PETE WALL PLUMBING COMPANY v. Harris

147 S.E.2d 202 (1966)

266 N.C. 675

PETE WALL PLUMBING COMPANY, Inc. v. Bruce HARRIS.

No. 689.

Supreme Court of North Carolina.

March 23, 1966.

*207 Harry Rockwell, Greensboro, for plaintiff appellant.

W. L. Shoffner, Burlington, and Spencer B. Ennis, Graham, for defendant appellee.

PARKER, Chief Justice.

Plaintiff and defendant offered evidence. "In ruling upon a motion for an involuntary judgment of nonsuit under the statute after all the evidence on both sides is in, the court may consider so much of the defendant's testimony as is favorable to the plaintiff or tends to clarify or explain evidence offered by the plaintiff not inconsistent therewith; but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by the plaintiff." Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

Considering plaintiff's evidence in the light most favorable to it, and considering *208 only so much of defendant's evidence as tends to clarify or explain evidence offered by plaintiff not inconsistent therewith, these facts clearly appear: Plaintiff furnished and installed in a new house being constructed on land owned by Robert Alston and wife, Catherine D. Alston, a hot air heating system and plumbing and extras, and when the cost of this material and labor was not paid for, it filed notice of a laborer's and materialman's lien on the premises, and instituted an action against Robert Alston and wife, Catherine D. Alston, in the Superior Court of Alamance County to recover from them the cost of such labor and material furnished in the amount of $2,937.43 with interest, and to have the judgment declared a lien on the property described in its complaint, upon the theory, as alleged in its complaint:

"3. That on or about the 15th of February, 1961, the defendants [Robert Alston and wife, Catherine D. Alston] entered into an entire and indivisible contract with the plaintiff, whereby the plaintiff was to furnish certain materials and perform certain labor for the defendants in connection with the construction of a dwelling house upon certain land belonging to the defendants and hereinafter described; that in accordance with said contract plaintiff furnished to the defendants certain materials and performed certain labor for which the defendants agreed to pay the sum of $2,937.43, as per itemized statement attached hereto and marked `Exhibit A'; that said materials were furnished to the defendants between February 28, 1961, and October 4, 1961."

Plaintiff employed a reputable and able lawyer, Mr. Moseley, to institute this suit. Defendants Alston filed no answer. Plaintiff prosecuted this action to judgment, and the judgment entered therein by the Superior Court of Alamance County orders and adjudges as follows:

"1. That the plaintiff have and recover of the defendants the sum of Two Thousand Nine Hundred Thirty-seven and 43/100 Dollars ($2,937.43) with interest thereon from the 4th day of October, 1961, until paid; "2. That said judgment be and the same is hereby declared to be a lien against the property described in plaintiff's complaint and that said lien against said property dates from the 28th day of February, 1961, and the date upon which the plaintiff first furnished labor and materials under the indivisible contract heretofore referred to."

When plaintiff employed Mr. Moseley to institute this action against Robert Alston and wife, it was in possession of every available fact out of which any implication was drawable as to the person or persons with whom it contracted to furnish the material and do this work. There is no evidence at all that any fraud or imposition was perpetrated on plaintiff by anyone in respect to the identity of the person or persons with whom it contracted. Plaintiff deliberately took the position that its contract was with Robert Alston and wife.

When plaintiff did not collect its judgment against the Alstons, and without discovering anything thereafter in respect to the identity of the person or persons with whom it contracted, it employed different counsel and instituted the instant action against defendant Harris on the theory, as alleged in the complaint in the instant case, that it and defendant Bruce Harris "entered into a contract whereby the plaintiff was to install the plumbing and heating in a residence being constructed by the defendant for one Robert Alston. * * *" Pete Wall, president of plaintiff, testified in the instant case: "I sued Bruce Harris on April 23, 1963, and employed Mr. Rockwell to bring this suit for the identical thing for which I am now suing (sic) Mr. Alston." It seems manifest that this sentence contains a typographical error and that what the defendant *209 testified to is, "I sued Bruce Harris on April 23, 1963, and employed Mr. Rockwell to bring this suit for the identical thing for which I sued Mr. Alston."

In Economy Pumps, Inc. v. F. W. Woolworth Co., 220 N.C. 499, 17 S.E.2d 639, the Court said: "Furthermore, where a claimant elects to file notice of a lien on the theory that material was furnished to a subcontractor he is estopped under the doctrine of election of remedies from thereafter asserting that such material was sold direct to the owner. Doggett Lumber Co. v. Perry, 212 N.C. 713, 194 S.E. 475."

In Doggett Lumber Co. v. Perry, 212 N.C. 713, 194 S.E. 475, the second headnote in our Reports states:

"Conceding that plaintiff's evidence established that plaintiff materialman entered into a contract for the sale of material direct to defendant owner, the evidence also established that after plaintiff learned that the dwelling had been constructed under contract for a turnkey job, plaintiff gave notice as a subcontractor and thereby asserted a lien on the property under C.S., 2437. Held: By electing to assert a lien as a subcontractor under C.S., 2437, plaintiff is estopped from thereafter asserting a lien as a contractor or material furnisher under C.S., 2433, and plaintiff is entitled to recover of defendant only the amount due the contractor by the owner on the date notice was given as a subcontractor or material furnisher to the contractor."

The case of Scholl v. Baynes, 125 Misc. 114, 210 N.Y.S. 153, affirmed 220 App.Div. 755, 222 N.Y.S. 894, is apposite. In that case the Court held that plaintiffs, who sued wife for work performed on the theory that she was the principal, with the knowledge of every available fact from which any implication was drawable, could not, after failing to collect on judgment, sue husband on the theory that wife acted as his agent. In 210 N.Y.S. 153 the court said: "It seems to a majority of this court to be quite plain that, under the well-established doctrine of election applicable to such cases as this, the plaintiffs conclusively staked their hopes and rested their chances upon the claim that the wife contracted as principal, and not as agent."

It seems to be the general rule that where a party, with knowledge of his rights and of the facts and without imposition or fraud on the part of his adversary, prosecutes one remedial right to judgment or decree, whether the judgment or decree is for or against plaintiff, such prosecution of the action to judgment or decree is a decisive act which constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. It has been held that the rule is the same, even though plaintiff fails to secure full satisfaction by means of the remedy adopted. United States v. Oregon Lumber Co., 260 U.S. 290, 43 S. Ct. 100, 67 L. Ed. 261; 28 C.J.S. Election of Remedies § 14; 18 Am.Jur., Election of Remedies, § 20.

Plaintiff, with knowledge of its rights and of the facts in respect to the identity of the person or persons with whom it contracted, and without imposition or fraud on the part of its adversary in respect to the identity of the person or persons with whom it contracted, having elected to institute a civil action against Robert Alston and his wife to recover for labor and materials furnished and installed in a new house being constructed on their land and to enforce a laborer's and materialman's lien on the house, on the theory that such labor and material were furnished and installed pursuant to a contract between it and Robert Alston and his wife, and having prosecuted such action to a judgment in its favor for all it prayed for in its complaint against the Alstons, such action by plaintiff constitutes a conclusive election of remedy barring plaintiff from thereafter resorting to the inconsistent remedy that such labor and material were furnished under a contract with Bruce Harris, defendant here.

*210 Plaintiff contends that defendant, by taking a deed of trust from the Alstons securing their note to him and foreclosing the deed of trust, and buying in the property and from the proceeds paying himself and Harris Lumber Company and leaving it with nothing, and by representing to it that he (Bruce Harris) was taking no security for himself, was guilty of inequitable conduct which bars him from asking the aid of a court of equity to bar its right to maintain its instant action upon the doctrine of election of remedies. Even if Harris is guilty of inequitable conduct as contended by plaintiff, as above stated, plaintiff has no evidence that Harris was guilty of any inequitable conduct, or of any imposition or fraud, in respect to the identity of the person or persons with whom plaintiff contracted to furnish and install a hot air heating system and plumbing and extras in the new house being constructed on the Alstons' premises. Plaintiff's contention is untenable.

Plaintiff's assignments of error to the exclusion and admission of evidence fail to comply with our Rules, because they, and all of them, do not disclose the questions sought to be presented without the necessity of going beyond the assignments of error themselves to the record, and such failure to comply with the Rules does not present the exceptions for review. Balint v. Grayson, 256 N.C. 490, 124 S.E.2d 364. However, we have gone through the record, and prejudicial error does not appear in the admission and exclusion of evidence.

The judgment of compulsory nonsuit below is

Affirmed.

MOORE, J., not sitting.

PLESS, J., and RODMAN, Emergency Justice, took no part in the consideration or decision of this case.