Moore v. . Lambeth

175 S.E. 714, 207 N.C. 23, 1934 N.C. LEXIS 368

• Court: Supreme Court of North Carolina
• Decided: September 19, 1934
• Status: Published

Opinion

Stacy, C. J.

It is provided by C. S., 2830, that, except in special emergencies involving the health or safety of the people or their property, no contract for municipal construction or repair work, estimated to cost a thousand dollars or more, shall be awarded without first inviting proposals for the same by advertisement, etc.; and provision is also made against division of any bid or contract for the purpose of evading the law.

That this statute was violated in the instant case is established by the verdict, and we have discovered no reversible error on the record.

The case is clear with respect to the corporate defendant. In addition to the finding of fraud, which vitiates the second agreement, it is made to appear that the prices charged for the additional work were exorbitant and excessive. Its just and reasonable worth, quantum meruit, has been allowed the defendant. This would seem to be fair enough. Abbott Realty Co. v. Charlotte, 198 N. C., 564, 152 S. E., 686.

But it is stressfully contended by the other defendants that what they did was done in their official capacity, and that no liability attaches to them as individuals in the absence of express statutory provision imposing such liability, unless they acted corruptly and of malice. For this position they rely, inter alia, upon the following authorities: Noland v. Trustees, 190 N. C., 250, 129 S. E., 577; Hipp v. Farrell, 173 N. C., 167, 91 S. E., 831; Templeton v. Beard, 159 N. C., 63, 74 S. E., 735.

The case rests upon another principle. Where public funds are wrongfully, wilfully and knowingly disbursed by municipal officers without adequate consideration moving to the municipality and with intent to evade the law, as found upon the present record, those responsible for such illegal withdrawal of said funds may be required to make good the loss to the public treasury. Brown v. Walker, 188 N. C., 52, 123 S. E., 633; 19 R. C. L., 1142; 43 C. J., 718. The plaintiffs are not to recover for themselves individually, as in the cases cited by the defendants, but for and on behalf of the city of Charlotte. Waddill v. Hasten, 172 N. C., 582, 90 S. E., 694.

Speaking to the subject in Burns v. Van Buskirk, 163 Minn., 48, 203 N. W., 608, it was said: “The vote of the council under which the city’s money was withdrawn from the treasury, the ministerial acts of the mayor and clerk in issuing the orders upon which the money was withdrawn, and the act of the treasurer in paying the orders, were the successive steps taken to transfer the money from the city treasury to the pockets of Saari Brothers. It is alleged that all who took part in the transaction knew that their acts were illegal, and it is a fair inference from the facts pleaded that there was concerted action. If there was, all concerned were jointly and severally liable.”

There is no real conflict in the evidence as it relates to the first two issues, hence the court was justified in instructing the jury to answer them in the affirmative if they believed the witnesses and found the facts to be as all the evidence tended to show.

The burden of proof on the third issue was properly placed upon the defendants. One who claims the benefit of an exception in the statute has the burden of showing that he comes within the exception. S. v. Hicks, 143 N. C., 689, 57 S. E., 441; S. v. Connor, 142 N. C., 700, 55 S. E., 787; Batts v. Batts, 128 N. C., 21, 38 S. E., 132.

The remaining assignments of error have all been examined with care. They are not sustained. Nothing appears on the record which would warrant the Court in disturbing the verdict or the judgment. They will therefore be upheld.

No error.

ScheNCK, J., took no part in the consideration Or decision of this case.