Daniel v. The Bd. of Comm'rs of Edgecombe Cnty.

• Decision Date: 31 January 1876
• Citation: 74 N.C. 494
• Court: North Carolina Supreme Court
• Parties: GEORGE T. DANIEL, Ex'r., v. THE BOARD OF COMMISSIONERS OF EDGECOMBE COUNTY.

74 N.C. 494

GEORGE T. DANIEL, Ex'r.,

v.THE BOARD OF COMMISSIONERS OF EDGECOMBE COUNTY.

Supreme Court of North Carolina.

January Term, 1876.

A contract for the loan of money made by the late County Courts for the support of the paupers in their respective counties, was ultra vires, and therefore void.

The denial of the power of a municipal corporation to borrow money is not inconsistent with an admission of its power to contract debts for legitimate purposes:

Therefore, where a County Court in 1864, had purchased supplies for the support of the poor, and to pay therefor and purchase other necessary provisions, borrowed money of the plaintiff: It was held, that the plaintiff was entitled to be subrogated to the rights of the creditors whose debts he paid, and recover as their substitute the value of what he paid, as upon a quantum meruit, according to the legislative scale.

A defendant will not be permitted to plead the statute of limitations, when it appears that the plaintiff delayed bringing his action, under an agreement with the defendant that such action should abide the decision of another already instituted, and involving the same merits.

(The cases of Winslow v. Commissioners of Perquimans, 64 N. C. Rep. 214; Yellowly v. Commissioners of Pitt, 73 N. C. Rep. 164, and Davis v. Commissioners of Stokes, at this term, cited and approved.)

CIVIL ACTION, tried before Seymour, J., at July Term, 1875, of EDGECOMBE Superior Court, upon the following

CASE AGREED:

At a regular term of the late County Court of Edgecombe county, held at Tarboro' on the fourth Monday of February, 1864, a majority of all the justices being present, an order was made in the words and figures following:

“It appearing to the satisfaction of the court that it will require at least $25,000 for the support of the paupers of this county for the next twelve months, including the amount due for provisions now on hand and not paid for; and that there is nothing in the hands of the Treasurer of the Board of Wardens to meet the same, wherefore it being the duty of the court to provide for said deficiency, and the matter being fully considered: It is ordered, by the court, a majority of the Justices being present, that Thomas Norfleet, Treasurer of the said Board of Wardens, be and is hereby fully authorized and requested to borrow as it shall be needed, upon the faith and credit of the county, not exceeding in the aggregate the sum of $25,000, to be returned to the lender or lenders two years after the termination of the present war, in currency, the interest to be payable annually in currency also; that the said Thomas be, and he is hereby fully authorized as Treasurer of said Board, and in behalf of the county, to sign certificates and deliver them to the persons from whom he may borrow the money, setting forth therein the sum borrowed and the particulars of the loan, and that it be his duty to report to the court at the next term a statement in writing showing the amount borrowed from each person and the date of each certificate issued by him. It is further ordered, That he borrow as much of the said sum as he can from the Wilson, and school funds of this county, receiving Confederate Treasury notes under $100, at par, but in borrowing from others that he do so upon as favorable terms as possible for the county by giving public notice and inviting competition; and the money when thus realized is hereby appropriated for the support of the paupers of this county in such matters as the Wardens shall direct.”

The Wilson fund was a fund in the hands of the Chairman of the County Court, delivered to him and his successors by the late Louis D. Wilson for the benefit of the paupers of said county.

At the same term of the court an order was also made for borrowing money for the support of the families of indigent soldiers, but this fund had no connection with that borrowed under the order above written.

Thomas Norfleet, the Treasurer of the Wardens of the Poor, in pursuance of said order, after public advertisement and after complying with all the directions contained therein, borrowed from John H. Daniel, the testator of the plaintiff, for and on behalf of the county, the sum of two thousand three hundred and twenty-five dollars in Confederate Treasury notes, on the terms that the county should pay for every dollar thereof 43 1-93 cents, being the sum of one thousand dollars, and issued to said Daniel the following certificate:

“TARBORO, N. C., April 9th, 1864.

This certifies that I, Thomas Norfleet, as Treasurer of the Board of Wardens for Edgecombe county, in behalf of said county, acting under authority conferred on me by the Court of Pleas and Quarter Session of said county, at February Term, 1864, have this day borrowed of John H. Daniel, the sum of two thousand, three hundred and twenty-five dollars in Confederate Treasury notes, to be repaid by the county at the end of two years after the expiration of the present war with the United States, at the rate of forty-three 1-93 cents for every dollar so borrowed. Amounting to one thousand dollars which last mentioned sum is to carry interest from the date hereof, payable in currency on the 9th day of April in each and every year hereafter until the said sum of one thousand dollars shall be paid. In witness whereof I have hereunto subscribed my name the day and year above written.

+------------------------------------------------------------------+
                ¦(Signed)                                         ¦THOMAS NORFLEET,¦
                +-------------------------------------------------+----------------¦
                ¦Treasurer Board of Wardens for Edgecombe County.”¦                ¦
                +------------------------------------------------------------------+
                

The whole amount borrowed from individuals was $11,167 for which certificates were issued for $4,840.00, the residue of the $25,000 was borrowed from the Wilson fund and the common school fund.

The price agreed to be paid for said Confederate Treasury notes was the common price for which they could be obtained at that time, and the money so borrowed was used by the Treasurer of the Board of Wardens for the support of the paupers.

John H. Daniel died in the year 1873, leaving a last will and testament, in which the plaintiff was appointed his executor, and he has duly qualified as such.

At an adjourned meeting of the Board of County Commissioners for said county, held April 29th, 1873, William H. Johnston, Esq., an attorney at law, came before the Board and stated that he held, as attorney for the plaintiff's testator, the above certificate, and a similar one issued to Austin, Norfleet & Co.; that similar certificates were issued to and held by others; that the holders desired to test the liability of the county on the same, and suggested that the most economical way was to let the firm of Austin, Norfleet & Co. decide all claims. To this he understood them to assent and four of the members of the Board (there being a...