author: .Wood, J.

text:
    Russell v. Wooten.
    Opinion delivered March 23, 1925.
    Judgment — -assignment-of dower — res judicata. — Where the probate court, .in assigning dower, determined the extent and value of the defendant’s homestead se<t apart to the widow, such judgment was conclusive upon the heirs who were parties to the proceeding and made no objection to'the judgment.
    .Appeal from Lee Chancery Court; A. L. Hutchins-, .Chancellor;.
    reversed.

      H.,H- Rolcson and C. W. Horton, for appellant.

      D-. JS. Plpm^er., for appellee. . .
   .Wood, J.

,The appellees instituted this action on the 7th .day of January, 1920, in the Lee Chancery Court, against the appellants. They alleged in. substance that they and the appellant, James Lee Grimes, were the - only- heirs., at law of . J. ■ M. Grimes, who died intestate on the 8th of August, 1912; that the appel-lees .and appellant, James Lee Grimes, as the heirs of J.,M. Grimes,, were the owners of the NWff of section 31, township 1 north, range 3 east, containing 160 acres, subject to the homestead in eighty acres of the. same in the widow, Mrs. Mollie Grimes, now Mrs. Mollie Russell; that the homestead, had never been, set apart and had never b.een claiméd by her as a homestead; that, since the .death of their ¡father, the appellants had collected all; the.,rents .of the lfjQ acres and had not accounted to the appellees j for rents, on the eighty acres-belonging to the appellees and James Lee Grimes. They prayed that Mrs. Mollie Russell be required to select ber homestead, and that she and appellant James Lee Grimes be required to account to the appellees for five-sixths of the rents collected on the land above described, amounting in the aggregate to the sum of $2,520, and that the lands be sold for partition. -, ■

The appellants answered and set up, in substance, that, at the May term, 1914, of the Lee probate court, Mrs. Russell, in her own behalf as widow of J. M. Grimes, and in behalf of the heirs of J. M. Grimes, deceased, applied to the probate court for an allotment of dower and homestead in the lands, described; that all of the appellees were parties to that proceeding, in which it was finally adjudged that the lands above described were the homestead of the widow and minor heirs of J. M. Grimes, deceased; that no appeal was taken from the judgment of the probate court, and appellants pleaded the same as res judicata of the present .action. Appellant also set up that the appellees had received their part of the rent and profits of the tract of land above described continuously since the judgment of the probate court, and were estopped thereby from asserting that the same was not the homestead of the appellants.

The records of the probate court were in evidence, which show that, at the May term of that court, 1914, Mrs. Mollie Russell, widow of James M. Grimes, deceased, petitioned the court for assignment of her dower in his lands, and the following are the excerpts from the record that are pertinent to this action:

“It appearing to the court that J. M. Grimes, at the time of his death, lived upon and occupied as his homestead the northwest quarter of section 31 township 11ST., R. 3 east, which remains the homestead of the widow and minor children, * * * the court grants the petition, and directs that all of the heirs of J. M. Grimes be summoned to show cause, if any they have, against such assignment.” Again:
.’“On this day conies on for hearing the petition of Mrs. Mollie .E. Grimes (now Mollie E. Russell), widow of J. M. Grimes, deceased, for dower in the lands of said estate, which said petition was heretofore filed herein, and, it appearing to the court that due notice has been given to all of the heirs of J. M. 'Grimes, and no objection or other pleas being filed against the same,'the court, being fully advised, doth grant said petition. If appears to the court that said J. M. Grimes at the time of his death was the owner of the NW]4 of section 31, township one north, range three east, which was his homestead, and which is now occupied by the widow and minor children.
“The court finds that she is entitled to dower to an undivided one-third in value of said lands, and, for the purpose of laying off and assigning such dower, N. ;M. Blair, Tom Wooten and Nat Ramey are' appointed as commissioners to lay off the same, and they will report their proceedings herein to the next term of this court. In assigning said dower said commissioners will find the value of all the lands, including 'the homestead, and will then lay off to said widow an amount Of lands outside of the homestead equal in value to one-third of the whole.” And again:
“On this day come the commissioners heretofore appointed for the assignment of dower in the lands of this estate to the widow, Mrs. Mollie E. Grimes (now Mrs. Mollie E. Russell), and file their report herein, which is as follows, to-wit: Come the undersigned, heretofore appointed for the assignment of dower' of Mrs. Mollie B. Grimes (now Mrs. Mollie E. Russell) widow of the deceased, do respectfully report that, in compliance with the order of this court, we have viewed and appraised the homestead, the same being the NW14; of section 31, township one north, range three east, and find the value thereof to be $40 per acre, being a total of $6,400.
“We have also viewed and appraised the W% SE14 and the' SE14 SE% of section thirty-four, township one north, range two east, the other lands belonging to said estate, and have assessed the same in the sum of $25 per acre, being, the sum of .$2,800, making the. entire .valúa-, tion of the lands of the- said estate the sum. of $9,20Q.. We have assigned .to the widow as dower the said WYz- ■ of SE.% and the SE}4 SE^.-of section thirty-one, town-' ship one north, range two. east, the -same,-being less than one-third value of the entire lands of said estate. ,
“And it appearing to the court that the assignment of dower so made by the commissioners was in call things legal and equitable, it is- ordered by the court that the said assignment of dower so made be and--the same is hereby approved and confirmed.” . ■

The commissioners appointed by the probate court to assign dower made their rep.ort.at the February term of that court, 1915, and.at that term the court-rendered its final judgment,approving-and .confirming the; report of the commissioners, as above get ¡forth. ,. . ■ ... ■ ,,

In this action .the trial court found that:-the appel-/ lants were not entitled to homestead in the,south 74.75 acres of the MW'ti of section.31, T. 1 N., R: 3 E.; that they were onlyentitled to.homestead in 'the north eighty: acres of that quarter section; that-the appellees .were .entitled, to five-sixths of the net rent of the 71-75 acres for-the years 1920,1921,1922, and 1923, with adjustment of taxes, upkeep, etc.; that the 74.75 acres-not awarded 'to, appel-,• lants as a homestead were subject- to partition: -between the appellees and the appellant James Lee ,Grimes. The court entered a decree in accordance • with its findings, from which both parties have prosecuted an, appeal- .

In Horton v. Hilliard, 58 Ark. 298, there was an application by the widow for an: assignment of dower. The commissioners appointed to assign the-dower laid off. the dower without -taking into consideration the-existence of the right of homestead. The widow objected to*the report of the commissioners, and moved to amend the petition for dower so as to set up her homestead rights. The trial court refused to allow--the amendment, and confirmed the report of the»commissioners. •, On appeal by the-widow to this court,-among other things,.• we.said: ■ “Every person dealing with the-estate was bound- to--take notice of the homestead. * * * The fact that the petition for dower did not mention the homestead did not affect that right. The commissioners could not lay off the homestead, hut were hound to take notice of it, whether mentioned in the petition or not. Their duty was to assign dower. The dower could not he legally assigned without recognizing the existence and location of the homestead. The existence of the homestead, then, was properly before the prohate court on approval of the report of the commissioners, and was before the circuit court on trial of the appeal. ’ ’

In the petition for the allotment of dower by the appellant, Mrs. Mollie Russell, the widow of J. M. Grimes, the existence of her homestead rights as to the extent of its boundaries, as well as the value thereof, was necessarily involved. Under the doctrine of the above case, this was necessarily an issue between the widow and heirs of J. M. Grimes in the proceeding in the probate court for the allotment of her dower. The report of the commissioners shows that they took both into considera^ tion in allotting the dower, for they viewed and appraised the homestead and designated it as the NW]4 of section 31, T. 1 1ST., R. 3 E., and fixed its value at $40 per acre, being a total value of $6,400. It was the duty of the appellees, if they desired to call in question the right of the appellants to the homestead as therein designated, to have done so in that proceeding. If they conceived that they were aggrieved by the judgment bf the probate court designating the homestead right of the appellant in the entire quarter section, instead .of the north eighty acres thereof, their remedy was to object to the report of the commissioners thus designating the homestead, upon confirmation of that report by a judgment of the probate court, and to appeal to the circuit court. Not having done so, they are concluded by the judgment of the probate court in that proceeding. The appellants, under the facts of this record, are entitled to invoke the familiar doctrine of res judicata in defense of the appel-lee’s action against them.

As quoted by us in. Ederheimer v. Carson Dry Goods Company, 105 Ark. 485, 493, from 23 Cyc. 1295, 1296: “'The rule is often stated in general terms that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been litigated and decided in that suit; and this is undoubtedly true as to all matters properly belonging to the controversy, and within the scope of the issues, so that each party must make the most of his case or defense, bringing forward all his facts, grounds, reasons, or evidence in support of it, on pain of being barred from showing such omitted matters in a subsequent suit.” See also Morgan v. Kendrick, 91 Ark. 394; Fourche River Lbr. Co. v. Walker, 96 Ark. 545; Pulaski County v. Hill, 97 Ark. 456; McDaniel v. Richardson, 141 Ark. 453; Gordon v. Clark, 149 Ark. 173; Shaw v. Polk, 152 Ark. 18.

The trial court therefore erred in its decree, and the same is reversed, and the cause is remanded with directions to enter a decree dismissing the appellees’ complaint, and for such other and further proceedings as may be necessary according, to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Brock v. State.
    Opinion delivered March 23, 1925.
    1. Rape — assault with intent to Rape — evidence.—Evidence held sufficient to support a conviction for assault with intent to rape.
    2. Rape — instruction.—In a prosecution for assault with intent to rape, ,an instruction that defendant would be guilty of assault with intent to rape if the prosecuting witness rejected his advances, or if he made such advances in a lascivious way without her consent, was erroneous, since to convict, the jury must find that he intended to overcome her resistance by force or intimidation.
    Appeal from Orawford Circuit Court; James Coch-rcm, Judge;
    reversed.

      ■ W: II. Neal and C. M. Wofford, lot appellant. ■

      H. W. Applegate, Attorney 'General, and JoJm L. Carter, Assistant, for appellee.
   Hart, J.

Bert Brock was convicted before a jury of the crime of assault with intent to rape, and Ms punishment fixed at three years in the State Penitentiary. The case is here on appeal. ■ :

• The first assignment of error of appellant is that the evidence is not legally sufficient to support the verdict.

Bessie Dobbs was the prosecuting witness, and was eighteen years of age at the time she claimed that Bert Brock made the alleged assault upon her in Crawford County, Arkansas. According to her testimony, in November, 1923, she was carrying the mail from Bosedale to Evansville, in Crawford County,'Arkansas. She said that she knew Bert Brock and Clay Cusick. We quote from her testimony the following:

“Q. They are charged here with making an-assault upon you about the 5th of November ; tell the jury what happened. A. I carried the mail. When I got back to Odell, Bert and Clay were standing out there, and when I stepped back to the door they were going off down the road, and when the postmaster got the -mail fixed up, I took it and went out and put it on the horse and started on. I got down the trail; they were both sitting there on a log, and when I saw them I started to run by them, and Bert run and caught the horse’s rein; and Bert said, 'Get off of there, and I said, ‘I won’t dó' it,’ and he said, ‘Get off of there and jazz,’ and I hit him, and he hit me just as hard as he could on the leg, ahd turned me loose, and I told him I was going to' tell on them, and they said they did not give a damn what I told. Q: Tell the jury how he took hold' of you. A. He tried to pull me off. Q. Did he try to pull you off? A. He just told me to get off and jazz with him. They had a gun. Q. What kind of a gun was it? A. Gome kind of a shotgun. Q. You hit him with a switch? A. Yes sir. Q. Was it then he turned you loose?- A. He turned the horse loose when- he was pulling on me, but Clay had hold of the reins... Q. "Was anybody with yon? A. I was by myself;”

Howard White,.a boy fourteen years old, testified that he knew Bert Brock and Olay Cnsick. He was on the porch, of the building in which the postoffice was kept at Odell, at the time it is charged that they made an assault upon Miss. Bessie Dobbs. . He heard them say that they were going down the road and hold the girl up.

This testimony, if believed by the jury, was sufficient to warrant the verdict. • Our statute provides • that whoever shall; feloniously, wilfully and with malice aforethought assault any person with intent to commit rape shall,, on conviction, be imprisoned in the penitentiary not less-than three nor more than twenty-one years.

In construing this-statute this Court has held that a conviction’ for an assault--with intent to commit rape will be set aside where- the evidence fails to show that the accused did an act which was the beginning or part of; the -contemplated crime. Anderson v. State, 77 Ark. 37, and McDonald v. State, 160 Ark. 185.

> : The testimony- of the -prosecuting witness tends to show that Bert Brock and his companion had a gun, and that .Brock stopped and attempted to drag her from her horse. She hit him with her whip, and he- hit her just as hard as. he could-on the leg. . He had demanded that she get off of her horse-and “jazz” with him.

. ' The jury-might have inferred from this testimony that he was guilty of- something more than an intent or preparation tó' commit the alleged crime. The circumstances- detailed showed the beginning of an attempt to -rape .the prosecuting 'witness, and that the unlawful attempt- was coupled with the present ability to do the injury. .Therefore ¡the assault, was complete.

The next assignment of error is that the court'erred in giving instruction No. 3 to-the jury, which reads as follows: : - . . ' '1

. “If he put his hands upon her, and she objected or rejected, his advances-, or if he did it in a lascivious way, without her consent, then he would be guilty of assault. The first thing you have to determine is whether he is guilty of assault to rape, and then for you to determine whether he is guilty of' any grade of assault.”

In instruction No. 2 the court had gone into the ingredients necessary to constitute the crime. A specific objection was made to instruction No. 3 on the ground that it tended to leave the impression on the jury that, if Bert Brock laid his hands on .the prosecuting witness- in a lascivious way, without her consent,.they might find him guilty of an assault with intent to rape.

' We think the instruction is open to the construction placed upon it,' and necessarily constituted' prejudicial error to the', rights of appellant. In a prosecution for assauit with intent to rape, force is a necessary element of the crime. It is necessary for the .jury to find that the acciised intended' to use whatever force was necessary to overcome the prosecuting witness and have sexual intercourse with her, and that he intended to use as much force as would he necessary to accomplish that purpose and overcome her .resistance. Paul v. State, 99 Ark. 558; Kindle v. State, 165 Ark. 284. Of course, if the circumstances of .the case show that the woman .was put in fear of death or bodily harm to such an extent that she was unable,to re.sist,. this would he equivalent to force.

This instruction was erroneous because it told the jury that the defendant would be guilty of assault with intent to rape if the prosecuting witness rejected biis advances, or if he made such advances in a lascivious way without her consent. This left out of consideration the question of -force.

Therefore, for the error in giving instruction.No. 3 oyer the specific objections of appellant, the judgment must, be reversed, and the cause will be remanded for a neurtrial. . •


author: Habí, J.,

text:
    Davidson v. Edwards.
    Opinion delivered March 23, 1925.
    1. Frauds, statute of — farol agreement. — A mere refusal to pei--form a parol agreement, void under the statute of frauds, is not of itself fraud.
    2. Trusts — misrepresentation.—The misrepresentation which will "create a trust ex maleficio must be made before or at the time 4 • thé legal title is acquired by the promisor.
    3. TrüSts — parol evidence. — Parol evidence to establish a trust ex .... maleficio must he clear, convincing and -satisfactory.
    4. Trusts — trust ex maleficio. — In order to- create a trust ex maleficio, a grantee must have promised something of advantage to the grantor in order to induce him to part with the legal title.
    5. Trusts — evidence.—In a suit by a son to establish a trust in land owned by his deceased mother, evidence held insufficient to 'establish a trust ex maleficio.

    Appeal from Benton. Chancery Oonrt; G. T. Sulims, Special Chancellor;
    affirmed.
    STATEMENT OF FACTS
    On the 22d day of May, 1922, Lottie Edwards and Belle Leonard and Willie W. Davidson filed their petition in the chancery court to quiet their title to certain town lots in the town of G-ravette, Benton County, Arkansas. ‘ On May 26, 1922, Willie W. Davidson asked to withdraw his name from the petition, and filed a cross-bill to obtain a decree, declaring that Lottie Edwards 'and Belle Leonard held the legal title to said lots in trust for him.
    According to the allegations of the cross-complaint, Willie W. Davidson was the owner of a- certain tract of land in Benton County, Arkansas, on,the 30th day of Novémber, 1907; He. was an unmarried man, and his mother,' who was then a widow, .was living- with him on .said land.. She .was-growing old and feeble, and asked him to provide a home for her on the land as long as she lived. Upon her agreement that she would make a will in his favor, he conveyed the land to his mother by deed. The farm was worth from $1,500 to $2,000. About the first part of April, 1908, his mother concluded that she would rather live in the town- of Grfavette, and wished to exchange the farm for certain town lots situated therein. His mother agreed that, if the exchange was made, she would make a will in favor of her son so that, when she died, the town lots would become his own under the will. Accordingly the exchange was' made, and she occupied the town lots as her home until the 10th day of November, 1921, when she died intestate.
    Willie W. Davidson was a witness for himself, and testified to the facts set forth in his complaint. His testimony was. given on the 29th day' of August, 1923. At that time he was thirty-five years of age. Mis. N.E, Davidson, his mother, had two other children besides himself, Mrs. Lottie Edwards, about forty years old, and Mrs. Belle Leonard, about thirty-eight years old. There was no administration upon his mother’s estate. There were no debts, and her children, the sole heirs at. law, were all of age when she died.
    Other evidence was introduced tending to corroborate the testimony of Willie W. Davidson. On the other hand, evidence was adduced in behalf of Lottie Edwards and Belle Leonard, tending to show that both the legal and equitable title in said town lots was in their mother, and that no trust therein should be declared in favor of their brother, Willie W. Davidson.
    The chancellor found that Lottie Edwards, Belle Leonard and Willie W. Davidson were the owners as tenants in common of said town lots, and that each was entitled to a onedhird undivided interest therein. • The court further found that a division of said lots could not be made -without prejudice to the owners.
    It was decreed that the complaint of Willie W. Davidson to declare a trust in his favor in said lots be dismissed for want of equity, and that the lots should foe sold for the purpose of partition.
    The case is here on appeal.

      Bice S Bice, for appellant:

      Floyd <& Beadey, for appellees.
   Habí, J.,

(after stating the facts). The statute of frauds with regard to trusts in real property was enacted to preserve the title to such property from, the uncertainty and'fraud attending the admission of. parol, evidence. It is well settled in this State that a, mere refusal to perform a parol agreement, void under .the .statute, of, frauds, is not of itself fraud. The reason is that the jurisdiction of courts of equity in such cases is founded upon the fraud aid not upon the agreement. It has been well said that the statute of frauds would be worse than waste paper if a breach of promise created d’ trust in the promisor, which the contract itself was insufficient to raise.

Another judge has said that to deduce the fraud from the contract and then give effect to the Contract on the score of fraud is reasoning in a circle. On the other' hand, it cannot be questioned that fraud in-the procurement of the conveyance for the .benefit of the. grantor takes the case out of the statute of frauds.; The reason is that a rule intended as. a. protection against fraud, ought not, in a court of equity, to be changed into' an instrument for. the perpetration; of fraud. The settled rule in this State is that the tifie’ must be obtained by false and fraudulent promises for. the express trust agreed upon and subsequently converted to other pur: poses. In short, the-misrepresentation which will create a trust ex maleficio must be made before or at the timé the legal title is acquired by the promisor. Barron v. Stuart, 136 Ark. 481; Moore v. Oates, 143 Ark. 328; and Bray v. Timms, 162 Ark. 247.

It is equally well settled by these authorities that, while trusts ex malefipip may be established by parol evidence., sueh evidence must be clear, convincing and satis: factory. . . .

The trust which Willie. W. Davidson, asked, to be declared in his favor rests entirely in parol. According to his own testimony, Mrs. N'.'E. Davidson, the mother of himself .and of Lottie Edwards and Belle Leonard, resided with, him on his farm in Benton County, Arkansas. The. tract comprises 100 acres. His mother had np home, and was getting old and feeble. She was afraid that she might die, and, in order to secure a* home for herself - during the remainder of her life, she persuaded her son to convey .to her by deed fifty acres of this, tract,: upon, which was situated his residence. In consideration therefor, his mother agreed to make a will in his,favor. Willie W. Davidson was about eighteen years old at the time, and the fifty acres which he conveyed to his mother, .for her lifetime was worth about $2,000. The deed was executed November 30, 1907. Subsequently his mother wished to move to the town of G-ravette, and the'son.con-, sen ted that she should convey the fifty, acres of land in question to .her son-in-law, T. E. Leonards, for certain, town lots in the .town of Gravette. The exchange. was' made, and at the time Mrs. Davidson agreed with her son that she would make a will devising to him the town lots. She then moved to the town , of Gravette and resided on these lots until her death in November, .1921. She. died without making a will. After her death,; Willie W. Davidson joined with his sisters, Lottie Edwards and Belle Leonard, in a suit to partition the property which they inherited from their mother, including these, town-lots. The suit was filed on May 22., 1922, and,' on the 26th day of May, 1922, Willie W. Davidson asked to with-, draw from the partition suit, and filed a cross-bill claiming that his mother held the town lots in question in. trust for him. . .

James W. Forgey was also a witness for Willie W. Davidson. According to his testimony, he .lived on-an. adjoining farm to Willie W. Davidson and his mother. • The latter intimated to him that she wanted Willie to have the farm upon her death.

Mrs. Awilda Medearis was also a witness for Willie W. Davidson. According to her testimony, she had known Mrs. N. E. Davidson for fourteen years, and they were intimate friends. At various times Mrs. Davidson’ told her that, when she died,- her son, Willie ¡W. Davidson, would have the home where she lived.

According to the testimony of Ed Bullock, he heard Mrs. N. E. Davidson say that she wanted the home-place for her home as tong as she lived. She told him that she had an agreement with her son to convey to her the place for her lifetime, and in consideration therefor she had agreed to will it to him at her death. In addition, she told him that the town property was to take the place of the farm under the arrangement, and that it was to go back to her son after her death.

According to the testimony of Oscar Bullock, the farm was worth $1,500 or $1,600. Mrs. N. E. Davidson told him that her son Willie had deeded the place to her in order that she might have a home if he died, and that she was to make a will in his favor giving it back to him, if she died first. -She stated further that she agreed to trade the farm for the Leonard' and Blevins home in town, and she was to will the town property in place of the farm to her son. She thought that it might be more convenient for her to live in town than on the farm, and for that reason the farm was to be exchanged for the town property.

Willie W. Davidson admitted writing several letters, after his mother’s death, to his sisters in which he offered to sell them his interest in the property for $600 or $650, bitt stated that he did this because his mother had not made a will in his favor, and he did not know that he had any rights in the premises, except to get his part of her estate as one of her three children. 'Subsequently he-was informed that, if he - really owned1 the land, and if it was conveyed to his mother in trust, he still would have his rights in the property. He denied that he ever received any consideration for conveying the property in question to his mother.

T. E. Leonard was the husband of Belle Leonard, and was a witness for the defendants. According to his testimony, Mrs. N. E. Davidson sold his wife and J. L. Blevins the fifty acres in the country for some town lots in Gravette owned by them. The farm was valued at $4,000 and the town lots at $3,000. She was to receive $1,000 in cash, and was to pay that to her son, Willie W. Davidson, for his interest in the farm. The values. named above might not have been the true values of the property, but it was recognized by the contracting parties that the farm was worth $1,000 more than the town lots.

.According to the testimony of Belle Leonard, her mother took care of Willie W. Davidson, and supported him, instead of being supported by him. Her brother was dissipated, and spent about $1,500, which he received from his father’s estate, in traveling about the country. Her mother first drew a pension of $12, and got a raise to $30 per month. Her mother signed notes for her son, and had to pay them. Her mother stated, just prior to her death, that she wished her property to be divided equally between her children. She never heard of her brother claiming any right to the property during her mother’s, lifetime.

According to the testimony of Lottie Edwards, her mother exchanged the farm for the town property because her son would not stay at home and cultivate the land. Her mother supported her son, and not the son his mother. After Mrs. Davidson died, they found some notes- among her papers which she had signed fbr her son and which she had taken up. She never heard of her brother claiming to own the lots until after her mother’s death. On the day she died her mother told her children that she wanted her property to be divided equally between all her children.

One of the daughters said that their brother was present and heard their mother tell them to divide everything equally.

Under this state of the record it cannot be said that the mother, by fraudulent promises, received.a deed to the property in question and in consideration therefor agreed to will it to her son at her death. As we have already seen, a trust ex maleficio may be shown by parol evidence, but such evidence must ¡be clear, convincing and satisfactory.

All the corroboration to the-testimony of the son was that of three witnesses who testified that the mother had told them that she had made an agreement for her son to-deed the property in question to her for her lifetime, ■and she in turn was to will it back to him.

Now, in the first place, this would amount to nothing more-than a naked promise, and, as we have already seen, the statute of frauds would soon become a dead letter if the mere broken promise of a trustee under a trust created by parol should be held sufficient to creat a trust ex maleficio. There must be some element of fraud made before or at the time the legal title is acquired. That is to say, the legal title must have, been given upon the' faith that- the person acquiring it had done so for the purpose bf doing some act. beneficial to -the right or interest of the party making the conveyance. ■ Such a trust could not ■be. created merely by a parol promise on the part of the grantee to hold it in trust for the grantor, without any other consideration. The grantee must have promised something of advantage to the grantor in order to- induce him to part with the legal title.

■Even if it could: be said .that a trust ex maleficio was .shown by the testimony of Willie W. Davidson, it was not established by clear, -convincing and satisfactory evidence. It-is true that his testimony was corroborated by that of three other witnesses, who testified that Mrs. N. E- Davidson had-told them that she had acquired a lifetime interest in the property iby deed upon the express agreement thát she would execute a will in favor of her son. -.The -two daughters, on the other hand, testified that their- mother, -upon the day of her death, told them that she wished all of her property to be divided equally between her children, and one of them said-that their brother was present.

The husband of one of the daughters exchanged with Mrs. Davidson, the town lots in- question for the farm. He-denied-that it was any part of their agreement that the title to the town property was to be held in trust by Mrs. Davidson for the benefit of her son. Then, too, the attending circumstances are against the contention of the son. He was thirty-five years of age.at the time, his mother died, and wrote several letters to his sisters in which he offered to sell them his interest in the property. It is true that he said that he did this because he did not find any will in his favor, and supposed that this was the end of the matter. When we consider his, age, however, together with the fact that he had traveled around the c'ountry a great deal, we think the fact that he tried to sell his interest in the property to his sifters without even telling them of his claim in" the' matter is a strong circumstance against his present contention. He also joined with his sisters in a petition .to have the laud partitioned, without making known his claim of a trust.

Therefore we are of the opinion that no trust was established by that character of evidence required in cases of this sort.

It follows that the decree will be’ affirmed.


author: Hart, J., Hart, J.,

text:
    Meek v. Christian.
    Opinion delivered March 23, 1925.
    1. Highways — legislative assessments of benefits. — A statement in Sp. Acts 1920, No. 51, § 5, that) all the land within á ■proposed road improvement district would he benefited to the extent of 10 per cent, of the value as assessed for State and cotmty taxes was an arbitrary assessment, and did not authorize a contract for final plans and supervision of • the work, since no local improvement can be undertaken without" first ascertaining that the special benefits to the land equal .or'exceed the cost of the improvement. , , - .
    2. Highways — employment of district engineer — validity of contract. — The contract of a highway district -employing an engineer to make preliminary plans and estimates and to. make final plans and supervise construction, for which he was .to receive a percentage of the cost of improvement, was not separable, and, the .preliminary work only being authorized until by final assessment of benefits it was known that the commissioners had power to make the improvement, the contract never became effective, where no final assessment of benefits was ever miade, and on 'abandonment of the project the engineer’s recovery was limited to a quantum meruit for the preliminary work.
    3. Highways — PRELIMINARY work — certificate of indebtedness. —Where certificates of indebtedness issued to a highway district engineer for preliminary work never became effective because no assessment of benefits was ever made, the assignees thereof could not recover 'on them on abandonment of the district. ■ '
    4. Highways — employment of engineer — right Of recovery.— Where engineer was employed by a road improvement district to prepare preliminary and final plans, and the contract was ineffective because it included the final plans, no assessment of benefits having been made. on abandonment of the project ¡after the preliminary plans had been accepted, the engineer was entitled to the reasonable, value of his services in the preliminary work.
    5. Highways — value of engineer’s services — evidence.—Evidence held to show that the amount of certificates of indebtedness ■issued by a' highway district to an engineer under an invalid contract represented fair and reasonablé compensation for his services in making preliminary plans and estimates.
    6. Highways — compensation of engineer — interest.—In an action on a quantum, meruit for the value of an engineer’s services An making a preliminary survey under a contract which never became effective, it was error to allow interest on the certificates of indebtedness issued to him from the time of their1 issuance, though they were found to represent the reasonable value of his . services on a quantum ^ meruit.

      7. Highways! — compensation"of engineer — interest.—Where the commissioners of a highway district and the engineer were unable to agree upon the value of his services in making a preliminary survey, and he filed a claim therefor in a proceeding to wind up the affairs of the district, he was entitled to- interest ' on the amount allowed him from the date of filing the claim.
    81 Highways — powers of commissioners. — Improvement district commissioners exercise no powers except those expressly granted ■by -the Legislature, and only in the manner pointed out ■expressly or by implication.
    9. Highways — power of road district to issue negotiable paper. • — ¡Acts of Sp. Sess. 1920, No. 51, .§ 3,- giving to' the commissioners ■ of a certain road improvement district power to employ engineers to make a preliminary survey, by necessary implication •authorized them to issue certificates, of indebtedness therefor, but not to issue negotiable paper.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    modified.
    STATEMENT OE FACTS.
    Appellants prosecute this appeal to reverse a decree in favor of appellee, C. S. 'Christian, for services performed in surveying- and making the plans, specifications and estimate of cost for a special road improvement district in Miller County, Arkansas.
    The General Assembly of the State of Arkansas,' at its special session in 1920, passed act No. 51 to create the South Miller County Highway District, and the act was approved February 4, 1920. The territory embraced in the act comprised the whole of the south half of Miller County, Arkansas, including the city of Texarkana and a part of the territory embraced within the boundaries of Miller County Highway and Bridge District. The roads which it is proposed to improve are described in a general way in § 1 of the act.
    Section 2 provides that if any of the roads proposed to be improved have not been laid out as public roads, it is made the duty of the county court to lay out the same in accordance with our general statute relating to the establishment and change of public roads in this State.
    Section 3 provides that the commissioners may employ such engineers, attorneys and agents as they find advantageous, and fix their compensation.
    Section 4 makes it the duty of the commissioners to proceed as rapidly as possible with the proposed improvement, which is to improve the roads named in the act by grading and draining them and surfacing them with gravel. The section also provides that the commissioners shall form their plans for the proposed improvement, and shall file .the same with the county clerk of Miller County with-the specifications and-an estimate of the cost. This section also gives the commissioners the power to vary the line of existing public roads for the purpose of straightening them or for economy in the construction of the improvement. It is made, their, duty to report their recommendations in this respect to the county court, and it is made the duty of the county court to approve the change in the route and to lpy out the new roads, if it approves the report of the commissioners.
    , Section 5 provides that all real property subject to taxation'within the corporate limits of the city of Tex-arkana and all that portion of the proposed district which, lies, within, the boundaries of the Miller County Highway & Bridge District will be- benefited by the improvement to the extent of 10 per .cent, of the assessed value of each parcel of said real property as assessed for State and-county taxes for the year 1919..
    The section further- provides that it is ascertained •and declared that all land within the district will be benefited at least to the extent of the cost of the proposed improvement, and that the amount of benefits to each tract of land outside of the corporate limits of the city of ..Texarkana and outside of that portion of 'the district .lying within the boundaries of Miller County Highway ■and Bridge District will be ascertained by an assessment of, benefits ■ to - be made by .a board of assessors to be appointed,under the act.
    - - Pursuant to this act, the commissioners employed C. S. Christian to make a survey of the roads proposed to be improved and to prepare plans and specifications and the estimated cost of improving the same, and on the 9th day- of'March, 1920, entered into a written contract whereby they agreed to pay him 4 per cent, of the estimated cost-of the proposed improvement for his services. ■ The contract provides that he shall make all preliminary and final plans and supervise all the construction work. The contract provides in detail for the services of the engineer with regard to the preparation of the plans, specifications and estimate of cost of improving the roads under the act. C. ’S. Christian entered into the prosecution of his work, and caused a survey of the roads proposed to be improved to be made, and prepared and filed under the provisions. of the act plans, specifications, and an estimate of the cost thereof. His report, is in detail, and shows that the total length of the roads to be improved is 113.214 miles; and that the total cost, including overhead expenses, is estimated to be $1,511,900.97.
    The commissioners approved the report of the engineer, and on January 21, 1921, issued certificates to said engineer in the total sum of $27,489.10. The certificates bear interest at the rate of 6 per. cent, per annum from date until paid. Opposition developed among the landowners to the construction of the proposed improvement, and the county court refused to approve the plans and specifications with the estimate of cost of improving said roads, and also refused to approve the changes in the roads suggested by the commissioners. ' In fact, the bounty court disapproved the act of the commissioners in entering upon the construction, of the proposed improved roads. On' the 26th day of September, 1022, thereafter, the commissioners passed a resolution in which they stated the advantages" to be derived from the proposed improved roads,'and called attention to the objections mjade to the construction of the same. Á resolution was adopted by the board of commissioners that, under existing conditions, it would be to the best interest of the landowners for the affairs of the district to' be wound up without constructing the proposed improved roads, and provisions for the payment of its outstanding obligations be made.
    On the 4th day of October, 1922, the commissioners filed a petition in the chancery court for the purpose of winding up the affairs of the district, and calling upon all claimants to file their, claims. On the 16th day of October, 1922, Oscar Meek and other landowners in the district were allowed to become parties to the proceeding.
    O. S. Christian sold and assigned the certificates of indebtedness issued to him. On the first day of February, 1922, the First National Company of St. Lonis, Mo., purchased said certificates from C. M. Conway for the sum of $28,161.66. On January 20, 1923, the said First National Company filed its claim against said district in the chancery court, asking that it be allowed the sum of $27,489.10, the face of the certificates, and interest thereon at the rate of 6 per cent, per annum from the date of issuance, to-wit, January 21, 1921, until paid.
    • On February 9, 1923, an act repealing the act creating South Miller County Highway District was approved. Special Acts of 1923, p. 126.
    ' Evidence was introduced by the First National Company of 'St. Louis, Mo., to establish the validity of its claim, and the taxpayers introduced evidence tending to show that no recovery should .be allowed on the certificates, and that the claim should only be allowed upon a quantum meruit.

    The testimony on. both sides on this branch of the case will be set out and reviewed in the opinion. In this connection it may be stated, however, that three assessors were appointed as directed by the act to make an assessment of benefits, but it does not appear from the record that they ever made or filed any assessment of benefits under the provisions of the act.
    The chancellor, made a finding that there was not sufficient evidence to impeach the justice of the allowance of $27,489.10 made by the board of commissioners to C, S. Christian. It was therefore decreed that the First National Company , of St. Louis, Mo., the holder of the certificates, be given judgment against the district for the face value thereof, with 6 per cent, interest per annum from January 21, 1921, until paid. The case is here on appeal.

      Jas. I). Shaver,'John N..Cook and W. IT. Arnold, Jr., for appellants.

      Henry Moore, Jr., Webber & Webber, Chauncey H. Clark, Rose, Hemingway, Cantrell & Loughborough, James D. Head and Pau.1 Jones, for appellees.
   Hart, J.,

(after stating the facts).- It is first sought

to uphold the decree of the chancery court on the ground that the holders of the certificates issued to C. S. Christian were entitled to recover the face valué thereof and the accrued interest. It is claimed that there was a legislative assessment of benefits, and that, in making the same, the lawmakers are presumed to have had before them information as to the cost of the-construction of the proposed roads according to the plans and specifications within the rule announced in Summers v. Cole, 144 Ark. 494, and other decisions of 'this court. Therefore it is claimed that the case is brought within the principles decided in Bowman Engineering Co. v. Ark. & Mo. High. Dist., 151 Ark. 47. We do not agree with counsel in this contention. We have given a synopsis of the provisions of the special act creating the road improvement district, so far as is necessary to determine the issues raised by this appeal. It is true that the Legislature declared that all the land within the proposed district would be benefited at least to the extent of the cost of the improvement. Conceding that the Legislature is presumed to have had before it information as to the cost of the construction of the proposed improvement, still it could not know that the land in the district would be. benefited at least to the extent of this cost without making a legislative assessment of benefits. In other words, even if it should be presumed'that-the Legislature knew the cost of the proposed improvement,' it could not know the extent or amount of the benefits to the land within the district without making an assessment thereof. Its action in declaring the benefits aré equal to the costs of the improvement, without ascertaining what the benefits were, amounted to nothing more than an arbitrary finding on its part, and cainnot.be sustained by the court. It is well Settled that no local improvement can be undertaken without first ascertaining that the special benefits to the land' equal or exceed the cost of the improvement.

But it is contended that the Legislature made an assessment of benefits. Reliance is placed upon § 5 of .the act, which provides that all real property in the district .within the corporate limits of the city of Tex-arkana, and all that portion of the district-which is incorporated in and lies within the boundaries of Miller County Highway and Bridge District, will be benefited by the improvement to the extent of. 10 per cent, of the assessed value for State and county purposes for the year 1919 of each parcel of said property. This was only a partial assessment of benefits by the Legislature.

The record shows that the land .within the boundaries of Miller County Highway and Bridge District, for the most part, includes the north half of Miller. County, and the land within the South Miller County Highway District is situated chiefly in the southern-part of Miller County. The city of Texarkana is included in both disr tricts, and a part of. the. land within Miller County Highway and Bridge District is. also included in the South Miller County Highway District. '.Now the assessment of benefits on the- land not situated in the city of Tex-arkana nor in Miller County Highway and Bridge District was not included in -the assessment of benefits made by. the Legislature. Thus it will be seen that the greater part of the land in the proposed district is situated without the boundaries of the city of Texarkana and outside of the boundaries of Miller County Highway and Bridge District, and no assessment of benefits on it was .made or attempted to be made by the Legislature. /

On the other hand, the..act.provides that assessors shall be appointed, to, make such assessment of benefits. The record shows that assessors, were appointed for that purpose as provided by .the act, but it- does not show that any assessment of benefits was ever made by them. It is certain, -then, that no complete or final assessment of benefits was ever made as-contemplated in the act.

The commissioners of the district made a contract with C. S. Christian to. do all the engineering work for the district. The contract, by its express terms, includes the work of making the preliminary as well as the final survey of the roads proposed to be improved under1 thro terms of the act creating the district. The' contract includes the work of making detailed plans/specifications, and an estimate of -the cost of making’ the proposed improvement. The contract further provides that -the engineer shall receive for all of his services 4 per cent, of the cost of the improvement, and that one-half of this shall be paid upon the completion of the plans, specifications and estimate of cost. • • "

In Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, and other cases, we have uniformly held that contracts of this sort, providing for the payment of a specified part of the engineering fee upon the completion of the preliminary survey and 'the fifing of the estimate of cost thereof, are only a method of payihent, and do not make the contract divisible or separable. It follows from the cases cited above and Other decisions of this court that the contract made by the commissioners with Christian never became effective, because no complete and final assessment of benefits was ever made, and, until this was done, it could not be known whether or not the commissioners had the power to make the proposed improvement.

Therefore the facts and circumstances of this case make it certain that the engineer could only recover on a Quantum meruit basis for the services performed by him, and the holders of his claim against the. district could acquire no greater rights than he. possessed. • In short, if Christian could not recover on the certificates of indebtedness issued to him, it is equally .certain that the assignees of his claim could not recover on them. The reason is that the contract never, became effective and the certificates of indebtedness never became valid obligations of the district, and were not negotiable.

The act provides that the commissioners might employ an engineer to make a preliminary .survey of the roads proposed to be improved, and.'this ineludes the preparation of plans and . specifications showing the estimated cost of the improvément. This leaves Christian with a lawful employment, but no provision in the contract for the value and time of payriient of his services. The commissioners not only employed him. to do . the ■work of making the preliminary survey, plans,- specifications and estimates of cost of the proposed improvement, but they actually approved and received, his: report of the work done by him. Therefore, he is entitled to recover the reasonable value of-his services within the limits of the authority of.the commissioners to employ him. . , - : . •,

'Christian had an engineering party in the afield for eleven month's, and the engineer in charge rendered an itemized statement of the expenses thereof, which,.for the eleven months, amounted in the aggregate to. $21,-.191.52. This aggregate amount, did not include, the work of making the blue-prints of the roads or preparation of , the plans and specifications. During a part of this time Christian was engaged at work with the , field party, and was paid at the rate of $450 per month for /the, time he was actually engaged at work in /the field. 'The number oí miles- of final location of the proposed road was something over 1Í3 miles,, The improved roads were to be made of gravel, and the actual cost' of construction Was estimated to be $1,365,964.38, and the total cost, including the sodding of the, shoulders of the roads -.and the overhead charges, amounted to $1,511,900.97. Owing to the fact that many miles of the improved- roads had to be re-run for three of four times to get suitable grades, it was' riot practicable to' give the average number of miles located- each day. The roads were to be 'drained, graded, and'surfaced with'gravel. The engineer made 'frequent trips over the line, checking up the location and examining gravel-pits, to see whether' or not they were suitable; for road'building. This -was necessary in order-, to make a correct -estimate of the ■cost of the materials which were to be used in-the-con-struetion of tlie roads. It was necessary to cross-section-the roads in making a preliminary survey. This is necessary in order to determine the yardage of earth required'1 to he moved.' There were about 275,000 acres of land-included in the South Miller County Highway District.’ This includes the south half of the county, with an overlap on the territory embraced in the Miller County Highway and Bridge District. ■ •' • .. . .

According’to the testimony of O'.-S. Christian, the' actual cost of the field work of making a preliminary survey of the kind and character in this case is from $200 to $250 per mile. The cost of preparing the’ estimate's and’ the profits to the engineer, are not; included in this charge. The testimony of Christian in this respect was corroborated by that of three other engineers, who had had considerable experience in road building and who were familiar with the territory embraced-in this district. . One of these engineers had had several years’ experience in the employment of the United -States’ inroad building, and for something more than- a -year before,' he testified, had been State Highway Engineer for the State of Texas. He has also been engaged as United States district ■ engineer, and, as such, was* familiar with thé character of hard roads built in thé State of Arkansas and the kind’of lands embraced in the road district in question. All three of these engineers corroborated the testimony of Christian .as to the, expense of making a preliminary survey in a road- district of the 'kind in question in this case. They also-testified that Christian was a high-class engineer • and’ had had considerable experience in constructing- hard roads.

According to the evidence of Christian, it was necessary to have made the preliminary survey in as-much' detail as he made it in order to secure Federal aid and' to secure the'approval of the 'State Highway Engineer of the State of-Arkansas. The United States would' not grant Federal aid unless it was approved by the State Highway'Department,' and unless the preliminary survey was made in sufficient detail to enable the engineer who made it to approximately, at' least, make a correct estimate of the cost of the proposed improved roads. Opposed to this evidence is the testimony of a civil engineer who thought that a preliminary survey of the proposed roads could have been made for $150 per mile. On cross-examination, he . testified that it was worth 2 per cent, of the estimated cost of the improvement to-make such a preliminary survey. Thus it will be seen that a preponderance of the evidence shows that the amount' allowed by the court was not more than the reasonable worth of making the preliminary survey. Indeed, the taxpayers contest the allowance mainly on the ground that it; was made too much in detail to constitute a preliminary survey.

;We do not agree with counsel in this contention. The evidence of Christian, which is not contradicted on this point, was to the effect that it was necessary to have made the survey with as much detail as was done in order to. ascertain the exact yardage of dirt: to be moved, and that it was necessary to examine the road material, near at. hand in order to ascertain its fitness and to estimate the cost thereof. It is obvious that, if gravel would have to be hauled in from a distance, this would materially increase the cost of construction.

- The act made it the duty of the commissioners to prepare plans, specifications, and an. estimate of the cost of the work. They were authorized to employ engineers to assist them in doing so. It is manifest that.the intention of the Legislature in requiring the plans, specifications and an estimate of the cost was to eAable the commissioners to have before them definite information of the cost and entent of the proposed improvement to-enable them to decide intelligently whether it should be made. Another reason would be to inform the property owners of the character and probable cost of the. proposed improvement so that they might have an opportunity, to remonstrate against it, if they thought that the construction of the proposed roads under the terms of the act would prove too burdensome. Then, too, it was necessary to Nave a survey made of the parts' of the road which it was necessary to straighten, in changing from .a system of dirt roads to hard roads. This information, iwas; necessary to enable the county court to act with proper judicial .discretion in approving or re jetting such changes.

,, We; do not, deem it necessary to set out in detail or to enter into a minute discussion of all the evidence in the .case. It is sufficient to Say that there is nothing in the record which questions either the good faith of the commissioners in -contracting for the preliminary survey, or in the .conduct of Christian in making it. The whole record shows that the commissioners, and the engineer were actuated by a desire to ascertain as nearly as practicable the cost, of the proposed improvement in advance of making any contract for constructing it. It will be readily seen dhat a.too hasty and indefinite preliminary survey, would not .enable the commissioners to make an accurate estimate..of the cost of the roads. Of course, they could give the landowners an estimate of the probable cost of moving earth in the proposed roads, but a detailed ¡survey -would be necessary to give even am approximately eokrect estimate of . the. amount of yard-agfe'to be moved. This could not be done without proper cróss-sectxoning. ' -

Under .all the facts and circumstances as they appear in the record, we think that the sum of $27,489.10 was;a reasonable Compensation for making the preliminary survey. • -

This brings' us to the question of interest. As we have already seen, the chancellor erred in allowing the interest provided for in the certificates of indebtedness themselves, for the reason that no recovery can be had upon them.

In the case of Pritchett v. Road Improvement Dist. No. 4,167 Ark. 555, the engineer was allowed to recover interes tat the legal rate from the date of the filing of his claim> in, the circuit court. Therefore the allowance of interest on the claim. of the First National Company of St. Louis, Mo., from the time of. the commencement of the spit by it -was proper under the case just cited.

In adhering to the-rule in.regard to the interest laid down in this case, we are not-unmindful of the old common-law rule,’Which required that the claim should be’ liquidated or its amount in some way ascertained,, before interest can be allowed. This rnle, however, has been frequently modified by the courts. ‘

• : In the present case, the act creating the district allowed the commissioners to make a contract with a suit-, able ■ engineer • for a preliminary survey of the public roads- proposed ■ to be improved. The commissioners made -such a contract with ’ Christian, but failed to provide the amount of his -compensation and the time for paying him therefor. - The contract, was fully performed by the. engineer, and the fruits thereof were accepted by -the' commissioners "without objection. Thus it will be seen that the district owed Christian for making the preliminary survey the reasonable value of his services. The': parties were unable to- agree as to the value of his services.- - It was- the- duty of the engineer to file his claim in the proceedings-to-wind up the affairs of-the district; and it could not be certainly known , what price he demanded for his services -until that was -done. His claim was filed on the '20th day of January, 1923,--and the chancellor should only have allowed the claimant interest from that date. ' • -

Therefore the-decree will be modified so as to allow the claimant to recover from the district $27,4)89.10' with 6 per cent, interest from January 20-, 1923, and, as modified, the decree will be affirmed.

Hart, J.,

(on rehearing). .Counsel for C. S. Christian

earnestly insist that the court erred in not allowing him interest from the date of the completion of his services: as. engineer in making the preliminary survey of the roads in the district and his" plans and estimates showing the cost of the construction of the improved roads. They strongly rely upon the case of Iron Mountain & Helena Rd. v. Stansell, 43 Ark. 275. In that ease there was a contract between the railroad 'company and 'the construction company for the construction óf defendant’s line of road from-Helena to Forrest City;- Arkansas.- Thp court held that the contract was a single and indivisible contract. The railroad company issued certain certificates of' indebtedness for the amount it owed the construction company, which were called change tickets, and whieh; were held to be in violation of law. Although illegal,The court held that- they might be used as evidence of the amount due on the cob tract; inasmuch as1 they were a written admission that the railroad company had'received the value expressed in them. Interest was allowed when the payments became due to the construction company under the contract. Thus it will be seen that the interest wa-S contractual and followed the ordinary rule in [shell cases. ' ’' ■ • ¡

The facts in this case are materially different’. The commissioners made an indivisible contract with Christian to do both the preliminary and construction engineering Work for the district, and, under the'contract, he was to receive four per cent, of the. actual construction cost of all the improved roads. The contract provided that when the engineer had filed his approved plans, specifications, and estimates, then the district- shall pay' him fifty per cent, of the estimated entire fee’., ' It further provided that, if the district had no funds to make such payment, then it would execute certificates of^ indebtedness therefor bearing interest at six per cent.

As will be seen by reference to our original opinion, this, contract never became. effective because no final assessment of benefits was ever made and in consequence there, could be no ascertainment that the assessment of benefits would exceed the cost of the improvement.

Improvement district.. commissioners exercise ■ no powers except those .expressly granted, by the legislature. and can exercise the powers conferred only.in;the manner pointed out expressly or by necessary implication. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229.

Section 3 of : the act gives the commissioners the power to employ engineers to make a preliminary survey and to prepare plans and specifications for the construction of the improved roads. By necessary implication, this would give them the authority to issue evidence- of indebtedness therefor; but not negotiable paper. Hiter v. Harahan Viaduct Imp. Dist., 165 Ark. 351. In this connection it may be stated that no attempt was made by the district to issue negotiable interest bearing certificates of indebtedness for preliminary engineering, expenses ; but it distinctly shows that the certificates were issued under-the contract,, which was for the whple of the engineering work. . . , .

The record shows-that the, district first made ,two advance payments of $10,000 each -for preliminary engineering expenses. The resolution expressly recites that the advances were made under -the contract which the board of commissioners had made with the engineer; A subsequent resolution of the board of commissioners recites that certificates of indebtedness had been theretofore issued to 0. -S. Christian in the sum of $20,000 .as advances on his 2 per cent, commission due on approval of the plans, specifications, and estimates of the roads in said district. The .resolution further recites that there is now due to C. S. Christian, all told ait 2 per cent, on the estimated cost of the improvement, the sum of $27,489.10, less the $20,000 in certificates held by Christian. ■

Thus it will be seen that the certificates of indebtedness were not issued to. Christian because' the commissioners had agreed with him that he . was due the sum of $27,489.10 upon a quantum meruit for making.the preliminary survey and preparing the plans, specifications and estimates. On the contrary, it is manifest from the record that these certificates were isáued under the contract with the engineer for doing the preliminary surveying and the construction engineering Work. It will be seen, then, that the certificates were issued'under a contract which- neverhecame effective;. . Thexefore, Christian had. no bright, whatever to , recover ,on his contract, and the action of the commissioners in renewing the certificates under the contract did not constitute an .admission that Christian-was due. that sum of money upon a quantum m'&ruit basis. ,

The record does not show that the commissioners and Christian ever took up the matter of settling his- compensation upon a qucmium meruit basis. The entire course of their dealings show that they proceeded upon the theory that he was entitled to '2 per cent, of the entire commission under his contract with the board of commissioners.- Hence, there is nothing in the record whatever to show that the commissioners ever agreed that Christian was entitled to any stipulated amount upon a quantum meruit basis.

In this connection it may be stated that the general rule ’which denies the right to interest on unliquidated damages has found very frequent application in the case of /unliquidated demands for services rendered, which as a general rule do not bear interest until rendition of judgment; 33 C. J., § 72, p. 211. The cases cited show that quantum meruit for services rendered is within the rule.,' The value .of services upon a qucmtum meruit can only be ascertained by an accord or by the judgment of a court after hearing proof of the value of the services. The general rule does not apply here because of the statute creating the district. • ■

Section 23 provides that, in case for any reason the improvement contemplated by the district is not made, the preliminary expenses shall be a first lien upon all the- land in the district and shall be paid by the levying of a tax thereon upon the assessed value for county and State taxation. This was a direct recognition that the preliminary work was to be undertaken by the district ahd that its cost must be met by the landowners. As we have ^already' seen, the commissioners could only exercise the UQ.wers granted them expressly or by necessary implication, and, having failed to enter into a separate contract with •• Christian for the preliminary surveying expenses, he was only entitled to recover upon a quantum meruit.

Under the statute he must file his claim in the chancery court and was not entitled to-interest until he filed his claim for two reasons. In the first place, the statute did not authorize the commissioners to pay him interest for preliminary work. Of course, if the contemplated improvement had been .carried out 'and bonds for the costi of construction had been issued as provided by § 16 of the act, -the preliminary expenses would have become a part of the cost of construction and the c.omlmissioners might have issued negotiable bonds bearing the rate of interest provided by the statute.

• As we have just seen,. § 23 of the statute .creating the district provides that, in ease the improvement is not made, the preliminary expenses shall be paid by the levying of *a tax on .the land of the district. By fair inference this means-that no interest shall be due on the claims for preliminary expenses until the same are filed as provided by. the act. The mere fact that § 3 gave the commissioners the power to employ an engineer to make a preliminary survey, and to prepare estimates of cost, did not by implication .authorize them to pay him interest on-his. claim until the claim "Was filed as, directed by statute..

It f ollows that the petition to nmdify the decree will be overruled.

Wood,- J., dissents,.


author: Smith, J.

text:
    St. Louis-San Francisco Railway Company v. Murphy.
    Opinion delivered March 23, 1925.
    1. Damages — physical examination — discretion op court.-— , • Where plaintiff . suing- - the railroad company for . personal , injuries hiad submitted to -a personal examination by two railroad doctors, it was not an abuse, of discretion to deny defendant’s request during the trial for further examination by other - doctors, including an x-ray of plaintiff’s spine, such-request not being ■ timely, and the x-ray. not calculated* to disprove the prediction of one of plaintiff’s physicians that .tuberculosis would probably develop from the injury to defendant’s spine.
    2. Trial — assumption of fact. — An instruction authorizing the jury in a personal injury action to assess damages for future pain, and suffering if any held not objectióiiáble'inform as' ássümi-irtg that he would continue to endure paid in the future. .'- •
    3. Trial — insufficiency’of general objection to instruction.— Objection to an instruction .that it assumed that, plaintiff’s mental suffering would continue in the future, should, be specific.
    4. Damages — personal injuries — amount.—A, verdict of $12,000 awarded to an experienced brakeman, earning $1,500 annually and in line of promotion, for injuries which incapacitated }nm to work; necessitating the amputation' of- three toes ’and permanent injuries- to his spine, -with probability of ' developing , tuberculosis, held not- excessive. ' . •
    Appeal from Crawford Circuit Court; James Cochran, Judge;

    affirmed.

      W. F. Evans and Warner, Ear din & Warner,-. for appellant.

      Pace & Davis, for .appellee.
   Smith, J.

. Appellee was employed by the appellant

railroad company as a brakeman on a freight train,1 and-, while climbing to- the top of a car, a grab-iron or a step on the side-of the oar pulled loose, and he fell-, to the ground, and one of his feet fell under the ■ wheels, -of' the caí, which- was in motion, and -his foot was crushed, and it became necessary to amputate his great toe and two adjoining toes.

■ In the complaint-Which appellee filed in his suit-to recover damages to compensate the-injury he had sustained as a result of his fall, he alleged that he was injured as follows: “Left foot mashed and crushed, .necessitating the amputation of three of his toes, leaving his foot stiff and immobile, the tendons and lighments thereon torn and raptured, leaving the foot- in a useless condition; injury to the spine, spinal column, and the nerves attached thereto, shocking his nervous' system, leaving the plaintiff wholly incapacitated to do of perform manual labor of any kind.”

• .At the trial, when appellee was-called" as ’¡a-witness in his Own. behalf, he' removed 'his shoes and socks from both feet, so that the jury might compare 'them ! and examine the injury. He claimed thatj ás'a r.esul|.qf his injury, he had become practically club-footed :by ,being required to walk on the. side of bis foot, and he exhibited the calloused condition which had-developed on his foot as a result of this necessity. •' i' • ’

Appellee was injured oh March" 4, 1923, and was carried the next day tó‘ the company’s hospital, 'where he remained for thirteen.or fourteen weeks, and' was released in July, but hé returned, to the. hospital for further treatment, and was finally discharged- in. August. He testified that his foot was still sore and' pained him, and that he could not walk fast, and .that his Loot turned when he stepped on a rough surface. 'He also testified that his back was injured and continued.to hurt him, and that he had become very nervous.

After appellee and two physicians who were called as witnesses in his behalf had testified, the appellant company asked that two surgeons representing. it be allowed to examine appellee, and. this permission , was given, and appellee was examined by both; surgecins, who were members of the hospital staff where - appellee had -been a patient. ' 1 ■

The first physician who testified in behalf of appellee was Dr. Pettus, of Little Bock, and he testified -that -there \yas a loss of sensation over a small area inside the’ foot. That the big toe had' been amputated close to where it joined the foot and-two. adjoining toes about midway of the last two joints, and that the tendons which control the foot land are attached to the big. toe had been’ so injured that appellee walked on the side of his foot, and that, as ;a surgeon, he would advise-amputation of the foot. Dr. Pettus also-testified that appellee’s spine had been injured, and that the reflexes were, exaggerated, and that appellee suffered -pain and.would continue to do so, until the -cause was found and. removed, and that pressure on appellee’s back caused excruciating pain, and would accelerate the pulse from a normal beat to;120:dn about a minute’s time; that this was a condition over which appellee had no. control; and Dr. Pettus expressed the opinion that appellee’s injury was permanent,, and would grow worse.

Dr. Parchman, of Van Burén, was also called as an expert witness on behalf of appellee, and he too described appellee’s injuries, and concurred in the . opinion expressed by Dr. Pettus that appellee’s .condition would grow worse. In describing appellee’s injuries Dr. Parchman said: “I think the man has an injured spinal columin. Necrosed bone, or has become infected with tubercular bacilli. ”

After making this answer, the presiding judge spid: “Please answer that question again. I did not just catch your answer.” And the witness replied: “I said that 85 per cent, of the injuries to the spinal column result in tuberculosis, which I think is likely to occur to this man by reason of.this injury.”

This question and answer were objected to on the ground that there was “no allegation in the complaint that there was any such injury to his spinal column.”

As has been ■ said, • appellee was examined by two surgeons who had treated him in the hospital. Appellee made no point that this testimony was privileged, .and these surgeons gave a history of appellee’s treatment in the hospital. They had made an X-ray picture of appel-lee ’s foot, and introduced this picture in evidence. They also testified that appellee made no complaint of injury • to his back while ,in the hospital, and had received no •treatment on that account. That they had examined his back, and could find no indication of an injured back except appellee’s statement that it caused him pain, and that their examination of appellee indicated that his back was normal. After testifying that.all the tests made by them, indicated that appellee’s back was normal and was. uninjured, and that they found no indication of tubercular trouble, they testified that an X-ray is the final test,, but that they had taken no X-ray because they ■did not, have an opportunity to do so. ■

Before the case was closed.the company called two other:physicians from Fort Smith", neither of whom had ever examined appellee. Permission was asked that these physicians from Fort Smith be allowed to examine appellee, and to have X-rays made. These physicians testified that it was ho 'test for determining the existence of a tubercular condition of the spinal.column to press oñ a" person’s back" to see whether that quickened his pulse. '

The trial was not concluded on the- day it .was begun, and, after the attendance of the Fort Smith physicians had been secured, counsel for the company: stated that he would like to have appellee pull off his shoes and exhibit his foot in the presence of these doctors. Objection was made to this request on the ground that appellee had already been examined by two doctors for the company, and, in overruling this request, the presiding judge ' said:' -“I am not going to-permit-any further examination of this man.” Counsel for the company said-: “We also ask that an X-ray picture be made' of his back.” In -overruling this request -the court said: ‘‘If' you had asked permission in 'time, I might have ■ granted it,- but .1 am not going to delay this case any longer.” An ■ exception was saved to the ruling and to the remark of the court. •

We think no reversible error was- committed in the ruling set out above. The complaint alleged that appel-lee’s back was injured, and this was notice that damages ' would be asked on that account. The court directed that -appellee submit to an examination at- the hands' of two doctors representing the company," and this examination ■ was made, and these doctors testified that they made no X-ray'examination because they had no opportunity to do ' so, but the request-to make this-last' examination was not ■ embraced in the request for permission to examine appel-'lee.

It vías not shown when or where' this X-ray’ examination could be made, and it does not appear ‘ what delay would have 'been entailed in the trial on that account. The remark of the eoúrt indicates there would havé been some delay, and the matter was within the discretioii of the court, and we think no abuse of that discretion-vías' shown: ' Besides, we think, under Dr. 3?archman’s testimony, read in its entirety, that it does not appear that he stated' that appellee then tad tuberculosis of the spine —a condition .which the company’s physician said would' be disclosed by an X-ray — but the prognosis of the case was ,that tuberculosis would develop, an. opinion which' an X-ray picture could neither refute nor confirm.

: Over appellant’s objection the court gave .an instruction numbered;5, which reads us follows.“It the jury find for the plaintiff, they will assess'his damagesat such a sum as will compensate him for the.bodily injury: sustained, if any, the physical pain and mental anguish suffered1 and- endured by him in the. past,, if any, and-, that which he will endure in the future, by reason of the said injury, the effect of the injury on his health according to the degree and probable dúration of the same, if any, his loss of time, if any, the pecuniary loss from his diminished .capacity for ea-rningmoney, through life, df any, and from these, as -:proved fey .the-evidence, assess '-shell damages as will compensate him: for the injuries received. ” , - y '

..Only a:general objection was made to. this instruction, and the-objection now'hrged to it is that.it assumed ai? a fact that appellee would endure future physical pain and mental anguish by reason of the' injuries received by him. We think the objection is one. wlpcfe should have been made specifically at ,the trial. We .do, not think the instruction assumes as .a, fact that appellee, will continue ¡to endure pain and anguish. On. the . contrary, we think, the. ¡question was submitted hypothetically — as. it should have/been — and, if it rwas thought otherwise,, a, specific objection should have, been made. St. L. S. W. R. Co. v. McLaughlin, 129 Ark. 377; Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325.

-..The verdict and judgment in the case was for $12,000, and it is insisted that this is excessive,- and unsupported 'by. the. testimony. It appears from, the facts already stated that appellee’s condition was that of a man who had lost the use of a foot, and, as one doctor said, it. would have been better, to have amputated the foot. In addition, appellee was. shown to have had a pérma-nent injury tovhis spine,'with the probability that the trouble, would develop into tuberculosis, and that his condition was permanent. In addition it was shown that appellee was a trained and experienced brakéman, and in line soon to be promoted to a conductor. That his earhings-as a brakeman were about $1,500 a year, and he had wholly lost his capacity to earn money in that employment, and could only secure such employment as a cripple could perform. Under these circumstances we cannot say the verdict is hot supported by the testimony, and, as no error appears, the judgment is affirmed.


text:
    Rust v. Caddo River Lumber Company.
    Opinion delivered March 23, 1925.
    Public lands^-homestead — public policy. — As it is against public '■ 'policy for a1 (homesteader on government land to convey the ■ - land before issuance of a patent, where plaintiff claimed under ■a deed from a homesteader prior to the issuance .of a patent thereto,.he cannot complain that defendant’s right of way was ’ granted under -a deed invalid for the same reason; the maxim : - “In pari delicto potior est conditio defendentts” applying.
    Appeal from’Montgomery Chancery Court; J. P: Rendersóñ, Chancellor;
    affirmed.

      Bays, Priddy S Chambers, for appellant.

      McRae S Tompkins, for appellee.
   Smith, J.

This suit was 'brought 'by appellant to ehjoin.appellee from building a private logging railroad ¿cross two tracts of land which appellant claims to own. One.was a f orty-acf é tf act, and the other was án eighty-acre tract, and they will'he' referred to herein as -such.

- ' 'wás; sBoWn' that1-'employees' Of appellee - entered-tqWh fhAfórty-ácre tract1 and commenced cutting;out a right-of-way, and certain timber was'destroyed.' But it -Was also shown "by the undisputed evidence that the einpioyefes of appellee entered upon this forty-acre tract by mistake, and, when the superintendent of 'construction saw what had' been dorie'j he immediately ordered appel-lee’s employees off' this tract, and reprimanded them-for the mistake they had made. -It is an undisputed fact that'the entry'upon, the'forty-acre tract was a mistake, and that the route of the railroad does not cross the forty-acre tract. ■ ■ ■

Appellee admits its intention to cross the eighty-acfé trUCt, but alleges its right to do so under a right-of-way deed from the owner of the land.

’ - It appears that one Ira Wheeler had. entered-both tracts as ia homestead,'but he did not complete his proof of improvements and occnpation, and did not receive his patent Until September 10, 1923. Prior to the issuance df this patent, Wheeler executed a right-of-way deed over'the eighty-acre tract tó appellee on February 16, 1923. On July 9, 1923, Wheeler executed a warranty deed' conveying both tracts to A. H. and D. P. Whitsett, and the Whitsetts conveyed both tracts to appellant by á/¿warranty deed dated September 10,1923, this being the day-Upon which-Wheeler received his patent.'

'*U A- temporary restraining order was issued at' the time of 'the institution Of the suit, but -this'-'was dissolved on JbC'-final béaring, aúd the suit was dismissed as being without':equity; 'and'-this -appeal'is from' that' decree.- '

f r' Thefactibn of the court below in dismissing the complaint as being without equity; is defended'on several grounds-, bti-t' wU Consider only-one, Us wefnidTt decisive of this appeal.

It is insisted by appellant that the right-of-way deed to appellee was void because, at the time of its execution, Wheeler had not obtained a patent to the land, and, inasmuch as it is against the policy of the United States homestead law to permit the conveyance of . any parí of a homestead before the entry is completed-.and the patent is issued, that the right-of-way deed was ineffective. . -

. It is answered, however., that, if this be true, appellant is in no position to raise the question, for the reason that he claims under a deed from the Whitsetts, who themselves bought from Wheeler prior to the issuance of the patent to Wheeler; and such is the fact.

. Wheeler had not completed his entry at the time he executed the right.-of-way deed to appellee, but his deed to the Whitsetts . was likewise executed to them before his entiy was completed and the patent had issued.

. The maxim, In- pari delicto .potior, est conditio defendentis, , applies. Appellant is asking - affirmative relief, and he bases his cause of action on a conveyance which- is open to the same objection as the one which he makes to the deed under; which appellee claimed a right-of-way, and the cause of action was, for this reason, properly dismissed as being without equity. Irons v. Reyburn, 11 Ark. 378; Cate v. Cate, 53 Ark. 484; O’Bryan v. Fitzgerald, 48 Ark. 487; Eager v. Jonesboro, L. C. & E. Express Co., 103 Ark. 288.

■ ■In affirming the decree of the court below we treat the case as one to enjoin the entry upon the eighty-acre tract alone,, as appellee concedes that it had no-right of entry upon the forty-acre tract,, and has disclaimed any intention of doing so. There may be; liability for the damage done, by the mistaken entry upon the forty-aere tract,'bnt . we need not consider that question, here for the reason that this damage was done before appellant purchased- the forty-acre- tract,, and-he took-no assignment of that cause of action.

The decree of the court below.is ..therefore affirmed.