Contract Steel Sales, Inc. v. Freedom Construction Co.

362 S.E.2d 547, 321 N.C. 215, 1987 N.C. LEXIS 2564
Supreme Court of North Carolina·Decided December 2, 1987·No. 154PA87·Published·Cited by 9 cases

Opinions

EXUM, Chief Justice.

The question presented is whether plaintiff subcontractor is entitled to a materialmen’s lien under Part 2 of Chapter 44A of our general statutes. The answer depends on whether plaintiff furnished materials at the site of improvement as contemplated by N.C.G.S. § 44A-18(1) and, if so, whether plaintiff complied with the notice requirements of N.C.G.S. § 44A-19. We conclude plaintiff complied with both provisions and affirm the Court of Appeals’ decision that plaintiff is entitled to assert its lien.

The facts are not in dispute. On 20 July 1983, Contract Steel Sales, Inc. (Steel Sales) subcontracted with Freedom Construction Company (Freedom) to provide structural, reinforcing and fabricated miscellaneous steel in connection with Freedom’s work as general contractor for E. I. Du Pont de Nemours and Company (Du Pont). The subcontract obligated Steel Sales to deliver fourteen categories of materials for a single lump-sum subcontract price.

In August 1983 Steel Sales began delivery of the materials. The first items delivered, wire mesh and reinforcing steel, were accepted by Freedom, incorporated into the improvement, and partial payment was made to Steel Sales on its subcontract.

The subcontract also called for Steel Sales to provide approximately twenty-three tons of structural and fabricated miscellaneous steel. On 28 September 1983 the entire twenty-three tons of steel were delivered to the site and were inspected by a Du Pont quality assurance inspector. Following Du Pont’s inspection, Freedom refused to incorporate these materials into the improvement and informed Steel Sales that it believed defects existed in the steel itself. Thereafter, all the materials, except those already incorporated into the building, were returned to the Steel Sales plant for “reworking.” Several weeks later a second Du Pont inspector traveled to the Steel Sales plant and inspected the steel. [217]*217Following the second inspection the steel was delivered by Steel Sales to the jobsite. Freedom and Du Pont again refused to allow the materials delivered by Steel Sales to be incorporated into the improvement.

On 11 November 1983 a discussion was held among representatives of Freedom, Du Pont and Steel Sales about reworking the steel a second time. As a result of this discussion all of the steel was taken to another company, Pine State Steel (Pine State), for reworking. However, the steel was not refabricated by Pine State, was not redelivered to the jobsite and was not used in the construction of the improvement. Instead, Pine State fabricated other steel which was used to erect the improvement. The twenty-three tons of steel furnished by Steel Sales were left at the Pine State plant.

On 6 December 1983, following Freedom’s acceptance of the steel from Pine State, the president of Steel Sales wrote a letter to Du Pont claiming a lien on any funds owed by Du Pont to Freedom. This letter was received by Du Pont in the early part of December. Notwithstanding receipt of the letter, Du Pont did not withhold the $50,000 it owed on its contract with Freedom; and on 5 March 1984 Du Pont paid Freedom this amount in exchange for Freedom’s release of all liens and claims against Du Pont.

On 18 April 1984 Steel Sales filed complaint against defendants based upon two claims for relief. The first claim for relief alleged that Freedom had breached its subcontract with Steel Sales by refusing to pay the contract amount of $50,008.91.1 The second claim for relief was against Du Pont. Steel Sales alleged that “sums in excess of $50,008.91 are being retained by Du Pont and are owed by Du Pont to Freedom arising out of Freedom’s general construction work and materials furnished to the Project.” Steel Sales further alleged that a notice of claim of lien (ie., the letter dated 6 December 1983) had been received by Du Pont and that Du Pont was personally liable to Steel Sales because Du Pont had paid Freedom despite the notice of claim of lien.

[218]*218Defendants answered Steel Sales’ complaint. Freedom denied that Steel Sales had performed its subcontract. Du Pont generally denied all allegations that it had received a notice of a claim of lien from Steel Sales.

On 27 March 1986 the parties agreed to stipulations of fact and agreed to “waive a jury trial as to the issues of whether the letter mailed by Steel Sales is a valid notice of claim of lien under N.C.G.S. Sec. 44A-19 and whether Steel Sales is entitled to a lien under the provisions of Part II, Article II, Chapter 44A, North Carolina General Statutes.” On 4 April 1986 the trial court, sitting without a jury, concluded that plaintiff was not entitled to a lien and that the letter of 6 December 1983 did not substantially comply with the notice requirements of N.C.G.S. § 44A-19. The Court of Appeals reversed.

I

We first address the issue of whether Steel Sales, pursuant to its subcontract with Freedom, “furnished . . . materials at the site of the improvement” to Du Pont’s property as contemplated by N.C.G.S. § 44A-18G). We conclude it did.

N.C.G.S. § 44A-18G), by which Steel Sales seeks to assert its lien, provides in pertinent part as follows:

(1) A first tier subcontractor who furnished labor or materials at the site of the improvement shall be entitled to a lien upon funds which are owed to the contractor with whom the first tier subcontractor dealt and which arise out of the improvement on which the first tier subcontractor worked or furnished materials.

In this case, it is uncontroverted that Steel Sales is the first tier subcontractor, Freedom is the contractor and Du Pont is the owner of the improvement. The subcontract obligated Steel Sales to deliver fourteen categories of materials for a single lump-sum subcontract price.

In August 1983 the first delivery of materials was accepted by Freedom and was incorporated into the improvement. These materials were accepted by defendants and plaintiff has been paid for them. The only materials at issue here are the twenty-three tons of structural and fabricated miscellaneous steel which were [219]*219delivered to the jobsite on 7 and 8 November 1983. For some reason, yet to be established in this litigation, this steel was removed from the site some time before Steel Sales sought to perfect its lien and was never incorporated into the improvement.2

Defendants contend that in order to meet the “furnishing” requirement under N.C.G.S. § 44A-18(1), the materials must be not only delivered to the site of the improvement but must also be incorporated into the improvement itself. At least, defendants argue, there can be no lien when, as here, the materials had been physically removed from the site at the time the lien was sought to be perfected. The Court of Appeals rejected these contentions, holding that materials are furnished within the meaning of N.C.G.S. § 44A-18(1) when, pursuant to a subcontract, materials are delivered to the site of improvement.

We agree with, and affirm, this holding. In Queensboro Steel Corp. v. East Coast Machine & Iron Works, 82 N.C. App. 182, 346 S.E. 2d 248, disc. rev. denied, 318 N.C. 508, 349 S.E. 2d 865 (1986), the Court of Appeals said:

North Carolina’s current mechanics’ and materialmen’s lien statutes apparently do not require actual incorporation of materials into the improvement ....

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Contract Steel Sales, Inc. v. Freedom Construction Co., 362 S.E.2d 547, 321 N.C. 215, 1987 N.C. LEXIS 2564 (N.C. 1987).

362 S.E.2d 547 (Contract Steel Sales, Inc. v. Freedom Construction Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Contract Steel Sales, Inc. v. Freedom Construction Co.
362 S.E.2d 547 (Supreme Court of North Carolina, 1987)