Golsen v. Magbee Lumber Co.
Golsen v. Magbee Lumber Co.
Opinion of the Court
The property owner appeals from a summary judgment giving a materialman’s lien to the plaintiff supplier.
The owner’s contentions concerning the perfection of the lien are without merit. The only issue is whether the supplier waived its right to the lien. Both parties have stipulated there is no dispute as to any material fact and the trial court determined the motions for summary judgment as a matter of law. (The denial of the owner’s motion for summary judgment cannot be reviewed as
This is a typical case involving a bankrupt building contractor who has since departed the jurisdiction, leaving the owner with a half-built house and the supplier unpaid. The evidence shows that the contractor had several different jobs in progress simultaneously and that the supplier maintained separate ledger cards for the materials sent to each job. However, the supplier’s president also testified on deposition that, with one exception, he credited the oldest account when he received a payment from the contractor rather than specifically allocating payments to a particular job. A man who worked as a superintendent for the contractor testified that the contractor instructed him to open a bank account in his own name to run the job which was this owner’s house; that he deposited the periodic progress payments from the owner’s lender into this account and paid other suppliers and laborers from it; that one day when all three men were together at the site, he wrote a check on this account for $2,500 at the contractor’s direction and handed it to the supplier’s president; and that he heard no conversation about how it was to be applied. The supplier’s president also testified that he had not had any "special conversation” with them at that time. One other payment of $1,500 was also made to the supplier by the contractor, but there is no evidence showing the source of the funds from which it was made. The amount due for materials for this particular job was $5,377.09. The court gave judgment in this amount.
To the extent of the $2,500 payment, the supplier waived his lien by failing to inquire on what account it was to be applied and then crediting accordingly. "When a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time to time on account of the material so furnished, it is incumbent upon the materialman to
It is true that this case was apparently limited by this court in Dye v. Turner Concrete Co., 119 Ga. App. 78 (166 SE2d 773). However, there the court found the Willingham-Tift rule inapplicable because "lacking here is the vital evidence that money paid by the owners to the contractor was misappropriated by the materialman to the account owed on another job.” Hn. 3. That vital evidence is present here to the extent of $2,500. The court accordingly erred in granting summary judgment for the entire amount prayed for.
Judgment reversed.
Concurring Opinion
.concurring specially. I concur in the ruling made but feel that the failure to review the denial of the defendant’s motion for summary judgment needs further explanation.
The property owner in the present case filed his notice of appeal from that portion of the trial judge’s order granting a summary judgment giving a materialman’s lien to the plaintiff materialman and also from that portion of the order denying the motion for summary judgment made by the
Reference
- Full Case Name
- Golsen v. Magbee Lumber Company, Inc.
- Cited By
- 5 cases
- Status
- Published