#### J. L. SPRUILL et als. v. TOWN OF COLUMBIA et als.

(Filed 21 September, 1910.)

1. Cities and Towns — Contracts—Paving Streets — Fraud—Evidence.

In an action to declare void for fraud a contract made by the town for paving- sidewalks, and enjoin tbe issuance of bonds to the .contractor in payment therefor, the work not having been commenced, it is competent to show (1) that an ordinance of the town provided that no appropriation of money should be made, except at regular meeting, and that the contract was made at a called meeting of the board; (2) that through the efforts of the contractor the number constituting a quorum of the board was changed from four to three to enable him to obtain the contract. The admission of immaterial evidence that the current expenses of the town took all the money raised by the tax levy, would not constitute reversible error.

*472. Same.

In an action to declare void a contract made by a town for paving its sidewalks upon tbe ground that tbe contractor by fraud and collusion with tbe aldermen procured it to be made, it is sufficient to go to tbe jury upon evidence tending to show that tbe defendant contractor procured tbe changing of tbe quorum of tbe board from four to three, in order to obtain the contract at an exorbitant price without the consideration of competitive bids; that one of tbe board was related to him and declared be would give the contract to defendant at an advanced price, and pecuniary inducements were held out to tbe others who voted for him; and that the nature of tbe contract was such as to largely give tbe selection of tbe material to tbe defendant, without any investigation by tbe board as to tbe quality of tbe materials to be used; and that tbe contract called for an investment largely in excess of tbe ability of the town to pay.

Appeal by plaintiff from Ferguson, J., at tbe Spring Term. 1910, OÍ TYRRELL.

Tbe facts are sufficiently stated in tbe opinion.

E. F. Aydlett, H. S. Ward and J. C. B. Ehringhaus for plaintiffs.

Gaylord & Gaylord and W. M. Bond for defendants.

Clark, C. J.

Tbis was an action to declare void a contract for paving tbe sidewalks of tbe town of Columbia, upon tbe ground that it was obtained by fraud, and to enjoin tbe defendants, commissioners, from issuing bonds to tbe defendant, Newberry, for tbe same. Tbe work bas not been performed.

Tbe first exception was to tbe introduction of an ordinance of tbe town wbieb provided that no appropriation of money should be made except at a regular meeting of tbe board of commissioners. Tbis was competent because tbe contract of tbe defendant, Newberry, was made at a called meeting.

Tbe evidence that tbe ordinance required four to constitute a quorum, and that through tbe efforts of Newberry tbis was changed to three, who constituted tbe meeting, when tbis contract was made, was also competent. Tbe defendants also excepted to tbe testimony that tbe current expenses of tbe town *48took all tbe money raised by tbe tax levy because it was immaterial. If so, it is not reversible error, Collins v. Collins, 125 N. C., 98.

Tbe chief exception is to tbe refusal of tbe motion to nonsuit. There was evidence tending to show that tbe defendant, New-berry, through bis personal influence with tbe board, bad obtained tbe contract for paving tbe sidewalk, at a price between $5,000 and $8,000, without competitive bidding; that be was instrumental in causing tbe board to change tbe town ordinance which required that four should constitute a quorum, so that three members gave him the contract, at an exorbitant price; and one of the three who voted tbe contract was related to New-berry, and declared himself in favor of paying 25 cents per square yard more to Newberry for tbe work than to any other person; that at the meeting, though there was another bid in, the majority of the board declined to receive bids and returned them unopened; that afterwards the defendant, Newberry, carried the proposition to the board, already written, and procured the three members to pass it; that the contract was excessive in price, and was made without any investigation as to price, or as to the best material; that it was indefinite and uncertain so that the contractor might put down a first-class pavement, or an inferior one, and still comply with the contract; that it called for a bonded indebtedness, largely in excess of what the town was able to meet; that the defendant, Newberry, helped to elect the board in order to get the contract; that he had suggested to some members of the board that certain personal advantages and profit would come to them by giving him the contract; that he also requested one member of the board, who opposed his having the contract, to resign and take part in the paving, and intimated that he (Newberry) would make it profitable to him.

There was other evidence tending to show that the contract was fraudulent, and obtained by Newberry through collusion with the board. His Honor properly overruled the motion to nonsuit. It was a question for the jury. Jones v. Ins. Co., 151 N. C., 54, and cases cited; Tuttle v. Tuttle, 146 N. C., 484.

The jury found that the defendants, commissioners, acted *49fraudulently in making tbe contract with their co-defendant, Newberry, and that be colluded with tbe commissioners in obtaining tbe contract. Tbe other exceptions require no discussion.

No error.