Campbell v. . Hall

Adams, J. In Hildebrand v. Vanderbilt, 147 N. C., 639, it is said: “By virtue of Revisal, 2028 (C. S., 2470), tbe lien of a laborer or materialman must be filed in twelve months [now six], but by Revisal, 2022 (C. S., 2441) it can be acquired without filing if a statement of tbe amount due is rendered tbe owner. However acquired, tbe lien is lost if action tbereon is not begun in six months. Revisal, 2027, 2023 (C. S., 2474, 2479). Tbe plaintiff, not having begun this action within six months after giving tbe statement of bis claim to tbe owner on 1 October, 1900, has no lien, but be can maintain this action against tbe owner personally, under Revisal, 2021 (C. S., 2439, 2440), wbicb makes it the “duty of tbe owner to retain from tbe money thus due tbe contractor a sum not exceeding tbe price contracted for,” to be paid to the laborer, mechanic, or materialman whenever an itemized statement *466 of the amount due him is furnished by either qf such parties or the contractor.” See, also, C. S., 2441. Section 2469 of the Consolidated Statutes prescribes the method of filing a lien against both personal property and real estate, it designates the court in which the lien shall be filed, and requires a statement in detail of the materials furnished or the labor performed. Section 2470 provides that notice of the lien shall be filed at any time within six months after the completion of the labor or the final furnishing of the materials. For the enforcement of the lien referred to in these sections the claimant must bring his action within six months after notice of the lien is filed. C. S., 2474. But by virtue of section 2441 if an itemized statement be rendered to the owner as provided in the preceding section, the sum due the laborer or the person furnishing materials shall be a lien, although his claim is not filed with the clerk or with the nearest justice of the peace, under section 2469. So, when sections 2439, 2440, and 2441 are complied with, the claimant is not restricted to a period of six months for bringing his action. These sections do not create a technical lien, but they confer a right to have an accounting in a civil action, and a judgment for the amount found to be due by the owner to the contractor. Foundry Co. v. Aluminum Co., 172 N. C., 704, 706; Mfg. Co. v. Andrews, 165 N. C., 285, 294; Hardware Co. v. Graded Schools, 151 N. C., 507; Perry v. Swanner, 150 N. C., 141. The defendants have cited Granite Co. v. Bank, 172 N. C., 354, and Norfleet v. Cotton Factory, 172 N. C., 833; but, as we understand them, these cases are not in conflict frith the construction given the various statutes referred to in Hildebrand v. Vanderbilt and Foundry Co. v. Aluminum Co., supra. As the plaintiff's action may not be defeated by his failure to bring suit against the defendants within six months after giving notice to the defendants, the judgment, we think, is free from error. No error.