Charlotte Lumber & Manufacturing Co. v. City of Charlotte , 242 N.C. 189 ( 1955 )

87 S.E.2d 204 (1955) 242 N.C. 189

CHARLOTTE LUMBER & MANUFACTURING COMPANY
v.
CITY OF CHARLOTTE.

No. 530.

Supreme Court of North Carolina.

May 4, 1955.

Lassiter, Moore & Van Allen, Charlotte, for plaintiff appellant.

John D. Shaw, Charlotte, for defendant appellee.

WINBORNE, Justice.

Appellant plaintiff states this as question involved on this appeal: Did the trial court err (1) in allowing defendant's motion for judgment as of nonsuit?, and (2) in the exclusion of certain evidence of value?

In connection with the first division of the question, the defendant in its answer to the allegation of the complaint in respect to an agreement between it and the Engineering Department of the City of Charlotte averred that the Engineering Department of the City of Charlotte had no authority to enter into any agreement, and specifically pleaded provisions of the City Charter in these respects: "The mayor shall sign all written contracts or obligations of the city and no contract of the city required to be in writing shall be binding upon the city until signed by the mayor * * *" § 33(1), and that "all contracts shall be signed by the mayor or mayor protern, and attested by the city clerk and approved as to form by the city attorney and certified by the city accountant, as provided by law, before becoming effective." § 48(1).

However it is not contended that the City of Charlotte was without power to enter into contracts in respect to sewerage systems. Quite to the contrary, it is provided in the City Charter, Section 65 "that the City of Charlotte may enter into contracts, when duly authorized by a majority vote of the city council, with any person, firm or corporation whereby sewer or water lines may be laid within or without the city and connected to the system of said city under such terms as may be agreed upon".

Conceding, therefore, that plaintiff had no written contract with the City of Charlotte, signed by the mayor, as required by the City Charter, P.L.L.1939, Chapter 366, and, hence, has no enforceable contract with the city for the sewer system which the city took over on 8 February, 1952, and incorporated into the gravity sewer system of the city, decisions of this Court hold that in such case plaintiff is not without a remedy—it may recover on basis of quantum meruit for the reasonable and just value of the sewer system. McPhail v. Board of Com'rs, 119 N.C. 330, 25 S.E. 958; Abbott Realty Co. v. City of Charlotte, 198 N.C. 564, 152 S.E. 686; Board of Com'rs of Brunswick County v. Inman, 203 N.C. 542, 166 S.E. 519; Moore v. Lambeth, 207 N.C. 23, 175 S.E. 714; Hawkins v. Town of Dallas, 229 N.C. 561, 50 S.E.2d 561.

Indeed the case of Abbott Realty Co. v. City of Charlotte, supra, is similar in factual situation to that of case in hand. This Court, while holding that plaintiff had failed to sustain its contention that defendant was liable to it on the contract alleged in the complaint, the defendant should be and is liable for the reasonable and just value of the sewers, if the jury should find that after their construction, defendant took them over and incorporated them into its municipal sewerage system. In the instant case that the city has taken over and incorporated the plaintiff's sewer system into its composite gravity sewer system, is stipulated as a fact.

But appellees contend "that when the plaintiff attached its sewer line without a valid contract as provided in Section 65 of the City Charter of the defendant it is within the purview of such legislative enactment that it gave it to the city." This is a non sequitur. There is nothing in the record tending to show any intention on the part of plaintiff to give the sewerage system to the city. And the facts stipulated fail to show that plaintiff made the connection. On the other hand, the stipulated facts do show that the construction of a connecting line was made by authority of the city council at the city's expense, and that on 8 February, 1952, after it was completed, the City of Charlotte made the connection, and appropriated plaintiff's system of sewerage and assumed the maintenance and operation of it.

Appellee cites and relies upon the case of Spaugh v. City of Winston-Salem, 234 N.C. 708, 68 S.E.2d 838. The facts in that case differ in material aspects from those in the present case. Hence it is not controlling here.

As to the competency of the testimony of the witness Richey: He testified that he prepared the map which was attached to and made a part of the stipulations of fact, and that the map fairly represented the sewer lines about which this case is concerned; and that in his opinion the just and reasonable value of the sewer system in February 1952 was $17,760, which amount he testified he figured in 1952 at the time the line went into the city system by gravity. Thus it is apparent that the witness was testifying from personal observation and knowledge. See State v. Hightower, 187 N.C. 300, 121 S.E. 616.

For reasons stated the judgment as of nonsuit is

Reversed.

BARNHILL, C. J., took no part in the consideration or decision of this case.