author: Hart, C. J.,

text:
    Caddo Transfer & Warehouse Company v. Perry.
    Opinion delivered October 10, 1927.
    1. Carriers — sufficiency of evidence. — In an action for damages for personal injuries sustained while riding as- passenger in an automobile, evidence held to warrant the jury’s finding that defendant bus company’s agent procured or furnished the ear in which plaintiff was riding when injured, and that he was riding as a passenger at the time of his injuries.
    2. Carriers — negligence in operating automobile. — In an action for personal injuries sustained in an automobile accident, the evidence showing that defendant’s automobile, in which plaintiff was riding as a passenger, had poor headlights and was traveling about 30 miles an hour down hill in the night time when it ran into the trailer of a truck carrying iron pipe, held to warrant the jury in finding that defendant was negligent in the operation of its car at the time plaintiff was injured.
    3. Damages — personal injuries. — In an action for personal injuries sustained in an automobile accident, a verdict of $1,500 damages held not excessive, where plaintiff’s arm was broken and he suffered severe pain for several weeks thereafter, and, though his arm knit together properly, his physician testified that a man of his age was likely to suffer pain during the remainder of his life during cloudy or bad weather.
    4. . Trial — admissibility of evidence. — In an action for injuries sustained- while plaintiff was riding in defendant’s automobile, plaintiff’s testimony that one of defendant’s cars had “bonded” or “insurance” on it, admitted on cross-examination, while defendant’s counsel was questioning plaintiff about the description of one of defendant’s cars, held not error.
    5. Appeal and error — evidence not objected to. — Where a party made no objection to the introduction of testimony, no assignment of error can be based on its admission.
    Appeal from Ouachita Circuit Court, Second- Division; W. A. Speer, Judge;
    affirmed.
    STATEMENT OE FACTS.
    A. J. Perry sued the Caddo Transfer & Warehouse Company to recover damages for injuries received on account of the negligent acts of the defendant while he was riding in one of its automobiles. The injuries occurred on June 30, 1926, while the plaintiff was riding in a Ford touring car from Smaeltover, Arkansas, to Camden, Arkansas. The car in which the plaintiff was riding ran into a Ford truck with a trailer attached to it, carrying iron pipe. There were three Ford trucks with trailers carrying iron pipe, traveling one in front, of another. At the time the accident occurred, the driver of the Ford car in which the plaintiff was riding was going down hill at the rate of thirty miles an hour, and the plaintiff had warned the driver that he was going too fast. The car in which the plaintiff was riding ran into the trailer of the rear truck carrying; the iron pipe, and was turned over. The lights on the car in which the plaintiff was riding were had, and that was one of the reasons he asked the driver not to go so fast. The accident occurred in the night time, and the plaintiff’s arm was broken. It was admitted that the Tri-State Transfer Company was the trade name of the Caddo Transfer & Warehouse Company.
    Jesse F. Nash was a witness for the plaintiff. According to his testimony, on the day in question he purchased a ticket at El Dorado, Arkansas, to Camden, Arkansas, from the Caddo Transfer & Warehouse Company, known as the Tri-State Company. The ticket was purchased at its office in El Dorado, and that company carried him with other passengers from that city to Smaekover in a Hudson automobile. When they arrived at the station in Smaekover, where the Tri-State Company unloaded passengers, the driver of the car told Nash that he could not go any further with the car, and offered him his money hack. Nash was advised'to get another means of conveyance from Smaekover to Camden. Nash refused to take his money hack, and insisted on being carried on to Camden. Finally the man in charge of the station secured a Ford touring car with which to carry Nash to Camden, and Nash was not charged any additional fare. A. J. Perry was also a passenger in the car. The man in charge of the station, who procured the Ford touring car for the witness and Perry, cautioned the driver of it about driving past other cars.
    According to the testimony of A. J. Perry, he was 58 years old at the time of the accident, and had lived ten miles southeast of Camden all his life. He had been county surveyor of Ouachita County for the past twenty years. He was in Smackover on business, and, wishing to go home on the night in question, went to the station of the Tri-State Company for the purpose of securing passage home in one of its cars. He saw a bus run into the station with “Tri-State” on it. He then asked the man at the station who was calling out the runs if he could get transportation to Camden. The man told him that he could at 7:45 p. m. The bus did not come in at 7:45 p. m., but he waited until it did come in, about 8:30 p. m. Mr. Nash, along-with other passeng-ers, got out, and Nash stopped by the side of Perry. The latter asked Nash if the bus was going to Camden. Nash said he did not know. The driver of the bus then offered Nash his money back, saying that he had to make a turn-around trip. Nash refused to accept the money, and said he had to go to Camden. The bus driver had a talk with the man announcing the runs at the station, and, after a little while, the man came up to Nash and Perry and told them that he would have a car in a few minutes. Later he came back and told them that he had a car. Nash and Perry got in the car, and the man told the driver of it to be careful while passing other cars. Perry bought his ticket from Smackover to Camden from the man calling out the runs at Smackover for the Tri-State Company and who was the man that procured the Ford touring car for Perry and Nash to go from Smackover to Camden. .He did not know that the man who furnished the. car was the agent of the Tri-State Company, except that he was at the station where that company 'was required to load and unload .its passengers at Smack-over, and that, while there, he called out the runs of the Tri-State Company busses, and acted for it in procuring a car for Nash to go on from'Smackover to Camden.
    On the part of the defendant, witnesses were introduced who testified that Nash did not come from El Dorado to Smackover in one of its cars; that the car he came in was operated by another company, and that the Tri-State Company was not interested in its operation. According to tlie testimony of other witnesses for the defendant, its agent did not procure or furnish the car in which Nash and Perry started from Smackover to Camden.
    The jury returned a verdict in favor of the plaintiff in the sum of $1,500, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Oren Pannete.r, for appellant. ,

      Kirby & Hays and J. G. Clary, for appellee.
   Hart, C. J.,

(after stating the facts). The main reliance of the defendant for a reversal of the .judgment is that there is no substantial evidence to show that its agent procured or furnished the car in which the plaintiff was riding at the time he was injured. It claims that its evidence to the effect that the car did not belong to it is not disputed, and that there is no substantial evidence from which the jury was warranted in finding that the man who procured the car was its agent. We cannot agree with the defendant in this contention. The defendant was a corporation, and could only act through its agents. The evidence shows that, under a city ordinance, it was required to load and unload its passengers at a certain station in Smackover, and that it did so. According to the testimony of Nash, he came from El Dorado to Smackover in one of the defendant’s cars and it unloaded its passengers at its station in Smackover. The driver of the bus said that he had unloaded the passengers there because he had to go back to E,1 Dorado, Nash insisted on being carried to Camden, and refused to take back his fare. The driver of the bus then talked with the man at the station of the defendant in Smackover. He was the same man whom Perry had heard calling out the runs of the defendant. This man finally procured a Ford touring car, and sent Nash on in it to Camden. He also took a fare from Perry from Smack-over to Camden, and told him to get in the car. From this evidence the jury might have legally inferred that the man in charge of the station at Smackover, where the defendant loaded and unloaded its passengers, was the agent of the defendant and had the authority, or at least the apparent authority, to arrange to carry Nash and the plaintiff from Smackover to Camden. He was in charge of the defendant’s business, and had at least the apparent authority to act for it in the premises. Hence we are of the opinion that the jury had a right to find that the plaintiff was riding* in a car of the defendant as a passenger at the time he was injured. He had paid his fare to one who was in charge of the defendant’s business at its Smackover station.

On the. question of negligence, the testimony we have recited in our statement of facts warranted the jury in finding that the defendant was negligent in the operation of its car at the time the plaintiff was injured. It had poor headlights, and the jury might have found that the driver was guilty of negligence in driving in the night time too fast down hill while his lights were in such poor condition. Therefore we find that there was substantial evidence to support the verdict.

It is also claimed that the verdict is excessive. We do not agree with the defendant in this contention. The plaintiff’s arm was broken, and he suffered severe pain for several weeks thereafter. While his arm knit together- properly, his attending physician testified that a man of his age was likely to suffer pain during the remainder of his life, in cloudy or bad weather.

It is next insisted that the court erred in allowing the plaintiff to testify that one of the defendant’s cars had “bonded” or “insurance” on it. There was no error in admitting this testimony. It was not admitted for the purpose of showing that the defendant had its cars insured, but it was admitted on cross-examination, while counsel for the defendant was questioning the plaintiff about the description of one of the defendant’s cars. Under these circumstances it was not error to admit the testimony.

Another assignment of error is that the court erred in permitting Nash to testify to certain matters -which are set out in the defendant’s abstract and brief, but which we do not deem necessary to recite, because we find that no objection was made by the defendant to the introduction of this testimony, and, under our settled rules of practice, no assignment of error can be based upon its admission.

Again, the defendant assigns as error the action of the court in giving one of its instructions to the jury at the request of the plaintiff. We do not deem it necessary to set out this instruction, for the objection made to it is that there is no evidence to warrant a submission of the question of whether or not the plaintiff wías a passenger of the defendant on the day he received his injury. As we have already pointed out, the evidence was sufficient to warrant a finding in favor of the plaintiff on this question, and we hold .that this assignment of error is not well taken.

We find no reversible error in the record, and the judgment will therefore be affirmed.

Kirby, J., disqualified.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Freeman v. State.
    Opinion delivered October 10, 1927.
    1. Homicide — when malice implied. — Where a killing is done with a deadly weapon, the law implies malice if no circumstances of mitigation, justification or excuse appear to have existed at the time of the killing.
    2. Criminal law — when testimony undisputed. — Testimony can be said to be undisputed only when reasonable minds can draw ■but one conclusion from it.
    3. Homicide; — belief op danger. — Where a killing is done because the slayer believes he is in great danger, but the facts do not warrant such belief, the crime may be murder or manslaughter, according to the circumstances, even though the killing is not done in a fit of passion.

      4. Homicide — manslaughter. — Where a slayer, though acting in self-defense, was not free from blame, his crime may be manslaughter.
    5. Homicide — manslaughter — sufficiency of evidence. — Evidence held sufficient to support a verdict finding defendant guilty of manslaughter, as against his plea of self-defense.
    Appeal from Sebastian Circuit Court, Greenwood. District; J. Sam Wood, Judge;
    affirmed.

      Holland & Holland, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, C. J.

Yol Freeman was convicted before a jury of the crime of manslaughter, and bis punishment was fixed at five 3mars in the penitentiary. The case is here on 'appeal. The only assignment of error relied upon for the reversal .of the judgment is that the evidence is not legally sufficient to support the verdict.

The record shows that Frank Pompey was killed while working in a mine at Jenny Lind, in the Greenwood District of Sebastian County, Arkansas, and Yol Freeman took-charge of his home and locked it up. On the next night, which was February 17, 1927, the defendant went with Frank Petty and his wife .to the residence of the deceased for the purpose of allowing Mrs. Petty to rest awhile. While the3r were in the house, Abe Alexander came in, and Freeman asked him what he was doing there. Alexander replied that he had as much right there ias Freeman. Pett-3^ and his wife went out in another room, and in a few minutes heard a pistol shot. They went back in the room, and found Alexander lying on the floor with a bullet wound over his heart. Freeman admitted that he had shot and killed him with a pistol, hut said that Alexander was trying to shoot when he shot and killed Alexander. Freeman said that he was down on his knees when he fired the shot. Alexander died in a few minutes. The killing occurred between half past ten and eleven o’clock, and the sheriff of the counter was called, and found Alexander Wing on the floor, dead. There was a stream of blood from his mouth extending about five or six feet down the floor frojn where the body lay. He found a blackjack with the letter “F” on it lying about four or five feet from Alexander’s head. There -was a small automatic pistol with one unexploded shell in it under Alexander’s hips. Alexander was dressed in his underwear, a pair of overalls and house-slippers. The undertaker who took charge of the body said that the wound just clipped the heart and ranged down. He found the bullet under the skin in the right shoulder.

According to the testimony of Frank Petty, he first saw Alexander when he opened the door and came into the house. Freeman asked him who had broken into the house. It seemed that the house had been entered since Freeman had locked it up, after the death of Pompey. Alexander replied that he had. Freeman said, “You’ve got no business breaking into this house.” Alexander replied, “I got as much right in here as you have.” Alexander then stepped back and ran his hand in his bosom. Petty grabbed his wife, and went into the kitchen. He heard some scrambling around, and then a pistol shot. “I did not see Freeman fumble around a trunk or get a pistol after we went in the house. ’ ’ Witness saw a blackjack in the room where Alexander was killed. He did not see it before the killing. Freeman said that Alexander was trying to shoot him when he shot Alexander. Freeman said that he was down on his knees in the corner of the room when he fired, the shot.

Another witness for the State testified that Alexander was lying on his back, with his right thumb hooked over the bib of his overalls, and his other hand down at his side. There was nothing in either band.

According to the testimony of the defendant, he had known Abe Alexander for twelve or fourteen years, and they were friends. Alexander, the defendant and another person carried Pompey out of the mine when he was killed. Pompey lived by himself, and had told the defendant that, if he was killed while -working in the mine, he wanted him to take charge of his house. After the death of Pompey, the defendant fastened up his house and, on the next night, went there with Frank Petty and liis wife. He saw that the house had been broken into and entered during his absence. He s;aw that a trunk had been broken into and some papers scattered over the floor. When the defendant saw that the house was torn up, he got a pistol which had belonged to Pompey and put it in his pocket. While walking around the room, he heard somebody step on the front porch. He came right in to the defendant and said, i£What in the hell are you doing here?” The defendant said, “Looking around. Somebody has burglarized the house — do you know who it was?” Alexander said, “Yes, it was me and Butch.” The defendant replied, “ Nobody had any business burglarizing the house.” Alexander then went for his bosom with his hand, and the defendant stepped back. Alexander commenced striking at him, and the defendant threw up his hands. Alexander hit him with something that deadened his hand. Alexander then struck the defendant on the shoulder, and got him backed up in the corner of the room. Alexander hit him' over the head with something that knocked him down. Alexander was right over him, and drew back as if to strike the defendant again. The defendant shot him. Alexander scrambled around a little, and fell over on the floor and died.

Another witness for the defendant identified the blackjack found in the room where the body of the deceased was lying as one that belonged to Alexander.

Mrs. Frank Petty was a witness for the defendant, and substantially corroborated the testimony of her husband.

The killing being done with a deadly weapon, the law implies malice where no circumstances of mitigation, justification or excuse appear at the time of the killing.

The killing was the result of a sudden quarrel between the defendant and Alexander. While the jury might have found from the evidence that Alexander attacked the defendant with the blackjack and that the defendant shot him after Alexander had knocked him down, and that the killing was therefore done in self-defense. still it cannot be said that the testimony of the defendant and Ms witnesses was undisputed. Testimony can only be said to be undisputed when reasonable minds can draw but one conclusion from it. The jury may have accepted a portion of this evidence as true and rejected the other portions of it as untrue. Tliey may have concluded that the defendant shot the deceased under the belief that he was about to be assaulted with, a deadly weapon, but that he acted too hastily, and was therefore not justified in taking life under the circumstances. Where the killing is done because the slayer believes he is in great danger, but the facts do not warrant such belief, it may be murder or manslaughter according to the circumstances, even though the killing is not done in a fit of passion. When the slayer, though acting in self-defense, was not himself free from blame, the crime may be only manslaughter. Allison v. State, 74 Ark. 444, 86 S. W. 409.

According to the evidence for the State, Alexander was shot over the heart, and the bullet ranged downward. The jury might have found that the defendant was not telling the truth when he said that Alexander had knocked him down before he shot him. One of the witnesses for the State testified that Alexander was found lying with his right thumb hooked over his overalls bib and the other hand at his side. There was nothing in either hand. The jury might have found that the defendant shot Alexander while he was reaching his hands in his overalls, as testified to by Frank Petty, but that he shot too hastily. It might also have found that the defendant shot Alexander while they were scuffling around, and that Alexander was merely striking the defendant with the little pistol which was found under his hips, and was not attempting to kill him or do him serious bodily harm. In any event, it cannot be said that reasonable minds could only come to the conclusion that the defendant shot and killed the deceased in order to save his own life or to prevent great bodily harm to himself. It might have found that the parties became angered at each other and entered into a voluntary fight. It is true that the defendant was injured to some extent in the fight, but he was not seriously liurt. When all tlie attendant circumstances are considered in tlie light of each other, it cannot be said that the testimony of the defendant is undisputed that he shot the deceased after he had been knocked down on the floor and before he had gotten up. It will be remembered that the defendant testified that he got the pistol after he had entered the house because he saw that the house had been burglarized. On the other hand, Frank Petty testified that he did not see the defendant get the pistol after they entered the house. The jury might have found that he already had it in his pocket,, and, as above stated, that he either became angry at Alexander and voluntarily entered into a fight with him or that he drew his pistol and shot Alexander too hastily, and was not therefore justified in the eyes of the law.

The evidence was legally sufficient to .support the verdict, and the judgment will therefore be affirmed.


author: Wood, J.

text:
    Hirsch v. Farris.
    Opinion delivered October 10, 1927.
    1. Mines and minerals — time to file lien claims. — Employees of an oil field contractor, who furnished teams for construction of an earthen storage pit and did work thereon, held not entitled to liens under Acts 192S, p. 499, where they failed .to file their claims with the clerk of the circuit court within 90 days from the last work, as required hy Crawford & Moses’ Dig., § 6922, or to bring an action to establish and enforce liens within this period.
    2. Mines and minerals — enforcement of statutory lien. — Liens on oil wells and property used in connection therewith, given to laborers and materialmen by Acts 1923, p. 499, are creatures of the .statute and must be perfected and enforced according to the statute creating them.
    3. Mines and minerals — enforcement of lien — parties. — -In an action by oil field laborers and materialmen against the owner of a leasehold interest for a pick-up station to declare and enforce their lien brought under Acts 1923, p. 499, the contractor was a necessary party where agreements with the laborers and material-men were made by the contractor rather than the owner.

      4. Mines and minerals — action to declare lien — notice. — In an action to declare and enforce liens to a leasehold interest for an oil pick-up station, brought by laborers and materialmen under Acts 1923, p. 499, failure to give 10 days’ notice of intention to bring the action as required by Crawford & Moses’ Dig., § 6917, held fatal to personal judgment against the owner.
    Appeal from Ouachita Chancery Court, ¡Second Division; George M. LeCrog, Chancellor;

    reversed.

      Saxon, Wade & Warren, for appellant.
   Wood, J.

This is an action by L. C. Harris el oil. against Sylvian Hirsch to declare and enforce a lien on certain oil and other personal property and on a leasehold interest in twenty acres of land in Ouachita County, Arkansas, which land is described in one of the complaints. The first complaint was filed March 6,1926, and the interventions were filed later. Plaintiffs and inter-veners alleged, in substance,' that they were oil field teamsters and laborers, and, at the request of the defendant, Sylvian Hirsch, they furnished teams and labor for the purpose of building an earthen storage pit on lands described in the complaint, upon which the defendant had a lease, for the purpose of building a pick-up station for 'the collection of oil. They asked that they be given a lien on seven-eighths of the oil so collected and certain personal property and the leasehold interest of the defendant. Plaintiffs filed with the complaint a statement of their accounts, duly verified,

The defendant answered, denying the allegations of ilie complaint and interventions, and alleged that he had at no time employed the plaintiffs or interveners to do any work for him on his pick-up station or earthen storage tank on the lands described in the complaint; that he had no notice that the plaintiffs and interveners had ever done 'work for him on flic land described.

The plaintiffs and interveners testified, in substance, that they worked on the pit situated on the land as described in the complaint and interventions. A colored man by the name of Curl in Arnold employed them to do the work. Hirsch never employed them. They gave the defendant, Hirsch, no notice that they were going to institute suit against Mm. They did not know when the work was done — the last of -November or the first of December — it was finished about the first of December. Each testified to the number of days’ work done by him and the amount due him, and that same had not been paid. They testified to the effect that Arnold, who employed them, claimed to have a contract with the defendant, Hirsch.

The defendant, Hirsch, testified that he never employed any of the negroes to build the ¡pit for him. Neither of them ever gave him any notice that they were claiming ¡a lien or that they were going to file suit against him. He entered into a contract with Curlin Arnold to construct an earthen storage pit for him on the land described, and agreed to pay him $400 for the work. Arnold had never finished the pit. It was on the land described in the complaint and interventions, and he supposed that the claimants had worked on the pit. Witness did not know whether Curlin Arnold had paid the claimants in suit or not. Witness paid Arnold $200, and told him that if he would finish the pit he would pay him the balance of $200.

The court found that the defendant had entered into a contract with Curlin Arnold to build a storage pit on the lands described in the complaint and interventions, for which Arnold was to be paid the sum of $400. Certain of the plaintiffs had performed work and labor with their teams, wagons and slips on the storage pit, under employment by Arnold, the contractor. The court found that the claims were not filed within ninety days and no notice was given the defendant, Hirsch, and the trial court was of the opinion that the plaintiffs had eight months in which to perfect their liens and that their actions.were instituted within eight months from the time the last work was done by them. The court thereupon rendered a decree for the several amounts claimed -by the respective plaintiffs, and declared these amounts a lien on the leasehold estate of the defendant, Sylvian Hirsch, on the lands described in the complaint, and appointed a commissioner to sell such property to satisfy the decree. From these decrees the appellant prosecutes this appeal.

Act No. 615 of the General Acts of 1923 gives to the parties designated therein, including materialmen and laborers, a lien, upon the terms and conditions therein specified. Section 3 of that act gives to “any person, corporation,- firm, association, partnership or material-man, who shall furnish such machinery, material or supplies to a contractor or subcontractor, or any person who shall perform such labor under a subcontractor with a contractor, or who, as an artisan or day laborer in the employ of such contractor or' subcontractor, shall perform any such labor, shall'have a lien upon the said land or leasehold interest therein,” etc. The act is long, and it is unnecessary to set it forth. It suffices to say it is sufficiently comprehensive to include the appellees, as materialmen and day laborers furnishing teams and tools and performing day labor. They are therefore entitled to a lien upon the leasehold estate described in the complaint, provided they have proceeded as the law requires to assert their lien.

Section 8 of the act provides: “Except as herein expressly provided, the lien hereby created shall be construed, established, preserved and enforced in like manner, and in the same time as liens of mechanics are now construed, established, preserved and enforced, provided that, where the labor performed, or material, supplies or machinery furnished was under an open, running account, the same shall be construed as a continuous contract, and the time within which the verified statement of the claim for lien shall be filed with the clerk of the circuit court shall be computed from the time upon, which the last labor was in good faith performed.”

The mechanics’ lien law (§ 6922, C. & M. Digest) is linked by § 8, supra, to the act under review as the method prescribed for the establishment and enforcement of the liens, except as in act No. 615 otherwise expressly provided. The mechanics’ lien law makes it tlie duty of every person who wishes to avail himself of the act to file, with the clerk of the circuit court of the county where the property is situated upon which lie wishes to have a lien fixed, a just and true account of the demand due or owing1 to him, after allowing all credits, and containing a description of the property to he charged with the lien, verified by affidavit. In order to preserve a lien, this account must be filed within ninety days after the last item of the materials furnished or work or labor performed. See Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999, and cases there cited.

The appellees did not file any claim for a lien with the clerk of the circuit court, as required by § 6922, supra, nor did they institute their action within ninety days after the last item of labor ivas performed by them. The latter step would have been sufficient to cure the failure to file their claim as required by § 6922, supra. See Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426, 188 S. W. 1187.

The learned trial .judge found that the claims were not filed within the ninety days prescribed, but he was of the opinion that the appellees had eight months in which to perfect their liens under the labor lien law. Section 6862, C. & M. Digest, provides as follows: “Proceedings under this act shall be commenced within eight months after the work is done.” But the Legislature saw proper, by the act under review, under the' eighth section above quoted, to prescribe that the liens created by that act in favor of laborers on property therein described should be “established, preserved and enforced in the same time as liens of mechanics are now construed, established, preserved and enforced.” The appellee sought to enforce their liens given them under Act No. 635, and not under § 6862 of C. Sc M. Digest. These liens are creatures of statutes, and they must be perfected and enforced according to the statutes under which they are created. Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327, 52 L. R. A. (N. S.) 870.

The appellees did not make tlie contractor a party lo the action, nor did they give the appellant ten days’ notice of the action, as required by § 6917, C. &• M. Digest. The appellees therefore are neither entitled to a lien nor to a personal judgment against the appellant. See Simpson- v. Black Lumber Co., 114 Ark. 464, 172 S. W. 883.

The decrees are therefore reversed, and the causes are remanded with directions to enter a decree dismissing the complaint and interventions for want of equity.


text:
    Huff v. Cunningham.
    Opinion delivered October 10, 1927.
    Highways — Road improvement districts. — Since Acts Sp. Sess. 1923, p. 42, § 26, relating to road improvement districts, was expressly repealed by Acts 1927, p. 18, § 2, held that proceedings by certain improvement districts, created under such repealed law, looking toward completion oí improvement for which they were created, were void.
    Appeal from Pulaski Chancery Court; Frank IT. Dodge, Chancellor;
    reversed.

      Charles Jacobson, for appellant.

      J. W. House, and John D. Shackleford, for appellee.
   Wood, J.

Separate actions were brought in the Pulaski Chancery Court by the appellants against the appellees. One of the appellants alleged that he was a taxpayer and owner of property in Improvement District No. 11 of Pulaski County, and the other appellant alleg*ed that he was a taxpayer and owner of property in Improvement District No. 12 of Pulaski County, Arkansas. The complaints are similar. It is alleged that each of the districts was created according to law on January 3 2, 1926; the allegations set forth the procedure in the respective districts, showing- that they were so created. After the above allegations, each of the complaints contains the following:

“Plaintiff further says that on the 23d day of May, 1927, the county court made an order appointing Hugh 17. Carter as engineer for the district, a copy of which order is hereto attached, marked Exhibit E, and made a part hereof. Plaintiff further says that on said 23d day of May, 1927, the said Hugh R. Carter filed plans, specifications and estimates of the cost of construction to he made in said district, same being a county road and not a part of the State Highway system, which plans were approved by the State Highway Engineer, and same filed in the office of the State Treasurer, as required by law, a copy of which estimate is hereto attached, marked Exhibit F and made a part hereof. And that the said Hugh R. Carter on said date attached to said estimate his affidavit, that said estimate was a true and correct estimate of the cost of improvements for said district, a copy of which affidavit is hereto attached, marked Exhibit Gr, and made a part hereof.
“And also on the 23d day of May, 1927, the commissioners for said district attached to said estimate their affidavit, setting’ forth that the estimate of the cost of said improvement was true and correct, a copy of which affidavit is hereto attached, marked Exhibit H, and made a part hereof. Plaintiff says that, upon the filing of said' estimate, together with the plans and specifications for said improvement, together with the affidavits of said engineer and the commissioners of said district, as above set out, the court made an order approving said plans, specifications and estimate, and pledging the county to the payment of fifty per cent, of the cost thereof, and appointing assessors for said district to assess the benefits to the land in said district arising from said improvements, a copy of which order is hereto attached, marked Exhibit “I,” and made a part hereof.
“Plaintiff further says that the assessors heretofore appointed by the court to assess the-benefits to the land in this district, on account of said improvement, filed their report with the county court on the 15th day of June, 1927. That a day was'fixed by the court for a hearing on said assessments, and that the county clerk published notice of said hearing, pursuant to the order of the county court, fixing the 29th day of June, 1927, as the day for said hearing, a copy of which order is hereto attached, marked Exhibit J, and made a part hereof.
“Plaintiff further says that, if said order is made approving’ the assessment of benefits to the land.in the district, the commissioners will then proceed to adopt a resolution authorizing the issuance of bonds and will proceed to issue said bonds and advertise same for sale; that the bond issue will be for the amount of $72,500 in District No. 11 and for $52,000 in District No. 12, and that they will pledge the revenue derived from the districts in payment thereof. That said commissioners have incurred considerable expense, which the taxpayers in said districts will be called upon to pay if not prevented by an order from this court.
“Plaintiff says that the formation of said district is unlawful and void: (1). Because the formation of said district is not authorized by law. (2). Because the county court has no authority to pledge fifty per cent, of the cost of construction of said road to be paid by the county for said improvement. (3). Because the Legislature of the State of Arkansas, on the 4th day of February, 1927, passed Act No. 11 of said session, by which all laws authorizing the formation of districts for road .improvements are repealed. (4). Because, by said act No. 11 aforesaid, the State of Arkansas has taken over all road improvements, thus nullifying the right to form districts, or make improvements in those already formed, or the county court to pledge a part of the cost of the construction .thereof.
“Wherefore, the premises considered, plaintiff prays the court for a temporary restraining order against the defendants to prevent them from further proceeding’ in this matter, and that, upon a hearing by the court, said restraining order be made perpetual, and for all other and proper relief.”

To ‘each of the above complaints exhibits were filed setting forth the steps that had been taken in the creation of the districts and all procedure had before the county court with reference thereto to the time of the filing’ of the complaints. The appellees filed demurrers to the complaints, alleging that they did not state facts sufficient to constitute a cause of action. By consent of parties, the causes were consolidated for a hearing and were heard upon the demurrers to the complaints. The court sustained the demurrers. The appellants stood upon their complaints, and the court entered a decree dismissing the complaints on the ground that they failed to state a cause of action. From that decree is -this appeal.

Section 26 of act No. 5 of the Acts of the Special Session of the General Assembly of 1923, commonly known as the Harrelson Law, is as follows:

“It is declared to be the policy of the State that, in the future, road improvement districts which, at the time of the passage of this act, shall not have made any construction contract or issued any bonds, shall not undertake the improvement of public roads in their respective districts where more than 50 per cent, of the construction costs of the improvement, plus the interest on borrowed money or bonds, and the cost of extending and collecting taxes and such other administrative expenses as may be allowed by law, shall be collected from the lands in the district; and, to accomplish this result, no road improvement district hereafter formed and no road improvement district heretofore formed under general law or created b}r special act, in which no construction contract has been let at this time, or in which no construction work has actually been done, or in which no bonds have been sold, shall issue any bonds mitil a careful estimate of construction costs of the improvement has been prepared by the commissioners and engineei's of the State Highway Commission or the district, and certified by the affidavit of a majority of the board of commissioners and the engineer, and approved by the State Highway Engineer, and filed in the office of the State Treasurer. Such estimated cost shall contain an estimate of the actual construction cost. On the filing- of such estimate the State Treasurer shall record it in one of the record books in his office. If there has been or may thereafter be allotted to such district State or Federal aid funds equal to fifty per cent, of such estimate, or if the county court in which such district is situated shall allot such district sufficient county funds, payable in the ensuing year, sufficient in therúselves, or when added to allotted State or Federal aid, or cash contributions from other sources certainly available, sufficient, in the aggregate amount, to equal at least fifty per cent, of such estimated construction cost, the commissioners of the district may issue bonds in an amount not to exceed fifty’' per cent, of the estimated cost, as shown by the estimate filed with the State Treasurer; provided, however, that, if the said proposed improvement is not of a State Highway, and should it be ascertained afterwards that the work cannot be completed within such estimated cost, or, because of unforeseen contingencies, the completion of the improvement will cost exceeding such estimate, the commissioners of the district may issue additional bonds for such part, or all of the excess cost, as may be necessary, if a majority in number of the landowners in fee simple in the district, voting at an election to be called and held in the manner and after the procedure set forth in § 25 of this act, are in favor of the completion of the improvement. Any commissioner or engineer who shall willfully make or sign any false estimate of cost for filing with the State Treasurer shall be guilty of perjury, and shall be punished accordingly. It is made plain that this section and § 25 do not apply to districts that have done part of the work of improvement and the -work is unfinished, or have outstanding construction contracts or bonds, but such districts may complete their work of improvement without being- affected by this section or § 25 of this act. ’ ’

Section 2 of act No. II of the Acts of 1927, commonly known as the Martineau Law, is as follows:

“ Sections 21, 22, 23, 24, 25, 26, 27, 28, 29 and 32 of act No. 5 of the Extraordinary Session of the Forty-fourth General Assembly of the State of Arkansas, approved October 10, 1923, with all amendments thereof, are hereby repealed.”

Act No. 11 was passed February 4,1927. The allegations of the complaints and the exhibits thereto show that on the 23d day of May, 1927, the county court of Pulaski County proceeded, under the supposed authority of § 26 of the Harrelson Law, to appoint an engineer for the districts and to receive his estimate and the estimate of the commissioners of the cost of' the construction work contemplated by the districts, and to approve the same. The allegations of the complaints further show that, after approving the plans and specifications and estimates of the cost of the improvements made by the engineer and commissioners of the districts, the county court proceeded to order and adjudge that the county pledge and allot to the districts fifty per cent, of the estimated cost of the improvement, to be paid out of the county funds within a year, and to appoint assessors to assess the benefits. The allegations of the complaints further show that the assessors filed their report of the assessment of benefits and that the court fixed a day for the hearing of any objection by property owners to the assessments. The complaints further alleged that, if the court approved the estimate of benefits, the commissioners would proceed to issue bonds and cause the improvement to be made.

Counsel for the appellees conceded that these districts were established under the Harrelson Law. Such being the case, after the express repeal of § '26 of the Harrelson Law, supra, by § 2 of the Martineau Law, supra, the county court and the commissioners are without authority to proceed under § 26 of the Harrelson Law to make the improvement. Even though the districts be still a corporate entity and be not abolished by the repeal of § 26 of the Harrelson Law, nevertheless they cannot invoke that -section as authority for their procedure to make the improvement, for the' reason that the repeal of that statute blotted it out of existence. The contention that, since the Legislature did not expressly'abolish Districts Nos. 11 and 12, therefore they would have a right to proceed under the law that existed when the district was established, is wholly unsound. These districts cannot proceed to make any improvement not bottomed upon the authority of a statute in existence when the improvement is sought to be made. Therefore all the procedure of the county court looking to the completion of the improvement for which these districts were created under the supposed authority of § 26 of the Harrelson Law, supra,.after that section had been repealed, is absolutely null and void.

Learned counsel for the appellees contend that, notwithstanding the repeal of § 26, supra, the commissioners of the districts still have the right to proceed to issue bonds to make these improvements to the extent of fifty per cent, of the cost of the construction thereof, invoking § 26 as authority for such contention. As we have already stated, this contention is without merit. It is unnecessary for us in this case to go further than to hold that, since the passage of the Martineau Law repealing § 26 of the Harrelson Law, supra, no improvements can be made under the authority of that section. The chancery court therefore should have overruled the demurrers to the appellants’ complaints and granted them the permanent injunction prayed therein. (See note below).

For the error indicated the decrees are reversed, and the causes are remanded with directions to overrule the demurrers and to enter a decree awarding tlie appellants the relief prayed, and for such other and further proceedings as may he necessary according to law and not inconsistent with this opinion.

(Note). What we have stated above has no reference whatever to road improvement districts that are proceeding to make their improvements under the special statutes creating them. These road improvement districts created by special statutes independent of the Mar-tineau Eoad Law and that are not a part of the highway system under that law are expressly recognized and authorized to proceed to make their improvements under Act No. 238 of the Acts of 1927.


author: Smith, J.

text:
    McLain v. Sprigg.
    Opinion delivered October 10, 1927.
    1. Executors and administrators — presentation op judgment to administrator’s executors. — Where the circuit court tried do novo an appeal from the probate court relative to the accounts of a deceased administrator, and rendered judgment against his estate, pursuant to Crawford & Moses’ Dig-., §§ 43-45, it was not necessary to the validity of such judgment that it be presented to the administrator’s executors, nor referred to the probate court for allowance and classification, as provided by § 97.
    2. Executors and administrators — conclusiveness of judgment against administrator’s executors. — Where the circuit court, on appeal from the probate court, on the question of an administrator’s liability to his decedent’s estate, rendered judgment agiainst his estate, such judgment was conclusive, requiring1 no certificate to the probate court, as the judgment directed should be done, so as to enable decedent’s personal representatives to assert any offsets that they might have against the judgment, since such defenses should have been interposed in the suit for accounting.
    Appeal'from Jackson Circuit Court; 'Dene II. Coleman, Judge;
    affirmed.

      Gustave. Jones, for appellant.

      Edwin, L. Boyce and Ira J. Mach, for appellee.
   Smith, J.

Appellee Sprigg, as the administrator in succession of the estate of John Nevin, deceased, brought suit in the Jackson Circuit Court against the executors of the estate of TV. 1). McLain, and for his cause of action alleged the following facts:

John Nevin died November 6, 1920, -and McLain was appointed administrator of his estate, and served as such until his death, which occurred October 15, 1921. His bond as administrator was made by the American Surety Company, and tliat company was joined as a defendant. In June, 3922, the executor of McLain’s estate filed a final settlement and account of the administration of the Nevin estate by McLain. To this account and settlement exceptions were filed by certain creditors of-the Nevin estate, and, from the judgment of the probate court pronounced thereon, an appeal was prosecuted to the circuit court, where there was a trial ele novo on these exceptions, certain of which were sustained, while others were overruled, and the circuit court found that McLain, as the administrator of the estate of Nevin, was indebted to the estate in the sum of $2,042.19. This judgment of the circuit court was rendered on February 2-6, 1925, and it was upon this judgment that appellee, Sprig'g, as administrator in succession of the Nevin estate, brought this suit.

It was further alleged that the executors of the McLain estate, -and 'the surety on his bond as administrator of the Nevin estate, had failed to pay over to the plaintiff, as administrator in succession, the .amount found to be due by the circuit court from McLain to the Nevin estate, and judgment was'prayed therefor.

The judgment here sued on ordered and adjudged that “the amounts due said estate of John Nevin from said administrator, TV. I). McLain, and from the estate of TV. I). McLain, is $2,042.19, and the clerk of this court is hereby ordered and directed to transmit a certified copy of this order and judgment to the probate court of Jackson County for further proceedings in said court consistent with law and this judgment.”

To this complaint a demurrer -was interposed, which was overruled and exceptions saved, whereupon the executors of tiie McLain estate filed an answer, alleging substantially the facts set out above, with the additional allegation that the circuit court judgment above referred to had never been transmitted to the probate court, nor had a certified copy thereof been delivered to McLain’s executors, that there was no judgment of the probate court on the judgment and order of the circuit court. It was also alleged that the judgment in the circuit court had erroneously charged the McLain estate with certain items and had erroneously failed to allow certain proper credits.

To this answer a demurrer was filed and sustained, and, defendants declining to plead further, judgment was rendered, against the McLain estate for the sum sued for, and this appeal is from that judgment.

Appellant insisted that the complaint was demur-rable for the reason that it contained no averment that the judgment of the circuit court against the McLain estate was properly authenticated, -nor presented to the executors, nor allowed and classed by the probate court, as required by § 97, C. & M. Digest.

This, however, was not necessary. The judgment sued on was not rendered against the deceased in his lifetime. The judgment here sued on was rendered in an appeal from the probate court, in a proceeding which was intended to adjudicate the liability of McLain to the estate of which he was administrator, and, in such a proceeding, it was the duty of the circuit court to try the case cie novo and to render a final judgment, and the judgment thus rendered did not require probation to give it validity as such.

Section 43, C. & M. Digest, provides that, if an executor or administrator shall die, resign or be removed, or for any cause shall cease to be the executor or administrator before the estate has been fully administered and settled, another executor or administrator shall be appointed to complete the administration and settle the estate. Section 44, C. & M. Digest, provides that the preceding executor or administrator shall account for and turn over to the executor or administrator in succession all money or property, administered or unadministered, remaining in his hands, and not before accounted for, and, for this purpose, may cause such former executor or administrator to be notified to appear in the probate court to make settlement. Section 45, 0. & hi". Digest, reads as follows:

“II.' the sum i'ouud duo upon settlement is not paid, tlie executor or administrator in succession shall sue the former executor or administrator and his bondsmen therefor, or any of them, or, if such former executor or administrator be dead, he may sue his personal representatives and bondsmen, or any of-them, and shall recover the full sum found due, with interest and costs.”

The judgment here appealed from appears to have been rendered on a .judgment recovered pursuant to the section last cited, and, liability having been thus determined, it was not necessary to have the same issues again adjudged.

In the cáse of Wilson v. Hinton, 63 Ark. 145, the facts were as follows:

Wilson was appointed administrator of the estate of Vital Lesea, and, after taking possession of the assets of. the estate, died without having been discharged. Hinton was appointed administrator in succession, and commenced proceedings in the probate court against the administrator of Wilson’s estate to recover assets of the Lesea estate. The administrator of Wilson’s estate filed a response, denying the right of the administrator in succession to call him to account. The cause was heard in the circuit court on appeal, where the circuit court restated the account, as was done in the instant case, and the circuit court adjudged the balance due from Wilson, and ordered his administrator to pay that sum to the administrator in succession, and an appeal was prosecuted from that judgment to this court. The similarity of the cases is therefore apparent.

Wilson’s administrator defended upon the ground that he had not received the assets for which the administrator in succession sued, and this court held on the appeal that this was no defense to the petition for a settlement, as the object of the proceeding was hot to determine whether the personal representative of Wilson had received the money, but whether it was due from the estate of his intestate. The Supreme Court cited the sections of the .statute above referred to, and there said:

“Cases on appeal from the probate court are tried by the circuit court de. novo. The contention of the appellant that the circuit court should have reversed the judgment and remanded the case for a new trial in the probate court cannot therefore be sustained. San. & H. Dig. § 1152.” Grider v. Apperson, 38 Ark. 388. “The probate court refused to compel the personal representative to make settlement for all the money and property due from the estate of the deceased administrator to the estate of Vital Lesea, but only compelled him to settle for so much of the assets of the estate of Vital Lesea as had come to the hands of such personal representative. It was therefore proper, on the hearing’ de novo on appeal, for the circuit court to make such order as the probate court should have made, the circuit court having on such trial the power of the probate court.”

Appellants here say that the judgment of the circuit court should have been certified to the probate court, as the judgment directed should be done, and thus enable the personal representatives to assert any offsets they might have had against that judgment, and that they were in fact entitled to such offsets, which they could and would have asserted in the probate court, among these being certain uncollected demands due the Nevin estate, which the judgment of the circuit court charged into the account as restated.

Upon this question it suffices to say, if the administrator in succession sought to charge worthless demands into the account, that defense should have been interposed in the suit for accounting. This liability was adjudicated in the judgment here sued upon, and appellants are concluded thereby.

The judgment of the circuit court appears to be cor rect, and is therefore affirmed.


text:
    Arkansas Railroad Commission v. Bovay.
    Opinion delivered October 10, 1927.
    Bridges — authority op railroad commission to regulate tolls.— Under Const. 1874, art. 7, § 28, the Railroad Commission is without jurisdiction to hear a petition to regulate and fix tolls of bridges not alleged to have been taken over as part of the State Highway System, such jurisdiction being vested in the county court; Acts 1919, p. 411, as amended by Acts 1921, p. 177, not conferring such jurisdiction on the Commission.
    Appeal from Pulaski Chancery Court; Frank II. Dodge, Chancellor;
    affirmed.

      II. W. Applegate., Attorney General, and John L. Carter, Assistant, for appellant.

      George M. Gibson and Charles B. Thweatt, for appel-lee.
   Smith, J.

This case originated in the Pulaski Chancery Court on a bill for an injunction against the Arkansas Railroad Commission to restrain that body from hearing a certain petition filed before it by J. C. Childers, county judge of Lawrence County, and other persons, asking the Commission to regulate and fix the tolls to be charged on a certain toll bridge spanning Black River, on State Highways Nos. 63, 67 and 25, at Powhatan, Lawrence County, Arkansas, on the grounds that the schedule of rates fixed in the franchise under which the bridge was constructed is excessive and discriminatory, and that the county court of Lawrence County had no .jurisdiction to fix the schedule of rates at the time it attempted to do so, as the Railroad Commission had sole jurisdiction of the subject-matter, and still has, under act 571 of the Acts of 1919 (General Acts 1919, page 411) and act 124 of the Acts of 1921 (Acts 1921, page 177),' respectively. Attached to the complaint as an exhibit thereto was the order of the county court granting the franchise to erect the bridge and to collect tolls thereon, the various items of which were specified. There was a provision in the franchise whereby the named tolls might be increased, if they were unremunerative, or, on the other hand, might be reduced if they were excessive.

Notice was given by the Railroad Commission that a hearing would he had on the petition addressed to it asking- a reduction of the tolls, and the holders of the franchise appeared before the Commission and made objection to the hearing, on the ground that the Commission was without jurisdiction, which motion was overruled, whereupon this suit was begun to enjoin the Commission from proceeding-.

A demurrer to the complaint was filed, which was overruled, and, the Commission refusing to plead further and electing to stand on the demurrer, the court entered an order restraining and prohibiting the Railroad Commission from hearing the petition for a reduction of tolls and from assuming any jurisdiction over or making any order regulating tolls on said bridg-e. The Railroad Commission excepted to this order, and was granted an appeal to this court. The matter is now before us on a writ of certiorari which issued out of this court.

The pleadings in the case raise the question of the jurisdiction of the Railroad, Commission to regulate the tolls upon the bridge in controversy. It is the contention of the Commission that it has this jurisdiction, uncle]- the acts of the General Assembly above referred to, and that the recent opinion of this court in the case of Fulton Ferry & Bridye Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, is a recognition of this jurisdiction.

The act of 1919 was amended by act 124 of the Acts of 1921, entitled "An act to amend act No. 571 of the General Acts of the State of Arkansas for the year 1919, entitled 'An act to create the Arkansas Corporation Commission and to define its powers and duties,’ approved April 1, 1919, and to regulate public utilities and public service corporations, and for other purposes.”

The Commission asserts its jurisdiction to act under subsection (A) of § 5 of the act of 1921, which provides that "the jurisdiction of the Commission shall extend to and include all matters pertaining to the regulation and operation of (A) * * * toll bridges, ferries * *

This identical section of the act in question was construed by this court in the case of Gray v. Duffy, 152 Ark. 291, 238 S. W. 60. The county court of Independence County entered an order fixing the rates of the tolls for the ferries in that county, and attempted to enforce these orders, whereupon certain citizens of that county brought an action in the chancery court to restrain the county judge from attempting to enforce the orders. A demurrer to this complaint was overruled, and the court made perpetual a temporary restraining order issued at the commencement of the action. In the opinion on the appeal it was said that: “The main question in the case is whether or not the power to fix ferry tolls is vested in the county court by the Constitution, or in the Railroad Commission by the recent statute creating that Commission. (Act 124, Acts 1921, p. 177).”

It was there contended that article 7, § '28, of the Constitution of 1874, which provides, “county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants,” etc., related only to jurisdiction to establish ferries, and left the Legislature free to provide any agency it saw fit to regulate rates, but, in answering this contention, it was said:

“We do not agree to this interpretation of the constitutional provision, which in plain terms confers jurisdiction on the county court £in all matters relating to county taxes, roads, bridges, ferries,’ etc. This undoubtedly includes the regulation of ferry rates, because it is a part of the control of ferries. It was the plain purpose of the framers of the Constitution to place within the jurisdiction of the county court all control and regulation of ferries. The jurisdiction was exercised by the county court without objection in the case of Covington v. St. Francis Co., 77 Ark. 258, 91 S. W. 186.”

The decree of the chancery court was reversed, and the cause remanded with directions to sustain the demurrer to the complaint.

That case is exactly in point here, as the word “bridges” immediately precedes the word “ferries” in the section of the Constitution quoted.

The doctrine of that case was expressly reaffirmed in the case of White River Bridge Co. v. Hurd, 159 Ark. 652, 252 S. W. 917, which case involved the toll to be charged on a bridge instead of a ferry, as in the present case, and it was there said:

“Under article 7 of § 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 county courts have exclusive jurisdiction of the matter of building bridges over watercourses. The Legislature might authorize 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 when it might be deemed necessary for the public convenience and too burdensome to be constructed by general taxation. Wright v. Norris, 43 Ark. 193; Gray v. Duffy, 152 Ark. 291, 238 S. W. 60.”

Appellant insists that the recent case of Fulton Ferry & Bridge Co. v. Blackwood, supra, is a recognition of the authority of the Legislature to create an agency which may regulate tolls on bridges which are a part of the highway system, and that the Railroad Commission is such an agency and has had conferred upon it that jurisdiction.

The complaint here under review does allege that the bridge in question supplies a link in certain highways, which had been designated as State highways, but it does not allege that the bridge has ever been taken over as a part of the State Highway system. The allegations are to the contrary, their purport being that certain persons are m charge of the bridge and are operating it as such under the franchise authorizing them so to do, and that petitioners before the Railroad Commission allege that tliese private persons are charging excessive tolls, which the petitioners seek to have reduced.

The Fulton Ferry & Bridge Company case, supra, does hold that it is within the power of the Legislature to grant to the State Highway Commission, or to any other State agency, the right to enter upon, take over, construct, improve and repair any existing public highway as a part of the State Highway system, and to construct, maintain and repair any bridges thereon, so long as it does not involve the levying of a tax on the general public for such purpose, and that a bridge may he taken over and incorporated into the State Highway system, although it was erected under a franchise from the county court, upon making compensation for any property so taken.

We have here no such proceeding. There is no attempt to take over the bridge and incorporate it into the State Highway system. On the contrary, the attempt is on the part of an agency of the State to exercise a jurisdiction vested in the county court, which cannot he done, according to the decisions of this court in the case of Gray v. Duffy and White v. Hurd, supra.

Appellee also insists that act 135 of the Acts of 1927 (Acts 1927, p. 452) repeals, by implication, so much of the act of 1921 as attempts to confer jurisdiction on the Railroad Commission to fix and regulate tolls on bridges, but, as we have concluded that the power was never in fact conferred on the Railroad Commission, it will not be necessary to consider any effect accomplished by the act of 1927.

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


author: Humphreys, J.

text:
    McGinnis v. Gailey.
    Opinion delivered October 10, 1927.
    1. Licenses — authority to collect motor vehicle license tax.— The Harrelson Road Act (Acts Ex. Sess. 1923, p. 66), § 44, imposing' the duty on the sheriff as “ex officio collector,” to collect motor vehicle license taxes, being 'ambiguous as to whether the sheriff or the county collector, whose offices in Benton County were separated by Acts 1907, p. 313, shall collect them, must be read in connection with §§ 40-43 of 1923 act to determine the Legislature’s intention.
    2. Statutes — intent op lawmakers. — In interpreting statutes, the intent of the lawmakers is the object to be attained.
    3. Licenses — duty of sheriff to collect motor vehicle license TAXES. — 'The Harrelson Road Law (Acts Ex. Sess. 1923, p. 66), § 44, requiring the sheriff whose office was separated from that of the county collector in Benton County, .by the Acts of 1907, p. 313, to collect the motor vehicle license taxes as “ex officio collector,” imposes such duty on the sheriff, not on the county collector, though the former is no longer “ex officio collector,” in view of §§ 40-43 of 1923 act, and Acts 1924, p. 24, which was enacted to clarify ambiguity, and not to change the collecting-officers.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Rice & Rice, W. D. Maude and Homer Pearson, for appellant.

      Vol. T. Lindsey and Duty & Duty, for appellee.
   Humphreys, J.

This is an appeal from a judgment dismissing appellant’s complaint, after sustaining a demurrer' thereto, because it failed to state a cause of action against appellee. The suit was brought by appellant, collector of Benton County, to recover from appellee, sheriff of said county, $3,325 received as a commission for issuing to and collecting license fees. from owners and operators of motor vehicles, during the period beginning January 1, 1925, continuing- until the institution of the suit. Appellant contends that it was his duty under the law to issue and collect for licenses to operate motor vehicles in said county, and that appellee issued and collected them without authority. Appellant relies. as a basis for Ms suit, upon § 44 of act No. 5 of the Extraordinary .Session of the General Assembly of 1925, known as tbe Harrelson Road Law,- which reads as follows:

“The duties required by this act of sheriffs in the collection, accounting for and paying oyer motor vehicle license taxes, are duties to be performed by them in their capacities of ex-officio collectors of all taxes in their respective counties, and their respective official bonds as such collectors shall be liable for the faithful performance of such duties and for truly accounting for and paying over all such license taxes; provided, where ' such sheriffs, as ex-officio collectors, permit the operation in their counties for a period of thirty days of motor vehicles without licenses, the amount of said license shall be chargeable to said sheriff, paid by him, and his bond liable therefor. Where said sheriff knowingly and willfully permits the operation of motor veMeles for a period of thirty days without collecting said license or making arrest for violation thereof, the said sheriff shall be guilty of a misdemeanor, and, in addition to the penalty provided therein for like misdemeanors, shall be liable to removal from office.”

His contention is that the offices of sheriff and collector in Benton County were separated in 1907 by act of the Legislature, and that the sheriff was not ex-officio collector during the period he collected for said licenses, and had no right to collect for them, under § 44 of said act. In other words, appellant’s contention is that § 44 authorized him, as collector, to issue and collect for said licenses. The section imposes the duty upon the sheriff, as ex-officio collector, to issue and collect for them. As a matter of fact the collector (appellant) was not ex-officio collector at the time, any more than the sheriff was. He was the collector of said county, and not the ex-officio collector thereof. As the section in question is ambiguous when read alone and literally, in order to arrive at the intention of the Legislature it will be necessary to read the section in connection with the preceding sections relating’ to tlie collection of said licenses. Section 40 of said act reads as follows:

“It shall be the duty of the Commissioner of State Lands, Highways and Improvements to furnish, on or before January first of each year, to the sheriffs of the various counties of this State, application blanks for the registration of motor vehicles. Said application blanks "shall be prepared in such form as may appear to the Commissioner of State Lands, Highways and Improvements to be necessary to properly carry out the provisions of this act, and said blanks shall bear serial numbers. 'The Commissioner of State Lands, Highways and Improvements shall charge to each sheriff the application blanks furnished to him in the same manner as poll-tax receipts, are now charged to sheriffs by the Auditor of the State. On or before December 31 of each year each sheriff shall return to the Commissioner of State Lands, Highways and Improvements all application blanks which he may have on hand which have not been issued, and the Commissioner of State Lands, Highways and Improvements shall charge each sheriff the sum of thirty-five dollars ($35) for each unused application blank not returned or accounted for. There shall be printed upon such application blank a receipt to be filled in and signed by the sheriff of the county.”

Section 41 of the act provides that any person required to register any automobile, truck or other motor vehicle shall determine the fees required for such vehicle and shall pay to the sheriff in the county in which he shall reside the fee required by this act, whereupon the said sheriff shall execute the receipt printed upon said application blank and shall deliver such blank to such applicant. The sheriff of each county shall retain for service, in addition to his salary, thirty-five cents out of each license fee collected by him. The sheriff shall appoint such number of deputies as may be approved by the county court, whose duty shall be to assist in the enforcement of highway regulations and police rural roads.

Section 42 provides that it shall be the duty of each sheriff to pay into the State Treasury, to the credit of the State Highway fund, all moneys received' by him under the provisions of this act, less the amount authorized to be retained by him, within thirty days after its collection.

Section 43 provides that, when the sheriff returns unused application blanks to the Commissioner, he shall issue a complete statement showing the number of applications received by him, the amount of fees received for each, and the Commissioner shall determine from such report whether or not the sheriff has properly accounted for and paid over the proper amount of money, and, if he failed' to do so, he shall notify such sheriff, and the Attorney General shall bring suit against the sheriff for the recovery of such money so due. It provides further that the sheriff of each county collecting the registration license fees shall file quarterly reports with the Highway Commissioner of all applications used by him, showing the number of applications and the amount received for same.

It will be observed throughout that the Harrelson Act authorizes the sheriff to issue and collect for the licenses, unless § 44 thereof forbids him from doing so and imposes the duty upon the collector. Even § 44 imposes the duty upon the sheriff, but in the capacity that neither he nor the collector possesses, because the offices of sheriff and collector had been separated by an act of the Legislature. This section can be reconciled with the other sections of the act referred to above by treating the language fixing the capacity in which the sheriff should act, as surplus-age, and this is the only way to reconcile the various sections of the act and leave a workable method for issuing and collecting for the licenses.

In interpreting statutes the inteut of the lawmakers is the object to be obtained. When §§ 40, 41, 42, 43 and 44 of said act are read together it is quite apparent that the Legislature intended for the licenses to be -issued by the sheriff and collected for by him. The same Legisla ture that passed the Harrelson Road Law, at a special or called session, discovered tlie ambiguity in tbe Harrelson Act and attempted to remedy it by enacting’ tbe following law:

“An act to amend § 21 of act No. 5 of tbe extraordinary session of tbe General Assembly of the State of Arkansas, approved October 10, 1923, by changing tbe classification of Lafayette County from class G to class D for tbe distribution of certain road funds to tbe various counties.
“Be it enacted by tbe General Assembly of tbe State of Arkansas:
“Section 1. That tbe fifth paragraph of § 21 of act No. 5- of tbe extraordinary session of tbe General Assembly of tbe State of Arkansas, approved October 10, 1923, be amended to read as follows: ‘The counties whose portion is to be used in tbe ratio of 50 per cent, for tbe county highway improvement fund, are as follows: Class D, Carroll, Cross, Faulkner, Jackson, Newton, Saline, Stone, Howard, Washington, White and Lafayette counties.’ That tbe eighth paragraph of said % 21 of said act No. 5 be amended to read as follows: 'The counties whose portion is to be used exclusively for tbe county highway improvement fund are as follows: Class G-, Bradley, Calhoun, Clay, Cleburne, Crawford, Fulton, Grant, Craighead, Greene, Hot Spring, Lee, Logan, Marion, Miller, Mississippi, Nevada, Ouachita, Pike, Scott, Sebastian, Sharp, "Onion, Lincoln and Benton counties.’
“Section 2. This act involving necessary functions and expenses of State Government, and being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this act shall take effect and be in force from and after its passage.- Approved April 9, 1924.”

It is contended that the amending act just quoted is void because not one of the subjects included in the. Governor^ call for the special session. Without deciding that question, the act indicates very clearly that the Legislature intended in the Harrelson Act to impose the duty of issuing and collecting for State licenses upon the sheriff. The purpose of the amendment was to clarify the ambiguity existing in the Harrelson Act and not to change collecting officers.

No error appearing, the judgment is affirmed.


text:
    Dashko v. Oil Fields Corporation.
    Opinion delivered October 10, 1927.
    Appeal and error — approval of master’s report — cross-appeal.— On appeal from a decree approving a master’s report disallowing claims against appellee, a cross-appeal by appellee presents nothing for consideration, in the absence of exceptions to the master’s report or error on the face of the decree.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Powell, Smeacl S Knox, for appellant.

      Albert L. Wilson, for appellee.
   Humphreys, J.

The original appeal in this case is from the decree of the chancery court of Ouachita County, Second Division, approving the master’s report disallowing appellant’s claims against appellee and in dismissing their intervening petitions for want of equity. The cross-appeal is from the decree approving the master’s report disallowing appellee’s claims against appellants in accordance with the prayer in its response and cross-complaint to the intervening petitions of appellants. The suit in which appellants filed intervening petitions was brought by Frank W. Lowe against G-ordon Ingalls, Gordon Ingalls, trustee, Gordon Ingalls, trustee for Kosse Mutual Ownership Pool (Richard Rader Mineral Deeds Syndicate), Gordon Ingalls, trustee for Robert E. Miller Mineral Deed Syndicate, and appellee, the Oil Fields Corporation, to -recover about a million and a half dollars alleged to have been furnished by Frank W. Lowe and his associates to Ingalls, Dashko, Forbes, and other syndicates, to purchase oil and gas leases, charging that they used only a part of the money to purchase leases, fraudulently appropriating the greater part thereof to their own uses. He prayed that a receiver be appointed to take charge of the propert}^ in possession of the Oil Fields Corporation, which had taken over the properties of the several syndicates, and that same be sold and disbursed among the investors.

Upon the filing of the complaint, J. H. Meek of Camden, Arkansas, was appointed receiver to take charge of the property of the defendant, the Oil Fields Corporation, the property of the other defendants having been previously conveyed to the Oil Fields Corporation.

The Oil Fields Corporation filed an answer, setting up a merger agreement by which the properties of the syndicates made defendants in the case were acquired by and duly assigned to the Oil Fields Corporation. It prayed that the transfers be upheld as valid and that the property taken over by the receiver be turned back to it.

The intervening petition of T. B. Novick was for $5,751.85, based upon an alleged exchange of one complete drilling rig and double set of standard cable tools, valued at $14,676.31, for one standard rig and string of tubing and casing and other items of credit, valued at $8,944.46, as per itemized account attached as an exhibit. He prayed .judgment in the sum of $5,751.85, together with interest thereon at the rate of 6 per cent, per annum, and that his claim be allowed to take precedence over the claims of unit-holders and stockholders whose interests are or may be asserted herein, and that the receiver be authorized, empowered and directed to pay said claim.

The intervening petition of J. S. Dashko was for $21,956.90, based upon itemized statements attached as Exhibits W, A, B, C, D, E and F, representing rentals on drilling rigs, promissory notes, checks, salary, and money advanced to pay certain items of expense. He prayed for judgment in the sum of $21,956.90, together with interest thereon at the rate of 6 per cent, per annum, and that his claim bo allowed to take precedence over claims of all unit holders and stockholders whose interests are or may he asserted herein, and that the receiver herein be authorized, empowered and directed to pay said claim.

Appellee filed an answer to the intervention of T. P. Novick, denying that it owed him any amount.

Appellee also filed an answer to the intervention of J. S. Dashko, denying’ that it owed him anything, and, by way of estoppel, interposed a merger bulletin issued by J. S. Dashko, at the time the syndicates assigned their respective properties to appellee, tó the effect that the only indebtedness of appellee was $5.37 on an outstanding check.

Appellee also filed a supplemental answer and cross-complaint to the interventions of both T. P. Novick and J. S. Dashko, as follows:

“On June 22, 1925, the Oil Fields Corporation filed its supplemental response'to the intervening petitions of T. P. Novick and J. S. Dashko, in which it charged, in addition to its original response to said intervening petitions, and as a counterclaim against said T. P. Novick and J. S. Dashko, that, on or about the 15th day of February, 1924, the said T. P. Novick and J. S. Dashko, who was the vice president of the Oil Fields Corporation, scheming to defraud this corporation and to transfer to said T. P. Novick, for J. S. Dashko, a large quantity of oil well supplies and material then belonging to this defendant, Oil Fields Corporation, pretended to exchange the drilling rig and tools mentioned in the claim of the said T. P. Novick for said oil well supplies, and material, and placed the value of said drilling" rig and tools at $14,676.31, and received therefor said oil well supplies and material to the amount of $7,898.76, and claimed a balance due from this defendant, Oil Fields Corporation, as stated in the claim of said T. P. Novick, and this defendant alleges that said drilling rig and tools were the property of this defendant, Oil Fields Corporation, and were of the value not to exceed $3,000; that, by pretending that the defendant, T. P. Novick, owned said drilling rig and tools, the said T. P. Novick and J. S. Dashko obtained from tlie defendant, Oil Fields Corporation, said oil-well supplies and material to the amount of $7,898.76, without consideration having been received therefor by this defendant, Oil Fields Corporation. Wherefore it demanded a judgment against said T. P. Novick and J. S. Dashko for $7,898.76, the value of said oil-well supplies and material so obtained, with interest thereon at 6 per cent, per annum from February 15, 1924. ’ ’

A master was appointed to state an account between appellants and appellee, and the cause was heard upon the pleadings, testimony and supplemental report of the master.

In the main case the court rendered a decree, from which an appeal was not taken, in substance as follows:

“On the 27th day of November, 1925, the court made and entered its decree in the main case, finding the issues joined in favor of the Oil Fields Corporation and against the plaintiffs and' all interveners, decreeing all property taken into the custody of the receiver to belong to the Oil Fields Corporation, and ordering it restored to the receiver as of midnight, November 30, 1925, directing .the receiver to assign all of the property to the Oil Fields Corporation and make up his final account.”

The proceedings involved in this appeal are the supplemental report of the special master, the exception filed thereto by appellants, and the judgment overruling the exceptions and approving the master’s report.

Appellee prayed and secured a cross-appeal, but, as he failed to file any exceptions to the master’s report, there is nothing before us for consideration on the cross-appeal, as it does not appear from the face of the report or from the evidence in the cause that it is erroneous. Sections 7161 and 7163, Crawford & Moses’ Digest.

The supplemental report of the master is as follows:

“Comes B.. K. Mason, master herein, and, for his sup-pi omental, report herein, upon the claims of T. P. Novick and J. S. Dashko, statesThat the testimony taken upon ■the interventions of said T. P. Novick and J. F. Dashko is not sufficiently clear and convincing, in the opinion of the master, to justify tlie court in allowing tlie claim of said T. P. Novick or tlie claim of said J. S. Dasliko; and that the testimony tends to show that said Novick and Dashko had and held possession and control of properties and funds exceeding the amounts claimed by them, respectively, and have not made proper accounting’ to show the disbursement and disposition thereof; and that it is uncertain whether a proper stating of account would show the other defendants herein indebted to Dashko and Novick, or would show Dashko and Novick indebted to other defendants herein. Wherefore the master recommends to the court that the claim of T. P. Novick he denied, and that the claim of J. S. Dashko be denied.”

Exceptions filed to the master’s report by appellants are as follows:

“Come T. P. Novick and J. S. Dashko, and file the following exceptions to the report of the master filed in this cause, and state: That said report of the master is contrary to the evidence, contrary to the law, and contrary to both the law and the evidence. That the master erred in holding that the testimony taken upon said interventions is not sufficiently clear and convincing to justify the court in allowing the claims of T. P. Novick and J. S. Dashko; that the master erred in holding the testimony on said claim tended to show that said Novick and Dasliko have held possession and control of properties and funds exceeding the amount claimed by them, respectively; that the master erred in holding that said Novick and Dashko have not 'made proper accounting to show disbursement and disposition of property, and funds in their hands; that the master erred in holding that the evidence failed to show whether said Novick and Dashko were indebted to the Oil Fields Corporation or whether the Oil Fields Corporation was indebted to the said Novick and Dashko; that the master erred in ruling that claims of T. P. Novick and ,T. S. Dashko be denied.”

The judgment of the court overruling the exceptions to the master’s report is as follows:

■“Now on tliis day come Powell, Smead & Knox, and the exceptions heretofore filed to the master’s report on the claim of T. P. Noviek and John Dashko coming on to be heard, the court, after hearing statement of counsel, and being well and sufficiently advised in the premises, is of the opinion that said exceptions should be overruled. It is therefore considered, ordered, adjudged and decreed by the court that the exceptions of T. P. Noviek and John Dashko to the master’s report should be and the same are hereby overruled, and the master’s report is in all things approved by the court.”

We have read the testimony very carefully with a view to ascertaining whether the claims of appellants are bona fide claims. It could serve no useful purpose as a precedent to set-out the testimony, and to^do so would only unduly extend this opinion. Suffice it to say that we have concluded that the claims are fictitious. The decree is therefore affirmed.


author: Kirby, J.

text:
    Moody v. Kahn.
    Opinion delivered October 10, 1927.
    1. Specific performance — bu-rden of proof. — In a suit for specific performance of a written contract for the purchase of a house and for certain construction work on the premises, the burden of proving substantial compliance with the contract by himself is upon the plaintiff.
    2. Evidence — varying written contract by parol. — In a suit for specific performance of a written contract, its terms cannot be contradicted by parol testimony.
    3. Specific performance — modification of contract — burden of proof. — In an action for specific performance of a written contract for the purchase of a house and lot where plaintiff alleged a modification of the contract after its execution, the burden was upon him to prove such modification.
    4. Specific performance — breach of contract. — Where a contract for the purchase of property from plaintiff provided for the construction of a brick veneer garage, construction of the garage partially of stucco held a material breach, so that plaintiff could not, in a suit for specific performance, compel defendant to take the premises and pay for them under the contract.
    Appeal from Pulaski Oliancery Court; W. P. Beard, Special Chancellor;
    reversed.

      T. N. Robertson, for appellant.

      Clayton & Cohn, for appellee.
   Kirby, J.

This appeal is from the decree compelling specific performance of the contract of sale of a certain plot No. 41 in Prospect Terrace Addition to the city of Little Rock, with a two-story brick veneer tile-roof residence, etc., thereon, by appellant.

Appellee brought suit upon the written contract of sale, which provides:

“February 16, 1926.
“Mr. W. F. Moody,
613 A. O. U. W. Bldg., City.
“Dear Mr. Moody: This is to advise that, in the event you purchase from the writer plot No. 41 Prospect Terrace Addition to the city of Little Rock, together with the house erected thereon, for tlie sum of $1.4,750, on terms hereinafter mentioned, I agree to do the following: (1). I will erect two-story brick veneer two-ear garage, with servants’ room, together with appropriate driveway from Edgewood Road. (2). I will install servants’ toilet and washstand and bath in or adjacent to said servants’ room. (3). I will repair all cracks in said house and re-tint the walls, where necessary. (4). A regular Prospect Terrace deed is to be given to you, retaining vendor’s lien for unpaid purchase price, and the agreement is that you are to pay the writer the sum of $4,750, $2,500 in cash and $'2,250 in vendor’s lien notes indorsed by you; balance of purchase price of $10,000 is to be secured by vendor’s lien on said plot No. 41, Prospect Terrace, payable $1,000 per annum, one,.two, three ¡and four years from date, and the balance of $6,000 due five years from date; interest on all the said deferred payments to be paid semi-annually at the rale-of six'per cent, per annum.
“Tours very truly,
(■Signed) “S. L. Kahn.”
“The above conditions are satisfactory, and I here' with accept same, and hand yon my check for the sum of $500 to bind the agreement. .
(Signed) “W. F. Moody.”

The complaint also alleged:

“* * * That, after the execution of said contract, the same was modified, by agreement between the parties, that the plaintiff would place a tile roof on said garage and would be relieved from constructing an entirely brick veneer building, but would make it partially stucco instead of brick, and, in reliance on said agreement, plaintiff did so construct said building. « # # y>

Alleged the full performance of the contract as modified by appellee, the refusal of appellant to comply with its terms, the readiness of appellee to make the conveyance, and tendered a warranty deed and possession, etc.

The appellant filed an answer and cross-complaint; admitted the execution of the written contract exhibited with the complaint, denied any modification thereof, and alleged: “ * * * That, under the terms of the aforesaid contract for the purchase of said plot 41, and before the acceptance of said premises by the defendant, the plaintiff, among other improvements to be made thereon, was to erect a two-story brick veneer building to be used as a two-car garage and servants’ house. That it was the agreement and understanding of the parties that said building was to conform in material, style, and appearance to the said residence on said plot; * * * should be a two-story brick veneer with tile roof, in conformity to the residence erected on said plot of ground. That said building as constructed is materially different from that called for under the contract, and does not conform in material, style, value' or appearance to the residence on the said plot. That said building is in striking contrast in appearance to that of the residence, and destroys the contemplated effect to be produced by a building as contemplated under the terms of the contract.”

Denied that appellant had complied with the terms of the contract or was entitled to specific performance thereof.

The cross-complaint alleged appellants’ purchase of the premises under the written contract, the hind of garage and servants’ house agreed to he erected thereunder, the deposit of $500 with ¡appellant upon the execution of the contract, to he applied on the purchase price upon the completion of the improvement provided for under the contract and acceptance of the premises by appellant. Alleged a breach of the contract by appellant’s refusal to construct the building (garage and servants’ house) as prescribed in the contract; the construction of a building materially different from that contracted for, and constituting a great depreciation in appearance and Value to said premises as contemplated under the terms of said contract, and his refusal to accept the premises and perform the contract because of appellee’s said breach thereof, and for which he Was entitled to the return of his deposit of said $500, and prayed judgment therefor.

It appears from the testimony that, after the parties had reached an agreement, appellee attempted to reduce it to writing* in the form of a letter providing for the erection of a one-story garage with composition roof, which, upon presentation to appellant, he refused to agree to, and required the insertion of the clause providing for the construction of a two-story brick veneer garage, as appears in the written contract, before signing it.

Appellee testified that, 'after the contract was executed, the parties agreed that the garage and servants’ house could be constructed of brick and stucco, with a tile roof, instead of all brick veneer, as specified in the contract, and that it was constructed accordingly. He* also said that appellant, the day after the execution of the contract., asked to be released from it because of an unexpected development in his financial affairs, making him fearful of his ability to perform it, but that he declined to release him under the conditions existing.

Appellant testified that, during the negotiations for sale of the property, appellee talked of constructing a one-story garage with a composition roof, and suggested that he inspect certain garages already constructed with a view to approving one of that kind for these premises; that he made such examination, and, upon presentation of the letter supposed to embody the contract, he told appellee that he must have a two-story brick veneer garage, and, it being estimated that it would cost about $500 more than the one appellee had intended to build, he agreed to pay therefor one-half the additional cost, and the memorandum .of the contract for the purchase price was accordingly changed from $14,500 to $14,750 before signature thereof.

He denied that there was ever any modification whatever of the contract for the construction of the garage; admitted that he had gone to appellee the day following thé signing of the contract, because of some unexpected development in his financial condition, and asked to be released from it, and appellee refused to release him, giving as one reason therefor that he had already ordered by wire the special tile for the roof of the garage. • He exhibited a letter from appellee, dated the 20th of July, in which he stated:

‘‘The work which the contract provides I shall perform is progressing rapidly, and I shall expect same to be completed within a reasonable time. As soon as the same is completed, I shall, of course, expect you to immediately perform your part of said agreement.”

Bracy, the contractor, also stated that appellee had told him, a day or so after he began construction of the garage, that it must have a green tile roof and be rushed to completion; that the tiling should be ordered by wire.

When appellee called appellant, after the completion of the garage, and demanded that he perform Ms contract, he refused to do so because the garage had not been built-in accordance with the contract, but had only two sides oí the first story of brick construction, the remainder being of stucco-.

Appellee said he would not change the garage as constructed, but did not, at the time, claim that it had been constructed in accordance with any agreement modifying the contract. Neither did appellee deny that he had told appellant, on the day following the signing of the contract, when appellant requested to be released therefrom, tliat he would not permit such release because he had already ordered the tiling for the roof by wire. He only said that he did not recall having made such statement.

The burden of proof was upon appellee to show a substantial compliance with the obligations of his written contract before he could require a specific performance thereof by the appellant. The written contract embodied the agreement of the parties, and its terms are not to be contradicted by parol testimony. If a modification of the contract for performance was agreed to, as claimed by appellee and denied by appellant, it devolved upon the appellee to prove such modification. This court, which tries the case de novo, holds that he has not discharged such burden, and that the chancellor’s finding otherwise is contrary to the preponderance of the testimony.

Appellant denied having agreed to any change in the terms of the written contract, and his statement is corroborated by the statement and conduct of appellee and his contractor about "the tiling for the roof, -which appellee insisted was agreed to be put on by him in consideration of the change of construction of the garage to stucco instead of brick veneer. Appellant was insisting, under the terms of the contract, that a tile roof for the garage was required.

Appellee did not deny that, upon the day after the signing of the contract, he had told appellant, who requested to be released from it, that he could not release him because he had already ordered the tiling for the roof by wire and gone to other expense, and, in his letter of the 20th instant, stating his expectation of requiring appellant to perform the contract, he makes no mention whatever of any modification thereof.

It is undisputed that the garage was not built of brick veneer construction; that it would cost about $1,000 more to change it from stucco to brick construction, and appellant and some of the witnesses thought it detracted materially from the appearance of the premises; one, a contractor, stated that the premises are worth $2,000 less because of the stucco construction, than if the garage had been built of brick veneer.

This constituted a very material failure of performance of the contract by appellee, who could not therefore compel a specific performance of it by appellant, having been guilty of a breach thereof himself. The court erred in holding otherwise.

Appellant was also entitled to recover back the $500 he had deposited or paid to be credited on the purchase price of the property when it was accepted and completed in accordance with the terms of the contract, and should have had a decree, therefor on his cross-complaint.

The decree is reversed accordingly, and the case will be remanded, with directions to dismiss the complaint for specific performance for want of equity and to enter a decree in the cross-complaint for the return of the $500, and for other necessary proceedings not inconsistent with the principles o'f equity and this opinion. It is so ordered.