155 Ga. 296 | Ga. | 1923
Lead Opinion
The failure of a party excepting to an auditor’s report on matters of fact, or on matters of law depending for decision upon the evidence, to set forth, in connection with each exception of law of fact,' the evidence necessary to be considered in passing thereon, or point out the same by appropriate reference, or to attach as exhibits to his exceptions those portions of the evidence relied on to support the exceptions, is sufficient reason, in an equity case, for refusing to approve the exceptions of fact and for overruling the exceptions of law. Armstrong v. Am. Nat. Bank, 149 Ga. 165 (99 S. E. 884). The exceptions of law and fact to the report of the auditor in this ease comply with the above requirement.
William Niller as trustee and the Board of Lights and Waterworks of the City of Marietta entered into a contract by which the former agreed to sell to the latter, for the sum of $15,000, all of the electric-lighting and power business then operated by said trustee, including all outstanding contracts and franchises then enjoyed by such trustee'or before that time owned and enjoyed by the Kennesaw Paper Co., and the good-will of said trustee and said Kennesaw Paper Co. in respect to said electric-lighting and power business in and around the City of Marietta, but not including any of the physical assets, cash on hand, bills, notes, and accounts receivable, or any other choses in action or contracts, except contracts made, with customers for furnishing electric light and power. Said board agreed to assume and carry out all legal contracts then existing between said trustee or the Kennesaw Paper Co. and any of its patrons for the furnishing of electric light and power as long as such contracts continued to be a legal obligation on either of said parties. The trustee agreed id completely dismantle said equipment, removing all poles, wires, and other -operating equipment from the streets, al
As the board had received none of the physical assets of the trustee for which he had not been paid, and as the board was not authorized to purchase the above intangible assets (Brumby v. Board of Lights and Waterworks, 147 Ga. 592, 95 S. E. 7), and as the trustee was not to make an absolute and unconditional conveyance of the above properties until the final payment of all the purchase-money, the law under such circumstances does not raise an implied promise on the part of the board to pay for such intangible assets. So the court erred in not sustaining the above exceptions of law and fact taken by the board to the findings of the auditor.
One Brumby, a citizen and taxapayer of Marietta, filed his equitable petition against said board, said trustee, and E. P. Dobbs,- to enjoin the payment of the notes given to the trustee in. part payment for the intangible assets referred to in the last paragraph, and the note given by the board to Dobbs for the sum of $3000 with which the board paid the initial payment on the purchase-price of said assets, on the grounds, that the board was without authority at law to make said contract for the purchase-money of said assets, and to create the indebtedness represented by said notes; and because said indebtedness was created without the sanction of a popular vote, in violation of the constitutional provision governing the creation of said debt by said city. This court held that said contract was illegal, and that the payment of said notes should be enjoined. Brumby v. Board of Lights and Waterworks, supra. Thereafter the defendants amended their answers to the petition, and set up the same facts in substance as are now alleged in their petitions in the cases now under consideration. In his amendment Dobbs alleged: “Whilst this defendant insists . . that said contract was legal and binding, he alleges and charges that, whatever view the court might take of the validity of the contract, but considering, as plaintiff alleges, that in such ease the city board got from this defendant $3000 and used it for a purpose within its corporate powers and spent it for the betterment of its plant, . . this defendant should not be deprived of his money.” He further alleged: “ The said city board obtained the money of this defendant and ap
In a few days after the trustee received the notes given by the Board of Lights and Waterworks for the purchase of the properties which the trustee agreed to sell to said board, said trustee sold the same for their full value to the Trust Company of Georgia, and now has no further interest whatsoever in said promissory notes. By the sale of said notes any right of the trustee to maintain an action to recover the value of the property which he contracted to sell to said board passed to his assignee of said notes. Parkersburg v. Brown, 106 U. S. 487 (1 Sup. Ct. 442, 27 L. ed. 238). This being so, Niller, as trustee, failed to make out a case which entitled him to recover; and the court erred in not sustaining the exception, both of law and fact, of the defendant to the finding of the auditor that the board was indebted in the sum of $12,000 to said trustee.
Whenever a municipality or one of its subsidiary or auxiliary commissions undertakes to contract a debt in violation of art. 7, sec. 7, par. 1, of the constitution of this State (Civil Code (1910), § 6563), such contract is prohibited, and is void and unenforceable under said provision of the constitution. Under this stringent provision, when property is received under such contract the law does not raise an implied undertaking on the
Judgments reversed.
Dissenting Opinion
dissenting-. • On December 31, 1919, William Niller as trustee instituted an equitable action against the Board of Lights -and Waterworks of the City of Marietta, for an accounting, and to' 'recover reasonable and just compensation for certain property alleged to have been delivered by the plaintiff to the latter and applied to its own uses and benefits. The 4th paragraph of the petition as amended alleged: “On January 8th, 1916, your petitioner delivered to the Board of Lights & Waterworks of the City of Marietta, a corporation duly incorporated under an act of the General Assembly of the State of Georgia, approved the-day of-1906, which act was amended by an act' approved the- day of- 1909, having its principal place of business in Cobb County, Georgia, and - which board is now composed of the following persons, to wit: James T. Anderson, Chairman, Ralph W. Northcutt, R. A. Hill; ex-officio members, Jim R. Brumby Jr., Mayor of the City- of Marietta, and T. L. Wallace, Chairman of "Council Committee, certain valuable property to wit: the franchises held and enjoyed by the Kennesaw Paper Company and your petitioner as trustee of the properties of said Kennesaw. Paper Company, conferring upon it the right to use the streets, alleys, and public square of the City of Marietta in the conduct of an electric-lighting and power business, which franchises were exceedingly valuable, for that they were perpetual and without condition; also-the electric-light and power business of said Kennesaw Paper Company and of your petitioner as trustee therefor, operated and conducted in and around the City of Marietta, together with all of its books, contracts, rights, and good-will, including contracts then in ac
“ 6. That prior to said delivery and transfer of the properties set forth above, the Board of Lights & Waterworks of the City of Marietta had constructed and was operating an electric-light and power plant and system in competition with that being operated by your petitioner, and at the time of such transfer and for years prior thereto there had been a keen and active competition between your petitioner’s electric-light business and that being conducted by the Board of Lights & Waterworks for the City of Marietta, which competition was so keen and of such a nature that the Board of Lights & Waterworks of the City of Marietta was unable to operate the light and power plant and system constructed and being operated by it profitably, and your petitioner’s business was a larger and more extensive business than that conducted by the Board of Lights & Waterworks, for that your petitioner at such time had outstanding, active, existing, going contracts with 322 customers, while the Board of Lights & Waterworks had at that time existing, outstanding, going contracts with only 258 such customers.
“ 7. That immediately upon the acquirement by the Board of Lights & Waterworks of the City of Marietta of the property delivered and transferred to it by this petitioner as aforesaid, the operations of the entire electric-light and power plant and system then owned and controlled by said Board of Lights & Waterworks, including that which it acquired from petitioner, became exceedingly profitable, the earnings therefrom being more than twice the amount of earnings which the Board of Lights & Waterworks had derived from the operation of its plant system prior to the*306 1st day of January, 1916. That prior to the year of 1916 the Board of Lights & Waterworks of the City of Marietta did not average not [net?] profits from the system then operated, by it an average of more than $4500.00 a year, while during each of the years following the 1st day of January, 1916, and including the years 1916, 1917, 1918, and 1919, the amount of profits derived from the operation of the plant and system of lights and power, including the property acquired from your petitioner by said Board of Lights & Waterworks, has averaged a net amount in excess of $10,000.00 each year.
“ 8. That a substantial part of the profits not exceeding an average of $4500.00 each year, as above stated, derived by the said Board of Lights & Waterworks in the operation of its electric-light and power plant and system prior to the 1st day of January, 1916, was derived from the large amount paid to the Board of Lights & Waterworks by the' City of Marietta itself for lights and power furnished to said City, being the payment of $300.00 per month during said period, while after the said Board of Lights & Waterworks acquired the property transferred and delivered to it by your petitioner as aforesaid, the cost of the lights and power furnished by said electric light plant and system by said Board was reduced from $300.00 per month to $75.00 per month, a saving of $225.00 per month to the City of Marietta and a reduction of income by the same amount to the Board of Lights & Waterworks of the City of Marietta, constituting about two thirds of the. entire net profit which had been received by said Board of Lights & Waterworks from the operations of its electric-light plant and system prior to the acquirement of the properties transferred and delivered to it by the petitioner as aforesaid.
“9. That your petitioner is informed and believes, and so charges, that out of the average net profit of $10,000.00 per annum realized by said Board of Lights & Waterworks of the City of Marietta in the operation of the electric-light plant and system, including the property acquired from your petitioner as aforesaid for the years 1916, 1917, 1918, and 1919, eight tenths (%0ths) thereof is directly attributable to the acquirement of the properties sold to said board by your petitioner and conclusively establishes the fact that said properties have a distinct, fixed*307 market value which, if judged by its income-producing value, as above set forth, would approximate a value of $100,000.00.
“ 10. But your petitioner shows that from whatever point of view the value of said properties transferred and delivered by your petitioner to said Board of Lights & Waterworks of the City of Marietta may be considered, that the same were reasonably and fairly worth, at their true market value, twenty thousand ($20,000.00) dollars, or some other large sum.
“ 11. That immediately after transferring and delivering the aforesaid property to said Board of Lights & Waterworks, your petitioner, -inasmuch as he had transferred the franchises aforesaid and the good-will and business of the electric-light plant and system being operated by him and the right to do business as a going concern, he in good faith dismantled his own plant, took down his poles and wires, and discontinued the use of the streets, alleys, and public square in said city and discontinued the operation and conduct of an electric-lighting plant and system in and around said city.
“ 12. That the Board of Lights & Waterworks of the City of Marietta still retains the aforesaid property and is still deriving the benefit from the use and operation thereof and large profits therefrom, while refusing to compensate your petitioner for the value of such property, and at all times since shortly after the transfer and delivery of said property by your petitioner to said board, being unwilling and in fact unable to.return said property to your petitioner or to restore the status quo between your petitioner and said board; that it would be unconscionable, unjust and inequitable to permit said board so to do without paying to your petitioner the reasonable and fair value of said property, both tangible and intangible.
“ 13. That said Board of Lights & Waterworks, under the act of the Legislature creating the same and the act amendatory thereof, is a corporate body subject to sue and be sued, and liable for its due and lawful obligations wherever made; that it has no power of taxation, but that the earnings from the operation of the public utilities in its hands, over and above all expenses of operation and after furnishing lights and power at reasonable rates to. the citizens of the City of Marietta, are ample to enable it to pay all of its obligations, including the payment to your pe*308 titioner of a fair and just compensation for the properties transferred and delivered to it by him.”
The prayers were (1) For a judgment for the full value of the property, less the cash payment received by plaintiff when the property was delivered. (2) For an accounting to ascertain a fair, reasonable, and just compensation to be paid for the property, and for judgment for such amount as might be ascertained. (3) That for the purpose of paying the amount of the judgment the defendant be required to set aside each year, until such judgment shall have been satisfied, all the net profits derived from the operation of defendant’s business. (4, 5) For process and general relief.
The defendant filed general and special .demurrers. The defendant also filed an answer alleging that for the want of sufficient information the defendant could neither admit nor deny the allegations in paragraphs 1, 2, and 3 of the petition, and alleging a denial of the allegations contained in paragraphs 4 to 13, inclusive, of the petition. Subsequently the answer was amended by filing a paper relied on as a plea of res adjudicata, which set out copies of the entire record in a former suit, including the final judgment of the trial court and the decisions of this court in the case of Brumby v. Board of Lights and Waterworks, 147 Ga. 592, and Dobbs v. Brumby, 150 Ga. 599, that case having been twice brought to the Supreme Court. The case mentioned was a suit instituted by B. G. Brumby as a citizen and taxpayer of Marietta against the Board of Lights and Waterworks of the City of Marietta, William Niller as trustee, and E. P. Dobbs. The purpose of the suit was to enjoin the Board of Lights and Waterworks from paying certain promissory notes, and to have a decree for cancellation of the notes. One of the notes was for $3000, payable to E. P. Dobbs, and the others (4 in number) were each for $3000, payable to William Niller, trustee. The notes originated in a contract of sale by Niller, trustee, to the Board of Lights and Waterworks of the same property that is described in paragraph 4 of the original petition in the present case, the value of which is the subject of the present action; and the notes as well as the contract were alleged to be void,'because, (1) the Board of Lights and Waterworks did not have corporate power to make the contract; (2) the agreement was an attempt by a municipal
The foregoing is a substantial statement of the pleadings in the ease of Niller as trustee against the Board of Lights and Waterworks. A separate suit was instituted by E. P. -Dobbs against the Board of Lights and Waterworks, to recover the value of the $3,000 which he had loaned to the board with which to make the initial payment to Niller, trustee, and which was used for that purpose. The original petition was similar, but somewhat more elaborate in its allegations as to the necessity for the Board of Lights and Waterworks to make the contract of purchase for Niller, trustee, and of the necessity for the loan of $3,000 with which to make the initial payment and the good faith of Dobbs in making the loan. As a part of the history of the transaction, a copy of the written contract between Niller, trustee, and the Board of Lights and Waterworks was attached as an exhibit to plaintiff’s petition, it being expressly stated that plaintiff did not claim under it. Except as indicated, the pleadings in the case of Dobbs were similar to those hereinbefore referred to in the suit instituted by Niller, trustee. Both eases, having been referred to an auditor, were tried together. The auditor made similar reports in each case, except that in the case of Niller, trustee, he found for the plaintiff $12,000 as principal, and a stated amount for interest; and in the case of Dobbs $3,000 principal, and a stated amount for interest. The defendant in each case filed exceptions of law which were overruled, and exceptions of fact which were disallowed. The defendants excepted to these judgments.
The foregoing statement shows a distinction which, in order to avoid confusion, should be kept in mind between these cases
The case of Parkersburg v. Brown, 106 U. S. 487, 503, cited above, involved the following transaction: The City of Parkersburg issued certain bonds payable to a named person, which were delivered to him under a contract whereby he should pay semiannual interest on the purchase-price and the principal at intervals during a term of years. To secure such payments the payee of the bonds conveyed certain real estate and personal property to a trustee, with power of sale in case of default. The payee then indorsed the bonds in blank, and sold them to purchasers who bought them for value and in good faith. The grantor named in the deed of trust defaulted in the payment of interest. After the city had paid several installments of interest on the bonds it took into its possession the property described in the deed of trust, and refused to make other payments of interest on the bonds. The holders of the bonds brought an equitable suit against the city. It was held, first, that the bonds were void, because the act of the legislature under which they were issued was violative of the constitution of the State. It was held further that the payee named in the bonds had a right to reclaim the property and to call on the city to account for it on disaffirmance of the illegal contract, and that such right passed to his assignee. In the course of the opinion, after discussing the constitutional question, it was said: “But, notwithstanding the invalidity of the bonds and of the trust, the O’Briens had a right to reclaim the property and to call on the city to account for it. The enforcement of such right is not in affirmance of the illegal contract, but is in disaffirmance óf it, and seeks to prevent the city from retaining the benefit which it has derived from the unlawful act. 2 Com. Cont. 109. There was no illegality in the mere putting of the property by the O’Briens in the hands of the city. To deny a remedy to reclaim it is to give effect to the illegal contract. The illegality of that contract does not arise from any moral turpitude. The property was transferred under a contract
In Chapman v. County of Douglas, 107 U. S. 348, 355 (2 Sup. Ct. 62, 27 L. ed. 378), a case of the following character was involved: A conveyed to a county in Nebraska certain lands for a " poor-farm,” and they were thereafter used as such. The county, pursuant to its agreement, made one cash payment, and for the remainder of the stipulated consideration gave its notes secured by mortgage and payable in one, two, three, and four years. Subsequently the Supreme Court of that State decided, that, by the purchase of lands for such a purpose, a county could not be bound to pay at any specified time the purchase-money, or to secure it by mortgage upon them, but was limited to a payment in cash and to the levy of an annual tax to create a fund wherewith to pay the residue. Holders of the notes filed a bill praying for a reconveyance and an accounting, or, should the county elect to retain the lands, then for a decree for the value of them. On appeal from the Circuit Court of the United States, the Supreme Court held that the plaintiff was entitled to the relief prayed for. In the course of the opinion it was said: " As the agreement between the parties has failed by reason of the legal disability of the county to perform its part, according to its conditions, the right of the vendor to rescind the contract and to a restitution of his title would seem to be as clear as it would be just, unless some valid reason to the contrary can be shown. As was said by this court in Marsh v. Fulton County, 10 Wall. 676, 684, and repeated in Louisiana v. Wood, 102 U. S. 294, the obligation-to do justice rests upon all persons, natural and artificial; and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.’ See also Miltenberger v. Cooke, 18
The principle stated in the quotation from Butts County v.
The plaintiff in error contends that the decisions in Brumby v. Board of Lights and Waterworks, and Dobbs v. Brumby, supra, and in McCrary Company v. Glennville, 149 Ga. 431 (supra), render it impossible for the plaintiffs to recover. But, bearing in mind the distinction pointed out at the beginning of this division of the opinion, it is manifest that the cases cited did not rule adversely to anything that is stated above. The first two decisions just cited had reference to the same case tried at different times in the court below. The whole question made by the pleadings and evidence was whether the contracts were illegal and should be enjoined. This court held that they were illegal, as beyond the charter power of the board to make such contracts, and asu violative of the clause of the constitution limiting the power of a municipality to create new debts; and that the contracts should be enjoined. In the McCrary case the rulings were as follows: “Where a contractor enters into a contract with a municipal corporation for the construction and equipment of a light and water plant under a written agreement whereby some of the contract price is to be paid in instalments through a series of years after th’e contract is completed, the effect of such contract is to create a debt within the meaning of article 7, section 7, para
Concurrence Opinion
I concur in the judgment; but the language used in the last paragraph of the decision is too broad, and I do not agree to all that is said therein.
Dissenting Opinion
dissenting. I agree to the result in Niller’s case, for the reason, as stated in the opinion of Hines, J., that this trustee has no further interest in the matter, having received all of his money from the Trust Company of Georgia, to whom to sold the notes.
As to the case of Dobbs, I stand firmly by the doctrine that where any person has in his hands money or property to which ex equo et bono he is not entitled, an action will lie; and for this reason I dissent in the case of Dobbs.