Nash v. . Southwick , 120 N.C. 459 ( 1897 )

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's 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 (460) 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 kind." 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 constructing 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 to show such work by contract between him and the defendant, Southwick. In fact, the evidence was that he was not employed to do such work. Where there is no evidence the court should not leave the issue to be passed upon by the jury. Covington v. Newberger, 99 N.C. 523;State v. Powell, 94 N.C. 965. The plaintiff was not entitled to a lien on the property for his services as bookkeeper. Whitaker v. Smith,81 N.C. 340; Cook v. Ross, 117 N.C. 193. The judgment, in so far as it declares that the plaintiff is entitled to a laborer's lien upon the lease of the defendant, Southwick, in the hotel property to the amount of $267.96, with interest thereon, is erroneous, and is reversed, as (461) is also that part of the judgment ordering a sale of the property for the purpose of having the lien satisfied. The balance of the judgment is

Affirmed.

Cited: Moore v. Industrial Co., 138 N.C. 307; Bruce v. Mining Co.,147 N.C. 644; Alexander v. Farrow, 151 N.C. 323; Stephens v. Hicks,156 N.C. 241.