The opinion of the court was delivered by: Legge, Justice.
July 24, 1956.
On April 20, 1953, Lowndes Hill Realty Company, owner of a lot near the City of Greenville, S.C. entered into a contract with Builders Lumber Company for the construction by the latter of a building thereon for an agreed price of $39,850.00. Prior to the award of the contract, one Paul Aughtry had negotiated a lease of the proposed building (which was to be known as the Aughtry Building) for a term of ten years at an annual rent of ten per cent of its cost. Lowndes Hill Realty Company employed one H.L. McLendon, an architect, to draw the plans for the building and supervise its construction.
The contractor entered upon the performance of his contract; and during construction the owner made to it certain payments which, taking into consideration adjustments between them for extras and for alleged failure of the contractor to comply with the plans and specifications, left a balance due under the contract by the owner to the contractor of $3,503.36, payment of which was withheld by reason of the notices of liens hereinafter referred to. The building had been completed on or about August 15, 1953.
Greenville Concrete Company, to which was owing a balance of $2,800.46 for materials furnished by it to the contractor on and between May 11 and August 12, 1953, and actually used in the erection of the building, filed in the Office of the Register of Mesne Conveyance for Greenville County on October 9, 1953, an itemized and verified statement or Certificate of Mechanic's Lien, to which we shall later refer, and on the same day served the said certificate upon Lowndes Hill Realty Company.
On January 26, 1954, Greenville Concrete Company filed in the office of the Clerk of Court a summons and petition seeking foreclosure of its mechanic's lien before mentioned; and said summons and petition were served upon Lowndes Hill Realty Company on January 28, 1954.
On January 28, 1954, Lowndes Hill Realty Company instituted the present suit, alleging, inter alia:
(a) That since the completion of the building, purported mechanics' liens had been filed against the said building and the lot on which it was built, as follows:
1. By Greenville Concrete Company, on October 9, 1953, for $2,800.46.
2. By R.L. Waldrop, doing business as Waldrop Plumbing Company, on October 20, 1953, for $1,472.02;
3. By Robert Earl Anders, on October 29, 1953, for $614.47; and
4. By Thompson & Son Roofing and Heating Company, on November 18, 1953, for $2,455.45.
(b) That the attempted lien filed by Thompson & Son Roofing and Heating Company was void because served and filed more than 90 days after the lienor had last performed labor and furnished material in the erection of the building.
(c) That the purported liens filed by Greenville Concrete Company, Waldrop Plumbing Company and Robert Earl Anders were void because of failure on the part of the said lienors to give to the plaintiff, as owner of said premises, timely written notice of their respective claims.
(d) That the plaintiff had also received notices of the following claims against the contractor.
1. Vermiculite Placing Company, $6,095.00;
2. Greenville Glass & Mirror Company, $159.40;
3. Louisville Cement Company, $526.50;
4. Dixie Asphalt Products Corporation, $2,871.52; and
5. Delph Hardware & Specialty Company, $1,934.89.
(e) That the plaintiff, although not directly notified by the claimants, had also been informed of the following claims against the contractor:
1. Binswanger Glass Company, $1,384.01;
2. Virginia Steel Company, $2,121.23.
(f) That the plaintiff was without information as to whether any other debts were due by the contractor on account of the construction of said building, or as to whether the claims before mentioned included charges for labor or materials furnished the contractor not in connection with the construction of said building.
(g) That the plaintiff had made no disbursement to the contractor since receipt of said notices of claims; and that since the balance due by it under its contract for the construction of the building, $3,503.36, represented the extent of its liability to the contractor's creditors for labor and material furnished in the erection of the building, it tendered that amount into court for such distribution as the court might determine.
Thompson & Son Roofing and Heating Company had, prior to the institution of the present suit, commenced an action for the foreclosure of its alleged mechanic's lien; but on January 22, 1954, it amended its complaint so as to allege a constructive trust in its favor in respect of the balance of the contract price in the hands of Lowndes Hill Realty Company.
After the commencement of the present suit Builders Lumber Company, the contractor, went into receivership; and John A. Henry, Esq., its receiver, intervened and was made a party defendant herein.
The actions brought by Greenville Concrete Company and Thompson & Son Roofing and Heating Company were, by consent, consolidated with the present one. Greenville Concrete Company answered the complaint herein, setting up its claim to a mechanic's lien and praying its foreclosure in this action or, in the alternative, payment of the amount due it from the funds deposited with the court. The answers of the other defendants denied that Greenville Concrete Company had obtained a lien on the property or was entitled to priority of payment from the said funds.
The Master, to whom the cause had been referred by consent, found and held, inter alia:
1. That Greenville Concrete Company had no mechanic's lien, and was therefore not entitled to priority in the distribution of the fund, because:
(a) The materials furnished by it and used in the erection of the building had not been so furnished "by virtue of an agreement with, or by consent of, the owner of such building * * * or any person having authority from, or rightfully acting for, such owner in ...