London v. Commissioners

Brogden, J. When exceptions have been filed to a referee’s report and thereunder the judge finds the facts upon such exceptions, such findings are not reviewable in the Supreme Court, if there is evidence to support them. Miller v. Groome, 109 N. C., 148; Dumas v. Morrison, 175 N. C., 431; Caldwell v. Robinson, 179 N. C., 518; Hardy v. Thornton, 192 N. C., 296; Greer v. Comrs., 192 N. C., 714. The referee found as a fact: “No action was ever taken by the board of commissioners, acting as a body or in meeting assembled, changing or modifying the written contract.” The judge overruled this finding of fact and found as follows: “And it is found that the commissioners, by their action and the action of the engineer and by their acquiescence in the written statement of plaintiff, and by requiring the plaintiff to build the road upon a new route contracted to compensate him for his additional expense and loss by reason of such requirement.” The only question therefore to be determined is whether there is evidence to support this finding of fact, that the board of county commissioners made a supplemental contract with the plaintiff. *103 Certain letters are referred to in tbe record as exhibits. None of these exhibits, however, have been put in the record, and we are unable to determine their probative value. A printed form of the contract is also sent, but there is nothing inserted in the blanks to enable us to determine what the written contract itself provided, other than the statements of witnesses. C. S., 1290, provides that the powers delegated to counties by statute “can only be exercised by the board of commissioners or in pursuance of a resolution adopted by them.” No resolution providing for the supplemental contract alleged by the plaintiff appears in the record. The fact, however, that a resolution was not actually spread upon the minutes would not be conclusive. Hearne v. Comrs., 188 N. C., 45. But in order to make a valid and binding contract upon the county, the commissioners must act in their corporate capacity in a meeting duly held as prescribed by law. Hearne v. Comrs., 188 N. C., 45; Fore v. Feimster, 171 N. C., 551; Wright v. Kinney, 123 N. C., 618. Did the commissioners act in their official capacity upon the question of this supplemental contract? The plaintiff testified: “The change, taking me away from the stakes, was made before we reached station 120, through the board of commissioners. ... I came to see the commissioners myself once or twice and explained the circumstances to them. Mr. Wheeler, Mr. Proffitt and Mr. Thomas, the commissioners, came down to the work to make their decision; that is, they agreed to do so, so as to untie me and let me go on. They did not decide that day, and put it off till 17 March in order to make a trip to Ealeigh to see whether the State would accept it on the opposite side of the creek. They came back, and I met them on 19 March ag'áin, and they decided at that time and gave me a letter of instruction to carry to Mr. Smith and his crew to proceed on the State survey. Mr. Smith arranged the meeting for us on the first Monday in March with the commissioners or the first Monday in April, . . . and we met in Mr. Smith’s office, and Mr. Smith told Mr. Wheeler, chairman of the board of commissioners, and who was actively dealing with this road for the commissioners. Mr. Smith stated the situation to Mr. Wheeler. Others of the board were present, but he was talking generally to Mr. WTheeler, and told him I objected to the change. . . .We argued awhile and WEeeler agreed he would bring his board and come down the next week, and if I was justly due any compensation he would give it to me.” It appears then that there was some conversation between members of the board of county commissioners and the plaintiff in Mr. Smith’s office. It does not appear whether this was a regular meeting of the board of county commissioners or not, or whether the commissioners at *104 the time were acting in their official capacity, or whether the letter of instructions referred to was authorized by the hoard, or as to what the contents of these various letters were. In this uncertain state of the record we are unwilling to determine the rights of the parties. If the board of commissioners of Yancey County were duly assembled and made the alleged agreement with the plaintiff, or if the board authorized its chairman or any other person to give a letter of instructions directing the work to be changed, and agreeing to pay a fair compensation therefor, then the plaintiff is entitled to recover the amount allowed. The cause is remanded to the Superior Court of Yancey County for specific findings of fact as to whether the board of commissioners of said county, in their corporate capacity, made the supplemental contract or authorized the chairman or any other persons to make it. Remanded.