{
  "id": 8658816,
  "name": "HOMER W. NASH v. C. H. SOUTHWICK and L. P. McLoud, Assignee of C. H. Southwick",
  "name_abbreviation": "Nash v. Southwick",
  "decision_date": "1897-02",
  "docket_number": "",
  "first_page": "459",
  "last_page": "461",
  "citations": [
    {
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      "cite": "120 N.C. 459"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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    {
      "cite": "94 N. C., 965",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "99 N. C., 523",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8650836
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      "case_paths": [
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  "last_updated": "2023-07-14T18:07:11.774475+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HOMER W. NASH v. C. H. SOUTHWICK and L. P. McLoud, Assignee of C. H. Southwick."
    ],
    "opinions": [
      {
        "text": "MONTGOMERY, J.:\nSouthwick, the lessee of the property known as Hotel Berkley, in the City of Asheville, was, in the fall of 1893, engaged in having the property repaired and remodeled, and employed the plaintiff, according to his testimony, as his general clerk and bookkeeper, and further, id witness\u2019s own language, the plaintiff was \u201cto make himself generally useful during such reconstruction of the Hotel Berkley\u201d at the fixed salary of $80 per month.. The plaintiff was, by the contract, to be at the hotel all the time. It was agreed between Southwick and the plaintiff that, when the repairs on the hotel should be completed, the latter was to be the clerk and steward at the hotel.\nThe witness, Southwick, also stated \u201cthat the plaintiff was engaged as a laborer in the actual work of repairing and reconstructing the hotel about one-half of the time during which he was employed by the witness, but he was not employed, to do work of that kind. \u2019 \u2019 The deposition of the defendant was read in evidence, and it contained nothing contradictory of, or inconsistent with, the matters testified to by Southwick.\nHis Honor instructed the jury \u201cthat, if from all the evidence in the case, they were satisfied that the plaintiff was employed to aid in the actual work of reconstructing the hotel, and that he, in pursuance of the contract of employment entered into between him and the defendant, South-wick, did actually aid in the work of constructing the hotel, they should answer the first issue \u2014 \u201cIs the plaintiff entitled to a lien upon the leasehold property in the Hotel Berkley described in the complaint?\u201d \u2014 Tes. There was error, for the reason that there was no evidence tending to show such work by contract between him and the defendant, South-wick. In fact, the evidence was that he was not employed to do such work. Where there is no evidence the court should not leave the issue to be passed upon by the jury. Covington v. Newberger, 99 N. C., 523; State v. Powell, 94 N. C., 965. The plaintiff was not entitled to a lien on the property for his services as bookkeeper. Whitaker v. Smith, 81 N. C., 340; Cook v. Ross, 117 N. C., 193. The judgment, in so far as it declares that the plaintiff is entitled to a laborer\u2019s lien upon the lease of the defendant, Southwick, in the hotel property to the amount of $267.96, with interest thereon, is erroneous, and is reversed, as is also that part of the judgment ordering a sale of the property for the purpose of having the lien satisfied. The balance of the judgment is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "MONTGOMERY, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Moore & Moore, for plaintiff.",
      "Mr. F. A. Sondley, for defendants (appellants)."
    ],
    "corrections": "",
    "head_matter": "HOMER W. NASH v. C. H. SOUTHWICK and L. P. McLoud, Assignee of C. H. Southwick.\nMechanic\u2019s and Laborer\u2019s Lien \u2014 Bookkeeper\u20148'cope of Employment.\n1. Where plaintiff was employed as a bookkeeper and 11 to make himself generally useful,\u201d during reconstruction of a hotel building, the fact that he occasionally did manual labor during the remodeling does not entitle him to a mechanic\u2019s lien, such manual work not being within the scope of his employment.\n2. One acting as a bookkeeper for the reconstruction o\u00ed a building is not 'entitled to a laborer\u2019s lien.\nCivil action, tried before Bryan, J., and a jury, at August, 1896, Term of Buncombe Superior Court. The facts are stated in the opinion of the court. There was a verdict for $267.96 in favor of the plaintiff, and from the judgment thereon defendants appealed.\nMessrs. Moore & Moore, for plaintiff.\nMr. F. A. Sondley, for defendants (appellants)."
  },
  "file_name": "0459-01",
  "first_page_order": 487,
  "last_page_order": 489
}