Royer v. Bd. Of County Supervisors Of Albemarle County

• Decision Date: 14 October 1940
• Citation: 10 S.E.2d. 876
• Court: Virginia Supreme Court
• Parties: ROYER. v. BOARD OF COUNTY SUPERVISORS OF ALBEMARLE COUNTY.

10 S.E.2d. 876

ROYER.

v.BOARD OF COUNTY SUPERVISORS OF ALBEMARLE COUNTY.

Supreme Court of Appeals of Virginia.

Oct. 14, 1940.

Error to Circuit Court, Albemarle County; Lemuel F. Smith, Judge.

Action by R. Stuart Royer against the Board of County Supervisors of Albemarle County to recover for services rendered as a consulting engineer in the preparation of plans and specifications for the construction of a sewer system and disposal plant in Albemarle county. To review a judgment in favor of the defendant after a verdict in favor of plaintiff, the plaintiff brings error.

Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Robert E. Scott, of Richmond, and C. Armonde Paxson, of Charlottesville, for plaintiff in error.

H. W. Walsh and Lyttelton Waddell, both of Charlottesville, for defendant in error

EGGLESTON, Justice.

R. Stuart Royer, who will sometimes be referred to as the plaintiff, filed with the Board of County Supervisors of Albemarle county a claim for $3,424.95 for services rendered as a consulting engineer in the preparation of plans and specifications for the construction of a sewer system and disposal plant in Fry's Springs Sanitary District in that county. From the action of the board in disallowing the claim Royer appealed to the Circuit Court of Albemarle county in accordance with the provisions of Code, § 2761. Issue was joined and upon a jury trial there was a verdict for the plaintiff for the full amount claimed.

Being of opinion that under the contract between the parties the plaintiff's services were rendered on a contingent fee basis, that the plaintiff was to be paid nothing for his work unless the voters of the Sanitary District approved the bond issue necessary to finance a part of the cost of constructing the project, and unless the project was in fact constructed, and that neither of these contingencies had occurred and hence the plaintiff was not entitled to a recovery, the trial court set aside the verdict and entered a final judgment for the Board of Supervisors. To review this action the present writ of error has been awarded the plaintiff below.

The facts are not disputed. It is conceded that the services were performed in a satisfactory manner and that the plaintiff is entitled to the full amount claimed, if anything. The other material facts may be summarized as follows:

Prior to August, 1935, a certain portion of Albemarle county adjacent to the city of Charlottesville was set up and established as a sanitary district known as Fry's Springs Sanitary District. H. A. Haden, the county executive, was authorized and directed to apply to the Federal Emergency Administration, commonly known as the PWA, for a grant of funds for the purpose of aiding in financing the construction of a sewer system and sewage disposal plant for the district.

It became necessary that the board employ a civil engineer to make a proper application to the federal authorities for the grant and to prepare the necessary plans and specifications for the construction of the project. Several engineers, including the plaintiff, were invited to submit bids for these proposed services. The proposal of the plaintiff was accepted by a resolution of the Board of Supervisors at a meeting held on August 31, 1935. By this resolution it was agreed that the plaintiff would:

"(1) Do the necessary work to prepare the application to the Federal Administration of Public Works at the actual cost to him, not including his time, not to exceed $175.

"(2) In the event the application is approved, and the offer of the Government to assist in the financing of the Project is accepted by this Board, to prepare and furnish the complete plans and specifications, including the supervision of the letting of the contract for the Project, for a fee of 5% of the cost of construction."

In accordance with the terms of this resolution the plaintiff promptly prepared and filed the application with the Federal Administration of Public Works, and for such services was paid the agreed fee of $175.

The county's share of the cost of constructing the project was to be paid out of the proceeds of a bond issue to be approved by a majority of the voters in the Sanitary District. The Circuit Court of Albemarle county ordered an election to be held on February 4, 1936, for the purpose of voting on the proposed bond issue. Due to the failure of the electoral board to have the necessary ballots printed the election was not held on that date. Another date, not stated in the record, was fixed by the court. The election resulted in a majority vote against the bond issue.

In the meantime federal funds available for projects of this nature were exhausted. Consequently the application for the grant was not approved and the plaintiff did nothing towards the preparation of the "complete plans and specifications" mentioned in the second paragraph of the resolution of the Board of Supervisors.

However, the application for the grant which had been lodged with the Federal Administration of Public Works in 1935 remained on file there. On June 28, 1938, after additional funds became available, the federal agency wrote the county executive a letter offering to make a grant to the county in the amount of 45% of thecost of the construction of the-proposed sewer system and disposal plant provided the work on the project be begun and completed within a stated time.

At a meeting held on July 1, 1938, the Board of Supervisors adopted a resolution accepting this offer. Promptly thereafter the circuit court of the county ordered an election to be held on August 2, 1938, for the purpose of submitting to the voters of the Sanitary District the approval or disapproval of a proposed bond issue to raise the necessary funds to pay the remaining 55% of the cost of the project.

In the meantime the plaintiff had been notified of the favorable action of the Federal Emergency Administration on the board's application for a grant. He promptly got in touch with Haden, the county executive, and discussed the proposed project. Just what took place at these interviews is not disclosed in the record. However, under date of July 1, 1938, the plaintiff wrote Haden as follows:

"I forgot to remind you when I talked with you on the phone that the PWA Construction Bulletin--Revised 8/27/37 copy of which you probably have--Sheet 1-- reads in part as follows:

" 'Upon approval of the project by the Public Works Administration, and not later than the adoption of the Government's offer to aid in the construction of the project, the Applicant should instruct its Consulting Engineer or Architect to proceed with preparation of final plans, ' etc.

"While I realize I will have to take some chances on account of the Bond Election, etc., I will be willing to begin to get these plans in shape, if you will issue instructions to do so, and hereby agree not to hold the Board responsible for any further compensation unless the results of the election are affirmative. In other words, I will not put any further liability on the Board unless the project goes through."

To this letter the county executive replied under date of July 5, 1938, as follows:

"I am enclosing herewith official notification to proceed with the plans and specifications for the sewerage system and disposal plant at Fry's Spring. This is given you with the distinct uhderstanding that the Board of County Supervisors is in no way obligating itself in the event the citizens do not approve the issuance of bonds for this purpose. This is in accordance with your letter of July 1, 1938.

"For your information, the Judge has fixed Tuesday, August 2, 1938, as the date of the election."

Enclosed in this letter was a formal authorization to the plaintiff "to proceed with the preparation of the final plans and specifications for this work."

Immediately after the exchange of this correspondence the plaintiff proceeded to do the work for which he new seeks compensation. Prior to this time it had not been done.

On August 2, 1938, the election on the proposed bond issue was held. On the face of the returns the majority of the voters favored the bond issue. However, in a proceeding to contest the election, the Circuit Court of Albemarle county, on November 2, 1938, entered an order declaring the election void for the reason that the electoral board had designated as judges of the election the judges of the Democratic primary election held on that day instead of the regular election judges of the county. A new election was then called for December 3, 1938.

In the meantime, in the latter part of August, 1938, the city of Charlottesville had instituted proceedings for the annexation of a large part of the territory included within the Fry's Springs Sanitary District. Consequently, when the bids for the construction of the proposed sewer system and disposal plant were opened on September 9, the Board of Supervisors was in a quandary. Manifestly the annexation to the city of Charlottesville of a large part of the territory included in the Sanitary District would preclude the necessity of the construction by the county of the...