Gray v. Walker

• Decision Date: 17 October 1881
• Docket Number: CASE No. 1103.
• Citation: 16 S.C. 143
• Parties: GRAY v. WALKER.
• Court: South Carolina Supreme Court

16 S.C. 143

GRAY

v.WALKER.

CASE No. 1103.

Supreme Court of South Carolina.

Oct. 17th, 1881.

1. Where a builder contracts to erect a building, he furnishing all the necessary labor and materials to that end, a laborer employed by him to do a portion of the work has no mechanics' lien on the building erected under such contract.

2. Mere knowledge by the agent of the owner that such laborer was so working does not amount to that consent which, under the act, would entitle a laborer to a lien on the building.

Before WALLACE, J., Spartanburg, March, 1880.

Petition by Albert Gray against E. C. Walker, to enforce mechanics' lien, filed June 25th, 1879.

To the statement of facts in the opinion of this court, the following extracts from the testimony may be properly added:

W. E. Walker testified for plaintiff: Am husband for defendant; Hughes authorized me to look after the building; if I had seen building going on wrong I should have notified Hughes; think I called attention of Gray to plastering off in large room, and asked him to replaster it; I spoke to Gray just as I would to any other employe of Howerton.

Albert Gray recalled: W. E. Walker was about the house a good deal while I was at work on it; looked over the work going on; spoke to me about plastering; knew I was there at work; never heard of any objection to my working there, nor ever received any notice that I could not have lien on work for my pay; Hughes was there once or twice; saw me at work.

This is all the testimony bearing on the question of consent or knowledge. Neither Hughes nor Mrs. Walker were examined.

Messrs. Duncan & Cleveland, for appellant, cited Phil. Mech. L. §§ 40, 45, 112, 113 and notes; 13 S. C. 87.

Messrs. Wofford & Jennings, contra, cited 6 Stat. 32; Gen. Stat. Ch. CXX., §§ 7, 8, 19; Phil. Mech. L. § 52; 8 Allen 543.

The opinion of the court was delivered by

SIMPSON, C. J.

There is but one question in this case, to wit: Whether the respondent is entitled to the mechanics' lien, which he is here attempting to set up and enforce against the defendant, appellant.

The facts of the case are as follows: The appellant owned a lot of land in the town of Spartanburg, upon which her father, as a gift to his daughter, had determined to have erected for her use a small dwelling-house. To this end a contract was made by the defendant and her father, W. H. Hughes, with one Howerton, who was to furnish all the materials and build the house. After this contract was made with Howerton, he (Howerton) contracted with the respondent for certain plastering and brick work to be done by him. For this work Howerton agreed to pay respondent fifty dollars.

The house was completed in due time, and Howerton was paid off in full, according to the contract. Shortly after this, and within the time specified in the act, the respondent, not having been paid in full for his work by Howerton, filed in the clerk's office for Spartenburg county a statement of the balance which he claimed to be due him, which, after allowing all credits, he alleged amounted to $30.85. The proceeding below was a petition to enforce this claim under the act in reference to liens of this character. Gen. Stat. 550.

The case below was referred to a referee, who reported substantially as stated above. He also reported that on several occasions during the progress of the work, Hughes, the father of defendant, saw the respondent at work on the house and made no objection, but there was no evidence before him showing any consent of defendant or that she ever knew or saw him at work.

Upon these facts the referee found as matter of law that the petitioner was not entitled to establish a lien on the building and land of defendant, and he recommended that defendant have judgment for her costs. Exceptions were duly taken. Upon the hearing Judge Wallace passed an order overruling this report, adjudging that the petitioner was entitled to recover from the defendant the sum of $30.70, with his costs; also, that he had a lien on the land and building, which he ordered to be sold by the sheriff, the proceeds first to be applied to the satisfaction of the debt, costs and sheriff's fees, and, if any balance, this to be paid to defendant. The defendant has appealed, claiming that his Honor erred in not sustaining the conclusions of law and fact as reported by the referee.

There seems to be no controversy as to the facts. It is agreed that Howerton was the party with whom alone the defendant contracted, and that this contract was an entire contract, embracing not only the building of the house, but the furnishing of all materials-all to be done for a specified sum. It is also agreed that upon the completion of the house Howerton was fully paid. It is further agreed that respondent was employed by Howerton; that Howerton paid him in part, leaving $30.70 due; that Hughes saw him at work and made no objection; but there was no evidence that defendant ever saw or knew that he had done any work on the house. The question then before the court is whether the facts of the case bring...