2. Such matters as permitting or refusing to reopen the case for further testimony, and the order in which any material testimony is allowed are ordinarily within the discretion of the trial court, and this court will not interfere where such discretion is not abused.
3. Testimony on behalf of the defendant owner in a materialman-lien-foreclosure case that such owner verbally informed such materialman that she would not be responsible for material furnished the contractor for the improvement of her property was properly rejected by the trial court, in view of the provision of a part of Code 67-2001 (2), to the effect that the lien shall attach unless such true owner shall show that such lien has been waived in writing.
4. A motion made by the defendant to dismiss an action is in the nature of a general demurrer, the overruling of which is not a proper ground of a motion for new trial. The same rule applies as to rulings on objections to the allowance of an amendment to a petition.
The plaintiff materialman, Georgia Southern Supply Company, Inc., filed an action against Mrs. Pauline Roberts in Bibb Superior Court, seeking to foreclose a lien for materials furnished by it to a contractor, S. C. Rowe, to be used in improving the property of the defendant. The plaintiff alleged that it had properly recorded its lien, and had before this action obtained judgment against Rowe for the amount in question, $904.09. The defendant answered that she had entered into a contract with Rowe to make certain repairs and alterations on her property for a contract price of $1,100, but that the defendant's contractor abandoned his contract without completing the same, and the work he did was absolutely worthless; that she had paid said contractor $100, and it will cost $1,050 or more to have said contract completed; that she has no funds to complete the work because the amount intended to be borrowed for repairs is money of Macon Federal Savings & Loan Association, which now refuses to permit withdrawal of the same, and she has no other funds available. General and special demurrers to the answer were overruled, on which error is assigned in the cross-bill of exceptions. Upon the trial of the case the allegations of both the petition and answer were established without dispute except the issue of whether or not the contractor had abandoned the contract. In this regard, Rowe testified that he had "completed" the various rooms as called for in the contract, and that the job was in good shape when he finished with it. The defendant, however, by a great preponderance of evidence, established that the work was shoddy, poorly done, and almost worthless, regardless of whether or not the contractor had done all of the items contracted for (which she contended he had not), and that, according to the estimates of three other qualified persons who examined the premises, it would take between $950 and $1,700 to have the work corrected and finished.
At the conclusion of the evidence, the trial court directed a verdict in favor of the materialman. The defendant filed her motion for a new trial on the general grounds which motion was later amended by adding 6 special grounds, and the overruling of this motion is assigned as error in the main bill of exceptions. The case was appealed to the Supreme Court and transferred by it to this court.
1. The primary issue for decision, which is raised by the first special ground of the amended motion for a new trial, and also by rulings on demurrer assigned as error on the cross-bill of exceptions, is whether the defendant owner of the property sought to be foreclosed might plead and prove as a defense to the action that the contractor had left the work uncompleted, and that the work he had done was of such poor and shoddy character that the cost of correcting and completing it would be more than, or at least almost as much as, the contract price, where the owner had not actually had the work redone, but had procured estimates of the probable cost. The action is based on a lien claimed against the property of the owner by the materialman under and by virtue of Code 67-2001 (1) and (2), the latter section reading as follows: "When work done or material furnished for the improvement of real estate is done or furnished upon the employment of a contractor or some person other than the owner, the lien given by this section shall attach to the real estate improved as against such true owner for the amount of the work done or material furnished, unless such true owner shall show that such lien has been waived in writing, or shall produce the sworn statement of the contractor or other person, at whose instance the work was done or material was furnished, that the agreed price or reasonable value thereof has been paid: Provided, that in no event shall the aggregate amount of liens set up hereby exceed the contract price of the improvements made." The lien given hereby is purely statutory, and does not depend upon subrogation, except to the extent that the total amount paid out may not exceed the contract price. Holmes v. Venable, 27 Ga. App. 431, 433 (109 S. E. 175). An application of the Code section to the undisputed facts in this case shows that the lien attached to this real estate unless prevented under the proviso above quoted, "that in no event shall the aggregate amount of liens set up hereby exceed the contract price of the improvements made." It is evident that the contract price fixes the total liability of the owner, rather than the liability of the owner to the contractor under the contract. For instance, although the owner had paid the contractor the entire contract price, this would provide no defense to the action unless the owner further showed that the affidavit of the contractor had been obtained, or that the money had in fact been used for payment of labor and materials. Green v. Farrar Lumber Co., 119 Ga. 30 (46 S. E. 62). Also, where the contractor abandons the contract before the work is completed, assuming that such contract is an entire one, there would be no liability of the owner to the contractor under the contract, the latter having breached the contract and forfeited any right to recover anything under its terms. Dolan v. Lifsey, 19 Ga. App. 518 (5) (91 S. E. 913). However, this does not relieve the owner from liability to one furnishing labor or material to the contractor in furtherance of the contract, for the reason that the lien attaches in favor of a mechanic, laborer, or materialman up to, but not in excess of, the contract price. Where a contractor abandons his contract, and the owner in order to obtain its completion engages others to furnish material and labor, the cost thereof may be applied by the owner, up to the contract price, as against the lien. Prince v. Neal-Millard Co., 124 Ga. 884 (53 S. E. 761, 4 Ann. Cas. 615); Young v. Harley-Mitchell Hardware Co., 173 Ga. 35 (159 S. E. 567); Spirides v. Victory Lumber Co., 76 Ga. App. 78 (45 S. E. 2d 65).
The question presented by this case is whether or not such additional work must be done before the lien is foreclosed, or whether the lien may be defeated by evidence of what the work of completion would reasonably cost where such work has actually not been performed. This question was considered but not decided in Prince v. Neal-Millard Co., supra. That case, among others, holds that, where the evidence shows that there has actually been paid out the full contract price for labor and materials which would otherwise have constituted liens against the property, this constitutes a complete defense. Where amounts have been paid out in satisfaction of demands for material and labor which would have formed the basis for liens had they not been paid, less than the amount of the contract price, this would not constitute a complete defense, but would protect the owner to the extent of the amounts thus paid.
On the other hand, the fact that there are other liens outstanding is not a defense unless and until such liens have been paid. Tuck v. Moss Mfg. Co., 127 Ga. 729 (4) (56 S. E. 1001). Accordingly, the owner cannot avail himself of the defense of what it might cost to finish an uncompleted contract, as no such estimate constitutes a lien. Here the undisputed evidence is that the plaintiff materialman furnished the material in substantial compliance with his contract with the contractor, that the material was used on the premises, that the amount claimed is less than the unpaid balance of the contract price, and that no lien has attached for completing the contract. While the evidence would have authorized the jury to find that the contract was not completed, and that the work actually done was unsatisfactory, such a finding would have benefited the owner nothing, her liability being fixed by the contract price instead of her liability to the contractor, as herein set out. Accordingly, under the undisputed facts, the plaintiff was entitled to recover, and the trial court did not err in directing a verdict in its favor.
2. The trial judge did not err, as contended in special ground 4, in refusing to reopen the case after its conclusion to admit additional evidenced over the objection of the plaintiff that its witnesses would have to be recalled in rebuttal if the testimony were admitted, and they had left the courthouse after being excused, and lived or worked some distance away. Nor did he err, as contended in special ground 6, in admitting testimony of the plaintiff's witness, since this was rebuttal testimony in that it directly contradicted the defendant's statement, as follows: "I never made the statement that if he would put the screens up I would go ahead and pay for the full contract." Such matters as permitting or refusing to reopen the case for further testimony, and the order in which any material testimony is allowed, are ordinarily within the discretion of the trial court, and this court will not interfere where such discretion is not abused. See Southern Ry. Co. v. Clay, 130 Ga. 563 (61 S. E. 226).
3. In view of Code 67-2001 (2), to the effect that the lien, under the conditions therein set forth, shall attach to the property of the true owner "unless such true owner shall show that such lien has been waived in writing," the court properly excluded the evidence, complained of in special ground 5, that the plaintiff's agent was orally informed by the defendant that she would not personally stand good for the materials ordered by the contractor. Selling the goods to the contractor after such notice did not amount to a waiver, where the lien was not waived in writing. Unless coming within a recognized exception, the lien attaches by operation of law. The defendant's statement to the plaintiff's agent that she would not stand good for the material, accordingly, was properly rejected as not relevant to any issue in the case.
4. The remaining special grounds deal with rulings on pleadings, and are not proper grounds of a motion for a new trial. Page v. Brown, 192 Ga. 398 (15 S. E. 2d 506). The "motion to dismiss the action," assigned in special ground 2 as error, was in effect, as is pointed out by the plaintiff in error in his brief, a motion to dismiss the petition and was in effect a general demurrer thereto.
The judgment of the trial court denying the motion for a new trial was without error, and it is therefore unnecessary to pass upon the questions raised by the cross-bill of exceptions.