Honey Properties, Inc. v. City of Gastonia , 252 N.C. 567 ( 1960 )

114 S.E.2d 344 (1960) 252 N.C. 567

HONEY PROPERTIES, INC.
v.
CITY OF GASTONIA.

No. 169.

Supreme Court of North Carolina.

May 18, 1960.

Hollowell & Stott, Hugh W. Johnston, Gastonia, for plaintiff.

J. Mack Holland, Jr., James B. Garland, Gastonia, for defendant.

DENNY, Justice.

The plaintiff's sole exception and assignment of error is to the action of the court below in sustaining the defendant's motion for judgment as of nonsuit.

The plaintiff contends that the trial court committed error in refusing to permit the jury to find the facts and determine whether or not the defendant should pay the plaintiff for the sewer line installed by the plaintiff and thereafter made a part of the defendant's sewer system.

We are of the opinion that the ruling of the court below should be upheld for the following reasons: (1) As we construe the record in this case, there were no conditions attached to the delivery of the contract executed by the plaintiff on 22 May 1952; that it was accepted by the view that this contract was delivered to the City of Gastonia after its execution on 22 May 1952; hat it was accepted by the City Council of the City of Gastonia at a meeting of the Council on the above date and ordered filed for registration; that it was filed for registration in the office of the Register of Deeds for Gaston County on 24 May 1954, two days before the letter dated 22 May 1952 was received by the City, purporting to make the contract previously delivered subject to certain conditions and reservations. This was too late to modify the contract. Therefore, we hold that, the contract having been delivered unconditionally insofar as the record discloses, and the plaintiff having been granted the privilege which was the consideration for the execution of the contract, to wit, the right to connect its sewer line with the sewer system of the City of Gastonia, which connection was made on 23 May 1952, the plaintiff's agreement could not be altered or amended thereafter except by the consent of the defendant and there is no evidence tending to show that the defendant ever consented to any change or modification of the contract. (2) The contention of plaintiff that the contract with the City, which was executed on 22 May 1952, was without consideration and therefore invalid, is without merit on two grounds: First, the contract states, "In consideration of being permitted to connect with the sewer system of the City of Gastonia, we do hereby agree that whenever the said lines * * * shall be taken into the City of Gastonia, the said City shall be the owner in fee simple of said lines * * *." Second, the contract was executed under seal. A contract executed under seal imports consideration. McGowan v. Beach, 242 N.C. 73, 86 S.E.2d 763, and cited cases. Pearson, C. J., in considering this question in Harrell v. Watson, 63 N.C. 454, said: "A bond needs no consideration. The solemn act of sealing and delivering is a deed, a thing done, which, by the rule of the common law, has full force and effect, without any consideration. Nudum pactum applies only to simple contracts. * * *"

Moreover, the execution of the contract by the plaintiff was a condition which the City had the right to require before permitting the plaintiff to connect its sewer line to the sewer system of the City. Atlantic Construction Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165.

The plaintiff could not compel the City of Gastonia to permit it to connect its sewer line to the sewer system of the City. On the other hand, the City was powerless to compel the plaintiff to construct a sewer line and connect it with the City sewer system. It was purely a matter of contract, on such terms as the City was willing to grant and the plaintiff was willing to accept. Atlantic Construction Co. v. City of Raleigh, supra; G.S. § 160-255.

The fact that the City may have entered into previous contracts in which it had agreed to purchase sewer and water lines if and when the territory was incorporated within the city limits, is not controlling on this record.

In light of the facts revealed in this case, the judgment of the court below is

Affirmed.