Dixon v. Ipock

193 S.E. 392, 212 N.C. 363, 1937 N.C. LEXIS 316

Opinion

DeviN, J.

An examination of the complaint would seem to justify defendants’ demurrer ore tenus interposed in the court below and in this Court, for it is nowhere alleged that at the time the notice of material-man’s claim was given defendants there was anything due the contractor. The remedies by statutory liens, authorized by sections 2437, 2438, 2440, and 2442 of the Consolidated Statutes, under which plaintiffs’ lien was filed and this action brought, are available only “before the owner shall have paid the contractor.” Rose v. Davis, 188 N. C., 355, 124 S. E., 576.

While upon the question whether at the time of notice to owner there is anything due the contractor, the burden of proof is upon the owner (Lumber Co. v. Hayworth, 205 N. C., 585, 172 S. E., 194), the evidence in this case shows affirmatively that there was nothing due, and hence, under the statutes, plaintiffs’ claim against the owners, the defendants Moseley, failed, and judgment of nonsuit was properly entered.

Judgment affirmed.