Bain v. . Lamb

*308 , Allen, J. Tbe exception to tbe refusal to nonsuit tbe plaintiff cannot be sustained. Tbis action is not for tbe purpose of enforcing a lien, but to collect an amount for material furnished, alleged to be due by reason of tbe statutory duty imposed on tbe defendant to retain sucb amount from tbe balance due tbe contractor, upon compliance with the statute (Rev., sec. 2020) by tbe plaintiff. Tbe letter of tbe plaintiff to tbe defendant of date 1 November, 1909, gave full notice of the amount claimed to be due, and if tbe defendant would otherwise have been entitled to greater particularity in the- statement of tbe claim, her letters of 2 November, 1909, and of 9 November, 1909, in tbe last of which she writes that she will reserve tbe iDlaintiff’s bill “for settlement,” are a clear waiver of tbe right. Tbe reasonable inference from tbe letters is that tbe defendant admits tbe correctness of tbe claim of tbe plaintiff agaiiist tbe contractor, and that she agreed, after completing tbe bouse, to pay it out of any balance due, and she ought not, therefore, to be permitted to say now that she ought to have bad more specific information, and particularly when tbe record does not disclose that there is a real controversy as to tbe amount and value of tbe material furnished. Tbe letters also furnish evidence, in tbe nature of an admission, that tbe material was used in building tbe bouse of tbe defendant, as otherwise there would be no reason for promising to reserve tbe amount of tbe claim out of tbe balance due tbe contractor, and tbe evidence of tbe plaintiff tended to prove that tbe reasonable cost of completing tbe bouse would be about $200, which when added to tbe amount paid tbe contractor before notice of tbe plaintiff’s claim ($1,100) and tbe total deducted from tbe contract price of $2,100, would leave a balance due on tbe contract- of $800. "We therefore conclude that tbe -defendant has waived tbe right to demand a more particular statement of tbe claim of tbe plaintiff, that there is evidence that tbe material furnished was used in the bouse of the defendant, and that there is some evidence that there was something due on tbe contract price. Tbe first part of tbe charge excepted to, standing alone, would be objectionable, because it lays down no rule for ascertaining tbe amount due on tbe contract, and furnished no guide for reaching a conclusion upon tbe alternative propositions contained in tbe instruction; but it would not be fair to tbe judge nor to tbe parties, and not in accordance with law, to so consider it. We must take tbe charge as a whole, and when tbis is done we find that the contention of tbe defendant was fully presented, and that tbe jury could not have failed to understand that tbe amount due tbe contractor was the contract price, less tbe amount *309 paid, added to. tbe reasonable cost of completing tbe bouse, and tbat if tbis exceeded tbe claim of tbe plaintiff, and tbe materials furnished were used in tbe bouse,’ be should recover tbe amount of bis claim; and if less, tbat be could only recover tbe amount due tbe contractor. Tbis is tbe correct rule (27 Cyc., 102; Supply Co. v. Eastern Star Home, 163 N. C., 513), and when read in connection with tbe part of tbe charge excepted-to, leaves it free from criticism. It is also manifest from tbe verdict tbat tbe jury applied tbis rule and tbat they allowed tbe defendant every item of expense she testified to, and in addition about $40, presumably for defects in shingles and inferior workmanship which she described, but to which she affixed no value. The verdict of the jury is for $681 and the uncontradicted evidence is that the material furnished by the plaintiff was worth $170.31. Tbe verdict does not, therefore, represent the value of the material, and must be the amount due on the contract by the • defendant. ILow was this ascertained? The contract price was $2,100, on which had been paid $1,100, leaving a balance due of $1,000. The defendant testified that in order to complete the house she paid $36.50 for lumber, $6.50 for ceiling, $30 for mantels, $5 to have leaks repaired and for work on the flue, and that the labor for putting on ceiling was worth $4, and the cost of painting was $200, making a total of $282. She also testified the shingles were defective, but did not state tbe amount of the damage by reason thereof, and if $37 be allowed for this defect, and this is added to the other items of $282, making a total of $319, and this total is deducted from the sum of $1,000 remaining due on tbe contract, we have $681, the balance due by tbe defendant after allowing her all she paid tbe contractor and every item of expense she testified to, and this is the verdict. The defendant has been in possession of the bouse five years and was in position at the trial to give accurate information to the jury of expenses incurred and of defects in material and workmanship. The jury allowed no interest, and we find no error in the other parts of the charge excepted to. No error.