G. W. Jefferson & Bros. v. Bryant, 161 N.C. 404 (1913)

March 5, 1913 · Supreme Court of North Carolina

161 N.C. 404

G. W. JEFFERSON & BROS. v. C. C. BRYANT.

(Filed 5 March, 1913.)

1. Liens — Material Men — Interpretation of Statutes — Substantial Compliance — Turnkey Job — Time of Completion.

While a substantial compliance with Revisal, sec. 2026, is necessary to the validity of a lien filed for material, etc., furnished in the erection of a building, it is not required that the claimant file his itemized statement of the material used in a building which he had contracted to complete for the owner for one sum; but the time of the completion of the work must be stated.

2. Liens — Turnkey Job — Time of Completion — Statement as to Interest. .

In this action to enforce a lien upon a building contracted to have been built for a certain total sum, the conclusion in the bill of particulars with reference to the commencement of the running of interest does not refer to- the time of the completion of the building, as the plaintiff; testified that it was completed at a different time.

3. Liens — Defective Claim — Contractors — Turnkey Job — Time of Completion — Amendments—Power of Courts.

Where suit is brought by a contractor to enforce a lien on a building which was to have been paid for in a single sum, and bis claim for lien is defective, as filed with the clerk, in not stating the time the house was completed, as required by the statute, Revisal, sec. 2026, it cannot be cured by amendment allowed in the Superior Court at the trial.

Appeal by defendant from Cline, J., at September Term, 1912, of Pitt.

In the summer of 1909 the plaintiffs contracted with the defendant, Cherry Bryant, to furnish the material for and to build a house for her upon a lot owned by the said defendant, Cherry Bryant, in the town of Fountain, for the sum of $250 for a turnkey job. The plaintiffs built said house according to contract, furnishing the material and all labor necessary, completing the house during April or May, 1910. On 15 December, 1909, plaintiffs received from the defendant, Cherry Bryant, the sum of $50, and on 24 March, 1910, $50, leaving a balance due of $150, which remains unpaid. On 28 February, 1911, the plaintiffs purported to file a lien in the office of the Clerk of the Superior Court of Pitt County against the defendant on the said house and lot in Fountain to the amount of $150, and on 18 July, 1911, secured judgment on said lien against the defendant in the sum of $150 in a justice of the peace court, and the defendant appealed to the Superior Court.

The notice of lien and the account filed therewith are as follows :

G. 'W'. JeffersoN & Bros., Claimant, v.

Cherry Bryant, formerly Cherry Bell, Owner or Proprietor.

The said G. W. Jefferson & Bros., claimant, file their lien against the said Cherry Bryant, formerly Cherry.Bell, owner or proprietor, in the office of D. O. Moore, clerk of the Superior Court in and for said county.

• Said lien is for material and labor on the house of the said Cherry Bryant, formerly Cherry Bell, as per bill of particulars herewith filed.

Tbe said bouse being situate in tbe county of Pitt, in Fountain, adjoining tbe lands of R. B. Owens, G. W. Jefferson & Bros.,’and others, on Railroad Street, and being tbe identical bouse built by said G. W. Jefferson & Bros, for said Oberry Bryant in tbe town of Fountain. Tbe said G. W. Jefferson & Bros, claim tbeir lien.

Tbis tbe 28th day of February, 1911.

G. "W". JeffeRSON & Bros., Claimant.

BILL OF PARTICULARS.

Cherry Bryant, alias Cherry Bell, Owner and Proprietor, To G. ~W. Jefferson & Bros., Claimant, Dr.

Date, February 28, 1911.

To balance due on account for material and labor due for building one bouse in Fountain, tbe total amount of account being $250, upon wbicb she bas paid $100, leaving a balance of $150, witb interest from 1 January, 1911.

G. W. Jefferson & Bros., Claimant.

Tbe defendant contended before tbe justice and in tbe Superior Court tbat tbe lien was invalid because no time was stated therein when tbe labor was done or tbe material furnished, or when the bouse was completed, and excepted to adverse rulings on these contentions.

In tbe Superior Court tbe court permitted tbe plaintiffs to amend tbe lien as follows: “It was completed in April or May, 1910.” To tbis defendant excepted.

There was a verdict and judgment in favor of tbe plaintiffs, and tbe defendant excepted and appealed.

F. G. James & Sons for plaintiffs.

W. F. Fmm for defendant.

Allen, J.

Tbis action is to enforce a lien under section 2026 of tbe Revisal, wbicb requires tbat “all claims shall be filed in detail, specifying tbe materials furnished or labor performed, and the time thereof,” and it bas been uniformly held, in construing tbis statute, tbat there must be a substantial compliance witb its terms, and that the statement o£ time is material. Wray v. Harris, 77 N. C., 77; Cook v. Cobb, 101 N. C., 68.

The headnote to the Coolc case, which is fully sustained by the opinion, is that, “It is essential to the validity of a laborer’s lien that the 'claim’ or notice which he is required to file shall set forth in detail the times when the labor was. performed, its character, the amount due therefor, and upon what property it was employed; and if it is for materials furnished, the same particularity is required. Defects in these respects will not be cured by alleging the necessary facts in the pleadings in an action brought to enforce the lien.”

This rule has been very generally modified when the contract is to complete a building for one sum, and in such case it is not required that the labor performed and the materials furnished shall be itemized, but that the time of the completion of the work shall be stated. The cases are collected in the notes to 27 Cyc., 188.

If we apply these principles to the notice of lien in the record, it is fatally defective, as no time is given in connection with any item, and the time when the contract was completed is not stated.

The conclusion of the bill of particulars, “with interest from 1 January, 1911,” does not refer to the completion of the contract, as the plaintiff testified it was completed in April or May.

The plaintiff contends, however, that this defect was cured by amendment in the Superior Court, and this presents the question of the power of the court to make the amendment. The Superior Court has broad and ample jurisdiction over the amendment, of process and pleadings, but the notice of lien is neither a process nor a pleading, and it was only in the court for the purpose of enforcement. If against real estatej the statute requires it to bé filed before the clerk, and states what is necessary to make it valid. If defective when filed, it is no lien, and to permit an amendment, curing a fatal defect, would be to confer upon the court the power to make a lien, and thus destroy the provisions of the statute.

Tbe question has not been directly presented in this State, but the controlling principle has been declared. In Phillips v. Higdon, 44 N. C., 382, Pearson, J., said: “Where the amendment will evade or defeat the operation of a statute, the court has no power to allow it. This is clear; for no court has the power of nullifying a statute. By way of illustration, the statute requires that a levy should describe land in a particular way, for the purpose of informing the defendant in the execution, and all who may wish to become purchasers, what land the sheriff is to sell. If a levy is not sufficient, and a sale under it is made good by an amendment of the levy, the effect is to defeat the operation and purposes of the statute, and to allow land to be sold without the safeguards which the Legislature has provided against surprise and fraud. It might happen that a defendant in an execution, who from the levy, ‘land lying on Carny Fork/ was under the impression that some out tract of his was to be sold, might, after the sale, find himself deprived of his ‘home place’ under the power of the court to allow the constable to amend his levy by adding the words, ‘being the tract of land lying on the forks of the said creek, on which the defendant now resides/ ” and this was affirmed in Cogdell v. Exum, 69 N. C., 464, and in Patterson v. Wadsworth, 94 N. C., 540.

This principle has been applied in other jurisdictions to the amendment of a lien. Vreeland v. Boyle, 37 N. J. L., 346; Flume Co. v. Kendall, 120 Cal., 182; Lindley v. Cross, 31 Ind., 110; Goss v. Stelitz, 54 Cal., 640; Jones on Liens, vol. 2, sec. 428; Phillips Mech. Liens, see. 428.

In the New Jersey case the Court says: “It is obvious that the lien claim is not a file in the Circuit Court, nor in any court. It is a record in the office of the clerk of the county, like the registry of a deed or mortgage. It is the foundation of the action, but no part of the suit. The record in the Circuit Court begins with the issue of the summons and continues with the filing of the declaration, pleas, etc. The court may amend its own files and records under the authority given in sections 129 and 16'6 of the practice act, but it has not power to alter or amend the records in the county clerk’s office, either by these sections or anything contained in the mechanics’ lien law. Only proceedings in actions in courts can be altered by joining an omitted plaintiff, or striking out one improperly joined, where it shall appear that injustice will not be done by such amendment, and the person affected by the amendment consents. If it were conceded that the court might amend the summons, declaration, and pleas in this ease,' under the extensive power given in section 166 of the practice act, for the purpose of determining in the existing suit the real question in controversy between the parties, yet it cannot, without some express authority, go beyond its own jurisdiction, into the county clerk’s office, and there alter the records so as to make them conform to the changed papers in court.”

Being, therefore, of opinion that the lien is defective and that the court did not have the power to amend the same, a new trial is ordered.

New trial.