Dunavant v. . R. R. , 122 N.C. 999 ( 1898 )

As to the first and third grounds of counterclaim, the Court properly held that the $5,000 bond for the faithful performance of the work was a penalty and not liquidated damages, and that the defendant was entitled only to the actual amount of damages which was found by the referee. As to the forfeit of $50 per day, stipulated for each day of delay to finish the work beyond the time specified in the contract, it is sufficient to say that the referee has found that such delay was caused by the conduct of the defendant, and of course it cannot recover therefor. As to the fourth ground of counterclaim, the referee finds that there was no default in that regard by the plaintiff.

The exception that the lien cannot be filed on the property of a railroad company under The Code, section 1781, was properly overruled. The section provides that "any kind of property, real or personal, not herein (before) enumerated shall be subject to a lien for the (1001) payment of all debts contracted for work done on the same, or material furnished." This is broad enough to confer upon the contractor the right to file a lien against the railroad company for the construction of the road bed and for laying cross-ties and rails thereon. As most commonly such corporations start business decorated with a mortgage, it would be difficult to procure contractors and laborers if they were not entitled to contractor's lien (Code, section 1781) and subcontractor's line (Code, section 1801) in preference to mortgages registered after the work was commenced. Burr v. Maulstby, 99 N.C. 263;Lumber Co. v. Hotel Co., 109 N.C. 658; Clark v. Edwards, 119 N.C. 115. Judgments for labor performed and material furnished any corporation can be enforced against its property, though no lien is filed, in preference to prior mortgages. Code, section 1255; Coal Co. v. ElectricCo., 118 N.C. 232.

The other exceptions were all based upon exceptions to the judge's overruling exceptions to the findings of fact by the referee, and cannot be considered except where there is no evidence to sustain the findings, and unless the ground is assigned in the exception. Cotton Mills v. CottonMills, 115 N.C. 475; Collins v. Young, 118 N.C. 265. Where the judge makes no specific findings of fact he is taken to have adopted the findings of the referee. McEwen v. Loucheim, 115 N.C. 348; Battle v. Mayo,102 N.C. 413.

The report of the referee is drawn with care and ability, and was properly sustained by the Court below in every particular.

No error.

Cited: Belvin v. Paper Co., 123 N.C. 151; Henderson v. McLain,146 N.C. 333; Fox v. Gray, 148 N.C. 437; Baggett v. Wilson,152 N.C. 182; Williams v. Hyman, 153 N.C. 167; Riley v. Sears,156 N.C. 269; S. v. Bailey, 162 N.C. 585; Lumber Co. v.Lumber Co., 169 N.C. 91.

(1002)