Roberts & Johnson Lumber Co. v. Horton , 232 N.C. 419 ( 1950 )

61 S.E.2d 100 (1950) 232 N.C. 419

ROBERTS & JOHNSON LUMBER CO. et al.
v.
HORTON et al.

No. 167.

Supreme Court of North Carolina.

September 27, 1950.

W. E. Anglin, Burnsville, for plaintiffs, appellants.

L. B. Prince, Hendersonville, for defendants, appellees.

STACY, Chief Justice.

The question for decision is whether the evidence suffices to overcome the demurrer. The trial court thought not, and we agree.

It is clear that under the decisions in Rose v. Davis, 188 N.C. 355, 124 S.E. 576, and Payne v. Flack, 152 N.C. 600, 68 S.E. 16, the plaintiffs can enforce no lien against the building for materials furnished the contractor. The owners paid in advance for more than what the contractor had earned up to the time he quit the job, and at no time thereafter was he entitled to further compensation under his agreement. This defeats the plaintiffs' lien. Dixon v. Ipock, 212 N.C. 363, 193 S.E. 392; Brown v. Burlington Hotel Corp., 202 N.C. 82, 161 S.E. 735.

Additionally, however, the plaintiffs say the owners later promised to pay them for the materials which they had furnished the contractor. This, the owners deny, and the plaintiffs' evidence reveals no more than a mere verbal nude pact or a bare oral promise to pay. No consideration is shown for the promise, Stonestreet v. Southern Oil Co., 226 N.C. 261, 37 S.E.2d 676; and the statute of frauds, G.S. § 22-1, is also in plaintiffs' way.

The record discloses no reversible error, hence the conclusion and judgment of the court below will be upheld.

Affirmed.