Dunavant v. Caldwell & N. R. Co

• Decision Date: 19 April 1898
• Citation: 122 N.C. 999,29 S.E. 837
• Court: North Carolina Supreme Court
• Parties: DUNAVANT et al. v. CALDWELL & N. R. CO.

29 S.E. 837

122 N.C. 999

DUNAVANT et al.

v.CALDWELL & N. R. CO.

Supreme Court of North Carolina.

April 19, 1898.

Contractor's Bond—Delay in Construction— Liability for Completion—Mechanics' Liens —Railroad Property — Priority — Judgment for Work Done—Enforcement—Findings of Referee—Review.

1. A bond executed by a contractor for the faithful performance of the work is a penalty bond, and the employer is only entitled, on default, to the actual damage caused thereby.

2. Where m ork agreed to be done by a specified time is delayed by the conduct of the employer, he cannot recover the amount agreed to be forfeited by the contractor in case the work was not completed by such time.

3. Under Code Civ. Proc. § 1781, providing that any kind of property shall be subject to a lien for the payment of all debts contracted for work done on the same or material furnished, a contractor is entitled to a lien against a railroad company for the construction of its roadbed and for laying cross-ties and rails thereon.

4. Under Code Civ. Proc. § 1789, providing that a mechanic's lien shall be filed within one year from the time of performing the labor or furnishing the material, a lien of a contractor or subcontractor so filed takes precedence to a mortgage registered after the work commenced.

5. Under Code, § 1255, providing that a mortgage by a corporation shall not exempt the property included therein from execution issued upon a judgment obtained for labor performed or material furnished such corporation, a judgment for labor performed or material furnished may be enforced against the property in preference to a prior mortgage, although no lien was filed.

6. Findings of fact by a referee are conclusive on appeal if there is any evidence to support them.

7. Where the trial court makes no finding of fact, those of the referee will be presumed to have been adopted.

Appeal from superior court, Catawba county; Green, Judge.

Action by S. D. Dunavant and others against the Caldwell & Northern Railroad Company to enforce a mechanic's lien. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Edmund Jones, for appellant.

S. J. Ervin, for appellees.

CLARK, J. As to the first and third grounds of counterclaim, the court properly held that the $5,000 bond for the faithful performance of the work was a penalty, and not liquidated damages, and that the defendant was entitled only to the actual amount of damages which was found by the referee. As to the forfeit of $50 per day, stipulated to? each day of delay to finish the work beyond the time specified in the contract, it is sufficient to say that the referee has found that such delay was caused by the conduct of the defendant, and of course it cannot recover therefor. As to the fourth ground of counterclaim, the referee finds that there was no default in that regard by the plaintiff. The exception that the lien cannot be filed...