Wilmington v. . Bryan

WALKER and CONNOR, JJ., dissenting. This is an action to recover $1,076.52 back taxes collected by the defendant after the revocation by the plaintiff of his authority to collect the same, payment thereof having been (668) demanded by the plaintiff and refused by the defendant. The answer admits the collection of the money, but sets up as a defense that the defendant had a continuing contract with the plaintiff which was to last till all the back taxes were collected, and sets up a counterclaim for $7,500 commissions on back taxes collected by the city attorney after the defendant's employment was revoked.

By chapter 182, Laws 1895, the city of Wilmington was given authority to collect its arrearages of taxes, and it was made the duty of the city attorney, together with such associate counsel as he might select, to bring such actions against delinquent taxpayers. This act was repealed. Laws 1897, ch. 517, ratified 9 March, 1897.

Under the authority of the act of 1895, D. B. Sutton, then city attorney, associated the defendant and several other attorneys with himself for the collection of back taxes. By virtue of this association the defendant and others now claim an irrevocable contract with the city, even after the repeal of the statute and after the expiration of the term of Sutton, on whom as city attorney the duty was imposed to make the collection, with the aid of agents to be selected by him. C. P. Lockey succeeded D. B. Sutton as city attorney, 4 April, 1898, and the board of aldermen turned over to him, as such city attorney, for collection, the back taxes for the years 1894-5-6-7, and on 25 April, 1898, passed the following resolution:

"Resolved, the board of audit and finance concurring, That the city attorney be and he is hereby authorized, empowered, and instructed to collect all taxes due the city for the years 1894-5-6-7, and to institute all actions in court that may be necessary to enforce the collection of such taxes. As compensation for making said collection, the city attorney may deduct and retain 10 per cent of all moneys collected under this resolution.

"Resolved further, That the city attorney be and he is hereby directed and instructed to join and cooperate with the attorneys now in (669) charge of the collection of the back taxes due the city for the years prior to 1894 upon such terms as may be agreed upon by him and said attorneys."

The board of audit and finance, 11 May, 1898, amended the said resolutions by changing the second paragraph of the first resolution to read as follows: "As compensation for making such collection, the city attorney shall be paid 10 per cent of all moneys collected by him, which amounts so paid to the city attorney shall include all costs and expenses to the city of any kind whatsoever. The city attorney shall make weekly reports of all moneys collected and render his bill for his commissions and shall give bond in the sum of $5,000," and as thus amended, adopted the aforesaid resolutions.

The defendant was one of the attorneys referred to in the second resolution, and was accordingly associated by the city attorney with himself in making collections of said back taxes. T. W. Strange succeeded Lockey as city attorney and was himself succeeded in that office in 1899 by Iredell Meares, who, some time after his election, made a demand upon the defendant for the tax books containing the back taxes due to the city prior to 1894. The defendant declined to surrender the same, claiming that he and his associates had an irrevocable contract for the collection of those taxes. The board of aldermen then passed a resolution directing the defendant and his associates to deliver to City Attorney Meares the said tax books, authorizing the said city attorney to collect said back taxes; and the board notified the defendant and his associates to proceed no further in the collection of taxes. The defendant again refused to surrender said books, claiming an irrevocable contract to collect the taxes, alleging ability and willingness to collect and averring that he would hold the city responsible for damages if he were stopped from proceeding further to collect. Afterwards, the said tax books were taken from the office of the defendant by said (670) City Attorney Meares by direction of the city authorities, and said city attorney and his successor in office have since that time been collecting said back taxes and have received the pay therefor.

The $1,076.52 demanded in the complaint is for back taxes which it was admitted were collected by him after Meares had become city attorney and had demanded the said tax books and had been refused, and this sum is held by him on the sole claim that the city is due him $7,500 as damages for refusing to permit him to continue the collection of the taxes. It was agreed that if the defendant was entitled to any counterclaim at all for his alleged damages (which are for loss of commissions and the value of services in issuing writs and notices and preparing for further collections), the amount should be fixed at $4,000, from which should be deducted the $1,076.52 due the city, collected as aforesaid after the notice of the termination of his attorneyship, and for the recovery of which this action is brought.

So the whole question is simply narrowed down to one of law, whether the city had a right to terminate the authority it had given, under which the defendant was collecting the back taxes, or did the defendant hold a perpetual and irrevocable contract to collect the back taxes.

There was error, as pointed out by the plaintiff's exception 1, in that the judge found on the above facts as a conclusion of law that the plaintiff entered into a contract with "E. K. Bryan and his associates." The facts show that the contract, if any, was made by the "board of aldermen with D. B. Sutton, as city attorney," and as such the contract terminated with the expiration of his term of office.

The court also erred in overruling the plaintiff's exceptions 2 and 8 to the referee's findings of law and in holding that the contract was a continuing one, when upon the facts found it was the employment of counsel to collect, without any duration (unless it was the term of office of the then incumbent as city attorney), and being without (671) limitation as to time, it was in law a contract terminable at the will of either party. Abbott v. Hunt, 129 N.C. 403. The ordinance of 30 July, 1895, set out in the referee's report, under which the back taxes prior to 1894 were placed in the hands of Sutton, city attorney, to collect, simply ordered those taxes to be collected, and that when collected "it shall be the duty of the city attorney to return the books and take a receipt therefor." There is nothing in that resolution carrying a property right, or power coupled with an interest, or creating a perpetual and irrevocable contract, with the then city attorney, who has long since passed out of office, as principal, and still less with the defendant as one of his subagents.

That a principal who appoints an agent, without limitation as to time, may revoke at any time, unless it is a power coupled with an interest, is elementary law. Ins. Co. v. Williams, 91 N.C. 69; Ballard v.Ins. Co., 119 N.C. 187. The resolution providing that the city "shall pay 10 per cent of all taxes collected without suit and 20 per cent of that collected by suit," does not confer any interest in the taxes, but is merely a method of measuring the compensation to be paid on that collected, so long as the authority to collect is unrevoked. Missouri v. Walker,125 U.S. 339. If the interest is in that which is produced by the exercise of the power, then it is not a power coupled with an interest; Abbott v.Hunt, 129 N.C. 403, where the authorities are collected at page 405, and which is conclusive of this case; Barr v. Schroeder, 32 Col., 609. "A mere power to collect money and receive property, the agent to have one-half of the net proceeds as compensation, is not a power coupled with an interest, and is revocable." Bancroft v. Ashhurst, 2 Grant Cas., 513; Blackstone v. Buttermore, 53 Pa., 266.

The relation which the defendant sustains to the city was merely (672) that of agent, and when the statute was repealed he had no contract right which was impaired. Mial v. Ellington, 134 N.C. 131;Missouri v. Walker, supra; Pennie v. Reis, 132 U.S. 464. Nor could the board of aldermen make a contract for the employment of legal services binding for an unlimited time and irrevocable by their successors. Abbott Mun. Corp., sec. 259; Wadsworth v. Concord, 133 N.C. 587. That would be worse than the inconveniences and shackles from which we were happily freed by the decision in Mial v. Ellington, supra.

Nor is there any force in the defendant's claim of a quantum meruit for legal services in preparing claims for suit when his agency was terminated (and indeed the judgment in his favor seems based solely on the fees paid to Meares and Bellamy, the succeeding city attorneys, for the collections made by them), for an obligation on an implied contract never arises when an express contract covers the same ground. The plain terms of this employment were that the then city attorney and his sub-agents, including the defendant, would collect the back taxes, under their express contract to receive for the work 10 per cent of taxes collected without suit and 20 per cent of the amount collected by law. This was the only compensation and bargain, and it is clear from the nature and terms of the contract that the same could be terminated at any time by either party, and it could not have been in contemplation that, in any event, it would last longer than the term of the principal agent, the city attorney, unless renewed with his successor, as each should come into office.

There was no contract for pay except for collection. The contract having been terminated rightfully and the only compensation being provided by express contract, there is no implied contract to exact any other or further payment for any other or further services. The express contract covers the entire ground and that was terminable at the will of either party. Abbott v. Hunt, supra. The (673) defendant knew the law, and if he had wished other pay for incidental services in regard to collections not made at the termination of the employment, he should have stipulated therefor. The city attorneys have under authority of law made the subsequent collections of back taxes and the city has paid them the fees, some $4,000 (it is agreed) for such services. The defendant ought not to be paid by the city over again the same sum for having been willing to collect these taxes, when we find that his claim of a right to do so is erroneous. And in no view of the case could this defendant have recovered in full for a demand which, if due at all, was recoverable by himself in common with several others.

The counterclaim set up cannot be sustained. The judge below having found as a fact in the judgment that the sum of $1,076.52, demanded by the plaintiff of the defendant, was collected by the defendant after Meares had been elected city attorney, and after the tax books had been demanded by the plaintiff from the defendant, which the defendant refused to surrender, the employment of the defendant being under a contract at will and revocable, the said action of the plaintiff in demanding the said books from the defendant was a revocation and a termination of the said contract, if any, with the defendant. All collections made by the defendant thereafter were tortious and gratuitous, and the plaintiff is entitled to recover the aforesaid sum with interest from 1 September, 1900, and costs. Judgment should be entered below in accordance with this opinion.

Reversed.