Latham Plumbing &Amp; Heating Company v. Ledbetter Trucks, Inc., 96 Ga. App. 219, 99 S.E.2d 545 (1957)
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Summary
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Summary
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Text
Gary Hamilton, Bert Garstin, for plaintiff in error.
J. Latham Plumbing & Heating Company sought to foreclose a lien on certain real estate described in the petition, in its favor and against Ledbetter Trucks, Inc. The defendant demurred to the petition and the trial court sustained the demurrers and dismissed the petition. On this judgment the plaintiff assigns error here.
The germane question is whether or not the plaintiff attempted to foreclose its lien in accordance with Code (Ann.) 67-2001 and 67-2002. Due to the fact that practically all of the members of the bar are familiar with these Code sections, we deem it unnecessary to quote them here.
The gist of the contention on the part of the plaintiff is that the petition as amended alleged sufficient facts to show that the court erred in sustaining the demurrers and dismissing the petition. On the contrary the defendant contends that the lien which was attempted to be foreclosed under the petition against the defendant was in fact not properly foreclosed against the defendant but that the whole effort to foreclose the lien was against Dewey L. Stevens, Jr., who is alleged to be an officer of the plaintiff and who, according to the record, did the plumbing work on the real estate for which a lien is claimed; that the plaintiff was not a party to the contract for the improvements but the contract was in the name of Dewey L. Stevens, Jr. It is alleged in the petition that within twelve months (as provided in the Code sections covering this subject matter), the contractor who made the contract for the improvements left the State of Georgia. The petition, as amended, fails to allege that the plaintiff has taken no personal security for the work done and material furnished. This is a necessary legal prerequisite. See Royal v. McPhail,
and also upon said real estate. Said building or structure being described as follows: Starting at a point on the easterly side of the Glenn Milner Highway, otherwise known as East 5th Street, 25 feet northerly of the point where a projection of the north side of the old Pepper dwelling house would intersect the east side of the Glenn Milner Highway; running thence southerly along the easterly side of the Glenn Milner Highway 110 feet, and extending back between parallel lines at right angles to the Glenn Milner Highway, to the westerly side of the Etowah River, subject to the reservation of a driveway approximately parallel to the Glenn Milner Highway, and at or near the Etowah River; said property being in the City of Rome, Georgia. Said lien is claimed for the plumbing work done and materials furnished by the undersigned upon said premises. The amount for which the undersigned claims this lien is $881.94. And now, within three months since the same was done, the undersigned records this lien therefor in the office of the clerk of the superior court of the county where said property is situated, as aforesaid, pursuant to the provisions of Section 67-2002 of the Code.
"s/ Dewey L. Stevens, Jr.
Officer of Latham Plumbing &
Heating Company."
The plaintiff is alleged to be a corporation. No corporate seal was attached to the signature.
This record clearly shows that there is nothing in the petition to bind the defendant by reason of any instrument signed by Dewey L. Stevens, Jr. There are numerous decisions holding that an instrument signed in the manner in which the individual Dewey L. Stevens, Jr., signed the instrument attached to this petition, shows descriptio personae and does not render the instrument that of the designated principal. See Kennedy v. Gelders,
The court did not err in sustaining the demurrers and dismissing the petition.
John W. Maddox, Matthews, Maddox, Walton & Smith, contra.
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