Soloman v. Wilmington Sewerage Co

• Decision Date: 30 October 1906
• Citation: 55 S.E. 300,142 N.C. 439
• Parties: SOLOMAN et al. v. WILMINGTON SEWERAGE CO.
• Court: South Carolina Supreme Court

55 S.E. 300

142 N.C. 439

SOLOMAN et al.

v.WILMINGTON SEWERAGE CO.

Supreme Court of South Carolina.

Oct. 30, 1906.

1. Specific Performance—Contract—Duration—Limitation.

A contract between citizens and a public sewerage corporation by which the latter agreed to furnish sewerage service for $2 and $4 per year, respectively, dependent on whether the customer paid $50 or $25 as an entrance fee for connections, etc., but containing no provision fixing the time for the duration of the contract, could not be specifically enforced as against the corporation, because of uncertainty of duration.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Specific Performance, § 67.]

2. Same—Mutuality of Remedy.

Where a contract to furnish sewerage facilities at a specific annual rental did not bind the persons served to continue to pay, but authorized the corporation furnishing such facilities to enforce collection of charges by severing the connection of the defaulting user with the main sewer, there was no mutuality of obligation to continue the service, and hence specific performance could not be decreed against the corporation.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 89-99.]

Appeal from Superior Court, New Hanover County; Webb, Judge.

Suit by B. Soloman and others against the Wilmington Sewerage Company. From a judgment in favor of defendant, complainants appeal. Affirmed.

This action was brought by the plaintiffs for the purpose of restraining the defendant from disconnecting their residences from the main sewer pipe of the defendant company and for specific performance of the contract set out in the complaint. The undisputed facts are that prior to 1902, there were several private companies and systems of sewerage in the city of Wilmington. That defendant company was chartered by an act of the General Assembly of North Carolina (Private Acts 1893, p. 583, c. 382), by which it is permitted, authorized, and empowered to establish a system of sewerage in, under, and through the streets and public lanes, roads, and alleys of the city of Wilmington, and lay all such necessary pipes, conduits, and mains as may be deemed requisite to carry out the provisions of said act under such rules and regulations as may be prescribed by the board of aldermen of said city, and have authority to charge for the use of said sewers such reasonable sums as the board of directors may, from time to time, adopt, and to enforce the collection of such charges by severing the connection of said defaulting user with the main sewer. That permission was duly granted to the said defendant to lay down its pipe, and construct a system of sewerage in the said city. That the plaintiffs are citizens and residents of said city, living along the streets upon which the defendant, pursuant to said authority, laid down its pipes and constructed its sewerage system. That plaintiffs en-tered into a contract with the said defendant company, the terms of which, as set out in the complaint, are as follows: "That these plaintiffs and a great many other of the citizens of Wilmington, living along the streets and on the alleys upon which, by public authority, the defendant has laid down its pipes and constructed its sewerage system, whose names are not all known to these plaintiffs, and cannot, by reasonable diligence, be ascertained, were desirous of obtaining the benefit of an efficient sewerage system for their respective premises, and at what they regarded as a reasonable cost, and each of the plaintiffs and the others so situated approached the proper officers of the defendant, and made application for connection, and, after some negotiations, the defendant company proposed to these plaintiffs, and for all others for whom this suit Is brought, that if they would pay to the defendant the sum of fifty dollars for making the connection between the premises of each and every one of these plaintiffs and the others and the pipes of the defendant, that the defendant would charge each of them so paying the sum of fifty dollars, as an entrance fee, and for the use and service of the sewerage system of the defendant, the sum of two dollars, as an annual fee or rental, and no more; or, alternately, that if persons desiring to connect with and to use their said system, preferred it, they might pay an entrance fee of twenty-five dollars, and an annual rental of four dollars, and no more." That pursuant to said contract the connections were made and plaintiffs have, in all respects, complied with the terms of said contract, paying the annual rental of $2 per year. That the control of the stock of the defendant company passed into the hands of other persons subject to said contract. That on the 1st day of January, 1903, in disregard and in violation of the contract rights of the plaintiffs, the defendant undertook to raise the rate of annual rental for the use of said system. The jury, upon an issue submitted to them, found for their verdict that the defendant entered into the contract with the plaintiffs as alleged. Under the instruction of the court, they found that notwithstanding such contract defendant had a right to raise the rate of annual rental. The court thereupon rendered the following judgment: "This cause, having been called for trial, and being tried * * * and during the trial the plaintiff's counsel having admitted in open court, for the purposes of this action alone, that the rates charged as set forth in the answer in exhibit B are reasonable and not discriminative, and that the said rates set forth in the answer have been raised from the amount set forth in the complaint to the amount set forth in the answer, as shown in exhibit B, and that a resolution of the defendant company, raising the rates, was promulgated on November 2, 1902, to go into effect the 1st day of January, 1903; and it being further admitted by the defendant that the plaintiffs continued to pay at the old rates up to the 1st day of January, 1903, and that the present owners of the corporation obtained control thereof some time in the year 1901; and it being further admitted that this suit began on the 1st day of March, 1903, and that the payments made by the plaintiffs under the old rate were paid by them from January 1, 1902, to January 1, 1903, and it being admitted that the following plaintiffs obtained their connection with the defendant company, paying $50 connection fee, and $2 annual dues, on the dates mentioned, as follows. * * * It is ordered, adjudged, and decreed by the court that the restraining order heretofore issued in this cause be and the same is hereby dissolved, vacated, and annulled. It is further ordered, adjudged, and decreed by the court that the plaintiffs are not entitled to a perpetual injunction in this cause." The plaintiffs excepted to said judgment and appealed, assigning errors alleged to have been committed in the course of the trial, and in rendering the judgment, all of which, other than those abandoned, are set out in the opinion.

Bellamy & Bellamy and Rountree & Carr, for appellants.

E. K. Bryan and John D. Bellamy & Son, for appellee.

CONNOR, J. (after stating the case). Considered from the point of view in which this case was argued by counsel and which we think decisive of the merits of the controversy, much of the testimony and many of the exceptions become immaterial. There is no substantial contradiction in the testimony regarding the terms of the contract. The jury having found it to be as alleged in the complaint we concur with plaintiff that the second issue was unnecessary. The relative rights and duties of the parties under the contract become, in the light of the admissions, questions of law for the decision of the court. The plaintiffs insist that we decided the question when the case was here upon an appeal from the order continuing the injunction to the hearing. We cannot concur in this view. It must be conceded that the writer of that and of this opinion used language calculated to make such an impression. The only question then before the court was whether the defendant should be enjoined, pending the litigation. For the reasons and upon the authorities there set out we held with the plaintiffs' contention. We then said: "Whether the plaintiffs shall be entitled to specific performance of the contract, and. for what length of time the contract shall exist and to what extent it might be in the power of the defendant corporation to perform the contract without impairing or destroying its power to perform its duties to the public, or whether therates now charged are unreasonable or discriminating, are all questions to be determined upon the facts as they may be found by some competent tribunal upon the linal hearing.' The effect of an appeal from an order continuing or refusing to grant an interlocutory injunction is discussed in Carter v. White, 134 N. C. 466, 46 S. E. 983, 101 'Am. St Rep. 853. The decision of such an appeal is neither an estoppel nor "the law of the case." Its effect upon the rights of the parties to the action in the final hearing is pointed out in the decision in that case. The plaintiffs concede that the contract does not create or vest in them an easement to flow their sewerage through the pipe, because not in writing, nor is it a license to do so.

Plaintiffs' counsel, with his usual frankness, rests his case upon the proposition that his clients have made a valid contract with defendant founded upon a valuable consideration, and that, by reason of the peculiar nature of the subject-matter of the contract, the right acquired under it can only be secured to them by a decree for specific performance and a perpetual injunction against its infringement. That no time being fixed for the life of the contract, It extends to the corporate life of the defendant company. This, the defendant denies, and insists: (1) That no time being fixed during which the $2 rate was to continue, it...