Merrimon v. Southern Paving & Const. Co.
| Decision Date | 17 November 1906 |
| Citation | 55 S.E. 366,142 N.C. 539 |
| Parties | MERRIMON et al. v. SOUTHERN PAVING & CONSTRUCTION CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Ferguson, Judge.
Suit by B. H. Merrimon and others against the Southern Paving & Construction Company and others. Demurrer was sustained to the complaint, and plaintiffs appeal. Affirmed.
The right of action being in the city where payments not authorized by the work as done are being made under a contract for paving for the city, citizens and taxpayers may in the absence of any showing of fraud, maintain a suit to enjoin the payment only on showing that they have exhausted all means to have the city act, and merely requesting the mayor not to make payments is not enough; they should call on the board of aldermen to act, and if a regular meeting thereof will not be in time they should call on the mayor or, he refusing, a majority of the aldermen, to call a special meeting.
The plaintiffs, citizens and taxpayers of the city of Greensboro instituted this action on March 13, 1906, against the defendants, the Southern Paving & Construction Company, the city of Greensboro, T. A. Hunter, a member of the board of aldermen and chairman of street committee, W. G. Potter, city engineer, and T. F. Murphy, mayor of said city. They allege that the city of Greensboro was duly incorporated by an act of the General Assembly of the state. Priv. Laws 1901, p 829, c. 333. That pursuant to power vested in said city of Greensboro, acting through the mayor and board of aldermen it entered into a contract (a copy of which is made a part of the complaint) with the defendant construction company on September 20, 1905, by which, upon the terms and for the prices named, the said company undertook to furnish all materials, implements, labor, and everything necessary, and perform all of the work and labor required, to grade, improve, and pave, complete in all respects, certain streets in said city. The specifications, plans, etc., by which the materials were to be furnished and the work to be performed were made a part of the contract. The portions of the contract material to the decision of the appeal are that the materials furnished and work done were to be inspected and approved by the city engineer, and in case of disagreement his decision was to be final and binding upon all of the parties. Approximate estimates of the work done were to be made by the engineer, and payment made upon his approval semimonthly, 10 per cent. of each estimate to be retained until the work was completed; warrants for the amounts due upon the semimonthly estimates to be issued by the mayor. The plaintiffs allege that the defendant company began the work as provided by the said contract, "but in numerous and material respects failed and neglected to perform the obligations imposed upon it by the terms of said contract and specifications, and failed and neglected to give to the city as good pavement as was called for. The complaint set out 11 respects in which the company failed to furnish good material and properly perform the work. They further allege that defendants Hunter and Potter have failed to discharge their duty in seeing to it that defendant company was complying with its contract. That on November 24, 1905, defendant Potter, city engineer, approved an estimate, and semimonthly thereafter approved other estimates, upon which warrants were drawn and payments made aggregating $26,652.85. It appears from said estimates set out that 10 per cent. of the amount due was retained by the city. That said amount was about four-fifths of the entire sum to be paid on account of the contract. That the amount already paid defendant company is more than it is entitled to receive, by reason of the defective character of the materials and work. That after the plaintiffs came into possession fully of the facts with respect to the manner of doing the work on Elm street, and were prepared, with information they had gathered, to establish the defects in the work herein alleged and complained of up to the time of the bringing of this action, they were informed and believed that a payment of the city's money by the defendant T. J. Murphy, mayor, upon the certificate of the defendant W. G. Potter, city engineer, would be made unless action was taken to prevent it. That the plaintiffs had no opportunity, after this information was so obtained and collected, to lay the matter before the board of aldermen of the city of Greensboro, as there was no meeting of the board, and as they are advised and believe it was unnecessary for them to do so, but they did, through their attorney, communicate with the defendant T. J. Murphy, mayor, that there were material and serious defects in the work done by the defendant company in paving South Elm street, and that the defendant company had already received more money than it was entitled to receive, or would be entitled to receive when it had paved the remainder of Elm street to Church street, which had not been paved between Lee and Church streets, and that he ought not to make payments or issue warrants for money to the defendant company, but should withhold any further payments or warrants until an investigation was made as to what the facts were, and request, further, that such payments and warrants be withheld until Friday, the 17th day of March, 1906; but the defendant T. J. Murphy declined to agree to withhold the payments, and showed no disposition or indications that he would make any investigation whatsoever, and on the 16th day of March, 1906, was in the act of issuing, or had issued and afterwards recalled, a warrant of $2,626, in addition to the $26,652.85 which had already been paid to the defendant company, or to the Southern Life & Trust Company for it, and, as plaintiffs are informed and believe, the defendant T. J. Murphy, mayor, was stopped from issuing said warrant upon which said amount of $2,626 would have been paid out of the city's treasury only by the commencement of this action and the proceedings had herein. That the representations of the defendant company that it had done work entitling it to $26,652.85 was approved by the defendant W. G. Potter when the same should not have been approved, and if the said Potter had complied with the obligations resting upon him in the contract hereto attached and marked "Exhibit A," he would not have so approved the said accounts and claims of the defendant company, as plaintiffs are informed and believe. That no order, direction, or warrant, or any action whatever, with respect to the acceptance of said work done by the defendant company, or any payment therefor, has been taken, made, or done by the board of aldermen of the city of Greensboro since the contract entered into with the defendant company on the 20th day of September, 1905, and whatever action is taken by the defendant T. J. Murphy, by the defendant T. A. Hunter, or by the defendant W. G. Potter, in approving or paying for any such work, is unauthorized, except it be authorized by the terms and conditions and stipulations of the said contract. Plaintiffs allege that it would be a fraud upon themselves and the other taxpayers of said city to permit further payments to be made to defendant company out of the funds of the city. They demand judgment that a perpetual injunction issue against the defendant company receiving, or the other defendants paying, any money on account of the said contract, etc.
Defendants demur to the complaint, and for cause of demurrer say: "That said complaint does not state facts sufficient to constitute a cause of action against said defendants, in that it appears from said complaint that any cause of action that may arise from the breach of the contract therein mentioned on the part of the defendant the Southern Paving & Construction Company is vested in, and accrues to, primarily, the said city of Greensboro, and not in or to the plaintiffs, and it is not alleged in said complaint that plaintiffs, or either of them, ever requested or demanded of the governing body of the said city, to wit, the board of aldermen, that they proceed to enforce said contract, and that said board of aldermen refused so to do. And further, that it does not appear from said complaint that said plaintiffs, or either of them, ever gave said board of aldermen to understand or be informed that the said Southern Paving & Construction Company was violating its said contract, or that defendant T. A. Hunter, chairman of the street committee, or defendant W. G. Potter, city engineer, had been guilty of dereliction of duty, and requested that said board take action in the premises, and that said board had refused so to do. That it is not alleged in said complaint that the city authorities and the city of Greensboro, in carrying on the improvement and paving of Elm street pursuant to the contract therein mentioned, are or have been acting fraudulently and in bad faith in allowing the variations from the contract specified in the complaint, and not bona fide and in the exercise of the discretion vested in them by law and by the terms of said contract. His honor sustained the demurrer, and rendered judgment dismissing the action. Plaintiffs excepted and appealed.
J. Morehead and E. J. Justice, for appellants.
W. P. Bynum, Jr., G. S. Ferguson, Jr., R. C. Strudwick, and Stedman & Cooke, for appellees.
CONNOR, J. (after stating the case).
The demurrer raises three questions, all of which are clearly presented in the briefs and were ably argued in this court (1) Does the citizen, in respect to his right to invoke the equitable powers of the court to control the action of a municipal corporation regarding its property, occupy the same relation to the...
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