DEVIN, J., dissents.
SEAWELL, J., took no part in the consideration or decision of this case. The action is to recover $2,095.28 for materials furnished and used in the construction of a building and to enforce lien as provided by C. S., 2433.
Prior to filing of notice of lien, here sought to be enforced, plaintiff, with full knowledge of the facts, notified the defendants of its claim as a subcontractor under C. S., 2437. This claim was acknowledged, and defendants tendered judgment for $1,257.16, the amount then withheld and unpaid the contractor on the turn-key job. The plaintiff did not accept the tender of judgment as provided by C. S., 896, which worked its withdrawal, and again in open court refused to accept the tender after motion of nonsuit had been allowed. The judgment of nonsuit was affirmed on appeal, because of plaintiff's election of remedies. Lumber Co. v. Perry,212 N.C. 713.
Thereafter, in the Superior Court plaintiff moved for judgment in the sum of $1,257.16 and order to enforce subcontractor's lien. This was resisted because of changed situation and intervening rights. The motion was denied and judgment entered on certificate dismissing the action. The plaintiff thereupon filed this petition for rehearing and for modification of the original judgment. *Page 535 The plaintiff declared on one contract for a stated amount. The defendants tendered judgment on another and different liability for a lesser amount. The tender was not accepted under the statute, C. S., 896, which put it at an end, and it was again refused in open court at the close of the evidence. The plaintiff elected to stand upon the cause of action set out in its complaint and lost. The modification which it now seeks was declined in the trial court and was not advanced on the original hearing here. 3 Am. Jur., 350. Its later motion in the Superior Court was resisted on the ground of rights subsequently intervening. By the same token that plaintiff's first election is binding, as originally held, it would seem that its second ought to prevent another volte face in the matter. The case of Penn v. King, 202 N.C. 174, 162 S.E. 376, is distinguishable.
If plaintiff's rights have seemingly become entangled in the net of form, due to its elections, we may say that its remedy is an action to recover for materials furnished the contractor and used in the construction of the building. C. S., 2437; Briggs Sons, Inc., v. Allen, 207 N.C. 10,175 S.E. 838; Foundry Co. v. Aluminum Co., 172 N.C. 704, 90 S.E. 923. The complaint in the present action covers only one cause of action.
Petition dismissed.
DEVIN, J., dissents.
SEAWELL, J., took no part in the consideration or decision of this case.