# Hamilton Nat. Bank v. Long > Tennessee Supreme Court · December 17, 1949 · 189 Tenn. 562 URL: https://www.frixlaw.com/law-library/cases/8302832 ## Case - **Full name:** Hamilton Nat. Bank v. Long Scott v. Stop Rust Co. - **Court:** Tennessee Supreme Court - **Decided:** December 17, 1949 - **Citations:** 189 Tenn. 562; 25 Beeler 562; 226 S.W.2d 293; 1949 Tenn. LEXIS 459 - **Precedential status:** Published - **Opinion:** On rehearing by Burnett - **Judges:** Burnett, Chriam - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8302832 ## Opinion text On Petition To Rehear BURNETT, Justice. The appellants have filed a courteous and dignified petition to rehear. Two insistences are made; (1) “that even if Scott had a lien at the time the garnishment was served for labor and material, he would not have a lien for that part of his claim which represents profit and supervision”; and (2) whether or not the letter written by Scott on July 31, 1947, to the Stop Rust people was a sufficient notice to give him a lien under the Statute, Code, Section 7927, even though no lien was claimed in the letter. The basis and gravamen of the decision of the Court of Appeals, which we adopted, is well stated in language as follows: ‘ ‘ The garnishee can be held only to the extent of the defendant’s claim against him. Hence plaintiff can enforce no right against the garnishee that defendant himself could not enforce, or reach assets in possession of the garnishee which defendant could not recover from the garnishee.” 38 C.J.S., Garnishment, page 396, Section 176. As authority for this statement, our case of Dickson v. Simpson, 172 Tenn. 680 , 113 S. W. 2d 1190, 1193 , 116 A.L.R. 380 , is cited. Upon examining this case it will *571 be seen that it is ample authority for the decision in the case now before ns. It, therefore, seems to ns that question (1) presented by the petition to rehear is resolved by the holding in the opinion because this question revolves around and hinges upon whether or not the garnishee had any property or funds or other assets in its hands or under its control belonging to C. C. Long at the time of the service of the writ of garnishment. The record and the finding of the two lower courts is to the contrary, that is, that at the time of the service of garnishment the Stop Bust Company did not owe Long anything. Prior to the service of this garnishment, Long had denuded himself of any claim against Stop Bust by subcontracting the entire job to the claimant Scott. Scott had begun his work prior to the service of garnishment herein and had assumed the responsibility of doing the work and furnishing the labor on this building. The two lower courts have found, and we think under the record properly so, that there was no fraud or collusion shown herein between Long and Scott whereby they could be said to have connived in this matter to defeat the claim of the bank. There must be some proof to substantiate a situation of the kind — connivance or fraud — between these parties before we can infer any such and thus defeat the claim of Scott herein. Aside from the proposition, which is decisive of this matter as above indicated, and merely as an academic proposition we have- made some investigation of the authorities, including those cited in the brief of the appellant, and find that the general rule is that: “Profits and commissions ordinarily are not lienable items unless included in the contract price ... or ... in the *572 .reasonable worth of the labor or materials furnished, no lien may be allowed for profits or commissions not earned.” 57 C.J.S., Mechanics’ Liens, page 540, Section 49. Among other cases cited as authority for the above statement is the case of Bond v. W. T. Congleton Company, 278 Ky. 829 , 129 S. W. 2d 570 , wherein it is said: “Numerous cases are cited in support of the principles stated in the text and we are in accord with the principles laid down therein. The contractor himself necessarily performs labor in the purchasing of and paying for material and in furnishing and paying for the necessary labor in the construction of a building and it appears reasonable to us that labor thus performed by the contractor is lienable to the same extent as any other labor that goes into the building where the contract provides for the payment of a definite percentage as compensation for this labor to be performed by the contractor.” Page 572 of 129 S. W. 2d. We are in accord with this reasoning. The contract herein provided for a stipulated sum plus a percentage for doing this work. We feel that it would be a lienable item providing it was necessary to assert the lien. This though should only arise as between the owner Stop Rust and the claimant Scott. We think the very heart of this decision, as set out in the outset of this opinion, is an answer to the second proposition raised on the petition to rehear. In the opinion adopted by us it was held that: “His lien had existed from the date of the visible commencement of the work. ’ ’ Citing authorities. It is not necessary under the holding of this case for us to determine whether or not the letter referred to in this assignment was sufficient *573 to give Scott a lien herein because if Stop Bust did not owe Long anything then the bank could not acquire anything by its garnishment. For the reasons stated above. the petition to rehear must be denied. ■ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8302832. Public record. Not legal advice.