43 S.E. 634 | N.C. | 1903
The plaintiff alleged that on 5 December, 1898, the defendant board of commissioners contracted with him to employ him as attorney for the term of two years at an annual compensation of $200. That he accepted the employment and entered upon the discharge of his duties, and that he has at all times during the said two years been ready, willing, and able to perform his part of the contract. That a balance is due him on account of said contract of $350. That he has made demand upon the defendant for payment thereof and it has been refused.
The defendant, answering, does not deny the alleged contract, but says that it is invalid and cannot be enforced for the reason that they had the right to dispense with plaintiff's services when they deemed it advisable for the best interest of the county to do so. They deny that the plaintiff was at all times during the two years ready, willing, and able to perform his part of the contract, but that on the (210) contrary he at divers times failed and refused to perform work which was required by said board under the terms of said contract. For a further defense the defendant says that the board of commissioners passed an order dismissing the plaintiff, and that he made no protest against said order, but abandoned the functions of his office as county attorney and rendered no service. That at the time of his dismissal he had abandoned the practice of the law and had been appointed postmaster at the city of New Bern; that his duties as postmaster demanded nearly all of his time and attention and rendered it unsafe for the defendant to rely upon his advice and services, as he did not have sufficient time or opportunity to properly acquaint himself with the law, etc., and was therefore unable and disqualified to properly perform his part of the contract. That his salary as postmaster was very much larger than his salary as attorney, and that his dismissal in no way damaged him; that the advice given the board was not in accordance with law, and that he did not at the time of his dismissal and does not now possess the requisite skill and ability as a lawyer to properly discharge the duties imposed upon him by said contract, etc.
The plaintiff offered in evidence the original resolution of the defendant, and testified that it was adopted 5 December, 1898:
"Resolved, That Seymour W. Hancock be employed as attorney for the county for the ensuing two years at an annual compensation of $200 per annum." *150
He further testified that he "served during December, 1898, January, 1899, and was paid for these two months. The board removed me 1 February, 1899, and employed D. L. Ward. I received $50. The board revoked resolution of 5 December. I offered to perform (211) the services, and the board refused to have me. I was appointed postmaster at New Bern July, 1898. I was postmaster when the board employed me. I have no law office, and had none, except my office in the Federal building for postmaster. I have twenty-five or thirty law books. I do not hold myself out as a practicing lawyer. I have now no cases in the State courts. I have not advertised myself as a practicing attorney for the past few years. I am still postmaster. I have not practiced law to any extent for the last two or three years, and therefore I have not paid my law license tax. I get $200 a month as postmaster. The United States Government requires my complete supervision of the postoffice. I ask permission from Government to be absent a week. I have to ask leave of absence when I leave town. I made no protest when the board employed D. L. Ward. I did not attend the meeting of the board, as some members of the board had told me that they intended to remove me, and that it would be more agreeable for me not to attend. The United States had a prior claim on my services. If my presence was required at the postoffice, I should have to be there instead of at meeting of board. I told the members of the board when they told me they intended to remove me, that I objected to my removal and should sue them. I did not go before the board in session and protest at the meeting at which I was removed. At the next meeting of the board after my removal I went before the board; I was ready to perform my duties and should sue them. I was paid $50 for the two months."
He introduced J. A. Bryan: I was county commissioner prior to 1898. Plaintiff was attorney for the board before he was postmaster. I was on board some time while plaintiff acted as attorney. We found no fault with him, so far as I know. I was not on board after 1 December, 1898.
E. W. Smallwood: I was a member of board of commissioners (212) in February, 1899, when we discontinued plaintiff. We discontinued him because we thought his duties as postmaster must necessarily interfere, and that he could not discharge all the duties of our attorney in all the courts of the State. He was attorney for our board before he was postmaster, and we made no complaint. When the Legislature of 1899 met, it added four commissioners, all of whom were Democrats. There might have been some politics inducing some of the board to discontinue plaintiff, but we thought that there might *151 be, and likely would be, a conflict between his duties as postmaster and his duties to us.
John Biddle: I was chairman of the board of commissioners. There was nothing said at the meeting of the board, when plaintiff was discontinued, about politics. No reason was given for the action of the board. Before the meeting, and outside, Mr. Smallwood told me he thought the four new Democratic commissioners would prefer another lawyer, and that there might be some politics in it.
At the conclusion of the evidence for the plaintiff, the defendant moved to nonsuit the plaintiff under the act. Motion sustained. Exception by plaintiff. Appeal by the plaintiff.
The defense set up by the defendant in its answer, if submitted to and found by the jury, would have been ample reason for discontinuing the service of the plaintiff as attorney. We think that the board had the power to make the contract for the term of two years, that being the term for which it was elected. Roper v. Laurinburg,
New trial. *152
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