Does the contract between the parties constitute the plaintiff an independent contractor or an agent for the defendant, owner, in erecting and completing the building?
Manifestly, if the plaintiff was an independent contractor it was bound to pay for materials, and hence, under the circumstances, the amount paid by the defendant to the Stone Company which furnished material for the project should be credited upon the gross contract price, and the plaintiff would not be entitled to recover. Upon the other hand, if the plaintiff was agent for the defendant owner, and contracted to perform personal services for such owner, then the owner was bound to pay for all materials used in the building, and the sum paid to the Stone *5Company would not be chargeable to the plaintiff. If a contract of employment is in writing and is tmambiguous, the court must determine from the terms and intent of sucb writing whether the employee is an independent contractor or an agent. Lumber Co. v. Motor Co., 192 N. C., 377, 135 S. E., 115. The contract in the case at bar is in writing and its terms are plain. It is admitted that the plaintiff performed the contract. Did he perform such contract as agent or independent contractor? The rights of the parties under the contract are not to be determined solely by the names they call each other, but rather by intent and meaning of the terms of the instrument. The broad definition of 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.” Young v. Lumber Co., 147 N. C., 26, 60 S. E., 654. Moreover, in determining the relation of the parties certain tests have been considered and held persuasive. Thus, in Lumber Co. v. Motor Co., 192 N. C., 377, it was held that one of the vital tests was the right of thé owner “to control the work in every detail and at every stage.” It was further held that the “mode of payment provided in the contract is sometimes an important element to be considered in determining whether the party who has agreed to do work for another is an independent contractor, but it is not controlling. The circumstance that the workman is to receive no compensation until the satisfactory termination of his employment does not require that he be classed as an independent contractor.” Another test may be found in Inman v. Refining Co., 194 N. C., 566, 140 S. E., 289, which holds that the right of control or interest in the means by which the work is done is important in determining the relation. Speaking in general terms, if the owner has no interest in the performance of the contract except that the finished product shall be in accordance with the plans and specifications, then all the authorities agree that the workman is an independent contractor, unless, of course, there is evidence tending to show that the writing was not executed in good faith.
Consequently, the question arises as to whether the owner, in this particular case, had an interest in the performance of the work other than in the finished product. The contract itself must either furnish or withhold the answer to this question. Construing the contract as a whole, the Court is of the. opinion that it constitutes a contract of agency. This conclusion rests upon the following considerations: (a) The parties agree in Article 3 that the consideration is the nominal sum of one dollar, and “the further consideration of the personal services to be rendered by the contractor in the erection of the building.” In Article 6 the owner agrees “to pay the contractor its fee for services.” *6Manifestly, compensation for services implies agency, (b) Tire owner retained an interest and a certain control over the cost of the building. Eor instance, if the contractor constructed the building for $4,000 less than the specified price, one-half of this sum of $4,000 was to be retained by the owner and the other half added to the compensation of the contractor. Moreover, if the contractor saved more than $4,000, the owner retained the entire sum in excess thereof. Therefore, it is apparent that the owner retained an interest in the cost of materials and labor for the plain reason that he was sharing in what might be deemed the profit resulting from wise and economical operations by the contractor, (c) In Article 5 it is stipulated “that the owner, between the first and tenth day of each month, shall reimburse the contractor for all moneys that the contractor may have expended on account of this work during the preceding month for payroll, etc., and that the owner shall pay, between the first and tenth day in every month, for all materials purchased and delivered on the site during the preceding month,” etc. The clause that the “owner shall pay, between the first and tenth of each month, for all materials furnished” would seem to clearly establish the liability of the owner for the payment of materials, and thus impose upon it the duty of paying the claim of the Stone Company.
While there is some clash between the language of the printed specifications and the written contract, it was expressly specified in Article 5 that “notwithstanding stipulations in the specifications to the contrary,” the owner would reimburse the contractor each month and pay for materials each month as purchased and delivered.
Upon a consideration of the entire record, the Court is of the opinion and so holds, that the judgment rendered correctly interpreted the law.
Affirmed.
ScheNCK, J., took no part in the consideration or decision of this case.