Huske Hardware House v. Percival

Brogden, J. Was tbe letter of 23 November, 1929, sufficient “notice” to tbe owner to support a lien upon ber land? A lien upon a building is a creature of statute, and the right thereto is based upon notice to the owner before settlement is made. The nature of the notice contemplated by the pertinent statutes is described in Construction Co. v. Journal, 198 N. C., 273, 151 S. E., 631. The Court, after referring to certain decisions upon the subject, declared: “These decisions, in substance, require that the notice or itemized statement must be filed in detail, specifying the materials furnished or labor performed and the time thereof. Such notice or itemized statement must sbow substantial compliance with the statute. However, if it is an entire contract for a gross sum the particularity otherwise required is not essential.” Manifestly, C. S., sections 2438, 2439, 2440, 2441, and 2442 must be construed together. The plaintiff relies upon Bain v. Lamb, 167 N. C., 304, 83 S. E., 466, and Hardware Co. v. Burtner, 199 N. C., 743, 155 S. E., 733. In the Bain case, supra, the acknowledgment of the receipt of a letter expressly promising to pay the amount of the claim filed, was held to constitute a waiver of the failure to submit an itemized statement. Moreover, in the Burtner case, supra, the original record discloses tbat an itemized statement was furnished the owner by the materialmen. Consequently, the Court is of the opinion tbat the ruling of the trial judge was correct. Affirmed. ClaeKSON, J., dissents.