#### DUNCAN CAMPBELL v. W. D. HALL et al., Trustees of the Church of the Covenant.

(Filed 26 March, 1924.)

Liens — Statutes—Subcontractors—Materialmen—Notice to Owner — Actions.

Where the subcontractor and material furnisher for the erection of a building have given the owner an itemized statement of materials furnished by them therefor, and at that time the owner owes the contractor moneys under the contract made with him, to that extent the subcontractors and materialmen have a lien for the payment of their claims so filed, and may maintain a civil action thereon against the owner under the provisions of C. S., 2439, 2440, 2441, without being required to file their liens within six months, etc., under the provisions of C. S., 2469, or bring suit within six months thereafter, under those of C. S., 2474.

Appeal by defendants from Daniels, J., at Eebruary Term, 1924, of Waice.

The case was'heard upon the following agreed statement of facts:

1. Prior to 15 May, 1922, the Church of the Covenant contracted with U. A. Underwood for the.building of certain Sunday-school rooms in the city of Wilmington, N. C., to be constructed according to certain specifications and for a specified sum.

2. Prior to the said 15 May, 1922, the said U. A. Underwood subcontracted to the plaintiff, Duncan Campbell, a certain part of said work, to be constructed according to the said specifications and for a specified sum.

3. On or about 15 May, 1922, the said Duncan Campbell notified the defendant, Church of the Covenant, that the said U. A. Underwood was indebted to him on his'said subcontract in the sum of $1,250, and that he would require the Church of the Covenant to pay to him that sum from the moneys due by said church to U. A. Underwood.

4. Thereafter the plaintiff herein instituted suit against U. A. Underwood in the Superior Court of Wake-County and recovered judgment against him on his said subcontract for the sum of $1,250, with interest and cost. In the said action the defendant therein, U. A. Underwood, set up a counterclaim against the said Duncan Campbell, which is substantially the same as the counterclaim set up by the defendants in this action, and a verdict was found against the said U. A. Underwood on the said counterclaim.

5. Subsequently, but more than six months after the giving of the notice by the said subcontractor, Duncan Campbell, to the owners, defendants herein, this action was brought by the said Duncan Campbell against the said Church of the Covenant..

*4656. At tbe time of giving said notice, tbe Cburcb of tbe Covenant was indebted to U. A. Underwood upon bis said contract in a sum exceeding $1,250.

7. U. A. Underwood completed tbe said contract witb tbe Cburcb of tbe Covenant, and delivered tbe said buildings in accordance witb tbe terms of bis contract and at tbe contract price.

8. U. A. Underwood is now insolvent, but tbe said Cburcb of tbe Covenant required tbe said U. A. Underwood to furnish to tbe said cburcb an indemnity bond to indemnify tbe said cburcb against tbe claim of tbe plaintiff, wbicb bond was given witb tbe Maryland Casualty Company as surety tbereon, and wbicb bond tbe defendants now bold.

Upon these facts, Judge Daniels rendered the following judgment:

“It appearing to tbe court that tbe only defense insisted on by tbe defendant, Cburcb of tbe Covenant, is that tbe suit to enforce tbe claim was not brought within six months after notice to tbe cburcb of tbe plaintiff’s claim, and tbe court being of tbe opinion that under tbe statute, where a lien is not filed, but notice is required to tbe owner to withhold tbe fund, tbe suit is not required to be brought within six months after giving.said notice:

“It is therefore ordered and adjudged that tbe plaintiff, Duncan Campbell, recover of tbe defendant, Cburcb of tbe Covenant, the sum of $1,250, tbe amount of its claim, witb interest tbereon from 15 May, 1922, and bis cost incurred in this action, to be taxed by the clerk.”

Tbe defendants excepted and appealed. Tbe only question is whether it was necessary for tbe plaintiff to bring suit within six months after filing notice of bis claim witb tbe defendants.

H. L. Swain and Johnson & McMahon for plaintiff.

Rountree & Carr for defendants.

Adams, J.

In Hildebrand v. Vanderbilt, 147 N. C., 639, it is said: “By virtue of Revisal, 2028 (C. S., 2470), tbe lien of a laborer or materialman must be filed in twelve months [now six], but by Revisal, 2022 (C. S., 2441) it can be acquired without filing if a statement of tbe amount due is rendered tbe owner. However acquired, tbe lien is lost if action tbereon is not begun in six months. Revisal, 2027, 2023 (C. S., 2474, 2479). Tbe plaintiff, not having begun this action within six months after giving tbe statement of bis claim to tbe owner on 1 October, 1900, has no lien, but be can maintain this action against tbe owner personally, under Revisal, 2021 (C. S., 2439, 2440), wbicb makes it the “duty of tbe owner to retain from tbe money thus due tbe contractor a sum not exceeding tbe price contracted for,” to be paid to the laborer, mechanic, or materialman whenever an itemized statement *466of the amount due him is furnished by either qf such parties or the contractor.” See, also, C. S., 2441.

Section 2469 of the Consolidated Statutes prescribes the method of filing a lien against both personal property and real estate, it designates the court in which the lien shall be filed, and requires a statement in detail of the materials furnished or the labor performed. Section 2470 provides that notice of the lien shall be filed at any time within six months after the completion of the labor or the final furnishing of the materials. For the enforcement of the lien referred to in these sections the claimant must bring his action within six months after notice of the lien is filed. C. S., 2474. But by virtue of section 2441 if an itemized statement be rendered to the owner as provided in the preceding section, the sum due the laborer or the person furnishing materials shall be a lien, although his claim is not filed with the clerk or with the nearest justice of the peace, under section 2469. So, when sections 2439, 2440, and 2441 are complied with, the claimant is not restricted to a period of six months for bringing his action. These sections do not create a technical lien, but they confer a right to have an accounting in a civil action, and a judgment for the amount found to be due by the owner to the contractor. Foundry Co. v. Aluminum Co., 172 N. C., 704, 706; Mfg. Co. v. Andrews, 165 N. C., 285, 294; Hardware Co. v. Graded Schools, 151 N. C., 507; Perry v. Swanner, 150 N. C., 141.

The defendants have cited Granite Co. v. Bank, 172 N. C., 354, and Norfleet v. Cotton Factory, 172 N. C., 833; but, as we understand them, these cases are not in conflict frith the construction given the various statutes referred to in Hildebrand v. Vanderbilt and Foundry Co. v. Aluminum Co., supra.

As the plaintiff's action may not be defeated by his failure to bring suit against the defendants within six months after giving notice to the defendants, the judgment, we think, is free from error.

No error.