Pearce-Young-Angel Co. v. . Sternberg

Stacy, C. J. In the face of the finding that appellant’s claim was not filed with the owner until after the last payment had been made to *22 the contractor, which is not challenged by any exception (and which means in the light of the record that the surety or indemnitor completed the building at the instance of the owner and not for and on behalf of the contractor), we fail to see any error in the judgment, as it affects the rights of the owner and said claimant, of which the latter can complain. The liability of the owner for appellant’s claim is the only question presented by the appeal. When the owner has paid the contractor in full, prior to receipt of notice of claim from a laborer or materialman for work done on or material furnished and used in the construction of a building, there is no provision in the statute whereby such laborer or materialman may acquire a lien against the property, or hold the owner liable for the value of such claim. Rose v. Davis, 188 N. C., 355, 124 S. E., 576. Appellant is not demanding judgment against the contractor, and the surety or indemnitor, while apparently participating in the trial, and has filed a brief in this Court, seems not to have been named in the summons, nor did it file any pleading in the cause. Appellant makes no point of the fact that the small amount paid into court by the plaintiff will be consumed in costs and other claims. In this view of the record, it becomes unnecessary to discuss the liability of the surety or indemnitor, debated on oral argument and in briefs. Affirmed.