Annotate this Case

102 S.E.2d 257 (1958)

247 N.C. 762

RANLO SUPPLY COMPANY v. Henry L. CLARK and wife, Nancy Clark.

No. 169.

Supreme Court of North Carolina.

March 5, 1958.

*258 Berlin H. Carpenter, Jr., and Whitener & Mitchem, Gastonia, for plaintiff-appellant.

Carpenter & Webb, and John G. Golding, Charlotte, for defendants-appellees.

DENNY, Justice.

The plaintiff contends that under the facts and circumstances revealed on this record, it has an implied contract with the defendants to pay for the materials it furnished to Smith to build the Floyd Clark house on the premises of the defendants.

It would seem that the judgment entered below must be sustained for several reasons.

The evidence, in our opinion, is insufficient to support the plaintiff's contention that it has an implied contract with the defendants to pay for the materials furnished by it for the construction of the house in question. It is clear from the evidence that the plaintiff never entered into any agreement with these defendants to pay for the materials furnished or discussed the subject with them until after the materials were purchased by Smith and used by him in the construction of the house.

In the case of General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828, 832, this Court, speaking through Parker, J., 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. Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324, 326. In that case it is said: `Mere knowledge that work is being done or material *259 furnished on one's property does not enable the person furnishing the labor or material to obtain a lien.'" Boykin v. Logan, 203 N.C. 196, 165 S.E. 680; Honeycutt v. Kenilworth Development Co., 199 N.C. 373, 154 S.E. 628; Charlotte Pipe & Foundry Co. v. Southern Aluminum Co., 172 N.C. 704, 90 S.E. 923; Weathers & Perry v. Cox, 159 N.C. 575, 76 S.E. 7; Boone v. Chatfield, 118 N.C. 916, 24 S.E. 745; Wilkie v. Bray, 71 N.C. 205.

The evidence unequivocally establishes the fact that there was a contract between John F. Smith and Floyd Clark whereby Smith was to furnish the labor and materials necessary to construct the house for a fixed sum. The plaintiff's evidence clearly establishes this fact. Moreover, whatever contract was made with the plaintiff with respect to the purchase of these materials was made with Smith and not with the owners of the property.

This Court, in the case of Morganton Manufacturing & Trading Co. v. Andrews, 165 N.C. 285, 81 S.E. 418, 420, Ann.Cas.1916A, 763, said: "* * * it is a well-recognized principle that there can be no implied contract, where there is an express contract between the parties in reference to the same subject-matter." Lawrence v. Hester, 93 N.C. 79.

Here the plaintiff alleges a contractual relationship with the defendants in both the lien notice and in its complaint, and seeks to enforce its alleged lien pursuant to the provisions of G.S. § 44-1. Such being the case, the plaintiff would be estopped from asserting any lien as a sub-contractor pursuant to the provisions of G.S. § 44-6, G.S. § 44-8, and G.S. § 44-9. Economy Pumps, Inc., v. F. W. Woolworth Co., 220 N.C. 499, 17 S.E.2d 639; Doggett Lumber Co. v. Perry, 212 N.C. 713, 194 S.E. 475. Moreover, there is no evidence in this record to the effect that plaintiff made any demand on these defendants for payment of the balance now claimed to be due and unpaid, until after the original contract price for the house had been paid to the contractor out of funds provided by these defendants through a loan secured by a deed of trust on the premises involved. Norfolk Building Supplies Co. v. Elizabeth City Hospital Co., 176 N.C. 87, 97 S.E. 146; Charlotte Pipe & Foundry Co. v. Southern Aluminum Co., supra; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 109 N.C. 658, 14 S.E. 35.

Furthermore, the fact that the Building and Loan Association, which made the loan to finance the construction of the house, issued one of its vouchers payable to Henry Clark, J. F. Smith, and the plaintiff, in the sum of $1,000, on 7 January 1955, which voucher was endorsed by Henry Clark and J. F. Smith and delivered to the plaintiff, is not sufficient to establish a contract between these defendants and the plaintiff where the building was being construced by one of the payees under a contract for a turnkey job at a fixed price.

In our opinion, the ruling of the court below should be upheld, and it is so ordered.