
    BRYSON & BRYSON v. GENNETT LUMBER COMPANY.
    (Filed 31 May, 1916.)
    1. Liens — Laborers—Lumber—Statutes—Trials—Instructions.
    In an action to establish a laborer’s lien upon manufactured lumber, under the provisions of chapter 150, sec. 6, Public Laws 1913, the plaintiff must show compliance with the various statutory requisites; and a charge as to notice that the jury should return a verdict for the plaintiff should they find that he attached “the notice to the lumber” on the defendant’s yard, is deficient and erroneous in leaving out the question as to whether the defendant had been served with a copy of the claim within five days after filing the lien with the justice of the peace, or that he could not be found.
    2. Liens — Laborers—Lumber — Statutes — Amount Due by Owner — Subcontractors.
    Where a laborer in the manufacture of lumber employs another laborer to assist him in his work, and the latter seeks to enforce the lien given by chapter 150, sec. 6, Laws 1913, for the value of the work he has done, it must be made to appear that the owner was due his own contractor, for the lien claimed can only be enforced to that extent, the object of the statute being to protect the laborer against any transfer of the lumber by the owner, who while indebted to his contractor, and insolvent, might otherwise pass the title to a bona fide purchaser for value, without notice of the lien.
    Civil actioN tried before Ferguson, J., and a jury, at October Term, 1915, of JacKSON,
    Plaintiffs sued for $54.45 due by account for labor performed. They were employed by one Frank Bailey to cut certain timber belonging to tbe defendants. Bailey bad been employed by defendants to cut tbe timber and be employed plaintiffs to belp bim. Tbey cut a part of tbe timber and received av/written order from Frank Bailey to tbe defendants to pay tbem tbeir wages, wbicb amounted to $75. Plaintiffs presented tbis order to defendants (a partnership) and there is evidence tbat tbey orally accepted tbe same, or promised to pay it, and actually paid $20 on it at tbat time, but refused to pay tbe balance.
    There was- evidence on tbe part of tbe defendants wbicb conflicted with tbat of tbe plaintiffs, and it tended to show only a conditional acceptance of tbe order.
    Tbe court charged tbe jury to return a verdict for tbe plaintiffs if tbey found tbat Frank Bailey owed tbe plaintiffs $54.45 for cutting tbe logs and tbat plaintiffs attached “tbe notice to tbe lumber” on tbe defendant’s yard and brought tbeir suit within tbe time specified in tbe statute, as tbis would give tbem a lien thereon, it being admitted tbat tbe defendants took possession of tbe lumber.
    Yerdict and judgment for tbe plaintiffs, and appeal by defendants.
    
      No counsel for plaintiff.
    
    
      Coleman C. Cowan for defendant.
    
   WalKER, J.,

after stating tbe case: Tbe statute under wbicb tbe suit was brought is chapter 150, Public Laws 1913, sec. 6. It provides tbat where tbe laborer’s wages for thirty days or less are due and unpaid, be shall file notice of his claim with tbe nearest justice of tbe peace in tbe county where tbe work was done, stating tbe number of days tbe labor was performed and tbe person for whom it was performed, tbe price per day, and tbe place where tbe lumber is situated, wbicb statement shall be signed by tbe laborer or bis attorney, and thereupon, and within five days after filing tbe notice with tbe justice of tbe peace, be shall deliver to tbe owner of tbe lumber a copy of tbe said notice; and if tbe owner cannot be found, tbe notice must be attached to tbe lumber upon wbicb tbe labor was performed, and upon tbis being done, any person buying said lumber (after tbe notice has been filed with tbe nearest justice of the peace) shall be deemed to have purchased tbe same with notice of tbe lien, but no action shall be maintained against tbe owner of tbe lumber unless brought within thirty days after tbe notice was filed with tbe justice of tbe peace as provided by tbe statute.

The court should have embraced in its charge all of tbe requisites or facts material to a valid lien, so tbat tbe jury could have found tbe facts in regard thereto, and tbe validity of tbe lien determined. There is no evidence that any attempt was made to serve a copy of tbe claim on tbe defendants within five days after filing tbe lien with the justice of tbe peace, and none tbat tbey could not be found. Tbe evidence rather tends to show that tbey could bave been found. But waiving tbis apparent defect in tbe charge, we are of tbe opinion that it did not correctly state tbe law of tbe case to tbe jury. Tbe statute of 1913, as previously construed by tbis Court, was intended to give a lien in favor of those embraced by its terms only when tbe owner of tbe lumber, upon which the labor was bestowed, is indebted to tbe contractor by whom tbe person claiming tbe lien was employed. In Glazener v. Lumber Co., 167 N. C., 676, a case substantially similar to tbis one, tbe Court said: “It is admitted that tbe lumber company bad no control over tbe employees of Campbell, and did not assume any obligation to pay them after tbey entered Campbell’s employment, and tbe court found that tbe debts due tbe plaintiffs were tbe sole obligations of Campbell, except in so far as tbey might, as a matter of law, bave tbe lien which tbey claim. . . . C. P. Hogsed worked in tbe band sawmill, receiving tbe plank as it fell from tbe saw and placing it upon a mechanical device, and there is due him for said service and labor a balance of $12.30 for work and labor done in November, 1913, for which be brought action and filed tbe lien on tbe same property as Fisher and Glazener. . . . Tbe court was not asked to find whether tbe lumber company was indebted to Campbell upon tbe contract, as there is an action pending between them to settle their differences. The court adjudged that tbe claim of Glazener, who was an employee in tbe blacksmith shop making repairs on the cars, and of Fisher, who was a railroad band working on tbe track and repairing bridges, were not liens upon tbe lumber or other property named above in tbe lien filed, but that tbe claim of Hogsed, who aided in cutting tbe lumber by taking the boards from tbe saw as cut and iffacing them on a truck, was a lien, provided, of course, that there was an indebtedness found to be due from tbe lumber company to Campbell at tbe time the notice of tbe'lien was given. . . . We think bis Honor’s decision was well considered and correct as to all three parties.”

O. P. Hogsed claimed a lien, in that case, under tbe statute of 1913, cb. 150, sec. 6, the same one under which tbe plaintiff seeks to recover in tbis action.

In Hogsed v. Lumber Co., 170 N. C., 529, tbe Court said, referring to Glazener v. Lumber Co., supra: “In tbe said former case we held that tbe plaintiffs were entitled to a lien upon whatever interest in tbe lumber their employer, Campbell, should be found to bave upon tbe settlement of tbe suit pending between Campbell and tbe lumber company. Whenever that amount is ascertained, tbe claims of tbe laborers are entitled to a first lien thereon, and by virtue of tbe judgment in tbis case said amount must be retained by tbe lumber company and paid over to these plaintiffs so entitled. Tbe lumber company will receive credit for such amount in settlement with Campbell, if tbey owe him so much.”

It appears from those two cases that plaintiff cannot recover unless be is able to show that tbe defendant at tbe time plaintiff’s lien was filed was indebted to bis employer, Frank Bailey; and if be succeeds in doing so, be may bave judgment only to tbe extent of tbat indebtedness. Tbis would seem to be a reasonable construction of tbe statute, as under tbe other construction tbe owner might in good faith and without any notice of outstanding claims against bis contractor settle with him, and be subjected to a double payment without any fault on bis part. Tbe notice and lien were intended to protect tbe laborer against any transfer of the lumber by tbe owner, who, while indebted to tbe contractor and insolvent, might without tbis safeguard pass tbe title to a bona fide purchaser for value and without notice of tbe laborer’s claim, and thereby defeat it.

It follows that there was error in tbe charge.

New trial.  