Lowery v. Haithcock

79 S.E.2d 204 (1953) 239 N.C. 67

LOWERY
v.
HAITHCOCK et al.

No. 458.

Supreme Court of North Carolina.

December 16, 1953.

Teague & Johnson and Bunn & Bunn, Raleigh, for plaintiff appellee.

A. L. Purrington, Jr., and Charles H. Young, Raleigh, for defendant appellant.

BARNHILL, Justice.

Defendant loan company, by its appeal, presents two primary questions for decision: (1) Is there sufficient evidence to support a finding that the feme defendant, owner of the land, was a party to the contract with plaintiff, and (2) does plaintiff's notice and claim of lien substantially comply with the requirements of the statute so as to make it a lien upon the locus? Both questions must be answered in the affirmative.

There is very substantial, uncontradicted testimony tending to show that the contract was the contract of Mrs. Haithcock. She was present at the preliminary conferences, except the first, both at her home and at the home of the plaintiff. At the last conference about the store building, her husband told plaintiff that they would accept his terms and he could proceed with the work. She was present and the circumstances are such as to compel the conclusion that he, with her consent, spoke for her as well as for himself. Then, after the construction was begun, she frequently visited the premises, suggested and agreed on changes in the plans and in the material to be used. These and other circumstances appearing of record compel the conclusion that the feme defendant was a party to and is bound by the contract with plaintiff, under which he constructed the two buildings. Indeed, this is admitted in her answer and she further admits liability for certain extras furnished by plaintiff.

That plaintiff was entitled to file a lien on the premises as prescribed by statute to secure any balance that may be due him under the contract is not denied by appellant. But it does stressfully contend that plaintiff failed to perfect his lien. That is, it argues that the notice was not filed within the time prescribed by the statute and the statement attached to the notice is not itemized as required by statute, G.S. § 44-38.

Under the law, to be effective as a lien relating back to the date the work was begun, the notice of lien must be filed in the office of the clerk of the Superior Court of the county in which the land is located within six months from and after the date the work was completed. And the claim must specify in detail the work done and the material furnished. G.S. § 44-38; Equitable Life Assurance Society v. Basnight, 234 N.C. 347, 67 S.E.2d 390. And the claimant must institute his action to enforce the lien within six months from the date of the filing of the notice of claim of lien. G.S. §§ 44-43, 44-48, subd. 4; Equitable Life Assurance Society v. Basnight, supra; Norfleet v. Tarboro Cotton Factory, 172 N.C. 833, 89 S.E. 785. Whether the action was instituted within this time limit is not at issue.

All the testimony tends to show that the work was begun 26 June 1950; that the store was completed about 25 October, and the whole contract was completed 10 November 1950. The notice of claim of lien was filed in March 1951. Therefore—except as hereinafter noted— any contention that plaintiff did not comply with the time requirements of the statute is without substantial merit.

The decisive question relates to the sufficiency of the statement of labor, time, and materials furnished. Does this comply with the statute which provides that the notice of claim "shall be filed in detail, specifying the materials furnished or (and) labor performed, and the time thereof"? G.S. § 44-38.

The statute does not require a listing of material item by item, or the labor hour by hour. Yet it demands more than a mere summary statement such as "To balance due on account for material and labor due for building one house in Fountain, the total amount of such account being $250, upon which she has paid $100, leaving a balance of $150, with interest from 1 January, 1911." Jefferson & Bros. v. Bryant, 161 N.C. 404, 77 S.E. 341; Cook v. Cobb, 101 N.C. 68, 7 S.E. 700; Wray v. Harris, 77 N.C. 77.

It does require a statement in sufficient detail to put parties who are or may become interested in the premises on notice as to the labor performed and material furnished, the time when the labor was performed and the material was furnished, the amount due therefor, and the property upon which it was employed. In other words, there must be a substantial compliance with the requirements of the statute. King v. Elliott, 197 N.C. 93, 147 S.E. 701; Fulp & Linville v. Kernersville Light & Power Co., 157 N.C. 157, 72 S.E. 867; Cameron v. Consolidated Lumber Co., 118 N.C. 266, 24 S.E. 7.

In the Cameron case last cited, the claim filed was in these words: "J. S. Cameron, owner and possessor, to D. A. Cameron— 1894, October 22: To 1221/2 days of labor as sawyer at his sawmill on Jumping Run creek, in Harnett county, and at his old mill, from 1st October, 1893 to August 31, 1894, $137.24. (Signed) D. A. Cameron, Claimant." In deciding whether there was a sufficient bill of particulars to meet the requirement that the claim shall be filed in detail, the Court said: "We think the bill filed is a reasonable and substantial compliance with the statute. No one need misunderstand it who should become interested in the property."

We conclude, therefore, that the statement attached to and forming a part of plaintiff's notice and claim of lien, except as to a few items, is, under our decisions, a substantial statement in detail and a sufficient compliance with the statute.

Appellant, however, challenges the validity of the charge for a drilled well included in the bill of particulars or statement attached to the notice of claim. This item is listed "Heater Well Company, $787.50." Neither the nature of the material nor the date it was furnished is disclosed. Only from the word "Well" used in the name of the company may we surmise the nature of the "material furnished." Furthermore, the evidence clearly shows that the contract for the well was entirely separate and distinct from the original contract and was completed more than six months prior to the date the notice of claim was filed.

Moreover, there is no evidence the contract for the well was the contract of the feme defendant, or that it was authorized by her. Plaintiff testified he never mentioned it to Mrs. Haithcock, that Mr. Haithcock wanted a well drilled but Mr. Heater would not accept a contract from him, and that he, Lowery, signed the contract.

There are other items of costs incurred in furnishing the well not specified as such in the notice of claim which make the total costs of the well $1190.67. This amount must be deducted from the lien on authority of King v. Elliott, supra.

There are other individual items which, standing alone, fail to comply with the statute. Some of them are discussed in defendant's brief on the contention, however, that the claim of lien as a whole is not sufficiently specific. The defendant, by tendering an issue as to the Heater Well Company item, challenged the validity of the lien as to the same. However, otherwise, the defendant only put in issue the validity of the lien as a whole. Insofar as we have been able to ascertain, no individual item, other than the charge for the well, is the subject of exception. The record affords us no opportunity to consider the elimination of any one or more of them. The notice of claim, generally speaking, is in substantial compliance with the statute and, except as noted, must be upheld.

A lien, such as the one here at issue, must be supported by a debt which arose out of a contract. It was necessary, therefore, for plaintiff to prove his contract with Mrs. Haithcock and his debt arising thereunder. What better evidence could he desire than the testimony or admissions of the debtor? Certainly then the court committed no error in overruling defendant's objection to the admissions made by the original defendants in their answer as to the debt due and owing plaintiff.

We have carefully examined the other exceptive assignments of error. They are without sufficient merit to require discussion. Likewise, we have examined the authorities cited and relied on by defendant and find that they are distinguishable. Our former decisions have liberalized the lien statute upon which plaintiff relies—perhaps beyond the original intent. Even so, we must apply the statute as heretofore construed by this Court.

The judgment for the defendant in the amount found by the jury is affirmed. However, so much thereof as declares it to be a lien upon the locus must be modified. The plaintiff is entitled to a lien in the amount of the debt less the cost of the well, to wit, $7340.30, with interest.

Modified and affirmed.