Goldston v. RANDOLPH MACHINE TOOL COMPANY , 245 N.C. 226 ( 1956 )

95 S.E.2d 455 (1956) 245 N.C. 226

Ashley GOLDSTON
v.
RANDOLPH MACHINE TOOL COMPANY, Inc., and W. D. Smith and wife, Jeanette H. Smith.

No. 527.

Supreme Court of North Carolina.

December 12, 1956.

Ottway Burton, Asheboro, for plaintiff, appellant.

G. E. Miller, Asheboro, for defendants W. D. Smith and wife, Jeanette H. Smith, appellees.

HIGGINS, Justice.

The plaintiff alleged and offered evidence tending to show (1) he performed labor and furnished material as subcontractor in the construction of a new dwelling which the corporate defendant contracted to build for the individual defendants; (2) the contractor failed to pay for the work done; (3) the plaintiff filed a claim with the individual defendants, or their agent, as provided in G.S. §§ 44-6 to 44-9, before they completed payment to the contractor; (4) they failed and refused to pay the plaintiff his pro rata share of the amount due on the contract.

The plaintiff's evidence, when considered in the light most favorable to him, is sufficient to raise a jury question as to whether he filed his claim in time to share in the payments made to the subcontractors or if a proper claim was not filed, whether the defendants' agent waived the requirement. Economy Pumps, Inc., v. F. W. Woolworth Co., 220 N.C. 499, 17 S.E.2d 639; Guilford Lumber Mfg. Co. v. Holladay, 178 N.C. 417, 100 S.E. 597; Charlotte Pipe & Foundry Co. v. Southern Aluminum Co., 172 N.C. 704, 90 S.E. 923.

The defendants constituted Attorney Miller their agent to settle the claims by prorating the payments among the subcontractors. The plaintiff had the right to show by Mr. Miller, if he could, that the claim was filed or that filing was waived. There is nothing to indicate the examination would relate to any confidential communications. When the court refused to permit the examination, the plaintiff had no opportunity to ask competent questions and to have the answers placed in the record. This was error.

As is customary in reversing a nonsuit, we refrain from discussing the evidence, except to the extent necessary to show the reason for the conclusion reached. Harrison v. Kapp, 241 N.C. 408, 85 S.E.2d 337; Pavone v. Merion, 242 N.C. 594, 89 S.E.2d 108. The judgment of involuntary nonsuit is

Reversed.

JOHNSON, J., not sitting.