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MORGAN v. MAY REALTY COMPANY; and vice versa.
Lien foreclosure; from Chattooga City Court-- Judge Espy. March 3, 1952.
T. B. Morgan brought an action to foreclose a laborer's and materialman's lien against I. O. Arnold and May Realty Company. The amended petition alleged substantially: that the plaintiff entered into a contract with the defendant Arnold to do work on and furnish material for the improvement of certain property in Rome, Georgia; that, in accordance with said contract, the plaintiff did the work and furnished the material as agreed upon; that the plaintiff duly recorded his lien; that the foreclosure was within the time prescribed by law; that the defendant May Realty Company was the owner of the improved property; that the plaintiff had not waived his lien in writing, and had not made a sworn statement to the defendant Arnold or any other person that the agreed price or reasonable value of the work and material had been paid; that said improvement was authorized by May Realty Company, and that it co-operated with Arnold in the plans for the improvements, and the improvements were made with the full knowledge and approval of May Realty Company; that, prior to the improvements, May Realty Company had full knowledge and consented that Arnold make such improvements and assented to the contract of the plaintiff and Arnold through its agent, Wilson M. Hardy; that, during the time the improvements were being made, Isaac May, president of May Realty Company, was present upon the premises, and at his instance and direction changes were made in the plans, and at his instance where a partition was to be removed it was left and certain changes were made therein, and at the further instance and direction of May certain sills were required to be replaced, which was not contemplated under the terms of the original agreement; that in this way May Realty Company directed said work and improvements and ratified the contract and agreement made by Arnold with the plaintiff.
The plaintiff relies on Code 67-2001 (2), which gives a lien on property for work done for and materials furnished to "a contractor or some person other than the owner." He contends that the defendant Arnold was "some person other than the owner" within the meaning of the Code section, and further contends that such "person" can be anyone regardless of his relationship with the owner. In construing the phrase, "or some person other than the owner," the court in Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723, 725, 726 (51 S. E. 725), said: "They follow the word 'contractor', being connected with that word by the disjunctive 'or', and under the well-settled rule of construction the persons embraced within the meaning of the words will be persons occupying a similar relation to the owner as that of a contractor. Thus interpreting the statute, it would mean that a materialman who furnished material for the improvement of real estate to one who occupied the legal relation of a contractor, or one who had some contractual relation with the true owner in connection with the improvements to be made, would have a lien, and that no one else would." The petition did not allege any contractual relation between Arnold and May Realty Company in connection with the improvements alleged to have been made, so as to allege that Arnold came within the meaning of "some person other than the owner." In fact, the petition did not allege any relationship between Arnold and May Realty Company. Therefore, construing the petition most strongly against the plaintiff, it alleged that Arnold was a stranger as to the company. A stranger cannot order work to be done on property and thereby bind the true owner. Central of Georgia Ry. Co. v. Shiver, 125 Ga. 218, 221 (53 S. E. 610). The plaintiff contends that May Realty Company bound itself by consenting to and by ratifying the contract of improvement between the plaintiff and Arnold, and alleged in support of this contention that May Realty Company in certain particulars directed some of the improvement work. While we recognize the principle that in some instances a true owner may bind himself where improvements are made on his property if he consents to the contract under which the improvements are made ( Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28 (1), 47 S. E. 554, and Rutland Contracting Co. v. Sallie E. Gay Estate, 193 Ga. 468, 471, 18 S. E. 2d, 835), still, before the owner can ratify the acts of the party who procured the improvements to be made, that party must have acted as or attempted to act as agent of and on the behalf of the owner. Thompson v. Brown, 121 Ga. 814 (2) (49 S. E. 740); Swicord v. Waxelbaum, 23 Ga. App. 297 (2) (97 S. E. 891); Render v. Jones Merc. Co., 33 Ga. App. 394 (1) (126 S. E. 159); Morgan v. Georgia Paving &c. Co., 40 Ga. App. 335 (4) (149 S. E. 426); Federal Deposit Ins. Corp. v. Thompson, 54 Ga. App. 611 (2b) (188 S. E. 737). It is true that in the instant case the plaintiff alleged more than the general allegation that May Realty Company ratified the contract between himself and Arnold, and alleged the particulars whereby he contends that May Realty Company ratified the contract, nevertheless, the court in Carr & Co. v. Witt, 137 Ga. 373, 374 (2b) (73 S. E. 668)--in ruling that the allegation that Witt "ratified and assented to the contract" meant nothing more than that Witt gave his consent that the improvements should be made under the contract between the tenant and the contractor--did not base such ruling on the ground that the allegation was too general and not specific enough, but on the ground that the allegation did not show "that he [Witt] adopted the contract as one made for him by the tenant acting as his agent, so as to bring him into contractual relations with the contractor making the improvements and furnishing the material." (Emphasis supplied.) The petition did not allege that Arnold acted or attempted to act on the behalf and as agent of May Realty Company; therefore May Realty Company could not have ratified his making the contract with the plaintiff.
The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Wright, Rogers, Magruder & Hoyt, contra.
Maddox & Maddox, for plaintiff in error.
Saturday May 23 04:54 EDT

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