Defendants, M. Costello and National Surety Company, in tbeir brief, say:
“We discuss all tbe exceptions together, as the real question involved is whether the defendant, National Surety Company, is liable on its bond for debts owing by a subcontractor and not covered by the bond. Nothing was due by, the contractor to the subcontractor at the time these liabilities were incurred by the subcontractor or subsequent thereto when the subcontractor stopped work. There were never any contractual relations between the State Highway Commission and the subcontractor, or between the contractor and plaintiffs, and the bond does not cover plaintiffs’ claims. If at the time the subcontractor abandoned the work the contractor had been indebted to the subcontractor for ‘furnishing material or performing labor in and about the construction of said roadway,’ then the bond would have covered such indebtedness and the amount thereof would have been prorated between plaintiffs. Plaintiffs can have no more rights against the contractor and the surety company than the subcontractor, and if the subcontractor has already been paid in full, as the uncontradicted evidence discloses,' the plaintiffs have no cause of action against the contractor and the surety company. Should plaintiffs collect from the contractor and the surety company on the facts in the instant case, then a double liability will be placed on a contractor, and settlement with a subcontractor will be no protection whatever against claims incurred by the subcontractor and of which the contractor had no notice. This case goes a bow-shot further than any rights accorded laborers and material men under our lien laws, which do not apply to public buildings and highways. Even under those statutes there must be a' contractual relation or the right is conferred by statute after notice.”
We do not think the position taken by the learned and able counsel for defendants is borne out by the evidence in the case or the findings of the court below, supported by competent evidence. We think that what is termed subcontractor by defendants was nothing more than an agency.
The facts succinctly are: the State Highway Commission made a contract with Costello Brothers and Condon & Condon to furnish the labor and material and improve the road between Topton and Almond— approximately 17.89 miles long, according to certain plans and specifications. For the faithful performance of the contract, they and the surety company gave the State Highway Commission a bond in the sum of $142,560, and in the bond agreed: “And shall well and truly pay all and every person furnishing material or performing labor in and about the construction of said roadway all and every sum or sums of money due him, them or any of them, for all such labor and materials *755for wbicb tbe contractor is liable.” Tbe bond is to pay for work and material for wbicb tbe contractor — Costello Brotbers-Oondon & Condon —-are liable.
Tbe plaintiffs contend tbat section known as No. 2, beginning at tbe Nantabala River and extending to Wesser Creek, was part of Project 980, for wbicb tbe bond was given by tbe entire partnership composed of Costello Brothers and Condon & Condon, and under contract to improve. Tbat Condon & Condon were agents of tbe original firm who made tbe contract and gave tbe bond and not independent or subcontractors. Tbat tbe failure of Condon & Condon on section No. 2, and their becoming insolvent and going into bankruptcy, in no way afEected tbe rights of plaintiffs, who worked and furnished material on section No. 2. Tbat they- bad a cause of action against all — Costello Brothers and Condon & Condon and their bondsmen, tbe surety company — and tbe bond was to pay for labor and material for which all tbe contractors were liable. Plaintiff, to sustain this contention, introduced evidence to tbe effect tbat M. Costello came.over to tbe project every two weeks or once a month. He would give instructions. Costello Brothers bad equipment on tbe project; their names were on all tbe wagons. He went over tbe job with Condon & Condon whenever he came. Tbat Costello told tbe plaintiff, Aderbolt, tbat be bad sent tbe money to Condon & Condon to pay tbe boys off. Tbe direct and circumstantial evidence was abundant for tbe court below to find “tbat after tbe execution of said contract and bond, tbe defendants, C. A. Condon and S. J. Condon, under contract with tbe partnership of Costello Brothers-Condon & Condon, began work in tbe eoustruction of said highway referred to in said contract and bond, and tbat tbe defendant, M. Costello, representing Costello Brothers, was present during tbe construction thereof from time to time, directing tbe supervising said work, but tbe actual construction of said highway was being carried on by said S. J. Condon and 0. A. Condon, who bad signed tbe contract and bond with tbe State Highway Commission, as aforesaid.!’ They were not independent or subcontractors, but mere agents or, servants.
Tbe test of independence and agency or servant is laid down in 14 R. C. L., pp. 67-8, as follows: “Tbe vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is tbe control over tbe work wbicb is reserved by tbe employer. Stated as a general proposition, if tbe contractor is under tbe control of tbe employer, be is a servant; if not under such control, be is an independent contractor. So, where tbe contractor lets a portion of tbe work to another contractor, tbe latter’s independence is to- be determined by tbe same criterion of tbe control of tbe work. In this connection, tbe ultimate question is not whether tbe employer actually *756exercises control over tbe doing of the wort, but whether he has the right to control. The employer may, in fact, leave to the contractor the details of the work, but if the former has the absolute power to control the work, the contractor is not independent. But whether or not the employer exercises control may, however, be a fact to be considered in determining the precise relations of the parties. The circumstance that an employer has actually exercised certain control over the performance of the work may not only render him responsible for the acts done under his direction, but may be considered as a factor tending to show the subserviency of the contractor. In other words, the fact that the employer has actually exercised control is properly considered as tending to show that he has a right to control. And, on the other hand, the fact that during the performance of the work the employer has exercised no control may be considered as tending to show that he has no right to control. But the mere fact that the employer was present and made suggestions or requested the contractor to hurry the work has no- probative force in determining that question.” 3 Page on the Law of Contracts (2 ed.), sec. 1728; Embler v. Lumber Co., 167 N. C., p. 463; Gadsden v. Craft, 173 N. C., 420.
The defendants contend: “The claim of plaintiff,' Wright, for lumber and supplies’ should not have been allowed for the additional reason that it was not material used in and about the construction of the road. The only testimony on which to base the finding and conclusion of the court is .the testimony of Wright himself, as follows: U live at Wesser and know the firm of Condon & Condon; the members of the firm are Charley Condon and Sam Condon; they were contractors, building roads, highways; that is, Project 980; I sold them lumber or other supplies;' the Condons got it from me, their men that was working for them, Condon & Condon’s teams; the lumber was used to put up a rock crusher and in dump forms and one thing and another; the. rock crusher was used for the construction of the road; they used some lumber for boxes and dump carts and anything they wanted it for.’ If the 'other supplies’ be eliminated from the account, and we do not see how that could be done, still the lumber so furnished and used was not covered by the bond.”
This matter has been fully discussed in Town of Cornelius v. Lampton et als., ante, 714. Other supplies are ejusdem generis. Defendants’ contention is untenable.
“An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified.” Gay v. R. R., 148 N. C., *757336, 62 S. E., 436; Young v. Lumber Co., 147 N. C., 26, 60 S. E., 654; 16 L. R. A., N. S., 255.
Justice Walker, in a well-considered opinion in Embler v. Lumber Co., supra, p. 463, says: “Tbe accepted doctrine is that in cases where the essential object of an agreement is the performance of work, the relation of master and servant will not be predicated, as between the party for whose benefit the work is to be done and the party who is to do the work, unless the former has retained the right to exercise control over the latter in respect to the manner in which the work is to be executed. The proprietor may make himself liable by retaining the right to direct and control the time and manner of executing the work or by interfering with the contractor and assuming control of the work, or of some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference.”
In the consent agreement, as in the present case, the findings of fact by the court below, if there is any evidence to support such findings, are as conclusive as when found by the jury. Matthews v. Fry, 143 N. C., 384; Tyer v. Lumber Co., 188 N. C., 268.
By consent, the court below found the facts. There was sufficient competent evidence to base the findings that “the defendant, M. Costello, representing Costello Brothers, was present during the construction thereof, from time to time, directing the supervising said work.” "Under the facts and circumstances of this ease, and finding of facts, we think, under the law, Condon & Condon are agents or, servants, and the principle of agency applies, and M. Costello and the surety company liable to plaintiff.
In the judgment of the court below, we can find
No error.