#### DOGGETT LUMBER COMPANY v. PRESTON M. PERRY and His Wife, EFFIE L. PERRY, et al.

(Filed 5 January, 1938.)

1. Trial §§ S3, 24—

Discrepancies and contradictions in plaintiff’s own evidence do not warrant tide granting of defendants’ motion to nonsuit, but ordinarily tbe . evidence should be submitted to tbe jury wben, viewed in the light most favorable to plaintiff, it is sufficient in any aspect to support plaintiff’s cause of action.

2. Laborers’ and Materialmen’s Liens § 4: Election of Remedies § 5— Materialman asserting lien under. C. S., 2437, is estopped from asserting lien under C. S., 2433.

Conceding that plaintiff’s evidence established that plaintiff material-man entered into a contract for the sale of material direct to defendant owner, the evidence also established that after plaintiff learned that the dwelling had been constructed under contract for a turnkey job, plaintiff gave notice as a subcontractor and thereby asserted a lien on the property under C. S., 2437. *Seld:*By electing to assert a lien as a subcontractor under C. S., 2437, plaintiff is estopped from thereafter asserting a lien as a contractor or material furnisher under C. S., 2433, and plaintiff is entitled to recover of defendant only the amount due the contractor by the owner on the date notice was given as a subcontractor or material furnisher to the contractor.

Appeal by plaintiff from *Olive, Special Jvdge,*at June Special Term, 1937, of Mecklenburg.

Affirmed.

Tliis is an action to recover of tbe defendants Preston M. Perry and bis wife, Effie L. Perry, tbe sum of $2,095.28, witb interest on said sum from 9 November, 1936, for lumber and building material wbicb was sold and delivered by tbe plaintiff to tbe defendants and used by tbe defendants in tbe construction of a bouse on a lot owned by them and located- in tbe city of Charlotte, N. 0., for judgment that plaintiff bas a lien as provided by statute on tbe bouse and lot described in tbe complaint for tbe sum of $2,095.28, and that said bouse and lot be sold by a commissioner to be appointed by tbe court for tbe satisfaction of said lien.

In tbeir answer tbe defendants deny that tbe plaintiff sold and delivered to them or to either of them tbe lumber and building material described in tbe complaint. They allege that tbe plaintiff sold and delivered tbe said lumber and building material to W. M. Wood, who used tbe same in tbe construction of a bouse for tbe defendants on tbe lot described in tbe complaint, in performance of bis contract witb tbe defendants. They further allege that tbe plaintiff sold and delivered tbe said lumber and building materials to tbe said W. M. Wood as a sub*714contractor, and thereafter notified the defendants that the said W. M. Wood had failed to pay the plaintiff for said lumber and building material, and demanded that the defendants retain from the sum due by them to the said W. M. Wood, under their contract with him for the construction of said house, the amount due by the said W. M. Wood to the plaintiff for said lumber and building material. They further allege that at the date of said notice and demand the defendants were indebted to the said W. M. Wood, under their contract with him for the construction of said house, in the sum of $1,257.16.

In their answer and at the trial, in accordance with the provisions of C. S., 896, the defendants tendered to the plaintiff, in full settlement of the amount due by them to the plaintiff on account of the lumber and building material sold and delivered by the plaintiff to W. M. Wood, and used by the said W. M. Wood in the construction of the house on defendants’ lot described in the complaint, a judgment in favor of the plaintiff and against the defendants for the sum of $1,257.16. The plaintiff in open court declined to accept said judgment as tendered by the defendants. The tender was accordingly withdrawn under the provisions of the statute.

At the trial the plaintiff offered in evidence the record of a- notice and claim of lien which was filed by the plaintiff in the office of the clerk of the Superior Court of Mecklenburg County on 30 November, 1936, and duly recorded in said office in Book of Liens No. 5, at p. 99, and which is as follows:

“To Whom It May Concern:

“Take notice that the Doggett Lumber Company, a corporation above named, does hereby claim a mechanics’, laborers’, and material fur-nisher’s lien against the above named Preston M. Perry and his wife, Effie L. Perry, W. M: Wood, and W. R. Outhbertson, trustee, defendants, and upon the property belonging to the said defendants, or in which the defendants have an interest, the said property being hereinafter more fully described, under, by virtue of and in pursuance to the Constitution and laws of the State of North Carolina, and the said claimant shows:

“1. That the name and residence of the above named corporation, which claims, gives notice of and files this, lien, is Doggett Lumber Company, West Park Avenue, Charlotte, North Carolina.

“2. That the names of the persons against whom and upon whose property this lien is hereby asserted, claimed and filed, are Preston M. Perry and his wife, Effie L. Perry, W. M. Wood, and W. R. Cuthbert-son, trustee, of Charlotte, Mecklenburg County, North Carolina.

“3. That the property of the said Preston M. Perry and his wife, Effie L. Perry, W. M. Wood, and W. R. Outhbertson, trustee, upon *715which this lien is claimed, asserted, and filed, is in Mecklenburg County, North Carolina, and is more particularly described as follows:

“ ‘Being Lot 14 in Block II, as shown on map recorded in Book 332, at p. 96, in the Mecklenburg registry, the said lot fronting fifty feet on West Kingston Avenue in the city of Charlotte.’

“4. That the materials on account of which this lien is claimed and filed were furnished to and for the above named Preston M. Perry and his wife, Efiie L. Perry, by the Doggett Lumber Company under and pursuant to the terms of an agreement, the same being an entire and indivisible contract made and entered into by the said Doggett Lumber Company and the said Preston M. Perry and his wife, Efiie L. Perry, and likewise by the said Doggett Lumber Company with the above named W. M. Wood, as agent for Preston M. Perry and his wife, Eifie L. Perry, on or about 10 August, 1936, the said Preston M. Perry and his wife, Efiie L. Perry being then the owners of the property herein above described; that by the terms of said agreement the claimant, Dog-gett Lumber Company, contracted and agreed to furnish certain material and cash required for the construction and completion of a dwelling house upon the aforesaid property, and the said Preston M. Perry and his wife, Efiie L. Perry, contracted and agreed to pay for said materials.

“A full and detailed description and list of the materials and funds so furnished, together with the dates of the furnishing of the various items and the values and cost thereof is hereto attached, marked Exhibit A, and is by reference made a part hereof. All of the said materials and funds were used in the building of the aforesaid dwelling house upon the above described property, pursuant to the aforesaid contract and agreement. The claimant began to furnish the said materials and funds on or about 10 August, 1936, and completed the furnishing of the same on or about 9 November, 1936.

“5. That, as claimant is informed and believes, the defendant W. E. Cuthbertson, trustee, is the trustee named in a deed of trust from Preston M. Perry and his wife, Effie L. Perry, dated 8 August, 1936, and recorded in Book 891, at p. 165, in the office of the register of deeds of Mecklenburg County, which said deed of trust constitutes a lien upon the above described real estate; that'by reason of the lien of said deed of trust upon the above described real estate the said W. E. Cuthbert-son, trustee, is made a party defendant herein.

“6. The amount, of the indebtedness due to the claimant, the Doggett Lumber Company, by reason of the matters and things herein set forth, is $2,095.28, with interest on said sum at the rate of six per cent per annum from 9 November, 1936, until paid.”

*716Tbe above notice and claim was duly verified by A. W. Doggett, tbe secretary and general manager of tbe Doggett Lumber Company. .Attached to said notice and claim is an affidavit signed by G. O. Doggett, president of tbe Doggett Lumber Company, to tbe effect tbat Preston M. Perry and bis wife, Effie L. Perry, are indebted to tbe Doggett Lumber Company in tbe sum of $2,095.28 for lumber and building material sold and delivered to them by said company and used by them in tbe construction of tbe bouse described in tbe complaint, as shown by tbe itemized statement of account which is attached to said affidavit.

Lee Grier, who is employed by tbe Doggett Lumber Company as its general cashier and credit man, as a witness for tbe plaintiff, testified as follows:

“On or about 8 August, 1936, I called tbe defendant Preston M. Perry on tbe telephone. I bad talked with W. M. Wood in regard to building a bouse for Mr. Perry. In consequence of what Mr. Wood bad said to me I called Mr. Perry on tbe telephone and asked him to come by my office. I told him tbat I wanted to talk with him about selling tbe lumber for tbe bouse which Mr. Wood was going to build for him.

“Tbe next day, 9 August, 1936, Mr. Perry came to my office and told me tbat be was ready to start bis bouse, and tbat be wanted to make arrangements for getting tbe lumber to bis lot. I have authority to make sales for tbe Doggett Lumber Company. Mr. Doggett passes finally on credits.

“Mr. Perry said be wanted to make satisfactory arrangements to get tbe lumber delivered at bis lot. I asked him about bis money arrangements to pay for tbe lumber. He told me tbat be bad made arrangements by which be could get tbe money to pay for tbe lumber when tbe bouse was completed, and tbat tbe money would then be available to pay Doggett Lumber Company for lumber and building materials used in tbe construction of bis house. At tbat time I did not know tbat Mr. Wood bad a contract with Mr. Perry to build bis bouse for him as a turnkey job. Mr. Perry said nothing to me about bis contract with Mr. Wood. We sold tbe lumber and building materials required for tbe construction of bis bouse to Mr. Perry tbat day, and thereafter delivered tbe same at bis lot upon tbe orders of Mr. Wood.

“We charged tbe lumber and building materials which we delivered at Mr. Perry’s lot on our books to W. M. Wood — Perry job. West Kingston Avenue.’ This was in accordance with our custom, and not because we bad sold tbe lumber and building material used in tbe construction of Mr. Perry’s bouse to W. M. Wood. We sold tbe lumber and building material to Mr. Perry. He told us to deliver on tbe order of Mr. Wood, which we did.

*717“After we bad delivered tbe lumber and building material shown on tbe itemized statement we learned tbat Mr. Wood bad contracted to build tbe bouse for Mr. Perry as a turnkey job. This was some time early in November, 1936. Mr. Wood bad not paid us for tbe lumber and building material wbicb we bad delivered at Mr. Perry’s lot, upon Mr. Wood’s order, and-wbicb Mr. Wood bad used in tbe construction of tbe bouse.

“On 25 November, 1936, we sent to Mr. Perry a notice as follows:

“ 'North CaeoliNa — Mecklenburg County.

“ £A. W. Doggett, being first duly sworn, deposes and says tbat be is secretary and manager of tbe Doggett Lumber Company, a corporation, witb its principal place of business in tbe city of Charlotte, Mecklen-burg County, North Carolina; tbat as such be is authorized to make this affidavit, notice, and proof of claim; tbat between 10 August, 1936, and 4 November, 1936, tbe Doggett Lumber Company furnished and delivered to W. M. Wood materials, cash, and merchandise as per tbe itemized statement hereto attached, marked Exhibit A, and made a part hereof, tbe said materials, cash, and merchandise so furnished amounting to $2,103.76, of wbicb $2,095.28 is still due and owing by tbe said W. M. Wood to tbe Doggett Lumber Company, witb interest at tbe rate of six per cent per year from 4 November, 1936, until paid; tbat tbe said sum is due over and above all credits, set-offs and counterclaims; tbat tbe said materials, cash, and merchandise were used by *the*said W. M. Wood in erecting a dwelling bouse upon tbe property of Preston M. Perry and bis wife, Effie L. Perry, on West Kingston Avenue in tbe city of Charlotte, North Carolina, tbe 'said lot being tbe lot on wbicb tbe said Preston M. Perry and bis wife, Effie L. Perry, are now building or have just completed tbe building of a new dwelling bouse thereon; tbat tbe said W. M. Wood built tbe said dwelling bouse on tbe aforesaid lot of land for tbe said Preston M. Perry and bis wife, Effie L. Perry; tbat tbe said Preston M. Perry and bis wife, Effie L. Perry, are now indebted to tbe said W. M. Wood on account of the erection of tbe said bouse on tbe said lot in an amount in excess of the balance hereinbefore mentioned due by tbe said W. M. Wood to tbe Doggett Lumber Company, and tbat tbe Doggett Lumber Company is giving this notice and is hereby notifying the said Preston M. Perry and bis wife, Effie L. Perry, to deduct the above mentioned balance due to tbe Doggett Lumber Company by tbe said W. M. Wood from tbe amount due by tbe said Preston M. Perry and bis wife, Effie L. Perry, to tbe said W. M. Wood; and tbe said Doggett Lumber Company hereby notifies tbe said Preston M. Perry and bis wife, Effie L. Perry, tbat it will look to them and bold them liable to it for tbe aforesaid balance of $2,095.28, together witb interest from 4 November, 1936, until paid.’ ”

*718The foregoing notice was signed and duly verified by A. W. Doggett.

At the conclusion of the foregoing evidence for the plaintiff the defendants moved for judgment as of nonsuit. The motion was allowed, and plaintiff duly excepted.

From judgment dismissing the action as of nonsuit the plaintiff appealed to the Supreme Court, assigning, error in the judgment.

*Guthrie, Pierce & Blaheney for plaintiff.*

*Taliaferro & Clarkson for defendants.*

OonNob, J.

For the purposes of this appeal it may be conceded, without deciding, that the testimony of Lee Grier, offered as evidence for the plaintiff at the trial of this action, viewed in the light most favorable to the plaintiff, in accordance with the rule applicable to a motion for judgment as of nonsuit under the statute, C. S., 567, was sufficient to support the allegations of the complaint that the plaintiff sold and delivered to the defendants the lumber and building'material described in the complaint and used in the construction of the house on the lot owned by the defendants, and that the defendants promised and agreed to pay plaintiff for said lumber and building materials.

Notwithstanding apparent inconsistencies and even contradictions in the evidence for the plaintiff, where the evidence in any aspect is sufficient to support the contentions of the plaintiff, it should ordinarily be submitted to the jury, and in such case it is error to dismiss the action by judgment as of nonsuit on motion of the defendant. *Moore v. Ins. Co.,*193 N. C., 539, 137 S. E., 580.

However, in this case, the evidence for the plaintiff shows that after the plaintiff had learned that the house described in the complaint had been constructed by W. M. Wood for the defendants under a contract for a turnkey job, with full knowledge of all the terms and provisions of said contract, the plaintiff elected to give notice as a subcontractor to the defendants as owners of the property of its claim against W. M. Wood for the lumber and building material, which it had sold and delivered to the said W. M. Wood, and which the said W. M. Wood had used in the performance of his contract with the defendants. This notice was given to the defendants on 25 November, 1936. The plaintiff thereby asserted a lien on the property of the defendants as a subcontractor under the provisions of C. S., 2137. By giving the notice it sought to enforce said lien in accordance with the provisions of C. S., 2438.

After the plaintiff had given defendants notice of its claim of a lien on their property as a subcontractor it learned that the amount due by the defendants to W. M. Wood, as contractor at the date of the *719notice, was not sufficient to pay its claim in full. Thereafter, to wit, on 30 November, 1936, the plaintiff undertook to assert a lien on defendant’s property as a contractor or furnisher of materials under C. S., 2433, by filing notice and claim under the provisions of C. S., 2469. Having elected to file a notice of a' lien as a subcontractor under the provisions of C. S., 2437, the plaintiff was estopped from asserting a lien under C. S., 2433.

In *Baker v. Edwards,*176 N. C., 229, 97 S. E., 16, it is said by *Walker, J.':*

> “An election of remedies is defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts, and it is said in the Scottish law to be based on the principle that a man shall not be allowed to approbate or reprobate. His taking the one or making use of it will exclude or bar the prosecution of the other. The doctrine is generally regarded as being an application of the law of estoppel upon the theory that a party cannot, in the assertion or prosecution of his rights, occupy inconsistent positions.”

This principle is applicable to the facts shown by the evidence for the plaintiff in the instant case. Accordingly the judgment dismissing the action as of nonsuit is

Affirmed.