a general contractor’s contract with the property owner, which contains a lien waiver, be made part of its subcontract with the general contractor. MCC Powers v. Ford Motor Co., 184 Ga. App. 487, 361 S.E.2d 716, 1987 Ga. App. LEXIS 2273 (1987). Effect of discharge of lien by bond. — When contractor and insurance company posted a bond to discharge supplier’s liens, the bond served as a replacement for the lien and supplier’s later execution of waiver and release of lien did not affect its contract claims against the bond. Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279, 424 S.E.2d 830, 1992 Ga. App. LEXIS 1601 (1992).