Horne-Wilson, Inc. v. Wiggins Bros., Inc.

• Decision Date: 15 June 1932
• Docket Number: 474.
• Citation: 164 S.E. 365,203 N.C. 85
• Parties: HORNE-WILSON, Inc., v. WIGGINS BROS., Inc., et al.
• Court: North Carolina Supreme Court

164 S.E. 365

203 N.C. 85

HORNE-WILSON, Inc., v. WIGGINS BROS., Inc., et al.

No. 474.

Supreme Court of North Carolina

June 15, 1932

Appeal from Superior Court, Mecklenburg County; Finley, Judge.

Action by Horne-Wilson, Inc. (formerly the Mott Southern Company) against Wiggins Bros., Inc., and others. From the judgment defendants appeal.

Affirmed.

The plaintiff alleged that T. D. Kelly was the owner of certain real estate, and that on October 24, 1928, he executed and delivered to G. T. Carswell, trustee, a certain deed of trust securing a note for $3,000, payable to Wiggins Bros. Thereafter the said Kelly, owner of said lands, duly made a contract with H. B. Carrigan to furnish certain labor and materials for improvements upon said property for the fixed sum of $1,400. Carrigan began work and furnishing materials on November 24, 1928. The last work and materials were furnished and performed during the month of January, 1929. After Carrigan had begun work and furnishing materials to the project, to wit, December 26, 1928, Kelly, the owner executed and delivered a second deed of trust to said Carswell, trustee, to secure a note of $1,250 due Wiggins Bros. Thereafter, in June, 1929, Carswell, trustee, sold the property under the first deed of trust, and T. J. Wiggins became the purchaser thereof for the sum of $4,520. After paying the expenses of sale and the note secured by the first deed of trust, it is alleged that there remained in the hands of the trustee, Carswell, the sum of $1,384.20. It was further alleged that the said trustee, after requiring an indemnity bond executed by the Fidelity & Deposit Company of Maryland, paid the said Wiggins Bros. the surplus of $1,384.20. It was further alleged that the defendant Wiggins Bros., at the time of obtaining the said sum of $1,384.20 to be credited upon the second deed of trust, represented to the trustee that the said second deed of trust was "prior and superior to the claim of plaintiff, and that the said deed of trust had been executed and duly filed prior to the doing of the work or the furnishing of materials mentioned in the aforesaid judgment and complaint." The plaintiff instituted an action entitled Mott Southern Company and H. B Carrigan v. T. D. Kelly to recover the sum of $1,400 for labor and materials furnished upon the property of said Kelly, and thereafter on September 20, 1929, a judgment was duly entered by the clerk of the superior court of Mecklenburg county decreeing that the plaintiffs had a lien upon the property of said Kelly for the sum of $1,400 "effective on and from 28 November, 1928." The judgment of the clerk was attached as an exhibit to the complaint. Thereafter, on January 7, 1932, the plaintiff by motion and order duly made the Fidelity & Deposit Company of Maryland a party to this suit.

The defendants demurred to the complaint upon the ground that, as it appeared that materials and labor for the project had been furnished by Carrigan, "that the alleged claim of lien is personal to said H. B. Carrigan and is statutory and is not the subject of assignment, and that said plaintiff has not legal capacity to institute said action." The defendant further demurred upon the ground of misjoinder of parties and causes of action, asserting that the Fidelity & Deposit Company of Maryland was an unnecessary and improper party, and also upon the ground that the cause of action attempted to be set up against said Deposit Company of Maryland was not connected with any cause of action alleged against the other defendants.

At the hearing, the plaintiff took a voluntary nonsuit as to the Fidelity & Deposit Company of Maryland, and thereupon the trial judge overruled the demurrers of the other defendants, from which judgment said defendants appealed to the Supreme Court.

H. L. Taylor and J. M. Shannonhouse, both of Charlotte, for appellants other than T. D. Kelly.

C. H. Gover, of Charlotte, and William T. Covington, Jr., of Raeford, for appellee.

BROGDEN J.

1. Can the assignee of a valid claim of a laborer and materialman file, perfect, and enforce a lien upon the land upon which said labor and material was performed and furnished?

2. Does the complaint state a cause of action against the trustee in the deed of trust and the purchaser at the sale thereunder?

C. S. § 2440, provides that any laborer or materialman may furnish to the owner "an itemized statement of the amount owing to such laborer *** and any person may furnish to such owner *** an itemized statement of the amount due him for materials furnished for such purposes. Upon the delivery of such notice to such owner or his agent the person giving such notice is entitled to all the liens and benefits conferred by law," etc. C. S. § 2441, provides that all sums due to a laborer or materialman, "as shown in the itemized statement rendered to the owner, shall be a lien on the building *** without any lien being filed before a justice of the peace or the superior court."

In the case at bar the complaint and the exhibit declares that Carrigan, the materialman, had an entire contract for the fixed sum of $1,400 for work and labor, and that "said claim was duly assigned to the plaintiff." The demurrer, of course, admits this allegation, but challenges the legal sufficiency of the assignment upon the ground that only Carrigan, the materialman, could perfect the lien upon the premises, as the lien was personal to the laborer or materialman, and could not be perfected or enforced by his assignee.

The general trend and policy of the law, as interpreted and pronounced in this state, has recognized and sanctioned the assignments of all ordinary business contracts. The legislative sanction for such...