Standard Glass & Supply Co. v. Sheley

604 S.W.2d 36, 1980 Tenn. LEXIS 481
CourtTennessee Supreme Court
DecidedJuly 21, 1980
StatusPublished

This text of 604 S.W.2d 36 (Standard Glass & Supply Co. v. Sheley) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Standard Glass & Supply Co. v. Sheley, 604 S.W.2d 36, 1980 Tenn. LEXIS 481 (Tenn. 1980).

Opinion

OPINION

COOPER, Justice.

Standard Glass and Supply Company and Jim Lifford Lumber Company filed actions [37]*37in the Chancery Court of Knox County seeking to recover damages in contract against R. K. Walker, a contractor who constructed a residence for David L. and Barbara J. Sheley, and also seeking to enforce liens against the Sheley property. The chancellor awarded the plaintiffs judgments against Walker for materials and labor the plaintiffs had expended in the construction of the Sheley residence, but refused to enforce a lien against the Sheley property, since the Sheleys had paid more for the construction of their home than called for in their contract with Walker. The Court of Appeals concluded the plaintiffs were entitled to a pro rata share of their unpaid perfected lien claims, and awarded Standard Glass a lien against the Sheley property in the amount of $1,702.38, and Lifford Lumber a lien in the amount of $892.18. The plaintiffs and the owners of the property filed applications for permission to appeal, the plaintiffs insisting they were entitled to liens in a larger amount, and the owners challenging the awarding of a lien in any amount. We granted the applications to consider these contentions. On doing so, we have concluded that under the circumstances attending the construction of the Sheley house, the Court of Appeals was correct in holding that the plaintiffs were entitled to a pro rata share of their perfected lien claims, but that their computation of the pro rata lien was incorrect.

On April 8, 1977, R. K. Walker agreed in writing a construct a “personal residence” for the Sheleys for $128,000.00. Extras subsequently agreed on by the parties increased the contract price to $131,353.00. The Sheleys were to pay Walker

Ninety (90%) of labor, materials, subcontract, equipment rental and general conditions each month. Payment (to be) made on the fifth (5th) day of month following work performed.

Walker immediately began construction of the house, submitting an Application and Certificate of Payment form each month, covering labor expended and materials purchased for the Sheley job. By December 1, 1977, the total cost of work completed and materials purchased was $129,700.00 of which the Sheleys paid Walker $117,022.00. The difference between the cost of construction and the amount paid by the She-leys to the contractor was the 10% retain-age provided for in the contract.

For all practical purposes, Walker ceased construction of the Sheley house on December 1, 1977. He testified, and the chancellor and the Court of Appeals so found, that the entire $117,022.00 he received from the Sheleys was paid to subcontractors; however, the bills of several sub-contractors, including Standard Glass and Jim Lifford Lumber Company, were not paid in full. Standard Glass filed a lien against the She-ley property on December 16,1977. A complaint to enforce the lien was filed on March 15, 1978, and an attachment was levied on March 20, 1978. Jim Lifford Lumber Company filed a lien against the Sheley property on March 15,1978. A complaint to enforce the lien was filed on May 18, 1978, and an attachment was levied on the Sheley property on May 24, 1978.

In June, 1978, while these suits were pending, the Sheleys hired a contractor, David L. Carter, to complete construction of the house for a 20% override of “cost for necessary work for completion of residence.” Thereafter the Sheleys expended $42,817.09. Of this amount, $8,500.00 was for items outside the original contract. The remaining $34,317.09 includes payments for labor and material necessary to complete the Sheley house and also payments of the full claims of selected subcontractors for work performed or material used in the house before Walker abandoned the Sheley project. In addition, the record shows that there are claims outstanding for heating and air conditioning and concrete work and the lienable claims of Standard Glass and Lifford Lumber, which are the subject of these actions. From these payments and outstanding claims, it is evident that the cost of constructing the Sheley house far exceeded the contract price.

T.C.A. § 64-1120 specifically provides that:

[38]*38The claims secured by lien for labor done, and materials furnished, shall in no case exceed the amount agreed to be paid by the owner in his contract with the original contractor.

As pointed out by the Court of Appeals, “[m]echanics’ and materialmen’s liens generally, and T.C.A. § 64-1120 specifically, have an inherently twofold purpose. Such a lien is important from the subcontractor’s point of view in that it provides a ‘. method of securing financing since it enables contractors and subcontractors to freely obtain supplies and credit without going through a financing institution. With such statutes, materialmen and laborers who extend credit are protected by a security interest in the real estate they help to improve.’ Barnett, ‘Mechanics’ and Materialmen’s Liens in Tennessee: Some Problem Areas,’ 5 Mem.St.L.Rev. 359 (1975). However the statute also may be relied upon as a defense by the owner of the property in that the ‘. . . . limitation that the liens claimed shall in no case exceed the contract price is not a part of the definition of the rights conferred by the statute upon furnishers of labor and material, but is a limitation upon the enforcement of such rights, which may be relied upon by the owner of the property as a defense.’ Richmond Screw Anchor Co. v. Minter Co., 156 Tenn. 19, 300 S.W. 574 (1927).” However, the defense set forth in T.C.A. § 64-1120 is not available to the owner unless he can trace payments equal to or in excess of the contract price directly into the hands of furnishers of materials and labor. See Richmond Screw Anchor Co. v. Minter Co., supra; Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799 (1923); Variety Fire Door Co. v. Hanson-Worden, 10 Tenn.App. 254 (1929).

In the instant case, the Sheleys had not paid the full contract price to furnishers of materials and labor when they learned through the filing of liens, if not before because of the retainage provision of the construction contract, that material furnish-ers were not being paid in full as work on the residence progressed, and that the total cost of construction would exceed the contract price. T.C.A. § 64-1107 provides that where the actual construction cost of a building exceeds the contract cost, each mechanic and material furnisher shall have a lien

. in proportion to the amount and value of the work he does or the materials he furnishes. All liens proved by § 64-1101-64-1142, except those of laborers, shall be on a parity, and shall be settled pro rata; ....

Despite this statutory direction and after the construction project had been abandoned by the contractor, Walker, the She-leys elected to pay some material furnishers under the Sheley-Walker contract their full claim while refusing to pay Standard Glass and Jim Lifford Lumber Company their pro rata claim.

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Related

Variety Fire Door Co. v. Hanson-Worden Co.
10 Tenn. App. 254 (Court of Appeals of Tennessee, 1929)
Richmond Screw Anchor Co. v. E. W. Minter Co.
300 S.W. 574 (Tennessee Supreme Court, 1927)
Richardson v. Lanius
150 Tenn. 133 (Tennessee Supreme Court, 1923)

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Bluebook (online)
604 S.W.2d 36, 1980 Tenn. LEXIS 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/standard-glass-supply-co-v-sheley-tenn-1980.