City Of Norfolk v. Norfolk County

• Decision Date: 11 January 1917
• Citation: 91 S.E. 820
• Parties: CITY OF NORFOLK v. NORFOLK COUNTY.
• Court: Virginia Supreme Court

91 S.E. 820

(120 Va. 356)

CITY OF NORFOLK

v.NORFOLK COUNTY.

Supreme Court of Appeals of Virginia.

Jan. 11, 1917.

Rehearing Denied March 28, 1917.

Error to Circuit Court, Norfolk County.

Action by the City of Norfolk against the County of Norfolk. From a judgment sustaining demurrer to the declaration, plaintiff brings error. Reversed, and case remanded for further proceedings.

R. W. Tomlin, Wm. G. Maupin, and J. D. Hank, Jr., all of Norfolk, Va., for plaintiff in error.

A. B. Carney and E. R. F. Wells, both of Norfolk, Va., for defendant in error.

SIMS, J. The court below sustained the demurrer of the defendant, the county of Norfolk, to the declaration of the plaintiff, the city of Norfolk.

The declaration contains two counts. The first is the common-law count of indebitatus assumpsit for money had and received. The second is a special count.

There was an account filed with the declaration.

The facts alleged in the declaration, or admitted in argument, are substantially as follows:

That, by a certain act of assembly of Virginia mentioned, certain territory formerly in the county of Norfolk was annexed to such city; that in this territory was located certain property of the Norfolk & Western Railway Company and of the Norfolk and Atlantic Terminal Company; that after such annexation such property of said companies was by mistake erroneously supposed to be situate and taxable in the county of Norfolk, whereas it was in fact then situate and taxable in the city of Norfolk; that by reason of such mistake such property was erroneously assessed for taxes for certain years after such annexation in the county of Norfolk, instead of in the city of Norfolk, as it shouldhave been; and that the taxes for the years so erroneously assessed were by reason of such mistake paid by said companies to the county of Norfolk. The action was instituted by the city of Norfolk against the county of Norfolk to recover the amount of the taxes thus erroneously paid.

The demurrer was to the declaration as a whole and to each count thereof.

Only, two of the grounds of demurrer are relied on before, and need to be considered by, us, the second and third, as the first ground was removed by the amendment of the declaration allowed and made in the court below. These two grounds are as follows:

"Second. The declaration and the account filed therewith show that there is no privity between the plaintiff and the defendant, and therefore set forth no cause of action against this defendant.

"Third. The second count of the declaration shows that there is no privity between the plaintiff and the defendant, and therefore sets forth no cause of action against the defendant."

The order complained of sustained the demurrer to the whole declaration.

The assignments of error are as follows:

"(1) The court should not have sustained the demurrer to the declaration as a whole nor to the first count thereof, because the first count of the declaration is the common count of indebitatus assumpsit for money had and received, and as such is not demurrable.

"(2) The court should not have sustained the demurrer on the ground that there is no privity between plaintiff and defendant."

It is admitted in brief of counsel for appellee that it was through inadvertence that the order complained of sustained the demurrer to the first count, which was, as above stated, a common-law count of indebitatus assumpsit.

The rule established in Virginia that the account is no part of the declaration, that defects in the account cannot be taken advantage of by demurrer (Campbell v. Angus, 91 Va. 438, 22 S. E. 167; Booker v. Donohoe, 95 Va. 359, 28 S. E. 584; King v. N. & W. Ry. Co., 99 Va. 625, 39 S. E. 701; Grubb v. Burford, 98 Va. 554, 37 S. E. 4), and the further rule in Virginia that a demurrer will not lie to a common-law count in assumpsit (Portsmouth Refining Co. v. Oliver Refining Co., 109 Va. 513, 64 S. E. 56, 132 Am. St. Rep. 924), are not controverted by the brief of counsel for appellee.

It is clear, therefore, that the order complained of was erroneous in sustaining the demurrer to the whole declaration and to the first count thereof.

But, as stated above, this was through inadvertence, and does not go to the real controversy in the case, which involves the decision of the court below upon the third ground of demurrer. As the latter will again have to be passed upon in some form if the judgment were reversed upon the sole ground that it was erroneous on the second ground of demurrer, we feel that we should pass upon the real controversy involved in the demurrer, which is contained in the said third ground of demurrer, namely, the question:

1. Whether privity between the plaintiff and defendant is essential to a cause of action of the plaintiff in such a case as that before us.

Speaking generally, there are three classes of cases in which the action of assumpsit properly lies for the recovery of money, namely:

(1) Where there is an express contract in fact and privity in fact between the parties plaintiff and defendant.

(2) Where there is an implied contract in fact and privity in fact between the parties plaintiff and defendant.

(3) Where there is an implied contract in law and no privity in fact, but an implied privity in law, between the plaintiff and defendant.

The case before us falls within the class last named, which is characterized as quasi ex contractu, the obligation upon which it rests being so designated under the civil law, from which the principle of such obligation was derived.

The history of the origin and growth of the action of assumpsit and the distinctions between the classes of cases mentioned are admirably stated in 2 Ruling Case Law, in its treatment of the subject "Assumpsit, " from which we will make the following quotations:

"History.—In early times the want of a common-law remedy suited to cases of nonperformance of simple promises caused frequent recourse to equity for relief, but in the twenty-five years of the reign of Henry VII it was settled by the judges that an action on the case would lie as well for nonfeasance as for malfeasance, and in that way assumpsit was introduced. In theory it was an action for the nonperformance of simple contracts, and the formula and proceedings were constructed and carried on accordingly. Very early, however, there were successful efforts to apply it beyond its import, and from the reign of Elizabeth this action has been extended to almost every case where an obligation arises from natural reason and the just construction of law that is quasi ex contractu, and is now maintained in many cases which its principles do not comprehend and where fictions and intendment are resorted to to fit the actual cause of action to the theory of the remedy." 2 R. C. L. § 3.

With respect to the first and second classes of cases above mentioned this work says:

"Express and Implied Contracts.—The action of assumpsit lies for the enforcement of a contract express or implied, but the contract must necessarily contain all the essentials of an enforceable contract; thus it must be based upon a valid and sufficient consideration, and there must be privity of contract established between the parties. As ordinarily understood, the only difference between an express contract and an implied contract is that in the former the parties arrive at their agreement by words, either oral or written, sealed, or unsealed, while in the latter their agreement is arrived at by a consideration of their acts and conduct. In both of these cases there is, in fact, a contract existing between the parties; the only difference being in the character of evidence necessary to establishit. To constitute either the one or the other the parties must occupy towards each other the contract status, and there must be that connection, mutuality of will, and interaction of parties, generally expressed, though not very clearly, by the term 'privity.' Without this a contract by implication is quite impossible." Id. §6.

With respect to the third class of cases above mentioned this work says:

"Quasi Contracts.—We have seen that assumpsit will lie for the breach of an express contract or one implied in fact; but, after subtracting express contracts and those implied in fact, there is still left another large class of obligations, to enforce which the action of general assumpsit is a well-established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles, derived from the civil law. This obligation was under the civil law designated quasi contractus. Stated as a civil law principle, it was an obligation similar in character to that of a contract, but which arose, not from an agreement of parties, but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obligation springing from voluntary and lawful acts of parties in the absence of any agreement. In quasi contracts the obligation arises, not from consent, as in the case of contracts, but from the law or natural equity. The class of obligations now under consideration, and which are treated in works on contracts as contracts implied in law, or quasi contracts, is recognized and enforced by common-law courts by means of a general assumpsit. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. In this class of cases the notion of a contract is purely fictitious. There are none of the elements of a contract that are necessarily present. The intention of the parties in such case is entirely disregarded, while in cases of express and implied contracts in fact the intention is of the essence of the transaction. In the case of contracts the parties fix their terms and set the bounds upon their liability. As has been well said, in the case of contracts the agreement defines the duty, while in...