Hawkins v. Town of Dallas

WixboRNe, J. Appellant fails to show error in either of the two matters assigned as error on this appeal. First, as to denial of motion for judgment as of nonsuit: Defendant, by offering evidence and failing to renew its motion for judgment as in case of nonsuit at the close of all the evidence, as provided in G.S. 1-183, waived its exception to the denial of such motion entered by it when plaintiff first rested his case. Lee v. Penland, 200 N. C. 340, 157 S. E. 31; Rental Co. v. Justice, 211 N. C. 54, 188 S. E. 609, and numerous other cases. *564 Second, as to a portion of the charge of the court to the jury: The court held, and charged, without exception, in substance that, though the contract here involved be illegal for that it was entered into without the town having advertised for proposals or bids, it would be manifestly unfair for the town to receive the benefit of the work and labor provided and the materials furnished in installing the sewer line and in paving the street, without paying plaintiff the reasonable and just value thereof. Immediately following is this portion of the charge, to which exception is taken. “The Court, Gentlemen, is holding as a matter of law, and the Court so instructs you, that this contract ivas illegal and that the plaintiff cannot, in this action, receive a profit himself, under an illegal contract, but the Court charges you, gentlemen, the burden being on the plaintiff to so satisfy you, that the plaintiff is entitled to recover in this action the reasonable, just value of the material and labor so furnished which the town received the benefit of.” The statute, G.S. 143-129, in prescribing procedure for letting of public contracts, provides, among other things, that no construction requiring an estimated expenditure of public money in an amount of one thousand dollars or more, except in cases of certain emergencies, shall be performed, nor shall any contract be awarded therefor by a county, city, town or other subdivision of the State, unless the provisions of the section be complied with. Among other provisions, it is required that proposals for the construction shall be invited by advertisement in the manner and for the time specified. This Court has held that a contract not made in conformity to the statutory requirements is void, and the contractor may not recover on the contract. Realty Co. v. Charlotte, 198 N. C. 564, 152 S. E. 686; see also Jenkins v. Henderson. 214 N. C. 249, 199 S. E. 31; Raynor v. Commrs. of Louisburg, 220 N. C. 348, 17 S. E. (2) 495. Nevertheless, where the construction work has been actually done and accepted the Court holds that the county, city or town “is bound on a quantum meruit for the reasonable and just value of the work and labor done and material furnished.” McPhail v. Comrs., 119 N. C. 330, 25 S. E. 958; Realty Co. v. Charlotte, supra; Stephens Co. v. Charlotte, 201 N. C. 258, 159 S. E. 414; Commrs. of Brunswick Co. v. Inman, 203 N. C. 542, 166 S. E. 519. See also Moore v. Lambeth, 207 N. C. 23, 175 S. E. 714. Compare Raynor v. Commrs. of Louisburg, supra. In the light of the principle of quantum meruit applied as stated above, there is no error in the portion of the charge to which the exception relates. For reasons stated there is, in the judgment below, No error.