Nash v. Southwick

• Decision Date: 30 April 1897
• Citation: 120 N.C. 459,27 S.E. 127
• Court: North Carolina Supreme Court
• Parties: NASH v. SOUTHWICK et al.

27 S.E. 127

120 N.C. 459

NASH

v.SOUTHWICK et al.

Supreme Court of North Carolina.

April 30, 1897.

Mechanics' Liens—Scope of Employment— Bookkeeper.

1. Manual labor in the reconstruction of an hotel building is not within the scope of an employment of one to act as clerk and bookkeeper, and to "make himself generally useful, " during such reconstruction, and hence does not entitle the employe to a laborer's lien.

2. One acting as bookkeeper for the reconstruction of a building is not entitled to a laborer's hen.

Appeal from superior court, Buncombe county; Bryan, Judge.

Action by Homer W. Nash against C. H. Southwick and L. P. MeLoud, assignee of C. W. Southwick. There was a judgment for plaintiff, and defendant McLoud appeals. Reversed in part.

F. A. Sondley, for appellant.

Moore & Moore, for appellee.

MONTGOMERY, J. Southwick, the lessee of the property known as "Hotel Berkley, " in the city of Asheville, was in the fall of 1893 engaged in having the property repaired and remodeled, and employed the plaintiff, according to his testimony, as his general clerk and bookkeeper, and further, in witness' own language, the plaintiff was "to make himself generally useful during such reconstruction of the Hotel Berkley, " at the fixed salary of $80 per month. The plaintiff was by the contract to be at the hotel all the time. It was agreed between Southwick and the plaintiff that, when the repairs on the hotel should be completed, the latter was to be the clerk and steward at the hotel. The witness Southwick also stated "that the plaintiff was engaged as a laborer in the actual work of repairing and reconstructing the hotel about one-half of the time during which he was employed by the witness, but he was not employed to do work of that bind." The deposition of the defendant was read in evidence, and it contained nothing contradictory of or inconsistent with the matters testified to by Southwick.

His honor instructed the jury "that if, from all the evidence in the case, they were satisfied that the plaintiff was employed to aid in the actual work of reconstructing the hotel, and that he, in pursuance of the contract of employment entered into between him and the defendant Southwick, did actually aid in the work of reconstructing the hotel, they should answer the first issue ("Is the plaintiff entitled to a lien upon the leasehold property in the Hotel Berkley, described in the complaint?"), "Yes." There was error, for the reason that there was no evidence tending...