Stephens v. Hicks

• Citation: 72 S.E. 313,156 N.C. 239
• Parties: STEPHENS v. HICKS et al.
• Decision Date: 11 October 1911
• Court: United States State Supreme Court of North Carolina

72 S.E. 313

156 N.C. 239

STEPHENS v. HICKS et al.

Supreme Court of North Carolina

October 11, 1911

Appeal from Superior Court, New Hanover County; Peebles, Judge.

Action by B. H. Stephens against Sallie M. S. Hicks and husband. From a judgment sustaining a demurrer to his complaint plaintiff appeals. Affirmed.

Kenan & Stacy, for appellant.

Rountree & Carr, for appellees.

WALKER J.

This action is brought by the plaintiff, an architect, against the defendants. Mrs. Sallie M. S. Hicks and her husband, to recover of the feme defendant damages alleged to be due for a breach of a contract, by the terms of which the plaintiff agreed to prepare and furnish plans and specifications for an apartment house, to be erected by her, for which he was to receive $700, and was actually paid the sum of $350, and he further agreed to superintend the construction of the building, as her architect, for the sum of $300, which she has prevented him from doing. Plaintiff seeks also to enforce a mechanic's and laborer's lien upon the property. The defendant demurred to the complaint, and plaintiff appealed from the judgment sustaining the demurrer.

Whatever may be law, as declared in other jurisdictions, this court has thoroughly settled the principle that a mechanic or laborer, within the meaning of our lien laws, is one who performs manual labor; one regularly employed at some hard work; or one who does work that requires little skill, as distinguished from an artisan. Whitaker v. Smith, 81 N.C. 340, 31 Am. Rep. 503. In that case, Justice Ashe, for the court, thus explained the lien law of our state by the circumstances which caused its enactment: "A very large proportion of the laboring population of the state had just recently been released from thraldom and thrown upon their own resources, perfectly ignorant of the common business transactions of social life, and this provision of the Constitution, and the acts passed to carry it into effect were intended to give protection to that class of persons who were totally dependent upon their manual toil for subsistence. The law was designed exclusively for mechanics and laborers." And it was held that an overseer is not a mechanic or laborer under our lien law, and is not entitled to a lien on the building and premises, where his work is done or labor performed for the price or value of his services. The case of Cook v. Ross, 117 N.C. 193, 23 S.E. 252, is quite as much to the point, for there it was held that one who, under a contract, assists the owner of a mill in purchasing machinery and superintends the installation of the same and the repairing of the mill, so as to put it in proper condition for the manufacture of yarns was in no view justified by our statute a mechanic or laborer. "He was superintendent of the work which was done," says the court, "but was in no sense employed as a laborer by the day to do toilsome and manual labor. His business, under the agreement, was not to labor with his hands, but to oversee those wild did the work in subjection to his authority." So it has been held that one who acts as bookkeeper in the reconstruction of a building, under a contract with the owner for his services, is not entitled to a lien. Nash v. Southwick, 120 N.C. 459, 27 S.E. 127. To the same effect is Moore v. Industrial Co., 138 N.C. 304, 50 S.E. 687, where it was held that a lien is not given by our Constitution and statute for services rendered, under contract, as superintendent of a milling business, conductor of a commissary or store connected therewith, and as bookkeeper in the same concern. This court, in deciding that case, adopted the definition of the English courts in construing their statute that a laborer or mechanic is "a servant employed in some manual occupation." It is further said that "the word 'labor,' in legal parlance, has a well-defined, understood, and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. Labor may be business, but it is not necessarily so, and business is not always labor. "In legal significance, labor implies toil; exertion producing weariness; manual exertion of a toilsome nature"--citing Bloom v. Richards, 2 Ohio St. 387. It was said in Cook v. Tramway Co., 18 Q. B. Div. 684, in construing the English employer's liability act, that, "the expression used [in that act], it should be noted, is not manual work, but manual labor. Many occupations involve the former, but not the latter; for instance, telegraph clerks, bookkeepers, and all persons engaged in writing." Morrison v. Mining Co., 143 N.C. 250, 55 S.E. 611. The plaintiff, therefore, is entitled to no lien under his contract to superintend the work, even if he had performed this duty, and certainly he cannot be heard to say that he should have a lien for what he did not do.

Nor is he entitled to a lien for the building plans and specifications, either upon principle or well-considered authority. The language of the statute is that the mechanic or laborer shall have a lien on the property, real or personal for work done on the same. It could hardly be said with correctness and a proper appreciation of the meaning of well-defined terms that an architect, in furnishing plans and specifications for the guidance of the contractor and his mechanics and laborers, is engaged in the act of performing labor upon the building. He uses his brain far more than he does his brawn--his trained mental faculties, rather than his physical or muscular powers--and herein, to a large extent is to be found the distinction between men employed in his kind of work and the laborer, who works mechanically, though under his direction. We are ably and strongly supported in our view of the law by the cases of Mitchell v. Packard, 168 Mass. 467, 47 N.E. 113, 60 Am. St. Rep. 404, and Libbey v. Tidden, 192 Mass. 193, 78 N.E. 313. It has been decided also in other jurisdictions that the word "mechanic," as used in the lien laws, does not include an architect or draughtsman. See cases on this question in 5 Words and Phrases, p. 4457, title "Mechanics," and subtitle, "Architect or draughtsman," a mechanic or laborer (within the meaning of these laws) being a person skilled in the practical use of tools; a workman who shapes and applies material in the building of houses or other structures mentioned in the law; "one actually employed with his own hands in constructive work;" or one so engaged in the application of his own labor to such construction, as contradistinguished from a superintendent or overseer. 5 Words and Phrases, 4457; City of New Orleans v. Lagman, 43 La. Ann. 1180, 10 So. 244; S. & C. R. Co. v. Callahan, 49 Ga. 506; People v. Board of Aldermen, 18 Misc. 533, 42 N.Y.S. 545; Parkerson v. Wightman, 4 Strob. (S. C.) 363; Raeder v. Bensberg, 6 Mo. App. 445; In re Osborn (D. C.) 104 F. 780; Price v. Kirk, 13 Phila. (Pa.) 497. The authorities are...