Parsley v. . David

Citations

• 10 S.E. 1028
• 106 N.C. 225

Syllabus

<p>Lien of Material-man — Sufficiency of Complaint — Payments by Oimer After Notice — Evidence—Verdict and Judgment.</p> <p>1. Where, in an action to enforce a material-man’s lien under sections 1801-2 of The Code, the complaint alleged that, after the lien was filed, the defendant paid the contractor $375, and also $500 as a consideration for the cancellation of the contract, thus placing it beyond his power to complete his contract, which allegations the answer denied, and the issue thus raised was tried by the jury, this Court will deny a motion to dismiss the action because “the complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege that anything was due from the defendant to the contractor when the lien was filed.”</p> <p>2. In such case, it is competent to prove by the defendant how much he had paid the contractor under the contract at the time' notiee was-served on him by the plaintiffs.</p> <p>3. Where, the defendant had testified that he had not paid the contractor anything after plaintiffs’ notice was served, and had been cross-examined as to payments thereafter made to show that they were made on account of the contractor, it is competent to corroborate the defendant by the testimony of his book-keeper as to the date of the last payment to the contractor.</p> <p>4. In such case, where the jury found that the defendant had made certain payments after notice served on him by plaintiffs, among them a certain sum to the foreman of contractor to be used in paying hands, and also that the defendant was not indebted to the contractor at the time of said notice, the Court having put the burden on the defendant to show, by a preponderance of testimony, that the payments were not made under the contract between defendant and contractor: Held, that judgment was properly entered for the defendant.</p>