Mebane Lumber Co. v. Avery & Bullock Builders, Inc.

154 S.E.2d 665 (1967)

270 N.C. 337

MEBANE LUMBER COMPANY v. AVERY & BULLOCK BUILDERS, INC., Thadius A. Coates, Jr., and wife, Darlene Coates, George S. Goodyear, Trustee of the Goodyear Mortgage Corporation.

No. 531.

Supreme Court of North Carolina.

May 24, 1967.

*667 Sanford & Cannon, Raleigh, for plaintiff.

Lassiter, Leager, Walker & Banks, Raleigh, for defendant Goodyear, Trustee, and Goodyear Mortgage Corp.

Jordan, Morris & Hoke, Raleigh, for defendants Coates.

BRANCH, Justice.

It is well established in this jurisdiction that for there to be an effective labor or materialman's lien relating back to the date the work was begun or the materials furnished, the claim of lien must be filed in the office of the Clerk of Superior Court of the county in which the land is located within six months from and after the date the work was completed or the materials furnished. And the claim shall specify in detail the work done, the materials furnished, and the time thereof, provided: if a special contract for such labor performed is made by the parties, or if such materials and labor are specified in writing, it shall be decided agreeably to the terms of the contract, provided the terms of the contract do not affect the lien for such labor performed or materials furnished. G.S. § 44-38; G.S. § 44-39; Lowery v. Haithcock, 239 N.C. 67, 79 S.E.2d 204; Equitable Life Assurance Society of United States v. Basnight, 234 N.C. 347, 67 S.E.2d 390.

Whether the action was instituted within the time limit is not at issue, and plaintiff has alleged no facts tending to show a contract between it and the demurring defendants which would entitle it to a personal judgment against them. Rather, the decisive question relates to the sufficiency of the statement in the claim of lien of materials furnished. Its sufficiency is before us on defendants' demurrers.

"* * * The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. We are required on a demurrer to construe the complaint liberally with a view to substantial justice between the parties, and every reasonable intendment is to be made in favor of the pleader. G.S. § 1-151; Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690; Cathey v. Southeastern Construction Company, 218 N.C. 525, 11 S.E.2d 571; Joyner v. P. L. Woodard & Co., 201 N.C. 315, 160 S.E. 288." McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.

*668 A defect in a lien cannot be cured by amendment after the filing period has expired, nor by alleging the necessary facts in the pleadings in an action to enforce the lien. Jefferson & Bros. v. Bryant, 161 N.C. 404, 77 S.E. 341, and Cook v. Cobb, 101 N.C. 68, 7 S.E. 700.

In determining the sufficiency of a claim of lien, this Court has made a distinction as to the particularity required in specifying the materials furnished, prices charged, and the time of furnishing where the claim is based on a divisible contract or open account, and where the materials or labor were contracted for as an entirety. The more particular statement is required in the case of a divisible contract or open account. However, where the contract is to complete a building for one sum, it is not required that the labor and materials furnished shall be itemized. Jefferson & Bros. v. Bryant, supra. And where the plaintiff contracted to do certain work for the defendant for "a stated amount," or to furnish materials for a "gross sum," the contract is entire, and particular itemization of the claim of lien is not required, as is required for divisible contracts for materials or labor. King v. Elliott, 197 N.C. 93, 147 S.E. 701. However, where itemization is required, a listing of materials item by item or the labor hour by hour is not required, but there must be a substantial compliance with the statute, i. e., a statement in sufficient detail to put interested parties, or parties who may become interested, on notice as to labor performed or materials furnished, the time when the labor was performed and the materials furnished, the amount due therefor, and the property on which it was employed. Lowery v. Haithcock, supra; King v. Elliott, supra; Cameron v. Consolidated Lumber Co., 118 N.C. 266, 24 S.E. 7; Cook v. Cobb, supra.

The claim of lien is the foundation of the action to enforce the lien, and if such lien is defective when filed, it is no lien. Jefferson & Bros. v. Bryant, supra. Thus, the answer to the question presented by this appeal must be found in the claim of lien and the exhibits made a part thereof.

It is necessary to determine whether the contract which is the basis of the lien is an entire contract or a severable or divisible contract. In the case of Wooten v. Walters, 110 N.C. 251, 14 S.E. 734, Chief Justice Merrimon, speaking for the Court, said:

"A contract is entire, and not severable, when, by its terms, nature, and purpose it contemplates and intends that each and all of its parts, material provisions, and the consideration are common each to the other, and interdependent. Such a contract possesses essential oneness in all material respects. The consideration of it is entire on both sides. Hence, where there is a contract to pay a gross sum of money for a certain definite consideration, it is entire, and not severable or apportionable, in law or equity. Thus, where a particular thing is sold for a definite price, the contract is an entirety, and the purchaser will be liable for the entire sum agreed to be paid. And so, also, when two or more things are sold together for a gross sum, the contract is not severable. The seller is bound to deliver the whole of the things sold, and the buyer to pay the whole price, in the absence of fraud. * * * "On the other hand, a severable contract is one in its nature and purpose susceptible of division and apportionment, having two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, nor is it intended by the parties that they shall be. Hence an action may be maintained for a breach of it in one respect, and not necessarily in another, or for several breaches, while in other material respects it remains intact. In such a contract, the consideration is not single and entire as to all its several provisions as a whole until it is performed; it is capable of division and apportionment. * * * If it appear that the purpose was to take the whole or none, then *669 the contract would be entire; otherwise it would be severable."

It is alleged here that there was an "entire and indivisible contract." The use of the terms "entire" and "indivisible" is not an averment of fact, but is simply a statement which expresses the conclusion of the pleader. The demurrers interposed by defendants do not admit conclusions of law. Gillispie v. Goodyear Service Stores, 258 N.C. 487, 128 S.E.2d 762.

The claim of lien alleges that pursuant to the terms of the contract entered into between claimant and defendant, claimant furnished certain materials and performed certain labor in the erection and improvement of a building; that the owners agreed to pay sums set out in Exhibit "A" thereto attached and made a part of the notice, and that claimant began to furnish said materials and perform said labor on 15 March 1966 and finished the same on or about 25 April 1966. There is no showing that any labor was performed.

Although the record does not identify any exhibit as "Exhibit A", the exhibits in the record, when taken with and made a part of the claim of lien, do not reveal the nature of the materials furnished or when the owner agreed to pay the sums alleged to be due. Nor do they allege facts to show there was a contract to complete a building for one sum or to furnish materials for a gross sum. There is no inference of a single consideration. In fact, the exhibits offered by claimant, being on different dates and for varying unidentified "loads," negative any inference of an entire contract or a complete job for a fixed price. There is nothing before the Court to make it appear that the purpose was to take the whole or none, or that there was a purpose to sell the materials as an inseparable whole. The claim of lien, including the statements attached thereto, being insufficient to show the existence of an entire and indivisible contract, it was incumbent upon plaintiff to substantially specify in detail the materials furnished, as required by G.S. § 44-38. Clearly claimant has failed to comply, even substantially, with the requirements of the statute.

The judgment of the court below is

Affirmed.