Westbrook Inc v. Town Of Falls Church
| Decision Date | 11 September 1946 |
| Citation | 185 Va. 577,39 S.E.2d 277 |
| Parties | WESTBROOK, Inc. v. TOWN OF FALLS CHURCH. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Arlington County; Walter T. McCarthy, Judge.
Action by notice of motion for judgment by the Town of Falls Church against Westbrook, Incorporated, to recover the balance due under an oral agreement by defendant to reimburse plaintiff for the cost of installing sewers in streets abutting property of defendant, which filed a special plea of recoupment and set-off asserting three counterclaims. Judgment for plaintiff, and defendant brings error.
Affirmed.
Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
James H. Simmonds, of Arlington, for plaintiff in error.
John A. K. Donovan and John G. Turn-bull, both of Falls Church, for defendant in error.
The Town of Falls Church, a municipal corporation, filed its notice of motion for judgment against Westbrook, Incorporated, to recover the balance of $499.75, alleged to have been due under the terms of an oral agreement made between the parties. The town alleged that it had installed a sewer on certain streets abutting property owned by Westbrook, at the latter's instance and request; that, under the terms of the agreement, Westbrook was to reimburse the town for the cost of the installation, which amounted to $1,299.75; that the defendant had paid $800 on account of the installation, but had failed and refused to pay the balance of $499.75.
In addition to a plea of the general issue, the defendant filed a special plea of recoupment and setoff in which it asserted three counterclaims. These may be summarized thus:
(1) That there was no consideration for the alleged promise of Westbrook to pay for the installation of the sewer; that the sewer line was the property of the town, which had assumed full ownership thereof and was exacting a service charge of those property owners who were served thereby; that none of the other abutting property owners had paid any part of such construction cost, and that the town had no right to compel Westbrook to pay any part thereof. Consequently, Westbrook alleged, the town should be compelled to refund to it the sum of $800 which it had paid to the town pursuant to the terms of the oral agreement.
(2) That the defendant, Westbrook, had installed, at a cost of $1100, certain other sewer lines along certain streets which had been dedicated to and accepted by the town, and on which Westbrook's property abutted; that at the time of the installation it was the duty of the town to have made such installation at its own cost and expense; that the town had assumed full charge and control of the sewer lines, was exacting a service charge of the abutting property owners for the use thereof, and that hence the town should be required to reimburse the defendant for the cost of such installation.
(3) That the town had "improperly and unlawfully required" the defendant, Westbrook, to pay to it the sum of $1066.74 for the cost of installing a water main and fire hydrant on a certain street abutting property owned by the defendant; that at that time the street had been dedicated and accepted by the town; that it was the duty of the town to have installed such improvements at its own cost and expense and without any cost to the abutting property owners; that the town had assumed full charge and control of the water main and hydrant, and was exacting a service charge of the abutting owners for the use thereof; and that, therefore, the town should be required to refund to the defendant, Westbrook, the cost of the installation which the town had illegally exacted of it.
Although the plea does not so allege, it is admitted in the briefs that the town installed the water main and fire hydrant mentioned in Item No. 3, under an agreement similar to that entered into between it and the defendant with respect to the construction of the sewer line mentioned in Item No. 1.
Upon motion of the town, and over the objection of the defendant, Westbrook, the lower court struck out the three items in the special plea of recoupment and setoff. By agreement of both parties the case was heard by the trial court without the intervention of a jury and resulted in a judgment in favor of the town against Westbrook for the amount sued for in the notice of motion for judgment.
There is no contention as to the sufficiency of the evidence to sustain this judgment. The sole assignment of error is that the lower court erred in striking out the three items claimed under the special plea.
The first contention of Westbrook...
To continue reading
Request your trial
-
Elizabeth River Crossings Opco, LLC v. Meeks
...tax is “an enforced contribution imposed by the government for governmental purposes or public needs.” Westbrook, Inc. v. Town of Falls Church, 185 Va. 577, 582, 39 S.E.2d 277, 280 (1946). “Taxes are levied for the support of government, and their amount is regulated by its necessities.” Sa......
-
Corr v. Metro. Wash. Airports Auth.
...the government for governmental purposes or public needs. It is not founded upon contract or agreement.” Westbrook, Inc., v. Town of Falls Church, 185 Va. 577, 39 S.E.2d 277, 280 (1946). Virginia courts ask whether a given exaction is “a bona fide fee-for-service or an invalid revenue-gener......
-
Shepheard v. Moore
...it is a 'voluntary tax.' A valid tax, it is argued, is not founded upon contractual assent. Westbrook, Inc. v. Town of Falls Church, 185 Va. 577, 582, 39 S.E.2d 277, 280, 167 A.L.R. 1027. But the assessment or levy of this tax is not voluntary or founded upon the consent of the taxpayer. It......
- Insurance Co. of No. America v. General Electric Co., Civ. A. No. 72-C-133-R.