Williams & Williams v. Warren

Smith, C. 3., delivered the opinion of the court. This is a proceeding in which the appellants are seeking to- obtain a personal judgment against the appellee for services rendered and material furnished in the erection of a building, in which the personal judgment sought was obtained, but the lien on the building was denied. Suit was begun by a regular mechanic’s lien petition, setting forth a contract entered into between the parties hereto, by which, the appellants agreed to supervise the erection of a building” for the appellee and to furnish the labor and material therefor, for which they were to be reimbursed by the appellee and to receive for their services therefor seven and one-half per cent, of the total cost of — 909 — tlie building. This contract will be set out by the reporter in full. When the appellants rested their case on the trial thereof in the court below, a motion was made by the appellee to exclude the evidence that had been offered by the appellants, and while this motion waá under discussion the appellants requested permission to file an additional count to their initial pleading, by which a personal judgment only would be sought against the appellee for the amount alleged to be due by him to the appellants under the contract sued on. This motion was sustained by the court, and when the amendment was made the appellee moved the court to compel the appellants to elect on which count they would stand, which motion, over the protest of the appellants, was sustained, and the appellants then elected to stand on the count by which a personal judgment only was sought. It appears from the evidence that the appellants com-. meneed and partially erected the building under their contract with the appellee, but before .its completion it developed that it would cost more than thirty thousand and five hundred dollars to build it, whereupon the appellee declined to pay any more of the appellants ’ bills for labor and material, giving as a reason therefor that under section 6 of the contract the appellants had guaranteed that the cost of the building would not exceed thirty thousand and five hundred dollars. The appellants, not being able to proceed with the erection of the building, unless these payments for labor and material should be made, quit work on the building, and it was thereafter completed by the appellee. The recovery sought by the appellants embraces commissions earned and that would have been earned, had they been allowed to complete the building, labor and material furnished, and freight paid by the appellants on material. The appellants had not at the time of the trial paid all of the indebtedness incurred by them for labor and material, but no effort appears to have been made or to be contemplated by the parties to whom this indebtedness is due to collect it from the appellee. — 910 — In obedience to the court’s instructions the jury returned a verdict for the appellants for six thousand, five hundred and eleven dollars and ninety cents, and there was a personal judgment against the appellee accordingly. Included in this amount is the sum of four hundred eighty-one dollars and thirty-one cents, commissions that the appellants would have earned, had they completed the building. After the rendition of the judgment in the court below a motion was made by the appellants to correct it, by adding thereto a special order for the sale of the building and the land on which it was erected for the satisfaction of the judgment rendered. This motion was overruled, and the appellants, the plaintiffs in the court below, have brought the case to this court. The appellee also took a cross-appeal, but afterwards abandoned it. The questions for decision can best be understood from a statement of the contentions of the appellee, which in effect are: (1) That the contract for the erection of the building does not bring the' cause within section 3058, Code of 1906 (Hemingway’s Code, section 2418). (2) That a count for a personal judgment only cannot be joined with one seeking in addition thereto the enforcement of a mechanic’s lien. Consequently the court below should not have permitted the appellants to amend their initial pleading, from which it necessarily follows’ that the court committed no error, after the amendment was made, in compelling the appellants to elect on which count they would stand. (3) That, having elected to stand on the count for a personal judgment, the appellants waived their right to a lien claimed in the original count. The theory upon which the first of these contentions is' based is that the appellants were employed merely to superintend the construction of the building and that in securing the labor and material therefor they were merely acting as the appellee’s agent. This is a total misconception of the contract, the clear — 911 — and evident meaning of which, is that the appellants were to supervise the construction of the building and to furnish and pay for all labor and material necessary therefor, and as compensation therefor they were to be repaid the money expended by them for labor and material, and in addition thereto were to be paid seyen and one-half per cent, on the cost of the building. In other words, they were employed, not merely to supervise the building of the house, but to do everything necessary in and about the building of it, to the same extent they would have been obligated to do, had the contract been simply for the building of the house for a stipulated sum; the only material difference between such a contract and the one here in question being that under the former the amount which the building would cost the owner is made certain, while under the latter it is dependent upon the cost of the labor and material that go into it. We must not be misunderstood as intimating that, if the appellants’ contract had been merely for the supervision of the construction of the building they would have had no lien for their commissions for so doing. As the contract is not of that character, we are not called on to express an opinion thereon. Whether or not the appellants have paid the indebtedness incurred by them for the labor and material is of no concern to the appellee in so far as is disclosed by this record. The indebtedness is not his, but is the appellants. The appellants were not entitled to a lien for commissions they might have earned, had they been permitted to complete the building, but in so far as the other items of the account sued on are concerned no amendment to the petition seems to have been necessary, for under section 3067, Code of 1906 (Hemingway’s Code, section 2427), a personal judgment therefor could have been rendered, in addition to a special order for the sale of the property on which the lien is sought. But there is no objection to joning in a mechanic’s lien proceeding a count for a personal judgment only with one for such a judgement and in addition a special order for the sale of the property on — 912 — which the lien is sought. The count for the personal judgment only will, of course, add nothing to a plaintiff’s case, unless he fails to establish his lien for all or a part of the account sued for. While there is some apparent .confusion in the language of the former decisions of this court dealing herewith, the rule governing' the matter is as we have herein announced it. Noble v. Terrell, 64 Miss. 830, 2 So. 14. In establishing his right to a lien, the plaintiff must also establish the debt which forms the basis of the lien, and no good reason appears for denying him the right to so shape his pleadings as to entitle him to recover this debt, in event he fails to establish his right to the lien. The court below therefore committed no error in allowing the additional count to be filed, but erred in compelling the appellants to elect on which count they would stand. The appellants, having elected under compulsion and over their protest to stand on the count for a personal judgment, cannot be held to have thereby waived their claim to the lien sought to be recovered under the original count. The appellee seems not to, and could not successfully, contend that under section 6 of the contract sued on the appellants guaranteed that the cost of the building would not exceed thirty thousand and five hundred dollars. In that section thirty thousand and five hundred dollars is simply estimated as the probable cost of the building, and the promise therein made by the appellants is to “execute this contract under the most economical method of procedure ... to the end” that the estimated “probable cost be not exceeded. ” We do not understand from the record that there is or can be any contention on the part of the appellee that the appellants are not entitled to a lien on the building and the ground on which it stands, except for the reasons hereinbefore set out. If this is true, there can be no question either of fact or of law for the determination of which a new trial of the case in whole or in part is necessary. Consequently the court below should have sustained the appellants’ motion for the correction of the — 913 — judgment, so as to add thereto a special order for the sale of the building and the land on which it was erected, as described in the petition, but with this modification. Embraced in the amount of the judgment as hereinbefore stated is the four hundred and eighty-one dollars and thirty-one cents commissions, which the appellants would have earned, had they completed the building, and for which they have no lien under this statute. This amount should have been deducted from the judgment, and the special order for the sale of the property should have been for the difference. The judgment of the court below will be set aside, and a judgment will be rendered here in accordance with this opinion. If it should be made to appear, by a motion within the time prescribed by the rules of this court for the filing of a suggestion of error, that justice requires that the cause be remanded, so as to permit the appellee to relitigate the appellant’s claim to the lien sought on grounds other than those hereinbefore set forth, the cause will be remanded for that purpose. Reversed, and judgment here for appellant. Reversed.