Hines v. Norcott

Decision Date02 October 1918
Docket Number174.
Citation96 S.E. 899,176 N.C. 123
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Pitt County; Allen, Judge.

Action by James M. Hines against Wiley P. Norcott. Judgment for plaintiff, and defendant appeals. No error.

An ordinance forbidding use of dry or surface privies, requiring owners of lots on streets wherein sewer pipes have been laid to connect with such sewer, and providing penalty for failure to so do, but neither expressly nor impliedly invalidating leases of premises without sewer connection, did not vitiate such lease, where it did not appear that premises had any dry or surface privies and lease contained no inhibitions against making of sewer connections.

Civil action tried before Allen, J., and a jury, at May term, 1918 of Pitt superior court. The plaintiff sued for rent due under a lease, made November 13, 1913, by him to the defendant, for four stores and a hall, in a building to be erected in the town of Greenville, at $12 per week, for a term of five years. At the completion of the building, in March, 1914, the defendant entered into possession and occupied the premises for about 14 months, paying the rent regularly according to the terms of the lease, up to April 12, 1915. The building was to be of brick and "a suitable one." The defendant denied liability, and, by amendment to his answer which was allowed by the court, he pleaded that the contract was unlawful and unenforceable, as being in violation of the following ordinance of the town of Greenville, passed in April, 1914, after the lease was executed and the defendant had taken possession of the tenement:

"Whereas the maintenance and use of surface and dry privies in the town of Greenville is or may become a menace to the public health of the town, now therefore, be it ordained by the board of aldermen of the town of Greenville in regular meeting assembled on the second day of April, it shall be unlawful, for any person, firm or corporation, to erect maintain or use any surface or dry privies upon any lot or premises in said town, abutting on any street, wherein a sewer pipe has been laid and that all owners of said property shall connect with said sewer on or before the first day of June, 1914. Any person violating the provisions of this ordinance, shall be fined five dollars for each offense, and each day said violation shall continue, shall constitute a separate offense."

There was evidence to the effect that the plaintiff, at the time of making the lease, and afterwards, had promised to install a plumbing and sewerage system on the premises, connecting with the main sewer line on Cotanch street, which is in front of the building; but that this was not done. Plaintiff denied that he made any such promise, or that anything was said about it. The upstairs was to be used for a dance hall, the lower story was to be used for a pool room, a barber shop, a café, and a drug store, one in each of the four rooms.

Plaintiff testified that defendant paid the rent up to April 12, 1915, and there is nothing charged after May 31, 1915, and that defendant quit the premises in 1915.

The defendant requested that the following instructions be submitted to the jury:

"(1) As it is admitted that plaintiff did not put in sewerage as required by the ordinance of the town of Greenville, the plaintiff cannot recover on said contract since June 1st, the date said ordinance became effective.

(2) As plaintiff admits the rental account has accrued since April 12, 1915, and since that time he has been renting the building in violation of the ordinance, he cannot recover.

(3) If you find from the evidence that plaintiff rented the building in violation of the ordinance, then he cannot recover in this action."

These instructions were all refused, and defendant duly excepted.

The court charged the jury as follows:

"This action, as you will understand, is brought by the landlord, Mr. Hines, against the defendant for an amount which he claims to be due for his building which he rented. The only issue submitted to you is as to what amount, if any, is due the plaintiff by the defendant; the plaintiff claiming that he is due the sum of $113, and the defendant claiming that he is entitled to a counterclaim, or set-off, for failure to put in certain sewerage. The first question to be considered is whether that was agreed upon, and whether it was necessary to make it a suitable building. You will remember the agreement that he was to provide a suitable building, and there was a controversy there; the plaintiff contending that it was a suitable building without sewerage, and the defendant contending that it was not a suitable building without sewerage, and that by reason of the failure to so provide sewerage, he has been damaged to the amount of $10 per month, which he says amounts to about $100. So the first question would be as to whether it was a suitable building without sewerage for the purpose for which it was being erected and used, and if you find it was suitable without it then he would not be entitled to a counterclaim. If you find that it was not suitable, then you will further find whether he was damaged by reason of the failure, and deduct from the amount due to the plaintiff, which plaintiff says is $113, the amount of such damage as you find. I shall not hold that, by reason of not complying with the town ordinance, the plaintiff cannot recover, and I charge you not to consider that; it being a question between him and the town authorities as to whether they would make him close his business or comply with the ordinance. It would not affect this suit. So you consider what amount is due the plaintiff, if any, under the contract, and whether or not he erected a suitable building, and, if he did, then he would be entitled to the full amount, and, if he failed to do so, then you would deduct whatever amount you find he has been damaged by reason of the failure in making it a suitable building."

Defendant, in proper manner, excepted to the charge, and assigned several errors.

The jury returned the following verdict:

"(1) Is the defendant indebted to the plaintiff; if so, in what amount? Answer: $113."

Judgment upon the verdict, and defendant appealed.

Julius Brown, of Greenville, for appellant.

F. C. Harding, of Greenville, for appellee.

WALKER, J. (after stating the facts as above).

The defendant contends that there can be no recovery against him in this case because the lease is an illegal contract, being violative of the ordinance of the town of Greenville, which we have copied in the statement of the case. For the purpose of deciding whether a contract is in contravention of a statute or ordinance, and void for that reason, we are at liberty to examine the statute and ascertain what was the legislative intent, and whether it was the purpose to avoid the contract alleged to be contrary to its provisions, or whether it was intended that the penalty alone should be a sufficient punishment. The court, by Justice Wayne, held in Harris v. Runnels, 12 How. 79, 13 L.Ed. 901, after stating the English rule:

"Such we believe to be now the rule in England, but with many exceptions, made upon distinctions very difficult to be understood consistently with the rule; so much so, that we have concluded, before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, that the statute must be examined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. In other words, whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken for granted that the Legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a court of justice. In this way the principle of the rule is admitted, without at all lessening its force, though its absolute and unconditional application to every case is denied. It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follow that the unlawfulness of the act was meant by the Legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from

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2 cases
  • Price v. Edwards
    • United States
    • North Carolina Supreme Court
    • 12 Noviembre 1919
    ... ... construction of a town ordinance requiring sewer connections ... to be made, in Hines v. Norcott, 176 N.C. 123, 96 ... S.E. 899, where it was said: ...          "The ... case of Courtney v. Parker, 173 N.E. 479 [92 S.E ... ...
  • RL Regi N.C., LLC v. Lighthouse Cove, LLC
    • United States
    • North Carolina Court of Appeals
    • 20 Agosto 2013
    ...itself.288 N.C. 122, 128, 217 S.E.2d 551, 555(citing Price v. Edwards, 178 N.C. 493, 101 S.E. 33 (1919)); see also Hines v. Norcott, 176 N.C. 123, 96 S.E. 899 (1918). The Court further stated the following: The holdings of this Court demonstrate a remarkable divergence in results in cases p......

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