Rose v. Davis

• Decision Date: 08 October 1924
• Docket Number: 227.
• Citation: Rose v. Davis, 188 N.C. 355, 124 S.E. 576 (N.C. 1924)
• Parties: ROSE v. DAVIS ET AL.
• Court: North Carolina Supreme Court

124 S.E. 576

188 N.C. 355

ROSE v. DAVIS ET AL.

No. 227.

Supreme Court of North Carolina

October 8, 1924

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

Action by W. P. Rose against L. F. Davis and others.Judgment for plaintiff for only part of relief demanded, and plaintiff appeals.No error.

Civil action for debt against L. F. Davis and to enforce a lien upon his wife's property for materials furnished and used in the erection of a building thereon.Judgment was entered against L. F. Davis and this is not questioned, but no lien was allowed upon his wife's property, and from this part of the judgment plaintiff appeals.

Rouse & Rouse, of Kinston, and Kenneth C. Royall, of Goldsboro, for appellant.

Sutton & Greene, of Kinston, for defendantClyde N. Davis.

STACY J.

The pertinent facts, established by the verdict or not disputed are as follows:

(1) During the year 1920, the feme defendant, Mrs. Clyde N Davis, and one Samuel Abbott, were the owners and tenants in common of a lot of land in the town of La Grange, N. C.

(2) As owners they entered into a contract with L. F. Davis, husband of the feme defendant, and a contractor by trade, to erect a theater building on said lot at and for the agreed price of $15,000, paying for the same in advance.

(3) Some of the materials used in the construction of this building were purchased from the plaintiff by the defendantL. F. Davis.

(4) Upon the completion of the theater, Samuel Abbott sold his interest in the building and lot to Mrs. Clyde N. Davis.

(5) Shortly thereafter, the building was destroyed by fire, and the plaintiff attempted to file a lien against the lot and attached the insurance money paid as a result of the loss alleging a balance of $3,255.83 due him for materials furnished and used by the said L. F. Davis in the erection of the building.

(6) These materials were sold to L. F. Davis on open account and not to the owners of the property.The plaintiff himself testified:

"I sold these materials to Mr. Davis on open account, and never sold any of them to Mrs. Davis."

(7) No notice was given to Mrs. Clyde N. Davis of plaintiff's claim until after the building was destroyed by fire.The contractor had been paid in full before the building was erected.

The appeal presents the question as to whether, under the facts stated, plaintiff is entitled to enforce a lien against the property for materials furnished by him and used by the contractor in the building of said theater.We think not.Such was the direct holding in Payne v. Flack,152 N.C. 600, 68 S.E. 16.

This conclusion rests, not upon the fact that the property in question is owned by a married woman, for liens may now be acquired against the property of married women (C. S. 2434) but it is bottomed on the circumstance of no notice to the owner before settlement with the contractor (C. S. 2438).Plaintiff seeks to meet this position by saying that, as the contractor was paid in advance, he had no opportunity of giving any notice to the owner prior to settlement with the contractor, and hence it should be held that none was necessary.In answer to this, it is sufficient to say that liens are statutory, and the statute gives no lien to a subcontractor or laborer in such a case.Building Supplies Co. v. Hospital Co.,176 N.C. 87, 97 S.E. 146. C. S. 2437, in terms provides that all subcontractors and laborers who are employed to furnish, or who do furnish, labor or material for the building, repairing, or altering of any house or other improvement on real estate, shall have a lien on said house and real estate...