King v. . Elliott

GlaeicsoN, J. The question involved: Is the lien filed by the plaintiff against the property of the defendant, G. C. Elliott, valid and enforceable, and superior to the deed of trust, executed by the defendants, G. C. Elliott and wife, to the defendant, Central Bank & Trust Company, conveying the property in controversy? We think so. C. S., 2433, is as follows: “Every building built, rebuilt, repaired or improved, together with the necessary lots on which such building is situated, and every lot, farm or vessel, or any kind of property, real or personal, not herein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same, or material furnished.” C. S., 2469, is as follows: “All claims against personal property, of two hundred dollars and under, may be filed in the office of the nearest justice of the peace; if over two hundred dollars or against any real estate or interest therein, in the office of the Superior Court clerk in any county where the labor has been performed or the materials furnished; but all claims shall be filed in detail, specifying the materials furnished or labor performed, and the time thereof. If the parties interested make a special contract for such labor performed, or if such material and labor are specified in writing, in such cases it shall be decided agreeably to the terms of the contract, provided the terms of such, contract do not affect the lien for such labor performed or materials furnished.” C. S., 2470: “Notice of lien shall be filed as hereinbefore provided, except in those cases where a shorter time is prescribed, at any time within six months after the completion of the labor or the final furnishing of the materials, or the gathering of the crops.” In McAdams v. Trust Co., 167 N. C., at p. 496, it is said: “Construing our statute on liens of mechanics and laborers, this Court held in Burr v. Maultsby, 99 N. C., 263, that the lien relates back to the time the work was commenced or the materials were furnished, and does not impair or affect encumbrances existing prior to that time but only those subsequently created.” Porter v. Case, 187 N. C., at p. 636. Harris v. Cheshire, 189 N. C., 219. *98 In Jefferson v. Bryant, 161 N. C., at p. 406-7, it is said: “This action is to enforce a lien under section 2026 of the Revisal (C. S., 2469), which requires that 'all claims shall be filed in detail, specifying the materials furnished or labor performed, and the time thereof,’ and it has been uniformly held, in construing this statute, that there must be a substantial compliance with its terms, and that the statement of time is material. Wray v. Harris, 77 N. C., 77; Cook v. Cobb, 101 N. C., 68. The headnote to the Coolc case, which is fully sustained by the opinion, is that 'it is essential to the validity of a laborer’s lien that the claim or notice which he is required to file shall set forth in detail the time when the labor was performed, its character, the amount due therefor, and upon what property it was employed; and if it is for materials furnished, the same particularity is required. Defects in these respects will not be cured by alleging the necessary facts in the pleadings in an action brought to enforce the lien.’ This rule has been very generally modified when the contract is to complete a building for one sum, and in such case it is not required that the labor performed and the materials furnished shall be itemized, but that the time of the completion of the work shall be stated. The eases are collected in the notes in 27 Cyc., 188.” In the present action it is contended by plaintiff that his claim is founded on a special contract under the statute, and it is not necessary that the claim “be filed in detail, specifying the materials furnished or labor performed and the time thereof.” That the present lien filed comes within the provisions of the statute and the decision' on this aspect in the Jefferson case, supra, viz.: “This rule has been very generally modified when the contract is to complete a building for one sum, and in such case it is not required that the labor performed and the materials furnished shall be itemized, but that the time of the completion of the work shall be stated.” “Regardless of the conflict of authority as to the necessity of itemization generally, it is well established that, where the work was done, or the materials furnished under an entire contract to do or furnish the same for gross sum, it is not necessary that claimant should in his lien statement itemize his account.” (Italics ours), 40 C. J., p. 242. “A distinction runs through the authorities in regard to the particularity required in specifying the amount and character of the work done or materials furnished, and the prices charged therefor, where the claim rests upon open account and wliere the work done or materials furnished were contracted for as an entirety. More particularity of statement is required in the former than in the latter instance.” Francis & Co., Inc., v. Hotel Rueger, Inc., 125 Va., 106, 121, 99 S. E., 690. *99 Speaking to the subject, in 18 R. C. L., at p. 927, it is said: “As to tbe manner of setting forth or stating the facts to be embodied in the lien notice, however, it need not have the definiteness of a pleading. . . . (p. 935) The statutory requirements, whatever they may be, must be substantially -complied with in order to perfect the lien. The affidavit required to verify it may be considered with the claim itself in ascertaining the sufficiency of the latter.” ¥e must construe the whole lien, claim or notice, and affidavit, on this particular attitude together. The notice sets forth: (1) “Dates at which the different items in detail were furnished, or labor done, are contained in the bill of .particulars hereunto annexed. The amount of the claim is $761.04.” (2) Bill of particulars as follows: (3) The affidavit “that the foregoing statement of account is just, true, and owing, and correct copy from claimant’s books, showing the goods sold and delivered, installed, and work done by claimants to above debtor.” Unobjected to, plaintiff testified: “The contract was for a lump sum. He had nothing to do with the number of hours I spent or the material that I used.” Webster’s Dictionary defines “install”: “To set up or fix in position for use or service.” To set up or fix in position for use or service the furnace, and the incidentals connected therewith, would take labor and material, and the furnace itself would be a considerable item in the cost. It will be presumed that the day the last item in the bill of particulars was the day the furnace was finally in the position for use ■and service. The implication from the subjects set forth in the bill of particulars is that the labor and material was used in connection with installing the furnace in plaintiff’s dwelling-house. A jury trial having been waived, the trial judge found that the plaintiff contracted with the defendant “to do certain work and furnish certain material for a stated amount,” etc. This means, of course, that the contract was entire. There was sufficient evidence to support this finding. We think the position taken by defendant too technical, under the facts and circumstances of this case, and the statute has been sub *100 stantially complied with. It is admitted by plaintiff that the four bushels of gravel at 50 cents a bushel $2.00, had nothing to do with the lump sum contract and must be deducted from the $761.04. It was said in Cameron v. Lumber Co., 118 N. C., at p. 268: “No one need misunderstand it who should become interested in the property.” The judgment below is Modified and affirmed. Stacy, C. J., dissents.