North Carolina Lumber Co. v. Spear Motor Co.

• Decision Date: 27 October 1926
• Docket Number: 226.
• Parties: NORTH CAROLINA LUMBER CO. v. SPEAR MOTOR CO. et al.
• Court: North Carolina Supreme Court

135 S.E. 115

192 N.C. 377

NORTH CAROLINA LUMBER CO. v. SPEAR MOTOR CO. et al.

No. 226.

Supreme Court of North Carolina

October 27, 1926

Appeal from Superior Court, Lenoir County; Bond, Judge.

Action by the North Carolina Lumber Company against the Spear Motor Company and R. L. Blalock & Son. Default judgment against defendants R. L. Blalock & Son. From a judgment on a verdict in favor of defendant Spear Motor Company, plaintiff appeals. New trial.

Agents for undisclosed principal are personally liable.

Action to recover purchase price of lumber sold by plaintiff and used in remodeling building on lot owned by defendant Spear Motor Company, in Kinston, N. C.

On June 17, 1924, Spear Motor Company employed R. L. Blalock & Son to remodel its building, under a written contract, the material portions of which are as follows:

"The contractor shall order all materials, furnish all construction equipment and sufficient skilled and common labor force which may be necessary to properly remodel or rebuild the property tenanted by the Spear Motor Company Kinston, N. C., in accordance with such plans and specific instructions as may be furnished by the owner.

"And for and in consideration of the duties, as stated above to be performed by the contractor, the owner shall pay to the contractor in legal tender of the United States of America the sum amounting to the total cost of the work, plus ten per cent. (10%). Said payment shall be made in the following manner:

"The weekly pay roll for all labor shall be submitted to the owner on Monday of each week and the owner shall immediately pay to the contractor the full amount of said pay roll.

"On or about the 1st of each and every month, the contractor shall submit to the owner all invoices for materials freight and express bills, drayage charges and bills for other such items received by the contractor during the previous month as may not appear on the weekly pay rolls, and the owner shall immediately pay to the contractor the sum amounting to the full amount of the aforesaid invoices and bills.

"Upon completion and acceptance of the work, the owner shall pay to the contractor the sum amounting to the full amount of the bills for materials, freight, express, drayage, etc., and such pay rolls for labor as may not have been previously paid, and in addition to the above, the owner shall pay to the contractor the sum equivalent to ten per cent. (10%) of the total cost of the completed work."

Thereafter R. L. Blalock & Son ordered from plaintiff a carload of flooring, which was shipped on September 11, 1924, and used by them in remodeling said building, in accordance with the terms of the written contract; the purchase price of said flooring was $593.26; the bill for same was subsequently presented to Spear Motor Company by R. L. Blalock & Son, as required by said contract, for payment; neither Spear Motor Company nor R. L. Blalock & Son have paid plaintiff for said flooring. The work under said contract has been completed by R. L. Blalock & Son and accepted by Spear Motor Company.

Spear Motor Company did not pay R. L. Blalock & Son the amount of bills for material, and of pay rolls, for remodeling said building, in cash; the said company delivered to them, on account, two automobiles, valued at between $9,000 and $10,000; on December 8, 1924, the balance due was settled by note for $2,800. No notice that plaintiff's claim for the lumber had not been paid by R. L. Blalock & Son was given to Spear Motor Company prior to its settlement with R. L. Blalock & Son.

On February 11, 1925, plaintiff filed notice and claim of lien on the lot and building of Spear Motor Company, in Kinston, N. C., in the office of the clerk of the superior court of Lenoir county; said lien was filed within six months from the date of the furnishing of said material; this action was begun within six months from the date of the filing of said lien. Judgment by default final was rendered in this action in favor of plaintiff and against R. L. Blalock & Son, on September 14, 1925. The action was tried at June term, 1926, upon the complaint of plaintiffs and the answer of Spear Motor Company. At the close of the evidence upon the facts admitted in the pleadings and by defendants during the trial, plaintiff moved for judgment. This motion was denied, and plaintiff excepted. From judgment on the verdict that defendant Spear Motor Company was not indebted to plaintiff, and that plaintiff had no lien on the lot and building owned by Spear Motor Company, plaintiff appealed to the Supreme Court.

Rouse & Rouse, of Kinston, for appellant.

Powers & Elliott and P. D. Croom, all of Kinston, for appellees.

CONNOR J.

The vital question involved in this appeal is the relationship between Spear Motor Company and R. L. Blalock & Son with respect to the work to be done by the latter for the former, under the written contract. There is no controversy as to the execution of the contract by the parties thereto, or as to its terms.

Plaintiff contends that, under the contract, R. L. Blalock & Son were agents of Spear Motor Company, and, as such agents, purchased from plaintiff the lumber which was used as material in remodeling the building; that Spear Motor Company is liable for the purchase price of said lumber, as principal; and that plaintiff has a lien on the lot and building of Spear Motor Company for the amount of the purchase price of said lumber by virtue of notice filed in the office of the clerk of the superior court. Defendant Spear Motor Company contends that R. L. Blalock & Son were independent contractors, with respect to the work done in remodeling its building, and that the company is not liable for said purchase price; that plaintiff, having failed to give said company notice as required by statute, before it had settled with said contractor, acquired no lien upon its property by the notice and claim of lien filed in the clerk's office. The issue raised by these contentions is one of law, to be determined by the court, and not of fact, to be submitted to the jury.

It is clear that Spear Motor Company would have been liable, upon the principle of respondeat superior, for a tort committed by R. L. Blalock & Son in doing the work which they had undertaken to do, under this contract, for it is expressly provided therein that R. L. Blalock & Son shall remodel the building on the lot owned by Spear Motor Company "in accordance with such plans and specific instructions as may be furnished by the owner." Spear Motor Company reserved the right, not only to direct the manner in which the work should be done, but also to specify what material should be used. The right to control the work in every detail, and at every stage, was retained by Spear Motor Company. This has been declared the vital test for determining whether a person employed to do work for another is an independent contractor, in actions to recover damages for a tort, where liability was denied by the party for whom the work was done, upon the ground that the tort-feasor was an independent contractor and not the agent or servant of such party. Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337; Cole v. Durham, 176 N.C. 289, 97 S.E. 33, 11 A. L. R. 560; Simmons v. Lumber Co., 174 N.C. 220, 93 S.E. 736; Gadsden v. Craft, 173 N.C. 418, 92 S.E. 174, 20 L. R. A. 662; Vogh v. Geer, 171 N.C. 672, 88 S.E. 874; Embler v. Lumber Co., 167 N.C. 457, 83 S.E. 740; Harmon v. Contracting Co., 159 N.C. 22, 74 S.E. 632; Hopper v. Ordway, 157 N.C. 125, 72 S.E. 839; Denny v. Burlington, 155 N.C. 35, 70 S.E. 1085; ...