Bailey v. Rutjes

• Decision Date: 28 February 1882
• Citation: 86 N.C. 517
• Court: North Carolina Supreme Court
• Parties: J. M. BAILEY v. A. J. RUTJES and others.

86 N.C. 517

J. M. BAILEY

v.A. J. RUTJES and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of BURKE Superior Court, before Seymour, J.

This action is brought to enforce a mechanic's lien upon the property of the ““Glen Alpine Springs Company,” composed of the defendants Walton and Pearson, for lumber furnished and used in repairing and erecting buildings on its premises.

On the part of those defendants, it is insisted that the lumber was not furnished to their company, but to their co-defendant, Rutjes, and upon his sole responsibility--he having leased the premises for five years, and being in possession thereof, at the time the lumber was ordered and delivered, though he has subsequently surrendered his lease and restored the possession to the said defendants. On the trial the plaintiff testified that he delivered the lumber according to certain bills, (produced and numbered 1, 2, 3, &c.) furnished him by Rutjes, some of which were signed by Rutjes, while others were not. That he had no talk with either of the defendants, Walton or Pearson, before such delivery, but that he had previously delivered two other bills of lumber on the same premises and received from Rutjes orders upon the other defendants for the money, one of which the defendant Walton had paid, and the other partially paid, and that this occurred while he was engaged in sawing bill No. 1. He also testified that after the lumber was delivered on the premises, he applied to the defendant Walton for payment, who offered him a note on Rutjes which he declined, and while he had had no talk with the defendants, Walton and Pearson, about the lumber before its delivery, they had seen it delivered and knew that it was used on the premises; and on one occasion while the plaintiff was sawing the lumber the defendant Pearson ordered, in person, and paid for a lot of laths which were used in the buildings on the premises; that he had no acquaintance with Rutjes, who was a stranger in that part of the country, and made no contract with him in regard to the lumber.

The plaintiff also introduced the head-carpenter, and other workmen employed on the premises, who testified to the use of the lumber in the buildings, and that the defendant Walton was frequently present, giving directions about the work, and that he expressly promised to pay them their wages.

For the defence, the defendant Walton testified that one of the terms of Rutjes' lease was that he was to make the improvements on the premises, and to deduct the costs from the stipulated rent; that he had nothing to do with the contract with the plaintiff, and had refused to become responsible to him for the lumber, when asked to do so, and though occasionally at the springs while the work was going on, he had never assumed to direct it; that the money paid on the two orders referred to by plaintiff was paid in consequence of an agreement that had reference to those particular lots of lumber, and was in fact a loan to Rutjes. This witness denied that he had paid or agreed to pay the workmen their wages.

The defendant Pearson testified in substance the same with his co-defendant Walton. And one Smith, who was clerk to Rutjes testified that he had made the contract for the lumber with plaintiff, as agent for Rutjes, and had told plaintiff that he, and not the other defendants was responsible therefor.

For the defendants, special instructions were asked which the court declined to give, and instructed the jury that to make the defendants liable, it was necessary that there should be a contract either express or implied between the plaintiff and themselves. That if the plaintiff reasonably believed when he was furnishing the lumber that it was upon the credit of defendants and was induced to so believe by their acts, they were liable; and that in this connection they might consider all the conduct of defendants as testified to by the witnesses. That if they believed that plaintiff furnished the lumber solely upon the credit of Rutjes, or that plaintiff agreed to look only to him for pay, then the defendants would not be liable. To which charge the defendants Walton and Pearson excepted, and after verdict and judgment against them, they appealed.

Messrs. Jones & Avery and P. J. Sinclair, for plaintiff .

Mr. G. N. Folk, for defendants .

RUFFIN, J.

The...