Beeson Hardware Co. v. Burtner

Pee Cueiam. The judgment to which the defendant, D. H. Burtner, excepted, and from which he appealed to this Court, is supported by the facts established by the verdict of the jury on the trial of this action. The judgment must be affirmed, unless there was error in the *745 trial of tbe issues submitted to the jury. Rutherford Hospital v. The Florence Mills, 186 N. C., 554, 120 S. E., 212. We find no error in the trial. There was no substantial controversy as to the facts. In Granite Co. v. Bank, 172 N. C., 354, 90 S. E., 312, it is said: “It is immaterial whether the contractor had been paid up in full for work done to the time notice was filed by the materialman. The fact that he continued to work under the same contract for the .exterior of the building and thereafter was paid $5,262 for work done under the said contract will make the fund thereafter earned subject to the ma-terialman’s lien. Brick Co. v. Pulley, 168 N. C., 371, 84 S. E., 513.” The instant case is readily distinguishable from Electric Co. v. Electric Co., 197 N. C., 495, 149 S. E., 858. In that case, no payment for work done on the building, under the contract, after receipt of notice, was made by the owner, whereas in the instant case, the jury found upon defendant’s admission that he paid to the contractors, after notice by plaintiff of its claim, a sum in excess of the amount of the claim. The fact that the work for which these payments were made was done after notice, is immaterial. The work was done by the contractors, under the contract, and the payments were made for this work. The contractors did not abandon the contract until after this work was done, and until after these payments were made. See Mfg. Co. v. Blaylock, 192 N. C., 407, 135 S. E., 136, where it is said: “The policy of the lien law is to protect subcontractors and laborers against loss for labor done and materials furnished in building, repairing or altering any house or other improvement on real estate, to the extent of the balance due the original contractor at the time of notice to the owner of claims therefor, but it is not provided that the owner shall be liable in excess of the contract price, unless he continue to pay after notice of claim from the subcontractor or laborer, and then only to the extent of such payments after notice.” C. S., 2438. No error.