In this proceeding to foreclose an alleged lien for material furnished for the construction of a house, two issues arise: (1) Was anything due the plaintiff? (2) Was the property subject to a lien in favor of the petitioner on the property, as against the defendant, the owner of the property? The Circuit Judge found the cause on Calendar 1 for trial, and without objection proceeded with the trial before a jury, as if the case were an ordinary jury cause. The jury found a verdict of $324.65 for the plaintiff, and an ordinary money judgment was entered thereon.
I concur in the view of Mr. Justice Gary that the only ultimate relief which the petitioner could have was an order for the sale of the property, as provided in section 3028 of the Civil Code, and that an ordinary money judgment could not be entered on the verdict.
If, however, there had been no error in the charge, the finding of the jury would be a legal finding on "every material question of fact arising in the case" under section 2035. That section provides: "Every material question of fact arising in the case shall be submitted to a jury, if required by either party, or deemed proper by the Court; and the trial shall be had upon a question stated, or an issue framed, or otherwise, as the Court may order. A jury shall be had before a magistrate only as in other civil cases." This means that the method of submitting the material questions of fact to the jury is within the discretion of the Circuit Judge. It was not an abuse of discretion to submit the case to the jury in the method here pursued, especially as the defendant made no objection. Therefore, but for an error in the charge, the proper order of this Court would be that the judgment be set aside, and the cause remanded for the Circuit Court to make its decree in the light of the finding of the jury.
The Circuit Judge charged: "That if Mr. Oswald knew that Metz was furnishing lumber for the erection of the *Page 405 building on his lot, and desired to prevent Metz from acquiring a lien on the property, he should have given Metz notice that he would not be responsible." The word "owner" is used in the same sense in sections 3008 and 3011, and the two sections are entirely consistent. It is not necessary for the owner of property to give notice under section 3011 that he will not be responsible for the labor or material, unless the labor or material was to be furnished by virtue of his agreement or consent as provided by section 3008. Consent is not implied from mere knowledge. Gray v. Walker, 16 S.C. 143; Geddes v. Bowden, 19 S.C. 7.
On the trial of issues before the jury the Court could, in a case like this, direct a verdict for the defendant because of total failure of proof to support the claim; but it could not order a nonsuit. McClenaghan v.McEachern, 47 S.C. 446, 25 S.E., 296.
Hence there was no error in refusing the motion for nonsuit, and as it seems to me an opinion as to the effect of the evidence would for this reason be premature. I think there should be a new trial of the issues for the error in the charge above indicated.