Nevins v. City Of Lexington, 667.

• Decision Date: 15 December 1937
• Docket Number: No. 667.,667.
• Parties: NEVINS. v. CITY OF LEXINGTON.
• Court: North Carolina Supreme Court

194 S.E. 293

212 N.C. 816

NEVINS.

v.CITY OF LEXINGTON.

No. 667.

Supreme Court of North Carolina.

Dec. 15, 1937.

Appeal from Superior Court, Davidson County; Frank M. Armstrong, Judge.

Action by W. H. Nevins against the City of Lexington. Judgment as of nonsuit, and plaintiff appeals.

Affirmed.

This is an action to recover of the defendant the sum of $110, with interest from October 1, 1936, and the costs of the action.

The action was begun on March 1, 1937 in the court of a justice of the peace of Davidson county, N. C.

In the complaint which is in writing and duly verified by the attorney for the plaintiff, as authorized by statute, C.S. § 530, it is alleged:

"1. That the plaintiff is a nonresident of the state of North Carolina, and that the defendant is a municipal corporation, organized and existing under and by virtue of the laws of the state of North Carolina, having among other powers, the power to issue bonds in order to construct its water and sewer lines, and did issue bonds for the purpose of constructing its water and sewer lines.

"2. That the plaintiff is the owner of coupon No. 26 on water and sewer bond No. 96, for $27.50, and is also the owner of coupon No. 26 on water and sewer bond No. 97, for $27.50, and is also the owner of coupon No. 26 on water and sewer bond No. 98, for $27.50, and is also the owner of coupon No. 26, on water and sewer bond No. 99 for $27.50.

"3. That the plaintiff presented his claim to the city manager of the city of Lexington, the defendant in this action, to be audited and allowed, and that plaintiff's attorney was advised that the defendant would not pay said coupons.

"4. That defendant through its city manager advised plaintiff's attorney that no deposit had been made in New York with the United States Mortgage Trust Company, or at any other place for the payment of said coupons, above specified, at the rale of 5¹/₂ per cent, but that provi-sion had been made for the payment of said coupons at the rate of 4 per cent, provided the plaintiff would agree to a reduction of the interest rate on said coupons, which is 5¹/₂ per cent, to 4 per cent.

"5. That the defendant has failed and refused to pay said coupons as above set out, which were due on October 1, 1936."

In its answer to the complaint, which is also in writing and duly verified, the defendant denies that plaintiff is the owner of the coupons described in paragraph 2 of the complaint; that the plaintiff, prior to the commencement of this action, presented his claim to the city manager of the defendant, to be audited and allowed, as alleged in paragraph 3 of the complaint; and that the defendant has failed and refused to pay said coupons, as alleged in paragraph 5 of the complaint.

In further defense of the action, the defendant alleges that plaintiff did not comply with the provisions of C.S. § 1330, before instituting this action, and therefore prays that the action be dismissed, in accordance with the provisions of the statute.

The action was tried in the superior court of Davidson county, on defendant's appeal from an adverse judgment of the justice of the peace, in whose court the action was begun.

At the conclusion of the evidence for the plaintiff, on motion of the defendant, the action was dismissed by judgment as of nonsuit. Plaintiff appealed to the Supreme Court, assigning error in the judgment dismissing the action.

Don A. Walser, of Lexington, for appellant.

P. V. Critcher, of Lexington, for appellee.

CONNOR, Justice.

C.S. § 1330 is as follows: "No person shall sue any city, county, town, or other municipal corporation for any debt or demand whatsoever unless the claimant has made a demand upon the proper municipal authorities. And every such action shall be dismissed unless the complaint is verified and contains the following allegations: (1) That the claimant presented his claim to the lawful municipal authorities to be audited and allowed, and that they had neglected to act upon it, or had dis allowed it; or (2) that he had presented to the treasurer of said municipal corporation the claim sued on, which had been so allowed and audited, and that such treasurer had notwithstanding neglected to pay it."

The foregoing statute is applicable to this action. The cause of action alleged in the complaint is ex contractu and not ex delicto. There is therefore no error in the judgment dismissing the action, if the plaintiff has failed to comply with the provisions of the statute. See Shields v. Durham, 118 N.C. 450, 24 S.E. 794, 36 L.R.A. 293, and Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695. Jones v. Commissioners, 73 N.C. 182.

In his complaint the plaintiff alleged and at the trial of the action offered evidence tending to show that prior to the commencement of the action, he presented his claim against the defendant on account of the coupons described in the complaint to the city manager of the defendant, and that said city manager advised him that no provision had been made by the defendant for the payment of said coupons according to their...