Roberts & Johnson Lumber Co. v. Horton

Stacy, C. J. The question for decision is whether the evidence suffices to overcome the demurrer. The trial court thought not, and we agree. It is clear that under tbe decisions in Rose v. Davis, 188 N.C. 355, 124 S.E. 576, and Payne v. Flack, 152 N.C. 600, 68 S.E. 16, tbe plaintiffs can enforce no lien against tbe building for materials furnished tbe contractor. Tbe owners paid in advance for more than what tbe contractor bad earned up to tbe time be quit tbe job, and at no time thereafter was be entitled to further compensation under bis agreement. This defeats tbe plaintiffs’ lien. Dixon v. Ipock, 212 N.C. 363, 193 S.E. 392; Brown v. Hotel Corp., 202 N.C. 82, 161 S.E. 735. Additionally, however, tbe plaintiffs say tbe owners later promised to pay them for tbe materials which they bad furnished tbe contractor. This, tbe owners deny, and tbe plaintiffs’ evidence reveals no more than a mere verbal nude pact or a bare oral promise to pay. No consideration is shown for tbe promise, Stonestreet v. Southern Oil Co., 226 N.C. 261, 37 S.E. 2d 676; and tbe statute of frauds, G.S. 22-1, is also in plaintiffs’ way. The record discloses no reversible error, hence tbe conclusion and judgment of tbe court below will be upheld. Affirmed.