Morganton Hardware Co. v. Morganton Graded Schools

• Decision Date: 23 December 1909
• Citation: Morganton Hardware Co. v. Morganton Graded Schools, 151 N.C. 507, 66 S.E. 583 (N.C. 1909)
• Parties: MORGANTON HARDWARE CO. v. MORGANTON GRADED SCHOOLS et al.
• Court: North Carolina Supreme Court

66 S.E. 583

151 N.C. 507

MORGANTON HARDWARE CO. v. MORGANTON GRADED SCHOOLS et al.

Supreme Court of North Carolina

December 23, 1909

Appeal from Superior Court, Burke County; Justice, Judge.

Action by the Morganton Hardware Company against the Morganton Graded Schools and others.From a judgment for defendantsplaintiff appeals.Affirmed.

J. T Perkins, S. J. Ervin, and Riddle & Huffman, for appellant.

Avery & Ervin, for appellees.

WALKER J.

This case was before us at the last term and will be found reported in 150 N.C. 680, 64 S.E. 764.Counsel agreed then as the briefs on file in this court show, that the real question involved was whether the plaintiffs were entitled to liens upon the graded school building, and virtually conceded that, if they were not, the plaintiffs had not made out their case, and the judgment below was wrong.It may also be said that, if the reversal of the judgment in that appeal affected injuriously the plaintiffs' rights, they should have brought the matter to the attention of this court by a petition to rehear, which they have not done.This was also virtually an admission that the judgment of this court was right, otherwise the plaintiff would have asked that it be reheard or reviewed, or called the alleged inadvertence to the attention of the court, so that it might be corrected provided there was any inadvertence.But there was not.In the former opinion the court confined the discussion solely to the very point which counsel agreed was the one presented in the case, and to which their arguments in this court were addressed.We will not, though, place our decision entirely upon the ground just stated, but will also discuss and decide the case upon its merits as if the case were here upon an order for a rehearing.

We decided before that a public building, such as a graded school, is not the subject of a lien under our statute.Chapter 48, §§ 2016-2057, Revisal 1908.Our decisions, as well as those of other states, support this view.Gastonia v. McEntee-Peterson Eng. Co.,131 N.C. 36342 S.E. 858;Snow v. Commissioners,112 N.C. 335, 17 S.E. 176;1 Phillips on Mech. Liens(3d Ed.)§§ 179, 179a.The other cases supporting the principle were cited in our former opinion.Even a cursory perusal of our statute(Revisal 1908, c. 48) will make it plainly appear that a subcontractor or a person who furnishes materials for the construction of the building has no claim against the owner apart from the claim he acquires by virtue of his lien after notice to the owner, and before he settles with the contractor.The statute was not intended to change the well-settled general principle that there must be privity of contract before any liability by one person to another can arise.We know that this general principle has its exceptions, arising out of the peculiar nature of the cases to which they apply.Gorrell v. Greensboro Water Supply Company,124 N.C. 328, 32 S.E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598;Gastonia v. Engineering Co., supra;Wadsworth v. Concord,133 N.C. 594, 45 S.E. 948;Jones v. Water Co.,135 N.C. 554, 47 S.E. 615;Voorhees v. Porter,134 N.C. 591, 47 S.E. 31, 65 L. R. A. 736.In the case last cited the authorities are collected and the application of the rule and its exceptions discussed.One person cannot make another his debtor without his consent or the sanction of the law.It is true that a lien generally speaking implies the existence of a debt, the payment of which is secured by it, but it does not follow always, and conversely, that a debt implies the existence of a lien.The latter arises by contract of the parties or by some provision of the law, common or statute.Revisal 1908, §§ 2019, 2020, and 2021, c. 48, clearly import, by their words, that the subcontractor or materialman, if he gives the required notice, shall have a lien, and, when he acquires a lien by giving the proper notice, the owner of the property upon which the lien rests becomes his debtor to the amount owing by the owner to the contractor at the time of the notice, and not exceeding the debt.If there are more creditors than one, then they can recover only their pro rata share of what is due by the owner to the contractor at the time of the notice.The language of section 2021 is perhaps the strongest in favor of the plaintiff's contention in this case.But it will be observed that the closing words of that section distinctly qualify and explain what precedes.They are as follows: "Upon the delivery of such notice to such owner or his agent, the person giving such notice shall be entitled to all the liens and benefits conferred by this section or by any other law of this state, in as full and ample a manner as though the statement had been furnished by the contractor, architect or such other person."Section 2022 further elucidates this question, and shows clearly what the Legislature meant."Sec. 2022.Sums Due by Statement, a Lien.The sums due to the laborer, mechanic or artisan for labor done or due the person furnishing materials, as shown in the itemized statement rendered to the owner, shall be a lien on the building, vessel or railroad built, altered or repaired, without any lien being filed before a justice of the peace or the superior court."Who can successfully assert, after reading the sections quoted, that it was, or could have been, the purpose and intent of the Legislature to give the subcontractor a simple action of debt against the owner when they had never been brought into contractual relations with each other.The contract of the materialman or subcontractor was with the contractor, and not with the owner, and the materialman has no direct claim against the owner as his creditor under the contract, or by any known principle of law.He may subject the debt due by the owner to the contractor, when he has acquired no lien under the statute, in certain cases, by process of the law, such as an attachment or supplementary proceedings, and, in the latter case, after reducing his claim to judgment and complying with the necessary procedure; or, if he has acquired a lien on the debt by contract with the owner or by any provision of the law, he may subject it by suit to the payment of the debt.Under the statute, his right, as against the owner, must be worked out through the lien it gives him upon the property of the owner, after notice of his claim and to the extent of his claim, provided it does not exceed what is due the contractor by the owner.It would seem to be unnecessary to cite authorities for our construction of the statute.In the case of Walker v....