Amarr Co. v. J. M. Dixon, Inc.

BRITT, J. The question presented is whether a condition in a bond, made pursuant to the requirements of G.S. 44-14, that “[n]o suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the'last of the materials for which said claim is made * * *” is invalid as contrary to the requirements of G.S. 44-14. The statute (G.S. 44-14) provides in material part as follows: “* * * Any laborer doing work on said building and material-man furnishing material therefor and used therein, under a contract or agreement between said laborer or materialman and the principal contractor or subcontractor has the right to sue on [481] said bond * * *. Every bond given by any contractor to any county, city, town or other municipal corporation for the building, repairing or altering of any building, public road or street, as required by this section shall be conclusively presumed to have been given in accordance therewith, whether such bond be so drawn as to conform to the statute or not, and this statute shall be conclusively presumed to have been written into every such bond so given. * * *” (Emphasis added.) The purpose of this statute has been clearly declared. “The statute, G.S. 44-14, was designed and intended to provide protection for laborers and materialmen furnishing labor or material for the construction of public works commensurate with that afforded them while engaged in private construction. It prescribed the minimum protection that must be furnished but does not undertake to stipulate the maximum. * * *” Owsley v. Henderson, 228 N.C. 224, 45 S.E. 2d 263. Also Steel Corp. v. Brinkley, 255 N.C. 162, 120 S.E. 2d 529. “Commensurate” is defined as “equal in measure or extent.” Webster’s Third New International Dictionary (1968). A clause seeking to limit the protection afforded the laborer or materialman to less than that afforded the same persons when engaged in private construction violates the meaning and intent of the statute. In so doing, it does not meet the prescribed minimum. We are required by the statute to treat the bond as including the statute. The bond, therefore, must give, as a minimum, that protection commensurate with the protection afforded workers in private construction. It is well known that in private industry a laborer or a materialman has six months after the completion of the labor or the final furnishing of materials within which to file his notice of lien. G.S. 44-39. The ninety-day requirement here is not commensurate protection. We do not deem it necessary to determine whether G.S. 44-14 would allow notification beyond the six-months period above mentioned. For the reasons stated, the judgment of the superior court is Affirmed. MallaRD, C.J., and Parker, J., concur.