#### R. M. McGEE v. L. D. LEDFORD and Wife, MARY SMITH LEDFORD.

(Filed 30 September, 1953.)

1. Pleadings § 28—

A motion for judgment on the pleadings is in effect a demurrer to the answer, and admits the truth of all the well pleaded facts in the answer and the untruth of plaintiff’s own allegations in so far as they are controverted in the answer.

*2703.Same—

Where allegations of the answer have been stricken upon motion duly made prior to plaintiff’s motion for judgment on the pleadings, the court in passing upon the motion for judgment on the pleadings must disregard all allegations of the answer which had been so stricken.

3. Laborers and Materialmen’s Liens § 10—

Where the owner admits the alleged contract with plaintiff to repair a dwelling on her property, the contract price, the filing of a lien as required by law, her agreement to pay the contract price and the nonpayment thereof, plaintiff contractor is entitled to judgment on the pleadings in his action to recover the contract price and enforce his lien upon the property.

4. Contracts § 19: Laborers and Materialmen’s Liens § 9—

Even though a contract for repair of a dwelling damaged by fire is made in contemplation that the cost of the repairs would be paid out of the proceeds of a fire insurance policy on the dwelling, the owner is not absolved from liability to the contractor for such repairs even though she alleges that the insurance company is indebted to her and that the insurance contract was made for the benefit of the contractor, insurer not being a party to the contract and its failure to pay the amount of the policy not having the effect of discharging the liability of the owner to the contractor for the repairs.

5. Payment § 3—

Where an insurance company delivers its draft to the owners of property who endorse it over to the contractor who had made repairs to the property, the delivery of the draft is but conditional payment, and upon its dishonor by the bank on order of insurer, the owners and the contractor are relegated to their original debtor-creditor status.

Appeal by defendant from *Phillips, J.,*January Term 1953, Buncombe. Affirmed.

Civil action to recover on a contract to repair a building and to enforce a laborer’s and materialman’s lien on the property, heard on motion for judgment on the pleadings.

Plaintiff alleges that (1) on or about 15 November 1950, he entered into a contract with the defendants to repair a dwelling on their property which had been damaged by fire; (2) the contract price was $1,000; (3) he performed the contract on his part; (4) defendants having failed to pay the contract price, he filed a laborer’s and materialman’s lien as provided by statute; and (5) the defendants are now indebted to him in the sum of $1,000. He seeks to recover judgment for the amount alleged to be due and unpaid and to have the same adjudged a specific lien on the property described in the complaint.

The property plaintiff seeks to subject to a lien was originally conveyed to the two defendants as tenants by the entirety. They separated *271and were later divorced. They filed separate answers to tbe complaint herein, and tbe male defendant thereafter conveyed bis interest in said property to tbe *feme*defendant. Since L. D. Ledford now has no interest in tbe property and judgment was rendered only against tbe *feme*defendant, a summary of bis answer is unnecessary.

In her original answer tbe *feme*defendant denied that she entered into any contract with plaintiff to repair said dwelling and entered qualified denials of tbe other material allegations in tbe complaint which seek to state plaintiff’s cause of action. She then alleged by way of further defense that (1) tbe property was insured by tbe Caledonian-American Insurance Company; (2) tbe insurance company contracted with plaintiff to repair tbe damages done to her residence by fire; (3) it was expressly understood at tbe time that she was unable to pay for said repairs, that she assumed no obligations so to do, and that plaintiff was to be paid by said insurance company; and (4) upon completion of tbe repairs tbe insurance company issued its cheek for $1,000 which tbe two defendants endorsed and delivered to plaintiff. She prayed that said insurance company be made a party defendant and that she go hence without day.

Tbe insurance company, having been made a party defendant, appeared and moved that various specified allegations contained in *feme*defendant’s answer which bad reference to it and its alleged liability to plaintiff be stricken from tbe answer. Tbe motion was allowed and said defendant was granted leave to amend. Thereafter she filed a new or substitute answer labeled “Amended Answer of Mary Smith Ledford.”

In her new answer this defendant entered qualified denials of tbe material allegations in tbe complaint. At tbe same time she admits that: (1) she owns tbe property described in tbe complaint; (2) she and plaintiff entered into a contract for tbe repair of tbe dwelling located on her property, “and that tbe defendants agreed to pay tbe sum of $1,000.00 to tbe plaintiff for said repairs; and that they agreed that said $1,000.00' might be paid from tbe proceeds of a policy of fire insurance;” (3) “Tbe defendants are due and owing tbe plaintiff tbe sum of $1,000.00, and that said defendants agreed that tbe plaintiff might be paid said sum from tbe proceeds of a fire insurance policy;” (4) a lien was filed by-plaintiff as alleged in tbe complaint; (5) pursuant to negotiations between tbe plaintiff, L. D. Ledford, this defendant, and tbe said insurance company, tbe insurance company “agreed to pay to tbe plaintiff for and on behalf of tbe defendants, tbe sum of $1,000.00, for said repairs by reason of a fire insurance policy covering loss and damage sustained to' said bouse by reason of fire;” and (6) she “did not contract or agree to make any repairs *(sic)*for any repairs personally, but that it was contracted between plaintiff and both defendants and tbe Caledonian-Ameri-can Insurance Company that tbe said insurance company would pay tbe *272plaintiff tbe sum of $1,000.00, for repairs wbieb tbe plaintiff did make to said bouse; *and that by reason of a contract made between L. D. Ledford and this answering defendant with the Caledonian-American Insurance Company for the benefit of the plaintiff, B. M. McGee, the defendant, Caledonian-American Insurance Company is liable to this defendant in the sum of $1,000.00, which said Insurance Company contracted and agreed to pay*them for tbe benefit of plaintiff.” (Italics supplied.)

Sbe further alleges that she is informed and believes that *said insurance company "is liable to the defendant in the sum of $1,000.00, to be paid to plaintiff, R. M. McGee, for repairs which said B. M. McGee made on said lands and premises ”*(Italics supplied.) Sbe prays that sbe have and recover of said insurance company tbe sum of $1,000 to be paid to tbe plaintiff in full settlement for labor and material furnished, and that said lien be canceled of record and that sbe go hence without day.

Tbe insurance company again appeared and moved to strike from tbe substitute answer all reference to any negotiations or contract with it and all other references to it. Tbe motion particularized tbe language sought to be stricken. Tbe admissions of liability on tbe part of tbe *feme*defendant, to which reference has been made, were not included in tbe motion to strike.

At tbe October Term 1952, Patton, S. J., being of the opinion that tbe allegations tbe insurance company moved to strike were in substance tbe same allegations theretofore stricken from tbe original answer by Gwyn, J., and that tbe defendant is bound by tbe original order to strike, from which sbe did not appeal, allowed tbe motion. _ Tbe *feme*defendant expressly withdrew her appeal from tbe order of Patton, S. J., granting tbe motion to strike, and filed no further amendment as sbe was by said order permitted to do.

Thereafter tbe demurrer of tbe insurance company was sustained.

At tbe January Term 1953, plaintiff, after due notice to defendant, appeared and moved for judgment on tbe pleadings. Tbe motion was allowed and judgment that plaintiff have and recover of tbe *feme*defendant tbe sum of $1,000 with interest and costs and decreeing that plaintiff’s laborer’s and materialman’s lien be and is a specific lien upon tbe property described in tbe complaint was duly entered. Said defendant excepted and appealed.

*Cecil C. Jaclcson for plaintiff appellee.*

*George F. Meadows for defendant appellant.*

Barnhill, J.

Plaintiff’s motion for judgment on tbe pleadings is in effect a demurrer to tbe answer. *Pridgen v. Pridgen,*190 N.C. 102, 129 *273S.E. 419; *Raleigh v. Fisher,*232 N.C. 629, 61 S.E. 2d 897; *Erickson v. Starling,*235 N.C. 643, 71 S.E. 2d 384; *Bessire and Co. v. Ward,*206 N.C. 858, 175 S.E. 208.

Tbe motion in tbe nature of a demurrer admits (1) tbe truth of all well-pleaded facts in tbe answer, and (2) tbe untruth of plaintiff’s own allegations in so far as they are controverted in tbe answer. *Raleigh v. Fisher, supra; Oldham v. Ross,*214 N.C. 696, 200 S.E. 393; *Guerry v. Trust Co.,*234 N.C. 644, 68 S.E. 2d 272.

There can be no judgment for plaintiff on tbe pleadings unless tbe facts entitling plaintiff to relief are admitted and no valid defense or plea in avoidance is asserted in tbe answer. *Hoover v. Crotts,*232 N.C. 617, 61 S.E. 2d 705; *Bessire and Co. v. Ward, supra.*It must appear that (1) tbe complaint states a good cause of action which entitles plaintiff to some relief, and (2) tbe answer, construed liberally in favor of tbe pleader, raises no material issue of fact. *Dunn v. Tew,*219 N.C. 286, 13 S.E. 2d 536; *Raleigh v. Fisher, supra.*

Tbe pertinent pleadings in this case, considered in tbe light of these well-recognized rules, which have been consistently applied by this Court, compel tbe conclusion that tbe admissions contained in tbe answer warranted tbe judgment entered in tbe court below.

Tbe appellant admits tbe ownership of tbe property, tbe alleged contract with plaintiff to repair tbe fire damages to her dwelling located on said property, tbe contract price, tbe filing of a lien as required by law, her agreement to pay tbe contract price, and tbe nonpayment thereof. This leaves no material issue of fact to be answered by a jury.

In this connection we must bear in mind that it is tbe duty of tbe court to consider tbe substitute answer stripped of any and all reference to tbe insurance company or any promise defendant alleges it made to pay tbe contract price for and on behalf of tbe original defendants. They bad been stricken from tbe answer prior to the motion for judgment on tbe pleadings.

Even if we give consideration to such allegations, they are insufficient to absolve tbe defendant from liability on tbe contract she admits she made with plaintiff. Tbe contract respecting tbe proceeds of tbe insurance policy was entered into between defendants and tbe insurance company “for tbe benefit of tbe plaintiff,” and tbe insurance company is indebted to tbe defendants in tbe sum of $1,000, to be paid to tbem for tbe benefit of plaintiff. So sbe alleges. These allegations fall far short of any assertion that tbe contract to repair was entered into between plaintiff and tbe insurance company or that tbe insurance company is solely liable for tbe amount admittedly due plaintiff under a contract be made with tbe appellant. No doubt tbe defendant confidently anticipated that sbe would be able to discharge her liability to plaintiff out of tbe proceeds of *274the policy. In all probability, it was so understood by all the parties. Even so, the failure of the insurance company to honor its draft does not serve to discharge defendant or shift sole liability to the insurance company. Delivery of the draft of the insurance company to defendants, and by defendants to plaintiff, was at most a conditional payment. When the draft was dishonored by the bank on order of the insurance company, the parties were relegated to their original creditor-debtor status.

For the reasons stated, the judgment entered in the court below is

Affirmed.