Collins Bros. v. Georgia Hotel Co.

Lumpkin, J. (After stating the foregoing facts.) 1. As to the ground on which the building was being erected, the relation established by the contract between the parties was not that of landlord and tenant or that of master and servant, but that of contractor and owner. The possession was in the contractor under and for the purpose of the contract. But it was only sub modo, and not a possession under claim of title or interest adverse to the owner. The contractor was allowed to use the premises for the purposes of the building contract, and not otherwise. Where work is done on personalty by a mechanic, his lien may be asserted by retention of possession. In regard to realty the law provides a different method of recording and foreclosure. In this case the parties in the building contract provided that if the contractor should fail to proceed with the work with proper diligence, or fail to furnish materials and labor therefor, upon certificate of the architects the owner should have the right to terminate the employment of the contractor, enter and take possession of the premises and of all materials, tools, and appliances thereon, and proceed to [709] have the work completed. In another part of the contract it was declared that all materials delivered on the premises, which were to become a part of the completed work, should be considered the property of the owner. The clause authorizing the owner to enter and take possession and proceed with the work, upon the happening of the contingency stated, was as much a part of the contract as any other provision in it, and was binding on the partiés. 6 Cyc. 15, and citations; Tally v. Parsons, 131 Cal. 516 (63 Pac. 833). The petition alleged that the contractor did not comply with the contract in the respects thus dealt with, but abandoned the work, that the architects gave the certificate provided for by the contract, and the owner notified the contractor, but the latter refused to allow the owner to have full possession, obstructed its agents in procéeding with the building, threatened violence, and drove off the watchman placed upon the premises by the owner. The allegations show a clear violation of that part of the agreement contained in the ninth clause thereof (set out in the statement of facts), and stated a cause of action. 2. Did the owner have an adequate remedy at law, without the necessity for seeking equitable relief ? If so, what was it ? Counsel for the contractor, the plaintiff in error, argued that a proceeding, under the statute, for a forcible detainer furnished a sufficient remedy. But if this remedy would lie in such a case, it applies only to real estate and not to personalty, while it was alleged' that the contractor proceeded secretly to carry off some of the personalty. It was said that trover would lie for the personal property. But, as it was alleged that some of it was locked up and thus out of view of the owner or his agents, that the taking away was secretly done, and that the contractor would be able to remove other materials, it is evident that this furnished no sufficient remedy. Suppose that the owner should bring an action of some character in regard to the possession of the realty and another to recover the personalty, still the contractor was alleged to be obstructing and preventing the owner from proceeding with the completion of the work. Shall the contractor be sued for trespass? It was alleged to be insolvent. Thus if a writ of forcible detainer would furnish a remedy as to the land, and trover for the personalty, partly unknown, would give'a remedy as to it, and an action of trespass could be brought against the contractor if it or its agents committed a trespass, there would [710] be a multiplicity of suits against the same insolvent defendant as a remedy for a violation of this clause of the building contract. And in the meantime the building would be stopped and injury accruing. While the petition did not in terms allege that a multiplicity of suits would arise from suing for the realty, the personalty, and damages, yet the demurrer set up that the plaintiff had an adequate remedy at law, and it is legitimate to consider the adequacy of any particular legal remedy suggested. The bond given by the contractor did not offer such a complete source of relief as to prevent the filing of this petition. The parties by their contract provided a right on the part of the owner to enter and complete the building, in a certain contingency. A bond was also given by the contractor, but this did not destroy the right of the owner above mentioned, as provided by the contract. Otherwise giving a security for the performance of the contract would practically avoid one of its terms. Neither did the stipulation as to damages for delay prevent the owner from proceeding as provided in the ninth paragraph of the contract, if the contingency therein mentioned happened. Still further, the bond was for $100,-000. Under the amended contract, the building was to cost $332,000. The amount paid to the contractor in cash and bonds aggregated $71,567.36. If the completion of the building should cost as much as the balance of the contract price, the further necessary expense would be $250,442.64. The contract also declared a forfeiture of $100 per day for delay. As against the different amounts which the owner might claim there would stand as security a bond for $100,000 and a reserve of ten per cent, from the estimates in making payments, as provided by the contract. Without further discussion, we think it is plain that the case is one for equitable cognizance. This is not a petition to rescind a contract for fraud, and the rule as to restoration in such cases has no application here. The proceeding is one under a clause of the contract. Nor is there merit in the ground of the demurrer that the allegations in regard to abandonment of the work by the contractor are mere conclusions. 3. Was the ground of demurrer which set up that the case was not one for injunction well founded ? From what has already been said, it will be seen, that, according to the allegations of the petition, the possession of the land by the contractor was only for the [711] purposes of carrying out the building contract, and not as a tenant or claimant of title to or interest in the realty; that by the terms of the contract, upon a certain contingency, he no longer had any right of possession, or to proceed with the erection of the building, but the owner had the right to enter upon and take possession of the land, tools, materials, etc., and to have the work completed; that the contingency happened, and the owner, by its agents, did enter and assume dominion as far as the contractor would permit; but the latter prevented him from exercising full control or from proceeding to complete the work according to the contract, though the contractor' was insolvent. We have also endeavored to show that the damages would be irreparable within the meaning of the law, and that the ease was a proper one for equitable relief. What relief ? Shall the owner be kept from completing the building until he can obtain a decree against the contractor that the latter shall specifically perform the ninth clause of the contract by delivering to the owner entire possession of the land, tools, materials, etc.? In the meantime some of the materials and part, if not all, uf the equipment will deteriorate, and some of it be ruined. Even then, would not injunction be needed to prevent further interference with the building? The clause of the contract was inserted to prevent delay and to authorize the owner to proceed with and complete the work. It would be but a poor provision, if it only resulted in delay and multiplicity of suits against an insolvent contractor, while liens on the property were being foreclosed. This was not one of those cases where two persons have claims to property or its possession, and in which a mandatory interlocutory injunction will not be granted to evict one of them at the instance of the other. The owner, under the allegations, had in law such possession and right of possession as against the contractor as to authorize protection by injunction. The main object was restraint, not affirmative relief. Goodrich v. Georgia R. Co., 115 Ga. 340 (41 S. E. 659). See also the discussion in Mackenzie v. Minis, 132 Ga. 323, 335 (63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723). In this connection the following language of Judge Story may well be quoted: “If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly indeed courts of equity were extremely reluctant to interfere at all, even in regard [712] to cases of repeated trespasses. But now there is not the slightest hesitation if the acts clone or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future. If indeed courts of equity did not interfere in cases of this sort, there would (as has been truly said) be a great failure of justice in the country.” 2 Story’s Equity Jurisprudence (13th ed.), § 928. Whether damages for delay could be claimed against the contractor while the owner may be in possession and control of the work, is not now involved. Nor need we refer to the prayer for injunction to restain the contractor from disposing of the bonds which it had received. No ground of the demurrer dealt with that part of the petition separately. As to the petition as a whole, the demurrer was properly overruled. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.