Fulp v. Kernersville Light & Power Co.

Clark, C. J. The Baltimore Supply Company furnished the defendant for its light and power plant material consisting of insulators, wires, cross-arms, transformers, locust pins, oak brackets, and other electrical supplies and equipments. The wires furnished were attached to the dynamo, but were blown down, disconnected, rolled up, and are now in the possession of the receiver in this action, which is a creditor’s bill. *155 Tbe appellant properly itemized its claim and filed tbe same, but tbe appellee denies tbat tbe materials are sucb as entitle tbe Baltimore Supply Company to obtain a lien under tbe statute, because tbe materials sold were not put in tbe plant of tbe Light and Power Company so as to lose tbeir identity, but were articles wbicb did not become a part of tbe building or realty, and bence were not “materials furnished” in contemplation of Revisal, 2016. Tbe referee found as a fact tbat tbe transformers and wire were strung on tbe electric light poles and tbat tbe oak brackets, locust pins, cross-arms, and other items are not shown to have become any part of tbe building, and held tbat sucb material did not come within tbe meaning and intent of tbe statute. This finding of fact and conclusion.of law were approved by tbe judge. -In this we find no error. James v. Lumber Co., 122 N. C., 157; Electric Co. v. Power Co., ib., 599. Both these cases, it is true, were under Code, 1255, now Revisal, 1131. The word “material” has' been stricken out of this last section, but tbe construction placed upon it while it was in tbat section is applicable to tbe same word in Revisal, 2016. In James v. Lumber Co., supra, it was said in tbe concurring opinion: “This is tbe test: where tbe material furnished to keep tbe business going is something tbat is consumed in tbe use, as coal, for instance, or labor performed, or a tort committed, wbicb is intangible and unmortgageable, or is sucb material as goes into and makes part of tbe realty or tbe product in sucb a way as to be indistinguishable from tbe mass, as timber put into a building or cotton tbat is manufactured, these things come within tbe purview of tbe remedy provided by The Code, sec. 1255; but where tbe subject-matter for which the debt is incurred keeps its identity, as an engine, even though built into tbe wall, this section does not apply, because tbe party bad bis remedy by retaining title or taking a mortgage on tbe property sold.” In Electric Co. v. Power Co., 122 N. C., 599, tbe above was approved, tbe Court saying tbat articles perfect in themselves and not put into a building so as to lose tbeir identity would not constitute “material” upon which tbe seller would have *156 priority over mortgage bonds, since the seller, could “protect himself by retaining title, as by conditional sale or by taking a mortgage on the property sold.” The reasoning in the above cases, though upon a different section of the Revisal, applies to this. In Pipe and Foundry Co. v. Howland, 111 N. C., 615, relied on by the appellant, the ppint decided was that the property of a corporation chartered for supplying water to a city is subject to a lien for materials furnished. It was admitted that the claim was sufficient in its form and in .its nature to make it a lien, and the question whether the “materials furnished” were such for which a lien would lie was not before the Court. The judgment is Affirmed. Walker, J., dissents.