text:
    Yaffee v. Fort Smith Light & Traction Company.
    Opinion delivered July 2, 1923.
    1. Damages — evidence.—In an action for injuries from a collision 'between plaintiff’s automobile and a street-car, evidence held to sustain a finding that plaintiff received no substantial injury in the collision.
    2. Appeal and error — weight of testimony. — -The Supreme Court will not weigh the testimony, further than its legal sufficiency to sustain the finding complained of.
    3. Damages — nominal damages. — In a personal injury action plaintiff was entitled at least to nominal damages on a finding of negligence by defendant’s servants, causing the injury.
    4. Appeal and error — error as to nominal damages. — Appellant cannot complain of a judgment denying him merely nominal damages.
    5. Appeal and error — instruction—general objection. — A general objection to an instruction which is not inherently erroneous calls for no analysis thereof merely to discover formal defects.
    6. Appeal and error — instruction-—general objection. — In an action for injuries received in a collision between plaintiff’s automobile and defendant’s street-car, an instruction ’ that, if the motorman or conductor saw the plaintiff in a situation “where it was inevitable for plaintiff’s automobile to strike the said street-car,” it was their duty to use all reasonable means in their power to avoid the collision by reducing the speed or stopping the street-car, held not reversible error, though the language was of doubtful import, where no specific objection was made.
    Appeal from Crawford Circuit Court; James Goch-■ran, Judge;
    affirmed.

      Chew & Ford, for appellant.
    The verdict on the first count of the complaint for personal injury is wholly unsupported by the testimony, is contrary to the evidence. The uncontradicted testimony shows appellant was injured, and lost his sight as a result thereof.

      Hill & Fitshugh, for appellee.
    ■ The testimony relative to the personal injury was not undisputed. Appellant asked an instruction submitting the question to the jury, and the verdict is amply supported by the evidence. 82 Ark. 86; 82 Ark. 10593 Ark. 472. On the cross-appeal it is insisted that the court erred in refusing defendant’s requested instructions Nos. 8, 12, 13, 15 and 21, and also in giving instructions 10, 9 and 8 on behalf of plaintiff. Said instruction 8 is altogether and inherently erroneous. 93 Ill. App. 387; 51 Atl. 421; 65 Pac. 284.
   McCulloch, C. J.

This action was instituted by the plaintiff, Simon Yaffee, against the Fort Smith Light & Traction Company to recover damages on account of personal injuries, and injuries to plaintiff’s automobile, alleged to have been caused by a collision between the automobile and a street-car. .In the complaint, negligence on the part of the men operating the street-car is charged with running the car at high speed and failing to give warning of the approach to a crossing, and with failing to exercise ordinary care to prevent the collision, after discovery of the perilous situation of plaintiff and others in the automobile.

The answer contained appropriate denials of all the allegations of the complaint with respect to the responsibility for the collision, and also a denial of the allegations in regard to the extent of the injuries sustained by plaintiff.

There are two separate allegations in the complaint, the first seeking damages for loss of plaintiff’s eyesight, and in the second paragraph damages are laid on account of the destruction of the automobile.

There was a trial of the issues, which resulted in a verdict in favor of the defendant on the first paragraph of the complaint, and a verdict in favor of the plaintiff on the second paragraph, and assessing the damages for destruction of the automobile in the sum of $700. The form of the verdict was: “We, the jury, find for the plaintiff in the sum of $700 for damages to car, and nothing for personal injury.” Each party asked for a new trial and appealed, and the respective motions were overruled. The case being here on a former appeal of the plaintiff from a judgment in favor of the defendant, we reversed the judgment and remanded-the -cause for a new trial on account of error in the court’s charge to the jury. Yaffee v. Ft. Smith Light & Traction Co. The facts are stated in greater detail in the opinion on the former appeal than is necessary to do at present.

The plaintiff asks for a reversal of the judgment on the ground that the verdict against him -on the paragraph seeking recovery for personal injuries was not supported by any substantial testimony.

The undisputed facts are that appellant, accompanied by members -of his family, was driving an automobile 'along -one of the streets of Fort Smith on Sunday afternoon, August 1, 1920, and there was a collision between his -car and the -street-oar at a -crossing where two streets intersected. The automobile was badly damaged, and there is no contention on the part of defendant that the verdict was excessive on that branch of the case. Plaintiff testified that, when the collision occurred, he was endeavoring to get hold of the emergency brake, and that the impact threw his head against the steering-wheel -and inflicted a painful injury. He and some of the -other witnesses said that there was a gash cut in his head. He claims that the impact and shock caused him to lose his eyesight. There was abundant testimony to support plaintiff’s -contention that he was thrown against the steering-wheel and received an injury which caused the loss of his eyesight. He introduced witnesses whose testimony tended to- show that the loss of his -eyesight was caused by injuries received at the time of the collision.- On the -other hand there is, we -think, substantial testimony that the plaintiff received no physical injury at the time of the collision. He stated that immediately after the collision- he felt pain -and began to notice that -his eyesight was affected, but witnesses introduced by defendant stated that they were at the scen-e a few moments after the collision occurred, and that appellant not only stated that no one Lad 'been hurt, but that be gave no evidence by bis conduct of having received any injury. These witnesses say that they .saw no bruises .or scars, and did not see him holding up his hands to his eyes, as some of the plaintiff’s witnesses claimed they saw.

The collision occurred during the afternoon, and shortly before eight o’clock that night appellant sent for his family physician, Dr. McGrinty, on account of one of his children sticking a nail in his foot, and, after the physician treated the boy’s foot, plaintiff called'on him to examine his eye, claiming, according to Dr. McGrinty’s testimony, that he had received an injury. The doctor testified that he is a general practitioner, and had no special experience in the treatment of eye troubles, but that he examined plaintiff’s head and eyes carefully and found no bruises or other injuries on his head, and could not discover anything wrong with plaintiff’s eye. Some of the witnesses testified that plaintiff’s eyes were bloodshot at that time; Dr. McGrinty testified that he found nothing of that kind. He recommended to plaintiff that he go to a specialist, Dr. Moulton, for treatment the next morning. Plaintiff went to see Dr. Moulton the next morning, and the doctor testified that he found both of plaintiff’s eyes markedly deficient in sight, but that-it was an old trouble and had not recently begun. He testified that there were no scars or bruises about plaintiff’s head or face, and that his eye appeared to be normal, until he examined it with an opthalmoscope and its injured condition was found, but that that condition was, as before stated, of long duration.

We are of the opinion that this testimony was sufficient to warrant the jury in finding that plaintiff received no substantial injury resulting from the collision. We are not called on to weigh the testimony further than its legial sufficiency. Plaintiff was, of course, entitled to :at least nominal damages upon a finding of negligence on the part of defendant’s servants in causing the injury, but causes are not remanded for a new trial on account of failure to award merely nominal damages. Plaintiff recovered costs below on account of the verdict being in his favor on the second paragraph of the complaint, therefore he had no ground to appeal from the judgment merely denying him nominal damages.

The evidence warrants a finding that plaintiff not only did not receive ¡an injury to his eyesight, as claimed, but also that he did not suffer any personal injury at all to the extent that entitled him to anything more than nominal damages.

Wo next consider the appeal of the defendant, and we discover no grounds for reversal of the judgment. There are numerous exceptions to the rulings of the court in giving and refusing instructions, but we find that none of these assignments of error are of sufficient importance to discuss, except the one which relates to the giving of instruction No. 8, at the request of appellant, which reads as follows:

Should you believe from the evidence that the defendant’s motorman or conductor in charge of one of its street-cars, while approaching C Street at a point where C Street crosses defendant’s track, saw plaintiff at a distance of fifty or sixty feet from the track at said crossing, approaching said track at a speed of fifteen or twenty miles an hour, and that it was inevitable for plaintiff’s automobile to strike the said street-car, or the said street-car to strike plaintiff’s automobile, then it became and was the duty of said motorman or conductor to use all reasonable means in their power to reduce the speed of said street-ear or stop same in order to avoid the said street-car being struck by plaintiff’s automobile or plaintiff’s automobile being struck by said street-car.. And if you believe from the evidence, circumstantial or direct, that said motorman or conductor failed to exercise reasonable and ordinary care to reduce the speed of said street-car or stop sanie in time to avoid the injury1 complained of, then your verdict should be for plaintiff, although you may believe that plaintiff was himself at the time negligent in so approaching said street-car.”

The objection to this instruction was general, and, unless it was inherently erroneous, this does not call for an analysis of the instruction merely to discover the formal defects. It is clear from a consideration of the language of the instruction that the court meant to tell the jury; in substance, that if the mo-torxnan saw, or the conductor saw, the plaintiff in a perilous position, or, using the language of the instruction, in a situation where “it was inevitable for plaintiff’s automobile to strike the said street-oar, or the said street-ear to strike plaintiff’s automobile,” then it was their duty to use all reasonable means in their power to avoid the collision by reducing the speed of the car or .stopping. This is what the instruction was intended to mean, and what it does mean, taking the language in its ordinary acceptation. The language, it is true, is- of doubtful import, but this ought to have been met by a specific objection to its form. Counsel rely upon our decision in the recent case of Blytheville, Leachville & Ark. Southern Ry. Co. v. Gessell, 158 Ark. 569, where' we reversed a judgment for recovery on account of an injury to an automobile truck at a crossing because of an erroneous instruction on the duty of the railroad company to keep a lookout; however, there was a specific objection in that instance to the erroneous instruction, which -called the attention of the court to the defect. The instruction is not, we think, open to the objection that it assumes the existence of material facts, but, if there was doubt upon that -subject, that too should have been covered by a specific, not a general, objection.

Upon the whole, we are -of the -opinion that -the -cause was sent to the jury on proper instructions, and that there was no prejudicial error in the trial, and that the judgment .should be affirmed -on both appeals. It is so ordered.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Gage & Spencer v. Road Improvement District No. 3.
    Opinion delivered July 2, 1923.
    1. Highways — conclusiveness op engineer’s estimate. — Under a contract for building a road, which provided that the engineer’s decisions, shall be final and conclusive, the road district is not bound by estimates made by the engineer based on reports of an employee resulting from fraud or gross mistake.
    2. Highways — fraud or mistake op engineer — jury question.— Whether road contractors were overpaid through the engineer’s fraud or gross mistake held for the jury.
    3. Appeal and error — matters not abstracted — presumption.— Where the pleadings, testimony and instructions in a case are not abstracted by appellants, it will be presumed that the issues were correctly submitted, and that there was testimony sustaining the verdict.
    4. Highways — overpayment to contractors — liability of surety. ■ — The surety on a road contractors’ bond, binding it to indemnify the improvement district against loss from their negligence in prosecuting the work and failing to pay bills or to complete the work within the time specified, is not liable for money overpaid the contractors through the fraud or gross mistake of the engineer.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    reversed in part.

      George J. Grump and N. B. Maxey, for appellants.
    The contract provides that the estimates, made by the engineers are to be conclusive, and is binding on both parties. No fraud is charged against the engineer in charge of the work, nor that lie allowed more than the work was worth. Case is controlled by 83 Ark. 140, which is directly in point; 88 Ark. 213. Appellants were entitled to recover the amount of the final estimates. Even though appellee be held entitled to recover against the contractors, it can not recover against the surety bond. The judgment against Gage & Spencer should be reversed and judgment given for the engineer’s final estimate, and in any event the judgment against the surety must be reversed and the cause dismissed as to it.

      E. G. Mitchell, for appellee.
    The appellee was not 'bound to the payment of the estimates of the engineer, notwithstanding the provision of the contract to that effect, because of the proof of fraud and bad faith on the part of the engineers. 48 Ark. 522; 68 Ark. 185; 79 Ark. 505; 88 Ark. 213.
   Wood, J.

Gage & Spencer, a partnership (hereafter called appellants) were contractors. They were nonresidents. They entered into a contract with Road Improvement District No. 3 of Newton County, Arkansas (¡hereafter called appellee), to do work on its read. Appellants instituted this action against the appellee for damages and for failure to pay for work done under the contract. The appellee filed a motion to require appellants to make bond for costs, and also a cross-complaint setting up the particulars in which it alleged that the appellants bad violated their 'contract, and made the National Surety Company (hereafter called surety company) a defendant. Appellee alleged that the surety company was on appellants’ bond for the faithful performance of their contract. The surety company, through its attorneys, entered its appearance. The appellants failed to file their bond, and their cause of action was dismissed. Sec. 1845, Crawford & Moses’ Digest. It was -alleged in the cross-complaint that the appellee had been damaged by failure cf appellants to perform their contract in certain particulars, which are specified, in the sum of $2,999.99, for which it prayed judgment against the appellants and the surety company.

The appellants -and the surety company, in their answer to the cross-complaint, denied all the allegations of the cross-complaint, and denied liability. The cause was submitted upon these issues and the testimony adduced at the trial, and the jury returned a verdict in favor of the appellee against the appellants for the amount prayed in the cross-complaint, and against the surety company in the sum of $1,778.77, rnom Which judgment the appellants and the surety company appeal.

The contract between the appellants and the appellee was introduced in evidence. It provided that the appellants should build a road for the appellee according to the plans and specifications, which were made a part of the contract, and the appellee was to pay for the work at the prices 'Stipulated, The appellants were to 'begin work under the contract on the 21st of June and to complete the work within 156 working days after they began. If they failed to complete the work in the time specified they were to pay $15 each day delayed, which sum was to be liquidated damages 'and deducted from the final amount due the appellants under the contract. The bond bound the surety company, in case of the failure of appellants to perform their contract, to indemnify and -save harmless the appellee against any loss or damage of whatever kind and character, arising or occasioned by deed of negligence of the appellants, their agents, servants and employees, in the prosecution of the work, or by reason of improper safeguards or incomplete protection to the work, or by reason of failure to pay all bills for material and labor which entered into the construction of the work or used in the course of the performance of the work, and by reason of a failure to complete the work within the time specified.

The specifications; made a part of the contract, contained the following provisions: “The engineer shall have full supervision over the entire work, and his decision as to quality of material, construction and rate of progress of said work and the meaning of all drawings land specifications shall be final and conclusive. He shall determine the amount and quantity of work of the several kinds performed, materials! furnished which are to be paid for under the contract. In case any question shall arise (his decision) shall be a condition precedent to the right of the contractor to receive any money due under the contract. All 'orders and instructions to the contractor shall be given by the. engineer.” And the further provision that “the final estimate of the engineer should take the place of all prior certificates or estimates upon which payments had been made.” The final estimate of the engineer showed that the district was indebted to the appellants in the total sum of $20,821.37, less previous estimates of $17,637.49, leaving a balance due appellants of $3,183.88.

The appellants, after setting forth the above as their abstract of the record, further state: “Neither wifi we abstract the evidence in regard to the fraud and collusion charged and attempted to be proved. The only suspicious 'circumstance shown in that instance is that Stanley, the engineer in charge of the work, While he was engaged as such engineer, also was hired to the contractors to do certain work for them.”

The appellee has abstracted the testimony of E. D. Alexander. He testified that his company was a corporation, and was employed as engineer of the appellee to superintend the building of the road. He employed 0. A. Stanley as local engineer to lay out the work according to the plans given him. Witness was never called on to make a final estimate under the contract with the appellants, but did of the road he worked. He had some sort of report from Stanley. He did not make an estimate from this report — checked them up, but they did not balance. There was a discrepancy, and then if was that Eoberts and witness came and calculated it on the ground. Thev found matters that caused witness to come himself. In trying to verify, witness took numerous observations of the road, and it did not show that Stanley was making too large an allowance to Gage & Soeneer under the contract. Witness found places where the road was not over eleven feet wide. The contract called for the road to he sixteen feet wide. Stanley had no right to make a final estimate. Witness’ company did that. The defect in the road as left by the contractors was deficiency in ditches and points of narrow width that were not up to 'specifications. It had very little value-r-could have been constructed reasonably for from $2,500 to $3,000 per mile. Witness was on the job while Gage & Spencer were at work on it very seldom — one timé, possibly twice, not to exceed that. Witness thought that he was1 there only one time, and ■spent probably half <a day. He had nothing but a tapeline. Witness did not find Stanley’s work generally satisfactory. Stanley had no right to work for Gage & Spencer. Witness did not authorize it — would not have authorized him or any other man to do that.

Witness Cantrell testified that he was a graduate in engineering of the University of Arkansas; that the contractors had not removed the dirt and rock claimed, and under the contract they had been greatly overpaid.

W. M. Moore testified that he was one of the commissioners of the appellee; that the board had overpaid the appellants; that it had paid them $20,000, 'and they should have been paid for actual work performed under the contract $13,000.

Gage testified that before they quit Stanley was in their employ. - He worked for us while he had employment from the other side. Witness took his orders from Stanley absolutely. Stanley did not take orders from witness.

Stanley testified that lie acted as foreman in the employ of Gage & Spencer in their absence, and sometimes when they were present. He got $5 a day; his boy got $3 a day and board. Gage & Spencer fed witness’ horse. His brother-in-law got thirty cents an hour, and they fed his horse. The appellee paid witness $125 a month and expenses when he was away from headquarters. Witness was to look after the construction of the road — to give appellee, his time and ability. He had accepted employment from the appellee and had been working for the other fellow. Witness never told the commissioners of the district of his employment by Gage & Spencer. The inference of his language to Moore was that he was not in the employ of Gage & Spencer and would not stand under that accusation.

Spencer 'testified tliatt Stanley got an automobile from him. If be said tbat be did not, be was a liar. Tbat was a private transaction between Stanley and witness. Witness sold it to Stanley for casb.

In tbe erosis-complaint filed by tbe appellee against tbe appellants it is, among other things, alleged: “They (appellants) conspired and entered corruptly a conspiracy with O. A. Stanley, then and there employed by B. D. Alexander Engineering Company, by which they undertook to and did claim tbat they bad moved a large number of cubic yards of dirt and broken rock, and claimed tbe same to be solid rook. By this conspiracy and fraud they did succeed in securing from plaintiff in cross-complaint (appellee) vast sums of money, tbe amount of which is known to them and unknown to this plaintiff” (appellee), etc.

The appellants invoke the doctrine of our cases to tbe effect tbat, where tbe parties to a building contract agree tbat in disputes between them concerning tbe provisions of tbe contract or tbe performance thereof the decision of tbe engineer or of tbe architect shall be final' and conclusive, tbe decision of tbe engineer or architect under such contract is binding upon the parties to it, and such decision cannot be challenged except upon proof of fraud, or such gross mistake as necessarily implies bad faith on tbe part of tbe engineer. Carlile v. Corrigan, 83 Ark. 140; Boston Store v. Schleuter, 88 Ark. 213. But tbe doctrine of these oases cannot avail the appellants, for the reason tbat they have not abstracted the pleadings, tbe testimony, or the instructions bearing upon the issue of fraud and gross mistake upon the part of tbe engineer. Tbe appellants content themselves on this issue by saying: “We will not abstract the-evidence in regard to tbe fraud and collusion charged and attempted to be proved.” And again: “There is no allegation of fraud on the part of Alexander, tbe chief engineer, who made tbe final estimates m person. The only evidence of mistake is the testimony of other engineer's and witnesses that t-lie work could have been done for less. Tbis, as quoted above, is not sufficient to establish, fraud or gross mistake.”

But tbe appellee, as we have seen, does charge that the appellants ‘ ‘corruptly entered into a conspiracy with O. A. Stanley, then and there employed by R. D. Alex ander Engineering Company, by which they defrauded the appellee of vast sums of money,” etc. And the appellee, in its abstract, sets forth some testimony tending to prove that Stanley, the local engineer, was employed by the R. D. Alexander Engineering Company, and that while so employed he also accepted employment from appellants; hence that, through his fraud or gross mistake, the appellee had paid out sums largely in excess of what they 'Should have oaid under the contract. Any fraud or gross mistake of Staule}*- was the fraud or gross mistake of the chief engineer who employed him, and the 'appellee therefore was not bound by the estimate made by Stanley or the engineering company predicated upon any repoohs made by Stanley, that might have been the result of fraud or gross mistake on his part. The record as abstracted by the appellee is sufficient to show that there was, at least, an issue for the jury as to whether or not the appellants had been overpaid in the sum claimed by the appellee through the fraud or giros® mistake of the engineering company, whose decision, under the contract, was made final and conclusive.

In the absence of any abstract of the testimony or the instructions upon that issue by the appellants, we must presume that the issue was correctly submitted by the trial court, and that there was testimony to sustain the verdict. The judgment therefore against the appellant must be affirmed.

But, as to the surety company, the case is different. It is only liable for a breach of the conditions of its bond. After a careful scrutiny of the provisions of the bond, we find that it does not bind the surety company to refund to the appellee any money it may have overpaid to the appellants by reason of fraud or gross mistake of the engineer. It must be remembered that this is an action by tire appellee against the appellants for money which the appellee alleges had been overpaid to the appellants through the fraud or gross mistake of the engineer. The bond contains no condition which, upon a breach thereof, would make the surety company liable to appellee for money it had overpaid appellants. The judgment therefore against the surety company is erroneous, and same will be reversed, and the cause dismissed as to it. As to the appellants, the judgment is affirmed. . .


author: Hart, J.,

text:
    Fairview Coal Company v. Arkansas Central Railway Company.
    Opinion delivered July 2, 1923.
    CARRIERS — DUTY TO RECEIVE FREIGHT ON PRIVATE SWITCH. — A railroad company which furnishes sufficient facilities for the receipt and delivery of freight cannot be required to receive freight on a private switch.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.
    STATEMENT OE PACTS.
    The Fairview Coal Company, a domestic corporation, brought this suit in the circuit court against the Arkansas Central Railroad Company to recover damages for an alleged discrimination against if in the matter of receiving coal offered for shipment from the plaintiff’s mine.
    It appears from the record that the plaintiff is engaged in mining coal in Logan County, Ark., about three miles north of the station of the Arkansas Central Railroad Company at Paris, Ark. The defendant is a railroad corporation organized under the laws of the S-tate of Arkansas, and operates a line of railroad from.' Paris, Logan County, Ark., to Fort Smith, in Sebastian County, Ark. It maintains a 'station at Paris at which it has at all times maintained an agent to transact business and sidetracks upon which to store cars while being loaded with freight. The defendant also has, under private contract, maintained a private switch from its station at Paris to 'the Anthony Hall mine, which is situated north of Paris and within one-half of a mile of plaintiff’s mine. 11 ■ 1
    The plaintiff demanded that the defendant should furnish it cars on the switch at the Anthony Hall mine for the purpose of loading its coal for shipment to points in and out of the State. The defendant refused to furnish cars on said switch, as requested by the plaintiff, and this suit was filed to recover damages, as above stated.
    The court found in favor of the defendant, and the complaint of the plaintiff was dismissed. Final judgment was rendered against the plaintiff in favor of the defendant, and the plaintiff has duly prosecuted an appeal to this -court.

      Robt. J. White, for appellant.
    The defendant railway was bound to furnish transportation within a reasonable time for all freight offered for shipment. 6 Cye. 372; 139 U. S. 128,11 Sup. Ct. Rep. 128, 35 L. ed. 73; 4 Elliott on Railroads, 2287; Hutchinson on Carriers (Mechem) 291-3; 87 Ark. 331; 87 Ark. 298. Under allegations of complaint, plaintiff was bound by its custom and practice to furnish the transportation at point where freight was offered, the Hall switch, without regard to whether it was a private switch. 73 S. W. (Ky) 1038; 64 S. W. 965; 55 L. R. A. 601; 13 Fed. 5; 94 U. S. 126, 24 L. ed. 77; 221 S. W. (Ark.) 861; C. &M. Digest, § 847; 181 S. W. (Mo.) 1032; 37 U. S. Sup. Ct. Rep. 46; 36 U. S. Sup. Ct. Rep. 541; 35 U. S. Sup. Ct. Rep. 24; Stat. at L., 379, chap. 104, Compiled Statutes, 1913, § 8563; §§ 843, 844, 845, C. & M. Digest. State Commission without power to regulate interstate commerce, and cars demanded were for interstate shipments. 33 U. S. Sup. Ct. Bep. 263; 226 U. S. 426; 33 Sup. Ct. Bep. 174; 222 U. S. 424, 32 Sup. Ct. Bep. 140.

      Thos. B. Pryor, for appellee.
    Appellee could not be required to receive freight for shipment for appellant on the Hall private switch. 73 Ark. 373; 112 Ark. 158; 120 Ark. 579. Suit not based on discrimination, and could not be maintained for discrimination on allegations of complaint. 118 Fed. 169. Not obligated to furnish cars for appellant except at its station. Bailroad Commission of Arkansas had jurisdiction. 99 Ark. 16. Act of Congress Feb. 28, 1920', Transportation Act, § 4, par. 18; C. & M. Digest, § 1618; 231 U. S. 457; 174 U. S. 343; 225 U. S. 501; 211 IT. S. 612.
   Hart, J.,

(after .stating the , facts.) The plaintiff based its right to recover on the common-law liability of the defendant. It is claimed that the facts stated in the complaint constitute a discrimination against the plaintiff.

It 'appears from the record that the defendant had a station and switch tracks at Baris, where it placed oars for the purpose of being loaded with coal for shipment. The defendant had also made an arrangement for a private switch, track with the owner of .the Anthony Hall mine, situated about,one-half of a mile from the plaintiff’s mine. The alleged discrimination on the part of the defendant consisted in-its refusal to place cars on the switch at the Anthony Hall mine for the plaintiff for the purpose of loading its coal for shipment.

It is well settled that a common carrier cannot, be required to receive freight on or along a private switch. Its duty in that regard is confined and limited to its own station or ¡shipping points. Where a railroad company furnishes sufficient facilities of its own for the receipt and delivery of freight, there is at common law no duty resting upon it to receive or deliver freight upon a private siding or spur track. Gulf Compress Co. v. Alabama Great Southern R. Co. (Miss.), 56 Sou. 666, and Bed ford-Bowling Green Stone Co. v. Oman, 143 Fed. 441. Therefore the court properly held that no duty rested upon the defendant to place cars on its switch at the Hall mine for the purpose of receiving the coal of plaintiff for shipment.

The right of the Railroad Commission, in a proper case, to determine whether the public necessity and convenience requires the establishment of a spur track for the public, is not involved in this case, but is discussed in St. L. I. M. & S. R. Co. v. State, 99 Ark. 1.

Judgment affirmed.


author: Hart, J.

text:
    White River Bridge Company v. Hurd.
    Opinion delivered July 2, 1923.
    1. Bridges — jurisdiction op county court over toll bridges.— Under Const., art. 7, § 28, granting exclusive original jurisdiction “in all matters relating to county taxes, roads, bridges, ferries,” etc., the county court has exclusive jurisdiction in the matter of building bridges over watercourses, and may be authorized by the Legislature either to build them at public expense or to grant to any person or corporation the privilege to build a toll bridge where necessary for the public convenience and too burdensome to be constructed by general taxation.
    2. Bridges — toll bridge as part op highway. — A “toll bridge” is a part of the public highway the same as a bridge built by general taxation; the difference being that it is made at the expense of individuals or corporations and the cost of construction ■and maintenance is reimbursed by a toll fixed for the purpose.
    3. Bridges — existing statutes as part op contract to build toll bridge. — Existing statutes become a part of contracts between county courts and third persons granting a franchise to build toll bridges.
    4. Bridges — power op county court to fix rates on toll bridges. — Under Crawford & Moses’ Dig., § 10256, authorizing the county court to fix rates on toll bridges, a county court, in granting a ■franchise to build a toll bridge, may fix the' tolls to be charged for the first ten years of its life.
    5. Bridges — toll bridge exclusive privilege. — The privilege granted by a county court to build a toll bridge over a navigable stream,' under Crawford & Moses’ Dig., § 10258, is exclusive, and precludes the county court from granting a ferry license to operate a ferry within one mile of such bridge.
    Appeal from Pulaski Circuit Court, Second Division; jRichard M. Mann, Judge;
    reversed.
    . Cooper Thweatt and Chas. B. Thweatt, for appellant.
    The provisions in the franchise for the toll bridge that the rate of toll fixed for the first ten years shall not be reduced during that period, and that no ferry license shall he granted ■within one mile of the bridge during the life of the franchise, are valid. The validity of the provisions is a judicial question for determination in a suit to enforce the contract. 153 Pac. 28; 42 S. W. (Tex.) 647; Abbott on Public Securities 490; 9 C. J. 61. Seller, when buyer declines to take the property, may tender it and sue for the purchase price. 24 R. C. L. 86. 51 L. R. A. (N. S.) 784; 14 C. J. 702; 90 Ark. 85; 106 Ark. 314; 60 N. E. 378. Rate of tolls. County court has power to regulate ferry rates. 152 Ark. 291. Municipal corporations fix rates in franchises granted by them. 152 Ark. 290; 194 IT. S. 517, 24 Sup. Ct. 756.; 184 TJ. S. 368, 22- Sup. Ct. 410. Statute authorizing toll-bridge franchises, C. & M. Digest, §§ 10255-10258. “Full” defined. 56 So. 792; 27 C. J. 923; 44 Ala. 506; 64 Atl. 702; Words & Phrases (2d S.) 678; 69 Ark. 269; 43 Ark. 198; 31 Ark. 25. Ferry competition. C. & M; Digest, § 10258; 69 Ark. 269; 130 Ark. 291; 130 Ark. 291; 95 Ark. 3.42.
    ■ E. B. Kinsworthy and B. S. Kinsworthy, for ap-pellee.

    The rate of tolls is subject to alteration, and appel-lee was not bound to purchase the bonds for construction of the bridge unless the provision in the franchise that the rate of tolls as fixed at the present time shall not be subject to alteration for ten years. No county judge, under § 28, art. 7, Constitution, giving authority to regulate ferries, can fix rates that cannot be changed by his successors. Authority not given by C. & M. Digest, §§ 10255-6-7, for county court to grant franchise for toll bridge with, fixed rate of tolls for ten-year period. 14 Ky. Law Rep. 836; 21 S. W. 1042; 245 Ark. 209; 144 TJ. S. 201; 48 L. ed. 406; 94 Ark. 27; 148 Ark. 504; 31 Ark. 24. Right to regulate tolls can not be contracted away. 164 U. S. 57i8, 41 L. ed. 560. Neither is the provision that no license to operate a ferry within a mile of the bridge during the life of the franchise valid. C. & M. Digest, § 10258; 31 Ark. 241.
   Hart, J.

The main question raised by this appeal is whether a county court of this State, which has 'granted a privilege to a person to build a toll 'bridge in the county over a navigable river, hiais also the right to fix the tolls for crossing isaid bridge for the period of' ten years.

The circuit court held that no such power -was vested in the county court, and' to reverse a judgment based upon that holding this appeal has been prosecuted.

Under art. 7, § 28 of the Constitution of 1874, the county courts of this State have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, etc. Under this provision of the Constitution the county courts have exclusive jurisdiction of the matter of building bridges over watercourses. The Legislature might authorize the county courts to build such bridges at the public expense, or it might authorize them to grant the privilege to any person or corporation to build a toll bridge in the county over any navigable stream or other watercourse, where .it might be deemed necessary for the public convenience, and too burdensome to be constructed by general taxation. Wright v. Norris, 43 Ark. 193, and Gray v. Duffy, 152 Ark. 291.

A toll bridge is a part of the public highway, the same as a bridge built by general taxation. The only difference is that, instead of being made at the public expense in the first instance, a toll bridge is authorized and laid out by the county court and made at the expense of individuals or corporations in the first instance; and the cost of construction and maintenance is reimbursed by a toll fixed by tbe county court for tbe purpose. Every traveler has tbe same right to us-e .it, paying tbe toll established by law, as be would have to use any other bridge.

Tbe Legislature of 1875 passed an act granting toll-bridge 'and turnpike privileges, which is a part of our statute law today. Crawford & Moses’ Digest, § 10255-10260 inclusive.

Sec. 10255 reads as follows: “The several county courts, through whose counties run any watercourse, lake, bay or swamp which may be too burdensome to bridge and keep in repair by the inhabitants thereof, are hereby fully and exclusively empowered to grant privileges to persons to build toll-bridges over, or turnpikes or causeways along the same, or through any overflowed or wet land, whenever the interest of the county or the traveling public shall, in their discretion, demand such improvements.”

See. 10256 reads as follows: “The county courts shall have a general superintending control over such bridges and turnpikes, and they are hereby required to 'fix the rates of toll for crossing any bridge, causeway or turnpike which may be built under the provisions of this act, and to compel the same to be kept in good repair at all times.”

It is conceded that the right to grant a franchise to build a toll bridge can be.obtained only from the counts court, and that it can be sold or transferred; and such is 'the law. That is to say, the legal mode of granting a franchise to construct a toll bridge is by a contract between the county court and the grantee of the franchise. It is also conceeded that, under the statute, the county court is required to fix the rates of toll, but it is contended that the power thus conferred is a continuing •' one which the county courts may be required to exercise from year to year, and that it cannot fix the toll for ten years in advance.

It may be stated in the outset that it is a rule of construction that existing statutes become a part of contracts like the kind under consideration. Pocahontas v. Central P. & L. Co., 152 Ark. 276, and Camden v. Ark. Light & Power Co., 145 Ark. 205. Hence this court has held that municipal corporations have the continuing power to lower rates of any water company, gas, or electric light plant. Lonoke v. Bransford, 141 Ark. 18, and Pocahontas v. Central Power & Light Co., 152 Ark 276, and eases cited. The reason is that § 5445 of Kirby’s Digest, which was in force at the time of the granting of the franchise to the public utilities in the cases cited, authorized cities and towns, upon complaint filed, to examine the rates charged consumers and determine whether they are reasonable, .and, if found unreasonable, makes it their duty to fix ¡such prices as might be deemed to be a reasonable -charge. The statute is read into every contract to which it relates made since its enactment. Therefore it becomes -our duty to construe § 10256 of the Digest to determine whether or not it was intended that the county court should have a continuing power to fix the rates of toll.

There is no hard and fast rule on the question, and the truth is that in each case the meaning of a statute must be .sought by -a study of its general ¡scope and tenor and the consideration ¡of its purposes; for it cannot be gathered from the consideration of one- word, or even many words. Elloitt on Boads and Streets, 3 ed., §51. i

It has been well said that half of the English language is interpreted by the context. As we have -already seen,' the only reason for granting a franchise to build a toll bridge is that the cost of construction is too burdensome to be borne by general taxation. B'ealizing that toll bridges ¡are p-arts of the public highways- constructed to meet the public -convenience, -the Legislature provided'that the -county courts should have a general superintending control over them. This i-s- for the purpose of seeing that they are kept in good repair and are free from obstruction, to the end that the public may travel over them in the same manner that a bridge built by the county is traveled. The same section also provides that the county courts are required to fix the rates of toll for crossing such bridges. This is done for the very purpose of enabling the person or corporation who has obtained the franchise for building such bridges to charge a toll for recompense for the cost of construction.

It is manifest that, if the county court could not fix the toll for a reasonable number of years in the future, no reasonable contract could be made for the construction of such a bridge. If the Legislature had. intended that the county courts could not fix the tolls for a reasonably definite time for the future, it would have limited the right by appropriate language, as was done in other cases. To illustrate: § 10278 provides that the county judge shall regulate the tolls to be charged by turnpike companies upon a scale equitable to the corporation' obtaining the franchise and the public. ' This could prevent a lowering of the tolls to the point of confiscating the property of the corporation.

This view of the turnpike statute, while not directly before the court for construction, is evidently the one taken by this court in the case of Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264. In that case it was recognized that the county court, in consideration of the construction of the turnpike and keeping the same in repair, granted the corporation constructing it the exclusive privilege of collecting the stipulated' toll. ' The court recognized that the privilege g*ranted was exclusive, and was for a valuable consideration'.' The rule adopted was that, where the privileges granted are exclusive, and are for a valuable consideration, the'matter assumes the nature of a contract between the county court and the individual g’ranfee, the obligation of which cannot be impaired. The county court was declared 'to be the agency of the State in the matter.

Again § 4701 of -the Digest provides for the regulation of tolls on ferries. The language used is that the tolls shall at 'all times he subject to regulation by the county court. The reason is that annual franchises are granted in the case of ferries, and no injustice could he done by the -county courts having power at all times to regulate the rates.

Therefore we have concluded' that any apparent ambiguity in the statute is made certain when interpreted according to the evident purposes of the act, and are of the opinion that the act conferred upon the county court the power not only to grant the franchise, but to fix the toll for the first ten yeans of the life of the franchise. There is nothing in the record to show that the fixing of the tolls for this period of time would be unreasonable or arbitrary.

It is next contended that the privilege granted is exclusive, iand that the county court, after conferring it, could not grant a ferry license to operate a ferry within a mile of the bridge. We think this construction is borne out by § 10258. This section provides that no county court, after conferring the privileges of this act upon any person, shall have power to confer same, or like privileges, upon any person to the injury of him upon whom such privileges were first conferred.. This principle was recognized in Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264, where it was held that the county court, after having granted the exclusive privilege for the construction of a turnpike, cannot, during the life of the franchise, open a parallel public road which would divert the travel from the pike. Bridges and ferries are designed for the same purpose. That is to say, they are used for the purpose of crossing navigable streams or •other watercourses where there is a public road. They are primarily for the convenience and use of the traveling public, and no useful purpose could be served by adopting both as the means of crossing a river at the same point. The county court is the agency of the State in the matter, and has the power to grant an exclusive franchise for the construction of a toll bridge, and this in itself would prevent the granting of such franchise to another bridge company or to a ferry company.

It follows that the judgment will be reversed, and the cause will be remanded for further proceedings according to law and not inconsistent with 'this opinion.


author: Humphreys, J.

text:
    Bradley v. Minton.
    Opinion delivered July 2, 1923.
    1. REFORMATION of instruments — mistake and fraud. — Where defendants agreed to convey the fee to plaintiff and had a deed drawn conveying the fee and read same to plaintiff, hut subsequently executed a deed conveying only a life estate, which plaintiff accepted without knowledge of the change, the deed will be reformed to convey the fee, under the rule that equity will reform an instrument to conform to the intention of the parties where a mistake has been made by one and fraud practiced by the other, inducing the execution and delivery of the deed.
    2. Reformation of instruments — consideration for deed. — The defense to a suit to reform a deed that the instrument was a voluntary conveyance will not be sustained where, as consideration, plaintiff surrendered the right to be supported during her lifetime and also transferred certain personal property.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor;
    affirmed.

      Denver Dudley and Basil Baker, for appellant.
    The court erred in decreeing a reformation of the deed. No mistake was shown to have been made or fraud practiced. Elements of estoppel were absent: 10 B. C. L. 690, §§ 19, 697, 698; 104 Ark. 476; 98 Ark. '23. Voluntary conveyance not reformed without consent of all parties. 15 Ark. 519; 48 Ark. 419; 80 Ark. 458; 86 Ark. 446; 127 Ark. 54. Equity does not relieve against carelessness. 89 Ark. 309; 41 Ark. 495; 46 Ark. 167.

      Horace Sloan, for appellee.
    Equity will reform an instrument to conform to the intention of the parties, where a mistake has 'been made by one, and fraud practiced by the other, inducing execution and delivery of the instrument. 104 Ark. 476. The doctrine that equity will not reform a voluntary conveyance is not -applicable here, where grantors were bound to support a guaranty.
   Humphreys, J.

Appellee acquired title to a forty-acre tract of land from her former husband, B». S. Bradley, in his lifetime. He died on November 9,1916. Thereafter, on October 31, 1917, appellee conveyed same to her brother-in-law and sister, Homer ft. Bradley and Minnie Bradley, in consideration that they support, board, lodge and clothe her during the rest of her life. The deed contained a provision to the effect that, should the grantees fail to support appellee, the land should revert to her, and that the improvements and repairs should be offset by rents. Also a provision that, should appellee remarry, the obligation to support her should cease as long as she resided with and was supported by her husband,with the privilege, however, of returning and residing with them again in case she and her husband should separate. Also a further provision to the effect that appellee and appellants, by mutual agreement, might cancel the deed and reinvest the title in appellee, or vest ©ame absolutely in appellants -or -some third party. Pursuant to the terms of the deed -appellee resided upon the land with appellants from December 6, 1916, until January 12, 1919, as a member of their family, at which time she married D. P. Minton. During the time ap-pellee resided with appellants she permitted her brother-in-law to manage -and control her personal property. "When appellee married and moved away she left her personal property with appellants. Subsequently she entered into -an agreement with her brother-in-law whereby he and his wife should reconvey the land to her absolutely for title to the personal property, the payment of taxes of 1918, the crops of tliat year, and a release from tlieir obligation to support her. Homer R. Bradley and appellee repaired to the.law office of Hon. Basil Baker, who prepared .a deed of conveyance in keeping with the agreement, which instrument was read by the attorney to them. Appellee’s sister, Minnie Bradley, did not accompany them to Mr. Baker’s office on account of influenza in the family. Homer R. .Bradley took the deed home for execution. His wife declined to sign the deed, because it purported to convey a fee simple title to said real estate. About three weeks later, without the knowledge of appellee, appellants went to Mr. Baker’s office and had him prepare a deed from them to appellee conveying a life estate in said land to her. They took the deed home, and Homer R. Bradley told his wife to call the attention of appellee, when she came for the deed, to the fact that it conveyed a life estate only in the lands to her. When appellee called for the deed, Homer R. Bradley was absent, and her sister, Minnie Bradley, handed it to her without explanation. Appel-lee accepted the substituted deed, believing it was the deed which had been read to her, and, under that belief, placed same of record. The deed given her recited a consideration of $1 and the title to the personal property which belonged to her, and which she had left in appellant’s possession. In a few weeks after the delivery of the substituted deed. appellee discovered, through a friend, that it conveyed a life estate in said lands to her, whereupon she instituted this suit in the chancery court of Craighead County for a reformation of the deed so as to conform to the original deed prepared and read to her by Mr. Baker. TJpon a hearing of the cause the chancery court decreed a reformation of the deed of conveyance so as to convey a fee simple instead of a life estate in said land, from which is this appeal.

Appellant’s first contention for reversal is that Minnie Bradley, who owned the land in entirety with her husband, never agreed or consented to convey it in fee simple to her sister, the appellee. There is practically no dispute in the evidence concerning- the entire transaction. Appellants had certain personal property in their possession belonging to appellee, and were under obligations to support her, should she separate from her husband and return to live with them. After appellee’s marriage to Mr. Minton she demanded a reconveyance of the land, and talked the matter over on several occasions with appellants. The negotiations continued quite a while, and resulted in an agreement by Homer R. Bradley, acting for himself and his wife, with appellee to convey a fee simple title in said real estate to her in consideration of certain personal property, a release of the crops growing upon the land, and of future support. After a careful reading of the testimony we are convinced, beyond the peradventu-re of a doubt, that Homer Bradley acted throughout the negotiations not only for himself but as agent for his wife. Pursuant to the agreement detailed above, a deed was drawn from the Bradleys to Mrs. Minton, and given to- Homer Bradley for execution. The transaction was completed -and the deed..shown to Minnie Bradley by her husband. Appellants then fell upon the plan of preparing and executing a deed conveying a -life estate- only in -said land to appel-lee, without consulting her. They did this, and, when -ap-. pellee called for the deed which had been read to her, Minnie Bradley gave her the deed conveying a life estate only in the land, without explanation, -although she- had been admonished by her husband to explain the matter to her sister, the appellee. In -substituting the deed without explanation a fraud was practiced by appellants upon appellee. Appellee accepted and recorded the deed under the belief that it was the deed which had been read to her. The facts bring this case within the rule that equity will reform an instrument to conform to the intention of the parties, where a mistake has been made by one, and fraud practiced by the other, inducing the execution and delivery of the instrument. Doniphan, Kensett & Searcy Rd. Co. v. Mo. & N. Ark. Rd. Co., 104 Ark. 475. Mrs. Minton accepted the deed under a mistaken, belief that it conveyed a fee simple title, which acceptance was induced through the deceit of Minnie Bradley by substituting a deed conveying a life estate only in said land to her.

Appellants’ nest 'and last contention for reversal is that the deed was without consideration and not subject to reformation. They invoke the equitable doctrine that equity will not reform voluntary conveyances. The doctrine contended for is not applicable to the facts of the instant case. There was a consideration for the deed. Appellee surrendered certain personal property to appellants and released them from further obligation to support her.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Allen v. State.
    Opinion delivered July 9, 1923.
    1. Intoxicating liquors — transportation.—Crawford . & Moses’ Dig., § 6165, prohibiting the transportation of intoxicating liquors “from one place to another in this State,” is violated where one carries on his person a pint bottle of whiskey procured at some place in a city to his home in the same city, as the quoted phrase, while requiring a substantial change, and not a slight and unimportant one, contemplates any transportation from one place to another in the same city or town..
    2. Criminal law — instruction already covered. — A requested instruction which is covered by one given by the court is properly refused.
    . Appeal from Hempstead.Circuit Court; J. H. Mc-Collum, Judge;
    affirmed.

      Sarah Shields Jobe, for appellant.
    The evidence does not make out a case of transporting within the meaning of the statute. 155 Ark. 158.

      J. S. TJtley, Attorney General, John L. Carter and Wm. T. Mammock, Assistants, for appellee.

      The case falls well within the rule laid down in the case in 155 Ark. 158, relied on by the appellant, and the evidence discloses a case of conveying liquor from one objective point to another, in this State. See also 141 Ark. 419.
   McCulloch, C. J.

Appellant was tried before a justice of the peace on imformation charging the offense of transporting whiskey, in violation of the statute which makes it unlawful for any -person “in any manner to transport into this State or from one-place to another place in this State * * * any alcoholic, vinous, malt, spirituous or fermented liquors or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors * * Crawford & Moses’ Digest, § 6165.

Appellant was convicted, and prosecuted an appeal to the circuit court, where he was again convicted, and a fine of $100 imposed.

The offense is alleged to have been committed in the city of Hope. The sheriff of the county testified that he went to the store of a Mr. Wiggins to “make a search,” and that, as he was leaving the store, he saw appellant enter with a heavy overcoat on, which aroused his suspicion, as the weather was warm, and that he searched appellant and found in his pocket a pint bottle of whiskey. The sheriff and other witnesses testified that appellant stated, at the time the whiskey was found on his person, that he was carrying it home for the use of his wife, who was sick. The sheriff testified that appellant must have brought the whiskey, into the store with him, because he saw him walk into the store' and he had no opportunity to secure it after he got in there before it was found on his person. There was no objection made to this testimony, but the contention isfhat'.the..testimony is not sufficient to sustain the verdict.

We think that the testimonv is leg-ally sufficient. It shows that appellant had in his possession a bottle of whiskey, which he was carrying to his home. The testimony does not show where appellant obtained the whiskey, but that is unimportant, if he was transporting it from one place to another within the meaning of the statute. The transportation of the liquor had 'commenced and was in progress, for, as before stated, appellant evidently had the whiskey in his possession when he came into Wiggins’ store. According to his own confession he was transporting it to his home, and the fact that he was temporarily stopping in the store does not take the act of transportation out of the operation of the statute. The law applicable to the case is fully stated in the recent case of Locke v. Fort Smith, 155 Ark. 158, and leaves little to be said. In that case we stated the law as follows:

“From the language used the court is of the opinion that the Legislature only intended to make criminal the removal of intoxicating liquors from one locality in the State, or in va city or county, to another locality in the State, or city or county. These places must be separate and distinct from each other, or the offense under the statute is not complete. To constitute the offense, the liquor must be in the act of being conveyed from one objective point to another. The name of one or even both of the places might be unknown, but it must be shown, inferentially at least, that the defendant was in the act of carrying the intoxicating liquor from one place or locality to another in order to render him guilty under the statute * *

It should be added to. what was there said that the statute does uot specify, directly or indirectly, the extent of the change brought about by the transportation in order to constitute the. offense, nor specify the distance it must be transported. The words “from one place to another in this State” mean, of course, a substantial change in the situs of the liquor. A slight and unimportant movement, of course, would not be sufficient, bu4 a transportation from one place to another in a city or town, or elsewhere, is sufficient to constitute transportation. The manifest purpose of the law was to obstruct the traffic in liqnor by making' it unlawful to transport it, even by one who had received it in possession without violating the law. In other words, the present case is illustrative of the scope of the statute, and we think that where, as in this instance, appellant procured whiskey at some place in the city of Hope and transported, or was in the act of transporting, it to his home in the same city, this constituted transporting within the meaning of the statute.

Counsel for appellant asked the court to give an instruction as to what constituted transportation, and this instruction was a correct declaration of the law, but it was fully covered by another instruction given by the court of its own motion. The charge of the court was, we think, accurate in every respect, and we find no error in the record.

The judgment is therefore affirmed.


text:
    State v. Stevens.
    Opinion delivered July 9, 1923.
    1. Prohibition — errors in exercise of jurisdiction. — Where suit was brought in chancery against a corporation, and the corporation was brought into court by what purported to be valid service, failure of the court to rule upon the corporation’s motion to quash the service on the ground that the corporation had been dissolved will not sustain a writ of prohibition, the remedy in such case being by appeal.
    2. Prohibition — pleading showing jurisdiction. — Where there are allegations in a complaint setting forth facts upon which the jurisdiction of the court may properly be based, the right of the court to exercise jurisdiction cannot be challenged by a writ of prohibition.
    ■ Prohibition to Calhoun Chancery Court; J. Y. Stevens, Chancellor;'
    writ denied.
    J. S. McKnight and Neuhoff & Millar, for petitioners.
    1. Prohibition will lie to prevent an inferior court from wrongfully usurping or exercising jurisdiction over the subject-matter or the person, when such jurisdiction is not vested in it by law. 152 Ark. 321, 238 S. W. 72; 149 Ark. 237, 232 S. W. 609; 115 Ark. 317, 171 S. W. 472; 145 Ark. 540, 224 S. W. 958; 144 Ark. 169, 222 S. W. 59; 32 Cyc. 605, § 2; Bailey on Extraordinary Legal Remedies, vol. 2, p. 1405; High, Extraordinary Legal Remedies, 3d ed., 805. ,
    2. The chancery court lacks jurisdiction: (a) Over the purported Calion Land and Lumber Company, an alleged Arkansas corporation. 14 C. J. 325; 5 N. H. 446; 84 Tex. 21, 19 S. W. 300. (;b) Over the Calion Land and Lumber Company, a Missouri corporation, it having withdrawn from Arkansas and ceased to do business therein. 150 Fed. 666, 670, 671; 251 U. S. 373, 378; 116 Fed. 357, 358; 193 Fed. 492; 124 Fed. 259, 262; 105 Washington 98, 177 Pac. 692. Arkansas courts have no jurisdiction over a Missouri corporation duly dissolved under the laws of its domicile, (a) In the absence of statutory provisions to the contrary, a corporation can neither sue nor be sued after it is dissolved. 14a Corpus Juris § 3892 and cases cited, note 9, p. 1200; 14a Corpus Juris, § 5048, p. 1350; 8 Fletcher, Cyc. Corporations, § 5601, p. 9197 and cases cited under note 72; 268 Mo. 394, 404; 150 Cal. 580. (b) A corporation dissolved under the laws of the State which created it, is defunct in all other States, and its dissolution is binding everywhere. 8 Fletcher, Cyc. Corporations, § 5606, note 92; Id., vol. 8, § 5810, p. 9702, and cases cited under note 15; 74 Fed. 525; 130 Ala. 413, 30 So. 374; 135 Mass. 500; 70 N. E. 1022, 34 App. Cas. (D. C.) 553; 225 U. S. 698. (c) Power of a corporation to sue or be sued after dissolution in the State of its domicile is governed by the law of its domicile, not by that of the State where the suit is commenced. 8 Fletcher, 'Cyc. Corporations, § 5811, p. 9708; 197 Fed. 257; 216 N. Y.' 183; 110 N. E. 502 ; 96 N. E. 415; 95 Wash. 477; L. R. A., 1917-D, 1033. (d) Action against a dissolved Missouri corporation must be brought against the former officers and directors as trustees. Rev. Stat. Mo., 1919, § 9755; 268 Mo. 394; 150 Cal. 575, 89 Pae. 335; 30 Cal. App. 11,156 Pac. 972.
    3. Failure to relinquish jurisdiction is tantamount to overuling the objections to it. 149 Ark. 237, 323 S. W. 609; 144 Ark. 169, 222 S. W. 59.
    4. The existence of another remedy will not bar prohibition where the other remedy is inadequate under the circumstances. 144 Ark. 169, 222 S. W. 59, 60; 97 Wash. 358, L. E. A. 1917-F, 905; 166 Ky. 622, A. L. E. 603, 607; 84 Ark. 573; 174 Wis. 140, 182 N. W. 917.
    5. Prohibition lies against a court attempting to exercise jurisdiction over a corporation on service which is invalid. 174 Wis. 140, 182 N. W. 917; 52 W. Ya. 450.

      Wilson & Martin, for respondents.
    The petition is premature, and should be denied.
   McCulloch, C. J.

The relators, Charles E. Thomas and Charles H. Proetz, allege that they were stockholders in, and officers of, the Oalion Land and Lumber Company, a Missouri. corporation, now dissolved, and they filed their petition here for a writ of prohibition to prevent the chancery court of Columbia County from proceeding against said corporation in a certain action pending in that court, instituted by the plaintiffs therein, who are the heirs at law of I. F. Langston, deceased.

The pleadings in the chancery court are. set forth in extenso in the petition filed in this court, and it appears therefrom that the -plaintiffs commenced the action in the chancery court of Columbia County asserting title to a certain tract of land by inheritance from their father, and asking that an accounting be had of timber, removed from the land, that a certain ¡mortgage executed.by their father '' be canceled, and that their title be quieted. The defendants named in the complaint are the Freeman-Smith Lumber Company, a domestic corporation; the Calion Land and Lumber Company,, also alleged, to be a domestic’ corporation, and C. Gr. Fletcher.

It is alleged ’ in’ the complaint that plaintiffs ’ ancestor executed a mortgage on the land in controversy to one Bass to secure a debt of $100, and that Bass attempted to foreclose tbe mortgage, but tbat tbe foreclosure was void for certain reasons set forth in tbe complaint, and tbat tbe defendants claim title to tbe land, or interests therein, under this foreclosure. It is alleged that tbe defendants bad cut valuable timber from tbe land, and there is a prayer for 'an accounting to ascertain tbe value of tbe timber .so taken.

It is alleged tbat tbe Calion Land and Lumber Company is a corporation organized under the laws of tbe State of Arkansas, with its principal place of business at Calion, in Union County. Summons was issued and served, tbe return showing service on tbe Gabon Land and Lumber Company at its place of business in the town of Calion.

Tbe Calion Land and Lumber Company appeared specially in tbe chancery court by its attorney for the purpose of quashing tbe service, and filed a motion'for tbat purpose, stating tbat it was not a domestic corporation, as alleged in tbe complaint, but tbat it was organized in tbe State of Missouri, and, after having entered tbe State of Arkansas for the purpose of doing business here, it bad properly been dissolved in tbe State of Missouri, and bad filed its certificate with the Secretary of State of Arkansas, withdrawing from this State.

This motion contains a statement tbat tbe chancery court was without jurisdiction of tbe corporation named, for tbe reason that it bad been dissolved. It is alleged in tbe petition filed here tbat this motion was not passed upon by tbe court, but tbat, on tbe filing thereof, tbe plaintiffs filed an 'amendment to tbe complaint, alleging tbat tbe Calion Land and Lumber Company bad, by proper deed, conveyed all.of its land and other property, including its interest in tbe lands in controversy, to tbe Calion Lumber Company, a corporation organized under tbe laws of this State to take over the assets of the Calion Land and Lumber Company, and the prayer of tbe amendment was that tbe Calion Lumber Company be made a defendant. The petition alleges that the eo-nrt is about to proceed to an adjudication of the cause with the motion of the 'Calion Land and Lumber Company un-disposed of, and that it is without jurisdiction to do so on account of the fact that the corporation had been dissolved.

It is clear that the relators have adopted an inappropriate remedy to raise the question concerning the correctness of the power of the chancery court to proceed against the Calion Land and Lumber Company. The jurisdiction of the court must, of course, be determined by the allegations of the complaint, and there is a distinct allegation that the Calion Land and Lumber Company is an Arkansas corporation doing business at Calion, Arkansas, and the corporation was brought into court by what purports to be valid service. The plea to the jurisdiction of the court, and the motion to quash, filed by the Calion Land and Lumber Company, raised the issue whether or not the corporation is defunct, and, if so, who had succeeded to its rights, but an erroneous ruling of the court on that motion, or a failure to rule, cannot be reached by a writ of prohibition. For an, error made by the court in that respect, the remedy to obtain a review by this court is by appeal. Brown & Hackney, Inc., v. Stephenson, 157 Ark. 470. The plaintiffs below are entitled to join as defendants in the action all parties who are alleged to be claiming interests, and, if the corporation named as one of the defendants has in fact been dissolved, that question must be raised by an appropriate plea in the chancery court. Where there are allegations in the complaint setting forth facts upon which the jurisdiction of the court may be properly based, the right of the court to exercise jurisdiction cannot 'be challenged by a writ of prohibition.

It follows therefore that the petition for prohibition must be denied, and it is so ordered.


text:
    Wood v. State.
    Opinion delivered July 9, 1923.
    1. Homicide — manslaughter — sufficiency op evidence. — Evidence held to sustain a conviction for voluntary manslaughter.
    2. Continuance — discretion op court. — It was not an abuse of discretion to deny a continuance on account of the absence of a witness alleged to be ill where no showing was made as to the character of such illness, and no request for a postponement was made in order that the extent of such illness could. be determined.
    3. Homicide — proof op other crime — In a prosecution for murder, it was not error to permit the State to prove that defendant was engaged in the manufacture of whiskey where such proof tended to show a motive on defendant’s part to kill deceased, who was likewise engaged in making whiskey.
    4. Criminal law — argument op prosecuting attorney. — In , a prosecution for murder, argument of the prosecuting attorney that defendant killed deceased because the latter was in competition with him in making whiskey held warranted by the evidence.
    5. Criminal law — argumentative instruction. — It was not.error to refuse a requested instruction which was argumentative in form and amounted to an expression of opinion as to the weight of the evidence.
    Appeal from Baxter Circuit Court; J. M. Shinn, Judge;
    affirmed.

      W. U. McCabe and Nat T. Dyer, for appellant.
    1. As to tire absent witness, Wesley Caines, sufficient. diligence was shown, and, since bis testimony would have tended to establish appellant’s defense, it was an abuse of discretion to refuse a. continuance. 42 Art. 273; 99 Ark. 394, 399; 21 Ark. 460; 60 Ark. 564; 71 Ark. 180.
    2. The appellant did not offer any evidence as to his good character, nor suggest it any way that would authorize the State to attack it in rebuttal; and, even if he had done so, it was improper to allow the State to show in rebuttal specific acts of misconduct. 91 Ark. 555, 558-9’.

      J. 8. TJtley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    1. There is no sufficient showing of diligence on the part of the appellant to justify this court in overruling the discretion of the trial court in refusing the continuance on account of the absence of the witness, Wesley Gaines. 110 Ark. 409; 94 Ark. 538; Id. 169; 44 Ark. 61; 130 Ark. 592; 133 Ark. 239; 105 Ark. 698; 154 Ark. 366; 74 Ark. 450; 149 Ark. 597.
    2. The questions now objected to by appellant with reference to illegal sales of whiskey and ownership of stills were not improper; but, even if they were erroneous, they were invited, and appellant cannot complain. 154 Ark. 367; 86 Ark. 486; 66 Ark. 292; Selman v. State, 159 Ark. 131; 91 Ark. 560.
    3. There is no merit in the objections to the prosecuting attorney’s argument. It amounts to no more than an expression of his opinion on the evidence. No abuse of discretion on the part of the court in allowing it is shown. 34 Ark. 649; 126 Ark. 354; 113 Ark. 598; 95 Ark. 321; 111 Ark. 214; 106 Ark. 131; Id. 283.
   Hart, J.

Granville Wood was indicted for the crime of murder in the second degree, charged to have been committed by killing John Hughes. He was tried before a jury and convicted of voluntary manslaughter, his punishment being fixed at five years in the State Penitentiary.

It appears from the record that John Hughes was killed by Granville Wood in Baxter County, Ark., on the morning of March 5, 1922.

Oscar Gaines was the principal witness for the State. According to his testimony, he had known Gran-ville Wood for seventeen or eighteen years, and Gran-ville Wood had married his sister. Granville Wood and his wife were separated at the time of the killing. John Hughes had spent the night with Oscar Gaines, and on the next morning, while on their • way to get Hughes ’ wagon and harness, they saw Granville Wood' and his ■wife standing in the road, talking. When they approached within a hundred yards of them, Wood’s wife left him and came down the road towards Gaines and Hughes. Wood stood in the road where his wife had left him. Mrs. Wood was about half crying. Just as Gaines and Hughes came to where Wood was, Hughes said to Wood “Hello,” and Wood replied, “How are you?” Wood then stepped to one side of the road, and immediately raised his gun and shot Hughes in the forehead, near the left eye. Without lowering his gun, he began shooting at Gaines. One load struck Gaines in the elbow, and he was again shot in the back and in the back of his head as he ran away. Wood used an automatic twelve-gauge shotgun. Hughes was killed instantly. Gaines denied that Hughes attempted to shoot Wood. He admitted that Hughes had a double-barreled shotgun, but . said that it was a gun which he had borrowed from Hughes, and that he had given it to Hughes to carry home. He said that the loads in the gun had been placed there by him the week before he returned the gun to Hughes. Gaines denied having a pistol on the morning in question, or that he was armed in any way.

Granville Wood was the principal witness for himself. According to his testimony, he shot Hughes because Hughes attempted to shoot him with a double-barreled shotgun. The first trouble Wood had with Hughes came up over a still near a spring on a place which Wood had bought. Wood asked Hughes to move the still away from the spring, and Hughes refused to do so. Hughes said that he would kill the first man that tried to make him move it. Wood told him that he was not going to force him to move it. Hughes told Wood that he was not going to move the still, and that if he fooled with him be would take his wife away from him. Several witnesses told Wood, on the morning of the killing, that John Hughes had told them the evening before that he was hunting for Wood ¡and was going to kill him. When they met on the morning of the killing, Hughes told Wood that this would he a good time bo settle their trouble. Hughes then attempted to shoot Wood, and Wood shot him first in his own necessary self-defense.

Riley Casteel was also a witness for the defendant. According to his testimony, John Hughes told him, on the day before the 'killing, that he was going to kill Granville Wood the first time he saw him. Hughes said that he and Wood had had trouble, but the biggest trouble they had was over a still near a spring where Wood got water.

Ferd Gaines was also a witness for the defendant. According to his testimony, Hughes told him, on the evening before the killing, that he was going to take Wood’s wife away from him, and that if he did'not like it he would kill him. He also stated that Granville Wood was trying to get him to move his still, and that he was not going to do it. If believed by the jury, the testimony for the State was sufficient to warrant the verdict.

It is earnestly insisted by counsel for the defendant that the court erred in not granting his motion for a continuance. The defendant’s motion for a continuance contains the names of several witnesses, and it is frankly conceded by counsel for the defendant that the motion is not sufficient except as to one witness. The reason is that, as to the rest of the witnesses, their testimony was either cumulative or the witnesses themselves were beyond the jurisdiction of the court, and no showing was made by the defendant that they would return within the jurisdiction of the court.

It is earnestly insisted, however, that the court erred in not granting a continuance on account of the absence of Wesley Gaines. It is claimed that he would testify, if present, that John Hughes and Oscar Gaines were at his home on the morning of the killing; that they armed themselves, and said that they were going to hunt for Granville Wood and kill him. A subpoena had been 'Served on tbis witness. In presenting the defendant’s motion for a continuance, the court asked the defendant’s attorney where Wesley Gaines was, and the attorney replied that he heard that he was sick. No showing was made ;as to the character of his sickness, and no postponement of the case was asked until it could be ascertained how sick the absent witness was. No attachment was asked for the witness, and no showing was made of a definite character which would require the court to grant a continuance for the term.

We have uniformly held that it is a matter within the sound discretion of the trial court to grant ór refuse a continuance. The circumstances stated above do not show :any abuse of discretion upon the part of the trial court in refusing to grant the defendant a continuance for the term. Hence this assignment of error is not well taken. Jackson v. State, 54 Ark. 243; Allison v. State, 74 Ark. 450 ; and Tarkington v. State, 154 Ark. 365.

The next assignment of error is that the court erred in 'allowing the State to prove by Oscar Gaines that Granville Wood was engaged in the manufacture of whiskey, and had a still about three-quarters of a mile from his house. This testimony was asked the witness in rebuttal, and we do not think that there was any error in admitting the testimony. It is true that this court has uniformly held that one offense cannot be proved by evidence of the commission of another crime, unless the two are so connected as to form parts of one transaction. The reason is that the introduction of such testimony would raise another and different issue which would call for the introduction of other testimony upon such issue, and thus tend to divert the minds of the jury from the real issue in the case. Ware v. State, 91 Ark. 555.

There are certain well-defined exceptions to this general rule, and, in recognition of them, this court held, in a homicide case, that testimony concerning the sale :and manufacture of intoxicating liquor by -tbe- defendant may be introduced under 'certain circumstances, not for tbe purpose of proving other crimes committed by him, but to show tbe relations between tbe parties and tbe probable motive for tbe killing. Priest v. State, 154 Ark. 145.

In tbe case at bar it was tbe theory of the defendant that Hughes was looking for bim to kill bim, because tbe defendant bad asked Hughes to move a still which he had set up on the defendant’s farm. The defendant not only testified to this as a fact himself, but introduced two other witnesses who also testified that Hughes had threatened to kill the defendant because the latter bad asked bim to move bis still.

It was the theory of the State that Wood himself was operating a still near bis residence, and the testimony referred to was competent as tending to show a motive on tbe part of tbe defendant to kill Hughes. It is admitted on all sides that there was bad blood between tbe parties. Hence this assignment of error is not well taken.

Tbe next assignment of error is that the court erred in permitting tbe prosecuting attorney, in his closing argument, to say tbe following: “Gentlemen of tbe jury, bow are we going to stop just such conditions as existed down there? You can stop it bv vour verdicts. I expect all of these parties were engaged in tbe illegal liquor traffic and made, transported and sold liquor in open violation and defiance of tbe law. In my opinion the reason defendant killed John Hughes was because tbe said John Hughes was in competition with the defendant, in the manufacture of moonshine whiskey.”

It will be noted from our statement of facts that both Hughes and Wood were thought to be engaged in the illegal manufacture o:f whiskev. It also appears from tbe evidence in the record that other witnesses were engaged in tbe illegal manufacture of whiskey. Therefore the prosecuting attorney was warranted in making the deduction set out above and in tbis way pointing out to the jury matters which might affect the credibility of the witnesses.

The next assignment of error is the refusal of the court to instruct the jury as follows: “You are instructed that previous threats by the deceased, John Hughes, either communicated or not communicated to the defendant, would justify the defendant to act on less demonstration made by deceased, Hughes, to take the life of the defendant, at the time of the killing, than if such previous threats had not been made by said deceased, and the defendant would be justified in believing the danger was more imminent, at the time of the killing, had the previous threats not been made.”

• There was no error in refusing to give this instruction. It was argumentative in form, and amounted to an expression of an opinion by the court as to the weight to be given to the evidence. The court was not required to single out evidence and thus invade the province of the jury by telling it the weight to be given to any particular part of the testimony. Fields v. State, 154 Ark. 188; and Johnson v. State, 156 Ark. 459.

There is no reversible error in the record, and the judgment will be affirmed.


text:
    Browne & Billings v. Rouse & Hely Construction Company.
    Opinion delivered July 9, 1923.
    Highways — CONTRACT for building road — damages for suspension. —Where a subcontractor under a contract for building a road agreed that the specifications of the road improvement should be made part of his contract, and such specifications provided that the engineer might stop the work because of unsuitable weather, and that in such case no allowance should be made for such suspension of work, the subcontractor was not entitled to damages caused by suspension of the work on account of unfavorable weather conditions.

      Appeal from Mississippi Circuit Court, Chicka-sawba District; W. W, Bandy, Judge;
    affirmed.

      Little, Buck & Laster-, for appellants.
    The sections of the plans and specifications' introduced in evidence did not become a part of the contract between appellants and appellees. The reference thereto was merely for the purpose of indicating’ what work was to be done, in what manner. 91 U. S. 596, 23 Law ed., 332; 240 U. S. 264, 60 Law ed., 636; 100 Ark. 284; 6 B. C. L. § 253.

      B. A. Nelson, for appellee.
    The action of the court was correct in permitting the introduction of the original and supplemental contracts of the construction company, together with the specifications attached thereto and made a part thereof, both of which were made a part of, and referred to, in the contract between appellants and appellees. 9 Corpus Juris, 708, § 38; Id. 109; §§ 39-40; 75 Ark. 55; 223 U. S. 524, 56 Law. ed. 535; 49 Ark. 122; 89 Ark. 239; 127 Ark. 535.
   Humphreys, J.

This is a suit by appellants against appellees for $3,000 damages growing out of an alleged breach of the following construction contract:

“This agreement, made and entered into this 22nd day of September, A. D., 1921, by and between the Bouse & Hely Construction Company, a copartnership consisting of John H. Bouse and Norman L. Hely, of Cape Girardeau, Missouri, hereinafter called the first party, and B. J. Sanford, of Blytheville, Arkansas, hereinafter called the second party.
“Witnesseth that, whereas the first party entered into contract with the Good Boads Construction Company, a corporation of the State of Hlinois, duly authorized to transact business in the State of Arkansas, said company has contracted with the Blytheville-' Manila-Leaohville Boad Improvement District of Mississippi County, Arkansas, to do all that portion of the work of the Blytheville-Manila-Leachville Boad, beginning in the city of Blytheville at station No. 1519 plus 16.5, as shown, by the plans and ‘specifications of the said road district, and continues to a point west of Blythe-ville where the first drainage ditch -crosses the said road at station No. 1397 plus 41.3, a distance of añoroxi-mately two miles from the beginning of the road in the city of Blytheville.
“Whereas, the first party hereby sublets to the second party sail the grading, subgrading, and g preparing the roadbed, making of the dirt shoulders and side-ditches to comply strictly with the contract -and specifications of the Blytheville-Manila-Leachville Road Improvement District, sand it is hereby-understood that the second party shall do only such grading and earth work as may be required ¡and -set forth in said plans and specifications on the right-of-way of the road, not including any grading or ditching called for in said plans and specifications that is not in the right-of-way of the road.
“Whereas, the second party agrees to furnish all the tools and equipment and perform each and every act as called for in the specifications, which -specifications shall be -made a part of this contract, necessary so that the grading will pass the engineer’s inspection, and be in a suitable condition, as called for in the specifications, to be paved with concrete as called for in the specifications.
“Whereas, the second -party agrees to at all times keep enough teams 'and other equipment at work so as to have the grading completed and ready for the concrete paving ahead of the point at which the paving is being done, so ¡as not to delay the paving work being done by the first party.
“Whereas, the second party agrees to do any and all grubbing and clearing and fence moving that may be required in the portion of the work covered under this contract.
“Whereas, it is hereby understood that the original plans and specifications to the Blytheville-Manila-Leach-ville Boad Improvement District provided that a twenty-six (26 ft.) foot concrete pavement be constructed in approximately the first half mile in the city of Blytheville, and that a nine (9 ft.) foot concrete pavement with four (4 ft.) foot gravel shoulders on either side is to be constructed from the termination of the twenty-six (26 ft.) foot pavement, and that it is contemplated by the engineer and the board of commissioners that the nine (9 ft.) foot concrete pavement for the purpose of obtaining State and Federal aid be increased to sixteen (16 ft.) foot concrete pavement, and the four (4 ft.) foot gravel shoulders originally provided for entirely eliminated.
“Whereas, it is hereby agreed and understood that the price per cubic yard to be paid the second party for this work shall cover any and all grading, subgrading or ditching that shall be called for under the specifications of this contract.
“Whereas, for and in consideration of this work, the first party agrees to pay the second party one hundred fifty ($150) dollars per acre for clearing and grubbing, and one hundred dollars per acre for grubbing without. clearing, thirty (30) cents per rod for fence moving, and twenty-five (25) cents per cubic yard for grading and excavating.
“Whereas, payment for the work performed by the second party, when completed according to the plans and. specifications and under conditions and provisions herein set forth, shall be made by the first party, in cash, on the' estimate of the engineer of the aforesaid road district, when approved by the board of commissioners, on or about the 10th day of the month following the completion of the previous month’s work, such payment to be governed by the engineer’s estimate in cubic yards of the work completed during the previous month. Ten (10) per cent, of such estimate shall be retained by first party until all the work covered in this contract is fully completed and accepted by the engineers of the aforesaid road district, and when satisfactory evidence- is furnished by the second parties that no liens .or claim® exist against said work.”

The proceeds that should arise from the contract were assigned to Browne & Billings, a partnership composed of E. J. Browne and R. J. Billings, to secure them for advances which should be made by them for the purpose of carrying out the contract. It is alleged in, the complaint that appellant, by reason >of appellees violating their said contract and refusing to permit said appellants to pursue the work thereunder, and to complete same in -compliance with said contract, sustained dam-áges in the sum of $2,250 profit which they would have made had they been permitted to complete said contract, and $750 expénded in feeding their teams during delays occasioned by a wrongful refusal of appellees to permit them to work.

Appellees filed an answer denying the material allegations-of the complaint and the right of recovery of any amount on the part of appellant.

The cause was submitted upon the pleadings and testimony, at the conclusion of which the court instructed a verdict for appellees, -over the objection and exception of appellants. A judgment was rendered in favor of appellees, in accordance with the verdict, from which is this appeal.

The record reflects that Sanford was interrupted a number of times in the prosecution of the work during the fall, under orders of the engineer of the district, which orders were communicated to him by appellees; that in January the work ceased until in the spring, on account of weather conditions; that when ordered to return to work in the -spring his teams were in use elsewhere, and he could not do so; that during the delays in the fall Sanford was unable to secure work for his teams elsewhere, and was compelled to expend large 'amounts for drivers, and feed while 'holding the teams in readiness to work. Over the objection of appellants, the court permitted appellees to introduce the contract and supplemental contract between the original contractor and road district, the contract between the original contractor and appellees, and the original plans and specifications for the construction of the road, all of which are referred to in the contract between Sanford and ap-pellees. Under the original plans and specifications, made a part of the contract between 'Sanford and ap-pellees, the district reserved the right to make any changes in the width of the road and method of construction thereof so as to meet Federal aid requirements, and it was provided in said specifications that “no allowance would he made for anticipated profits” in case such changes were made. The specifications also vested in the engineer of the district the right to determine the amount 'and quality of the work, and provided that the contractors should be paid only upon the estimates of said engineer. The specifications also provided that, in case the work was suspended by the engineer or directors of the district, on account of weather conditions or other cause, an extension of time should be granted for the completion of the work greater than the delay occasioned by the suspension. The specifications also provided for temporary suspension of the work. Section 59 of the specifications is as follows:

“The directors or engineer may stop the work wholly, or in part, for such period or periods as they may deem necessary because of unsuitable weather or such other conditions as are considered unfavorable for the prosecution of the work, or for such time as they may consider necessary because of the failure on the part of the contractor to carry out orders given. If work is suspended, the contractor shall place the materials and equipment in neat piles, protected from the elements, so as to avoid obstruction of traffic. No allowance of any kind will be made for such suspension of work except an extension of time for 'completion of the contract.”

Appellant’s insistence for a reversal of the judgment is that the trial court erred in holding that appellants were bound by section 59 of the plans and specifications quoted above. It is admitted that, if bound by said section, the court correctly admitted the plans, specifications, and contracts in evidence. Appellants contend, however, that the reference made to the plans and specifications in the contract was for the sole purpose of indicating when work was to be done and the •manner of doing same. We cannot agree with learned counsel in thus restricting the reference. Reference was first made to the original contracts, and the only purpose which can be attributed to such reference is that the origiilal contracts were intended by the parties as a basis for the subcontract. Reference was next made to the original plans and specifications by making them a part of the subcontract. The language bound Sanford to “perform each and every act as called for in the specifications.” We think this meant that Sanford should be bound as completely by the provisions contained in the specifications as the original. contractor, so far as that portion of the road is concerned which he agreed to build. It is undisputed that the work was suspended from time to time by order of the engineer. It does not appear that the suspensions were arbitrarily made. Changes were made in the width and construction of the road to meet Federal aid requirements, and on this account the time was extended by supplemental contract for the completion of the road. The court correctly construed the contract, and, under the undisputed facts, properly directed a verdict for appellees.

The judgment is affirmed.