#### ROBERTS & JOHNSON LUMBER CO., et al., v. W. W. HORTON, et al.

(Filed 27 September, 1950.)

1. Laborers’ and Materialmen’s Liens § 3—

Materialmen can have no lien where the owners pay the contractor in advance more than the contractor had earned up to the time he abandoned the job and the claim was asserted.

2. Same: Contracts § 5—

An asserted promise by the owners to pay materialmen the amount due them by the contractor is unenforceable for want of consideration.

3. Laborers’ and Materialmen’s Liens § 3: Frauds, Statute of, § 5—

A parol promise by the owners to pay materialmen the amount due them by the contractor cannot form the basis of a claim of lien because of the statute of frauds. G-.S. 22-1.

Appeal by plaintiffs from *Patton, Special Judge,*January Term, 1950, OÍ HENDERSON.

Civil action to establish claim for materials furnished and used in construction of building and to enforce lien thereon.

Tbe defendants, W. W. Horton and wife, Belva Horton, own a tract of land in Mills Eiver Township, Henderson County. In January, 1947, they engaged John W. Sumner, a contractor, to build a dwelling-house thereon and agreed to pay bim $5,573.75 for a turnkey job or “complete job,” as designated in tbe contract.

*420Tbe plaintiffs sold to tbe contractor certain building materials, doors, locks, etc., wbieb tbe contractor used in bis work on tbe building. Tbe last of tbe materials furnished by plaintiffs was delivered 27 April, 1948.

Tbe contractor was paid $2,000 in advance and abandoned tbe job before it was completed. He bad been overpaid for tbe work be bad done up to that time. He was then indebted to tbe plaintiffs in tbe sum of $537.94 for materials furnished and used by him in bis work on tbe “Hotron job.”

Plaintiffs filed notice of claim in tbe Clerk's office 22 October, 1948. This action is to enforce lien against tbe building which was completed by tbe owners at a cost in excess of what they bad agreed to pay tbe contractor.

Plaintiffs also allege that after tbe contractor bad abandoned tbe work, tbe Hortons promised to pay tbe plaintiffs for tbe materials wbieb they bad furnished. This is denied by tbe Hortons.

Tbe contractor, John *W.*Sumner, though named as party defendant, has not been served with process or summons, nor has be appeared or filed answer herein. A jury trial was waived, and at tbe close of tbe evidence, judgment of nonsuit was entered in tbe cause.

Plaintiffs appeal, assigning errors.

*W. E. Anglin for plaintiffs, appellants.*

*L. B. Prince for defendants, appellees.*

Stacy, C. J.

The question for decision is whether the evidence suffices to overcome the demurrer. The trial court thought not, and we agree.

It is clear that under tbe decisions in *Rose v. Davis,*188 N.C. 355, 124 S.E. 576, and *Payne v. Flack,*152 N.C. 600, 68 S.E. 16, tbe plaintiffs can enforce no lien against tbe building for materials furnished tbe contractor. Tbe owners paid in advance for more than what tbe contractor bad earned up to tbe time be quit tbe job, and at no time thereafter was be entitled to further compensation under bis agreement. This defeats tbe plaintiffs’ lien. *Dixon v. Ipock,*212 N.C. 363, 193 S.E. 392; *Brown v. Hotel Corp.,*202 N.C. 82, 161 S.E. 735.

Additionally, however, tbe plaintiffs say tbe owners later promised to pay them for tbe materials which they bad furnished tbe contractor. This, tbe owners deny, and tbe plaintiffs’ evidence reveals no more than a mere verbal nude pact or a bare oral promise to pay. No consideration is shown for tbe promise, *Stonestreet v. Southern Oil Co.,*226 N.C. 261, 37 S.E. 2d 676; and tbe statute of frauds, G.S. 22-1, is also in plaintiffs’ way.

The record discloses no reversible error, hence tbe conclusion and judgment of tbe court below will be upheld.

Affirmed.