Camden Clay Co. v. Town of New Martinsville
| Decision Date | 10 May 1910 |
| Citation | 68 S.E. 118,67 W.Va. 525 |
| Parties | CAMDEN CLAY CO. v. TOWN OF NEW MARTINSVILLE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
When a demurrer to a plea is overruled, the plaintiff cannot reply in point of fact unless he withdraws the demurrer; but leave to withdraw the demurrer will be conceded as of course and answer in point of fact then allowed.
Though a demurrer to a plea is not formally withdrawn after it is overruled, the defendant will be held to a recognition of its implied withdrawal if he permits an issue of fact to be joined by replication to the plea without objection on his part.
A town may e xpend its current revenues and accrued funds, and may make contracts to that end. To do so is not to "contract debts" within the meaning of the constitutional inhibition.
If the contracts and engagements of a municipal corporation do not overreach the dependable current resources for which provision exists at the time the contracts and engagements are assumed, no lawful objections to them can be interposed however great the indebtedness of the municipality may be.
A party to assert successfully the invalidity of a contract made by a municipal corporation, on the ground that it has assumed an indebtedness beyond that which it could legally assume by the contract, must establish by clear evidence all facts necessary to show the alleged invalidity.
Error from Circuit Court, Wetzel County.
Action by the Camden Clay Company against the Town of New Martinsville. Judgment for plaintiff, and defendant brings error. Affirmed.
Thos P. Jacobs and Hall & Hall, for plaintiff in error.
H. P Camden, Dan B. Leonard, Rankin Wiley, and Thomas H. Cornett for defendant in error.
ROBINSON P.
The Town of New Martinsville, a municipal corporation, on June 11, 1902, entered into a contract with C. Skidmore for the paving of particularly named streets. For doing the work in the manner specified, Skidmore was to receive stated prices for the curbing, excess excavating, and brick paving necessary to complete the contract. The work was to be completed by November first, of that year. Payments were to be made to Skidmore every thirty days, upon estimates of eighty per cent. of the work completed. Final payment was to be made at the completion of all the work and its acceptance. Just here it may be observed that the contract was to be performed and the work paid for during the current municipal fiscal year of 1902 within which it was made. The contract does not relate to future years, nor does it pretend to bind future levies for its payment.
Skidmore completed the work. The municipal authorities accepted it. They accounted with him and fixed the amount to which he was entitled. Then Skidmore assigned to the Camden Clay Company the amount remaining due to him from the town. Many payments were made by the town to this assignee. But later a balance of $10,000 remained unpaid, and the town refused to make further payment. This suit followed. The town in defense claimed that the work had not been done according to the contract, and that, in any event, the debt was an illegal and invalid one because the legal limit to which the municipality could incur indebtedness was exceeded in the making of the obligation. From a judgment for $11,700, upon the verdict of a jury, this writ of error was obtained.
Though many exceptions were presented in the original assignments of error, the brief of counsel for the town relies upon but two points. The neglected assignments, however, have been considered by us. Finding them not well taken, we overrule them. This written opinion may well be devoted to the two points raised in the brief.
Two special pleas were interposed by the defendant town. One of the pleas alleged a breach of the contract by Skidmore and averred that defendant was damaged by that breach to the amount claimed by plaintiff. The other plea denied the validity of the contract upon the averment that the town undertook to incur an indebtedness payable out of revenues for years other than the one as to which the contract was made. Plaintiff demurred to each plea, but the court overruled the demurrers. Then plaintiff replied generally to each plea. Issues were thus joined, without objection on the part of defendant. Now, defendant insists that when plaintiff failed in the demurrers to the pleas the issues presented by the pleas were thereby finally settled against plaintiff. In other words, it is submitted that plaintiff could not reply to the pleas after the demurrers thereto were overruled unless the demurrers were withdrawn. True it is that at the common law the plaintiff could give one answer, either of law or of fact, but no more, to each plea. 4 Minor's Inst (3d Ed.) 1167. This common law rule is changed by our statute only in one particular. More than one answer in point of fact to a special plea is now allowed--more than one replica tion. But this common law rule which applies to the plaintiff has not been altered further in his behalf, as a similar rule of pleading in relation to the defendant has been changed. The defendant may demur and also plead fact. He "may plead as many several matters, whether of law or fact, as he shall think necessary," except in a single instance named in the statute. The plaintiff, however, has not...
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