{ "id": 8606168, "name": "GRIER-LOWRANCE CONSTRUCTION COMPANY v. WINSTON-SALEM JOURNAL COMPANY", "name_abbreviation": "Grier-Lowrance Construction Co. v. Winston-Salem Journal Co.", "decision_date": "1930-02-12", "docket_number": "", "first_page": "273", "last_page": "278", "citations": [ { "type": "official", "cite": "198 N.C. 273" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "197 N. C., 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627278 ], "opinion_index": 0, "case_paths": [ "/nc/197/0093-01" ] }, { "cite": "97 S. E., 146", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "176 N. C., 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655156 ], "opinion_index": 0, "case_paths": [ "/nc/176/0087-01" ] }, { "cite": "93 S. E., 440", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N. C., 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252323 ], "opinion_index": 0, "case_paths": [ "/nc/174/0057-01" ] }, { "cite": "77 S. E., 341", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "161 N. C., 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271126 ], "opinion_index": 0, "case_paths": [ "/nc/161/0404-01" ] }, { "cite": "121 S. E., 761", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654065 ], "opinion_index": 0, "case_paths": [ "/nc/187/0464-01" ] }, { "cite": "90 S. E., 923", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N. C., 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255332 ], "opinion_index": 0, "case_paths": [ "/nc/172/0704-01" ] }, { "cite": "63 S. E., 611", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 N. C., 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270042 ], "opinion_index": 0, "case_paths": [ "/nc/150/0141-01" ] }, { "cite": "66 S. E., 583", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "151 N. C., 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655315 ], "opinion_index": 0, "case_paths": [ "/nc/151/0507-01" ] } ], "analysis": { "cardinality": 597, "char_count": 12850, "ocr_confidence": 0.463, "pagerank": { "raw": 1.9837014839064903e-07, "percentile": 0.7409009173893922 }, "sha256": "8afce4b540c7827a1c3351c424d92f285ef7e0bbe62d4f7e773fae0070e4cb92", "simhash": "1:b6a7c1339f63a788", "word_count": 2128 }, "last_updated": "2023-07-14T19:53:28.956258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GRIER-LOWRANCE CONSTRUCTION COMPANY v. WINSTON-SALEM JOURNAL COMPANY." ], "opinions": [ { "text": "BeogdeN, J.\nCan a contractor sue the owner and recover the contract price for labor and material furnished such owner by a subcontractor or materialman; and, if so, under what circumstances ?\nIn Hardware Co. v. Schools, 151 N. C., 507, 66 S. E., 583, this Court said: \u201cEven a cursory perusal of our statute (Revisal, ch. 48) will make it plainly appear that a subcontractor or a person who furnishes materials for the construction of the building has no claim against the owner apart from the claim he acquires by virtue of his lien after notice to the owner and before he settles with the contractor. The statute was not intended to change the well-settled general principle that there must be privity of contract before any liability by one person to another can arise. We know that this general principle has its exceptions, arising out of the peculiar nature of the cases to which they apply.\u201d\nThe identical question involved in the present suit was considered in the case of Perry v. Swanner, 150 N. C., 141, 63 S. E., 611. In that case the contractor sued the owner. and the trial judge sustained a motion of nonsuit. The plaintiff, who was a contractor, brought the suit in his own name to the use of various materialmen. In affirming the judgment of nonsuit the Court said: \u201cIt is not a question of parties, as we understand the matter, that is raised by the motion to nonsuit, but a, question as to whether or not the plaintiff has made out a cause of action upon which he personally can recover. There is only one plaintiff to this action, and the fact that he sues to the use of a number of others who furnished material to defendants for the construction of the house does not necessarily make them parties, so as to be bound by a final judgment. . . . The plaintiff testified that he furnished to defendants written statements of the sum due to the materialmen, in accordance with the statute (Eevisal, secs. 2021, 2022, 2023). When that statute is-complied with, a direct obligation upon the part of the owner to the materialman may be created upon which the latter may sue in his own name.\u201d Hence to constitute the owner the debtor of the material-man, or to establish privity of contract in such cases, there must be a notice and the resulting lien, in order to enable the materialman or subcontractor to maintain a suit in his own name. Foundry Co. v. Aluminum Co., 172 N. C., 704, 90 S. E., 923. In the event the notice is given the owner either by the contractor or the subcontractor or materialman, then it becomes the \u201cduty of the owner to retain from the money thus due the contractor a sum not exceeding the price contracted for\u201d; and in such event, the materialman or subcontractor may maintain an action against the owner personally, even though the action to enforce the lien was not commenced witbin tbe prescribed statutory period. Campbell v. Hall, 187 N. C., 464, 121 S. E., 761.\nThe question then arises: What constitutes such notice as will confer upon the subcontractor or materialman the right to maintain a suit in his own name? The decisions of this Court referring to the question may be found in the following cases: Jefferson v. Bryant, 161 N. C., 404, 77 S. E., 341; Building Supply Co. v. Hospital Co., 174 N. C., 57, 93 S. E., 440; Building Supply Co. v. Hospital Co., 176 N. C., 87, 97 S. E., 146; King v. Elliott, 197 N. C., 93. These decisions, in substance, require that the notice or itemized statement must be \u201cfiled in detail, specifying the materials furnished or labor performed and the time thereof.\u201d Such notice or itemized statement must show substantial compliance with the statute. However, if it is an entire contract for a gross sum the particularity otherwise required is not essential.\nThe record in the case at bar discloses that Ingold Roofing Company did not furnish the owner, or defendant, a notice, neither did it attempt to file or enforce a lien upon the property.\nIt further appears that the Ingold Company rendered the bill directly to the plaintiff. A witness for plaintiff, who was associated with the Ingold Company, testified: \u201cThis bill is against the Grier-Lowrance Construction Company. I did not at any time contemplate filing a lien on the building. I know the concern of Grier-Lowrance Construction Company.\u201d Mr. Grier, who was secretary and treasurer of plaintiff, testified: \u201cThe Ingold Company rendered this bill to me. I am due this bill to the Ingold Company. The Winston-Salem Journal Company is due this bill to me.\u201d Mr. Moon, witness for the defendant, testified: \u201cI contracted with the Grier-Lowrance Construction Company to do the work. I do not know who did it.\u201d\nThere was evidence to the effect that after the bill was rendered to the plaintiff the matter of payment thereof was discussed with Mr. Moon, who apparently was the agent of defendant. There is no evidence in the record, as we interpret it, tending to show that any itemized statement or notice was ever furnished to the owner by either the contractor or the subcontractor or materialman. Indeed, the subcontractor or materialman was asserting his claim exclusively against the contractor. Under these circumstances we are of the opinion, and so hold, that the plaintiff can maintain the action.\nThe defendant offered the original contract in evidence. Upon objection by the plaintiff this paper-writing was excluded. It is clear that, whether the original contract was totally abandoned or not, the settlement was made between the parties on the basis of Exhibit \u201c1.\u201d The said Exhibit \u201c1\u201d contained these words: \u201cThere may occur some additional charges or credits which may affect the above statement, but in tbe event we will make an additional statement to tbe Winston-Salem Journal showing these charges or credits, and attaching our check to cover in the event that' the credits are larger than the debits.\u201d This language is a definite declaration that there might be other items of adjustment between the parties, and this case was tried upon the theory that the amount due for the roofing and sheet metal was such an item and was included within the meaning of the language used. Therefore, the original contract did not seem to be material.\nHowever, we do not think that the foregoing language contained in Exhibit \u201c1\u201d covered or included an allowance of 10% upon the amount of the Ingold bill. From an inspection of Exhibit \u201c1\u201d it would appear that the 10% allowance. applied only to the items therein set forth, or the settlement therein made. It appears that the trial judge permitted the jury to consider this item. This was error, but not such error as to warrant a new trial. It should be stricken from the judgment.\nThere are other exceptions to which we have given careful consideration, but none of them warrant the awarding of a new trial.\nModified and affirmed.", "type": "majority", "author": "BeogdeN, J." } ], "attorneys": [ "Grier & Grier for plaintiff.", "Manly, Hendren & Womble for defendant." ], "corrections": "", "head_matter": "GRIER-LOWRANCE CONSTRUCTION COMPANY v. WINSTON-SALEM JOURNAL COMPANY.\n(Filed 12 February, 1930.)\n1. Laborers\u2019 and Materialmen\u2019s Liens B c \u2014 Subcontractor must furnish notice to owner in order to bold him responsible for debt,\nA subcontractor or material furnisher for a building, in order to hold the owner liable for the amount of his claim, is required to give, in apt time, notice to the owner showing an itemized, detailed statement of the claim or materials furnished, except when the contract is entire and complete for a gross sum such Specific itemization is not required, and when such notice has not been given he will be regarded as a stranger to the building contract between the owner and the contractor and may not maintain an action against the owner.\n2. Laborers' and Materialmen\u2019s Liens C a \u2014 In this case held: contractor could maintain action against owner for amount of subcontract.\nWhere the contract for the erection of a building has been abandoned because of the owner\u2019s failure to make payments thereunder according to its terms, and a new agreement has been entered into by the parties under which the contractor agrees to complete the building upon the owner\u2019s agreement to pay certain additional charges, and the contractor furnishes a statement under the new agreement showing the amounts due for specified items and providing that \u201cthere may be some additional charges and credits which may affect the above statement, in which event an additional statement will be rendered,\u201d and it appears that the amount of a certain subcontract was omitted from the statement, and that the subcontractor may not hold the owner responsible therefor because of failure to give the required notice: Held,, the contractor may maintain his action against the owner upon the agreement for the amount due on the subcontract.\n3. Appeal and Error K d \u2014 Where judgment erroneously includes sum certain with amount recoverable by plaintiff, judgment will he modified and affirmed.\nWhere a judgment appealed from correctly awards a recovery in a sum stated, but erroneously includes an amount which may readily be ascertained, it is not necessary to award a new trial on appeal, and the judgment will be modified and affirmed.\nCivil actiou, before Harding, Jat March Term, 1929, of Iredell.\nThe plaintiff is a corporation engaged in general contracting business, and on the 19th day of August, 1926, entered into a contract with the defendant to furnish labor and material necessary for the construction and erection of a building in the city of Winston-Salem, according to plans and specifications furnished by Harold Macklin, architect. The contract price was $144,950.\nThe plaintiff began work on the building, but the defendant neglected to comply with the provisions of said contract, which were to be kept and performed by the defendant, in that, said defendant failed to make monthly payments according to the agreement. Subsequently the plaintiff notified the defendant that it would not proceed further with the work. Thereupon, plaintiff alleges, that it was mutually agreed \u201cthat the defendant would pay the plaintiff the total cost of all labor, material, equipment, repairs, power and rent of property, telephone, telegraph, equipment rental and all miscellaneous expenses, and also interest expense caused by not receiving checks for estimates when due, discounts lost by not receiving checks when estimates were due and interest on deferred payments of estimates.\u201d\nThe plaintiff then proceeded to complete the building according to plans and specifications.\nThereafter, in pursuance of such new agreement, the plaintiff submitted to the defendant a statement which was introduced in evidence and referred to as Exhibit \u201c1.\u201d This paper writing is as follows:\n\u201cG-rier-LowbaNce CONSTRUCTION Company, Statesville, N. C. EiNAL Estimate.\nWinston-Salem Journal Building.' 25 August, 1927.\nTotal labor, material, equipment, repair, power, rent on property, telephone, telegraph and mise, expenses to 1 August, 1927 .$149,229.50\nMaterial, labor and mise, expenses from 1 August to date. 1,573.69\nBalance to be billed on T. M. B. flooring.$ 1,007.84\nBalance to be billed on oak flooring. 720.00\nAmount due plaster contract. 300.00\nEquipment rental . 1,500.00\nInterest expense caused by not receiving checks for estimates when due. 2,522.53\nDiscounts lost by not receiving check when estimates were due 14,522.11\nInterest on estimates (deferred payments). 1,034.26\n$159,409.93\nPlus 10% .. 15,944.00\n$175,353.93\nLess amount previously paid. 132,763.50\nAmount payable ..$ 42,590.43\nLess 10% on the above interest charges ($5,008.90). 500.89\n$ 42,089.54\nLess balance to be billed on oak flooring. 720.00\n$ 41,369.54\nThere may occur some additional charges or credits which may affect the above statement, but in the event we will make an additional statement to the Winston-Salem Journal showing these charges or credits, and attaching our check to cover in the event that the credits are larger than the debits.\nApproved for payment, H. Macklin, Architect, 25 August, \u201927.\u201d\nIn accordance with the terms of said Exhibit \u201c1\u201d the defendant gave the plaintiff a note for $41,369.54, which was afterwards paid in full.\nThe plaintiff made a subcontract for the roofing and certain metal work on said building with the Ingold Roofing Company.\nSubsequent to the settlement above referred to, in November, 1927, the plaintiff discovered that the Ingold Company had never been paid for the roofing and sheet metal work. The Ingold Company sent a bill to the plaintiff at that time for $2,080 for material which had been used in said building. The defendant refused to pay the bill, and thereupon the plaintiff brought suit. A single issue of \u25a0 indebtedness was submitted to the jury, and the jury answered the issue in favor of plaintiff, awarding a recovery of $2,228 with interest from date.\nFrom judgment upon the verdict the defendant appealed.\nGrier & Grier for plaintiff.\nManly, Hendren & Womble for defendant." }, "file_name": "0273-01", "first_page_order": 343, "last_page_order": 348 }