66 S.E. 607 | N.C. | 1909
Lead Opinion
PLAINTIFF'S APPEAL. This action was originally begun by R. J. Burgin, on behalf of himself and other taxpayers of McDowell County, against the board of commissioners of said county, the treasurer and sheriff of said county and B. F. Smith, trading as the B. F. Smith Fireproof Construction Company, seeking to enjoin the payment of certain notes issued (563) by the board of commissioners of said county to B. F. Smith, in the sum of $1,500 — three notes of $500 — and to enjoin the collection of a special tax levied to raise money to pay the same, the Board of Commissioners of McDowell also brought suit against B. F. Smith, the purpose of this action being to recover judgment for defective work done under the contract, hereinafter more fully recited, for improving and enlarging the courthouse in said county. In the Burgin suit the then board of commissioners (its members having been changed) answered, admitting the allegations of the complaint and praying to be made party plaintiff. This was done, it seems, without objection, and the board of commissioners took a nonsuit in the separate action instituted by it against Smith. The pleadings were reformed to meet this change of parties. In the Burgin suit the restraining order was issued and continued to the hearing of the action. The first draft of the complaint alleged that the Board of Commissioners of McDowell were authorized by Chapter 242, Laws 1901, to issue coupon bonds or county script, in an amount not exceeding $5,000, for the purpose of improving and enlarging the courthouse in Marion; that in January, 1902, the then board of county commissioners entered into a contract with the defendant, B. F. Smith, trading as the B. F. Smith Fireproof Construction Company, with the plans and specifications thereto attached, for the purposes specified in the act, and agreed to pay the said Smith the sum of $6,500 therefor, to raise which said sum the county, agreed to issue and did issue $5,000 in coupon bonds of the county, and county script in the sum of $1,500 — three notes of $500 each — payable in five years, with interest at five per cent per annum. The interest on the bonds was at the rate of six per cent and payable semiannually, evidenced by coupons attached to the bonds. The contract with Smith bound him "to well and sufficiently provide all necessary material, tools and appliances, and perform all the labor required in the *543 proper construction, erection and completion of a new addition to the county courthouse and appurtenances for said second party (board of commissioners), including metal fixtures and appliances," to be erected, etc., according to plans and specifications on file in the office of the register of deeds of said county. The commissioners reserved the right to make changes or alterations, and the contract provided a way for determining whether the alterations increased or diminished the contract price. The work was to be completed on or before 15 July, 1902. Then the contract proceeds: "In consideration of the foregoing covenants and agreements being well and faithfully performed by said first party (Smith), the said second party agrees to pay said first party, or (564) order, the sum of $6,500, as follows: $5,000 in cash and $1,500 in three notes, of $500 each, due and payable in five years from issue, drawing interest at five per cent, the county reserving the right to redeem any or all at any interest-paying period." As the work progressed it was stipulated that seventy-five per cent of the value of material furnished for and labor performed in the construction of the said building and its appurtenances should be paid on or about the first day of each month, and the remainder upon final completion "of said building and its equipments and appurtenances, as required by said specifications." Smith was required to give bond in the sum of $6,500, and it was further stipulated that "said second party shall appoint a superintendent, or committee, qualified to judge as to the quality and character of the material and work required by this agreement, whose duty it should be to inspect and report upon the work and material during the construction of said building; and should any material be furnished therefor, or work be done thereon, which, in his or their opinion, is not in accordance with the requirements of the plans and specifications therefor, it shall be his or their duty to notify said first party thereof, in person or by "written notice"; and the contract then provides the manner of adjusting any difference on this account, including arbitration; and "upon final completion of the work embraced in this agreement, the said second party shall examine the same, and, if completed according to contract, shall immediately accept the same and make final settlement with said first party therefor." It was also stipulated that "this contract covers the work in its entirety," and contained "all the understandings and agreements had between the parties hereto in relation to the erection and completion of said building and its equipments and appurtenances and the payments therefor," etc. The work was completed and accepted on 23 June, 1902, and the board of commissioners on that day gave a statement to Smith, saying that the had executed the contract to the entire satisfaction of the board of commissioners, and the workmanship was first-class and the work was in *544 every respect up to plans and specifications. During the progress of the work, there were some slight changes, but the cost of these was adjusted. On 20 March there arose a controversy as to whether the walls of the building were to be raised eighteen inches, and the board of commissioners requested a settlement of this matter pursuant to the terms of the contract. The defendant satisfied the board that the plans and specifications did not call for this, and the work proceeded. The (565) board of commissioners, under the provisions of the contract, appointed one Walter Graham as its superintendent of the work; then L. P. Crawford, chairman of the board; then J. G. Neal, a member of the board (who was dead at the time of the trial). The complaint alleged defective work and poor materials; that the walls were not raised to the height required, and that in a short time after the completion of the work the defects began to appear; that the acceptance was procured by the fraudulent devices and circumvention of the defendant, and the defective work so skillfully covered up and concealed that the commissioners could not discover it. The plaintiff further alleged that the three notes of $500 were void, as issued without authority and contrary to the provisions of chapter 242, Public Laws 1901, demanded their surrender and cancellation, and damages in the sum of $1,999.99 for breach of the contract. The defendant denied the allegations of the complaint, claiming that the work and materials were in accordance with the contract, denying any and all fraud, and stating that he had, upon the first notice of defective work, offered to make it good, and requested permission of the board of commissioners to make it good, and that they refused to permit him to make good the defective work. His Honor submitted issues to the jury, which, with the findings, are as follows:
1. Did the defendant fail to comply with his contract, as alleged in the complaint? Answer: Yes.
2. Did the defendant, by false and fradulent representations or by false and fradulent concealments of latent defects in the construction of the building, induces the board of commissioners to accept and approve the work and make settlement for the same? Answer: Yes.
3. Does the contract require the old walls of the building to be built higher; and, if so, did the defendant, by false and fradulent representations to the board of commissioners as to the meaning of the plans and specifications, induce the said board to abandon and waive the right to require the walls to be build higher? Answer: Yes.
4. Did the board of commissioners exceed the power and authority vested in them by law in executing the notes referred to it in the answer? Answer: No. *545
5. What damage, if any, have plaintiffs sustained by the fraud of the defendant? Answer: One thousand eight hundred dollars.
6. Is the plaintiff indebted to the defendant; and, if so, in what amount? Answer: No; for the reason that the notes or script pleaded as a counterclaim were not due at the beginning of this (566) action.
Upon the verdict his Honor rendered the following judgment: "This cause having been heard before the court and jury, and the jury having found the first, second, third and fifth issues in favor of the plaintiffs, as set out in the record: It is now, in motion of W. T. Morgan, Avery Erwin and Avery Avery, counsel for the plaintiffs, considered and adjudged that the plaintiff Board of County Commissioners of McDowell County do recover of the defendant, B. F. Smith, the sum of $1,800, the amount of damages assessed by the jury in response to the fifth issue, with interest on the same from 31 May, 1909, until paid, together with the costs of this action, to be taxed by the clerk of this court; and, further, that the script issued to defendant is valid, and the injunction heretofore issued to be dissolved." From which judgment both parties appealed to this Court. PLAINTIFF'S APPEAL. After stating the case: The appeal of the plaintiffs presents but two questions, to wit: (1) Did the Board of Commissioners of McDowell have the power to exceed the amount authorized by chapter 242, Laws 1901, in the improving and enlarging the courthouse in that county? (2) is the county estopped by the acceptance of the benefit of the executed contract to deny its liability?
It is well settled by several decisions of the Court that the building and repairing of the courthouse in a county is a necessary expense.Halcombe v. Comrs.,
In construing section 7, Article VII, Constitution of North Carolina, this Court, in Evans v. Comrs.,
The only other question that remains for consideration is: Can the county commissioners avail themselves of their want of power to contract the debt in excess of $5,000, as the work has been performed, accepted and notes issued for $1,500 in payment of the excess contract price over $5,000? We think the defense is available to the county commissioners, and we do not think they are estopped by the (570) fact that the work contracted for has been performed and accepted and notes in payment therefore issued, to deny their validity. In Davies v. Dickinson
The defendant, in his testimony, stated that he knew of the act of the Legislature, and that the amount was limited to $5,000. The principle announced in Trustees v. Realty Co.,
For the reasons given, and under the authorities cited, we are of the opinion that the three notes, of $500 each, issued to the defendant by the Board of Commissioners of McDowell are invalid and unenforcible, and his Honor's judgment declaring them valid is erroneous. The Superior Court of Burke County will enter judgment declaring the notes invalid and ordering the defendant to surrender them to the clerk of the said court, who will cancel them.
In the plaintiff's appeal the judgment is
Reversed. *550
DEFENDANT'S APPEAL.
Addendum
The commissioners of McDowell, desiring to improve and enlarge the county courthouse, advertised for plans. The defendant, Smith, went to Marion, discussed the matter with the commissioners, and was directed by them to prepare plans and specifications for additions and improvements, the agreement being that if his plans were accepted, and he became a bidder for the work and secured it, he would charge nothing for preparing the plans and specifications; but if they were accepted and another secured the work, he was to be compensated in an agreed way for them. Smith prepared the plans and specifications and sent them to the commissioners several weeks before the contract for the work was let. The commissioners accepted Smith's plans; the commissioners advertised for scaled bids, to be filed on or before 20 January, 1902. Smith, with two others, became bidders. Smith's bid was accepted, and contract with him was made on 20 January. Smith lived in Washington City, and it was not contemplated that he should give the performance of the contract his personal attention, but, of course, should have a competent person or superintendent. The plaintiffs alleged that Smith was a man of skill and ability in his business, both as a draftsman and a builder.
It was stipulated by the contract, among other things, as follows: "Said second party shall appoint a superintendent or committee, qualified to judge as to the quality and character of the material and work required by this agreement, whose duty it shall be to inspect and report upon the work and material during the construction of the said building; and should any material be furnished therefor or work done (572) thereon which in his or their opinion is not in accordance with the requirements of the plans and specifications therefor, it shall be his or their duty to notify said first party (the defendant in this action) thereof, in person or by written notice, forwarded by registered mail to its proper address, unless he or they and said first party or its agent or subcontractor can agree upon the subject in controversy; and the part of the work affected by such notice shall cease and not be resumed until an agreement is reached upon the subject in controversy or settled by competent authority." The commissioners, in compliance with this provision, appointed as their superintendent one J. G. Neal, a man, according to all the evidence, of high character, successful as a business man, and who had been sheriff of the county for many years. He was daily at the work and sometimes oftener. He had absolutely unrestricted opportunity to inspect all material and all work. Not a single witness testifies that any of the work or material were attempted to be concealed from his inspection, or that anything was done to divert *551 his inspection. The defendant was present only once while the work was being done. A controversy arose about increasing the height of the walls eighteen inches; Smith was notified, as required by the contract, came to Marion, and he and the commissioners discussed the matter, and it was agreed by them that the building should be completed without raising the walls. The work then progressed to completion. On 2 June the work was completed, inspected and accepted, the commissioners accepting it, in writing, "as executed to the entire satisfaction of the commissioners, as meeting all their requirements, and that the workmanship and finish are first class, being in every respect up to the plans and specifications." Smith was not even present. No witness testified that anything was done or said by Smith's superintendent to prevent the fullest and most minute inspection by the commissioners. The commissioners then settled with Smith in full, giving the three notes considered in plaintiff's appeal. Defects began to appear in the concrete work soon after the work was accepted, the witnesses differing somewhat in their recollection of the time, and the roof began to leak in a few places. No notice or complaint was made to Smith. After this action was begun by Dr. Burgin, Smith heard of it from his attorney, and at once wrote, complaining of this conduct, requesting information about the defects (in the meantime a new board of commissioners had been elected and come into office) and offering to repair any defects that were reasonably chargeable to bad work, but called attention to the provision of the contract above noted. He sent a man to Marion, not receiving any reply to his letter, and (573) he offered to repair the work, but the commissioners refused to let Smith to do it. The commissioners did nothing to remedy the defects; they did not paint the metal roof, though their own witnesses stated it ought to be painted at least once in three years. That the roof leaks and that some of the cement work is very defective was proved beyond doubt. The defendant, Smith, testified himself that he went to Marion during the trial of this action — seven years after the work was done — and that some of the concrete work was bad. The witnesses for the plaintiff and the defendant seemed to agree that it was rarely practicable to make every job of concrete work good; that the most expert and capable man occasionally failed. We have carefully read and examined the entire evidence taken by a stenographer, and we do not find any evidence legally sufficient to justify the finding of the jury to the second and third issues, and his Honor ought to have instructed the jury to answer those issues "No." The mere development of defects is not sufficient.
In 3 Page on Contracts, sec. 1507, this learned writer says: "If the person for whom work is done inspects it as it progresses, and accepts *552
it, after such inspection, as full performance of the contract, he cannot recover damages for alleged breach which such inspection could have disclosed." There is no doubt that a proper inspection could have disclosed that the walls had not been raised eighteen inches, and that anchors had not been put in the walls, and that the roof leaked, and that the seams of the shingles were not straight. The plaintiff had witnesses who discovered these defects by inspections made by them. It is manifest that the stucco of the columns on the front porch could have been impracticable to have discovered whether the cement concrete would be lime or cement mortar. The character of the plastering in the old part of the building could have been discovered, because the men, who did the work lived in Marion and were at the courthouse every work day for several months, and testified at the trial. It would have been impracticable to have discovered whether the cement concrete would be a good job or a bad job, but the commissioners were not required to accept this until they had become satisfied about it. In Pauly v. Hemphill County, 62 Fed., 698, a contract containing a stipulation in very nearly the exact words of the stipulation in the present case was considered by the court in the following language: "The proviso in the contract which placed it within the power of the defendant county to select its own commissioner to act as inspector during the building, if honestly carried out in accordance with its terms, would necessarily (574) have been of the greatest assistance and protection to both of the contracting parties, and would appear to be a wise and prudent precaution in the completion of such work, the actual supervision of which must necessarily be delegated to the representatives of each party. By it every opportunity in reason was given for the defendant (the plaintiff here) to secure good material and work. The plaintiff (defendant here) would at the same time be protected from the faults and negligence of its own servants, by being immediately informed of and enabled to correct them; also from any complaints that might be made subsequently, too late to determine their truth or falsity. The action of such an arbiter or supervisor, in the absence of any complaint made at the time and in the manner provided by the contract, is prima facie evidence of compliance with the contract, and should be conclusive, except upon the clear and distinct proof of fraud." R. R. v. March,
Reversed.
Cited: County v. Construction Co.,
(575)