Bethune v. City of Mountain Brook

• Decision Date: 05 September 1974
• Parties: Louise L. BETHUNE et al. v. CITY OF MOUNTAIN BROOK, a municipal corporation. SC 689.
• Court: Alabama Supreme Court

Page 350

300 So.2d 350

293 Ala. 89

Louise L. BETHUNE et al. v. CITY OF MOUNTAIN BROOK, a municipal corporation.

SC 689.

Supreme Court of Alabama.

Sept. 5, 1974.

Rehearing Denied Oct. 3, 1974.

Donald L. Collins and A. Eric Johnston, Birmingham, for appellants.

Cabaniss, Johnston, Gardner, Dumas & O'Neal and L. Vastine Stabler, Jr., and Jack T. Camp, Birmingham, for appellee.

MADDOX, Justice. ^*

This appeal raises these questions:

1. Can a municipality agree to permit a real estate developer to file a subdivision plat at a later time?

2. Can a municipality enter into an oral agreement?

3. Were there disputed material facts presented which would prevent the entry of a summary judgment?

The Bethunes (appellants) owned property adjacent to property bought by the Board of Education of the City of Mountain Brook from Nelson Weaver Mortgage Co., Inc. for a school. The Bethunes and the Mountain Brook Board of Education entered into an agreement in which the Bethunes agreed to build two streets across their property to the school property.

One of the conditions of the purchase agreement made by and between the Mountain Brook Board of Education and Nelson Weaver Mortgage Co., Inc. was 'that Bethune Drive and Crosshill Road shall be extended and completed on or before December 31, 1965 * * *' across the property owned by the Bethunes. The Bethunes entered into a written contract with the Board of Education wherein they agreed to 'cause Bethune Drive and Crosshill Road to be extended and completed in strict compliance with the requirements of the City of Mountain Brook as public streets * * * said Bethune Drive and Crosshill Road to be located as shown in that certain map designated as Preliminary Plan of Westbury Addition to Mountain Brook * * * a copy of which has heretofore been filed with the Planning Commission of the City of Mountain Brook * * * and said Bethune Drive and Crosshill Road, as shown on said map as aforesaid, shall be dedicated to public use upon final approval by the Planning Commission of the City of Mountain Brook.'

The Bethunes built the streets. They were dedicated to the City. The Bethunes claim that when the City accepted dedication of the streets, the City approved the plat and agreed to allow them to file the subdivision plat at a later date. The City refused to accept the plat when the Bethunes offered to file it in 1971. The Bethunes subsequently filed this lawsuit, claiming damages because of the alleged breach by the City of its agreement to allow the late filing. The City answered the suit and admitted that it accepted the streets on March 27, 1967. The City also admitted that it had denied, in December 1971, the property owner's request to admit the subdivision plat to be recorded, however, the City denies that it made any agreement to allow the plat to be recorded at a later time.

The City also says that if any agreement was made, it was void because: (1) it was not in writing as required by Title 37, § 467, Code of Alabama, 1940; (2) the approval of subdivision plats is a legislative function and any attempt by one council to bind the exercise of that function would be void and contrary to public policy.

Title 37, § 467, provides:

'Contracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town, by the officers authorized to make the same, and by the party contracting. In cases not otherwise directed by law, or ordinance, such contracts shall be entered into and executed by the mayor in the name of the city or town and all obligations for the payment of money by the municipality, except for bonds, and interest coupons, shall be attested by the clerk. This section shall not be construed to cover purchases for the ordinary needs of the municipality.'

The Bethunes admit the agreement was not in writing. We cannot accept the City's argument that any agreement made by a city which are not in writing are void. The City cites City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816 (1919), to support its position. We concede that the original opinion in the City of Mobile case is authority for the porposition that the statutory method of contracting by a municipality must be strictly followed. However, on application for rehearing, this Court noted in the City of Mobile case:

'We feel that the questions treated in the original opinion have been properly decided, and that it is needless to prolong the discussion of same, but will merely add that we are not in disagreement with counsel in the slightest in the assertion that a literal compliance, even with a mandatory statute, is not essential, or that a substantial compliance would not suffice. Here, however, there was no substantial, or even attempted, compliance with one of the most important and mandatory requirements of section 1183 of the Code.'

The Bethunes argue that, even though the agreement was not in writing, the City of Mountain Brook had the capacity to make the agreement and the City is estopped to deny that a contract existed, especially since the City accepted the dedicated streets and used them and continues to use them. We note that the Bethunes, according to the evidence, spent substantial sums in constructing the streets.

Of course, it is well settled in Alabama that an executory agreement which is void under the statute of frauds cannot be made effectual by estoppel merely because it has been acted on by the promisee, and has not been performed by the promisor. Hurst v. Thomas, 265 Ala. 398, 91 So.2d 692 (1956). See also Cox v. Cox, 262 Ala. 106, 289 So.2d 609 (1974). Here, however, there was evidence presented that the City accepted benefits under the implied contract. Furthermore, the Bethunes claimed they had fully performed.

The law is to the effect that, provided a contract is within the scope of its corporate powers, a municipal corporation may be held liable on an implied contract, either where the contract is implied in fact from corporate acts, or is implied in law, to prevent the municipality from enriching itself by accepting and retaining benefits without paying just compensation therefor. 63 C.J.S. Municipal Corporations § 975, p. 524. In Greeson Mfg. Co. v. County Board of Education, 217 Ala. 565, 117 So. 163 (1928), this Court held:

"* * * The doctrine of implied municipal liability applies to cases where money or property of a party is received under such circumstances that the...