Widenhouse v. Russ

67 S.E.2d 287 (1951)

234 N.C. 382

WIDENHOUSE v. RUSS et al.

No. 377.

Supreme Court of North Carolina.

October 31, 1951.

*289 W. S. Bogle, Concord, Morton & Williams, Albemarle, Marion B. Morton, Albemarle, for defendant-appellant.

E. Johnston Irvin, Hartsell & Hartsell, Concord, for plaintiff-appellee.

WINBORNE, Justice.

The first assignment of error presented by appellant, based upon her exception to the ruling of the trial court in striking out all of paragraphs two, three and five of her further answer and defense is well taken.

While the averments in paragraphs two and three are in the main evidentiary, they were not stricken for that cause. And the averments in paragraph five are sufficient to constitute a denial that she was indebted to defendant Russ in any amount on account of construction of building in question, and to admit of proof in the respects averred.

The statute G.S. § 44-6 in pertinent part provides all subcontractors who furnish material for the building of any building or other improvement on real estate, have a lien on said house and real estate for the amount of material furnished, when notice thereof shall be given as provided by statute, which may be enforced as provided by the statute, but that "the sum total of all the liens due subcontractors and materialmen shall not exceed the amount due the original contractor at the time of notice given". That is, the statute gives the lien against the property enforceable to the extent of the amount due from the owner to the contractor. Borden Brick & Tile Co. v. Pulley, 168 N.C. 371, 84 S.E. 513; Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555.

Hence it is material to ascertain and determine what amount, if any, was due by the owner, Lelia L. Smart, to the contractor Russ at the time of notices given. The ruling of the court in striking out the averments contained in the paragraphs in question, denied to her a substantial right.

If the contractor were suing the owner for the balance of contract price for the construction of the building in question, the owner could set up as a defense, claim for damages arising out of the failure of the contractor to construct the building in accordance with the terms of the contract.

And where the lien arises under the provisions of G.S. § 44-6 it does so by substituting the claimant to the rights of contractor limited as therein stated. Atlas Powder Co. v. Denton, 176 N.C. 426, 97 S.E. 372; Borden Brick & Tile Co. v. Pulley, supra.

Hence we hold that, for the purpose of ascertaining the amount due by the owner to the contractor at the time of notice given to the owner by a sub-contractor or materialman, the owner may, in a suit by such sub-contractor or materialman, set up, as a defense, any actual damages caused by the failure of the contractor to complete the building in accordance with the terms of the contract.

The cases cited and relied upon by appellee are distinguishable from, and are not controlling on case in hand.

Other assignments of error need not be considered.

For error pointed out, there must be a new trial.