text:
    Neterer v. Dickinson & Watkins.
    Opinion delivered April 3, 1922.
    1. Highways — road improvement district — exclusion op lands.— No. 426 Road Acts 1919, creating a road improvement district, was not rendered invalid by exclusion from the district of certain tracts which jut into the area included, but which do not necessarily intervene between included tract and the improved roads, especially where the statute authorized the taxation of omitted lands, if subsequently found to be benefited.
    2. Highways — road district — abandonment—levy of expenses.— In- a suit against a road district, upon abandonment of the improvement, to establish and enforce claims for services performed by plaintiffs, where the act under which the district was created (Road Acts 1919, No. 426, § 30) provided that the amount necessary to pay for the preliminary work should be levied on the real property of the district in proportion to the county assessment, it was error to direct that the claims should be paid out of funds raised by taxation of benefits assessed.

      B. Highways — abandoned road district — expenses.—Authority to impose taxes to pay the preliminary expenses of an abandoned road improvement district must be found in the statute creating the district.
    4. Highways — abandoned road improvement district — assessment op expenses. — Road Acts 1919, No. 426, § 30, providing that, if the road improvement therein authorized shall not be made, the preliminary expenses shall be paid by a tax on the real property in the district in proportion to the county assessment, is valid as a legislative determination that there are anticipated benefits to the extent of the preliminary expenses appointed according to assessments for county purposes.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    reversed in part.

      W. A. Cunningham, for appellant.
    The act creating the district was void because the boundaries were arbitrarily formed, without regard to any benefits to be derived. 130 Ark. 170; 139 Ark. 574; 145 Ark. 49. Hence no liability could be based upon its attempted formation.
    The assessment of betterments and the attempted confirmation by the Legislature is void because arbitrary and confiscatory. 48 Ark. 370.
    Section 30 of the special act providing for the payment of preliminary expenses upon an ad valorem basis is unconstitutional and void. The only basis for such ah assessment is the benefit derived, or which would have been derived had the improvement been made. 50 Ark. 129; 89 Ark. 573; 96 Ark. 416; 98 Ark. 549; 118 Ark. 303. If, however, an assessment for preliminary expenses is authorized, the statute must be strictly 'Construed (59 Ark. 356; 71 Ark. 561; 79 Ark. 521); and the basis adopted by the court was wrong.

      A. 8. Irby, for appellee.
    The district was in all respects valid, and so held in 143 Ark. 270.
    A legislative determination of the boundaries of a listrict will not be overturned unless shown to be arbitrary and unreasonable (147 Ark. 449; 147 Ark. 312; 139 Ark. 524),and may even include lands which had therefore been excluded by the county court on the ground that they received no benefits. 216 S. W. 1047; 217 S. W. 258; 130 Ark. 70; 139 S. W. 574.
    The action of the court in making the levy on the assessment of benefits which had been confirmed, rather than on the ad valorem basis contended for by appellant, was correct. 143 Ark. 270; 113 Ark. 364; 107 Ark. 285; 166 S. W. 170; 112 Ark. 357; 83 Ark. 54; 97 Ark. 322; 86 Ark. 1.
    The assessment of benefits is not now subject to attack. 143 Ark. 270; 145 Ark. 382. ■ The district was not rendered invalid by the exclusion of certain lands said to be benefited, as these lands can still be made to bear their proportion of the tax. 215 S. W. 882.
   McCulloch, C. J.

The Walnut Ridge-Alicia Road Improvement District in Lawrence County was created by a special statute enacted by the General Assembly. Road Act No. 43, regular session, 1919. The statute authorized the improvement of a public road running between Walnut Ridge and Alicia, and authorized the appraisal and taxation of the benefits for the purpose of paying the cost of the improvement. The section of the statute pertinent to the controversy now before us reads as follows:

“Section 30. If, for any reason, the improvement herein authorized and directed shall not be made, all expenses and costs accrued to that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment, and collected by a receiver to be appointed by said court.”

There was an assessment of benefits by the assessors of the district appointed in accordance with the provisions of the statute, and subsequently another special statute was enacted approving those assessments. Unpublished statute, approved Feb. 4, 1920.

The last statute just referred to also made slight changes in the boundaries of the district.

The validity of the statute confirming the assessment of benefits was upheld by this court in the case of Gibson v. Spikes, 143 Ark. 270. Later there was an abandonment of the whole project, it being ascertained that the cost of the improvement would be so much, in comparison with the benefits to be derived, that it was impracticable to attempt to make the improvement.

In an action instituted by certain owners of property in the district against the board of commissioners in the Federal court of this district, there was a decree enjoining further proceedings toward the improvement of the road, but the decree contained a recital that it was “without prejudice to the right of the chancery court of Lawrence County to proceed to pay the debts of said Walnut Ridge-Alicia Road Improvement District as provided in section 30 of the act whereby said district is created, and to enforce collection of said taxes in the manner herein provided. ’ ’

Thereupon appellees, who had performed services in the preliminary work, instituted the present action in the chancery court of Lawrence County (Eastern District) against the improvement district and the commissioners thereof, in which it was sought to establish the claims of the creditors of the district and to enforce the collection thereof in accordance with the terms of the section of the statute quoted above. Appellants are owners of lands in the district, and they intervened in the action to contest the claims against the district.

Appellants attack the validity of the district on the ground that certain tracts of land which would have been benefited were omitted from the district and thus exempted from taxation. There is also an attack on the assessment of benefits made by the assessors, and confirmed by the Legislature, as being arbitrary, discriminatory and confiscatory. There was also an attack on section 30 of the original statute on the ground that it authorizes the collection of an ad valorem tax instead of a tax on benefits.

The court made a finding as to the correctness of the claims against the district and decreed payment thereof out-of funds to be raised by taxation of benefits according to the assessments made by the assessors and confirmed by the Legislature.

There is no question raised as to the correctness of the claims of appellees as creditors of the district. It is therefore unnecessary to state those claims in detail or to refer to the amounts allowed to the respective creditors for services performed.

The attack on the validity of the statute creating the district is based upon the omission of certain lands. It is claimed that a portion of the SE14 of sec. 27, twp. 17 N, range 1E, which was contiguous to the northern end of the road to be improved in the corporate limits of Walnut Eidge, and which is excluded from the boundaries of the district, lies in between the NW% of said section and the end of the road, and that the only way of approach from the latter tract is completely around the former tract, along the road that crosses the bridge at the end of the road to be improved.

According to the plats exhibited, there is a creek near the city limits of Walnut Eidge, which forms the boundary of the road district at that point. There is a conflict in the testimony as to where the bridge is situated, there being testimony that the bridge which constitutes the end of the road to be improved lies in section 34, which is south of section 27. If this is true, the excluded portion of section 27 does not in any sense intervene between the portion of section 27 which is included in the district and lies further west.

It is also contended that there is an arbitrary exclusion from the district of the north half of section 2, which lies near the town of Minturn, and the inclusion of -the south half of said section 2, it being alleged that the only means of access to the road to be improved is from the south half over the north half of section 2. There is also a conflict in the testimony in that regard.

In neither of these instances is there such an intervention of excluded tracts between included tracts as to-demonstrate that one tract is necessarily benefited because the other was included, so as to make the action of the lawmakers arbitrary and discriminatory. It is just a case of excluded lands which jut into the area included in the district, but which do not necessarily intervene between included tracts and the improved roads. The case in this respect is ruled by the recent decision in Sadler v. McMurtrey, 152 Ark. 621. Moreover, there is a provision in the statute creating this district authorizing the taxation of omitted lands which may be subsequently found to be benefited by the improvement. This provision eliminates any discriminatory effect of mistake of the lawmakers in omitting benefited tracts from the district, for this provision of the statute constitutes authority to put them in the district and assess them if subsequently found to be benefited. Hill v. Echols, 140 Ark. 474.

This is not a case of absolute exclusion from the district, as was the case in Harrison v. Abington, 140 Ark. 115, for the reason, as above stated, that the other provisions authorized the taxation of any lands found to be benefited, whether expressly included in the district or not.

The question of invalidity of the special statute confirming the assessment was decided against the contention of appellants in the case of Gibson v. Spikes, supra. But we are of the opinion that the chancery court erred in ordering the tax levied upon the benefits as assessed, rather than upon the values shown on the tax books for county purposes, in accordance with the provisions of section 30 of the original statute; therefore it is unnecessary to discuss the question of benefits.

The courts must find authority in the statute itself to impose taxes to pay the preliminary expenses of an abandoned improvement district. The statute itself in this instance contains an express provision as to how the preliminary expenses shall be paid in the event that the authorized improvement shall not be made. It further provides that “the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment.”

Appellants also attack the validity of the statute in this respect, their contention being that the taxation must be upon anticipated benefits and not upon value. We have often upheld taxation upon valuation as appraised by the county assessors for general purposes, on the theory that it constitutes a legislative determination that benefits will accrue in proportion to value. St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 562.

Even if it be held that the presumption of the legislative determination that benefits will accrue in that proportion is excluded by the further provision in the statute for an actual assessment of benefits, it does not render invalid the provision for payment of preliminary expenses by taxation in proportion to the assessment for county purposes. The two methods of assessment are for wholly different purposes. One is for the payment of the cost of the completed improvement, which must be by taxation' based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative'of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement.

Where the attempt to construct the improvement proves abortive and has to be abandoned, it is fair to exact contributions from all of the lands according to value, provided, the taxation does not exceed the anticipated benefits, and, as before stated, this feature of the statute must be treated as a determination that a proportionate assessment of taxation for the payment of preliminary expenses will not exceed the anticipated benefits. It is not even shown in the present instance that the assessments apportioned according to assessed value will exceed, as to any tract of land, the assessed benefits. Board of Directors v. Dunbar, 107 Ark. 285.

Our conclusion is therefore that the chancery court erred in adopting the method of taxation on assessed benefits, rather than the method prescribed by statute, of taxing the land according to value as assessed for county purposes. That part of the decree which relates to the method of assessment will be reversed and remanded, with directions for further proceedings in accordance with this opinion; in all other respects the decree is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Triplett v. Chipman.
    Opinion delivered April 3, 1922.
    1. Executors and administrators — compensation op administrator. — It was within the discretion of the probate court to allow the maximum compensation under Crawford & Moses’ Dig., § 183, for services as administrator, and such discretion will not be controlled unless abused.
    2. Executors and administrators — allowance op attorney’s fee. —An allowance of. $300' to ah administrator for attorney’s services in defending through the courts a claim on a note for $1,446.21, on the ground that it had been paid, held an abuse of discretion where no intricate questions of law were involved; $150 being ample compensation.
    3. Executors and administrators — liability for interest. — An administrator is not personally chargeable with interest on funds in his hands as such.

      Appeal form Union Circuit Court; G. 'W. Smith, Judge;
    affirmed with modification.

      Caldwell & Triplett, for appellant.
    Appellee had no meritorious defense to this suit, but by his unnecessary delays and appeals has succeeded in piling up court costs, attorney’s fees, and in procuring for himself a larger allowance than was necessary, all of which the court should disallow. 84 N. Y. Supp. 46; 41 Mise. Rep. 278; 182 N. W. 32, 87 Neb. 700; 31 L. R. A. (N. S.) 350. See also 67 Ark. 340; 53 Ark. 224; 66 Ark. 7; 96 Me. 380.
    Where an administrator improperly keeps administration open, subsequent costs and commissions should be charged to him personally and not to the estate, but we only ask that the costs of the appeal to this court 'be charged against him. The allowance of attorney’s fees was excessive, neither do we think that the highest amount allowable under statute should have been given appellee, because of his conduct in prolonging the litigation and having to be twice cited to file a settlement.

      Flenmken, Sellers & Cohn, .for appellee.
    The allowance of commission to appellee was according to law, and a matter within the discretion of the probate court, which will not now be disturbed. 14 Ark. 76; 30 Ark. 520; 74 Ark. 168; § 134, Kirby’s Digest.
    Appellee was not properly chargeable with interest on the funds in his hands.
    The allowance of -attorney’s fees was just and fair and properly made. Acts 1921, act 11(8; 301 Ark. 312; 18 Cyc. 444; 67 Ark. 345; 168 U. S. 311; 141 U. S. 411.
   Wood, J.

In 1914 J. J. W. Smith, who resided in Little Rock, Arkansas, died while on a visit to Texas. He died intestate. His estate consisted of three life insurance policies of $1,000 each and a small deposit of money in the Cotton Belt Savings & Trust Company at Pine Bluff. T. N. Chipman was -appointed administrator of his estate on December 14, 1914. He immediately employed Aylmer Flenniken, an attorney at El Dorado, to represent Mm. Smith had borrowed money on the life insurance policies, so that when these amounts were taken out of the policies the entire assets of the ¿state amounted to the sum of $2,435.65, as shown in the first annual settlement of the administrator. Aylmer Flenniken assisted the administrator in collecting the 'balance due on the insurance policies. There was no litigation over these policies. The work of the attorney consisted in making proofs of death, which was done by correspondence with the doctors and undertakers at the place near the Mexican border where Smith died, and through one Thompson, who saw the undertakers and doctors and got the proofs of death. The attorney did not pay Thompson anything for his services in this matter. He did not have to make any trips to Texas. He was allowed the sum of $150 for his services.

On the 28th of October, 1915, Alex Perdue presented a claim against the estate for the sum of $1,446.21, evidenced by Smith’s promissory note for that amount. The administrator, acting upon the advice of his attorney, refused to allow the claim. The claim was presented to the probate court and the probate court allowed the same, and the administrator, acting upon the advice of his attorney, appealed to the circuit court. On the 21st of November, 1917, the circuit court affirmed the judgment of the probate court allowing the claim, with interest from the date of the judgment, and the administrator, upon the advice-of his attorney, appealed to the Supreme Court. The Supreme Court affirmed tlie judgment of the circuit court holdrqg that the allowance should be made. The mandate of the Supreme Court was filed in the circuit court by the attorneys of Perdue on thé 19th of April, 1919. In the second annual settlement the administrator showed that he had allowed the claim of' Perdue with interest thereon from November 21, 1917, which amounted to the sum of $1,687.21. In this settlement the administrator showed that he had allowed himself the sum of $171.75 as commission for his services and had allowed his attorney the sum of $300, and that he had allowed other sums in the way of court costs and expenses incident to the resistance of the claim of Perdue in the aggregate sum of $90.20. Exceptions were duly filed by Perdue’s attorneys to this account of the administrator, which were overruled and the settlement approved. On appeal to the circuit court, upon a trial of the exceptions to the settlement as above indicated, the circuit court found that the administrator had expended the sum of $71.95 in court costs in the circuit and Supreme Courts in resisting the Perdue claim, and also the sum of $300 for attorney’s fee; that the administrator was allowed commission for Ms services in the sum of $171.75. The court found that interest should be allowed on the note of Perdue from October 28, 1915, the date of its presentation to the administrator, and that the administrator should be charged with the interest on the funds in his hands from January 1, 1917, to October 15, 1920, in the sum of $466.95, and that he should be charged with the balance of funds in his hands as administrator in the sum of $1,925.90 instead of $1,458.95 as stated in his settlement and approved by the probate court. The court entered a judgment according to its findings, from which judgment is this appeal.

The statute allows the administrator as compensation for his services an amount not exceeding ten per centum on all sums less than $1,000, and on all sums over $1,000 and less than $5,000 five per centum. C. & M. Digest, § 183. The appellee was allowed the maximum amount for his services under the above statute.

It is unnecessary to discuss the facts pertaining to the services of the appellee in connection with the administration of the estate of the decedent, Smith. We cannot say there was an abuse of the discretion on the part of the probate court and of the trial court in allowing the appellee the maximum sum specified by the statute. It was within the sound discretion of the probate court to allow the maximum or a lesser amount, which discretion will not be controlled unless abused. Ex parte Bell, 14 Ark. 76; Reynolds v. Canal & Banking Co., 30 Ark. 520.

It could serve no useful purpose likewise to discuss tbe facts in connection with tbe litigation over tbe claim of Perdue. We do not find anything in the testimony to justify the conclusion that the administrator was not acting in good faith in resisting the payment of this claim. He followed the advice of his attorney, and there is nothing to warrant the inference that the attorney was actuated by any other than a bona fide purpose to protect the estate against a claim which he and the administrator believed had been paid. So believing, they could not have discharged their duty to the estate without resisting the payment of this claim until the matter had been finally adjudicated by the courts and determined to be a just demand. In this connection, however, we are constrained to hold that the probate court and the trial court abused their discretion in allowing the administrator the sum of $300, the amount paid by him for the services of an attorney. The sum allowed the attorney in connection with the litigation over the claim of Perdue was a little over 20 per cent, of the entire amount of that claim. The character of the litigation, with which the judges of this court are familiar, was not such as to justify the administrator in paying his attorney the sum of $300 to have the litigation conducted to its final conclusion. ' ’ ;

While the issues involved were important, they were not difficult and complicated. Meritorious and efficient as were the services of the attorney, nevertheless, it occurs to us that the sum of $150 was ample compensation for such services. The court abused its discretion and therefore erred in allowing the administrator a greater amount as compensation for the services of his attorney.

In the case of Bayou Meto Drainage District v. Chapline, 143 Ark. 446-455, we held that the judges of this court should not divorce themselves from their general knowledge, observations and experience of such matters and renounce entirely their own judgment as to what would be a reasonable compensation for the attorney, after taking into consideration the character of the services rendered, the labor, time and trouble involved, and the nature and importance of the litigation, etc. See other cases there cited.

The claim of Perdue against the' estate was for $1,446.21, as evidenced by a promissory note of the decedent, and the defense of the administrator was that the note had been paid. Therefore, there were no delicate and intricate questions of law to be settled, and the issue of fact was exceedingly simple. We are convinced that the probate court and the trial court abused their discretion in sanctioning the payment by the administrator of attorney’s fee in an unreasonable amount as compensation for his services.

' There was no error in the ruling of the court in refusing to charge appellee personally with interest on the funds in his hands as administrator. The judgment of the circuit court will be. modified by reducing the allowance of the administrator for attorney’s fee from $300, as allowed in the second annual settlement, to the sum of $150, and, as thus. modified, the judgment is affirmed.


author: Woon, J. Mo-Cxjlloch, C. J.,

text:
    Lesser-Goldman Cotton Company v. Fletcher.
    Opinion delivered April 3, 1922.
    1. Landlord and tenant — cancellation op lease — revocation.— Notice of cancellation of a lease did not terminate the lease where such notice was revoked before being acted upon by the other party.
    2. Landlord and tenant — double rents por holding over. — To entitle a landlord or lessor to double rents after termination of the lease, under Crawford & Moses’ Dig., § 6557, the holding over by the tenant must be done wilfully.
    3. Landlord and tenant — tenant holding over — double rents.— Crawford & Moses’ Dig., § 6557, providing that a landlord shall be entitled to recover double rents from a tenant “wilfully” holding over after term of his lease and thirty days’ notice in writing requiring possession, being a penal statute, must be strictly construed and cannot be extended .by intendment beyond its express terms.
    4. Landlord and tenant — wilful holding over. — A holding over by the tenant under a bona, fide belief that he has a right to do so, even though he is mistaken, is not a “wilful” holding over under Crawford & Moses’, § 6557, entitling the landlord to double rents upon a “wilful” holding over.
    5. Landlord and tenant — liability of assignee. — Where a lease required the lessee or his assigns to replace improvements in as good condition as at time of execution of the lease, and a contract between the United States as assignee of such lease and a purchaser of the improvements made upon the land by the United States provided that such sale should be subject to the terms of the lease, and made the lease a part of the contract, and provided that the purchaser would hold the United States harmless from the claims of landowners for damages to the improvements which were on the property at the time of the execution of the lease, the purchaser was liable to the landowners for damages caused by destruction of improvements or failure to restore them to as good condition as they were, in at the time the lease was executed.
    6. Estoppel — representation.—Written statements, signed by landowners, in which they agreed to release the United States from liability for damages to improvements on lands leased to the United States, were binding in favor of purchasers of improvements on the lands who had agreed as a condition of purchase to assume the government’s liability to the owners.
    Appeal from Lonoke Circuit Court; George W. Ciarle, Judge;
    modified and affirmed.

      Moore, Smith, Moore & Trieber, for appellants.
    1. The lease of the Fletcher-Goodrum lands was not terminated by cancellation. Where a lease authorizes the lessee to terminate the tenancy at a certain time, he cannot terminate it at some other time. 1 Tiffany, Landlord & Tenant, 86; 16 E. C. L. par. 628. A notice to quit, given by landlord or tenant, may be revoked or withdrawn before it has been acted on. Ann. Cas. 1912-D, p. 682, and authorities cited. Even if that lease is deemed to have been canceled, Fletcher and Goodrum are not entitled to double damages. The statute, C. & M. Digest, § 6557, is highly penal, and must be strictly construed. 20 111. 120; 3 Camp 453; 211 S. W. 908; 82 N. J. Law, 645; 82 Atl. 892; 118 Ga. 906; 45 S. E. 794; 197 Ala. 625; 73 So. 328. The statute does not apply unless the holding over is wilful. A holding over which is not contumacious, but is under a reasonable mistake as to the tenant’s rights, is not wilful. 38 111. App. 128; 230 111. 454; 82 N. E. 833; 130 Ky. 789; 114 S. W. 284; 136 Ky. 39; 123 S. W. 326; 6 H. & N. 846; 191 N. Y. 306; 84 N. E. 75.
    2. There was no liability on the part of the United States to the landowners for damages. Such being the case, an alleged- oral agreement on the part of Lesser-Goldman Cotton Company for the benefit of the landowners, independent of its contract-to assume the liability of the United States, assuming to pay their claims regardless of liability of the United States, is not enforceable- by them for lack of consideration. 65 Ark. 27; 101 Id. 223; 110 Id. 578; 121 Id. 414; 128 Id. 149; 144 Id. 8. See also 6 E. C. L., Contracts, par. 270-277.
    The alleged oral contract, before it was acted upon by either the landowners or the road district, was merged into the written contract between the United States and Lesser-Goldman Cotton Company, and that contract exclusively defines the rights of any of the parties to this suit to hold the latter for their damages. 2 Elliott on Contracts, § 1415; 33 E. I. 464, 82 Atl. 225; 56 Iowa 349; 9 N. W. 293; 172 111. 563; 50 N. E. 219; 95 N. Y. 423; 38 Ohio St. 543; i80 Ky. 409; 27 N. J. Eq. 650; 6 N. D. 438; 71 N. W. 125; 153 Ind. 393; 53 N. E. 769. At most, the landowners and road district cannot recover greater damages than they respectively agreed to accept at the sale, with interest.

      W. P. Beard and Mehaffy, Donham & Mehaffy, for Fletcher and Goodrum.
    1. Adopt briefs and arguments filed on behalf of appellees Williams and Williams & Pierson, and in addition urge that appellant cotton company by its answer not only admitted liability, but also that payment to these landowners was a part of the purchase price at the sale— constituted one of the terms thereof. 134 Fed. 241.
    2. The lease on the Fletcher-Goodrum lands was terminated by cancellation. Notice was given, and Fletcher gave express consent to the termination. The notice required by a lease may be waived. 29 L. R. A. (N. S.) 177; 147 111. App. 18; 126 Ark. 38; 70 Id. 406; 120 Id. 268; 88 Id. 138; 32 Atl. 64; 24 Cyc. 1334-1339.
    3. Fletcher and Goodrum were entitled under the statute, C. & M. Dig., § 6557, to double damages. 74 Ark. 12.

      J. H. Carmichael and Coleman} Robinson & House, for appellee W. A. Williams.
    1. As to the appellee Williams, appellants raise only the question as to whether or not the instruction numbered 1 is a correct declaration of law, admitting that there was evidence on which to base the instruction, but contending that the facts do not make out a case of liability. This suit is not based on the leases, but on a special contract made between the three parties to the sale itself, whereby the appellant promised to pay Williams the $1,000 which he had agreed to take, and the facts bring the case squarely within the doctrine that “when a promise is made to one upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promissor for a breach of his promise. ’ ’ 65 Ark. 27. That is the first prerequisite to appellee’s right to recover in this case. The second existed also, viz: privity between the promisee and Williams, and the obligation on the part of the promisee toward him. Id. Williams was not a stranger to the contract. A consideration moved from him, and there was a duty or obligation on the part of the Government to him. He was an actual party to the contract itself. 93 TJ. S. 148; 93 Ark. 346; 46 Id. 132; 91 Id. 367; 31 Id. 155; 119 Id. 64.
    2. In response to appellant’s contention that the Government and appellant afterwards changed the terms of the contract in such way as to release appellant from liability to Williams, and that they had the right to change it at any time before acceptance by Williams: the evidence conclusively shows an acceptance by him. Moreover, an acceptance on his part will be presumed. 2 Elliott on Contracts, § 1414; M'1415; 8 Pac. 280; 50 Id. 597; 93 N.'W. 440; 58 Mo. 586.

      Coleman, Robinson S House, and Carmichael & Brooks, for cross-appellants, W. A. Williams and R. Pierson.

      James B. Reed and Thos. C. Trimble, Jr., for Lonoke Chamber of Commerce.

      Chas. A. Walls, for Road Improvement District No. 4.
   Woon, J.

On August 1,1917, George B. Fletcher and Ella Mae Goodrnm (hereafter for convenience called Fletcher-Goodrum) executed an assignable lease to W. W. McCreary to 160 acres of land, and on the same day W. A. Williams executed a similar lease to McCreary to 720 acres, of land, all in Lonoke County, Arkansas. The consideration for the Fletcher-Goodrum lease was an annual rental of $720, and of the Williams lease for1 the annual rental of $5,500, both payable in advance. The leases gave the lessee an option to purchase at sums named therein at any time during the period of the leases. The Fletcher-Goodrum lease ran until December 31,1920, and the Williams lease until December 31, 1921. The lessee, or his assigns, were given the right of cancellation upon written notice to the lessors on or before October 1st in any year, the possession of the premises to-be surrendered on or before the end of the year in which notice was given.

Among other provisions the leases contained the following: “In case of the removal or destruction of irrigation plant machinery, houses or fences, the lessee or its assigns shall replace such improvements in as good condition as the same were at the date of this lease contract, at the conclusion of the lease. * * * * The undersigned (landowner) further agrees * * * * to permit the removal of buildings and improvements which may be erected by the lessee or his assigns, at the expiration of the lease.” * * * * “He (lessee) shall have the right to assign or sublease the same to the United States Government, its officers, agents, or attorneys.”

On the 26th of October, 1917, McCrary executed the following assignments of the leases: “For and in consideration of the sum of $1 and other valuable considerations, I, W. W. McCrary, do hereby transfer, assign and sublease the foregoing contract with all rights thereto to Charles A. Walls, president of the Lonoke Chamber of Commerce, for the use and benefit of the United States Government.”

The contract between the Chamber of Commerce, the lessor, and the lessee, the United States, contained among others the following provisions: “That said lessor agrees that the lessee, without expense, may demolish or destroy any and all buildings, and any crops now growing on said land, in so far as they interfere with the use of the site for aeronautical purposes.” “That the said lessor shall close all roads on the property hereby leased, seeking such legal proceedings as may be necessary to effectuate the same.” “The lessor agrees that, at the expiration of this lease and any renewal thereof, the lessee may within a reasonable time remove any and all buildings, structures and other improvements, or part of buildings, structures, or other improvements, placed or erected on said premises, during the term thereof, or any .renewal thereof, all expenses connected with such removal to be borne by the lessee.” “That it (United States) will commit no waste and will not suffer the same to be committed, and will not misuse or. injure the said premises, except in so far as is consistent with the use of this tract for aeronautical purposes.” “That the lessee reserves the right to quit, relinquish and give up the said premises at any time within the period for which this lease is made or may be renewed, by giving to the said lessor or agents thirty days ’ notice in writing. ’ ’

The landowners for “valuable consideration” ex-' ecnted a writing ratifying and confirming the action of the chamber of commerce in the execution of the leases and option, and agreed on their part “to perform and carry out all of the terms of said lease.”

On December 10, 1919, the United States- sold its improvements on the leased lands at public auction. The officer conducting the sale for the government passed out to the bidders a printed announcement containing the conditions of the sale, which, among other things, provided: “* * * # the successful bidder to release the government from all claims of property damage from the owners of the land, and any or all claims for replacement of improvements which the United States is obligated to replace for the property owners, under provisions of lease by which this land is held. * * * * it is agreed and understood by the successful bidder that all improvements must be removed and releases as specified, in this announcement, for the United States, must be furnished its representative, the chief of construction division, War Department, Washington, D. C., on or before June 30, 1920. A surety'bond of $20,000 will be required when this deal is closed to insure the carrying out of the provisions of this announcement.”

Before the sale was announced and bidding began, Burt Brooks, an attorney representing one Pierson, announced that Pierson had purchased from Williams and had a claim for damages to the Williams lands, in the sum of $70,000 against the United States, and that the purchaser of the property would have a lawsuit on his hands. Thereupon the sale was adjourned until the afternoon. When the sale was resumed, the officer in charge read out written statements of damage claims signed by Fletcher and Goo drum, Williams, and the county judge of Lonoke County and the commissioners of Road District No. 4. Fletcher and Goodrum agreed to r'elease [the United States and the chamber of commerce from all damages to their lands for the sum of $6,561. Williams signed a similar agreement to release all damages to his lands for the sum of $10,000, and the road district agreed to release all damages to the road for the snm of $2,000. At the same time the officer in charge of the sale read the report of a board of officers appointed by him to estimate the damages. This report stated that the Williams land could be restored to its original condition for $12,850, the Fletcher-Goodrum land for $6,000, and the road to its original condition for the sum of $2,000. This board pronounced the Pierson claim a hold-up, and also stated that a $20,000 bond from the purchaser would be ample to protect the United States against all claims. The officer further stated that the government did not guarantee that $20,000 was the limit of what might have to be paid; that it might be more and might be less.

According to the version of some who were present at the sale, the officer made the further announcement that the bidders would have to take the printed announcement of the conditions of the sale just as it was read, and that the successful bidder would have to indemnify the United States against all claims of the landowners. According to another witness, the officer announced that the purchaser would be required to give a bond in the sum of $20,000 for the restoration of the field when the plant had been dismantled to its former condition.

The Lesser-Goldman Cotton Company (hereafter called company) bid $30,000 for the property of the government, and on December 15, 1920, entered into a contract with the United States which had attached thereto, and made a part thereof, copies of. the leases from the landowners to McCrary, the assignments by him to the chamber of commerce, a copy of the lease from the chamber of commerce to the United States, and a copy of the printed announcement of the conditions of the sale of the government property. The contract acknowledged a consideration of $30,000 cash paid by the company and its undertaking as to the extent set forth in the contract “to save and protect and hold harmless” the United States “from any and all claims on the part of the owners of the lands (describing them) for and on account of all property damages to said lands, and all replacements or improvements thereon, 'and all removals of structures therefrom which” the United States “may be under obligations to pay and replace and remove pursuant to the provisions of the leases which were taken from the said owners of said lands by W. W. McCrary, and by the latter assigned to the Lonoke Chamber of Commerce, and of the lease which was taken by” the United States “from the said Lonoke Chamber of Commerce with ratifications thereof by the respective said landowners.” For the considerations mentioned, the United States sold and delivered to the company the improvements “as set forth in the announcement of terms and conditions of sale of government-owned improvements at Eberts Field, dated December 10, 1919.”

It was provided in the contract that the company “agrees that it will, at an expense to itself not exceeding the penal sum of the bond hereinafter described, protect and save and hold harmless” the United States “from any and all claims of the owners of any of said lands for and on account of all property damages thereto done or suffered by” the United States, “and to make replacements of improvements on said lands, and for and on account of any obligation of” the United 'States “to remove any buildings, improvements, roads, foundations or other structures placed on said lands by” the United States, “which said claims for property damages or replacements or removals arise out of the provisions of said leases and ratifications.”

Under the terms of the contract performance by the company was to be evidenced by its procuring for the United States valid and complete releases from the owners of the lands of all their claims or by satisfying all judgments recovered by the landowners in suits or other proceedings against the United States or the company in respect to any of the claims. The company agreed to defend such suits or proceedings at its own expense. It was contemplated that the company would dispose of all claims by June 30, .1920, but the United States agreed that the company should have whatever additional time might be required after the expiration of the government’s lease that the United States itself was entitled to under the lease and ratifications thereof by the landowners. It was further expressed in the contract that the intent was “to create and extend to the said landowners a direct cause of action by them against” the Lesser-Goldman Company “for1 and on account of said claims in any court of competent jurisdiction. ****.”

The bond provided that the company would faithfully and fully perform the obligations resting on it as set out in the contract, in the penal sum of $20,000, which sum was stipulated to be the limit of liability both of the company and the surety on the bond for and on account of any and all of the obligations of the company under the provisions of the contract.

On January 15, 1920, Fletcher-Goodrum, in a letter to the company, demanded an immediate settlement of the damages due them and warned it that the damages would be enhanced if the 1920 crop was lost through failure to secure such settlement. On September 27, 1920, the company released possession of the land and so notified the United States.

On May 19, Fletcher-Goodrum instituted this action in the Lonoke Circuit Court against the company and Lynch Oreekmore and H. M. Bennett, agents of the company, and the Lonoke Chamber of Commerce, to recover damages to improvements on their lands in the sum of $10,000, and the sum of $20,000 rent for the year 1920, which they alleged grew out of their contract of lease to McCrary and the several contracts above mentioned.

The company set up that the defendants Creekmore and Bennett were its agents, and that it assumed full responsibility for all their acts. It denied liability, but set up that, if liable at all,' the limit of its liability under the contract was $20,000 to all of the landowners. The answer contained a motion that Williams, Pierson and the road district be made parties plaintiff and required to set up their respective claims. The answer also contained a motion to transfer to the equity court. It also set up that, if liable at all, the company would be entitled to judgment in the same amounts against the chamber of commerce. It prayed that it be dismissed without cost, and, in the alternative, if any judgments were recovered against it by the plaintiffs, it be allowed to recover in the amount of plaintiffs ’ judgments against the chamber of commerce.

The court directed that Williams, Pierson, and the Eoad District No. 4 be made parties plaintiff, which was done. The court overruled the motion to transfer to equity. There was evidence adduced at the trial 'by which it was estimated that the damage, by the United States to Fletcher-Goodrum lands was $24,176.40; to the Williams lands in the sum of $60,130, and to the road district in the sum of $6,000. It was conceded that all the damage done by the United States and the improvements made were' necessary in the use of the field for aeronautical purposes. The court instructed the jury that if they found for the plaintiffs, Fletcher-Goodrum, the amount they would be entitled to recover as damages to the lands could not exceed the sum of $6,561, the amount they specified at the auction sale, with interest from the date of such sale; and that if they found in favor of Williams and Pierson, the amount of their damages would be the sum of $10,000, the amount specified by them on the day of sale, with interest from that date.. (No separate damages were claimed for Pierson). The court instructed the jury that if they found in favor of the road district they could return damages in the sum of $6,000. It was agreed that, if the company were liable, the testimony would show that the road district had sustained damages in the sum of $6,000.

At the request of the plaintiffs, except the road district, the court in substance instructed the jury that if, in the printed announcement of sale, it was stated that the successful bidder would be required to release the government from all claims for damages from owners of tbe land and from all claims for replacement of improvements which the United States was obligated to replace under the provisions of the lease under which it held the land, and that if at the sale some question was raised by the bidders as to the respective amounts of the claims of the landowners, and the officer of the government conducting the sale adjourned the sale until the afternoon in order that such amounts be ascertained, and that such amounts were ascertained and agreed upon by the plaintiffs and were announced to' prospective bidders when the sale was -resumed in the afternoon, and that if it was further announced that the successful bidder would have to pay the amounts of these claims in addition to the amount bid by him, then the company would be liable for the amounts of these claims.

The court also instructed the jury that the road district was not bound by the representation as to the amount of its damages made by the county judge and the road commissioners when the sale was made. The court refused to instruct the jury at the request of the plaintiffs, Williams and Pierson, as follows: “You are instructed that, in the lease from Williams to W. W. Mc-Crary, the lessee, or his assignee, was bound to- replace all improvements in as good condition as they were on August 1, 1917, and that the terms of said lease were not abrogated by the lease from the chamber of commerce to the United States Government, nor by the alleged ratification by said Williams, nor was this duty or liability fixed or limited by the contract of December 15, 1919, between the Lesser-Goldman Cotton Company and the United States Government, and you will find for the plaintiff Williams in such an amount as you may find it would cost Williams to put the place named in the lease to McCrary in the condition it was in on August 1,1917. ’ ’

The company prayed the court for instructions telling the jury in effect that the rights of the plaintiffs to damages depended upon the written contract of December 15,1919, between it and the United States, which was one merely of indemnity as to the claims of the landowners and which imposed no duty at all as to the claim of the road district. The company also ashed the court to instruct the jury to return a verdict in its favor against all of the parties seeking a judgment against it. The court refused these instructions. Exceptions were saved by the respective parties to the ruling of the court in giving and refusing instructions which were contrary to their respective contentions.

The jury returned a verdict in favor of FletcherGoodrum against the company and Lynch Creekmore in the sum of $1,000 for rent of their lands, and against the company in the sum of $6,561 with interest as damages to their lands; in favor of Williams on account of damages to his lands in the sum of $10,816.66, with interest, and in favor of the road district in the sum of $6,000, with interest. The jury returned verdicts in favor of the defendants, Lynch Creekmore and H. M. Bennett, agents, and also in favor of the Lonoke Chamber of Commerce as against all the plaintiffs.

Judgments were rendered against the company and Lynch Creekmore in favor of Fletcher and Good mm for rent in the sum of $2,000, the same being double the amount of the verdict returned by the jury; against the company in favor of Fletcher and Goo drum in the sum of $6,561 with interest thereon from date of the sale; and against the company in favor of Williams in the sum of $10,816.66; and against the company in favor of the road district in the sum of $6,000, from which judgments the appellants duly prosecute this appeal, and all of the appellees except the chamber of commerce prosecute a cross-appeal. Any other necessary facts will be stated as we proceed.

1. The lease of the Fletcher-Goodrum lands was not terminated by cancellation either under the terms of the lease of such lands to McCrary or the lease of the chamber of commerce to the United States which FletcherGoodrum ratified. The notice was by telegram dated November 29, 1919, from the Director of Air Service to the Lonoke Chamber of Commerce, notifying the latter of the cancellation of the lease to take effect December 31, 1919. This telegram was followed by letter of December 1, 1919, confirming the telegram and including notice of the cancellation, with the request that, admission of' the service of such notice be signed by the chamber of commerce and returned as promptly as convenient. Upon receipt of the telegram the president of the chamber of commerce immediately notified the landowners. The landowners verbally acquiesced. On December 3, the Director of Air Service telegraphed the chamber of commerce to disregard the notice of cancellation by previous telegram and letter. The president ofi the chamber of commerce also notified the landowners of the last telegram, and it does not appear that, intervening the first telegram and letter and the receipt of the last telegram, the chamber of commerce had by letter or otherwise notified the Director of Air Service that the notice had been served, nor does it appear that the landowners had acted upon the telegram and letter giving notice of cancellation. The rights of the parties therefore had not been in any manner affected by the notice of cancellation before the same was revoked.

A notice of cancellation of a lease to take effect in the future may be revoked or withdrawn before it has been acted on by the other party to the contract, and in such case the rights of the parties under the contract are the same thereafter as if the notice of cancellation had not been given. This doctrine is supported by the decided preponderance of the authorities in this country. See Wisner v. Richards, 24 Ann. Cas. 1912-D, p. 162, and cases there cited. We are aware that there are respectable authorities which hold that when a valid notice to quit is given by the landlord or tenant, the party to whom it is given is entitled to count upon it, and it cannot be withdrawn without the consent of both parties. See Western Union Tel. Co. v. Pac. Ry. Co. 120 Fed. 362. But, even if we are mistaken in holding that the lease was not terminated by cancellation, still Fleteher-Goodrum would not be entitled to recover double damages for the retention of the lands under § 6557 Crawford & Moses’ Digest. For, under the statute, to entitle the landlord or lessor to double rents after the termination of the lease term,the holding over by the tenant must be done wilfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right to do so, even though he were mistaken, is not a wilful or contumacious holding under the statute,where the undisputed facts show, as they do here, that there were reasonable grounds for such belief. Belles v. Anderson, 38 Ill. App. 128; Alexander v. Loeb, 230 Ill. 454, 82 N. E. 833; Aull v. Bowling Green Opera House Co., 130 Ky. 789, 114 S. W. 284; Jones v. Taylor, 136 Ky. 39, 123 S. W. 326; Swinfen v. Bacon, 6 H. & N. 846; Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75.

The case of Driver v. Edrington, 74 Ark. 12, does not contravene the above doctrine, for in that ease there was a holding over by the tenant, after he knew that his term had expired and after he had lawful notice to vacate, simply because it was inconvenient and injurious to his business. The holding over by the tenant in that case was not grounded upon facts which justified an honest belief that he had the right to do so.

2. It will be observed that the original leases from Fleteher-Goodrum and from Williams to McCrary contained this provision: “In case of the removal or destruction of irrigation plant, houses, or fences, the lessee or its assigns shall replace such improvements in as good condition as the same was at the date of this lease contract.” The contract between the appellant and the United States by which the latter sold to the former the “government-owned improvements” expressly makes these leases to McCrary “with all the terms, provisions, conditions and covenants thereof” a part of that contract. The announcement of the terms and conditions of the sale of the government-owned improvements, in pursuance of which the sale was made and the written contract of sale between, the appellant and the United States entered into, contains' a provision to the effect that the “successful bidder shall release the government from all claims of property damage from owners of the land and any or all claims for replacement of all improvements which the United States is obliged to replace for the property owners under the provisions of the lease by which this land is held.” This written announcement of the terms and conditions of the sale is also expressly made a part of the contract of sale between the appellant and the United States. The contract of sale between the appellant and the United States likewise makes the lease of the chamber of commerce to the United States and the ratifications thereof by the landowners a part of the contract of sale. • The transfer or assignment of the lease from McCrary to the Lonoke Chamber of Commerce shows that it was done “for the use and benefit of -the United States Government.”

Now, the manifest intention of the parties to the contract of sale in making all of the above instruments with all of their terms, conditions, provisions and covenants a part of the contract of sale, was to preserve the rights of the landowners as against the United States Government for and on account of all property damages- to their lands' and all replacements of improvements thereon which the United States Government “may be under obligation to pay and replace and remove pursuant to the provisions of the leases which were taken from the said landowners of said lands by W. W. McCrary.” The purpose of the contract, as clearly expressed therein, was that the appellant should “save and protect and hold harmless” the United States from the claims of the landowners. In other words, as we construe the contract of sale, it bound the appellant to pay any and all claims of the landowners for damages that the United States would have to pay them under the leases. The language of the contract of sale shows that the parties to it at the time of its execution recognized that the landowners had claims for damages against the United States, which the latter would have to pay as a part of the consideration of the sale of the government-owned improvements. Under the original leases to McCrary, he and his assigns were liable to the landowners for all damages to their lands caused by the destruction of improvements or by failure to restore the same in as good condition as they were at the time the leases were executed. Taking the provisions of the contract as a whole, it -cannot be construed as one intending merely to indemnify the government against the claims of the landowners, but a contract by which the appellant assumed payment of these -claims. The contract in terms says that the intent of the provisions “is to create and extend to the landowners a direct cause of action against the said party of the second part” (appellant). If the contract had intended to indemnify the government merely, the above language would not have been used.

While there was no direct assignment of the leases from McCrary to the United States Government, the undisputed testimony shows that the assignment by him to the chamber of commerce was, as we have stated, for the use and benefit of the United -States Government, and, so far as the landowners were concerned, the independent leases executed by the chamber of commerce operated as a transfer or assignment of their title to the United States Government. The undisputed facts show that the taking of the leases, their assignment to the chamber -of commerce, the execution of the leases by the chamber of commerce to the United States Government, and the ratification of these leases by the landowners was all done for the purpose of putting the lease title in the United States, the .United States assuming all the obligations of the lessee under the original leases. This was certainly the interpretation which the officers of the United States Government, entrusted with the duty of executing and carrying out the obligations of the United States under these leases, gave the original leases and the leases of the chamber of commerce and the ratification thereof at the time of the sale of the government-owned property. It was also the interpretation of the landowners at that time. And we believe it was likewise the interpretation of the appellant, as shown by the express provisions of the contract itself, in making all the instruments evidencing any rights growing out of the leases a part of the contract of sale. In the light of all the written instruments and the contract thereunder of the parties thereto, as shown by the undisputed testimony, we are convinced that the appellees were.not strangers to the contract of sale and to the consideration thereof, as contended by learned counsel for appellant. But, on the contrary, the undisputed facts of this record show that by the express terms of the contract the appellees were privies to the extent of their interest with the United States Government. A consideration had moved from the landowners to the United States under the lease contracts, and by the terms of these contracts the United States was liable to them for all damages they had sustained. The United States, by its contract with the appellant, provided that the latter should pay these damages.

The uncontroverted facts of this record bring the case squarely within the doctrine announced by this court in Thomas Mfg. Co. v. Prather, 65 Ark. 27-29, as follows: “Where a promise is made to one upon a sufficient consideration for the benefit of another, the beneficiary may sue the promissor for a breach of his promise.” -As prerequisites of the application of the doctrine, we further said, quoting from the N. Y. Court of Appeals in Vrooman v. Turner, 69 N. Y. 280, “There must be, first, an intent by the promisee to- secure some benefit to the third party; and, second, some privity between the two — the promisee and the party to be benefited — and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise.” See also Little Rock Ry. & Elec. Co. v. McDowell, 101 Ark. 223-26; Dickinson v. McCoppin, 121 Ark. 414-18; Ga. State Sav. Assn. v. Dearing, 128 Ark. 149-54; Schmidt v. Griffith, 144 Ark. 8.

3. This brings us to the question of the amounts of damages which the appellees were entitled to recover. The written instruments signed by the respective landowners and those representing Road District No. 4, in which they agreed to release the United States Government and the chamber of commerce in consideration of the amounts set forth in their respective statements, are binding upon them as against the United States, and the appellant, who, under the contract of sale, as we have seen, assumed the liabilities of the United States Government for the damages that the landowners sustained under their respective leases. The United States, the party making the sale, and the appellant, the party purchasing, had the right to rely upon these statements as fixing the amounts of “all damages whatsoever” resulting to the appellees by reason of the occupancy of their lands as an aviation field 'by the United States Government under the terms of the lease contract. The appellees are estopped by their conduct, in executing these agreements and permitting them to be read at the sale before the bidding commenced, from afterward asserting that they sustained greater damages than the sums set forth in these agreements. As the undisputed testimony shows, these agreements were especially executed for the purpose of declaring an amount which would fix the limit of damages beyond which the United States and the purchaser at the sale would not be liable. The county judge and the commissioners were the duly authorized agents representing the road district and had the power to fix the amount of the damages that the district had sustained at the hands of the United States Government in its appropriation of the road of the district. It was agreed that, if the appellant were liable. the testimony would show that the district had sustained damages in the sum of $6,000. But the appellant contended that, if liable, the district should not be allowed to recover in a sum exceeding $2,000, the amount set forth in the written statement of the road district signed by the county judge and the road commissioners and read on the day of sale. The appellant is correct in this contention. The district is estopped by the conduct of its duly authorized agents from claiming a greater amount than was set up.in the written statement as the amount of the damages to the district. The court therefore erred in its instruction telling the jury that the district was entitled to recover in the sum of $6,000.

4. It follows from our construction of the contract of sale between the appellant and the United States, that the appellant was liable to the appellees, except the chamber of commerce, for all damages caused by the United States in its occupancy of their lands. The court therefore ruled correctly in instructing the jury to return a verdict in favor of the chamber of commerce, except as to the rent due Fletcher-Goodrum for the year 1920. (The sum of $720 rent was tendered them by the chamber of commerce and refused). The instructions of the court were correct except in the particulars indicated.

The judgment of the court in favor of Fletehe1"-Goodrum against appellant for rents will be reversed, and judgment will be entered here in their favor against the chamber-of commerce for the sum of $720, with interest from date. The judgment in favor of the road district will be modified by reducing the same to the sum of $2,000, with interest. In all other respects the judgment is correct, and, after being modified as above indicated, it is affirmed.

Mo-Cxjlloch, C. J.,

(dissenting). The opinion of the majority contains a recital of the clauses in the lease-contract between the United States Government and the Lonoke Chamber of Commerce giving the lessee authority to destroy buildings and crops which would interfere with the use of the premises for aeronautical purposes, and to commit waste and to injure the premises for such purposes; but in the discussion of the facts and the principles of law applicable thereto, which control the decision of the case, those features of the contract are completely ignored.

The clauses to which I refer redd as follows: “That said lessor (chamber of commerce) agrees that the lessee (United States), without expense, may demolish or destroy any and all buildings, and any crops now growing on said land, in so far as they interfere with the use of the site for aeronautical purposes. That it (United States) will commit no waste and will not suffer the same to be committed and will not misuse or injure the said premises, except in so far as is consistent with the use of this tract for aeronautical purposes.”

The original lessors, the landowners, entered into an additional contract with the United States Government ratifying the' lease made with the chamber of commerce.

It is undisputed, and the record contains an express concession, that all the damages done and changes made by the United States Government were necessary for the use • of the premises for aeronautical purposes. This being true, there is no liability, under the contract) on the part of the Government to the landowners.

Learned counsel for one of the appellants argue that the above-quoted clause of the contract gives permission to demolish the buildings and crops, but that it does not mean that it could be done without compensation to the landowners. In other words, they argue that the words “without expense” only mean that it should be without exnense to the government’s lessor, the Lonoke Chamber of Commerce. This is not. in my opinion, a proper interpretation of the contract.

Under the language used, permission was expresslv granted to the government to demolish the buildings and crops so far as necessary for the use of the premises for aeronautical purposes, and, unless the contract itself provided for compensation, there is no liability imposed on the government for the damage done.

Where a contract authorizes a thing to be done, it is necessarily implied that it will be permitted without liability for compensation, unless provided for in the contract.

It would seem from the way in which the words “without expense” are used that it was meant that the government should be without expense or liability; but, even if it does not mean that, the use of that term would have no other bearing on the question of liability of the government unless it can be construed to mean that the government shall pay the damages done by the destruction. I can scarcely conceive that the words “without expense” can be construed to mean that the government shall pay damages or become liable for damages incurred in that way.

It seems to me, therefore, that it necessarily results from a fair interpretation of this clause of the contract that there is no liability on the part of the government, and, that being true, there can be none on the part of appellant under its contract with the government. Conceding that the contract between appellant and the government is all that appellees claim it to be with respect to the assumption of the obligation of the government, there is no liability for the simple reason that the government itself is not responsible, and there is no liability, therefore, to be assumed by appellant.

The trial court gave instructions permitting recovery under the alleged oral agreement at the auction sale to assume the obligation of the claimants, and the verdict of the jury was based upon a finding upon that issue. There was a conflict in the testimony, but there was enough testimony to sustain the contention of appellees with respect to what occurred at the sale. This court has, however, affirmed the judgment of recovery in favor of appellees on the theory that the undisputed evidence,.that is to say, the contract which was entered into later between appelllant and the government, established liability for the claims.

I think the rights of the parties must be determined by the terms of the written contract entered into between the government and appellant subsequent to the sale, for the claims asserted by appellees, so far as concerns liability of appellant, derive their existence from the contract between the principal contractors — the government and appellant.

Until a binding contract was entered into between the parties, no liability could arise in favor of appellees. The terms of the contract as finally reduced to writing after the sale must therefore control in determining the liability of appellant. The incidents of the sale itself can not be considered for the purpose of construing the contract, for they were only antecedent transactions, which became merged into the contract itself when reduced to writing and signed by the parties as evidence of their several undertakings.

I agree with counsel for appellant that the doctrine of liability of one person upon a contract made for his benefit by another cannot be extended to contracts for. indemnity. None of our cases go to that extent, and I do not believe that any cases can be found where the doctrine is thus extended. Any other rule would be contrary to the reasoning upon which such liability is based, which is that a promise made for another’s benefit creates a right of action in his favor. Now, a contract merely ,for indemnity is not made for the benefit of any one ^except the party to the contract who is to be indemnified ''"thereby, and no rights accrue thereunder to a person against whose claim indemnity is given under the contract.

But it seems to me that this contract, when considered as a whole, is not one merely of indemnity, but that it amounts to a contract on the part of the appellant to assume the obligation of the government to the landowners — the original lessors. It is true that in the contract the word “indemnity” is used, but the contract contains an express stipulation that appellant should not only ‘£ save and hold harmless the party of the first part from all claims of the owners of any of said lands,” etc., but it goes further and states that the performance of such undertaking should be evidenced “by said party °of the second part procuring for and delivering to the said party of the first part either valid and complete releases from the owner of said lands of all the claims of the latter as aforesaid, or satisfactions in full of all judgments.” And it is also declared in the contract that a cause of action in favor of the landowners is created against appellant under its contract of indemnity.

Of course, the parties had no right to declare a right of action where none could exist under the law, but the last-mentioned feature of the contract demonstrates an intention that appellant should assume and pay the obligation of the government to the landowners.

Taking the contract as a whole, while it uses language which makes it a contract of indemnity, it is more than that, for it, in effect, constitutes an obligation to assume and discharge the liability to the landowners.

My view is that there is no liability in this case to the road district for any sum. The district was not a landowner nor a lessor, and there was no obligation on the part of appellant in its contract with the government to assume any other obligation except that to the landowners.


text:
    Turner v. State.
    Opinion delivered April 3, 1922.
    1. Gaming — sufficiency of evidence. — Evidence held to sustain a conviction for running a gambling house.
    2. Criminal law — opinion evidence.- — In a- prosecution for running a gambling house, statements of witnesses that they understood that.it was accused’s place and that he seemed to be in charge was not opinion evidence but conclusions drawn from appearances, and was admissible.
    3. -Witnesses — cross-examination of accused. — Where the defendant in a criminal case takes the stand, he is subject to cross-examination as any other witness, and to test his credibility as a witness it is proper to ask him on cross-examination whether or not'he had been convicted and sent to the penitenitary.
    4. Gaming — sufficiency of indictment. — An indictment for running a gambling house which alleges that defendant did “run, maintain and operate” and suffer and permit gaming tables to be maintained and gambling to be carried on and exhibited in a certain house or building then and there owned, used and controlled by him, though not in the exact words of the statute, is sufficient when questioned for the first time on appeal.
    5. Gaming — repeal of statutes. — Crawford & Moses’ Dig., §§ 2630, 2631, and 2635 are not repealed by § 2632, Id.

    6. Gaming — ownership of gambling house. — The offense of “keeping, conducting and operating a gambling house or being interested therein, under Crawford & Moses’ Dig., § 2632, is complete, whether the accus.ed owns the house or not, if he keeps, conducts or operates it as a gambling house.
    7. Gaming — permitting gambling. — Under -Crawford & Moses’ Dig., § 2632, one would be guilty of running a gambling house if he permitted gaming tables to be exhibited and gambling to be carried on in a house controlled by him, whether he engaged in gambling or maintained and exhibited such tables and other gambling devices or not.
    Appeal from Union Circuit Court; Charles W. Smith, Judge;
    affirmed.

      Mahoney & Yocwm and Powell ■& Smead, for appellant.
    There is no direct testimony to the effect that that part of the house where the gambling was done was owned, used or controlled by the defendant.
    Evidence of conviction for selling whiskey was improperly admitted.
    The indictment does not charge the defendant with running’ a gambling house.

      J. 8. Utley, Attorney General; Elbert .Godwin and W. T. Hammock, Assistants, for appellee.
    The verdict of the jury was amply supported by the evidence. Gam v. State, 149 Ark. 616.
    The testimony of B. A. Hancock was not hearsay,- and was properly admitted. When proof of a statement is introduced for the purpose of establishing the fact that a party relied and acted thereon, it is not objectionable on the ground that it is hearsay. 10 B. C. L. sec. 133, p. 959; 83 Ga. 703; 112 Pac. 617. -
    It was not error for the court to permit witness Turner to testify as to the acts and conduct of defendant at the time the raids were made. 52 Ark. 180; 117 Mass. 122; 41 Iowa 219; 1 Thompson on Trials, 379; 88 Ark. 62.
    There was no error in permitting the State to prove by the defendant, on cross examination, that he had been convicted of a felony. 114 Ark. 239; 53 Ark. 387; 72 Ark. 284; 70 Ark. 272 ; 91 Ark. 555; Powell v. State, 149 Ark. 311.
    The indictment herein sufficiently charges the offense of keeping, conducting or operating a gambling house or place where gambling is carried on, by setting up, keeping and exhibiting and being interested in gambling devices, etc. Joyce on Indictments,. § 413; 20 Ark. 67; Snad. Eney. of Pro. vol. 12, p. 522.
   Wood, J.

The appellant appealed from a judgment of conviction on an indictment which, omitting formal parts, reads as follows:

“The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath accuse the defendant, C. O. Turner, of the crime of running a gambling house, committed as follows, to-wit: The said defendant, on the 7th day of November, 1921, in Union County, Arkansas, did unlawfully and feloniously run, maintain and operate and suffer and permitted gaming tables to ¡be maintained and gambling to be carried on and exhibited in a certain house or building then and there owned, used and controlled by him, the said C. O. Turner, said building then and there being situated on a lot on South Washington Street in the city of El Dorado, and commonly known as the Willis Jones place, against the peace and dignity of the State of Arkansas.”

At the trial the sheriff of the county testified that when the building known as the Willis Jones place was raided by him for gambling and parties were arrested for that offense, the appellant generally put up bonds for them, and when they were short of money appellant would put up additional amounts necessary “to get up for the men who were gambling in that place.” This occurred in Union County, Arkansas, since the first of the year 1921. The appellant had rooms in the house, and he rented rooms to others. The gambling was carried on in the shed back of the house. There was a dwelling house, a barn and stable and a little shed. The shed was used for gaming. The back yard was surrounded by a high board fence. In going into the Willis Jones residence from the street there is a continuous floor space all the way back where there is a poolroom and gaming going on all the time. The witness, with others, made a number of raids on the place. The parties who were arrested for gambling in that place when the raids were made never put up their money for their fines. They didn’t want to go to jail, and sometimes they would request the appellant to put up the money and stand good for them. When Willis Jones left the place, the appellant moved into the property vacated by Jones, and then the gambling started. In the various raids made by witness on the place he found a great amount of paraphernalia such as is used in gambling houses.

There was other testimony corroborating the testimony of the above witness to the effect that the premises known as the Willis Jones place, while under the control of appellant, was being maintained as a gambling house. One witness testified that he went there on one occasion after complaint was made to him that it was being run as a gambling house, and found two hundred men in there. Some man invited the witness to come in, and witness replied that he did not have any money. Whereupon the party said that witness’ check would be good. Witness handed his check to a certain party, who took it up to appellant in the front part of the house and brought back the money. A few days later witness went to the bank and got the check, and it was indorsed C. Turner. Witness did not know whether it was C. 0. Turner, the appellant’s signature, or not. The place where the gaming was going on was a shed 100 feet or more from the house. He entered the house from the street — went into a hallway a little north of the room where he saw appellant standing.

Another witness testified that he went down to the Willis Jones place and saw gambling going on. He didn’t know who owned the place — -saw appellant there, working there — saw him in the office. At the time gambling was going bn in the house and in the livery stable. Witness never saw appellant exercising any authority. He saw him in the office in the front, and they said it was his place.

■ Another witness stated that he was present at the Willis Jones place on a certain occasion when some deputy sheriff raided same; as they started to the back, some one ran up and pushed a little signal button that runs to the gambling room and they began to pour out. Witness didn’t remember seeing the appellant. Witness had been deputized as constable and was asked by the prosecuting attorney to go down there. When witness arrived at the place there was no gambling going on. Witness walked on back and found whiskey and chock beer in a suitcase. Appellant was in there and assumed charge of the place. The appellant objected to the witness stating that appellant assumed charge of the place. Appellant told witness on that occasion that he did not ■allow whiskey in the building and did not know how it got there. In the trial about the whiskey, appellant admitted that he had charge of the place, but was turning it back to Willis Jones, as he didn’t want to get Jones into trouble. When witness went there and found the whiskey, appellant said he was in control, and didn’t know how the whiskey got there; that some one had slipped it in and left it. Witness did not find any gambling devices there. The appellant stated that all the gaming devices had been moved out. Appellant made the statement that he was in charge of the place. He assumed charge and directed witness to the different places —seemed to have charge of the whole building. It was shown that the appellant was renting the building from Willis Jones.

The appellant testified in his own behalf that he rented some rooms from Willis Jones on a lot on South Washington Street known as the Willis Jones place. He had four rooms in the building in the front yard of that house. He had nothing to do with any other part of the building. He didn’t participate in the games in the place known as the gambling house — had no interest in it. He stated that he did not run any of the games and did not gamble. After the raids were made he made bonds three times for parties who called on him — that is, put up the money. The people who were in the games for whom he made bonds were playing poker. There was no gambling carried on in the rooms rented by appellant. Appellant rented out these rooms.

On cross-examination, over the objection of appellant, the court permitted the attorney for the State to ask the witness if he had not been convicted of a felony and sent to the penitentiary, to which question witness replied that he was convicted in 1909 for selling whiskey and sent to the Federal prison at Atlanta, Georgia, for eighteen months.

1. The’ appellant contends that the testimony was not sufficient to sustain the verdict. The testimony sneaks for itself. It was sufficient to sustain the verdict. It tended to prove the allegation of the indictment charging the appellant with running, maintaining and operating a gambling house.

2. The appellant contends that there was no direct evidence to show that he was running a gambling house and it was therefore error for the court to allow witnesses to say that they understood it was appellant’s place and that he seemed to be in charge. There was no error in the ruling of the court. The above statements were not strictly opinion evidence. The witnesses were rather stating a conclusion of fact drawn from appearances which they detailed. As was said by Chief Justice Cockrill of similar testimony in the case of Fort v. State, 52 Ark. 180-87, “This, however, was only a conclusion of fact drawn from appearances. It was with reference to an ordinary transaction which any man of common understanding was capable of comprehending, but which could not be reproduced or described to the jury precisely as it appeared to the witness; and while it may not be the right of a party to demand an expression of opinion of a witness under such circumstances, it is not reversible error to permit it.” See other cases there cited. Prewitt v. State, 150 Ark. 279.

3. The court did not err' in permitting the prosecuting attorney to ask the appellant on cross-examination if he had not been convicted of a felony and sent to the penitentiary. When appellant took the witness stand, he was subject to the same rules of cross-examination as any other witness, and to test his credibility as a witness it was proper to ask him on cross-examination whether or not he had been convicted and sent to the penitentiary. Hollenberg v. State, 53 Ark. 387; Vance v. State, 70 Ark. 272; Ware v. State, 91 Ark. 555; Hunt v. State, 114 Ark. 239; Powell v. State, 149 Ark. 311.

4. It is next contended that the indictment does not charge the appellant with running a gambling house. Section 2632, Crawford & Moses’ Digest reads as follows : “Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house or place, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting any gambling device, or who shall be interested, directly or indirectly, in running any gambling house, or in setting up and exhibiting any gambling device, or devices, either by furnishing money or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and, on conviction thereof, shall be confined in the State penitentiary for not less than one year1 nor more than three years. ’ ’

The charging part of the indictment set out above, while not phrased in the precise terms of the statute, was nevertheless sufficient to charge the offense under the statute of “keeping, conducting or operating a gambling house, or place where gambling is carried on.” To “run, maintain and operate” and suffer and permit gaming tables to be exhibited and gambling to be carried on in a house or building by a person who owns or controls such house or building for gambling purposes, and who knowingly .permits it to be used for the purpose of .exhibiting gaming tables and for gambling to be carried on, is but to “keep, conduct or operate a gambling house” within the purview of the above statute. The appellant is accused in the indictment of the crime of “running a gambling house.” While this designation of the offense is not controlling, yet, taken in connection with the facts set forth in the charging clause, it advises the appellant that he is charged with the offense of “running a gambling house” by permitting gaming tables to be exhibited and gambling to be carried on in a certain house or building owned and controlled by 1dm for gambling purposes. The appellant did not demur, or challenge the sufficiency of the indictment by motion in arrest of judgment. The indictment as a whole does not omit any essential allegation of fact necessary to constitute the crime designated therein. Therefore, although clumsily drawn, the indictment cannot be questioned here for the first time. McIntire v. State, 151 Ark. 458. On the sufficiency of the indictment, see also Riley v. State. 120 Ark. 450, and cases there cited.

This statute is leveled at the specific offense of “keeping, conducting or operating a house or place” for the purpose of allowing gambling to be carried on therein, or any gambling device or devices to be set up and exhibited therein. The gravamen of the offense is the maintaining of a house or place where those who desire to engage in gambling or to exhibit any gambling device or devices, may resort and find shelter, so to speak, while indulging in their gambling practices. The gist of the offense is the keeping of the house or place for the purposes named therein.

There is no conflict between this section of the statute and sections 2630 and 2631, Crawford & Moses’ Digest, as the Attorney G-eneral suggests, nor between this section and section 2635, as contended by counsel for the appellant. Sections 2630-31 and 35, supra,, constitute the offenses named in those respective sections misdemeanors; whereas, the offense under section 2632 is a felony. The offenses designated in the other' sections do not have reference to the keeping, conducting or operating a house or place set apart and devoted to gambling purposes, whereas sec. 2632 has reference to just such house or place. Sections 2630-31 and 35, supra, are provisions of the Revised Statutes. Section 2632 is the first section of act 152, page 613, Acts of 1913. There is no repealing* clause to the act of 1913, and unless there is an irreconcilable conflict between sec. 2632 and the other sections mentioned, the latter are not repealed by the former. We find no such conflict.

5. The court instructed the jury at the request of the State as follows: “If the jury believes from the evidence, beyond a reasonable doubt, that the defendant is guilty of knowingly suffering and permitting a gaming table to be maintained and gambling to be carried on and exhibited in a certain house used and controlled by said defendant, as set out in the indictment, then it will be your duty to find him guilty and assess his punishment at some period in the penitentiary not less than one year nor more than three years.”

The appellant objected to the above instruction on the ground that it omits the word “owned” used in the indictment. The word “owned” was not an essential description of the offense. The offense consists in “keeping, conducting or operating” a gambling house, or being interested therein, and is complete, whether the accused owned the house or not, if he keeps, conducts and operates it as a gambling house. The word “owed” as employed in the indictment obviously was not intended to designate legal title to the property, but only to indicate that the appellant had control over the house or building — that is, that he was keeping, conducting and operating the same as a gambling house. It was not essential to the validity of the indictment that the pleader use the precise terms of the statute. It is sufficient, although different words are employed, if they have the same import as those used in the statute to define the offense. State v. Scroggins, 85 Ark. 43; Blevins v. State, 85 Ark. 195; Parker v. State, 98 Ark. 575.

The appellant complains because the court refused to grant his prayer for instruction as follows: “You-are instructed that it is not sufficient, under this indictment, to find that defendant suffered and permitted gambling tables to be maintained, and gambling to be carried on and exhibited in the house therein referred to, but you must also, before you will be warranted in finding the defendant guilty, find from the evidence beyond a reasonable doubt that the defendant himself ran, maintained and operated said gaming tables.” •

There was no error in refusing this prayer. As we have shown, under sec. 2632, supra, the section under which appellant was indicted, the appellant would be guilty if he suffered and permitted gaming tables to be exhibited and gambling to be carried on in a house which he controlled and kept and conducted for gambling purposes, whether he himself engaged in gambling or maintained and exhibited gaming tables and other gambling devices or not. He would also be guilty if he kept and conducted a house for gambling purposes and he himself engaged in gambling or operated and exhibited gaming devices therein. As we have seen, the indictment charges the offense of keeping a gambling house set forth in sec. 2632, supra. The jury returned a verdict of guilty of the crime charged. We are not, therefore, called upon to determine whether or not lesser crimes — misdemeanors—of the same generic' class are embraced in the indictment.

6. The undisputed evidence proved that the house or building which it is alleged that the appellant kept as a gambling house was situated on Washington Street.

There is no error in the record, and the judgment is therefore affirmed.