Cook v. Ross

• Decision Date: 19 November 1895
• Court: North Carolina Supreme Court
• Parties: COOK et al. v. ROSS.

23 S.E. 252

117 N.C. 193

COOK et al.

v.ROSS.

Supreme Court of North Carolina.

Nov. 19, 1895.

Laborer's Lien—Superintendent.

One employed to assist in purchasing machinery, and to superintend the erection, starting up, and repair of a mill, is not entitled to a lien, under Code, § 1781, providing that "every building built * * * snail be subject to a lien for the payment of all debts contracted for work done on the same, or material furnished."

Appeal from superior court, Guilford county; Boy kin, Judge.

Action by Sallie J. Cook and others against L. F. Ross. From a judgment sustaining exceptions to the report of a referee, plaintiffs appeal. Affirmed.

L. M. Scott and R. M. Douglas, for appellants.

J. T. Morehead and J. N. Wilson, for appellee.

MONTGOMERY, J. The plaintiff Emery claimed a balance to be due to him by lien for work and labor done as a mechanic. The matter was referred to T. J. Shaw to take the evidence, and find the facts and conclusions of law arising therefrom, who proceeded under the order of reference,, and made his report. His fifth finding of fact is as follows: "On the 7th of September, 189-, after having inspected the property and machinery, said Emery and Ross entered into the following contract, to wit: Emery, in consideration of $6 per day, traveling expenses and board to be paid by Ross, agreed to assist Ross in purchasing such new machinery as would be needed for the Hamburg property, and was to superintend the erection and starting up of the same, and the making of such repairs to the mill as might be necessary to put it in good condition for making yarns, and he was to continue in the employ of Ross, under said contract, from said date till the mill was put in running condition." Upon this finding of fact the referee concluded, as matter of law, "that defendant is indebted to plaintiff Emery in the sum of $600, " etc., "balance due for work and labor done under the contract." The defendant, and also some new parties to the original action, who claimed an interest in the premises, except to this conclusion of law made by the referee, and say that it should be amended by striking out the words "for work and labor done." His honor upon the hearing sustained the exception, and the plaintiffs appealed.

The only construction which can be put upon the plain language of the finding of fact ends the plaintiff's contention that he has a lien under the statute, ¹ as a mechanic, for work and labor done. He was superintendent of the work...