ON MOTION ROE REHEARING.
Bell, J.The ruling stated in the fourth division of the opinion, to the effect that the petition could have been amended as therein indicated, is attacked upon the ground that such an amendment would have added a new and distinct cause of action. The case of Montague v. Chattanooga &c. R. Co., 94 Ga. 668 (21 S. E. 846), is *582cited in the motion for a rehearing. In that case it was held that an action by a materialman against a railroad company to enforce a statutory lien upon the railroad for the price of material sold, not to the company but to a contractor, is not amendable so as to charge the company as a debtor to the plaintiff for the value of the material as goods sold and delivered, or as goods of the plaintiff used and appropriated by the company in constructing its railroad. By the amendment there in question the plaintiff sought to recover generally against the railroad company for the amount due, as in ordinary actions upon implied contracts, and prayed that the suit be converted into an action for that purpose. It was held that such an amendment would introduce a wholly new and distinct cause of action. To the same effect, see George W. Muller Bank Fixture Co. v. Georgia State Savings Asso., 143 Ga. 840 (85 S. E. 1018). In the present case we did not hold that the petition could have been amended so as to recover a judgment in personam against the owner of the real estate for the value or price of the materials sold, and therefore our ruling as to the amendability of the petition was not in conflict with either of the decisions just referred to. So far as the defendant owner was concerned, the petition was a mere suit to foreclose a lien upon the real estate improved, and an amendment confined only to the right of foreclosure, even though it might have varied the facts touching the sale of the materials as indicated in the original decision, would not have been objectionable as adding a new and distinct cause of action. The auditor did not allow a personal judgment against the owner of the real estate, but simply permitted a foreclosure of the lien, upon the theory that the materials were purchased, not by an independent contractor as alleged in the petition, but by the same person as agent of the owner.
In a suit to foreclose a lien for materials furnished to a contractor, a judgment against the contractor for the price or value of the materials is a condition precedent to a judgment foreclosing a lien against the real estate. Griffin v. Gainesville Iron Works, 144 Ga. 840 (2) (88 S. E. 201); Hood Brick Co. v. Mangham, 161 Ga. 457 (131 S. E. 172). But where the materials are furnished, not to a contractor, but to the owner either directly or through an agent, the materialman upon complying with the other necessary conditions may have a judgment of foreclosure, without seeking a judgment in personam against any one. Compare Evans v. Rounsa*583ville, 115 Ga. 684 (42 S. E. 100); Camp v. Young, 119 Ga. 981 (47 S. E. 560); Chamlee Lumber Co. v. Crichton, 136 Ga. 391 (71 S. E. 673); Parish v. Murphy, 51 Ga. 614; Lombard v. Trustees, 73 Ga. 322. The provision of law to the effect that in order to establish and foreclose a materialman’s lien upon real estate the part}1- claiming such lien must commence an action for the recovery of the amount of his claim within twelve months from the time the same shall become due (Park’s Code, § 3353) relates only to an action against the contractor, so far as recovery of a personal judgment is concerned. Buck v. Tifton Mfg. Co., 4 Ga. App. 695 (62 S. E. 107). If materials are sold to an owner either directly or through another as his agent, the materialman may, upon proper pleadings and evidence, obtain a personal judgment against the owner for the price or value of such materials, but the materialman is not obliged to seek or obtain such a judgment in order to maintain foreclosure proceedings. Civil Code (1910), § 10; Ryals v. Smith, 102 Ga. 768 (29 S. E. 968). The statements made above as to the rights of the materialman will apply to each of the plaintiffs in the consolidated action. It follows that each petition was entirely adequate to support the findings of the auditor and the decree of the trial court upon which the original decision by this court was predicated.
The auditor found that the plaintiffs were entitled to personal judgments against the eodefendant originally sued as the contractor, and it is contended that in view of this finding the plaintiffs should not have a foreclosure of the liens against the real estate, upon the theory that the person thus sued as contractor was in fact a mere agent of the owner. Under the facts appearing in the record, there is no merit in this contention. As stated in the original decision, the auditor may file an alternative report. The fact that the plaintiffs were awarded personal judgments against another party can not hurt the plaintiffs in error. The party against whom these judgments were rendered is not complaining.
Other questions are argued in the motion for a rehearing, but these were fully covered in the decision previously filed.
Rehearing denied.
All the Justices concur.