author: McCulloci-i, C. J.

text:
    Southern Coal Company v. Searcy Transfer Company.
    Opinion delivered March 13, 1922.
    1. Customs and usages — application to contract. — Usages and customs of trade cannot be invoked to defeat the express terms of a written contract, being applicable only where the contract is silent or where its terms are ambiguous.
    2. Contracts — waiver of stipulation. — A prior course of conduct between- the parties to a contract under similar contracts cannot be invoked as a waiver of an express and unambiguous stipulation in a new contract.
    3. Sales — right to rescind — waiver—instruction.—Where an acceptance of an order for coal stipulated that failure of the purchaser to make payments under this or any other contract would authorize the seller to cancel the contract, an instruction to the effect that, if the seller had waived similar provisions in other contracts with the purchaser, this would be a waiver of the right to cancel, was erroneous, especially where the purchaser was expressly notified that such stipulation would be insisted upon.
    4. Sales — right of cancellation — notice.—Where a contract for sale of coal provided that the seller could cancel if the buyer failed to make payment under the contract or to make other payments to the seller, no notice demanding payment of a past-due account was necessary before cancellation.

      Appeal from White Circuit Court, J. M. Jackson, Judge;
    reversed.

      W. D. Davenport, for appellant.
    One cannot insist upon performance of a contract Avhen he is in default himself. 88 Ark. 497; 88 Ark. 422.
    The court erred in modifying instruction No. 3, on the question of waiver of payment. 77 Ark. 508.

      Brundidge & Neelly, for appellee.
    In view of the fact that plaintiff had been shipping coal to the defendant for more than a year, and had never insisted upon compliance with the conditions on-the back of the contract, defendant was certainly entitled to notice °of the intent to enforce them at this time, in order that it might protect itself from a rise in the market. 83 Ark. 553; 45 Ark. 37; 33 Ark. 465.
   McCulloci-i, C. J.

Appellant instituted this action against appellee before a justice of the peace of White County to recover the sum of $237.98, balance due on account for shipments of coal. Appellant is engaged in the wholesale coal business at Memphis, Tenn., and appellee is engaged in the retail trade at Searcy.

Appellee admits the correctness of appellant’s account, and that there is a balance due on the account in 1he sum claimed by appellant, but appellee filed a counterclaim for damages for alleged breach of a subsequent contract for the sale and future delivery of three carloads of coal. Appellee claims $288.91 as damages for the alleged breach of contract.

The'cause was tried in the circuit court on appeal from the justice of the peace, and the trial resulted in a verdict in favor of appellee, awarding damages for a small sum in excess of the amount due appellant on its account.

The contract for the sale of the three carloads of coal was in writing, and the price and terms were stated in detail. The contract was entered into on March 18, 1920, and it was stipulated therein that the cars were to be shipped on June 1st, 10th and 20th from the mines in Kentucky. The contract, which was in the form of an accepted order for the three carloads of coal, contained a. stipulation that if the purchaser should fail to make payments under the contract when due, or should fail, to make any other payments to the seller, then the latter should have the right to cancel the contract.

At the time this contract was entered into, appellee owed appellant about $1,100, but prior to the date for the beginning of the shipments under the new contract, appellee paid the account down to the amount now claimed by appellant. This amount was due under prior contracts similar in form to the one now under consideration for the shipment of coal. Appellant refused to begin shipments under the new contract, and appellee withheld payment of the balance to cover its damages for the alleged breach of the contract of sale.

There was testimony to the effect that the price of coal advanced between the date of the last order and the time for the shipments thereunder, and appellee was compelled to go into the market and buy coal at the advanced price. Mr. Smith, owner and manager of appellee’s business, testified that he held this sum back to protect himself on the last order.

There was also testimony to the effect that, in the dealings between the parties under former similar contracts, appellants had been accustomed to make shipments, regardless of the non-payment of past-due accounts. Appellant’s agent who obtained the order from appellee testified that at the time the order was taken he called the attention of appellee to the past-due account and notified him that shipments, would not be made under the new contract unless the old account was paid. This is denied by Mr. Smith, witness for appellee, with whom the contract was made.

The court, over appellant’s objection, gave an instruction telling the jury, in substance, that under the stipulation in the contract' with respect to payments appellant had a right to refuse to deliver the coal unless the stipulation was waived, but that, if ‘ ‘ the plaintiff had been shipping coal to the defendant company for a number of months and allowed him to make payments and extended credit to the defendant, then you are instructed that that constituted a waiver of the clause in the contract for the purchase of the coal.”

This instruction was erroneous and calls for a reversal of the judgment. In the first place, it is erroneous because it tells the jury, in effect, that the prior custom of making shipments would. constitute a waiver of the stipulation in the new contract, regardless of the notice which appellant’s agent testified that he gave to appellee at the time of the purchase that shipments would not be made unless the past-due account should he paid. If the prior transactions between the parties would constitute a waiver under any circumstances, they would not do so in the face of positive notice from appellant’s agent -that that feature of the contract would be insisted upon. There could be no waiver in the face of positive notice that the stipulations of the new contract would be insisted upon. But the objection to this instruction goes even further than that, for we are of the opinion that, even without express notice, the shipments made under prior contract would not constitute a waiver of the positive stipulation in the new contract. Nor would the course of conduct between the parties with respect to dealings under prior contracts annul the effect of the stipulation in the new contract.

It is the settled rule of law in this court that usages and customs of trade cannot be invoked to defeat the express terms of a written contract, and that such usages and customs are only applicable where the contract is silent or where its terms are ambiguous. Cook v. Hawkins, 54 Ark. 423; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400; Burton v. Wilson, 135 Ark. 269; Muse v. Eastham. 141 Ark. 295.

For the same reason prior course of conduct between the parties under similar contracts cannot be invoked as a waiver of an express and unambiguous stipulation in the new contract. Citizens’ Natl. Life Ins. Co. v. Morris, 104 Ark. 288; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199. Regardless of the prior course of conduct between the parties, they had the right to make their own terms under a new contract, and neither general customs of trade nor the prior course of conduct of the parties themselves can serve to defeat the plain letter of the new contract.

Counsel for appellee insist that appellant should not be permitted to declare a forfeiture and refuse to ship under the contract without giving notice and demanding payment of the past-due account, and they cite the case of Little Rock Cooperage Co. v. Lanier, 83 Ark. 548, and other eases to support their contention. Those cases, however, related to successive payments due under a single contract, and have no application to the present case, where damages are claimed for the breach of a new and independent contract. The stipulation in the contract was of itself notice to the purchaser that he would have to pay his prior account before shipments could be demanded under the new.contract, and it is admitted that appellee not only did not make the payments, but refused to do so in order to protect himself under the new contract for damages which might arise by reason of the failure of appellant to make shipment.

.We are of the opinion, therefore, that, according to the undisputed evidence, appellant had the right to refuse performance of the last contract for the sale .of three carloads of coal.

The judgment will therefore be reversed, and judgment will be entered here in favor of appellant for the amount of its account against appellee, with interest.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Turner v. Vaughan.
    Opinion delivered March 20, 1922.
    1. Appeal and error — dismissal op action — presumption.—Where an order dismissing an action fails to specify on whose motion it was entered, m.erely reciting that it was at plaintiff’s cost, it is presumed to be a voluntary dismissal on plaintiff’s motion.

      2. Forcible entry and detainer — right to recover damages.— The right of the defendant in unlawful detainer to recover damages upon a breach of the plaintiff’s bond does not involve an inquiry into the title and right to possession of realty, but is a mere chose in action, which upon defendant’s death passed to his administratrix.
    3 Forcible entry and detainer — dismissal—recovery op damages. — Where an action of unlawful detainer is dismissed before final judgment, there can be no assessment of damages in that action, and the defendant must resort to an independent action for the recovery of damages sustained by reason of the wrongful ouster and detention of his property.
    4. Forcible entry and detainer — right op action on bond.— While it was error to dismiss an action of unlawful detainer without ordering restitution of the property,, the failure of„ the court to make such order does not deprive the defendant of his right to recover damages in an independent action on plaintiff’s bond.
    5. Forcible entry and detainer — damages recoverable on bond. —Though Crawford & Moses’ Dig., § 4843, provides that the bond of the plaintiff in actions of forcible entry and detainer shall • be “in a sum at least double the value of two years’ rent of the property,” this language is a mere specification of the amount of the bond, and not a designation of the elements of damages recoverable on the bond.
    6. Forcible entry and detainer — damages recoverable on bond.— A defendant in unlawful detainer who is wrongfully deprived of the possession of his property is entitled to recover on plaintiff’s bond all damages which result from the wrongful taking or detention, not exceeding the amount of such bond.
    7. Forcible entry and detainer — mitigation op damages — instruction. — An instruction that the defendant in unlawful detainer was bound to exercise ordinary care to protect his personal property which was removed from the land by the sheriff under the writ, and that if either he or his family or servants failed to use ordinary care the plaintiff in that action and his sureties would not be liable, was properly modified by striking out all reference to defendant’s family or servants, there being no evidence that defendant had constituted his wife or children his agents to protect his property.
    8. Forcible entry and detainer — damages by ouster — fire.—The plaintiff in unlawful detainer is liable on his bonds for such damages only as result as a direct and natural consequence of the wrongful detention, and is not liable for destruction by fire of a house on the premises where there is no causal connection between the wrongful detention of the premises and the fire which caused the injury.

      Appeal from Sevier Circuit Court, James S. Steel, Judge;
    modified.

      E. K. Edwards and B. E. Isbell, for appellants.
    1. Title to real estate is involved, and damage ■thereto. The administratrix has no right to maintain the action. Only the heirs at law have that right. 46 Ark. 373; 70 Id. 402; 74 Id. 149; 33 Id. 665; 7 Id. 107. See also, 34 Ark. 391; 35 Id. 24; 115 Id. 572; 27 Id. 235. •'
    2. The verdict is insufficient. It is not shown that Turner or his bondsmen were in any way responsible for the failure to prosecute the unlawful detainer suit to final judgment. When Vaughan put it out of the power of the obligors in the bond to perform its condition by his motion to transfer to equity, he was no longer entitled to recover for the breach of such condition. 60 N. Y. 233,19 Am. Rep. 168; 1 Hill, L. (S. C.) 289; 26 Am. Dec. 180 and note; 18 Id. 451-452 and note.
    3. Under the evidence, the court erred in modifying instruction 5 offered by' the defendant by inserting the words “after the same came to his possession” and by striking out the words “his family or servants.”
    The court erred also in modifying instruction 6 requested by defendant. He should not be held to a greater degree of care than an ordinarily prudent man would exercise in the protection of his own house.

      Lake & Lake, for appellees.
    The administratrix is the proper person to sue. The cause of action was complete in the lifetime of Wes Vaughan, and his personal representative is the only person competent to sue. 15 Ark. 437; 16 Id. 671; 18 Id. 24; Id. 448; Id. 319; 21 Id. 173; 22 Id. 535; 24 Id. 116; 27 Id-445; 31 Id. 616; 31 Id. 723; 32 Id. 91; 33 Id. 147; 41 Id. 314; 46 Id. 453; 83 Id. 495; 34 Id. 205; 25 Id. 7.
    2. The judgment is supported by the evidence.
   McCulloch, C. J.

Appellee’s intestate, Wes Vaughan, was in possession of a certain tract of farm land in Sevier County, holding under purchase from one Rugan, when John Turner, one of the appellants, commenced an action of unlawful detainer against him in the circuit court of Sevier 'County to recover possession of said land, alleging that he (Turner) had purchased same from Rugan, ■ and that Vaughan was a tenant of Rugan, holding over after demand had been made upon him for possession. Turner executed a bond with his co-appellants in this action as sureties in the form prescribed by statute in cases of that kind, and the sheriff served the writ by taking possession of the property and turning it over to Turner.' Vaughan was absent at the time, his wife and children being at home, and the sheriff moved all the household effects from the house into the road. Vaughan did not return home until later, and he then moved his household effects to another place.

After possession of the premises was delivered to Turner by the sheriff, he put a tenant named Green in the house, and the house was totally destroyed by fire one night about a week after Green moved into it. Green was living in the house at the time of the fire, and lost substantially all of his household effects.

Vaughan filed his answer in the action, denying that he was in possession as tenant of Rugan and alleging that he held equitable title to the property under purchase from Rugan, and that Turner had notice of his rights when he procured a deed from Rugan. Vaughan alleged further in his answer that he had instituted an action in the chancery court against Rugan and Turner for the cancellation of the deed of Rugan to Turner and to compel Rugan to convey the land to him (Vaughan) according to the terms of their contract. Vaughan prayed in his answer that the cause be transferred to equity. Without the court ruling on the motion to transfer to equity, there was an order entered dismissing the action at the cost of appellant Turner.

The order did not contain any judgment of restitution of the propert}^ taken under the writ, nor did it specify upon whose motion the order of dismissal was entered, but it must be presumed tliat it was entered on tlie motion of Turner, the plaintiff, for it is nothing more than a voluntary dismissal.

Possession of the premises was surrendered to Vaughan, and he died thereafter, and this action was instituted by his administratrix on the bond given by Turner in the unlawful detainer suit to recover damages on account of the wrongful taking and withholding of the premises under the writ during the pendency of that suit.

The elements of damages set forth in the complaint, upon which there- was a recovery, were the rent of the premises for the year 1919 during which the premises were in possession of Turner’s tenant, and for the value of the house which was destroyed while occupied by the tenant, and also for damages to personal property. The jury returned a special verdict finding the damages for the rent of the land to be $400, the value of the house burned to be $300, and injury to personal property $40.

The right of appellee as administratrix to sue is challenged on the ground that it involves an inquiry into the title and right of possession of realty. Such is not the character of the suit, for it is a suit upon the bond executed by Turner arid his sureties in the former action against Vaughan. The right to recover damages which constituted a breach of the bond was a mere chose in action, which passed to the administratrix on the death of the person who was originally entitled to sue. Ross v. Turner, 7 Ark. 133.

It is next insisted that there is, according to the undisputed evidence, no right of action on the bond for the reason that the original action in which the bond was given was not prosecuted to final judgment. The statute provides that, before a writ of possession in an action of forcible entry or unlawful detainer shall be executed by an officer, the plaintiff “shall execute to the officer having the writ a bond with sufficient surety to be approved by such officer in a sum at least double the value of two years’ rent of the property specified in the writ,” the condition of said bond to be that “the plaintiff will prosecute his suit to effect and without delay, and if the defendant recover judgment against him in the action he will restore the possession of the lands, tenements or other possessions in the complaint mentioned, if restitution thereof be adjudged, and will pay the defendant all such sums of money as may be recovered against him by said defendant in the action for any cause whatever.” Crawford & Moses’ Digest, §§ 4843-4.

It is provided in another section of the same statute that where the verdict in the action is for the defendant, “the court shall give judgment thereon with costs and for any damages that may be assessed in favor of the defendant, and shall also issue a writ of restitution,” etc. Crawford & Moses’ Digest, § 4854.

It has been decided by this court, under a statute not dissimilar in this respect from the present statute, that where an action of unlawful detainer is dismissed before final judgment there can be no assessment of damages in that action, and that the defendant must resort to an independent action for the recovery of damages sustained by reason of the wrongful ouster and detention of his property. Strong v. Whatley, 23 Ark. 76.

In the case just cited the order of dismissal awarded restitution of the property to the defendant, and in that respect it differs from the present case, but the principle of law announced, that an independent action must be resorted to for the recovery of damages, applies in the present case. The fact that no formal judgment of restitution was entered in the order, of dismissal does not deprive the defendant in the action, or his personal representative, from resorting to an independent action to recover damages. The court should not dismiss an action of that kind without ordering restitution of the property, but the failure of the court to enter an order of restitution does not deprive the defendant of his right to recover damages. Restitution of the property was made, in fact, and that eliminates that question as a factor in the present litigation.

It is also insisted that there should be no recovery because the. bond was to prosecute the case without delay, and it is not shown who caused the delay in the prosecution of the case.' The answer to this contention is that the matter of delay in the prosecution of the case is not the basis of the present action, but it is the fact that the action ended otherwise than by a judgment for the plaintiff. Upon the happening of that event the defendant in the action was entitled to restitution, and the sureties on the bond became liable'for all damages accruing to defendant during the period of detention.

Counsel for appellant construe the statute to mean, as we understand their argument, that only rents can be recovered for the reason that the statute limits the liability of the bond to “double the value of two years’ rent of the property specified in the writ.” This language of the statute is a mere specification of the amount of the bond, and not a designation of the elements of damages recoverable on the bond. A defendant who is wrongfully deprived of the possession of his property is entitled to recover all damages which result from the wrongful taking or detention, not exceeding the amount of the bond. McElvaney v. Smith, 76 Ark. 468.

Appellants requested the court to give an instruction stating the law to be that Vaughan was bound to exercise ordinary care and diligence to protect and preserve the personal property which was removed from (die house by the sheriff under the writ, and that if either he or his family or servants failed to use said ordinary care appellants would not be liable for the damages which resulted from such failure. The court modified this instruction by striking* out all reference to the family or servants of Vaughan and limited it in its application to the failure of Vaughan himself to exercise care and diligence to protect the property. The modification was, we think, correct. Vaughan was absent from home at the time the sheriff executed the writ, and did not return until after his property had been moved out into the road. There is no evidence that he constituted his wife and his children as his agents to protect the property in such an emergency as this, and he is not responsible for their negligence, if any, in fading to protect it. He was only charged with, the duty, where his property was wrongfully removed from his house, of exercising ordinary care to mitigate the damage by protecting the property as far as practicable.

There was evidence introduced tending to show that Vaughan burned the house himself while Green was living in it as a tenant of Turner, and that the destruction of the house occurred either by unavoidable accident or by the wilful aet of Vaughan himself. Appellants asked the court to give an instruction to the effect that Turner and his tenants were only required to exercise ordinary care to protect the house, and that the verdict should be for appellants if the jury should find that Turner’s tenant used ordinary care to protect the house and that the destruction of the house by fire was caused by the aet of Vaughan. The court struck out the first part of, the instruction, and gave the latter part only, which told the jury that if “the house was wilfully set on fire and burned by the intestate in his lifetime, the plaintiff cannot recover the value of the house.” . The verdict of the jury therefore only settled the question that the house was not burned by Vaughan himself, and this is the only fact which, if found by the jury, would, under the instruction of the court, have excused appellants from liability for the loss of the house.

We do not deem it necessary to discuss the form and substance of this instruction, for we are of the opinion that the undisputed evidence shows that the house was burned either from accidental causes or from the wilful aet of some person other than Turner and his tenant, and, unless the mere destruction of the property while in possession of Turner made him and his sureties liable on the bond, there is no liability in this ease. We turn, then, to the question as to what are the elements of liability for the destruction of property wrongfully detained.

We reserve for future determination the question whether or not, in an aetion for forcible entry or unlawful detainer or in an independent aetion on the restitution bond given in sueh an aetion, there can be a recovery for an injury to the freehold. In that form of aetion the title to the land is not involved (Crawford & Moses’ Digest, § 4857), and it has been held under a similar statute that there can be no recovery for injury to the freehold in that kind of an action. White v. Suttel, 1 Swan (Tenn.) 169. We express no opinion on that question at the present time, but proceed to the discussion of the question whether or not there can be a recovery for an injury to the freehold where there is nothing more than an accidental injury to the property while being wrongfully detained. In testing the right of recovery, we should do so without regard to the particular form of the action, for, whatever the form of the aetion be, the party seeking damages can recover only for sueh damages as result “as a direct and natural consequence of the wrongful act. ’ ’ McElvaney v. Smith, supra.

We must assume, under the present state of the case, that Vaughan was the owner of the land, and that possession -was wrongfully taken from him and wrongfully detained. But even so he is only entitled to recover such damages as proximately resulted from the wrongful act, and that is the test of his light to recover.

We find no authority for holding that mere wrongful occupancy of premises imposes liability for injury that may oeeur from any causes during the period of sueh occupancy. There must be some relation between the wrongful detention and the loss or injury which occurred during that period. Unless the loss occurs through some negligent or wilful aet or omission of the wrong-doer, there is no causal connection between the wrongful aet and the injuries to constitute one the proximate cause of the other. It has been held that in actions of ejectment for the wrongful detention of property only such damages to the freehold itself are recoverable which amount to waste. Norman v. Beekman, (Fla.) 50 So. 876; 4 Sutherland on Damages, § 1034; 26 C. J. p. 862.

The judgment of the circuit court, will therefore be modified by reversing and dismissing that part which awards recovery of damages for the destruction of the house. The judgment will stand for the other two items involved.


author: Smith, J.

text:
    Bingham v. Powell.
    Opinion delivered March 13, 1922.
    Taxation — record op list op delinquent lands. — A tax sale of delinquent lands is void where the list of delinquent lands and the notice of sale were recorded by the clerk on the day of sale hut before the hour of sale.
    Appeal from Fulton Chancery Court, Lyman F. Reeder, Chancellor;
    affirmed.

      Oscar E. Ellis and II. A. Northcutt, for appellant.
    The recording of the certificate required to be made by the clerk, upon-the day of sale, where it was proved that this was done before the hour of sale, is a sufficient compliance with the statute. The precise question has not been decided, and in cases before this court involving a similar question there was a showing either that the certificate was not recorded until after the day of sale, that the certificate bore no elate, or that no showing was made that the record was made before the hour of sale.
    P. C. Goodiuin, for appellee.
    The statute requires the certificate to be recorded before the day of sale, and it is not sufficient if the record be made on the daji of sale, as the law takes no heed of parts of days. 74 Ark. 583. Other cases bearing on the subject and sustaining this contention are 141 Ark. 632; 68 Ark. 248; 55 Ark. 218; 80 Ark. 583; 84 Ark. 316; 87 Ark. 360; 74 Ark. 583.
   Smith, J.

This appeal questions the validity of a tax sale, which is attacked upon the ground that notice of sale was not recorded' prior to the day of sale, as required by section 10085, C. & M. Digest. The county clerk who made the certificate (which bears date the day of sale) testified that the list of delinquent lands and the notice of sale were recorded on the day of sale, but before the hour of sale, and the insistence is that this substantially complies with the statute. The court below held otherwise. Was that holding correct?

In the case of Hunt v. Gardner, 74 Ark. 583, it was said:

“This court has held that a failure by the clerk to record the list and certify the publication until after the day of sale rendered the sale void. Logan v. Eastern Ark. Land Co., 68 Ark. 248. In that case, the certificate having been made after the day of sale, it was unnecessary to decide whether or not the making of the certificate on the day of sale would ¡be a compliance with the statute; but in the opinion a strong intimation is given that it would not be, and that the certificate must be made before the day of sale. The reasoning of the court leads to that conclusion.
“There was no proof here to show whether the certificate was made before or after the hour of sale, and we need not indulge in presumption to determine at what hour it was made, as the law in such instance will take no heed of parts of days. If the certificate could be legally made on the day of sale, it could be made any time during the day. Treating it as settled by former decisions that the certificate cannot be made after the day of sale, it necessarily follows, from the language of the statute, that it must be made before the day of sale, and cannot be made on the day of sale. It was the manifest intention of the lawmakers to perpetuate, by this record, evidence of the notice of sale, its contents and time and manner of publication, and to make the record the sole evidence thereof. Looking at the statute, as we must, to discover when the record must he made, it is dear that1 it was intended to require the same to he made and certified before the day of sale.”

See also Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31; Martin v. Allard, 55 Ark. 218; Magness v. Harris, 80 Ark. 583; Townsend v. Penrose, 84 Ark. 316; Frank Kendall Lbr. Co. v. Smith, 87 Ark. 360; Logan v. Land Co., 68 Ark. 248; Laughlin v. Fisher, 141 Ark. 632; Cooper v. Lumber Co,, 61 Ark. 36; Birch v. Walworth, 79 Ark. 580; Earle Imp. Co. v. Chatfield, 81 Ark. 296; Earl v. Harris, 121 Ark. 621.

The cam of Hunt v. Gardner, supra, was died and followed in the ease of Laughlin v. Fisher, supra, with this comment; “There, as here, the record showed that the certificate was made on the day of the sale, and there was no proof to show whether the certificate was made before or after the hour of sale. Other decisions to the effect that the certified record must be made before the day of sale are the following” (citing eases);

It is insisted that this comment indicates the view that, if it had been shown that the certificate was made before the hour of sale, this would have been sufficient, although it was made on the day of sale. We think the language quoted is not susceptible to that construction; but that it means that the record must not only be made before the hour of sale, but also before the day of sale. The other eases there died had announced the requirement that the record must be made before the day of sale and was cited as supporting Hunt v. Gardner; but it was the ease of Hunt v. Gardner which was being expressly followed, and in that case it had been said that “if the certificate could be legally made on the day of sale, it could be made any time during the day. Treating it as settled by former decisions that the certificate cannot be made after the day of sale, it necessarily follows, from the language of the statute, that it must be made before the day of sale, and cannot be made on the day of sale.”

We think the necessary effect of the cases cited is to require the making of the record not only before the hour of sale, but before the day of sale; and the court below was correct in so holding.

Decree affirmed.


author: 'Wood, J. McCulloch, C. J.,

text:
    Carville v. Road Improvement District No. 2.
    Opinion delivered March 20, 1922.
    1. Highways — road improvement district — powers op board, — Act 97 of 1919 created a district for building, constructing and maintaining certain roads, authorizing the board to make the improvements as expeditiously and economically as possible and to make additional levies to complete the improvement, and to issue negotiable evidences of indebtedness. Act 423 of 1921, “to supplement and amend” the above act, provided that the power of the commissioners is “limited to completing the construction of the improvement,” and directed them “to make the improvement herein authorized as expeditiously and economically as possible,” and further provided that “the board of commissioners of said improvement district is hereby prohibited from making any additional levies of taxes, nor shall it borrow any more money or issue any more bonds.” Held that the acts should be construed together, to provide that the commissioners were authorized to complete the improvement, and, if necessary to accomplish this purpose, to issue additional bonds and to make additional levies, but not to issue additional bonds or make additional levies of taxes for the purpose of maintaining or repairing the roads,
    2. Statutes — construction as a whole, — The courts should construe an act as a whole so that all of its provisions, if possible, may harmonize and form a consistent and perfect law.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor;
    affirmed,

      Arthur L. Adams, for appellant.
    See. 4 of act 423,1921, does not violate sec. 22, art, 5 of the Constitution, as it is in effect a repealing statute. Repeals of statutes may be made by reference to title (47 Ark, 481; 99 Ark, 100), but an amendment cannot be so made.

      Sec. 4 does not impair the obligation of contracts. The act does not attempt to affect the contracts in any. manner, either as to terminating them or forbidding their further enforcement. The cases recognize a distinction between the impairment of the obligations of a contract and a breach or repudiation of the contract. See 108 Ark. 60; 115 Ark. 437; 113 Ark. 363; 119 Ark. 188; 19 C. J. p. 612, § 8.

      Basil Baker and Horace Sloan, for appellees.
    Sec. 4 of the amendatory act is void for the reason that it is in conflict with sec. 22, art. 5, Const. Sec. 1 of the last act amends secs. 1 and 2 of the former; while sec. 2 of the amendatory act is clearly an attempt to amend sec. 3 of the previous act, in violation of the above section of the Constitution. If sec. 4 be construed to be a repealing- act, then all amendatory legislation, except where it adds only new matters and does not eliminate any old provisions, is repealing legislation, and sec. 22 of the Constitution above referred to. would be inapplicable. For a discussion of the distinction between a “repeal” and an “amendment,” see 148 Ala. 381; 41 So. 903. See also 235 Mo. 687; 139 S. W. 443; 36 Col. 418; 85 Pac. 187; 169 Ind. 228; 82 N. E. 453. The title of the act clearly shows it was not intended as a repealing act.
    The amendatory act does not apply to borrowing-money, issuing- bonds or "levying taxes, to complete the improvement planned, but rather applies as a restraint on the commissioners from doing- these things for the maintenance of the road when completed.
    Sec. 4 impairs the obligation of contracts. 16 Wall. 314; Gray, Limitations of Taxing Power p. 524; 3 Ark. 285; 6 R. C. L. p. 328, 329. At the time of its passage the contract was partly executed, and partly executory, but ' in either event the Federal Constitution protects. 6 Crunch, U. S. 87, 3 Ed. 162; 4 Wall. 535; 96 U. S. 432; 109 Cal. 86; 8 Wheat. (LT. S.), 5 L. Ed. 547.

      As to the taxing power constituting an inherent part of a contract made by a political subdivision of the State, see 6 R. C. L. p. 345, sec. 338; 33 Ark. 690; 30 Ark. 435.
    The district having authority to contract the debt and levy taxes to pay therefor, a subsequent Legislature could not take away that right. 103 IT. S. 358; 71 IT. S. 535; 105 IT. S. 733; 111 IT. S. 716; 116 U. S. 289; 134 Fed. 214; 102 U. S. 203; 122 IT. S. 284.
   'Wood, J.

This action was instituted by the appellant against the appellees. He alleged, in substance, that appellee Road District No. 2 (hereinafter called district) was created and organized under act No. 97 of the Acts of the General Assembly of 1919, and that J. H. Whipple, H. H. McAdams and L. C. Glover aré its commissioners; that the above act was supplemented and amended by act 423 of the .Special Acts of the General Assembly of 1921, approved March 25, 1921, which act, among other things, provides as follows: “Sec. 4. The board of commissioners of said improvement district is hereby prohibited from making any additional levies of taxes, nor shall it borrow any more money or issue any more bonds” * * * *; that the J. E. Edwards 'Construction Company, a partnership composed of J. E. Edwards and H. C. Ribenack, were contractors to whom the commissioners had let the contract for doing the work of the improvement for which the district was created; that the contract was let after. the assessment of the benefits, and that bonds had been issued in the sum of $295,000, which were outstanding in the hands of different holders; that the funds derived from the bond issue had been exhausted in the work of construction of the improvement; that the sum of $25,000 Federal áid had been allotted, and that this sum would be required to pay the retained percentages due the contractors; that the commissioners of the district had adopted a resolution stating that it was necessary in order to complete tlie "improvement and to pay the indebtedness of the district already incurred, to borrow the additional sum of $1S,500, for which the commissioners proposed to issue additional bonds in the sum of $10,000, and to issue interest-hearing certificates of indebtedness to the contractors in the ¡sum of $5,000, these additional bond® and certificates of indebtedness to be paid by an additional levy of taxes on the face of the assessment of benefits; and to borrow the snm of $8,500 on a promissory note, certificate of indebtedness or bond, for the purpose of meeting the semiannual interest payment on the already existing bond issue, which interest would fall due February 1, 1922; that, notwithstanding the above provision of the supplemental act, the board was proposing to borrow money, Issue more bonds and make additional levies of taxes.

The appellant prayed that the district and its commissioners be restrained from (a) issuing any more' bonds; (b) from issuing any interest-bearing certificates of indebtedness to the contractors for the work done, or to be done, under the contraet, in order to complete the improvement; (e) from making or attempting to make any additional levy of taxes for the purpose of paying the additional bonds and interest-bearing certificates of indebtedness; (d) from borrowing any more money and evidencing the same by bond, promissory note, or certificate of indebtedness. The complaint contained various exhibits showing the successive steps taken by the board after its organization looking to the completion of the improvement, which it is unnecessary to set forth.

In their answers the appellees deny that the board of commissioners was prohibited by § 4 of act 423 above mentioned from borrowing money as set forth in the complaint. They alleged that the money which the commissioners proposed to borrow was needed for the purpose of completing the improvement as originally planned, to carry out the contraet according to its terms and to prevent default in the payment of the interest upon the bond issue. They averred that, if the -purpose of sec. 4 of act 423 was to prevent the board of commissioners from borrowing money to complete the improvement as originally planned, it Was unconstitutional for various reasons which • they alleged. They ‘ asserted that they had the power under the provisions of act 07 creating the district to borrow money and to proceed to do so in the manner indicated in the complaint. They alleged that before the passage of aet 423, supra, more than half the total work of construction had been completed, and that at the present time all the work of construction excepting the surface treatment had been eompleted, and the surface treatment had been partly completed. They further alleged-that, unless the district ’ be permitted to levy an additional tax, a large amount ■ of money due the contractors could not be paid by the district, to the loss of the contractors, and that the com-, struetion company would be. delayed an indefinite period in the collection of the amounts doe it; that the construction company relied upon the provisions of the law creating the district as furnishing it with a remedy for. securing prompt payment of the amount due it under its contract; that if aet 423 destroyed these remedies and deprived the district of the resources whereby it may discharge its obligations under the, contract,,. said aet necessarily impaired the oblgatioM.$f the empraet and' was void. Otter allegations of the complaint were denied.

' The appelant demurred to the answer on the ground that it did not state a defense to the action, which demurrer was overruled. The appelant stood on his demurrer. The court thereupon entered -.a decree ‘dismissing' appellants complaint for want of equity, from which is this appeal

The question presented by this appeal is, what effect does f 4 of act 423 off the Sperial Acte of 1021, approved March 25, 1921, have on the powers of the commissioners of Road District Mo. 2 of Craighead County, Arkansas, conferred upon them by aet 07 of the Acte of 1010, .creating the district! Under section X off that act :the district has-“power -to ;sue ’ and: be'sued, plead and be impleaded, and have perpetual succession for the purpose of building, improving and constructing, maintaining and repairing the roads hereinafter described, and may do all things reasonably necessary for the accomplishment of the purposes of this act. Under ■§> 2 the district “is formed for the purpose of building, improving, constructing, maintaining and repairing” the public roads described therein. Under § 5 it is made the duty of the board of commissioners “to make the improvements herein authorized as expeditiously and economically as possible. They shall have all necessary powers to accomplish this purpose * ’* * * *.”

Sec. 11, among other things, provides: “If the proportion of the assessment of benefits first levied is not sufficient to complete the improvements, the commissioners may malee additional levies of such amounts as shall be sufficient to complete the improvement and pay all indebtedness of the district; the aggregate levy against any particular tract, however, not to exceed the assessment of benefits against that tract.”

Sec. 18, among other things, provides: “In order to hasten the work the board may borrow money and issue its negotiable evidences of indebtedness for its repayment in such form as the board may adopt, and may issue, bonds with interest coupons attached, or in such other form as the board may adopt', and dispose of them in such manner and for such amount as the board may deem best.”

Now, the allegations of fact in the pleadings which are confessed to be true show that the board, for the purpose of doing the work of the district and in pursuance of its powers, had issued negotiable bonds in the sum of $295,000; that a contract had been let, and at the time of the passage of act No. 423 more than half the work of construction had been actually completed, and at the time of the institution of this action practically all of the work of construction except the surface treatment had been completed, and the surface treatment had been partly completed. The allegations of the complaint show that the assessed benefits to the lands from the improvements amounted to over $350,000.

Keeping to the fore the purpose for which the district was created and the powers conferred upon its commissioners by act No._97, supra, and the acts already performed by them in pursuance of such powers, it is clear to the minds of a majority of the court that the Legislature did not intend by § 4 of act 423 to' repeal the provisions of act 97, supra, which vests in the commissioners of the district the power to borrow money and issue negotiable evidence of indebtedness therefor and to make additional levies of taxes to complete the improvement under the original plans and specifications, and according- to the contract that had been entered into for that purpose, and to pay all of the indebtedness of the district thereby incurred.

It occurs to us that act No. 423 was what it purports to be as expressed in its title, i. e:, “An act to supplement and amend act No. 97,” and not to expressly repeal any of the provisions of act 97.

An examination of act 423 shows that none of the provisions of act 97 are expressly repealed by that act. While - § 8 of act 423 provides for the repeal of ah laws and parts of laws in conflict with the act, certainly none of the provisions of act 97 should be held to be repealed by implication unless, in considering the intention of the Legislature in both enactments, it is found that some.of the provisions of the latter act are in conflict with the former. Construing the acts together, as we must, we do not find any such conflict. According to well recognized canons of construction, it is the duty of the court to construe an act as a whole, so that all of its provisions, if possible, will be in harmony and form a consistent and perfect law. The appellant contends that under § 4 of act 423 the board had the power to complete the improvement only on condition that the taxes already levied, the money already borrowed, and the proceeds of the bonds already sold were sufficient to complete the improvement according to the original plans and contract. But we cannot concur in that view for the reason that it ignores the plain provisions of §§ 1 and 3 of the same act.

In § 1 it is provided: “The power of the district is hereby expressly limited to completing the construction of the improvement now planned.77 ¡See. 3 makes it “the duty of said board of commissioners to make the improvements herein authorized as expeditiously and economically as possible.77 It expressly provides that “they (the commissioners) shall have all necessary powers to accomplish this purpose ***** it shall be the duty of the said commissioners to improve the roads herein described by grading, drainage, and surfacing them in such manner and with such materials as the plans of the district may designate, and by straightening them, and to construct bridges and culverts as needed on said roads, according to the plans of the district.77

The allegations of the complaint show that the district had exhausted the funds derived from its bond issue ($295.000) in the work of construction of the improvement; that the Federal aid expected but not yet received (of $25,000) would be required to repay the retained percentages due the contractors,.and that it was necessary, in order to. complete the improvement and pay the indebtedness of the district already incurred, to secure more money in the sum of $18,500 as set forth in the resolution of the board. Here then is a project which under the allegations of the pleadings had already cost the district about three hundred thousand dollars and which only required the additional sum of $18,500 to complete the improvement, and which the district could not complete without funds. The only method, under the law of its creation, for obtaining funds was by borrowing money and levying an additional tax on the face of the assessment of benefits on the lands of the district to pay the sums borrowed. Now we must conclude that the Legislature of 1921 understood the magnitude of the project which had been authorized and undertaken under act 97 of the Acts of 1919. With the history of this legislation and the progress of the work already done and to he done, under it in view, we are convinced that the Legislature in the passage of act 423 intended that act to be supplemental to, and amendatory of, act 97, and that both acts should he construed together so that the commissioners could complete the improvement already planned and have all necessary powers to accomplish this purpose. After expressly conferring upon them such power as is given by §§ 1 and 3 of the act, it is wholly unreasonable to construe § 4 as intending to abrogate such power. For such construction puts these provisions in conflict with each other and renders the express provisions of §§ 1 and 3 unavailing to the commissioners of the district and destroys the possibility of bringing the improvement to completion, contrary to the manifest purpose of the Legislature in both enactments. The phraseology of § 4 of act 423, considered in connection with §§ 1 and 3, is, to say the least of it, ambiguous. What then did the Legislature mean by this section? Under the original act the district was given the power not only of “building, improving and constructing the roads described therein,” but also the power of “maintaining- and repairing the roads,” and this board had the power to borrow money and to issue negotiable bonds or other negotiable evidence of indebtedness therefor for all the purposes of the district.

It is manifest that the Legislature intended by § 4 to take away the power of the board of commissioners to borrow any more money or issue any more bonds or levy any additional taxes for the purpose of “maintenance and repair” of' the improvement after its completion under the original act. Section 1 of the amendatory act expressly takes away the power of the board “to maintain and repair the roads now being constructed and improved by it.” See. 7 of the act provides that “when the construction of the present proposed improvement has 'been completed the county court of Craighead County, Arkansas, shall take upon itself the maintenance of the roads to be improved under this act. ’' So the dominant idea in the minds of the legislators in the passage of act 423 was not to curtail the power of the commissioners to complete the improvement contemplated by act 97, nor the power to borrow more money and issue more bonds and levy additional taxes for that purpose, if necessary, but the Legislature intended, after the improvement had been completed, to prohibit the commissioners from borrowing more money, issuing more bonds, and-levying additional taxes for the “maintenance and repair” of the same. This construction harmonizes the otherwise apparently conflicting provisions of act 423 and makes the act a valid statute, Under any other construction it would fail because of its ambiguous and conflicting provisions. It follows that the court did not err in overruling the demurrer to the answer- and in dismissing the appellant’s complaint for want of equity. The decree is therefore affirmed.

The Chief Justice and Mr. Justice Hart dissent from that part of the opinion which relates to the issue of bonds.

McCulloch, C. J.,

(disseuting) If the new statute means no more than the majority attribute to it, then § 1 thereof is the only effective part — the succeeding sections may as well have been omitted.

Section 1 provides, in substance, that the' district shall not have authority to maintain the improvement', and this is all the effect the court gives to the whole statute.

It is the duty of courts in construing statutes to give effect to each part if the apparently -conflicting provisions can be reconciled. That part of § 3 of the statute amending $ 5 of the original statute which authorizes tlYeA'ommissioners to complete the improvement according; tontlie original plans can be harmonized with -the inhibition in § 4 against additional taxation of benefits by holding, as we all agree, that the inhibition is not against levying taxes for the completion of the improvement according to the original plan. There is, however, no conflict between §§ 3 and 4 with respect to borrowing money and issuing bonds. Section 3, amending § 5 of the old statute, does not deal at all with that question. It only confers authority to complete the improvement, and that can be done without borrowing money or issuing bonds. Authority to complete the improvement carried with it the necessary authority to make contracts, incur obligations and even to issue evidences of indebtedness. Altheimer v. Board of Directors, 79 Ark. 229.

The inhibition against issuing bonds is emphatic in its terms and leaves the district without authority to do so for any purpose. There is, however, no conflict between the two sections. Section 4 is controlling, and, conceding that the district may exercise all the powers conferred in § 3, it is prohibited under § 4 from borrowing money or issuing bonds. No one has a legal right to dispute the power of the Legislature to impose this limitation on the authority of the district.

The authority under the original statute to borrow money and issue bonds is withdrawn by the later enactment now under consideration, and no one can complain. Such withdrawal of authority did not impair the obligation of any contract. Bonds already issued are not affected by the new statute, and the former authority to borrow moliey was not a part of the contract between the district and its creditors. No creditor can, by legal process, compel a debtor — whether the debtor .be a public agency or iiot — to borrow money or issue negotiable bonds, even if the debtor has authority to do so. That is one. of the things which must necessarily be left to the will or convenience of the debtor. The- power to' borrow money and issue bonds is a mere grant by'the lawmakers, which -may or may not he exercised, according to the discretion of the commissioners of the district.

I dissent, therefore, from that part of the opinion which holds that the statute does not prohibit the district from borrowing money and issuing bonds to complete the improvement.

Hart, J., concurs in this dissent.


author: Wood, J.

text:
    Rice v. Metropolitan Life Insurance Company of New York.
    Opinion delivered March 20, 1922.
    1. Appeal and error — conclusiveness of court’s findings. — The findings of fact of a circuit court sitting as a jury will not be disturbed where there is substantial evidence to sustain them.

      2. Evidence — judicial notice of laws of other states. — The courts of this State take judicial knowledge of the laws of another State.
    3. Judgments — courts of other states. — The orders and judgments of the county court exercising probate jurisdiction in Oklahoma are entitled to the same presumption and the same immunity from collateral attack as are accorded to other courts of general jurisdiction.
    4. Executors and administrators — appointment—collateral attack. — The appointment of an administrator in Oklahoma being conclusively valid on collateral attack in that State, it is equally conclusive in this State under the full faith and credit clause of the Constitution of the United States and of the statutes thereunder.
    5. Executors and administrators — appointment—collateral attack. — Where an administrator settles a claim due the estate, his authority to do so cannot be attacked when set up as a defense to an action brought by the administrator in another State wherein the decedent resided, as such an attack would be a collateral attack on the order of the court appointing the administrator who made the settlement.
    6. Executors and administrators — powers of foreign administrator. — An insurance company was authorized to settle a policy with an administrator of the insured in a foreign State who had possession of the policy, though insured was a resident of this State at his death and administration on his estate was had in this State.

      7. EXECUTORS AMD ADJHMISTRATOBS — JURISDICTION TO APPOINT. — It was not a prerequisite to the appointment of an administrator in another State that there should be debts against the estate; it being sufficient if there was an estate therein, such as & policy of life insurance.
    Appeal from Scott Circuit Court, John Brtzzolara, Judge;
    affirmed.

      Bates S Duncan and Daniel Hon, for appellant.
    1. Upon the death of his wife, appellant, the person first entitled to letters of administration, was duly appointed as administrator of her estate by the probate court of Scott County. C. & M. Digest, § 8. The succession to, and distribution of, her estate, is governed by the laws of this State. A payment to appellant of the amount due on the poliey would have been valid. 98 Am. St. Eep. (W. T.) 689. Since Oklahoma has no statute for recognition of administrators outside its boundaries, as does this State, appellant could not maintain an action in that State for the money paid on the policy to the administrator appointed there. 18 Am. & Eng. Ene. of L. 945; 16 Ark. 267 ; 40 Id. 195; 54 Id. 61.
    2. Edwards knew when he made application for letters that the estate was in process of administration in Arkansas where it rightfully belonged. He knew, or should have known, that there were no debts due from the estate in Oklahoma, and knew that the sole heir to the estate was in. and a resident of, Arkansas, and that there was no necessity for administration in Oklahoma. These facts were known to appellee before, and at the time of, the payment to Edwards. There is no merit in appellee’s contention 'that this suit is a collateral attack on the grant of the Oklahoma letters. »§ee 131 Fed. 175; 2 Am,. St. Eep. (E. L) 894; 85 Am. Dec. (Cal) 58; 93 Am. St. Bep. (Kans.) 279. As to ancillary administration see 35 Am. Dee. 483,notes.
    Insurance policies, the same as promissory notes and bonds, establish a contractual obligation to pay money at a-cerain time.',-They are-therefore assets at the domicile-of- tlie debtor, and only by a fiction of law is it held to be an asset in the State where the corporation is authorized to do business. 232 S. W. (Ark.) 19; 115 Am. St. Rep. (Mo.) 427; 121 Am. St. Rep. (Ga.) 237.

      John E. Mosier, Earl Bohannon and De Thurston Mosier, for appellee.
    1. The judgment is sustained by the evidence. The finding’s of a trial court sitting as a jury will not be disturbed on appeal where there is any evidence reasonably tending to support the same. 45 Ark. 41; 40 Id. 144; 23 Id. 24; 56 Id. 589.
    2. This is a collateral attack on the judgment of the Oklahoma county court appointing Edwards administrator of the estate of the decedent. Arkansas courts are required to take judicial knowledge of the laws of other States. Kirby’s Digest, § 7823; C. & M. Digest, § 4110; 129 Ark. 384, 196 S. W. 465. For which reason the trial court took judicial knowledge of the Oklahoma statutes, particularly §§ 6190 and 6193 of the Revised Laws of 1910.
    Construing § 6190, supra, it. has been repeatedly held that the orders and judgments of the county court in probate matters are entitled to the same immunity from collateral atack as are accorded those- of other courts of general jurisdiction. 76 Okla. 46, 184 Pac. 97; 193 Pac. 415; 171 Id. 730; Id. 725.
    The appointment of an administrator by the probate court is not open to collateral attack in a suit against the administrator on the ground that the appointment was void for lack of assets within the State. 18 Cyc. 143; 11 R. C. L. 85, § 83; 1 L, R. A. (N. S.) 885; 77 Ala. 528; 160 la, 210,137 N. W. 502; 73 Am. Dec. 355; 17 Cyc. 143. Under the full faith and credit clause of the Federal Constitution the county court appointment in this case must be given the same faith and credit in Arkansas as accorded by .the courts in Oklahoma. 11 Ark. 15.6.
    . The judgment of a probate court imports absolute verity so long as it remains unreversed, and cannot, therefore, be collaterally attacked. 19 Ark. 499; 24' I$r 1-11; 773; 83 Pac. 240; 92 Id. 396; 23 Id. 528; 24 M.381; 240 23 Id. 77; 84 Id. 32; 104 S. W. 931; 92 Ark. 611;: 123 S'. W. 111. 238. , ‘ '.
    A policy of life insurance is assets upon which to found administration of an estate under the laws of Oklahoma. Ill XL S. 138, 28 L. Ed. 379; 67 Fed; 694, 4 L. Ed. 145; Woerner on Administration, § 205; 11 R. .0. L. § 83; 119 N. O. 380; 187 XJ. S. 312; 145 N. Y. 571; 76 Ala. 448; 186 N. Y. 471; 189 Id. 447; 210 Fed.. 6:89; 198-Ala. 416. •
   Wood, J.

On the 16th of June, 1908, the appellee issued its policy insuring the life of Beulah L. Edwards in the sum of $1,000. Beulah L. Edwards afterward; married H. E. Rice. By the terms of the policy, upon proof of the death of Beulah L. Edwards and upon surrender of the policy properly receipted, the amount thereof was to be paid to “the legal representatives of the insured.” Rice and his wife lived in Scott County, Arkansas, where the insured (Mrs. Rice) died on the 11th day of December, 1919. The appellee was authorized to do business in the States of Arkansas and Oklahoma and had an agent in both States upon whom service of process could be had at the time of the death of the, insured and subsequent thereto. The premiums on the policy had been paid by the insured’s father until his , death, and after his death the policy was sent by the insured by mail to her mother, who lived at Muskogee, Oklahoma. All premiums on the policy were fully paid prior to the death of the insured.

After the marriage of Rice to the insured, a child, Margaret Ann, was born to them, and she was the only, heir of the insured. On the 22nd day of January, 1920, H. E. Rice (appellant) was duly appointed by the probate court of Scott Coun-tv as administrator of the estate of Beulah L. Edwards Rice. On the 6th of July, 1920, D: E. Edwards was appointed administrator of the estate of Beulah L. Edwards Bice, deceased, by the county court of Muskogee, Oklahoma, and he duly qualified as such administrator and took possession of the policy upon which this action is based. Edwards is the brother of the insured. He received payment of the full amount of the policy and surrendered the same to the appellee company that issued it.

After the death of his wife and after he had qualified as administrator of her estate and ¡before D. E. Edwards was appointed administrator of her estate in Oklahoma, the appellant made demand on the appellee for the payment of the policy. The demand was made upon L. A. Ba rney, who was the superintendent qf the appellee at Oklahoma. The appellant exhibited to Mm papers showing that he was duly appointed administrator of the estate of Beulah L. Edwards Bice. Barney asked him who had possession of the poEcy, and, upon being informed that the appellant did not have the same in Ms possession, advised the appellant as to making proofs of death, and to get possession of the policy, and told appellant that he would assist Mm if he could in getting possession of same. The appellant was not able to obtain possession of the policy. Appellant also took the matter up with the appellee’s superintendent at Fort Smith, Arkansas. La a letter of March 21, 1920, the superintendent at Fort Smith wrote to appellant to the effect that the appellee’s superintendent at Muskogee had notified the company of the daim, and the company requested that he assist appellant in making proofs -of death, and stating to appelant that it was-necessary to have the policy in order to properly complete Ms claim. Appellant corresponded with Barney, the superintendent at Muskogee, concerning the same, and received a letter from Barney on September 13,1920, in. which he stated that D. E. Edwards, the brother of the deceased, had qualified as administrator of the estate $ that Edwards had surrendered the policy to the company, and the company had paid the full amount thereof to Mm.

The appellant instituted this aetion against the appellee to recover the amount of the policy. The appellee denied liability. The cause by agreement of the parties was submitted to the court, sitting as a jury, and the above are substantially the issues and fasts developed at the trial. The court found that, at the time of the death of the insured and at aU times thereafter until the policy sued on was paid, the policy was in the county of Muskogee, and State of Oklahoma; that D. E. Edwards was appointed as administrator of the estate of the deceased, Beulah L. Edwards Rice, -by the county court of Muskogee County, Oklahoma; that he, as such administrator, took possession of the policy and presented the same to the appellee for payment; that appellee paid the full amount thereof to Edwards, and he surrendered the policy to the appellee; that the appellant never had possession of the policy after the death of the insured, and that the policy was not within the State of Arkansas at the time of the death of the insured; that the appellant never tendered the policy with demand for payment of same to the appellee, and never furnished appellee with proof of the death of the insured as required by the terms of the policy.

The appellee asked the court to declare the law to be that, if the policy of insurance sued on was in the State of Oklahoma at the time the said D. E. Edwards was appointed administrator, the same constituted assets for the purpose of founding an administration; that the county courts of Oklahoma are courts of general jurisdiction having jurisdiction on the administration of all decedents leaving property in the 'State, whether they die within the State or not; that the judgments of the courts of the State of Oklahoma, of general jurisdiction, are accorded the same faith and credit in the State of Arkansas as the judgments of the State of Arkansas; that the payment of the amount due on the policy herein sued on to I). E. Edwards as administrator of the estate of Buelah L. Edwards Rice was a full and complete compliance with the provisions of the policy; that the county courts of Oklahoma need not set out jurisdictional facts upon which jurisdiction is based; that it is only necessary to set out the order or judgment entered.

The appellant asked for declarations of law in effect directly contrary to those asked by the appellee. The court refused to make, the findings requested by the appellant but did find the facts and declared the law as prayed by the appellee. The court also found the following: “In addition to the finding that the judgment of the probate court of Muskogee County, Oklahoma, is not open to collateral attack, the court will make the further finding tha.t there was ho fraud or collusion between the insurance cómpanv and every one else in the payment of the policy to the administrator of the estate of the decedent in the State of Oklahoma.” The appellant duly excepted to the findings of fact and declarations of law. The court thereupon rendered judgment in favor of appellee, dismissing appellant’s complaint, and for costs, from which judgment is this appeal.

1. The testimony was amply sufficient to sustain the court’s findings of fact. The rule has long been settled by .this court that the findings of a circuit court sitting as a jury will not be disturbed where there is substantial evidence to sustain them. Jackson v. Rutherford, 23 Ark. 24; Austin v. Fielder, 40 Ark. 144. The same rule applies, concerning the findings of fact by trial courts as to the verdict of a jury.

2. It is provided by the statute of Oklahoma that ‘ ‘ letters of administration must be granted in the county in which any part of the estate may be, the decedent having died out of the State and not resident thereof at the time of his death.” Revised Laws of Oklahoma, p. 1706, 6193, subdiv. 3. Under the statutes of Oklahoma, the county court exercising its probate jurisdiction has power to grant letters of administration. Sec. 6189 subdiv. 2. Another section of the statutes of Oklahoma provides “that, the proceedings of this court are construed in the same manner and with like intendments as the proceedings of courts of general jurisdiction, and to its records, orders, judgments, and decrees there are accorded like force, effect and legal presumption as to the records, orders, judgments, and decrees, of district courts.” Vol. 2, p. 1706, § 6190.

We must take judicial knowledge of these laws of the State of Oklahoma. Sec. 4110, C. &. M. Digest; J. R. Watkins Med. Co. v. Johnson, 129 Ark. 384. The Supreme Court of Oklahoma holds that the orders and judgments of its court exercising original jurisdiction in probate matters “are entitled to the same favorable presumption and the same immunity from collateral attack as are accorded other courts of general jurisdiction.” Vinson v. Cook, 76 Okla. 46; 184 Pac. 97; Welch v. Focht, 171. Pac. 730; King v. Mitchell, 171 Pac. 725; McDougal v. Rice, 193 Pac. 415.

In 11 R. C. L. p. 85, § 83, it is;said•' “Although the leaving of assets within the county in. which, letters of administration are granted is frequently referred to, as being a jurisdictional fact when the ■ deceased ■ did not' die a resident of such county, the fact that' no -estate was left cannot generally be shown in a collateral proceeding for the purpose of invalidating an administrator’s appointment. * * * An administration granted by a-court in one State is not necessarily void although ‘the intestate resided and died in another State leaving no estate in the county or State in which the letters'are'granted.” 18 Cyc. 143; Barclift v. Treece, 77 Ala. 528, and other cases cited in note. See also Erwing v. Fillenworth, 160 Iowa 210; 137 N. W. 502; Andrews v. Avery, 73 Am. Dec. 355. In the last case, it is- held, ■ quoting syllabus: “Administration granted by county court of Virginia is not void where the intestate,resided and died in another State, leaving no estate.in Virginia,..and ¡having no personal representative in the latter .State.” The decisions of our own court are in accord with this general doctrine. Sturdy v. Jacoway, 19 Ark. 499; Finn v. Hemp- stead, 24 Ark. 111; Rogers v. DuVall, 23 Ark. 77; Hare v. Shaw, 84 Ark. 32; Flower v. Reece, 92 Ark. 611. In the last case we held, quoting syllabus: “The probate court is a court of superior jurisdiction, and within its jurisdictional limits its judgments import absolute verity.” The copy of the order of the county court of Muskogee County, Oklahoma, appointing D. E. Edwards • administrator, brought into this record, does not on its face contain any jurisdictional defects. This order, therefore, is invulnerable, as we have seen, to collateral attack in the State of Oklahoma. Being conclusive of the validity of the appointment of D. E. Edwards as administrator of the estate of Beulah L. Edwards Bice in that State; it is equally conclusive here under the full faith and credit clause of the Constitution of the United States and the acts of Congress under it. Duncan v. Hopkins, 11 Ark. 156.

Where an administrator settles a claim due the estate, his authority to do so cannot be attacked when set up as defense to an action brought by the administrator in a foreign jurisdiction wherein the decedent resided. Such an attack would be a collateral attack on the order of the court appointing the administrator who made such settlement. Balsewicz v. C., B. & Q. R. Co., 240 Ill. 238. We conclude, therefore, that the trial court did not err in its declarations of law that the judgment of the probate court of Muskogee County, Oklahoma, appointing D. E. Edwards administrator, is not open to collateral attack.

3. The appellee was authorized to do business in Oklahoma as well as Arkansas. Having ascertained that D. E. Edwards was the duly qualified administrator of the estate of. Beulah L. Bice in Oklahoma, and that as such he had possession of the policy, appellee had the right to pay the amount due under the policy to him and take a surrender of the. policy. The contract of. insurance gave appellee such right, and the payment to. the administrator canceled all liability of the appellee on the policy. It was not incumbent on the appellee to wait until, at the end of a lawsuit or otherwise, it was settled between the administrator in Arkansas and the administrator in Oklahoma as to which was entitled to the fund for distribution. Under Session Laws of Oklahoma 1915, p. 47, ch. 39, bill 103, express authority is given to a foreign administrator to defend any suit or action, or to prosecute any claim in the State of Oklahoma. The appellee had the right to settle the claim against it with an administrator who had the policy in his possession and could surrender the same, notwithstanding the fact that it was notified before such settlement that there was an administration pending in the State of the residence of the insured at the time of her death. Having such right, there could be no legal fraud perpetrated by appellee upon the appellant. The court found, and the testimony sustained such finding, that there was no actual fraud. It is not a prerequisite to the appointment of an administrator in the State of Oklahoma that there should ¡be debts against the estate. All that is necessary is that .there shall be an estate therein. Sec. 6193, Revised Laws of Oklahoma, subdiv. 2. A policy of life insurance located in the State where letters of administration are granted is such an estate. Woerner on Administration, § 205; New England Mutual Life Ins. Co. v. Woodsworth, 111 U. S. 138, 28 Law. Ed. 379; N. Y. Life Ins. Co. v. Smith, 67 Fed. 694, 4 Law. Ed. 145; Shields v. Union Central Life Ins. Co., 119 N. C. 380, 24 S. E. 951, and other eases cited to this point in appellee’s brief.

The judgment of the circuit court is in all things correct, and it is therefore affirmed.


author: Hart, J.,

text:
    Arkansas National Bank v. School District No. 99.
    Opinion delivered March 20, 1922.
    1. School districts — powers.—School districts can exercise such powers only as are expressly granted and such incidental ones as are necessary to make those powers available and effective.

      2. ...Schools_ and .school districts — powers of .officers. — Persons who deal with school officers are presumed to have knowledge of the extent of their powers.
    3. School districts — power to borrow money. — -School directors, in a 'common school district, under Crawford & Moses’ Dig., § 8926, are not authorized to borrow money to build schoolhouses unless the directors shall have particularly set forth in the notices of the annual school meeting that these matters were to be submitted for their consideration and action.
    4. Schools and school districts — authority to build schoolhouse. — The annual meeting of a school .district cannot authorize the raising of money for the purchase or erection of a school building unless notice that such question would be considered is specifically given in the notice for the annual meeting as required by Crawford & Moses’ Dig., § 8926.
    fi. ^ School., -districts — void contracts — ratification.—Where a school district, without authority, undertook to borrow money to build a schoolhouse, the contract was void, and could not be ratified, either by the directors or by the voters of the district, though the money was used to construct a schoolhouse and the house was ; afterWarfls;U^ed:fpr school purposes.
    6. School -district’s- — void contracts- — effect.—Where the directors of a com.mon school district undertook, without authority, to bor- .. rqw,money to build a school house and signed a note for the money • sb borf-owed,' the note is void as to the district and as to persons who indorsed it. for accommodation.
    7. .Schools'and school districts — use of building no ratification. —Where -a neW School building was constructed by the directors without authority upon school lands, the use of the building after its construction for school purposes is not a ratification by the district' of the unauthorized contract, and does not render the district liable «-for the cost of the building.
    Appeal from .Washington Chancery Court; Ben F. McMahan, r Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    The Arkansas National Bank brought suit in the circuit court against Common School District No. 99 and certain individuals to recover on a note alleged to be due it in the sum' of $1,000 and the accrued interest.
    r : Judgment- was rendered by default in favor of the pla-iñtiff against- the defendants, and at the same term o± the court, oh ihotidn of School District No. 99, the judgmen t was set aside. The cause was then transferred to equity, where it was tried.
    According to the evidence adduced in favor of the plaintiff, W. W. Coffey, and the other directors of School District No. 99, a common school district, applied to the Arkansas National Bank to borrow money for.the purpose of building a schoolhouse. The bank refused to make the loan without the indorsement of certain individuals. The bank loaned the district $1,000 and took a. promissory note dated June 30, 1918, and due one year after date, payable to the order of the Arkansas National Bank, with interest from date until paid at the rate of 10 per cent, per annum. The Jiote was signed as, “District No. 99, W. W. Coffey”, and it was indorsed by twelve persons.
    According to the testimony of M. H. Cate, he was one of the persons who indorsed the note. W. W. Coffey, Lige Sharp and M. H. Cate were the directors at the timé the note was made. W. W. Coffey signed for the district, and the others indorsed the note on the back. The money was used to build a schoolhouse in the district. The house was economically constructed. The old schoolhouse was about' rotted down and :wa;s' hardly fit for anything. It would have been a waste of money to repair it. The schoolhouse was worth more than the amount of money it took to build it. It was used'by the district as its schoolhouse aftei- it was constructed.
    At the annual-school meeting, a vote of'the property owners was taken on the the question of building a new schoolhouse and of borrowing money for that purpose. Every property owner in the district but three voted to build the schoolhouse and borrow the money. The records of the quorum court showed that upon the director’s report of District No. 99 a levy, of 6 mills for “building tax” was made-for the year 1917.
    The chancellor found that the school district had no power to. borrow money, and that the note given by it for money so-borrowed could not be ratified, and that the-note sued on was void.

      The complaint of the plaintiff was dismissed for want of equity, and the plaintiff has appealed.

      B. B. Davidson, for appellant.
    The directors had power to borrow money for building a sehoolhouse, especially when authorized by a vote of the entire district.
    fhp act creating common school districts authorizes them to contract, sue and hold in their corporate name title to lands, to purchase or lease sites designated by a majority of votes, to build sehoolhouses with funds provided by the district for that purpose. Kirby’s Dig., 7541-2, 7614. Meeessaiily, by implication they would have the power to borrow money. 70 Ark. 291 holds that by implication they can employ an attorney, and 95 Ark. 26, that they have the power 'to purchase desks. Powers that are necessary to the exercise of granted powers are necessarily implied, from those expressly granted. ' 95 Ark. 6; 120 Ark. 426; 140 Ark. 405.
    The necessary preliminaries were complied with by submitting the question to the annual election, but, even if it had not been, the acquiescence of the public and acceptance of the building makes the contract binding. 81 Ark. 143; 82 Ark. 531; 95 Ark. 26; 67 Ark. 236; 87 Ark. 389; 98 Ark. 38; 110 Ark. 262; 111 Ark. 151; 129 Ark. 221.
    A corporation is estopped, the same as an individual, where it knows its name has been signed to a bond without authority, and it remains silent without protest. 77 Ark. 355; 50 Ark. 450; 36 Ark. 663; 57 Ark. 355.
    Under a contract which is absolutely void, recovery may be had when the money or benefit has been received and retained. 87 Ark. 389; 141 Fed. 944; 111 Fed. 682. The corporation cannot plead ultra vires. 47 Ark. 269. 48 Ark; 254 ; 70 Ark. 232 ; 74 Ark. 377 ; 81 Ark. 244. Especially is this true where it will accomplish a wrong. 74 Ark. 190; 89 Ark. 95; 91 Ark. 367 ; 96 Ark. 308; Id. 594; 247 Fed. 423.
    The only irregularity in the transaction was possibly in the manner of signing the note, but such irregularities will not be considered where the money has been received and spent. 36 Ark. 446; 80 Ark. 425; 105 Ark. 77.

      B. J. Wilson, for appellee.
    The note in suit was the individual obligation of the party signing it and the indorsers thereon, and not of the district. The attempted signature of the district by W. W. Coffey “Sec.” was invalid, since a common school district cannot employ a secretary from the membership of its directors and pay him a salary, 84 Ark. 516; nor is the act binding on the district because not signed by at least two of the directors as such directors. 45 Ark. 450.
    The note was executed without lawful authority and was beyond the power conferred upon the directors, and was therefore null and void. 94 Ark. 583; 25 Ark. 261; 95 Ark. 26. Contracts made by directors of common school districts, without first having been authorized by vote at the annual election, are void. 49 Ark. 94; Kirby’s Dig., § 7629.
    A contract void in the beginning for want of power to make it cannot be ratified. 82 Ark. 531; 94 Ark. 583; 129 Ark. 211.
   Hart, J.,

(after stating the facts). The decision of the chancellor was correct. It is the settled rule in this State that school districts have and can exercise only such powers as are expressly granted and such incidental ones as are necessary to make those powers available and effective. It is equally well settled that all persons who deal with school officers are presumed to have knowledge of the extent of their powers. First National Bank of Waldron v. Whisenhunt, 94 Ark. 583.

Our statute does not give the directors of common school districts the power to borrow money. The note was given for the purpose of borrowing money with which to build a schoolhouse. It may be also stated that the bank knew that the money was to be used for that purpose, and it does not appear from the record that the directors had been given the power to construct a schoolhouse. It is not shown that the directors gave notice before, the annual meeting that the electors would vote on.the question of raising money to build a schoolhouse. - It necessarily follows that the school district is not liable on the note sued on.

. 'The. authority of common school districts to build schoolhouses is derived from secs. 8926 and 8942 of Crawford & Moses’ Digest. Sec. 8926 reads as follows: “The directors shall give notice of .each annual meeting by posting notices thereof, at least 15 days previous to such meeting, in three or more conspicuous places within the district-; but it shall not be lawful for a district at .any annual meeting to fix a site for a.schoolhouse, or to raise money for building or purchasing a schoolhouse, unless the .directors shall have particularly set forth in the previous notice given of such meeting that these matters were to .be. submitted for their consideration and action.”

We.have copied the section correctly, although there is a mistake in inserting it in Crawford & Moses ’ Digest. It will be noted that the words, “but it shall not be lawful for a district” are left out and the following words, “at any annual meeting” are changed to “at the annual meeting” and these words are added, “an estimate of the expense of the district.”

This statute was construed in Fluty v. School Dist., 49 Ark. 94, where the court held that the directors of a school district have no power to build a schoolhouse with the- funds of the district unless authorized to do so .by the annual school meeting, and that a contract made for such building under authority conferred at a special meeting held later is void. Judge Smith, who delivered the opinion of the court, said: “And it is not lawful, even at. .the annual meeting, to'fix a site for the schoolhouse or to raise money for building or purchasing a schoolhouse, unless the directors shall have previously advertised that such matters will come before the meeting for its determination.-,. ‘The law: makes' no' provisión for called-meetings, except for the- single 'purpose'-of*filling a vacancy.-in--the -office of director. -The directors have charge of the school affairs and educational interests in their district, and the care and custody of the schoolhouses, grounds and other property 'belonging to the district. But they have no power to purchase or lease in the corporate name a sehoolhouse site, or to hire, purchase or build a sehoolhouse with funds provided or to be provided by the district, unless thereunto authorized by a majority vote at the district meeting.”

That principle is controlling here. It will be noted that the statute makes it unlawful to raise money for building or purchasing a sehoolhouse at the annual meeting unless the directors shall have particularly set forth in the notice for-such meeting that this matter was to be' submitted to the electors. This was not done.

In the application of the principles above announced, where the statute prescribes the only method in which a valid contract can be made, the adoption of the prescribed mode is a jurisdictional prerequisite to the. exercise of the power to contract at all; and the power can be exercised in no other manner so as to incur any liability on the part of the school district. This want of power or authority can not be supplied by the unauthorized acts of the directors or by any attempted ratification afterwards. It is apparent that, if the directors had no power to make the contract in the first instance, they' could not subsequently pass a resolution ratifying their act. In other words, under the record in this case, there could be no ratification by the directors, for they had no power to contract to build the sehoolhouse by ratification or otherwise. It has been well said that the law never implies an obligation to do that which it forbids the party to agree to do.

Again, it is urged that there has been a ratification by the electors of the school district acquiescing in the action of the directors and using the sehoolhouse after it was built. In the first place, it may be said that the land on which the sehoolhouse was built belonged to the school district, and the use of the sehoolhouse was inseparable from the enjoyment of the land.

Again, it may be said that, if the taxpayers of the district could be made liable by the fact that the money was used in building a schoolhouse, the statutory prohibition, making it .unlawful for a district to raise money for building a schoolhouse unless due notice had been previously given in the manner prescribed by the statute, would be useless. The limitation or restriction imposed by the statute would be practically of no avail, if it could be brought to naught by the unauthorized act of the directors acquiesced in by the electors of the district. The public by such a doctrine would be exposed to the very abuse which the Legislature intended to prevent. The statute in question was passed as an act of public policy by the Legislature, and it would be a very unsafe rule to establish to hold that school officers might borrow money without complying with the statute and bind the district because it was used in constructing a schoolhouse and the house was used afterwards for school purposes.

As we have already seen, any one who deals with a school district, the mode of whose power to contract is restricted by statute, must see to it that the contract on which he relies is entered into in the manner prescribed by the statute. The district being without power to construct the schoolhouse so far as the record discloses, there could be no ratification of an act done in violation of the statute, and such act was a nullity, so far as the liability of the district was concerned. Goose River Bank v. Willow Lake School Township (N. D.) 26 Am. St. 605; Young v. Board of Education (Minn.) 40 Am. St. 340; McDonald v. Mayor (N. Y.) 23 Am. Repts. 144; Newbery v. Fox (Minn.) 5 Am. St. 830, and Turney v. Bridgeport (Conn.) 12 Atl. 520.

In the last mentioned case the facts were that the plaintiff had contracted with the committee of a town to erect a schoolhouse, excepting certain parts, for an agreed price, and the town took possession and used the schoolhouse after it was finished. It was held that the taking possession and use by the town of the schoolhouse erected on its land was not such a ratification of unauthorized expenditures in the erection of the building as would make the town liable therefor.

It follows that the decree must be affirmed.