author: Humphreys, J.

text:
    Cypert v. McEuen.
    Opinion delivered December 20, 1926.
    1. Contracts — ignorance op law. — Ignorance of the law is not sufficient to relieve one from his obligations, where there was no duress or fraud.
    2. Wills — election op widow to take under will. — Where a widow, with knowledge of the amount of her husband’s property, accepted a part payment of her distributive share under her husband’s will, and gave a receipt in which she agreed to abide by its terms, she will be held to have elected to take under the will.
    3. Wills — effect op electing to take under well. — A widow who has elected to take under her husband’s will is nevertheless entitled to the statutory allowances of $450 out of his personal estate, as provided by Crawford & Moses’ Dig., §§ 80 and 86.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      John E. Miller and Gulbert L. Pearce, for appellant.

      W. D. Davenport, for appellee.
   Humphreys, J.

Appellee, widow of R. G. McEuen, filed a petition in the probate court on April 13, 1925, praying for an order allowing her dower and homestead rights in all of the estate of her deceased husband. In aid of her petition she tendered into court a quitclaim deed, duly acknowledged and recorded, releasing and quitclaiming all her rights in the real estate under said will but not under the law; and also $112.50, with interest, which the executor of the will of her deceased husband had theretofore paid her.

Eugene Cypert, executor of the will, and Arch McEuen, Mattie McEuen Tigue, Charles McEuen and Eufus McEuen, heirs and legatees of R. G. McEuen, filed a response to said petition on May 2, 1925, alleging that appellee, with the full knowledge of her rights and for the purpose of making an election to take under said will, did on April 14, 1924, accept $25, and on June 5, 1924, accept $87.50 from said executor as part payment of her distributive share in said estate under the will.

On June 15, 1925, the cause was submitted to the. court upon' the pleadings and the documentary and oral testimony of the witnesses adduced by the respective parties, which resulted in a judgment denying the petition of appellee to take an interest in said estate under the law, and ordering the executor to proceed to distribute the estate under the will, from which judgment and order an appeal was duly prosecuted to the circuit court of said county.

The cause proceeded to a trial de novo in the circuit court on July 23,-1924, before the court, sitting as a jury, which resulted in granting the petition of appellee and an order directing the executor to pay the petitioner one-third of the personal property belonging to said estate, .and awarding to her dower and homestead rights in the southwest quarter of the southeast quarter of section 22, and the west half of the northwest quarter and the northeast quarter of section 27, township 7 north, range 8 west, containing sixty acres, more or less, from which judgment and order and award an appeal has been duly prosecuted to this court.

The record reflects, according to the undisputed facts, that Rufus G. McEuen and the appellee were, married in April, 1919, he being eighty and she sixty years of age; that, at the time, he had a home, some personal property and money, and was drawing a pension of $50 a month; that he executed his last will and testament on March 21,1923, in which he devised to his widow, the appellee herein, and to his only children, who are appellants herein, in equal parts, all of his personal property, and to said widow all his household goods, wearing apparel, and the use of said homestead during her natural life; that the will was drawn by Esq. Davenport, a justice of the peace, in the presence of R. G. McEuen, one of his brothers, the appellee and some of their neighbors ; and that the terms of the will were gone over in the presence of all of the parties, and that each of the devisees knew what he or she was to receive; that said testator died on March 28, 1924, and the will was.probated on April 12, 1924, at which time Eugene Cypert, one of the appellants herein, qualified as executor under the will; that, on the day of his qualification, he paid the appellee $25 as part payment of her distributive share under the terms of the will, and noted that fact on the check for said sum, which she indorsed and cashed; that, on the 5th day of June thereafter, he paid her $87.50, and received the following receipt:

“87.50 Searcy, Ark., June 5, 1924.
“Received of Eugene Cypert, executor of the estate of R. G. McEuen, the suni of eighty-seven and 50/100 dollars ($87.50), in part payment of my distributive share in said estate under the will of said R. G. McEuen, and in consideration of this sum as an advancement under said will, I hereby agree that I will abide by the terms of said will, and will accept one-seventh (1/7) of the proceeds of the personal property of said estate. M. F. McEuen. ”

That at the time she signed the 'receipt she knew that her husband had over $4,000 in the banks, and that he owed no debts; that, although nearly seventy years of age and hard of hearing, she could read and write and was reasonably intelligent; that, upon the death of her husband, she took charge of the household goods, the little personal property on the place, and rented out the homestead.

The record refiects a dispute in the testimony as to whether she knew her rights in the estate under the law when she accepted payments from the executor in lieu of dower.

Eugene Cypert testified that, although he did not go into details concerning the amount appellee would get if she renounced the will and took under the law, yet he informed her of her legal rights in the premises, and that she would get much more under the law than under the provisions made for her in the will.

R. C. and R. F. McEuen testified that they were present when Mr. Cypert explained her rights to her and heard her say to him that she would take under the will, as she was perfectly satisfied with it.

T. B. Ellis, a merchant in Searcy, who had known appellee and her husband for many years, testified that appellee told him that she had decided to accept the will and to settle the estate according to its terms.

Appellee denied the testimony of each of the witnesses aforesaid, and stated that she did not know that she had a right to renounce under the will and take under the law until a few days before she filed her petition in the probate court renouncing, her rights under the will and praying for her dower and homestead rights under the law.

Appellants contend for a reversal of the judgment upon the ground that, according to the undisputed evidence, appellee elected to take under the will, and is bound by the election; whereas appellee contends for an affirmance of the judgment upon the ground that she signed the receipt, in ignorance of her rights, and is not bound by same to an election under the will.

The receipt executed by appellee to the executor on June 5, 1924, 'a little over two months after her husband’s death, contains an express election to take under the will. The language used therein is unambiguous and commits- her unequivocally to an acceptance of a child’s part, or one-seventh of the personal estate, in full settlement of her distributive share therein. She does not dispute signing the receipt, but attempts to avoid its effect by saying she was iguorant of her rights under the law.

Ignorance of the law'' is not sufficient to relieve one from his obligations, but, in order to avoid them, he must also show that he did not have capacity to make them, or that they were made under duress, or that they were induced by some kind of deception or fraud practiced upon him. In other words, when one is put to an election, the election, when made, is as binding and effective as any other agreement made by him. This court laid down the following rule relative to elections of widows under wills in the case of Goodrum v. Goodrum, 56 Ark. 504 (quoting syllabus 1): “Acceptance by a widow of a bequest of money under her husband’s will, with knowledge that it was intended in lieu of dower, will be presumed to be an election to take under the will, notwithstanding she gave no receipt for the money and expressed no intention, in words or in writing, to make such an election. ’ ’

• It is true that, at the time appellee elected to take under the will, an inventory of the estate had not been filed by the executor, but she is charged with knowledge of the amount of money her husband had when he died, for she had possession of the deposit slips, and delivered them to the executor. She also had ample opportunity to inquire and obtain advice as to her rights under the law. There is not an intimation in the record that she was misled or deceived as to her rights, or that any undue influence was brought to bear upon her in order to induce her to abide by the will. She was a woman of reasonable intelligence, and voluntarily made an election to take under the will. Mr. Pomeroy says, in his work on Equity Jurisprudence, vol. 1, § 514, 4th edition, that ‘ ‘ an express election is made by a single unequivocal act of a party, accompanied by language showing his intention to elect,” and in § 516 of the sáme work says that one is bound by such an election.

In view of the fact that the undisputed evidence reflects that appellee estopped herself from claiming under the law, the judgment of the circuit court must be reversed, and the cause remanded with directions to the court to enter a judgment denying the petition of appellee, and directing the executor to administer the estate in accordance with the terms of the will.

The attention of the trial court is called, however, to the fact that the widow is entitled, under the circumstances of this case, to her statutory allowances of $450 out of the personal estate before same is divided among the devisees, notwithstanding the fact that she elected to take under the.will. There is no expression in the will indicating that it was the intention of the testator to deprive appellee of her statutory allowances under §§ 80 and 86 of Crawford & Moses’ Digest, by devising her a child’s part in lien of dower. Costen v. Fricke, 169 Ark. 572, 276 S. W. 579.

On account of the errors indicated the judgment is reversed, with directions to the trial court to enter a judgment dismissing the petition of appellee, and ordering the executor to administer the estate in accordance with the terms of the will, after paying appellee $450 in satisfaction of her statutory allowances.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Covington v. Johnson County. Dixie Culvert & Metal Company v. Johnson County.
    Opinion delivered December 6, 1926.
    1. Counties — orders calling in county warrants. — Orders with reference to calling in county warrants, under Crawford & Moses’ Dig., §§ 1994-1998, must be made by the county court, and not by the county judge, and must be spread upon the record of such court.
    2. Counties — proceedings op county court. — The county court is a court of record, and its proceedings as such must be entered upon its record.
    3s Counties — order calling in county warrants — appeal.—An order of the county court rejecting and canceling warrants as fraudulent or for any other purpose is a judgment from which the holder of such warrants adversely affected has a right to appeal.
    4. Counties — cancellation op warrants.- — An indorsement on county warrants, “canceled as fraudulent, August 11, 1917, C. H. Baskins, County Judge,” held not to show that the county court adjudicated and ordered the warrants canceled.
    5. Counties — calling in warrants — effect of failure to act.— The effect of the failure of the county court to take action on warrants called in for reissue or cancellation is to toll the statute of limitations as to the reissue and redemption of such warrants.
    Appeal from Johnson Circuit Court; J. T. Bulloch, Judge;
    reversed.

      Webb Covington, pro se; Rogers, Barber £ Henry, and Gannaway £ Gannaway, for Dixie Culvert & Metal Company, appellant.

      G. 0. Patterson and Hugh Basham, for appellee.
   Wood, J.

The facts in these cases are substantially as follows: In 1916 the Dixie Culvert & Metal Company, hereafter called metal company, sold and delivered to Johnson County, Arkansas, certain road materials aggregating the sum of $4,167.25. In payment for the materials the county court issued to the metal company road warrants for the above sum. This was during the term of office of Judge J. J. Montgomery, county judge of Johnson County. In 1917 J. J. Montgomery was succeeded by C. H. Baskins, who had been elected county judge of Johnson County, and in the summer of that year the county court issued an order calling in all county warrants for cancellation and reissue. The metal company inquired of the county clerk to know if its warrants were included in the call, and was advised by him that such was the case. The metal company then sent in its warrants to the county clerk. On the face of each of these warrants was written in red ink the following: “Canceled as fraudulent, August 11, 1917, C. H. Baskins, County Judge.” The signature was identified as that of Judge Baskins. The warrants were placed in a locked box, and the box then placed in the vault in the office of the county clerk. The metal company knew that the warrants had been thus marked canceled. Bartlett, the county clerk at the time this action was taken, notified its representatives of the action. Likewise, the clerk who succeeded Bartlett allowed the agents or attorneys of the metal company to look at the warrants. These warrants were kept by the successive county clerks in a lock-box separate from other warrants. No record was made on the records of the county court of Johnson County showing that the warrants were canceled as fraudulent, and that, for that reason, they were disallowed and not reissued. The material sold by the metal company to the county was received by the county before the term of Judge Montgomery, who was county judge at the time of the purchase, expired. When his successor, Judge Baskins, went into office, the culverts were used on the roads and highways of the county, and some of them were used on the streets of Clarksville. Soon after the election of Judge Baskins, he employed Judge Basham and G-. 0. Patterson, attorneys, of Clarksville, Arkansas, to resist the payment of the warrants in controversy. Judge Baskins talked to Judge Basham, one of the attorneys employed by him, in regard to these ■warrants, and Judge Basham advised Judge Baskins not to bother anything about it until the time for the appeal was up, and that the order canceling the warrants was within the court’s jurisdiction.

In February, 1924, the metal company, through its attorneys, Rogers, Barber & Henry, of Little Rock, filed with the county court its petition for the issuance, or reissuance and redelivery, of the warrants covering the amount claimed to be due the metal company in the sum of $4,167.25. This petition was afterwards presented to the court by Webb Covington, representing the metal company, at the request of Barber, one of the attorneys for the metal company. Judge Montgomery was the county judge at that time. The county court granted the prayer of the petition, and issued an order directing the reissuance of the warrants- covering the amount due the metal company. The county clerk issued the warrant and placed the same in the hands of Webb Covington, who presented the same to the treasurer -of the county for registration, and the treasurer, after registering the warrant, advised Webb Covington that funds for the payment of such warrant were on deposit in the Bank of Clarksville. Covington presented the warrant to the bank for payment, and the same accepted and paid. The bank issued a deposit slip to Covington, who passed the amount to his checking account. That occurred on Friday. On Monday thereafter, to-wit, on November 18, 1924, the prosecuting attorney for the judicial district including the county of Johnson filed a complaint in the Johnson County Circuit Court, in which Johnson County, on relation of the prosecuting attorney, is designated as plaintiff, and the metal company, Bank of Clarksville, Ralph Walton, sheriff of Johnson County, and A. W. Covington, are named as defendants. After setting up substantially the facts as above set forth, the complaint alleged that the warrants were wrongfully, unlawfully, and fraudulently allowed and reissued, and unlawfully registered by the treasurer of the county, and that the payment of same would result in great and irreparable loss and damage to the plaintiff. He prayed that the treasurer of Johnson County be enjoined from paying said warrants. The order of the circuit judge recites that the petition was presented to him in his chambers at Russellville, on November 17,1924, and, upon the hearing of the same, he directed the clerk of Johnson County Circuit Court to issue a restraining order' restraining the defendants in the petition from doing anything whatever toward the payment or settlement of the pretended claim of the metal company against Johnson County, pending the appeal, and until the suit was determined or until further orders of the court.

Webb Covington, as attorney for the defendants, filed in the circuit court of Johnson County a motion to dissolve the injunction, setting up that the same was issued without notice to the defendants named in the petition and alleging that the court was without jurisdiction, under the facts stated in the petition, to issue the restraining order, and that the facts stated were not sufficient to state a cause of action against the defendants. In a separate answer or motion Webb Covington, for himself, set up substantially the facts as above set forth, and denied specifically all the allegations of the petition for injunction that were not specifically admitted, and prayed that the injunction be- dismissed and that he have judgment for costs. After this, the prosecuting attorney and Webb Covington agreed in open court that, upon the filing of a bond by Covington with sufficient surety to protect the county, the injunction .might be dissolved. Webb Covington filed the bond with J. H. Brock as security, and the injunction was dissolved and the bank directed to pay over the funds in its hands to Webb Covington. The trial court, upon the above issues and facts, entered a judgment reversing’ the judgment of the county court of Johnson County allowing the claim of the metal company against the county, and disallowed such claim, and also rendered a judgment in favor of Johnson County against the metal company and Covington and Brock in the sum of $4,167.60, the amount found to be due under the terms of the bond filed by Covington and Brock.

' On the 18th day of June, 1925, the metal company filed its motion to modify the judgment of May 14, 1925, by ny/nc pro time entry, so as to eliminate from such judgment the judgment rendered by the court in favor of Johnson County against the metal company on the bond in the sum of $4,167.60' given and signed by Covington as principal and Brock as surety. From the judgment in favor of Johnson County against Covington on the bond and also in favor of Johnson County against the metal company on the bond, both the company and Covington prosecute their appeals. •

The procedure (c. 40, C. & M. Digest) for calling in county warrants in order to redeem, cancel, reissue, or classify the same, or for any lawful purpose whatever (§§ 1994-1998, inclusive), contemplates that all orders the court makes with reference to such warrants so called in shall be spread upon the record of the county court, because the orders pertaining to such called-in warrants are all orders to be made by the county court and not by the county judge. The warrants, when presented in obedience to such call, are presented to the court for its action, and not to the county judge. They are. to be presented at the time required by the order of the court, not the judge, and when, in obedience to the order of the court calling in the warrants, they are presented to the court, it is the duty of the court, not the judge, to thoroughly examine the same and to reject all such evidences of indebtedness as, in its judgment, the county is not justly and legally bound to pay, subject to appeal to the circuit court. The county court is a court of record, and its proceedings as a court must be entered, upon its record. An order of the county court rejecting and canceling warrants as fraudulent, or for any other purpose, is a judgment of the county court, from which the party holding the warrant adversely affected by the order has the right to appeal. .Section 2009 of C. & M. Digest provides: “If, upon adjudication of any warrant by the county court, it shall be found to* have been fraudulently or wrongfully issued, without due authority from said court, the court shall indorse such fact thereon, and cause it to be deposited, without renewal, in the office of the clerk of said court.”

There was no formal plea of the statute of limitations nor of res judicata set up in the case, .and, if such pleas had been entered, they could not avail under the undisputed evidence, which shows that no order of "the court was ever made canceling the warrants of the metal company. The order of the county court calling in the county warrants for reissue gave the county court of Johnson County jurisdiction to cancel these warrants. See Johnson County v. Patterson, 167 Ark. 296. But there is nothing in this record to show that the county court, as such, adjudicated and canceled the warrants in controversy. The mere indorsement on the face of the warrants, “Canceled as fraudulent, August 11, 1917, C. H. Baskins, County Judge,” does not shoAV that the county court adjudicated and ordered the warrants canceled, pursuant' to §§ 1998 and 2009 of C. & M. Digest supra. Such indorsement by the county judge Avas not tantamount to a judgment of the county court canceling these warrants for fraud. Hence these warrants, so far as this record discloses, were outstanding and valid warrants at the time the petition was presented to the county court in 1924 for their reissue. The undisputed evidence in this record is to the effect that these Avarrants originally were issued in payment of a valid claim against the county. The metal company presented its warrants, in complianee with the order of the county court calling in warrants for redemption, cancellation, reissue, or classification. The failure of the county court to take any action on these warrants, either to cancel and reissue same if found to be valid, or to reject and cancel the same if, for fraud or any other reason, found invalid, and to enter judgment on its record showing what was done by the court in the premises, had the effect of tolling the statute of limitations as to the reissue and redemption of the warrants.

The case of Johnson County v. Patterson, supra, does not dispose of the issues here at all. The theory of counsel for appellee that the issues here presented were settled by that case cannot be sustained. -True, that was a suit against the county by attorneys on a contract entered into by them with the county to resist this particular claim and to prevent, if possible, the reissuance and payment of the warrants in controversy. On the facts there presented we held that the county was liable on its contract. The parties were different from the parties now before the court,'and the issues were entirely different, and that case has no application to the facts in this record.

It is unnecessary for us to enter upon a determination of the question as to whether or not the circuit court had jurisdiction to render a judgment awarding the injunction, and thereafter a judgment on the bond growing out of that proceeding. For, if we treat the proceeding here as an appeal from, the judgment of the county court allowing the claim and directing the reissuance of the warrants, which we have done, the undisputed facts of this record show that the judgment of the trial court was erroneous. The judgment is erroneous in any view of the case, and it is therefore reversed, and the cause is remanded with directions to the trial court to enter a judgment affirming the judgment of the county court in directing the issuance of a warrant to the metal company for the payment of its judgment against Johnson County.


text:
    Fox v. Pinson.
    Opinion delivered December 6, 1926.
    1. Mortgages — sale of land not included. — A decree of foreclosure ordering a sale of 80 feet on'which a hotel stood to satisfy a mortgage which covered only 75 feet thereof was erroneous.
    2. Mortgages — covenant against incumbrances. — A vendor who' conveyed land by deed with warranty against incumbrances cannot foreclose his mortgage taken to secure the purchase money before paying off and clearing the record of all incumbrances.
    3. Mortgages — foreclosure—unmatured installments. — In the absence of an accelerating clause in purchase-money notes or mortgage, a mortgagor qannot enforce his lien for the total indebtedness on default in payment of a part thereof.
    4. Garnishment — necessity of answer. — A purchaser of land who gave purchase-money notes should, on being served with a writ of garnishment by the vendor’s creditor, tender the money due to the vendor into court and request that same be applied to her notes before being paid to such creditor.
    .5. Mortgages — ascertainment of priorities. — A valid foreclosure decree must be obtained before there can be any basis for ascertainment and declaration of priorities between claimants.
    Appeal from Union Chancery Court, Second Division; E. G. Hammock, Chancellor on exchange;
    reversed.

      Coulter & Coulter, for appellant.

      Marsh, McKay & Marlin, for appellee.
   Humphreys, J.

This suit was commenced in the chancery court of Union County, Arkansas, by W. J. Pinson, one of the appellees, against Yetta C. Fox, one of the appellants, to foreclose two mortgages in the total sum of $50,000 and accumulated interest, upon the east 80 feet of lot 4, in block 17, in the city of El Dorado, known as the States Hotel property. It was alleged in the complaint that, on January 1, 1924, said appellant executed two mortgages to said appellee upon said property to secure the balance of the purchase money for same, amounting to $50,000, one for $20,000 to secure the payment of twenty-five promissory notes in the sum of $800 each, the first being due on the 1st day of January, 1929, and one on the first day of each month thereafter, bearing interest at the rate of 8 per cent, per annum, interest payable annually; and the other for $30,000, to secure the payment of sixty promissory notes in the sum of $500 each, falling due consecutively on the 1st day of each month thereafter, and each bearing interest from date until paid at the raté of 8 per cent, per annum; that said appellant had defaulted in the payment of interest in the sum of $1,600 on the first series of notes, and on the payment of four notes in the second series, with accumulated interest thereon, and that she had failed to pay the taxes on said property and insure the hotel.

Said appellant filed an answer, admitting the purchase of the property and execution of the first and second mortgages to secure the first and second series of notes, but denied that she had failed to keep up the payments or comply with the terms of the mortgages until a writ of garnishment was served upon her for a claim of $2,000, issued in a suit pending in the first division of the chancery court, wherein F. M. Dielman was plaintiff, and said appellee and J. T. Finn, an owner of an equitable 'interest in said property, were defendants, the suit being for an alleged balance due to Dielman as a real estate commission from them for selling said property to her. She interposed the further defenses that said appellee conveyed the property to her under a warranty that same was free from incumbrances, whereas appellee, as well as J. T. Finn, who owned an equitable interest therein, had executed separate mortgages upon said property to various parties, which were placed on record prior to said appellee’s deed to her, and prayed that said appellee be required to clear the property of all incumlbrances prior to said deed; and that there was no accelerating clause in the mortgages or notes which she executed to said appellee, and that he was not entitled to foreclose upon the unmatured indebtedness secured by said mortgages.

The Globe Petroleum Company and the First National Bank of El Dorado, two of the appellees herein, the First State Bank of Paris, Texas, one of the appellants herein, and a number of other parties, filed separate interventions, claiming interests in the property prior and paramount to W. J. Pinson or Yetta C. Fox, under mortgages antedating the deed from W. J. Pinson to Yetta C. Fox, and interests prior and paramount to W. J. Pinson as holders by assignment of certain of the series of notes executed by Yetta C. Fox to W. J. Pinson.

The intervention of the First National Bank of El Dorado was based upon the mortgage executed to it upon the east 75 feet of lot 4, block 17, in the town of El Dorado, by W. J. Pinson, on the 10th day of January, 1923, to secure the payment of a note in the sum of $20,000, in which it was alleged that there was a balance due upon said mortgage of $4,500.

The suit of F. M. Dielman for his commissions was consolidated with this suit and the interventions filed therein, and the consolidated cause proceeded to a hearing upon the pleadings and the oral and documentary testimony adduced by the several parties, resulting in a decree declaring that the mortgage executed by Pinson to the First National Bank of El Dorado was prior and paramount to all other claims against the entire property, and adjudging a foreclosure of the east 80 feet of said lot and block to satisfy the amount due upon said mortgage. The court then proceeded- to determine the priorities between the several claimants who had intervened, and ascertained the amount due each on their several claims just as if the “unmatured notes were due, and adjudged the amounts due the several claimants thus ascertained liens upon the proceeds to be derived from the sale of the property, after first paying the mortgage and interest due the First National Bank of El Dorado. The court also ascertained that F. M. Dielman was entitled to a balance of $650 upon his claim as commissions for making the sale, and rendered judgment in his favor against J. T. Finn, and ordered that same be paid out of the proceeds of the sale in the order of priorities theretofore determined. The court appointed a commissioner to make the sale and report his proceedings to thé court at its next regular term after the sale should be made.

An appeal from the decree has been duly prosecuted to this court by Yetta O. Fox, F. M. Dielman and the First State Bank of Paris, Texas.

The effect of the decree, as we interpret it, was to treat all notes and accounts as matured claims against the whole property, and to foreclose the liens and sell the property to create a fund out of which to pay the said claims in order of adjudged priorities.

It is conceded by all the parties that the mortgage in favor of the First National Bank of El Dorado is prior and paramount to all other claims against the east 75 feet of said lot in said block, but the appellants contend that the court erred in decreeing a foreclosure of the east 80 feet of said lot to satisfy the balance due upon said mortgage. Just how this error crept into the finding and decree of the court we are at a loss to understand, as, by reference to the mortgage, we find that it only covered the east 75 feet of said lot. The property was valuable, and the sale of the extra five feet in connection with the east 75 feet as a whole necessarily prejudiced the rights of Yetta C. Fox, who purchased the 80 feet of said lot upon which the hotel stood, as well as other subsequent lienholders.

Appellants’ next contention for a reversal of the decree is that the court erred in ordering a sale of the east 80 feet of said lot to create a fund to pay the lien of W. J. Pinson and his assignees, under both the first and second mortgages executed by Yetta C. Fox to him, They are correct in their contention for two reasons.

First, that W. J. Pinson was in no position to foreclose either of his mortgages before paying off and clearing the record of all incumbrances placed by him and J. T. Finn upon the east 80 feet of said lot. He and Finn owned the property jointly, subject to certain mortgages each had placed upon it, at the time.he conveyed it by warranty deed to Yetta C. Fox. He held the legal title, and conveyed it under a warranty that it was unincumbered.

Second, only a part of his debt was due, and, there being no accelerating clause in the notes or mortgages, he was powerless to enforce a lien against the property for his total indebtedness. The statutes of our State do not provide for a foreclosure of an entire mortgage indebtedness upon default in the payment of an installment thereof which has become due, nor the foreclosure of two mortgages upon the same property by the same mortgagee upon default in the payment of the due mortgage before the maturity of the other. In the first instance, the mortgagee can foreclose upon installments only which have matured, subject to the continuation of the lien upon the property to secure the unmatured installments; and, in the second instance, can only foreclose the mortgage which has matured and not the undue mortgage. If the law were otherwise, there would be no necessity for an accelerating clause in mortgages, and it is almost a universal custom in this State to embrace accelerating clauses in mortgages. Even the printed forms of mortgages contain such clauses. There is much authority in support of a contrary rule, and also in support of a rule allowing the situation in each case to be taken care of by provisions in the decree, but we think the rule announced is the most wholesome and the fairest to 'both mortgagor and mortgagee. Any other rule would create inequalities between owners of notes falling due at different times which are embraced in the same mortgage. This court stated, in the case of Land v. May, 73 Ark. 415, in dealing with a number of notes secured by mortgage, some of which were due and some not, that the mortgagee “was entitled to have foreclosure for such as were due.” This was tantamount to saying that he was not entitled to foreclose for such as were not due. The case was reversed, and remanded with permission to amend and ask for foreclosure of such as were due. In the instant case appellee should be granted such permission only in case he first does equity by paying the mortgage he executed to the First National Bank of El Dorado upon the east 75 feet of said lot prior to his sale of same to Tetta C. Fox, and clearing the record of other liens placed upon the property by J. T. Finn and himself.

Appellant also contends for a reversal of the judgment because a writ of garnishment was served upon her in the Dielman suit. Her position is not tenable in this respect. She should have filed an answer in the garnishment proceeding and tendered the money to the court, requesting that same be applied to the satisfaction of her notes before being paid over to either of the contestants.

It is unnecessary to consider the correctness of the priorities of the different claimants, as they were prematurely ascertained and declared by the court. There can be no ascertainment and declaration of priorities between claimants to' a fund unlawfully created.. A valid foreclosure decree must be obtained before there can be any basis for an ascertainment and declaration of priorities between the several lien claimants.

On account of the errors indicated the decree is reversed, and the cause is remanded for further proceedings not inconsistent with this decree.


author: McCulloch, C. J. MuCulloch, C. J.,

text:
    Sanders v. Flenniken.
    Opinion delivered December 20, 1926.
    1. Homestead — nonjoinder of wife — curative act. — A mortgage of a homestead executed in 1903, invalid under Crawford & Moses’ Dig., § 5542, because the grantors’ wives did not join therein, was cured by Acts 1923, p. 43.
    2. Pleading — conclusion of law. — An allegation that the foreclosure of a mortgage was not “in the manner and form required by law” is a statement of a. conclusion, and does not disclose facts sufficient to render the foreclosure void.
    3. Quieting title — construction of complaint. — A complaint in an action to quiet title which alleges that two of six heirs executed a mortgage, under foreclosure of which defendants claimed title, held to show an interest in the land in the four heirs who are complainants.
    4. Limitation of actions — pleading.'—The defenses of limitation and laches should be raised by answer, and not by demurrer, where the facts stated in the complaint do not show that the action is barred.
    5. Pleading — indefinite allegations. — Where allegations of a complaint are not definite, a motion to make it more definite and certain should be made, and the objection cannot be raised by demurrer.
    6. Deeds — effect of repeal of curative statute. — The subsequent repeal of a curative statute will not invalidate a defective deed which had been cured by the prior act.
    7. Homestead — defective conveyance — repeal of curative act.— Acts 1923, No. 80, curing conveyances of homestead.defective by reason of a nonjoinder of the wife of the grantor, was not repealed by Acts 1923, No. 185, curing the same defect.
    8. Homestead — effect of curative act. — The fact that the grantor in a mortgage died, and his widow’s dower .became vested before the enactment of Acts 1923, p. 43, curing a defect in the execution of the mortgage, does not prevent the operation of such act.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed in part.

      Hutchins, Abbott, Allday S Murphy, for appellant.

      McNally & Sellers and Marsh, McKay S Marlin, for appellee.
   McCulloch, C. J.

Appellants instituted this action against appellees in the chancery court of Union County, claiming title to a tract of oil land containing forty acres, and seeking to cancel, as clouds on their title, certain conveyances under which appellees assert title. The court sustained a demurrer to the complaint, and, upon refusal of appellants to plead further, there was a final decree dismissing the action.

It appears from the allegations of the complaint that Edmund Norris was the original owner, as patentee of the United States Government, and that he died in the year 1894, leaving surviving his wife, Silvia Norris, who inherited the land in the absence of other heirs; that Silvia Norris died in the year 1899, leaving surviving her five children, Riley Sanders, Neil Sanders, Mary Burns, Lou 'Cotton, and Mellie Miller, and her grandchild, Elisha Wilson, who were her heirs at law and inherited the land. Riley Sanders and Neil Sanders executed a deed of trust on March 7, 1903, to secure a debt owing to Young and Anderson, and the deed was foreclosed under power of sale by the trustee in 1907. N. C. Marsh and Aylmer Flenniken were the purchasers at the trustee’s sale, and received a deed. Subsequently Marsh conveyed his interest to Flenniken, and the latter conveyed to his wife, Mary Flenniken, one of the appellees. Mrs. Flenniken executed an oil lease on June 12, 1922, to Humble Oil & Refining Company, and another lease has been executed by Mrs. Flenniken to Tidal Osage Oil Company. Neil Sanders died in the year 1916, and left surviving his wife, Rena, who was plaintiff below and is one of the appellants here. All of the heirs mentioned above, together with Rena, the widow of Neil Sanders, joined in the complaint, and appealed.

It is alleged in the complaint that the wives of the two mortgagors, Riley Sanders and Neil Sanders, did not join in the execution of the deed of trust;' that the property was, at the time of the execution of the deed, the homestead of the mortgagors, and that the conveyance was absolutely void by reason of the failure of the wives to join therein. The prayer of the complaint is that the mortage and all subsequent conveyances be declared void as clouds on the title of appellants, and that the present occupants be held to be mortgagees in possession and required to account for the rents and profits.

The statute (Crawford & Moses’ Digest, § 5542) provides, in substance, that a conveyance by a married man of his homestead is void unless his wife joins therein, but there was a statute enacted by the General Assembly of 1923 (act No. 80) which rendered valid conveyances otlerwise void on account of failure to comply with the other statute. Effect must be given to this statute, and the deed executed by Riley Sanders and Neil Sanders is thereby rendered valid. Flanigan v. Beavers, ante p. 28. This disposes of the appeal of Riley Sanders and Rena, the widow of Neil Sanders, for the relief which they seek is dependent upon the invalidity of the deed of trust, which was rendered valid by the curative statute swgra.

It is also alleged in the complaint, in general terms, that the foreclosure of the deed of trust was not “in the manner and form required by law,” but that is a mere statement of a conclusion and does not disclose facts sufficient which would render the foreclosure void. However, the complaint shows on its face that the appellants other than Riley Sanders and Rena Sanders are the owners of an undivided four-sixths of the land as tenants in common with Riley and Neil Sanders, and that their interests are unaffected by the mortgage executed by the two last named. The other' appellants are entitled, according to the allegations of the complaint, to recover their several interests in the land.

It is contended by counsel for appellees that a demurrer was properly sustained on the ground that the complaint shows on its face that appellants were barred by the statute of limitations, and also that they are guilty of laches which bars recovery of the land. We do not think that the facts stated in the complaint show that the action was barred either by limitation or by laches, but those defenses must be presented by answer and not by demurrer to the complaint. It is alleged in the complaint that Edmund Norris occupied the land as his homestead up to the time of his death in 1894; that it was so occupied by Silvia Norris as her homestead from 1894 to 1899; that it was also occupied as a homestead by Eliza Sanders, wife of Seaborn Sanders (the latter being the son of Silvia), from 1894 to 1899, and that “since 1909 said property has been in the actual possession of no one except for one year a man by the name of Bilyeu, about the year 1909, made one crop, and never occupied said land any more.” It is further alleged that Eliza Sanders moved off the land in 1909, and died in 1920. It also appears from the complaint that Seaborn Sanders was the only child of Silvia, and died in the year 1892 and left his widow, Eliza, and his children, who are appellants in this case. Seaborn having died before the death of his mother, the title passed by inheritance to his children, and Ms wife, Eliza, acquired no interest in the property, for the reason that her husband, Seaborn, was never the owner. It nowhere appears in the complaint that there was any adverse occupancy of the land so as to bar the rights of appellants by limitation, nor are there any facts alleged upon which the doctrine of laches can be invoked. The deed of trust executed by Riley and Neil Sanders purported to convey the whole of the land — not merely undivided interests — and the subsequent deeds were to the same effect. According to these allegations, appellees had color of title to the whole of the tract, but it is not shown on the face of the complaint that appellees have occupied the place for any particular length of time or that they have ever paid the taxes on the land, or that there has been any such change in the relation of the parties as to call for an application of the doctrine of laches. The allegations of the complaint are not altogether definite, but this objection should have been taken advantage of by motion to make the complaint more definite and certain.

The decree is therefore affirmed as to the interests of Riley Sanders and Neil Sanders, conveyed under the deed of trust, but reversed as to the other appellants, Mary Burns, Mellie Miller, Lou Cotton and Elisha Wilson, with directions to overrule the demurrer to their complaint, so far as relates to their interest in the land inherited from their ancestor, Silvia Norris. It is so ordered.

MuCulloch, C. J.,

('on rehearing). Counsel for appellant make the contention that act No. 80 of the Greneral Assembly of 1923 was repealed by a later act (No. 185) of the same session.

Act No. 80 was approved on February 9, 1923, and act No. 185 was approved February 23, 1923, each containing the form of emergency clause then in vogue, and it is contended that, as the emergency clause was not attached in the manner and form required by the constitutional amendment of the year 1920, neither of the statutes went into effect until ninety days after the adjournment of the Legislature. At any rate, it is contended that, whether the statutes went into effect from the respective dates of approval by the Governor or on the same date (90 days after the adjournment of the Legislature), the first act was repealed by the last one.

Act No. 80 relates solely to conveyances rendered ineffectual for non-observance of the requirements of the statute approved March 18, 1887, in regard to conveyances of homesteads; whereas act 185 relates to defects of conveyances in this regard, and also with regard to those conveyances which were defective by reason of the acknowledgments not being in conformity with the statute.

It is unnecessary to decide the question whether or not the operation of the statutes was postponed, for the reason that, if act No. 80 was in operation from the time of its approval by the Governor until the approval of the later statute, defects in all deeds cured by its operation were validated and a repeal of the statute would not invalidate them. Where a deed is once validated, a repeal of the statute would not disturb the vested right. On the other hand, if it be held that the two statutes went into effect on the same date, there was no implied substitution of the last act for the first one. Act No. 80 is one which dealt with a specific subject, and, there being no express repeal, the presumption cannot be indulged that the Legislature intended to repeal it by another statute more general in its terms.

It it further insisted that the curative statute is not applicable for this reason, that one of the grantors in the mortgage died before the enactment of the statute, that the dower of his widow became vested, and that such vested right could not be disturbed by the statute. The fact that the widow had become endowed does not pro-vent the statute from operating to cure the defect in the mortgage. The statute was as effective against the widow as against the husband, so far as it concerned the conveyance of the title and relinquished the homestead right. There was no vested right of the widow which averted the effect of the statute to that effect. The dower right of the widow was not affected by this statute, and the question of dower is not involved in this casé.

Petition for rehearing denied.


author: McCulloch, C. J.

text:
    Farelly Lake Levee District v. McGeorge.
    Opinion delivered December 20, 1926.
    1. Levees — liquidated damages — waiver.—Provision of a contract for construction of floodgates that an extension of time for completion “shall waive no other obligation of the contractor or of the sureties” did not prevent such extension from operating as a waiver of a claim for liquidated damages on account of delays before the end of the extension period.
    2. Levees — extension op time — waiver of liquidated damages.— Provision of a contract for construction of floodgates that mere permission to continue and finish the work after the time fixed for its completion should not operate as a waiver of the right to liquidate damages for delay held not to prevent an extension of time for completion from amounting to a waiver of a claim for such damages, as the extension constituted a new contract, into which the requirements of the original contract were merged.
    3. Levees — extension of time — liquidated damages. — -Where the original contract for construction of floodgates provided that 'charges for liquidated damages should he made for such only as accrued after the expiration of periods of extension, a resolution of the levee hoard extending the time for completion and reciting that the board does not waive any claim of liquidated damages due up to this date held not a new contract for payment of damages, and there could be no claim for damages under the original contract.
    4. Levees — extension of time — waiver of damages. — Extension of the time to complete floodgates released the contractor and his sureties from common-law liability for actual damages -sustained on account of prior delay.

      5. Levees — floodgates—liability for unexpected emergencies.— Where a contract for construction of floodgates provided that the contractor should provide against unusual conditions in order to protect the public from loss or damage, held that the expense of removing water and mud in the ¡basin flooded by order of the engineer to protect the levee and work of construction from an unexpected rise of water was imposed on the contractor, and not on the district.
    6. Levees — floodgates—right to use of equipment. — A contract . giving floodgate contractors use of the district’s equipment for the life of the job entitled them to use for the whole time of the construction, including periods of extension granted, without payment of additional rent, unless the delays were caused by their fault and were not waived by extension agreements.
    7. Appeal and error — conclusiveness of chancellor’s finding.— A finding of the chancellor on conflicting testimony will not be disturbed on appeal where not against the .preponderance of the evidence.
    Appeal from Jefferson Cbancery Court; Harvey R. Lucas, Chancellor;
    modified and affirmed.

      Rose, Hemingway, Cantrell & Loughborough and Allen Hughes, for appellant.

      Buzbee, Pugh & Harrison and Coleman S Gantt, for appellee.
   McCulloch, C. J.

Appellant district was created as a local improvement district for the purpose of constructing through Jefferson and Arkansas counties a levee along the bank of the Arkansas River, and also to construct necessary ditches, spillways and floodgates. It was deemed necessary to construct two floodgates, one across the mouth of the stream known as Little Bayou Meto. The levee had been built across the mouth of the bayou, and it was considered necessary to put in the floodgate so that the water would be prevented from flowing into the bayou from the Arkansas River in times of overflow and to permit the water to flow out of the bayou in times of normal stages of water in the river. The work was to be done by cutting a gap through the levee fifty feet wide and constructing concrete walls, wings and flooring and two heavy steel gates reaching to the height of the levee and the two walls on each side, thus closing the aperture when necessary.

Appellees entered into a written contract with the district to furnish the material and construct the floodgates for the schedule of prices on the unit basis. The contract was executed on April 22, 1921, and provided that the work should be completed within six months from that date. There was long delay in completing the work, and it was not formally accepted by the engineers as complete until October 1, 1924.

The sum of $112,413.28 was paid to appellees by the district during the progress of the work, and there is a conceded balance due in the sum of $17,817.60 according to the schedule of prices in the contract. There are, however, numerous other items claimed by appellees, but disputed by the district, and the latter also brings forward a claim against appellees for liquidated damages on account of delay in completion of the work according to the terms of the contract. Appellant also claims other items as credits on the balance due appellees for work under the contract. The total amount of balance claimed by appellees is about $32,000, and this action was commenced against appellant to recover that' amount. Appellant filed a cross-complaint asking for recovery of liquidated damages in the sum of $25,342.79 and other credits claimed, running the amount up to $33,834.27, and, after conceding liability to appellees in the sum of $18,865.60, prayed for judgment over against appellees for the difference between the two claims, $14,968.67. The cause was tried in the chancery court of Jefferson County, without objection, and, after hearing the evidence, the court rendered a decree in favor of appellees against appellant for the recovery of $25,698.21, made up of the following items (less a credit of $17.23, unpaid on rental):

(1) Amount of final estimate..............................$17,817.60
(2) Item 15: Preparing sub-base, north end .................................................................................... 227.52
(3) Item 18: Preparing sub-base, L. L. section ................................ 6.43
(4) Item 20: Removing old concrete S. W. corner.......................*................................... 76.41
(5) Item 24: High water Feb., 1923............ 76.41
(6) Item 25: Creosoted seal timbers............ 512.29
(7) Item 26: High water, May and June, 1923 .................................................-........... 662.96
(8) Shortage and gravel............................................. 5,286.75
(9) Riprap stone.................................................................. 948.00
(10) Rent of concrete mixer....................................... 100.00
$25,715.44

The most important part of the controversy relates to appellant’s claim against appellees for recovery of liquidated damages on account of the delay in completion of the work. The contract between the parties contained a clause providing for liquidated damages, which reads as follows:

“In case of default in completing the whole work to be done under this contract within the time specified, including such extensions as may have been granted, the contractor hereby agrees to pay to the party of the first part as liquidated damages for such default: First, a sum sufficient to compensate said first party for the cost and expense of employing engineers, inspectors and employees to the extent that their services are reasonably required during the period of default by the work of this contract; and, second, a sum equal to one per cent, on all moneys that have been paid the contractor under this contract for each calendar month or part thereof that the completion of the whole work under this contract is delayed. The party of the first part shall have the right to deduct such liquidated damages from any moneys due or to become due the contractor, and the amount, if any, still owing after such deduction shall be paid on demand by the contractor or his surety. Payment of such liquidated damages shall not relieve the contractor or his sureties from any other obligations under this contract.”

According to the contract, appellees were to begin work on June 15,1921, and. the testimony shows that they began work a few days before that time. The work was to be completed, as we have already seen, on December 15, 1921, but it was not so completed, and in February, 1922, the commissioners of the district, by resolution duly passed, granted an extension to appellees to complete the work on or before November 15, 1922; and on March 15, 1924, the work not having been accepted, another extension to September 21,1924, was granted by the commissioners, and, as before stated, there was a formal acceptance on October 1,1924.

Testimony adduced by appellees tends to show that the gates were completed and swung in October, 1923, and were complete, except the painting and a slight defect about their working smoothly when being raised or lowered, and were used by the district from that time on, though there was no formal acceptance until October, 1924. There was a short delay in the early part of the work on account of high water, and there was a delay also during the summer and fall of 1921 on account of the inability of the district to make payments for the work as it was done. The district sold bonds in the sum of $1,100,000, the money to be advanced by the bond purchaser in installments, and there was a default in these advancements, which caused considerable delay in the work. Appellees also introduced testimony to the effect that there were numerous other delays resulting from causes beyond their control, and, in most instances, the delays were caused by the officers and agents of the district itself. In other words, there was testimony adduced by appellees tending to excuse themselves from fault with respect to the delay in completion of the work, but there is a conflict in the testimony, and, under the view we take of the case, it becomes unnecessary to settle this conflict. The clauses of the contract which are material to the decision of this point in the case are as follows:

“3. Time and Order of Completion. — The contractor agrees that the work shall be commenced and carried on at such points and in such order or precedence and at such times and seasons as may be directed by the engineers, in accordance with § 10 of the specifications. The engineers shall have the right to have the work discontinued for such time as may be necessary, in whole or in part, should the condition of the weather or of flood or other contingency make it desirable so to do, in order that the work shall be well and properly executed. Extension of time may be granted the contractor for discontinuance of work so required, as provided in § 4 of the specifications entitled ‘Extension of Time.’ * * * The board shall have the right, at its discretion, to extend the time for the completion of the work beyond the time stated in this contract, for reasons set forth in § 4, entitled, ‘Extension of Time,’ but such extension, if granted, shall waive no other obligation of the contractor or of the sureties, and, if the time for the completion of the work be extended by the board, then in such case the district shall be fully authorized and empowered to make such deductions from the final estimate of the amount due the contractor as are stipulated in the agreement for each calendar day that the contractor shall be in default for the completion of the work beyond the date to which the time of completion shall have been extended by the board. The contractor may be permitted or required to continue and finish the work or any part thereof after the time fixed by the contract for completion, or as it may have been extended, but such action shall in no wise operate as a waiver on the part of the district of its right to collect the liquidated damages agreed upon in case of such delay or of its rights under this contract.
“4. Extension of Time. — Delays due to cause beyond the control of the contractor, other than such as reasonably would be expected to occur in connection with or during the performance of the work, may entitle the contractor to an extension of time for completing the work sufficient to compensate for such delay. No extension of time shall be granted, however, unless the contractor shall immediately, but in any case within 15 days from the initiation of the delay, notify the engineers in writing of such delay, and of the time of beginning and the cause of same, and unless he shall, within 15 days after the expiration of such delay, notify the engineers in writing of the extension of time claimed on account thereof, then only to the extent, if any, allowed by the engineers. To allow or to require completion after the time specified will not constitute an extension of time. No extension of time shall operate to release the surety from any of its obligations. The contractor declares that he has familiarized himself with weather, river and local conditions and other circumstances which may or likely to affect the performance and completion of the work, and that he has carefully examined the data and information pertinent thereto collected by the engineers and on file in their office, and agrees that, taking these conditions and circumstances into account, he will provide adequate equipment to prosecute the work in such manner and with such diligence that the same will be completed within the time specified herein, or as the same may be extended, even though the most adverse conditions which reasonably could be expected to occur during the period of construction do prevail during the performance of the work. ’ ’ *

It will be noticed that § 3 of the contract, quoted above, provides that an extension granted by the board beyond the date of completion “ shall waive no other obligation of the contractor or of the sureties.” It is the contention of learned counsel for appellant that this provision eliminates all question' of waiver of the clause in the contract with respect to liquidated damages on account of delay. Conceding that this contention is correct, so far as it prevents waiver of claims for liquidated damages on account of delay occurring after the end of the extension period, it does not prevent the extension from operating as a waiver of claim for liquidated damages on account of prior delays. A further provision in the same section prescribing a method of computing damages for delay after the end of the extension shows very clearly that it was intended, in case of an extension of time, only to liquidate the damages which occurred after the end of the extension. It provides that, “if the time for the completion of the work be extended by the board, then in such case the district shall be fully authorized and empowered to make such deductions from the final estimate of the amount due the contractor as are stipulated in the agreement for each calendar day that the contractor shall be in default for tlje completion of the work beyond the date to which the time of completion shall have been extended by the board. ’ ’ There is still a further provision that mere permission to the contractor or a requirement to continue and finish the work after the time fixed for completion shall not operate as a waiver on the part of the district of its right to collect liquidated damages. But there is a difference in this respect between mere permission to complete the work or a requirement to complete it, and an agreement to extend the time for completion. The extension constituted a new contract concerning the time for completion, and all of the requirements of the original contract which related to that point and the liabilities resulting from a delay become merged into the new contract. The case .in this respect comes clearly within former decisions of this court. Ozark & Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 254, 122 S. W. 624; Murray v. Miller, 112 Ark. 227, 166 S. W. 536; Morris v. Southwestern Supply Co., 136 Ark. 507, 206 S. W. 894; Hunt v. Woods, 168 Ark. 407, 270 S. W. 505. If appellant desired to hold .appellees liable under the contract for liquidated damages on account of prior delays, it should have been so stated in the contract of extension, and the agreement for the work to be completed within the additional specified time released appellees, by necessary implication, from any liability on account of failure to complete the work before that time. The resolution of the board granting the extension from March 21, 1924, contained a recital that “the board does not waive any claim of one per cent, liquidated damages due up to this date, ’ ’ but this did not constitute a contract to pay damages. The original contract provided that charge for damages should be made for such as accrued only after the expiration of periods of extensions, and this provision could not be abrogated except by express contract to that effect. The resolution granting the extensions did not constitute a new contract for the payment of damages. It was merely a stipulation against waiver of whatever claim the board might have under the original contract, and there could be no such claim, for, as already'shown, the contract itself covered damages only after the expiration of the extensions. For the same reason appellees were released by the new agreement in regard to time of completion from common-law liability, for actual damages sustained on account of prior delay. As we have already seen, the last extension ran up to September 21, 1924, which was nine days before the work was formally accepted by the engineers as complete. There is ho contention that there was any actual damage during that period of time, and it is practically undisputed that the work was actually completed before the expiration of the' last extension, hence the claim for either liquidated or actual damages cannot be sustained, and the chancery court was correct in so deciding.

Appellant concedes liability for the balance of estimate and the item of $948 for the price of riprap stone, and the sum of $100 rent on concrete mixer, and it does not challenge the correctness of any items contained in the court’s finding in favor of appellees except the two items of price of work in removing water and mud after the high waters in February and June, 1923, and also the item of $5,286.75 shortage in gravel. The two items concerning the expense on account of high water aggregate the sum of $1,175.25. There was an unexpected rise of water in the Arkansas River, and at those times the concrete walls on each side of the aperture through the levee had not been constructed. There had been partial excavation of the levee, which weakened it, and there was a hole or basin where the concrete floor was to be laid. In order to protect the levee from outside pressure of water, the engineers ordered the contractors to fill the hole or basin behind the levee full of water in order to provide counter-protection against such pressure. When the overflow from the river subsided it was necessary to pump the water out of the basin, and the mud that was left hindered the work of laying the concrete, and it required extra labor to obviate this trouble. The work, according to the testimony adduced by appellees, cost the sums of money claimed by them, and the chancery court allowed the claim. The contract contains the following provisions:

“11. To Provide for Emergencies. — It is understood by all parties to this contract that unusual conditions may arise on the work which will require that immediate and unusual provisions be made to protect the public from danger of loss or damage due directly or indirectly to the prosecution of the work, and that it is part of the service required of the contractor to make such provisions. * *
“37. Hindrances and Delays. — The risk and uncertainties in connection with the work are assumed by the contractor as a part of this contract, and are compensated for in the contract price for the work. The contractor, except as otherwise definitely specified in this contract, shall bear all loss or damage for hindrances or delays from any cause during the progress of any portion of the work embraced in this contract, and also all loss or damage arising out of the nature of the work to be done, or from the action of the elements, inclement weather and floods, or from any unforeseen and unexpected conditions or circumstances encountered in connection with the work, or from any other causes whatever; and, except as otherwise definitely specified in this contract, no charge other than that included in the contract price for the work shall be made by the contractor against the district for such loss or damage. * * *”

Now, it appears from the testimony that the flooding of the basis behind the levee was necessary in order to protect the levee as well as the work then in progress of constructing the floodgates. It is true that appellees were not responsible for the condition that then existed and that it was an unexpected emergency, so that it relieved appellees of any responsibility for delay caused by the high water, yet the expense of restoration was one which, under the contract, was imposed upon appellees, and we think that they are not entitled to recover for the expense.

There is a conflict in the testimony as to the other item for shortage in gravel. The district had let the contract for this work to another concern, Trainer & Williams by name, who abandoned the work, and, when the contract was let to appellees, the district sold to appellees a quantity of gravel, estimated to be 2,200 yards, but, according to the testimony adduced by appellees; it turned out that there were only 1,087 yards. The estimates made by the respective parties were made under different circumstances, but we think that the state of the proof is such that we are not justified in overturning the finding of the chancellor on that item.

Appellant claims credit for two additional items which the court refused to allow — one in the sum of $6,827 for additional rent on equipment and an item of $1,647.25 for repairs on equipment. It is undisputed that the equipment owned by the district wa.s rented to the contractors for use in constructing the improvement, and there is a conflict in the testimony as to the terms of the agreement. At the time the equipment was rented to appellees the period of time for the completion of the work fixed in the contract had not expired, and the agreed rent was .to be $3,413.50, but appellant claims additional rent on account of the delay in construction of the work and consequent use of the equipment. The solution of this part of the controversy turns upon the question as to what period of time was to be covered by the agreed amount of rent. The testimony adduced by appellees shows that they were to have the equipment for “the life of the job,” and their contention is that this meant the whole time of the progress of the work, including the extension, regardless of any delays. Our conclusion is that appellees are correct in their interpretation of the contract. It meant that they were to have the use of the equipment for the stipulated rent, regardless of delays, unless the delays were caused by the fault of appellees and were not waived by extension agreements. The court was correct in rejecting that item, and also in rejecting the item for repairs on equipment, for there was a conflict in the testimony as to whether or not the equipment was returned in good shape, and we cannot say that the finding of the chancellor is ag’ainst the preponderance of the evidence.

Appellees have cross-appealed and claim additional items which were not allowed by the trial court, but, after consideration,'we are of the opinion that the findings of the court were as liberal to appellees as the * evidence justified.

The decree is modified by allowing the additional credit of $1,175.25 stated above, thus reducing the amount of recovery by appellees to the sum of $24,522.96, and judgment will be entered here for the balance thus found. It is so ordered.


text:
    Trulock v. Paul.
    Opinion delivered December 20, 1926.
    1. Contracts — waiver—burden of proof. — In a suit for damages for breach of a contract, the defendant, alleging a waiver of such breach, has the burden of proving same.
    2. Contracts — waiver of breach. — A contract of a lessor of a sawmill to build certain new tenant houses was waived where the lessee operated the mill for six months, and agreed to accept and use vacant houses in lieu of the new houses to be built.
    3. Landlord and tenant — breach of contract — right to rescind. —Though a lessor failed to construct certain tenant houses for use at a leased sawmill as agreed, the lessee was not justified in rescinding the entire contract, where the expense of erecting the houses was comparatively small, but should have made the improvements and deducted the cost thereof from the amount to to paid to the lessor.
    Appeal from Jefferson Chancery Court; Harvey R. Lucas, Chancellor;
    reversed.

      Danaher & Danaher, for appellant.

      J. M. Shaw and W. B. Sorrels, for appellee.
   Wood, J.

On the first day of October, 1923, H. E. Truloek and E. L. Paul entered into a written contract by which Truloek agreed to sell and Paul agreed to buy all the merchantable timber on certain lands described in the contract. Under the terms of the contract Truloek leased to Paul a sawmill plant to be used by Paul in tide cutting of the timber on the lands described in the contract. Among other provisions the contract contained the following: “The said Paul agrees to furnish sufficient rough lumber to build five houses suitable for residences f'or his employees. Said Truloek shall furnish all dressed flooring, windows and doors, and all hardware necessary to complete said houses, and shall pay for the labor of building the said houses. The said houses are to be on sites to. be selected by the said Truloek, near said mill, promptly, upon the furnishing of the rough lumber by the said Paul, and may be used by the said Paul for his employees at the mill during the continuance of this lease, free of rent, but, upon the expiration of this lease, said houses shall be turned over by him to the said. Truloek in as good condition as when same are received by him, reasonable wear and tear excepted. ’ ’

The contract provided that Paul should enter upon the land and cut the timber promptly and continuously, except when too wet to operate profitably. The contract was to expire within five years from its date.

This action was instituted by Paul against Truloek. Paul set up the contract in his complaint, and alleged that, under the terms of the contract, he took possession of the mill, organized a labor force and began the performance of the contract; that, after he had cut several thousand feet and after two of the houses specified had been built, he demanded that Trulock build the other three houses specified, which Trulock refused to do, and thereby breached the contract, to Paul’s damage in the sum of $11,500, for which he prayed judgment.

Trulock answered, admitting that the contract was executed by him, but alleged that it did not reflect the real agreement between the parties, which was that five houses suitable for residences for Paul’s employees, should be furnished by Trulock; that these houses might be the houses already on the place or new houses, and,' if new houses, Trulock was to furnish the dressed flooring, windows, doors and hardware necessary to complete the houses; Paul would furnish the rough lumber, and Trulock would pay for the labor for building the houses; that the scrivener failed to draw the contract as the parties had agreed to, and it was signed by them through a mutual mistake of fact. Trulock further alleged that, after the contract was entered into, Paul went upon Trulock’s place, and Trulock pointed out to him the houses which his hands might occupy, and Paul accepted said houses as being in compliance with the contract, and occupied the same with his laborers; that it was then found that Paul needed more than five houses, and Trulock allowed him the use of . nine houses on the place, including two new houses which were constructed by Trulock; that it was agreed between them that the use of these houses was in full compliance with the contract. Trulock denied all other allegations of the complaint, except as admitted, and set up, by way of cross-complaint, that Paul, without just cause, abandoned the performance of the contract, and notified Trulock that he would not perform it; that, at the time of the breach of the contract by Paul, he left in the woods cut logs worth $56.40, which were spoiled and worthless; that he had used wood worth $238.50; that the abandonment of the contract by Paul caused Trulock a loss of $3 a thousand on two million feet of timber left standing on tbe land. Trulock prayed that he have judgment for damages against Paul in the sum of $6,294.90. He also prayed that the cause be transferred to equity. The cause, without objection, was transferred to the chancery court.

Paul testified, and identified and introduced the contract, the material provisions of which are above set forth. He testified that he proceeded right away to carry out the terms of the contract. He moved his •family on the place, hired men, and overhauled the mill and proceeded to cut the timber under the contract, until he had cut about 93,000 feet of lumber. He got everything in shape for the operation of the mill under the terms of the contract. Trulock built only two of the houses called for by the contract. "Witness got out the lumber for the other houses, and demanded of Trulock that he build the same, and he refused to do so, saying that he wouldn’t build any more. There were no houses on the place suitable for witness ’ laborers. The houses already on the place were defective. They were negro cabins. Witness’ laborers were white, and they refused to live in the houses. The scrivener made no mistake in drawing the contract. The witness demanded of Mr. Trulock that he build the houses two or three times, and he refused to do so. The witness entered into detail, explaining the terms of the contract, and the prices of the various kinds of lumber, and the profit he would have realized thereon if Trulock had complied with the terms of the contract, which would have amounted in the aggregate to more than $13,000. Witness stated that he was anxious to carry out the contract. Witness told Trulock that if he didn’t build the houses witness could not finish his contract with him. Witness complied fully with the-contract on his part. He stated that Trulock built two houses. Witness did not consent to the use of any of the other houses. He asked Trulock’s consent to use them until he got 4he other houses 'built. Witness ’ tenants only occupied them temporarily. None of witness’ tenants moved out before Trulock breached his contract. Witness’ tenants refused to live in the shacks, and witness could not operate the mill under those conditions.

On cross-examination of this witness, it was developed that he had occupied as many as six houses on the place while he was engaged in the performance of the contract, but stated that his occupancy, except in the two houses built by Trulock, was temporary. Some of them were shacks and not suitable to live in, and his tenants would not remain. Witness’ crew consisted of seven men; four of them lived in the houses mentioned and the other three lived at the boarding-house. The boarding-house man left, and the witness then quit. While witness was running the mill, Trulock told witness that he could occupy other houses until the five houses were built. The two houses were built by Trulock in about two months after witness moved on the place. The testimony of the witness further was to the effect that he occupied the premises in the performance of his contract six months. During that time he cut 93,000 feet of timber; that the reason it took witness this length of time to cut that quantity was because he had to overhaul the mill.

Paul’s son and two other witnesses corroborated the testimony of witness Paul.

Trulock testified, in substance, that, after the contract was made, Paul and his son came on the place and batched two or three weeks, and then the ladies came down, and refused to live in the houses that Paul had before accepted for his own use, and Paul informed witness of that fact. When the contract was originally made, Paul agreed, on account of labor conditions, which were bad, and the number of vacant houses witness had on the place, that he would use these houses. At different times Paul and his employees occupied eleven different houses. They had as many as nine at one time, and part of the time had a full crew. Witness kept his tenant houses in good repair. They were better than the average tenant houses. Witness agreed to build two new houses in order to satisfy the women folks of two of Paul’s employees. The testimony to the effect that the houses were not fit to live in was not true. When the houses were assigned to Paul’s laborers, they took them without complaint and lived in them until Paul quit running- the mill. Witness had a talk with Mr. Hibbetts, one of Paul’s employees. Hibbetts had testified that he left the place, after staying two weeks, because the houses were not fit to live in. Trulock testified that Paul asked him to build another house for Hibbetts. At that time the boarding-house was vacant, and witness asked why not give him that, and Paul replied that it was not good enough for him to live in. Witness then stated that the agreement was they would build houses only as they were needed, and witness told Paul it was not good business to build more houses when there were plenty of good vacant houses on the place. The next time witness met Paul he informed witness that he was-going to leave because witness had made it impossible for him to operate. Paul informed witness that he was going to shut down the mill, but expected to hold the timber and the two houses, and that he would log the stuff and ship it off that way. Witness wrote Paul, two or three days after that, to ask'him what he intended to do about the timber. Paul didn’t reply, and in four or five days he sent witness the keys to the office, and witness did not hear anything more until this suit was filed. Witness further stated that, two or three days after the contract was signed, Paul and witness agreed that witness should build one house for Paul and his family to live in and one for Yanyard Paul and his family, and that Paul then agreed to use the other houses already on the place, and he did accept those houses, and that there was no further objection until the Hibbetts matter came up, about the first of March.

Pour witnesses corroborated the testimony of Trulock in regard to the condition of the houses on the place. Their testimony tended to prove that the houses were in better condition than the average plantation houses. One of these witnesses stated that, while Paul was on the place running the mill, he and his hands at one time occupied nine houses. One of them stated that the houses that Paul lived in and the one that Robinson lived in were better than the average. These houses were built near the mill.

Another witness testified that, after the trade was made, Paul and Vanyard Paul and their wives came down to look over the situation and pick out the place to live. After expressing some dissatisfaction with the houses, they came back and made' arrangements with Trulock to 'build a house for Paul and one for Yanyard Paul. Paul was to furnish the lumber and Trulock the smooth lumber, doors, windows, and labor. Two or three days after witness went to Paul’s office and told him that the next house would be built near the mill grounds. Paul said, “There is no use in that. Harry and I have agreed not to build any more houses. There are plenty of them here good enough for this labor.”

In rebuttal, Paul testified that he had not entered into an oral agreement with Trulock, after the written contract, by which Trulock was not to build more houses.. Witness had never agreed'with Trulock to use the houses already there, except according to the contract. Witness occupied the houses six months temporarily. He had no conversation with Davis or anybody else waiving witness’ right to have houses built.

The court found that Trulock had refused to carry out the contract; that Paul would have received a profit of $3,852.14 if Trulock had complied-with his contract, and entered a decree in favor of Paul for that sum, from which is this appeal.

1. We have not set out the testimony in regard to the alleged damages because we have concluded that, if there was a breach of the written contract on the part of the appellant in failing to furnish dressed flooring, windows and doors and all hardware necessary to complete three houses, and in failing to pay for the labor of building said houses, as provided in the written contract and as alleged in the complaint, then a preponderance of the evidence proves that snch breach of contract was waived by the appellee. We are convinced that the appellee agreed to accept and use for his laborers the vacant houses already on the premises, in lieu of the three new houses that the appellant contracted to build. 'The fact that appellee remained six months on the premises in the performance of his contract, after he knew the condition of the houses on the premises, and operated the mill plant in the manufacture of timber into lumber until he had produced 93,000 feet of lumber, tends strongly to prove that he had waived the breach of contract on the part of the appellant in not performing- his part of the contract. The appellant contends that the appellant and the appellee, after the written contract was entered into, entered into an oral contract with reference to the three houses that had not been built, under the terms of which the parties agreed that the appellant should build two new houses; and the appellee agreed, if appellant would do so, appellee would use the other vacant houses already on the place. One of the witnesses testified that Paul .said that he and Trulock had agreed not to 'build any more houses. True, Paul himself denied that he had any conversation with any one waiving his right to have the houses built, but the appellant and another witness testified that he did enter into such an agreement. The positive testimony therefore preponderates in favor of the appellant on the above proposition. The length of time that appellee operated under the contract and the amount and character of work done, and other circumstances, it occurs to us, likewise corroborate the appellant’s testimony and sustain his contention that the appellee waived any breach of the contract on his part. This issue is purely one of fact, and the burden is upon the appellant to prove the waiver. This he has done.

2. It will be observed that the contract requires that the appellant should furnish the “dressed flooring, windows and doors and all hardware necessary to complete said houses, and shall pay for the labor of building said houses.” The appellee had entered into possession of the premises, and appellant had built the two houses, and the appellee was proceeding to perform the contract and had continued such performance for a period of six months, producing 93,000 feet of lumber. Such being the situation, the appellee would not be justified in abandoning the further performance of his contract and maintaining an action for damages against the appellant as for a breach of the entire contract on the part of the appellant because of the latter’s failure to further perform the contract in the furnishing of material and the paying for labor prescribed therein. This was a contract that involved the sale of 2,000,000 feet of timber. Appellee had already cut 93,000 feet of thfe timber, and he alleges, and his testimony tends to prove, that, if the contract had been fully performed by both parties, he would have realized more than $13,000 profit. In a contract of this magnitude, the failure of the appellant to build three houses, which, according to his testimony, would have cost from fifteen to eighteen hundred dollars, including the cost of the rough material, which appellee did not have to pay, would not be such a substantial part of the contract as would justify the appellee, upon the failure of appellant to perform it on his part, to treat the contract as breached in its entirety by the appellant and to warrant a recovery of damages by the appellee. The consideration involved in the cost of these houses does not bear such a relation to the consideration of the entire contract as to warrant the appellee in claiming damages for breach of the contract after having abandoned the performance of the contract on his own part. Such, we conceive, would not be a reasonable construction of the contract, considering the same from the viewpoint of the parties when the contract was made. The appellee himself, by the abandonment of the contract on his part, under the circumstances disclosed by this record, must be held to have waived the breach of the contract, if any, on the part of the appellant.

In Youngs v. Berman, 96 Ark. 78, 131 S. W. 62, we held, quoting syllabus: “’Where there has been a breach of agreement on the part of a landlord to make repairs, if the repairs are extensive and the cost excessive in comparison with the rent, the measure of the tenant’s damages is the diminution in the rental value of the property by reason of such non-repair; but, where the repairs are inexpensive as compared with the rent, the measure of the tenant’s damages is the cost of making the repairs.” See also Johnson v. Ingram, 134 Ark. 345, 203 S. W. 836. That principle, by analogy, is applicable here. If the appellant failed to perform the contract on his part, as contended, the appellee, instead of abandoning the contract, should have made the improvements himself and deducted the cost thereof from the amount to be paid appellant. Appellee should have continued in the performance of his contract. Then he would have been in an attitude to maintain an action for damages against the appellant growing out of appellant’s failure to perform the contract on his part. Since the appellee did not do this, but himself abandoned the contract, he must be held thereby to have waived the alleged breach on the part of appellant in the particulars alleged.

The decree of the trial court is therefore reversed, and the appellee’s complaint will be dismissed for want of equity.

Humphreys, J., not participating.