Price v. Asheville Gas Co. , 207 N.C. 796 ( 1935 )

The following instruction, assigned by the defendant as error, discloses the theory upon which the cases were tried:

"The plaintiffs claim that they went there and did some work on the property of the defendant in the way of painting, and that the defendant got the benefit of this work, and, nothing else appearing, they ought to be entitled to the value of the work by reason of the fact that it was done and accepted by the defendant on the quantum meruit idea."

The law is otherwise with respect to subcontractors who seek to recover, not of the contractor, their principal debtor, but of the owner, and to enforce laborers' liens. C. S., 2437; Rose v. Davis, 188 N.C. 355,124 S.E. 576; Foundry Co. v. Aluminum Co., 172 N.C. 704, 90 S.E. 923. Thus, it would seem, the theory of the trial, upon the facts developed, was not accordant with the rights of the parties.

It follows, therefore, that a new trial must be awarded. It is so ordered.

New trial.