SMITH HEATING & AIR CONDITIONING, INC. v. Biggers

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139 Ga. App. 216 (1976)

228 S.E.2d 203

E. SMITH HEATING & AIR CONDITIONING, INC. v. BIGGERS.

52330.

Court of Appeals of Georgia.

Argued June 7, 1976.

Decided July 2, 1976.

McDonald & Dupree, Barry Staples, for appellant.

Huie, Ware, Sterne, Brown & Ide, Terrence Lee Croft, C. Wilson Dubose, for appellee.

CLARK, Judge.

This appeal is by a materialman plaintiff seeking to foreclose its lien against the defendant owner's property for materials supplied in the construction of defendant's residence. The trial court granted defendant's motion for *217 summary judgment which was based upon the owner having been compelled to expend in excess of the guaranteed maximum contract price for completion of the house after the general contractor had abandoned the job prior to fulfillment of the construction contract.

1. Where a contractor abandons his contract, "the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens; and if such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the subcontractors and materialmen have no lien, since there is nothing due under the contract ..." Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518, 527 (36 SE 669); Rowell v. Harris, 121 Ga. 239 (48 SE 948); Prince v. Neal-Millard Co., 124 Ga. 884 (53 SE 761); Young v. Harley-Mitchell Hardware Co., 173 Ga. 35 (159 SE 567). In this case, the cost of completion together with the sum previously paid to the contractor exceeded the original contract price. Accordingly, plaintiff cannot enforce its lien.

2. As the foregoing ruling disposes of this appeal it is not necessary for us to rule upon the other defenses made in behalf of the defendant landowner.

3. The trial court did not err in granting defendant's motion for summary judgment.

Judgment affirmed. Bell, C. J., and Stolz, J., concur.