Saye v. Athens Lumber Co., Inc.

93 S.E.2d 806, 94 Ga. App. 118, 1956 Ga. App. LEXIS 481

• Court: Court of Appeals of Georgia
• Decided: May 9, 1956
• Docket: 36153
• Status: Published

Opinions

Nichols, J.

On the first appearance of this case before this court it was held that the evidence demanded a verdict finding a lien on Mrs. Burton’s property in the full amount of the claim against the contractor and that the trial court erred in overruling the plaintiff’s motion for new trial.

On the second trial the defendant property owner amended her answer so as to allege as a defense that she had paid the full contract price to the now deceased contractor, that he had applied this money to outstanding claims by laborers and materialmen, and that therefore she was not liable to the plaintiff in any amount whatever. This defense is permitted under the Act of 1941 (Ga. L. 1941, p. 345; Code, Ann. Supp., § 67-2002).

The evidence, except that presented in an effort to support the amendment to the defendant property owner’s answer, was substantially the same on the second trial as it was on the first trial. Therefore, if the defendant property owner’s amended answer was not supported by the evidence presented on the second trial, then it is the law of the case that the verdict of the jury was demanded.

The only evidence offered in support of the defendant property owner’s amended answer was the following statement made by the administrator of the contractor’s estate when asked what the contractor did with the money paid to him under the contract: “He paid his material bill, his labor bill, and anything pertaining to the job, as far as I knew.”

There can be no question that if the phrase “as far as I knew” had not been added to this answer then the defendant property owner’s plea that the contractor had used the money paid to him to apply on outstanding claims by laborers and materialmen would have been supported by some evidence, however, since this phrase was added to his answer an analysis of this statement must be made in order to determine what facts this witness testified to.

The phrase “as far as I knew” as used by this witness was an apparent attempt to qualify his answer so as to compensate for a lack of knowledge on his part as to what disposition was made of the money allegedly paid to the deceased contractor. Had this witness known that the money was used to pay laborers and materialmen then he would not have had to qualify his answer, and on the other hand if this witness had known that this money had been used for some other purpose then he could not have answered that the money was used to pay laborers and materialmen as far as he knew. Therefore, the answer of this witness shows a complete lack of knowledge on his part as to what disposition was made of any money paid to the deceased contractor and could not under any circumstances support the plea that the money was used to pay laborers and materialmen. Since this plea was not supported by the evidence it is the law of the case that the evidence demanded a finding that the property of the defendant.property owner was subject to the materialman’s lien, and the other questions presented by the motion for new trial need not be considered. The trial court did not err in overruling the defendants’ motion for new trial.

Judgment affirmed.

Felton, C. J., concurs. Quillian, J., concurs specially.,