Clark v. . Edwards

25 S.E. 794, 119 N.C. 115

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

ClaeK, J. :

It is true, under Section 1789 of The Gode, that where a mechanic’s or laborer’s lien, or lien for material, is filed as required, it dates bach and takes priority of all liens attaching, and against all purchases for value (though without notice) made subsequent to the beginning of the work, or furnishing the first mateiial. Burr v. Maultsby, 99 N. C., 263; Lumber Company v. Hotel Company, 109 N. C., 658. But such lien is only good for the amount due the contractor, laborer or material man, and the sub-contractor can be put in no better condition. As defendant’s counsel said forcibly and pertinently on the argument, the sub-contractor can only sue into the contract. Accordingly The Gode, Section 1801, affords the sub-contractor giving notice of his claim a right to a lien “ not exceeding the amount due the original contractor at the time of notice given,” and Section 1802 confers on the sub-contractor the right to enforce such lien if the owner fails “ to retain ” the amount thereof “ out of the amount due the said contractor.” In this case the plaintiff, who was sub-contractor, did not give the owner of the property notice of his claim till after the contractor, who was paid up to that date, had failed in business and abandoned the work. Neither at that time nor at any time thereafter was anything due the contractor — the owner completing the building himself. There was therefore no sum due the contractor out of which the owner should have “ retained ” the plaintiff’s claim. The plain language and intent of the statute controvert the plaintiff’s contention, winch, if correct, would prevent owmers from paying anything to contractors till twelve months after the completion of their work. The mere fact that laborers and sub-contractors are working on the building is not notice to the owner not to pay out to the contractor till it is ascertained how much is due by the contractor to each and every sub-contractor, laborer, material man, &c. The statute requires that the sub-contractor must give notice, and till he does this he does not have a lien, and the owner is justified in making payment to the contractor.

No Error.