text:
    National Union Fire Insurance Company v. Case & Risner.
    Opinion delivered October 15, 1928.

      Williamson & Williamson, for appellant.

      Owens & Ehrmcm, for appellee.
   Hart, C. J.,

(after stating the facts). The sole ground relied upon for a reversal of the judgment is that the falsity of the flue warranty clause in the policy, copied in our statement of facts, rendered the policy absolutely null and void from the date of its issuance. This is the general rule on the subject, but the facts and circumstances in the case at bar warranted a finding that the insurance company should be estopped from claiming a forfeiture of the policy on this account. In Insurance Company v. Brodie, 52 Ark. 11, 10 S. W. 1016, it was held (quoting first syllabus):

“The issue of a policy of insurance with full knowledge or notice of all the facts affecting its validity, is equivalent to an assertion that it is valid at the time of its delivery, and is a waiver of any ground for avoiding it, then known to the insurer. And as to such ground, the knowledge of an agent who receives the application on which the policy is issued is regarded as the knowledge of the company for which he acts, and notice to him is notice to his principal.”

In the same case the court also held (quoting the second syllabus):

“Where an agent of a company authorized to fill up a blank application for insurance against fire, does so by writing therein answers as to the condition of the property to be insured, which he knows to be false, the company will be estopped from setting up the falsity of such answers to avoid a policy issued on 'the application, although the latter contains a clause warranting the answers to be true.”

In that case the applicant for insurance made his answers to questions in his application a warranty, and, in closing the discussion of the subject and holding that the insurance company was estopped from claiming a forfeiture on the ground of the falsity of the warranty, the court said:

“We therefore conclude that the appellant was estopped from taking advantage of the falsity of the answer appended to the question, ‘Do all stovepipes go directly into brick chimneys?’ if, at the time the policy sued on was issued, it, personally or through its agent, knew or had notice of the facts which the question was intended to elicit.”

As recognizing the same principle, see Providence Life Insurance Company v. Rutlinger, 58 Ark. 528, 25 S. W. 835.

Counsel for appellant rely for a reversal of the judgment upon the principle of law decided in Commonwealth Life Insurance Company v. Tanner, 175 Ark. 482, 300 S. W. 927. We do not think that case has any application here. There the fact that the insured was in bad health was, not found out by the agent of the company until after the policy had been issued, and on this account the court held that there was no estoppel. Here the agent had legal notice that the insured property had metal flues at the time of the issuance of the policy, and this brings the case within the principles of law decided in the Bro-die case.

In Cooley’s Briefs on Insurance, 2 ed., vol. 5, page 4222, it is recognized that there is a conflict in the authorities on this subject. The author said that in Western Assurance Company v. Stoddard, 88 Ala. 606, 7 So. 379, it was held that an insurance company is estopped to rely on a misrepresentation in assured’s application, made á warranty by the policy, if the company’s agent had knowledge of the fact when the policy was issued. Numerous other cases are cited in support of this proposition, and among them is the Insurance Company v. Brodie, 52 Ark. 11, 11 S. W. 1016.

It is insisted, however, that this case should be differentiated from those cases because the agent in the case at bar did not have actual knowledge that the insured property contained metal flues. It will be remembered, however, that the agent was put upon inquiry in the matter, and agreed to ascertain the facts of which the insured was ignorant. He then issued the policy without making further inquiry as to the truth or falsity of the condition of the flues, and thereby waived a warranty in the policy in conflict with the actual facts.

In Skinner v. Norman, 165 N. Y. 565, 59 N. E. 309, 80 Am. St. Rep. 776, the court held that, where an agent of the insurance company soliciting insurance stated that he did not know whether the property was incumbered or not, and the insurer agreed to inquire regarding it of the owner, but issued the policy without making the inquiry, a failure to indorse or note an incumbrance on the policy did not invalidate it, though the property was in fact mortgaged. The reason for so holding is that the insurance agent’s failure to comply with his agreement to ascertain the condition of the property led the plaintiff into what was practically a trap, and that the insurance company should not be allowed to plead its ignorance of a fact of which it had agreed to obtain knowledge. If the agent had delivered the policy and at the same time had told the insured that he had refused or had suggested inspecting the property as to the condition of the flues, doubtless the insured would have refused to take the insurance -with the warranty clause in question in it. At least, he could have decided whether he would take the policy with that clause in it. The insurance agent had agreed to inspect the property with regard to the condition of the flues, and this induced the insured to take the policy of insurance in question. The insurance agent knew that the insured did not claim knowledge of the condition of the flues, and that the policy was to be issued and a change made after the house was inspected, if necessary. When the policy was issued, the insured had the right to rely upon the fact that the agent of the insurer had already made an inspection of the premises, and had issued a policy in accordance with the facts ascertained.

Hence the record in the case at bar warranted a finding in behalf of the insured that the insurer should be estopped from claiming a forfeiture of the policy. Therefore the judgment will be affirmed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Jarrell v. Leeper.
    Opinion delivered October 15, 1928.

      Feasel & Steel, for appellant.

      Steel & Edwards, for appellee.
   Hart, C. J.,

(after stating the facts.). The principal ground relied upon for a reversal of the judgment is that the defendant was not a nonresident of the State of Arkansas at the time the attachment was sued out. The question of residence is a mixed one of law and fact. If, as contended by the defendant, the undisputed evidence shows that he was a resident of the State of Arkansas at the time the attachment was sued out, the finding of the court on the attachment branch of the case must be reversed.

What constitutes a nonresident within the meaning of our attachment law was considered and thoroughly discussed in the case of Krone v. Cooper, 43 Ark. 547. The court recognized that the words “resident” and “nonresident, ’ ’ as used in our statute relating to attachments, had never been defined by this court, and that no exact definition, which will fit all cases, is practical. The court recognized that domicile has a broader meaning than residence, and includes residence. In discussing the question the court said:

“No word, it is said, is more nearly synonymous with domicile than home, and it is generally agreed that a man can have but one home or domicile, but that he may have more than one place of residence. The domicile of a citizen may be in one State and his actual residence in another. Savage v. Scott, 45 Iowa 130; Board v. Davenport, 40 Ill. 197.

“Drake, in his work on attachments, § 58, says: ‘In determining whether a debtor is a resident of a particular State, the question of his domicile is not necessarily involved, for he may have a residence which is not in law his domicile’.”

At the conclusion of the discussion, Chief Justice Cockrill said:

“We may conclude from the cases that, in contemplation of the attachment laws generally, residence implies an established abode, fixed permanently for a time, for business or other purpose, although there may be an intent existing all the while to return at some time or other to the true domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstances that the determination of this question may present, that the courts say that, subject to the general rule, each case must be decided on its own state of facts.”

The subject was also thoroughly discussed and the same conclusion reached by the Supreme Court of Minnesota in Keller v. Carr, 40 Minn. 428, 42 N. W. 292. Mr. Justice Mitchell, speaking for the court, said:

“ ‘Residence’ and ‘domicile’ are not to be held synonymous. ‘Residence’ is an act. ‘Domicile’ is an act coupled with an intent. A man may have a residence in one State or country,, and his domicile in another, and he may be a nonresident of the State of his domicile, in the sense that his place of actual residence is not there. Hence the great weight of authorities hold — rightly so, as we think — that a debtor, although his legal domicile is in the State, may reside or remain out of it for so long a time, and under such circumstances as to acquire, so to speak, an actual nonresidence within the meaning of the attachment statute.”

Bearing in mind the principles of law above announced, we now come to a review of the evidence on the attachment branch of the case. To sustain the attach'ment, the plaintiff testified that, at- the time.he entered into the contract for the sale of a hotel in which the defendant had an interest, at Haynesville, Louisiana, the defendant told him that his home and family were there. He said that he wanted to move his family from Haynes-ville to Austin, Texas, for the purpose of educating his children. R. W. G-rady entered into a contract with the defendant for the exchange of property owned by him in Sevier County, Arkansas, for his interest in the hotel at Haynesville, Louisiana. During the course of their negotiation for the exchange, Grady was a guest of the defendant at the hotel, and sat at a family table with the defendant.

On the other hand, the defendant was. a witness for himself on this branch of the case. According to his testimony, his residence was Nashville, Howard County, Arkansas, and he had lived there for more than a year at the time he began negotiations for the exchange of his interest in the hotel at Haynesville, Louisiana, with G-rady, for certain lands which he owned in Sevier County, Arkansas. He was associated in the real estate business with Will Gaines at Nashville, Arkansas, and occupied an office with him. Witness admitted that he had been living in and out of Haynesville, where his family was located, for four years. He moved his family from ’ there to Austin, Texas, in September, 1927. He had lived in Nashville at a hotel for more than a year before the transaction involved in this lawsuit had begun. He would make trips from Nashville to the Rio Grande Valley, in Texas, for the purpose of selling lands there. Sometimes he would be gone on these_ trips four or five days. At Christmas, 1927,. he visited his family at Austin, Texas, for a few days. During the rest of the time he lived at the hotel in Nashville, Howard County, Arkansas, and had never voted either in the State of Arkansas or the State of Louisiana. He owned tracts of land in both Howard and Sevier counties. In the contract which is the subject-matter of this litigation he described himself as “M, A, Jarrell, from Haynesville, Louisiana.” Witness told all his customers that his residence was at Nashville, Howard County, Arkansas. He had some old stationery that gave Haynesville, Louisiana, as his place of business; but, after coming to Arkansas, when he used it he marked that out and gave Nashville as his place of business. His testimony in respect to his real estate operations was corroborated by his associate in business at Nashville, Arkansas.

Under the facts shown by the record, the court should have found that the defendant was a resident of the State of Arkansas. When he spoke to the plaintiff about his home being in Louisiana, he evidently referred to his place of domicile. He had lived at a hotel in Nashville, Howard County, Arkansas, for more than a year before the transaction involved in this lawsuit was had. He had accumulated various tracts of land in both Howard and Sevier counties. During’ all this time he lived at a hotel in Nashville. He was only absent when he would leave the State for the purpose of showing customers land in the Eio G-rande Valley, in the State of Texas, and he would be gone only some four or five days at a time. He had a known place of abode, and service of summons could have been had upon him at his place of residence in Nashville, Howard County, Arkansas. His absence from the State for short spaces of time on business could not in any sense be said to affect his. residence or to prevent service of summons from being had upon him. Even if it could be said that the court was justified in finding that his residence was at Haynesville, Louisiana, in the early part of September, 1927, the undisputed testimony shows that he had moved his family from there to Austin, Texas, some time in September, 1927, several months before the attachment in this case was sued out. Consequently he could in no sense be any longer a resident of Haynesville, Louisiana. The undisputed evidence also shows that he never attempted to acquire any residence at Austin, Texas. He did not buy any home there, and only moved his wife and children there for the purpose of educating the children. He remained at Nashville, Howard County, Arkansas, where his headquarters for his real estate' business were, and continued to reside at the same hotel. Under these circumstances we think the undisputed testimony shows that the defendant was a resident of the State of Arkansas on the 28th day of December, 1927, when the attachment was sued out by the plaintiff.

Therefore the court erred in sustaining the attachment on the ground that the defendant was a nonresident of the State of Arkansas. For this error the judgment must be reversed, and it is conceded that the court would have no jurisdiction to try the case on the merits unless the attachment could be sustained and thereby give the court jurisdiction in the matter. Hence it is not necessary to discuss or to determine the assignments of error in the trial, of the case on its merits.

For the error in sustaining the attachment the judgment will be reversed, and the cause remanded for further proceedings according to law.


text:
    Hargraves v. Solomon.
    Opinion delivered October 15, 1928.

      E. M. Pipkin, Jr,, and Rose, Hemingway, Ccmtrell & Loughborough, for appellant.

      Polk & Orr, for appellee.
   Hart, C. J.,

(after stating the facts). The record shows that some of the bonds proposed to be issued will mature less than three years from the date of issue. Counsel for the defendant seek to reverse the decree on the ground that the provision in the Thirteenth Amendment to our Constitution, providing that such bonds shall be serial, maturing annually after three years from the date of issue, is directory, and that the court erred in holding the provision to be mandatory.

The correctness of the holding of the chancery court depends upon the construction to be placed upon that part of Amendment No. 13 which reads as follows:

“Cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election, for hospitals. Said bonds shall be serial, maturing annually after three years from date of issue, and shall foe paid off as they mature, and no bonds issued under the authority of this amendment shall be issued for a longer period than thirty-five years.

“Said election shall be held at such times as the city council may designate by ordinance, which ordinance shall specifically state the purpose for which the bonds are to be issued, and, if for more than one purpose, provision shall be made in said ordinance for balloting- on each separate purpose; which ordinance shall state the sum total of the issue, the dates of maturity thereof, and shall fix the date of election so that it shall not occur earlier than thirty days after the passage of said ordinance. 'Said election shall be held and conducted and the vote thereof canvassed and the result thereof declared under the law and in the manner now or hereafter provided for muncipal elections, so far as the same may be applicable, except as herein otherwise provided. Notice of said election shall be given by the mayor by advertisement weekly for at least four times, in some newspaper published in said municipality and having a bona fide circulation therein, the last publication to be not less than 10 days prior to the date of said election. Qualified voters of said municipality only shall have a right"to vote at said election. The result of said election shall be proclaimed by the mayor, and the result as proclaimed shall be conclusive, unless attacked in the courts within thirty days after the date of such proclamation.

“This amendment shall be in force upon its adoption and shall not require legislative action to put it into force and effect.”

The Constitution of a State and the amendments thereto are the organic law, and are usually construed to be mandatory. The general rule is well established that constitutional provisions are to be construed as mandatory unless by their express terms or by necessary implication a different intention is manifest. Cooley on Constitutional Limitations, 8 ed., vol. 1, p;p. 159-164, inclusive; 6 ft. C. L. 55; and 12 C. J. 140.

This general rule has been approved by our own court. State v. Johnson, 26 Ark. 281, and Merwin v. Fussell, 93 Ark. 336, 124 S. W. 1021.

The reason for the rule is especially appropriate in cases of this sort. Where a power is expressly given by the Constitution and the manner or means by which it is to be exercised is .prescribed, such means or manner is exclusive of all others.

In the application of the rule in State v. Johnson, 26 Ark. 281, it was said that, when a constitutional provision designates the time when a fundamental act shall be done and is silent as to any other time for performing- it, it cannot be done at any other time. Under the same principle, where a power is given a municipality to issue bonds under certain conditions and the date of the maturity of the bonds is fixed in the same provision of the Constitution, this would be a restriction upon the power of the municipality to fix another or different date for their maturity.

We are not concerned with the wisdom or expediency of the provision of the Constitution under consideration. Our duty is to carry out the provisions of the Constitution as indicated by its plain language. We have quoted in full what the framers of the Constitution expressed as to the manner and means of allowing a municipality to issue bonds; and we find nothing in the language used which would indicate that it was intended that the provision for the maturity of the bond issue was to be declared directory. If such was the intention of the framers, the provision under consideration might just as well have been left out. It will be noted that the language of the provision is. direct and positive, and there appears to be no reason for holding that it was to be considered directory merely. In direct and positive terms the clause of the constitutional amendment under consideration provides that the bonds shall mature annually after three years from the date of issue, and that no bonds shall be issued for a longer period than thirty-five years. They evidently decided upon having the first date of maturity three years after the date of issue in order to give the property owners time to accumulate a fund for paying the bond issue as it should annually mature. Whatever the reason might have been, however, it is our duty to construe the provision as mandatory, inasmuch as there is nothing in the language used to indicate that it was intended to be directory merely.

Again, it is insisted that the plaintiff was barred of his right to attack the ordinance because the amendment provides that the result of the election, as proclaimed by the mayor, shall be conclusive, unless attacked in the courts within thirty days after the date of said proclamation. The attack in the case at bar was made more than thirty days after the date of said proclamation. We do not agree with counsel in this contention. We have copied the provision in question above, and it is apparent from the language used that the framers of the amendment to the Constitution only had in mind that the result of the election as proclaimed by the mayor should not be attacked after thirty days from the date of such proclamation.

It is next insisted that, even if we should hold that the bonds maturing before three years from the date of their issue were void, this would not invalidate the issue as to the remainder. We do not agree with counsel in this contention. The issue of bonds was an entirety; and, as we have already seen, there is no power to issue them unless the mandatory provisions of the amendment to the Constitution conferring the power have been complied with. Having violated the provisions of the Constitution in question in issuing the bonds, the invalidity of some of them necessarily affects the whole issue.

What we have said in this opinion should not be construed to prevent the common council of the city of Helena from passing an ordinance to hold another election for the purpose of issuing bonds for a city hospital, if said council should deem such course to be wise and expedient. The fact that the first issue has been declared illegal in no sense exhausts the power of the city council to commence a new proceeding in accordance with the provisions of the amendment to the Constitution in question.

It follows that the decree of the chancery court was correct, and it will therefore be affirmed.


author: Smith, J.

text:
    Duncan v. Travelers’ Building & Loan Association.
    Opinion delivered October 15, 1928.

      J. A. Eades, for appellant.

      J. H. Reynolds, for appellee.
   Smith, J.

This appeal involves the question of priority of. liens, it being insisted by appellant that his lien as a materialman is superior to that of appellee as a mortgagee.

On June 14, 1926, W. J. Vance, for the recited consideration of a thousand dollars, conveyed to J. W. Isaacs three lots in the city of Morrilton, and this deed was duly recorded June 20,1926. On June 17,1926, Isaacs executed a mortgage on this property ;to the Travelers’ Building & Loan Association for $1,600, which instrument was filed for record June 26,1926. This loan was obtained for the purpose of paying Vance the purchase price of the lots and to rebuild a house on said lots.

On September 18, 1926, appellant, Duncan, filed a claim for a materialman’s lien, pursuant to § 69'22, C. & M.‘ Digest. It appears, from the account filed pursuant to this section, as well as from the testimony offered at the trial, that the materials for the value of which appellant claims the lien were furnished June 28, 1926, which was two days after the mortgage had been filed for record.

Under these facts the lien of the mortgage is. superior to that of the materialman.

In the case of Shaw v. Rackensack Apartment Corporation, 174 Ark. 492, 295 S. W. 966, it was held that a mortgage for the purpose of raising money to erect a building, which was filed prior to the commencement of work by a lien claimant, was superior to a lien for material and labor furnished, notwithstanding that some of the loan for which the mortgage was given was used for clearing the title.

The court below decreed that the lien of the mortgage was superior to that of the materialman, and this appeal is from that decree.

Appellant insists that Isaacs did not take title under his deed from Vance prior to July 20, for the reason that the possession of the deed was not delivered to him until that time. But filing the deed for record, which was done June 20,1926, was a delivery to Isaacs.

The decree of the court below is therefore correct, and it is affirmed.


text:
    Georgia State Savings Association v. Marrs.
    Opinion delivered October 15, 1928.

      Collins & Collins, for appellant.

      Lake, Lake & Carlton, for appellee.
   Smith, J.

Suit was brought by W. T. Marrs to enforce a materialman’s and laborer’s lien upon several properties owned by Hettie A. Brown and her son, Robert A. Brown. The Georgia State Savings Association and the Arkansas Building & Loan Association were made parties, it being alleged" that these associations had mortgages which were junior to plaintiff’s lien. The Hayes-McKean Hardware Company, a partnership, intervened, and prayed that its materialman’s lien be held superior to that of a mortgage to the building and loan association on the same property upon which interveners claimed a lien. There were other parties whose interests were adjudicated, but who have not appealed.

The savings association and the building and loan associations filed separate answers to the complaint of Marrs and a cross-complaint against Mrs. Brown and her son, in which it was prayed that their mortgages be foreclosed. There was a decree in favor of the lien claimants, from which is this appeal.

For the reversal of this decree it is first insisted that there was no proper affidavit, as required by § 6922, C. & M. Digest, in that the affidavit was signed “Mrs. R. B. Amos, for W. T. Marrs.”

The testimony developed the fact that Mrs. Amos was Marrs’ bookkeeper, and we think her affidavit was sufficient to meet the requirement of the law in this respect. The applicable statute (§ 6922, C. & M. Digest) requires the lien claimant to file “a just and true account of the demand due or owing to him,” and that it be “verified by affidavit.” But it is not required that the affidavit be made by the claimant himself. It is a sufficient compliance with the law if the affidavit is made and filed.

In the case of Terry v. Klein, 133 Ark. 366, 201 S. W. 801, the court, in holding that § 6922, O. & M. Digest, did not require that an itemized account be filed, said: “* * * for, after all, the design of the lawmakers was to provide a method for giving public notice of an assertion of the lien and the extent thereof. That design is fully carried out by giving the statute such an effect as will require a notice which will apprise the public of the extent of the claim.”

The claim of lien made by the interveners, HayesMeKean Hardware Company, was sworn to before Bob Canton, who attached his seal as a notary public as a part of the jurat, but did not affix the words, “notary public,” after his name, and did not give the venue of the affidavit by reciting where it was taken.

We think the case of Railway Co. v. Deane, 60 Ark. 524, 31 S. W. 42, is decisive of this question. It was there held (to quote the syllabus): “Where, to an affidavit for appeal from a justice’s court otherwise sufficient, but expressing no venue, there is attached a proper jurat showing that the oath was administered to the affiant by a notary public, it will be presumed that the notary acted within his jurisdiction.”

In the case of Kull v. Dierks Lbr. & Coal Co., 173 Ark. 445, 292 S. W. 695, it was said: “This court has held that an affidavit for attachment may be amended. The court said that swearing the affiant was the essential fact, and that if this were done and the officer administering the oath neglected to attest the fact, this would not render the affidavit a nullity, but that the defect might be cured by amendment. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 14 S. W. 462.”

The seal of the notary public recites that he was a “notary public, Sevier County, Arkansas,” and there was nothing in the testimony to overcome the presumption that the notary acted within his jurisdiction. Section 7970A, C. & M. Digest.

Appellee Marrs claimed liens against a building referred to by the witnesses as the apartment building, and another referred to as the duplex building, and brought separate proceedings to enforce liens against each of them.

It is earnestly insisted that proceedings to enforce these liens were not brought within the ninety days as required by § 6922, C. & M. Digest.

The affidavits were filed against each property on February 16, 1927, and alleged that the work was completed in each instance on November 18, 1926, so that the claims for the lien were filed exactly ninety days after thé work was alleged to have been completed.

Section 6922, C. & M. Digest, has been several times construed as requiring the verified account to be filed with the clerk of the circuit court within ninety days from the date of the last item furnished, and the testimony supports the finding of the court that Marrs’ claims were filed within that time. Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 383, and cases there cited.

The most important and difficult question in the case is that of the priority of the liens of the materialmen over the mortgage liens of the savings association, as decreed by the court.

The testimony shows that Brown made application to the savings association for a loan on the apartment on August 17, 1926, and that a mortgage securing the loan, which was executed on September 25, 1926, was. filed for record September 29, 1926. The account filed by Marrs, under § 6922, C. & M. Digest, alleged that the first work was done on September 30,1926, and that the amount due was $972. During the trial the court permitted Marrs, over the objection and exception of the savings association, to offer testimony to the effect that the work was begun on September 16.

In the case of Shaw v. Rackensack Apartment Corporation, 174 Ark. 492, 295 S. W. 966, it was held (to quote two syllabi):

“3. Under 'Crawford & Moses,’ Digest, § 6909, a mortgage for the purpose of raising money to erect an apartment building, which was given prior to commencement of work by a lien claimant, held superior to the lien for material and labor furnished, notwithstanding that some of the loan for which the mortgage was given was for clearing the title. 4. Under Crawford & Moses’ Digest, § 6911, where work was commenced by a plumbing* contractor prior to the time other liens and mortgages attached to the property, his lien was entitled to priority, regardless of how little he might have done before the other liens attached.”

Upon the authority of this case we would be constrained to hold that the lien of the mortgage filed for record September 29, 1926, was superior to the'account of a materialman or laborer which began on September 30,1926, but the court below found, from testimony which we think sustains his finding, that Marrs began his work by putting in the sewer and pipe prior to the filing of the mortgag*e, and the ledger account kept by Marrs shows that the first material was furnished and the account opened September 16, which was prior to the filing of the mortgage for record.

It is earnestly insisted that Marrs should not be allowed thus to contradict the recital of his account filed under § 6922, C. & M. Digest, which recites, that the account began September 30.

It does not appear that the savings association was misled by the statement in the affidavit that the account opened September 30, for the testimony shows that the savings association actually paid over the money secured by its mortgage on October 20,1926. Marrs’ account had not then been filed with the clerk, and was not filed until February 16 thereafter, so that the recital as to the date of the opening of the account did not affect the savings association’s conduct. There is, therefore no element of estoppel in the case, as the savings association had taken its mortgage and paid over the money secured by it before Marrs had completed his work and had ceased to furnish material under his contract, and the statute gave him ninety days, from that time in which to file his claim, under § 6922, O. & M. Digest.

Did the court err in permitting Marrs to show his account was opened September 16?

As we have already said, it was held in the case of Terry v. Klein, supra, that the statute did not require the lien claimant to itemize his account, and the only requirement of the statute in regard to time is that the account be filed with tbe circuit clerk within ninety days of the date the account closed. We conclude therefore that no error was committed in permitting Marrs to show that he did work and furnished material at a date prior to the filing of the savings association’s mortgage for record.

Jt is finally insisted that the affidavit of the interveners, Hayes-MeKean Hardware Company, is too indefinite as to the description of the property sought to be charged with the lien. The description was as follows: “Southwest corner lot 50 feet x 140 feet facing 50 feet on Haes Street, all in block 10, Braley’s Addition to the town of DeQueen, Arkansas.”

It appears, from the description employed, that the lot is the southwest corner of block 10 of Braley’s Addition to the town of DeQueen; that it is 50 feet by 140 feet in area, and that its 50-foot side faces Haes Street. We think the property sought to be charged could be identified from this description.

In the case of Barnett Bros. v. Wright, 116 Ark. 44, 172 S. W. 253, we quoted with approval from Phillips on Mechanics’ Liens (3 ed., § 379) the following statement of the law:

“Among those laid down, and probably the best rule to be adopted, is that, if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic’s claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises, so that, by applying it to the land, it can be found and identified. A description that identifies is sufficient, though inaccurate. If the description identifies the property by reference to facts, that is, if it points clearly to a piece of property, and there is only one that will answer the description, it is sufficient.”

See also Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353.

The court below held that the liens of the material-men were superior to the lien of the mortgage, and, as we concur in that view, the decree is therefore affirmed.


author: Kirby, J.,

text:
    National Benevolent Society v. Harris.
    Opinion delivered October 15, 1928.

      S. R. Simpson, for appellant.

      A. Welby Yowng, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in not giving- its peremptory instruction directing the jury to find for the appellee in the minimum sum of $100, less the small credit to which appellant was entitled, and this contention must be sustained.

“Policies of insurance should be interpreted by the rules governing other written contracts where the meaning of the language used is clear and explicit; but, where there is doubt as to the meaning of the language used, they should 'be construed strictly against the insurer, and favorably to the insured.” Home Mut. Ben. Assn. v. Mayfield, 142 Ark. 240, 218 S. W. 371. The language of the clause of the policy relating to the payment of assessments limiting the maximum liability is clear and explicit, providing that, when a member shall have passed the age of 45 years and the certificate has been in force for four years, the said member shall be assessed double the amount of previous assessments for the purpose of keeping in force his death benefit, and may change his certificate for a secondary certificate of the same form, wording and terms, ‘ ‘ except that the maximum death benefit shall be $100.”

The undisputed testimony shows that the deceased member had kept his policy in force for four years, had passed the age of 45 years, and had not paid double the amount of the previous or $1 assessments, and had only paid the same amount of assessments, $1 per month, after reaching the age of 45 years, as he had been paying before arrival at that age. Under the terms of the policy, if the insured had reached the age of 45 years, the payment of $1 per month assessment, the amount that the member had been paying’ before arrival at such ag’e, could only entitle his beneficiary to the maximum death benefit prescribed in the policy as though a secondary certificate had been issued.

The beneficiary testified that she had attended to the correspondence of her husband, and that he had never received any notice from the company of the increased assessments, notwithstanding it was shown one had been duly mailed to his address, with directions for its return to the company upon failure of delivery; and it was shown also that she and her husband knew of the provision in the policy for the double assessment after the age of 45' years had been reached by the insured. She testified that she had asked the local agent about the increase of the assessments, and been informed by him that the company would notify them when the increase was made, but that they had received no such notice.

The provision in the policy or certificate relating to the double assessment after insured had passed the age of 45 years, required for keeping in force the death benefit or allowing the change to a secondary certificate, with a maximum death benefit of $100, at the same rate or assessment, is self-executing, and the insured could not continue the policy in force for the full amount, after passing the age of 45 years, without payment of double the amount of the former assessment, which, the undisputed testimony shows, was not done; and, since he was entitled, under the terms of the policy, to a secondary certificate with a maximum death benefit of $100 upon continuing to pay the old rate or assessment, the society, having received the assessments, was liable to the payment of that amount to his beneficiary as though such secondary certificate had been regularly issued. Sovereign Camp W. O. W. v. Arthur, 144 Ark. 114, 222 S. W. 729; K. & L. of Security v. Lewellen, 150 Ark. 60, 233 S. W. 797.

The court should have instructed a verdict for appellee for the maximum amount of' $100 only, with interest, less the credit of $15.94 shown to be due the society, reducing the amount of the recovery accordingly.

The judgment will be modified, and, as modified, affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Bank of Mulberry v. Frazier.
    Opinion delivered October 15, 1928.

      Starbird & Starbird, for appellant.

      D. L. Ford, for appellee.
   Mehaffy, J.

Appellant, on the 7th day of January, 1927, brought suit in the Crawford Chancery Court, alleging that defendants, A. (I. Frazier and Frances Frazier, were indebted to it in the sum of $9,000 upon their promissory note, and it is alleged that, to secure the payment of said note, the Fraziers executed a mortgage on 287 acres of land, and prayed for judgment and a fore: closure and sale of the property. It was alleged that the other defendants claimed some interest in the land.

A. G-. Frazier and Frances Frazier, the makers of the note and mortgage, did not answer. The other defendants answered, alleging that they were the only heirs at law of T. M. White, deceased, who died in 1908, intestate, leaving them as his sole survivors; that at the time of the death of T. M. White he was the owner in fee of 158.33 acres of the land described in the mortgage, and was living upon the land at the time of his death; that at the time of the death of said White the defendants were minors, living with their father upon the property described, as their homestead.

The cross-complaint further charged that A. G. Frazier was the guardian of the minor heirs, and was the administrator of the estate of T. M. White, deceased; that A. G. Frazier, as administrator, did not have any part of the land set off as a homestead, but filed his petition in the probate court of Crawford County, asking for an order permitting him to sell all of the said lands. The petition set forth that there was a mortgage on the premises of $2,500, executed by T. M. White in his lifetime, and that there was an additional debt against the estate amounting to $500; that the interest amounted to about $300; that the fencing was run down, and would have to be rebuilt, and that the average rent of the farm was about $300, and stated in his petition that it was for the best interest of the heirs that the land be sold.

The petition did not show what debts had been probated, and it was the design of Frazier to defraud the heirs out of their legal rights. An order was made for the sale of the land, in compliance with Frazier’s, petition, and Frazier employed one J. A. Wigley to bid for him, with the understanding that Wigley would keep the lands for a period of one year, and deed the lands to Frazier. This was done. The sole purpose of the transaction was to keep up the fraudulent intent of Frazier. Wigley conveyed the land to Frazier, and the heirs of T. M. White, defendants in this suit, brought suit in the chancery court of Crawford County, and the court held that the sale was fraudulent and void, and that the trustee of the Bank of Mulberry knew it, and that with this, knowledge Frazier executed to Alexander, trustee of said bank, the mortgage upon the lands described in plaintiff’s complaint.

Frazier had no title to said lands. The appellant filed its reply to .the cross-complaint, and alleged that the sale was made to pay a mortgage debt, and that it was made, in addition to paying the mortgage debt, to pay $500 of defaulted interest which the probate court had ordered him to pay. Appellant denied that it had any knowledge of the fraud of Frazier, and no notice of the matter other than that given by the administrator’s deed, and, in faith of the recitation in the deed, loaned the money. The administrator’s deed was duly acknowledged and recorded.

The plaintiff introduced in evidence the note and mortgage, and E. E. Cooper testified, in substance, that he took the mortgage attached to the amendment to the reply as Exhibit A; that this was on January 20, 1908, and was filed for record February 7,1908. Tbe credits on tbe mortgage were made after the sale by order of tbe probate court in 1911, and tbe balance due was shown to be $2,500. Tbe credits were for interest. A new mortgage was given on tbe same lands in 1913 by A. Gr. Frazier and wife. This was given for tbe balance due on tbe old mortgage, and it was satisfied February 19,1915. Tbe mortgage on tbe 158 acres is for $2,100, and that was released in 1915. That was tbe same day that the C. C. Nelson mortgage was recorded.

On cross-examination tbis witness said that bis record did not show by whom tbe payments were made. It shows tbe payments up to February, 1911, and tbe balance due then was $2,500. Tbe new mortgage was given February 20, 1923, by Frazier and wife; does not know by whom tbe mortgage was paid.

J. T. Nelson testified, in substance, that be was a member of tbe firm of C. C. Nelson & Company, and bad a transaction with Frazier; loaned him money, as shown in mortgage, marked Exhibit C. Tbis covered 158 acres of land claimed by tbe White heirs and other lands to secure debt of $5,500. Tbis mortgage was made February 1, 1925. There was an incumbrance upon tbe place, and he took tbe mortgage, and be personally paid it off and satisfied.it out of money loaned on tbe mortgage given to Nelson; does not recall what tbe incumbrance was. Does not remember tbe amount be paid.

M. O. Alexander testified that be was connected with tbe Bank of Mulberry in tbe capacity of cashier, and made tbe loan, for which tbis suit is brought, to Frazier, in tbe sum! of $9',000 ; did not actually loan money, but took up an old mortgage, including Frazier’s debt that be owed tbe Bank of Mulberry. Nelson & Company made an assignment of tbe mortgage. Tbe assignment made by Nelson & Company was read in evidence. No other officers of tbe bank bad anything to do with making tbe loan or taking tbe mortgage. He knew White in bis lifetime, and at tbe time of bis death be was living on tbe land where tbe Fraziers live. It is tbe place in controversy; did not know at the time that White had any children living with him; never financed Frazier in his land deals.

The cross-complainants then introduced in evidence the letters of administration, showing the appointment of A. Gr. Frazier as administrator of the estate of T. M. White, deceased, and letters of guardianship appointing A. Gr. Frazier as guardian of the White heirs, minor children of T. M. White, defendants in this suit. They also introduced and read in evidence the petition of Frazier, administrator of the White estate, praying for an order to sell lands for the White estate.

The following is a petition of Frazier to sell lands:

Exhibit B.

“Petition to sell the farm of T. M. White, deceased.

“To the Honorable Ed Cochran, Judge of the Probate Court of Crawford County, Arkansas.

‘ ‘ Comes Arthur Frazier, administrator of the estate of T. M. White, deceased, and represents to the court:

“(1) That there is a debt against said estate of $2,500, bearing interest at the rate of ten per cent, per annum, held by a mortgage and loan company, which debt is secured by a mortgage on the lands belonging to said estate; said mortgage was executed by the deceased in his lifetime. (2) That there is an additional. debt against said estate amounting to more than $500. (3) That the annual interest on the above named indebtedness amounts to more than $300. (4) That the fencing around said farm is now needing' repairs, and at least a part of said fencing will have to be built anew, and the roof on the dwelling house and barn is very bad, and will soon have to be replaced. The needed repairs will not cost less than $100 annually. (5) The average rental value of said farm is about $300 per annum, which amount will not more than pay the interest on the debts, and leave nothing with which to pay taxes and repairs, leaving a deficit against the estate which will in a few years consume the whole of the value of said farm, leaving nothing for the heirs of the estate. (6) The farm can be sold now for enough money to pay all debts and leave a good balance for the heirs. I verily believe it to be the best interest for the heirs that said farm be sold at an early date as possible.

“Therefore your petitioner prays an order authorizing the sale of said farm, subject to the mortgage mentioned above, on such terms as is considered by the court to be the best. A. G. Frazier, administrator. ’ ’

The following is Exhibit E, introduced in evidence.

Exhibit No. E.

“In the probate court for Crawford County, February, 1911, term.

“Third annual settlement of A. G. Frazier, administrator of the estate of T. M. White, deceased.

“This accountant charges himself as follows, to-wit:

To this sum as rent on cotton, season 1911..................$ 136.70

To this sum as rent on corn, season 1911..................... 35.00

To this sum cash on sale of land............................................ 1,006.55

To this sum for cotton seed......................................................... 27.00

To this sum paid Cooper mortgage.................................... 2,500.00'

To this sum per J. A. Wright notes................................. 3,018.00

$6,723.70

“And asks credit as follows:

By this sum due administrator, as shown in last settlement.........................................................................................$ 11.88

By this sum paid interest to loan company............... 243.50

By this sum paid self in lieu of money paid loan company as per order of court.................................... 500.00

By this sum as interest on $500 for two years......... 100.00

By this sum paid mortgage......................................................... 2,500.00

By this sum as taxes........................................................................... 56.14

By this sum clerk’s fees.................................................................. 5.15

By this sum clerk’s fees.................................................................. 4.55

By this sum as commission on thousand dollars at 5 per cent.................................................................................... 50.00

By this sum paid to A. G. Frazier as his distributive share of the estate, he having bought two shares therein..................................................................... 731.61

By this sum paid for advertising sale of land......... 5.00

By this sum1 paid appraisers...................................................... 3.00

By this sum to J. W. 'Storie, swearing appraisers .75 By this sum as commission on $3,129.66 at 2% 78.24

Total credits........................................................................$2,469.82

Balance due estate $2,453.88.

“A. Gr. Frazier.

“¡Subscribed and sworn to before me this 17th day of February, 1913. 'C. M. Wofford, Cleric. By Wallace Oliver, D. O.

“Filed February 3,1913: Confirmed June 3, 1913.”

'Cross-complainants then introduced a decree of the chancery court of Crawford County in the case of the White Heirs v. A. Gr. Frazier, a final decree rendered February 23,1927. The court entered a decree canceling the administrator’s deed of the lands to Wigley and decreeing that the White heirs, who are the cross-complainants here, have and recover the lands from A. Gr. •Frazier, and that the titles to said lands be vested in them.

The court held that the proceedings of the probate court were void on their face; that the sale by Frazier, as an administrator, to Wigley, was a fraud; that Wigley was acting for Frazier under an agreement that he, would later deed the land to Frazier; and that Wigley conveyed it to Frazier without any consideration.

In the same suit an accounting was had of the acts of A. Gr. Frazier as guardian of appellees, and decreed that the guardian was indebted to the cross-complainants in this suit in the sum of $11,620.14.

After hearing the evidence, the chancellor found that the title of A. G. Frazier and his wife, at the time of making said mortgage, was void, and that the land was the homestead of the cross-complainants, and was at the time of the sale to pay the mortgage indebtedness; that Frazier was at the time guardian of all the minors and administrator of the estate of White; that cross-complainants were the only heirs at law of T- M. White, deceased; that Frazier, for the purpose of and with the intent of defrauding the minors, procured Wigley to bid on the land, and Wigley afterwards conveyed it to Frazier; that Wigley paid nothing, and bid it in for Frazier; and that the decree rendered in the case of White and others v. Frazier is res judicata herein.

There was something like 100 acres of land upon which the appellant had a mortgage that is not involved in this appeal. A decree of foreclosure was rendered as to said 100 acres, and no appeal taken. The only question involved in this case is whether the sale by order of the probate court was void.

We think it unnecessary to decide whether the decree in the case of the White heirs against Frazier was res judicata and binding on the appellant. A judgment or decree is binding not only on parties, but privies. But, as we have said, we think it unnecessary to decide this question. This court has recently decided that a sale by administrator of the homestead to pay debts is void. In that case it was said:

“The sale of the homestead of a minor by order of a probate court for the payment of the debts of a decedent is void, as the probate court has no such jurisdiction. Such a sale is void for lack of jurisdiction, under both the 'Constitutions of 1868 and 1874.” Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39.

The authority of the probate court and the administrator is fully discussed in the above cited case, and we deem it unnecessary to review the authorities here.

Appellant, however, contends that the probate court had authority and jurisdiction to sell the lands as mortgaged lands, and cites C. & M. Digest, § 168. That section provides that the court may, on application of any person interested, order the executor or administrator, if the property cannot be redeemed, or if the redemption would be injurious, to sell all the right, title or interest in the estate at public auction.

If the appellant, before it had taken its mortgage, had examined the petition to sell, it would readily have seen that the petition did not comply with the statute. That statute authorizes the sale of mortgaged property under certain .conditions, but there is no. statute that authorizes the sale of the minor’s homestead to pay debts of the estate, and this petition was not for the purpose of paying this mortgage debt, but the petition expressly asks permission to sell to pay other debts and to sell subject to the mortgage. There is nothing either in the petition or the orders of the probate court showing jurisdiction. On the contrary, all of the evidence introduced before the chancellor, including the petition to sell, the settlement of the administrator, and all the proceedings had with reference to the sale of this property, conclusively show that the sale was void, and that the court had no jurisdiction to sell. And this court has said, in the case cited and many others, that the sale of a homestead by an administrator was void because the court has no jurisdiction to order it. It held that there is no provision anywhere in the law to sell a minor’s homestead while a minor, for any purpose. The probate court, from the petition of some person interested, might order the sale under the section referred to by appellant, to pay the mortgage debt, or might redeem, but no such steps were taken in this case.

While the administrator’s deed may be prima facie evidence of the recitals contained in it, it would be the duty of the purchaser to find out whether the sale was a homestead. But in this instance the appellant knew that it was the homestead of White and his minor children; knew without any investigation. But, if it had not known, it was its duty to investigate the records of the probate court and ascertain whether the court had jurisdiction to make the order of sale, and whether or not the sale was void.

It is next contended by the appellant that, even if the court should decide against it on the above proposition, then it is entitled to subrogation. The court, however, found in this case that the proof showed that all the facts which are shown by the probate record were known to the plaintiff bank in this action by presumption of law at the time they took the mortgages. Among these facts that they were bound to know, if they examined the record, were that the petition did not comply with the law; that a sale ordered under the petition filed would be void; that the court had no jurisdiction; that it was not a sale to pay the mortgage debt, but a sale to pay other debts subject to the mortgage, and this the administrator had no right to do.

It would further have found by an examination of the settlement of Frazier, as administrator, and the record of the probate court, that the debt for which the land was sold was a debt claimed by the administrator himself, and a very little examination would have convinced it, if it had not already known it, that the sale was a fraud, and that the 'cross-complainants in this case were the owners of the land, and that it was their' homestead.

And, without deciding whether the decree of the chancery 'Court, introduced in evidence, was binding on the appellant or not, we are of the opinion that the decree of the chancellor is supported by the evidence, and is correct.

The judgment is therefore affirmed.


author: Mehaeey, J.

text:
    Missouri & North Arkansas Railway Company v. Bridwell.
    Opinion delivered October 15, 1928.

      Sfhouse & Rowland and Woody Murray, for appellant.

      George W. Reed, for appellee.
   Mehaeey, J.

On December 14, 1925, appellant brought suit against the appellee, alleging that appellee was indebted to it in the sum of $157.47, growing out of a -spur-trad?; contract.

Appellee filed answer and counterclaim in the sum of $90. He admitted that appellant’s claim was correct, but that he was entitled to a set-off of $90, which he alleged appellant owed him. Appellee’s cause of action arose November 6, 1922, and appellant’s complaint was filed December 14, 1925, more than three years after appellee’s cause- of action arose. Appellant filed a reply in which it claimed that, more than three years having elapsed, appellee’s counterclaim was barred by the statute -of limitations.

The parties entered into an agreement, waiving a jury, and agreeing to try the case before the court sitting as a jury, on the following agreed statement of facts:

“The facts set forth in plaintiff’s complaint, in defendant’s answer and cross-complaint, and in plaintiff’s answer to defendant’s cross-complaint, are trae. The shipment of the goods complained of in cross-complaint of defendant was received by defendant and said loss discovered November 6, 1922; that plaintiff’s cause herein was filed December 14, 1925, and that defendant’s answer and cross-complaint was filed on the first day of March, 1926. That this question may be submitted on the pleading's aforesaid as evidence and this statement of facts alone, the only issue, being the question of law as to whether the claim of defendant for $90 credit is (barred by the statute of limitations, as pleaded by. defendant. ’ ’

The court below held that appellee’s claim was not barred as a set-off, and gave judgment for the appellant for the amount sued for, less the $90 claimed by appellee. The judgment was for $67.47 and cost.

Appellant filed a motion for a new trial, which was overruled, exceptions saved, and appeal was prosecuted to this court. The only question in the case is whether the $90 claim of appellee was barred by the statute of limitations so that it could not be pleaded as a set-off and thereby reduce appellant’s claim.

The authorities are not in harmony, some holding that, if action on the counterclaim is barred when it is filed, so that an independent action could not be maintained on it, it is not available as a set-off; others holding that, if it is not barred at the time suit was brought by the plaintiff, it may be used as a set-off, although barred at the time it was filed. This court, however, has held:

“So a counterclaim arising out of tort, even if barred by the statute of limitations, may be used by way of recoupment against a suit for the recovery of money. It was error therefore for the court to render judgment over against appellant for any sum, as the counterclaim was barred when the cross-bill was filed, and also error not to grant the demand made by appellant to reduce the amount of the counterclaim recovered against appellant to the amount recovered by appellee, C. C. Smith, against him. The counterclaim was available for recoupment only. For that purpose it existed as long as appellant’s cause of action existed.” Huggins v. Smith, 141 Ark. 87, 216 S. W. 1.

“The defense of .reduction or recoupment which arises cut of the same transaction as the note or claim survives as long as the cause of action upon the note or claim exists, although an affirmative action upon the subject of it may be barred by the statute of limitations. But a counterclaim, even where by statute it may consist of any matter arising out of contract or tort, whether it arises out of the contract or transaction sued upon or not, if barred by the statute of limitations, is available only for recoupment, although for that purpose it may be used as long as plaintiff’s cause of action exists.” 37 C. J. 804-5.

The statute of limitations is intended to bar actions themselves, and not matters of defense to such actions. And where the counterclaim or set-off pleaded as a defense grows out of the transaction which is the basis of plaintiff’s claim, it will not be barred as long as appellant’s cause of action exists. Under our statute, a counterclaim may be any cause of action in favor of the defendants, or some of them, against the. plaintiffs, or some of them, whether it grows out of the same transaction or not, and a set-off may be either a cause of action arising out of contract or tort. And where a counterclaim or set-off is pleaded, it is wholly immaterial whether it was founded on contract or whether it grew out of the same transaction.

In the 'case of Huggins v. Smith, supra, the question was not involved and not discussed as to whether there was any distinction as to claims growing out of or connected with the transaction which was the basis of plaintiff’s complaint, or for an independent claim in no way connected with plaintiff’s cause of action.

If a counterclaim or set-off is interposed as a defense merely, and no affirmative relief is asked, and when it grows out of the transaction which is the basis of plaintiff's cause of action, there is no reason why this defense might not be available as long as plaintiff’s cause of action exists.

The statute of limitations provides that actions founded on any contract or liability, expressed or implied, not in writing, shall be commenced within three years after the cause of action accrued, and not thereafter. But that means the commencement of an action for an affirmative relief, and the commencement of an action requires the filing of a complaint and the issuing of a summons. But the defendant, in using a counterclaim merely as a defense, is not prosecuting any cause of action and not asking .judgment on the claim, but he is simply asking permission to keep what he has, and that the plaintiff be not permitted to recover on his claim, except whatever amount there may be in excess of what he owes the defendant. Where, however, a counterclaim or set-off has no connection with plaintiff’s cause of action, hut is an independent claim against the plaintiff, it will be barred as a defense and not available to defendant if the right of action on such counterclaim was already barred before plaintiff’s cause of action accrued. If action on the counterclaim is barred and plaintiff’s cause of action accrues thereafter, the counterclaim cannot be used as a defense. But, if the counterclaim is not barred when plaintiff’s cause of action accrues, then it is not barred as a defense to plaintiff’s cause of action. The authorities are not in harmony, and it would serve no purpose to cite them here. We have reached the conclusion that the rule above announced is the best rule, and it has already been settled by the decision of this court.

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


author: McHaney, J.

text:
    Busey v. Felsenthal.
    Opinion delivered October 15, 1928.

      Marsh, McKay S Marlin, for appellant.

      Patterson & Rector, for appellee.
   McHaney, J.

The facts in this case are undisputed. In November, 1925, appellees, being brokers in El Dorado, Arkansas, solicited the appellant for the right to sell certain royalty interests owned by him. individually and as trustee. The appellant listed the property with appellee at $20,000 net. It was agreed between them that he should add a 5 per cent, commission, or $1,000, to the net price, and attempt to get a purchaser for $21,000. Shortly thereafter he priced this property to Mr. P. R. Mattocks, representing the B. H. & M. Oil Company, at $20,000 • for the owner and $1,000 commission. Mr. Mattocks was interested in the purchase, and appellees sent him to appellant to close the deal. Mattocks called on appellant on November 5, 1925, and agreed with him for the purchase of this royalty at the price of $20,000 plus the commission of $1,000 to appellee, conditioned that the title should be approved by Gaughan & Sifford, attorneys, of Camden, Arkansas. He thereupon drew a draft in favor of G'aughan & Sifford for $20,000, with instructions to them to turn it over to appellant on approval of the title. Appellees were notified of this contract of purchase and ¡sale between appellant and the B. H. & M. Oil Company. Appellant thereafter refused to ¡carry out the contract of sale, but breached his contract with the B. H. & M. Oil Company and sold the same royalty interest to another. At the conclusion of the testimony the court directed the jury to return a verdict for appellees, which was done.

Appellant says, first, that there was no contract of employment between him and appellee, and second, if there was a contract of employment, it was expressly understood and agreed that he would not pay appellee for his services, and that no damages could have been sustained by him.

In a case quite similar to this in principle, Lewis v. Briggs, 81 Ark. 96, 98 S. W. 683, this court said:

“Under the terms of this contract Lewis does not make out a case for recovery against the plaintiff (defendant) by showing that he secured a contract with solvent parties to purchase the land. He must, under this contract, show either that defendants have received some part of the balance of the purchase money to which he was entitled, or that the parties who agreed to purchase were ready, willing and able to perform their part of the contract, and that they were prevented from doing ■so by the default or failure of the defendants to perform their part of the contract.”

The above case was cited with approval in the more recent case of Vaughan v. Odell & Kleiner, 149 Ark. 118, 231 S. W. 562. In that case it was said: “It is a well-settled and sound principle of law that he who prevents a thing from being done shall not avail himself to his own benefit of the nonperformance which he has occasioned.” Also, in stating the effect of. the rule laid down in Lewis v. Briggs, the court used this language: ,“In concluding the opinion the court said that, under the contract, so long as the purchase price was unpaid, and so long as the defendants were not to blame for its nonpayment, they were not liable. This was a clear recognition of the rule as we have stated it. Upon the principle stated in these cases, the broker might have a claim for his services if the sale had failed through the fault of the defendant.”

In the case at bar the proof is undisputed that an absolute sale was made, subject only to the approving opinion of an attorney to whom the royalty interest was later sold. "We are of the opinion that this case is ruled by the cases albove cited, and that the court did not err in directing a verdict upon the undisputed testimony in the record.

Judgment affirmed.


text:
    Cowan v. Thompson.
    Opinion delivered October 15, 1928.
   McHaney, J.

Counsel for appellees has correctly stated the case and the issues as follows: “The Luxora & Little River Road Improvement District No. 2 was created by orders of the county court under the Alexander Road Law, many years ago, and the limit of its right to issue -bonds to the extent of 30 per cent, of the assessed value, as provided by the Alexander Road Law, was raised to 50 per cent, -of the assessed value by special act No. 253, passed by the -General Assembly in 1920'. Bonds were issued amounting to approximately 50 per cent, of the assessed value of real property in the district, and the proceeds thereof applied toward the construction of about forty miles of highway within said district, some of which were -only graded dirt roads, while others were covered with a layer of silica or gravel. The -dirt roads, on- -account of the peculiar condition of the soil, have deteriorated to the point where they are impassable in wet weather. The silica roads, which are constantly traveled, have deteriorated to the point where they are rough and full of chuck-holes. The original district had no authority to issue additional bonds. To remedy this unfortunate condition of the property owners, R. E. Lee Wilson and many others in the district petitioned the county court to create a maintenance and repair district under O. & M. Digest, §§ 5463 to 5488. The petition of the property owners was granted, and the district was created and organized. On account of the peculiar condition of the soil, the commissioners concluded that it would be a waste of money to attempt to repair the dirt roads by merely smoothing over the surface. Likewise they were of the opinion that it would be necessary, in order to put the silica roads in a good state of repair, to place thereon a thin coat of warrenite. Cowan, a property owner in the district, filed a bill attacking the plans of the commissioners, on the following grounds:

“(1) That the law passed in 1919 providing for the organization of maintenance and repair districts was repealed by the Martineau Act. (2) That a district organized under the maintenance and repair act has no right to issue bonds for any purpose. (3) That the maintenance and repair act applied to proceedings commenced in the year 1919 only. (4) That a maintenance and repair district was bound by the plans of the original district, and could use no .material for repairing and maintaining roads other than the material specified and provided for in the plans of the original district.”

The lower court sustained the latter contention. In other words, the lower court held that a dirt road could be repaired only with dirt, although the plaintiff concedes that the application of a thin layer of silica would be better and more economical in the long run, and that a silica road could be repaired only with silica, although the complaint concedes that the application of a thin layer of warrenite to the silica road would be better and more economical in the long run.

Both sides appealed.

1. Appellant first says that the act of February 11, 1919, §'§ 5463-i5488, O. & M. Digest, the first section of which is as follows: “Improvement districts may be formed for the purpose of keeping in repair roads and bridges now or hereafter improved by road improvement districts, created either by special act or under general laws,” was repealed by act 11 of 1927.

The complaint alleges, with reference to the roads proposed to be repaired, that “none of said roads have been taken over for construction, repair or maintenance by the State Highway Department.” The Martineau Act, act No. 11 of 1927, has to do only with State highways. Taylor v. Rogers, 176 Ark. 156, 2 S. W. (2nd) 56. In that case we said: “There is no prohibition in the several acts against the building of county roads, or roads not a part of the State highway system, under the Alexander Road Law, and we do not understand that the Alexander Road Law has been repealed by the provisions of the Acts of 1927.” Not only was the a'ct under 'consideration not repealed by the Martineau Act ¡of 1927, but we think it will serve a useful purpose in the repair and maintenance of roads and bridges not forming a part of the State highway system, and which were originally constructed by road improvement districts. The chancellor correctly held there was no repeal.

2. Appellant next says that, because the form of notice prescribed by § 5469, 'C. & M. Digest, reads “on the........................ day of...................................................... 1919, ’ ’ the act was only in force during that year. Section 5463 above quoted clearly refutes that idea and conclusively shows that it was a mere clerical error or misprision of the scrivener in writing 1919 instead of 19.......... Again the chancellor correctly so held.

3. Neither is there any merit in appellant’s claim that, although the district may “issue negotiable evidences of indebtedness,” as provided by-§ 5468, O. & M. Digest, it cannot issue bonds maturing over a period of years. This court has recently decided to the contrary, and the chancellor correctly so held. Ark. State Highway Com. v. Kerby, 175 Ark. 652, 300 S. W. 377.

4. The appellees contend that the court erred in holding, as it did, in effect, that the dirt roads could only be repaired with dirt and the silica roads only with silica, the language of the decree in this regard being: “They are perpetually enjoined from graveling the graded dirt róads and from putting-a warrenite surface on silica roads, and no bonds can be issued for that purpose.” We think the court erred in this regard, and placed too narrow a construction on the act. A careful reading of 5468 and 5469, -C. & M. Digest, appears to us to be conclusive of this fact. We will not set them out, as they are too long, but the former defines the powers of the commissioners, and makes it their duty to keep in repair the roads constructed by the original district, and to do this they are given broad powers. “Before doing any work of improvement on any of said roads,” they are required to get the “approval of the county court of the work they propose to do. ’ ’ By the latter section the commissioners are required “to determine what repairs will be necessary to the roads * * * to put them in a good state of repair, and shall make plans for the making of such repairs, subject to the approval of the county court, ’ ’ etc. If the commissioners could only make such repairs as were covered or contained in the plans and specifications of the original district; if they could only repair a dirt road with dirt, a gravel road with gravel, or a silica road with silica, why does the act require them “to determine what repairs will be necessary,” and why require them “to make plans for the making of such repairs”? It would seem a useless procedure, if they can make repairs only out of material of which the road or bridge was originally built.

A case very much like this is Higginbotham v. Road Imp. Dist. No. 3, 154 Ark. 112, 241 S. W. 866. This court there construed § 2, act 133, special session 1920, relating to road improvement districts in Lonoke County, wherein the commissioners were “required to maintain and repair the roads constructed under their supervision, subject to the approval of the county court, and, in order that said roads may be properly maintained and repaired, it shall be the duty of the board of commissioners of said districts to cause a competent engineer to make an estimate of the cost thereof from time to time, which shall be reported to the county court. If the county court finds the cost of said maintenance and repair to be reasonable and to the best interest of the district, it shall authorize the board of commissioners” to do the work, levy a tax on the assessed benefits, etc. >Suit was brought to enjoin the maldng of repairs under this statute, and the complaint charged that the commissioners had prepared plans and specifications for “regrading, 'widening, shaping up the ditches, and putting in culverts, proper drainage, and resurfacing the road with seven inches of gravel, or about fifteen hundred tons per mile, which, in fact, is reconstruction work;” that the total cost of the work was $85,250'; and that, unless restrained, they would let a contract therefor. It was contended that the above statute, to “maintain and repair” the roads, was not authority for the work proposed to be done. A demurrer to the complaint was sustained by the lower court, and on appeal this court affirmed this action. It was there said: “To repair means, according to the lexicographers, ‘to mend, add to, or make over; to restore to a sound or good state.’ Standard Dictionary. ‘To restore to a sound or good state after decay, injury, dilapidation or partial destruction; to restore or reinstate as in former standing.’ Webster.

“A fair interpretation of the meaning of the word, as used by the lawmakers in this statute, is that it means restoration to the original state of the road after the former improvement was completed. Not exact, but substantial, restoration was intened. It was not intended that entirely new improvement should be constructed in disregard of the original plans, but only restoration of the improvement according to the original plans, with mere incidental changes allowable.”

As will be noticed, the commissioners in that case were to repair the roads by resurfacing them with seven inches of gravel, in addition to regrading, widening, shaping up the ditches, putting in new culverts, and constructing proper drainage. The opinion does not show what the roads were originally surfaced with, but the proposed work was alleged to cost $85,250, and apparently were to be rebuilt under the guise of repairing them, which the court sustained. Here, however, the commissioners propose to resurface the dirt roads with gravel and put a thin layer of warrenite on the silica roads. We do not think this can be said to be an entirely new improvement, in disregard of the original plans, “but only restoration of the original improvement,” with slight changes in the surfacing of the roads, using to great advantage the work done under the original plans, such as the right-of-way, the dump, bridges, culverts, ditches, silica, and the only change contemplated from the original plans is in the surfacing. If resurfacing the roads with seven inches of gravel and doing the other work alleged in the Higginbotham case constitute repairs within the meaning of the statute there cited, we fail to see why the work proposed to be done in this case should not be permitted under the statute now under consideration.

In Hout v. Harvey, 135 Ark. 102, 204 S. W. 600, one of the cases cited in Higginbotham v. Road Imp. Dist. No. 3, supra, as illustrative of the principle there announced and herein quoted, it was held, to quote the syllabus: “Under act No. 338, Acts 1916, the commissioners of a road district may change the plans of the road by slightly changing the width of the road, and increasing the thidkness of the gravel instead of using a layer of asphalt, as originally planned,- when the length of the route of the road is not changed, and the increase in the cost is not large.” See also to the same effect Carson v. Road Imp. Dist. No. 2, 150 Ark. 379, 234 S. W. 257.

Since all the roads comprising the State highway system have been taken over for construction, maintenance and repair by the State Highway Commission, under the M'artineau Act, the roads constructed by improvement districts, not a part of the State highway system, would in time become impassable, and the investment therein be wholly lost, unless such districts be permitted to repair and maintain them. Foreseeing such disastrous consequences, the Legislature enacted the statute now under consideration providing a remedy against such a result. And we think such a construction should be given the act as will accomplish the purpose of the Legislature. To repair the roads in question means to make them over, not necessarily exactly like they were before, nor in exact accord with the original plans, but, utilizing the work done in constructing the roads originally under the original plans, make them over with such material for resurfacing as experience and advance in the science of road building teach will be the best and the most economical in the long run, thereby giving the landowners value received for their investment.

The primary object in the construction of statutes is to determine what purpose or intent the Legislature had in mind in passing the statute, from the language used, and to give effect to that purpose or intent. Howell v. Lamberson, 149 Ark. 183, 231 S. W. 872.

It necessarily follows, from what we have said, that the court erred in enjoining the commissioners from making the proposed repairs and the issuing of bonds to provide funds for this purpose. The judgment will be affirmed on the direct appeal, and will be reversed, and remanded with directions to sustain the demurrer to complaint on the appeal of the district.

Kirby and Mehaffy, JJ., dissent.