Lake v. Brannin

Mayes, J., delivered the opinion of the court. It is not pretended that Lake had ever in any way contracted with appellees to pay them for any of the materials furnished by them to the contractors and to Wheeliss & Mc-Culla. If Lake is liable at all, he is liable by virtue of the [741] statute and the proceedings taken by appellees under it, and in no other way. The fact that materials were furnished to the contractors and that the contractors put this material in the building creates no liability on the part of the owner, unless there is a concurrence of one of two things: (1) In order to create any liability on his part, he must have contracted to become responsible to the person furnishing the materials to the contractors for the building; or (2) at the time notice is served on him there must be something due by the owner to the contractor. Neither of the things which would create a liability on the part of the owner to the appellees existed in this case. After the most careful review of this record, the proof shows that when notice was served on the owner by appellees he owed the contractors nothing. Lie states this in his answer, and the proof conclusively shows this. It is true that he admits in his answer that there is $59.20 which he-had not yet paid out at the time notice was served on him; but this amount is not due to the contractors at all, but it was due to Bye for material furnished the contractors to go into this building, by virtue of a contract that Bye had with the owner of the building, and for which the owner was responsible to Bye, and was not due to the contractors at all. It is also true that after service of notice on the owner by appellees he paid certain other sums that were due Bye and the McMillan-Paine Hardware Company; but these sums so paid after notice was served were not paid out of moneys that were due the contractors, but they were paid on an independent undertaking between the owner of the property and Bye and the McMillon-Paine Hardware Company, whereby the owner had obligated himself to buy this material to go into the house, and the same was charged to him and was his debt; and this contract with Bye and the hardware company was made, and the obligation incurred, long prior to the serving of any notice on Lake by appellees. The contract between Lake and Bye and the McMillan-Paine [742] Hardware Company, whereby Lake became indebted to them for materials furnished by them which it was the duty of the contractor to supply, was made long prior to the time at which written notice was served on Lake by appellees of any claim that they had against the contractors. At the instant that Lake assumed this indebtedness to Bye and the McMillan-Paine Hardware Company the amount due the contractors under the contract with Lake was necessarily reduced in amount by whatever sum the material that was obtained from Bye and the McMillan-Paine Hardware Company amounted to. We think the court should have granted the peremptory instruction, and the case is therefore reversed, and remanded.