Jones Mercantile Company v. Lyn-Har, Inc.

Full title: JONES MERCANTILE COMPANY v. LYN-HAR, INC

Court: Supreme Court of Georgia

Date published: May 21, 1980

267 S.E.2d 251 (Ga. 1980)

267 S.E.2d 251

Opinion

35973.

ARGUED MARCH 11, 1980.

DECIDED MAY 21, 1980.

Certiorari to the Court of Appeals of Georgia — 152 Ga. App. 798.

Barry W. Bishop, for appellant.

Toby Prodgers, for appellee.

UNDERCOFLER, Chief Justice.

This is a certiorari to the Court of Appeals.¹

1 Jones Mercantile Co. v. Lyn-Har, Inc., 152 Ga. App. 798 ( 264 S.E.2d 270) (1979).

We find the Court of Appeals' statement in Division 1 of its opinion as follows is incomplete: "`Where a contractor abandons his contract, "the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens; and if such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the subcontractors and materialmen have no lien, since there is nothing due under the contract."...' E. Smith Heating c. Inc. v. Biggers, 139 Ga. App. 216 (1) ( 228 S.E.2d 203) [1976]."

To this statement of the law must be added a proviso that the owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Green v. Farrar Lumber Co., 119 Ga. 30 ( 46 S.E. 62) (1903); Prince v. Neal-Millard Co., 124 Ga. 884 ( 53 S.E. 761) (1905); Code Ann. §§ 67-2001, 67-2002(3); Roberts v. Georgia Southern Supply Co., 92 Ga. App. 303 ( 88 S.E.2d 554) (1955).

Accordingly, the Court of Appeals' judgment is vacated and the case remanded for further consideration.

Judgment vacated. Remanded to the Court of Appeals. All the Justices concur.

UNDERCOFLER, Chief Justice.

ARGUED MARCH 11, 1980 — DECIDED MAY 21, 1980.