Clark v. Morris

162 S.E.2d 873 (1968)

2 N.C. App. 388

J. A. CLARK, trading and doing business as J. A. Clark Plumbing Company v. William J. MORRIS and wife, Erlene S. Morris, W. T. Emmart, Trustee, First Citizens Bank and Trust Company.

No. 685SC252.

Court of Appeals of North Carolina.

September 18, 1968.

*874 Addison Hewlett, Jr., and Jerry L. Spivey, by Addison Hewlett, Jr., Wilmington, for plaintiff appellant.

Burnett & Burnett, by Gilbert H. Burnett, Wilmington, for defendant appellees.

BROCK, Judge.

Plaintiff assigns as error the entry of nonsuit as to Erlene S. Morris.

Plaintiff argued in his brief that he contracted with both the defendants who were engaged in the business of building and selling houses. He offered the testimony of William J. Morris on direct examination which tended to show that title to some of the lots purchased, and upon which houses were built, were placed in the names of both defendants; that Erlene S. Morris signed notes and mortgages for loans made to build houses on a speculative basis because the bank required her signature; that when second mortgages were taken to secure a part of the purchase price, the notes were made payable to both defendants; that the wife answered telephone calls at home and if there was a message for her husband she transmitted it to him; that defendants filed a joint personal income tax return. On cross-examination William J. Morris stated he operated as a sole proprietorship, and that his wife was not his business partner. In our opinion such evidence was not sufficient to permit submitting to the jury an issue of whether the defendants were acting as partners in the building of the house for which plaintiff furnished labor and materials.

Plaintiff offered no evidence that Erlene S. Morris entered into a contract with the plaintiff. Yet he testified that he knew that the land against which he sought to perfect a lien was owned by Mr. and Mrs. Morris by the entirety. A husband is not jure mariti the agent of his wife, and if such agency is relied upon it must be proven. Pitt v. Speight, 222 N.C. 585, 24 S.E.2d 350.

We are of the opinion that the question has been put to rest in General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828. In that case defendant Douglass was engaged in the business of building and selling houses. The real estate was owned by him and his wife by the entirety. Mr. Douglass made all the arrangements for the heating system which was installed by the plaintiff. The Superior Court held in the Douglass case, supra, and the Supreme Court affirmed, that the contract was with Mr. Douglass and Mrs. Douglass was not a party to it and did not affirm or ratify it; thus, the Court did not give judgment against her and there was no lien against the property.

In Douglass the Court said: "A laborers' and materialmen's lien arises out of the relationship of debtor and creditor, and it is for the debt that the lien is created by Statute. Without a contract the lien does not exist * * * Mere knowledge that work is being done or material furnished on one's property does not enable the person furnishing the labor or material to obtain a lien."

Counsel for plaintiff, with considerable fervor, urges that nonsuit of the case against the wife creates an easy method by which unscrupulous husbands can defraud creditors who furnish labor and material for entirety property. However, there seems to be no danger of such catastrophe so long as the creditor exercises reasonable judgment in determining with whom he is dealing and upon whose property he is furnishing labor and materials. A contract with *875 the owners is the simple expedient. In this case the plaintiff knew the property was owned by husband and wife, but he chose not to secure the wife's concurrence or signature; he chose to rely solely upon the husband's promise to pay.

We hold that the defendant Erlene S. Morris was not a party to the contract with plaintiff; thus, he was not entitled to a lien against the entirety property. Judgment of nonsuit was properly entered in the case against Erlene S. Morris.

Affirmed.

BRITT and PARKER, JJ., concur.