SUBMITTED MAY 14, 1951.
DECIDED JUNE 11, 1951. REHEARING DENIED JULY 10, 1951.
Equitable petition. Before Judge Paschall. Gordon Superior Court. February 27, 1951.
Harbin M. King, for plaintiffs.
T. L. Shanahan, for defendants.
The petition in the instant case does not set out a cause of action against the defendants for any of the relief sought.
No. 17464. SUBMITTED MAY 14, 1951 — DECIDED JUNE 11, 1951 — REHEARING DENIED JULY 10, 1951.
Horace King and M. V. Bradley, doing business as King and Bradley Lumber Company, filed suit against James C. Rutledge, Mrs. Mary Shuler Nelson Rutledge, and Joe Fossett, seeking to recover a general judgment for the materials furnished by them for the purpose of making improvements and repairs to a house owned by the defendants, James C. Rutledge and Mary Shuler Nelson Rutledge, and to subject the property on which the materials were used to a special equitable lien. The petition as originally drawn sought to foreclose a statutory materialman's lien. The petition was amended by striking all allegations referring to the filing and recording of a claim of lien, and by adding allegations referred to as count two.
The allegations of count one were: that James C. Rutledge and Mary Shuler Nelson Rutledge were husband and wife, and they owned the property described in paragraph two of the petition; that on January 15, 1951, said defendants employed Joe Fossett, a contractor, to make improvements and repairs on said premises; that they clothed Joe Fossett with authority to purchase materials and supplies with which to make said improvements and repairs; that, pursuant to the employment, Joe Fossett purchased materials and supplies from the plaintiffs for the purpose of making said improvements and repairs; that the materials and supplies, as set out in an attached bill of particulars, were delivered to the premises as described in paragraph two of the petition as directed by the defendants; that the materials and supplies were delivered with the knowledge and consent of the defendants; that the materials and supplies were used in making improvements to the residence situated on the premises aforesaid; that on April 3, 1950, the defendants obligated themselves to pay the plaintiffs $1381.37 for the materials and supplies as set forth; that the plaintiffs have fully performed their part of the contract, and there is due and owing to them a balance of $231.52, which the defendants refuse to pay. The prayers of count one are for a general judgment against the defendants in the amount of $231.52, and for a special judgment giving the plaintiffs a lien on the described real property.
Count two includes all the allegations of count one plus allegations that, prior to March 27, 1950, the plaintiffs notified James C. Rutledge by parol that, when payment was made for the materials and supplies, it should be made directly to the plaintiffs because the defendant Joe Fossett was not reliable and could not be trusted with money; that, notwithstanding this advice, the defendants, Mr. and Mrs. Rutledge, made payment to Joe Fossett as agent for the said Mr. and Mrs. Rutledge, and the said Joe Fossett failed to make full payment to the plaintiffs, and there is now due them a balance of $231.52.
It is further alleged in count two that, at the time when the plaintiffs began to furnish the materials and supplies for the improvements to the premises as described in paragraph two of the petition, they were informed by the defendants that they were to be used on the premises of James C. Rutledge and, accordingly, they filed their claim of lien on the premises of James C. Rutledge. A copy of the claim of lien is included in the petition, and the description of the property set out therein is not the same as the description of the property set out in paragraph two of the petition upon which the improvements were alleged to have been made. It is further alleged: that the plaintiffs believed that the premises as described in their claim of lien were the correct premises, since they had been informed that the materials and supplies were to be used on the premises of James C. Rutledge; that the plaintiffs relied upon these representations that the premises belonged to James C. Rutledge, and acted accordingly; that, two or three months after the recording of the plaintiffs' claim of lien, they learned that the materials and supplies were being used on the premises as described in paragraph two of the petition; and that the plaintiffs have no adequate remedy at law to recover a special lien on the house situated on the premises described in paragraph two of the petition, it being too late to amend the plaintiffs' claim of lien. The prayers of count two are that the plaintiffs have an equitable lien on the premises described in paragraph two of the petition to the extent of $231.52, with interest; and that the plaintiffs recover a general judgment against the defendants.
The defendants James C. Rutledge and Mary Shuler Nelson Rutledge filed general and special demurrers to the petition as amended. The general demurrer was sustained and the petition dismissed as to them. No ruling was made on the special demurrers. The plaintiffs excepted to the sustaining of the general demurrer and to the judgment of dismissal.
1. Without deciding whether or not the plaintiffs in the court below could amend their petition as is here attempted, we find that the petition does not set out a cause of action for any of the relief sought. Count one of the petition as amended seeks to recover a general judgment against all the defendants for the sum alleged to be due. The petition alleges that the defendant Joe Fossett, a contractor, was employed by the defendants Mr. and Mrs. Rutledge to make improvements and repairs to described property belonging to them, and that the defendant Joe Fossett bought materials and supplies from the plaintiffs with which to make said improvements and repairs, for which they have not been fully paid. Nothing is alleged in the petition that would make the defendant Joe Fossett anything other than as alleged in the petition — that is, an independent contractor. "Where a materialman seeks to foreclose his lien against real estate which has been improved with material furnished by him to a contractor for such purpose, he can not recover a general verdict and judgment against the owner of the land for the value of the material furnished." Langley v. Simmons, 143 Ga. 699 ( 85 S.E. 832); Griffin v. Gainesville Iron Works, 144 Ga. 840 ( 88 S.E. 201); Mauck v. Rosser, 126 Ga. 268 ( 55 S.E. 32). Accordingly, count one does not set out a cause of action for a general judgment against the defendants in error. Nor does it set out a cause of action for a judgment establishing a lien upon the property improved, for the reason that it is not alleged that a claim of lien has been filed and recorded as required by Code §§ 67-2001, 67-2002. See also Hinkle v. Reid, 16 Ga. App. 788 ( 86 S.E. 411); Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 ( 5 S.E.2d 84).
2. The second count of the petition refers in paragraph 12 to Joe Fossett as "agent" of Mr. and Mrs. Rutledge. Construing the allegations of the petition most strongly against the pleader, as must be done, the facts alleged negative the theory of agency. The plaintiffs allege that Joe Fossett was employed as a contractor to make improvements and repairs to premises owned by Rutledge. The other allegations of the petition are all consistent with the theory that the materials were furnished to Fossett as a contractor rather than as an agent of the owners of the property. Therefore the allegations of the petition were not sufficient, as against a general demurrer, to set out a cause of action for general relief under the theory of agency.
3. The plaintiffs in error seek also in the second count of the petition to subject the property, alleged to have been improved, to a special equitable lien to the extent of the amount they claim to be due them. The petition shows that they filed and recorded a claim of lien against property belonging to James C. Rutledge. The petition further shows that the plaintiffs in error delivered materials and supplies to premises other than the premises upon which they had recorded their claim of lien for a period of about four months. It is not alleged that the defendants were guilty of any bad faith; nor is any reason alleged why the plaintiffs could not have discovered immediately the true facts. The plaintiffs or their agents knew or could have known by the exercise of any diligence whatsoever that the materials and supplies were being used on the premises to which they were delivered rather than on the premises upon which they had filed their claim of lien.
The Code provides a method of effecting a lien for materials furnished for the purpose of improving real estate. Code, §§ 67-2001, 67-2002. Strict compliance with these sections is required. Hinkle v. Reid, supra; Chambers Lumber Co. v. Gilmer, supra. "Where a statute creates a specific lien, in favor of masons and carpenters, on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there be some impediment or difficulty charged to exist, which would render the remedy given by the statute unavailable." Coleman v. Freeman, 3 Ga. 137. See also Farmer's Loan Trust Co. v. Candler, 92 Ga. 249 ( 18 S.E. 540); Williams v. Jay, 173 Ga. 372 ( 160 S.E. 426). "It is well settled in this State that equity will grant no relief to one who by the exercise of ordinary diligence could have prevented the injury complained of." Prince v. Friedman, 202 Ga. 136 ( 42 S.E.2d 434). See also, Code, § 37-211; Loyd v. Loyd, 203 Ga. 775 ( 48 S.E.2d 365). The plaintiffs in error in their petition allege no reason why there is any impediment or difficulty which would render their remedy under the statute unavailable that could not have been avoided by the exercise of the slightest diligence on their part. They are charged with knowledge of the premises upon which they filed their claim of lien. They are charged also with knowledge of the premises to which they delivered the materials and supplies for which they seek to recover. They knew that these premises differed, in plenty of time to properly record a claim of lien as required by the statute. They did not do so, and now seek the aid of a court of equity to relieve them from their own negligence. The authorities we have cited, and many others that could be cited, hold that in such cases no equitable relief will be granted. Under the rulings above made, the petition did not set out a cause of action against the defendants in error for any of the relief sought, and the judgment of the court below sustaining the general demurrer and dismissing the petition as to them was not error.
Judgment affirmed. All the Justices concur.