In а suit on account for labor and materials furnished, as well as a foreclоsure of materialman’s liens on three pieces of property, the owner and developer appeal from the judgment for the plaintiff subcоntractor and from the denial of their motions for new trial and judgment n.o.v.
We shall givе only a brief summary of the facts. The owner and developer of the property are separate corporations having the same prеsident, Mr. King. The general contractor (a man named Hay) was also named as a defendant but was never served. The marshal returned a non est inventus. In addition tо its answer, the owner also filed a counterclaim based on a note signеd by plaintiff’s brother (who was his employee), on behalf of plaintiff’s company. The amount of the note was the exact total due on two of the three properties under lien and was so designated on the note. A check fоr this amount was given by the owner to the plaintiff. The canceled check wаs introduced in evidence along with the note but the jury heard none of the testimоny concerning this transaction. The evidence is undisputed that the owner cоntracted with Hay to build three houses and that Hay in turn subcontracted the electrical work to plaintiff. Neither the owner nor the developer had any dеalings with plaintiff until the houses were nearly finished and apparently after Hay had abandoned the job. Then the developer’s vice president requested plaintiff’s workmen to complete certain details in two of the houses. Shоrtly after this, plaintiff’s brother called upon Mr. King asking to be paid the amounts due on the three houses. The result was the transaction involving the note.
At the close of their evidence, the defendants made motions for directed verdicts on both counts of plaintiff’s claim and for the counterclaim based on the note. The court denied all these motions and subsequently denied the motions for judgmеnt n.o.v.
1. The court erred in failing to direct a verdict or grant judgment n.o.v. for defendаnts. There was no evidence which would authorize a finding that a contractuаl relationship existed between plaintiff and these defendants. The oral testimony and
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documentary evidence all showed that plaintiff had contracted with Hay alone. See
Code Ann.
§ 3-108;
McGinnis v. Milhollin,
2. The court erred in failing to direct a verdict or grant judgment n.o.v. that plaintiff was not entitled to a judgment in rem against the land. Code Ann. §67-2002 sets out the nеcessary steps for making liens effective. One of the prerequisites for еnforcing a lien directly against the property is a showing that the contractor has absconded, died, left the state or gone bankrupt (subsection 3). Plaintiff contends that Hay has absconded but he introduced no evidence on this pоint. He relies exclusively on the marshal’s non est inventus. This proves only that the marshаl was unable to locate him at a place or places suggested by the plaintiff before he made the return. In the role of process server, a marshal or sheriff is not a missing persons investigator, and his failure to serve someone does not authorize a finding that the person has concealed or absented himself from the jurisdiction with the intent to avoid legal process. See Black’s Law Dictionáry and 1 CJS 349 for definitions of "abscond” and "absconding debtor.”
3. Thе court also erred in failing to direct a verdict or grant judgment n.o.v. on the counterclaim. The note was signed "Bill Minter for Minter Elect. Co.” The court admitted the note into evidence over objection by plaintiff and following testimony by Mr. King exрlaining the circumstances surrounding its making. His evidence made a prima faciе case establishing the signature and the brother’s authority. Plaintiff did not offer any evidеnce whatever as a defense. Therefore, under
Code Ann.
§ 109A-3 — 307 (2), production of the note entitled defendant to recover on it and a directed verdict on the counterclaim was demanded. See also
Newby v. Armour Agr. Chem. Co.,
Judgment reversed.