text:
    Nowlin v. Memphis Packing Corporation.
    Opinion delivered December 3, 1923.
    1, Corporations — subscription contract. — Parties may make a valid stock subscription contract, which will be enforced according to its‘terms, as other contracts are enforced.
    2. Corporations — stock subscription agreement. — An agreement to take shares in the capital stock of a corporation may depend upon a condition precedent or subsequent, as the parties may agree, and-they are bound to perform their contract according to their intention as it appears from the language of' the contract.
    3. Corporations — subscription contract. — Where a note given by a stockholder in payment of stock stipulated that it should not be due until a certain number of shares of preferred and of common stock have been paid for, performance of such condition is a condition of recovery on the subscription.
    Appeal from Craighead Circuit Court, Jonesboro District; W. W. Bandy, Judge;
    reversed.
    STATEMENT OP PACTS.
    The Memphis Packing Corporation brought this action in the circuit court against Dr. it. T. Nowlin to recover $500 on a stock subscription contract. The defendant denied liability.
    It appears from the record that the plaintiff is a corporation doing business in Memphis, Tenn., and obtained authority to sell its stock in the State of Arkansas. Thereafter, on the 28th day of May, 1919, the defendant signed a subscription contract for 7% shares of stock in said corporation for which he agreed to pay the sum of $625. One hundred and twenty-five dollars of this was paid in cash, and the contract recites that the balance was to be evidenced by non-negotiable notes in the sum of $500, payable to the order of the Memphis Packing Corporation.
    Section 2 of the contract reads as follows: “I agree and understand that the cash referred to in paragraph 1 hereof is to be used only for the organization expense and commissions, and in furthering the plans contemplated by the Memphis Packing Corporation; it being understood and agreed that the balance of the subscription, represented by the non-negotiable note tendered herewith, shall become due and payable in accordance with the provisions of said note, after subscriptions for at least 2,500 shares of the preferred stock and 1,250 shares of the common stock of the said company shall have been secured by the said Memphis Packing Corporation, the necessity of securing any additional subscriptions over and above the said amounts being waived. Said stock shall not be issued by the company until fully paid for, and shall carry no voting power until said time.”
    .On the same clay the defendant executed his promissory note to the plaintiff for $500, due on September 1, 1919. The note contains the following: “This note is uon-negotiable, and is subject to the terms and provisions of a printed subscription agreement of even date herewith, executed by the undersigned in favor of the Memphis Packing Corporation.”
    On the 11th day of April, 1921, the State 'Bank Commissioner revoked the authority formerly given to the plaintiff to sell its stock in the State of Arkansas, because it had failed to comply with the law in regard to filing its report's. The stock was issued by the corporation and tendered to the defendant on November 18,1921, but the defendant refused to accept and receive the same.
    The case was tried before the circuit court sitting as a jury, and, from a finding and judgment in favor of the plaintiff the defendant has duly prosecuted an appeal to this court.

      John W. Scobey, for appellant.
    Appellee had no right to sell stock in this Stale, after its right to do so was revoked by the Banking Department. 147 Ark. 402. There was no delivery of the stock, or attempted delivery, until after the revocation, therefore the sale was not complete, and no title passed. 151 Ark. 513. There was no consideration for the note, since it was for stock in an insolvent corporation. 157 Ark. 37.

      A. P. Patton, for appellee.
    The case cited by appellant at 147 Ark. 402 is not in point, because there the corporation had not been authorized to sell its stock at the time the sales were made. Appellee did have that authority at the time of the transaction in question. Subscription contracts for purchase of capital stock have been held valid by this court. 106 Ark. 462; 92 Ark. 504; 97 Ark. 248. The contract waived the issuance of the stock at the time of the transaction. 26 IT. S. (L. eel., p.’ 179). A failure on the part of appellee to deny insolvency is not an admission to that effect, so as to render the note and contract void. See 130 Ark. 167; 129 Ark. 406; 98 Ark. 211.
   Hart, J.,

(after stating the facts). It is true, as contended by counsel for the plaintiff, that parties may make a valid preliminary stock subscription contract which will be enforced according to its terms, just as other contracts are enforced. Snodgrass v. Zander & Co., 106 Ark. 462, and cases cited. It is also true that, like other contracts, an agreement to take shares in the capital stock of a corporation may depend upon a condition precedent or subsequent, just as the parties may agree upon, and that they are bound to perform their contract according to their intention, as it may appear from the language of the contract. Arkadelphia Cotton Mills v. Trimble, 54 Ark. 316; Turner v. Baker, 30 Ark. 186, and Rogers v. Galloway Female College, 64 Ark. 627.

In the case first cited, the articles of association subscribed by Trimble contained the following provision: “The amount of capital stock of the said corporation shall be fifty thousand dollars, of which fourteen thousand five hundred have been subscribed by the corpora-tors aforesaid, and the residue may be issued and disposed of as the board of directors may from time to time order and direct.”

The court held that it did not appear, from the language quoted, that the corporation should not begin business until all the capital stock was subscribed, or that the subscriber should not be required to pay anything until that time. The corporation was engaged in business when Trimble subscribed for the stock, and the court held that he was liable. In Rogers v. Galloway Female College, supra, following Turner v. Baker, supra, it was held that, where a committee, authorized to locate a college, proposed to locate it when the sum of $25,000 was subscribed, neither the committee nor the subscribers were bound, under the terms of such offer, if less than the sum specified was subscribed.

We think that, under the terms of the contract in the present case, the securing of subscriptions of at least 2,500 shares of preferred stock and 1,250 shares of common stock was a condition precedent to a right of recovery on the part of the corporation. The note sued on recites that it is non-negotiable, and that it is subject to the provisions of the subscription agreement.

Section 2 of the subscription agreement is copied in full in our statement of facts. By reference to it it will be seen that the cash payment made by the subscriber was to be used for organization expenses, and that the balance of his subscription is represented by the nonnegotiable note sued on. The agreement recites that it shall become due and payable in accordance with its provisions after the subscription for at least 2,500 shares of preferred stock and 1,250 shares of common stock shall have been secured by the corporation. It further recites that the necessity of securing any additional subscriptions above said amounts is waived. Until its contract with the subscriber was performed and it was made to appear that the subscriptions had been secured as provided in the contract, the corporation had no right whatever to recover from the subscriber.

It appears that the subscriber had made his cash payment for organization expenses, as he agreed to do. It was then incumbent upon the corporation to perform its part of the contract by securing the subscriptions in the amount agreed upon, and without this it could not recover in this case.

We think that it is plain, from a consideration of the note sued on, in connection with the stock subscription agreement, it was the intention of the parties to make the subscription for shares, as expressed' in the agreement, a condition precedent to the right of the corporation to recover upon the note sued on. The note sued on expressly states that it is subject to the provisions of the subscription agreement, and it recites that it shall become due and payable after the subscriptions for a designated number of shares of preferred stock and of common stock shall have been secured.

The fact that the securing of these shares of stock is a condition precedent to the right of the corporation to recover on the stock subscription note is thus shown by the plain language of the contract, and this, as we have already seen, must govern. This construction of the contract is borne out by the words which follow, stating that the necessity of securing additional subscriptions over and above such amounts is waived.

There is nothing in the record showing that the corporation complied with the condition to secure the subscriptions in the amounts agreed upon, and it follows that the court erred in finding for the plaintiff and rendering judgment in its favor against-the defendant upon the subscription note.

For this error the judgment must be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Hodge v. Hodge.
    Opinion delivered December 3, 1923.
    1. Divorce — dismissal op complaint. — A wife’s complaint for divorce for nonsupport of herself and child and conduct rendering her condition intolerable, as by bringing suit for alienating her affections and inquiring of neighbors as to her conduct, held properly dismissed as without equity.
    2. Divorce — nonsupport.—In this State nonsupport is not a ground for divorce.
    3. Divorce — custody of child. — In a divorce suit, the mother’s custody of a child, who was being well cared for, under good influences, was properly left undisturbed as against the father, who had no home except that of his aged parents.
    4. Divorce — allowance for support of child. — An' allowance of five dollars per week for the support of a child held sufficient, in view of the father’s impaired earning capacity by reason of a sunstroke.
    ,5. Divorce — attorney’s pee. — A fee to the attorney of a wife suing for divorce held properly refused, in view of the husband’s lack of earning capacity, and the lack of merit in the suit.
    Appeal from Saline Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      W. C. Rodgers, for appellant.
    In actions for divorce, the law denies every material allegation of the complaint. 122 Ark. 276. But, even if admitted, the plaintiff would still not he entitled to a divorce. 'C. & M. Dig., § 3504; 104 Ark. 381. The testimony of a plaintiff must be corroborated. 151 Ark. 150. All statutory requirements must be observed. 100 Ark. 71. The plaintiff must come into court with clean hands. 118 Ark. 582; 143 Ark. 276; 12,8 Ark. 110; 115 Ark. 32. General statements of witnesses in the nature of opinions or conclusions are not sufficient. 105 Ark. 194. Allegations in the complaint must be definite and specific. 114 Ark. 516. Only competent evidence may be admitted. 127 Ark. 438; 132 Ark. 402; 76 Ark. 153; 78 Ark. Ill; 92 Ark. 315; 99 Ark. 218; 127 Ark. 186. When a plaintiff relies upon cruelty as a ground of divorce, it must be habitual and systematically pursued to ah extent which would render intolerable the life of such plaintiff. 136 Ark. 588; 151 Ark. 150. The court had no jurisdiction to try the issue of custody of the child. The residence of the child is that of the father. 16 Ark. 377; 3 Pet. 242; 7 Yes. Jr. 750; Jacobs, Domicile, § 105. A. judgment rendered without jurisdiction is vulnerable, not only on direct appeal, but to collateral attack also. 29 Ark. 47.

      J. W. Westbrook, for appellee.
   Smith, J.

This is a suit by Mrs. Hodge for divorce, and for the custody of an only child, a girl who was five years old at the time of the institution of the suit, and for an allowance for the support of the child, and for costs, and other relief. It was alleged that the defendant had refused and neglected to provide for plaintiff, or to support their child, and that he had been guilty of such conduct as to make plaintiff’s condition as defendant’s wife intolerable. At the time of the institution of this suit plaintiff was residing in Saline County with the child, and she earned her own living and that of the child by teaching school. She and defendant were married in Howard County, in 1915, where they lived together until March 12,1921, since which time they have lived apart, and the defendant continued to reside in Howard County. After this suit was instituted defendant brought; in Howard County, a suit for divorce, alleging desertion as ground therefor, but this suit appears to have been abandoned, and defendant filed an answer in his wife’s suit, in which he denied all the allegations of her complaint.

•A large amount of testimony was taken, and, on the final hearing, the court dismissed the complaint as being •without equity, but awarded the custody of the child to the mother, with the right of the father to visit it, and directed him to pay five dollars per week for the support of the child, but made no allowance for suit money, and the parties were directed to pay their own costs, and both have appealed.

It appears that Mr. Hodge at one time brought suit against one Brooks for the alleged alienation of his. wife’s affections, but there was a verdict and judgment against him in that suit, which was affirmed by this court on appeal. In that case Hodge attempted to show that Brooks had alienated his wife’s affections, and, in support of the suit, he made inquiry of two neighbors touching their observation and knowledge of the conduct of Brooks towards Mrs. Hodge. These persons were unable to furnish Hodge any information of value, but Mrs. Hodge was advised of the inquiry, and she assigns this suit and this inquiry as a part of the conduct on Hodge’s part which has rendered her condition as his wife intolerable. The point, however, which was most fully devel^■ned and was most urgently pressed was the failure of defendant to support her and the child.

Mrs. Hodge admits that she left her husband, and that she no longer entertains any affection for him, but she says the estrangement resulted from his lack of affection for her, and from his indolence.

Mr. Hodge does not charge his wife with having had any immoral relations with Brooks, nor did he do so in his suit for alienation of affections, but he did charge then, and now asserts, that it was Brooks who alienated his wife’s affections from him. Brooks testified1 as a witness in the present case, but he appears to have passed out of the lives of the parties, except in so far as he is charged with being responsible for the original separation. Mrs. Hodge left the county where both her husband and Brooks resided, and is now living many miles away from both of them..

Hodge admitted that he had contributed but little to the support of Ms wife and child while they lived together, but he sought to excuse his- failure so to do by saying that he was an invalid; that he had suffered a sunstroke, from which he had never fully recovered, and that he was able to work only in cool weather, and was able only to do a limited amount of work. Mrs. Hodge testified that her husband’s failure to be employed was due to a lack of inclination to work, rather than to any inability to do so, and that shé had frequently found little jobs for him, which he was able to do but which he refused to take. She further testified on this subject that her husband was not confined to his bed or to Ms home, and that he allowed and required her to earn the living; for him as well as for herself and the child, and that she did tMs by teaching, by keeping boarders, by sewing, and, at one time, by working in the field. Mrs. Hodge admitted that she did not intend ever again to live with her husband, and gave as her reason therefor that she had all she could do to make a proper living for herself and for the child. She testified, however, that she was well and strong and able to work and support the child, and that she earned seventy dollars per month teaching school, and that she found other employment when she was not engaged in teaching.

Mr. Hodge complains of the action of the court in requiring him to contribute to the support of the child while deprived of its custody. He insists that the custody of the child be awarded him, and that, if this were done, his wife would return to him and their home would be reestablished. He admitted, however, that he had no ■ home to which to take the child, and proposes to take it, if his wife will not again live with him, to the home of his father and mother, who are seventy-five and sixty-five years old, respectively.

We are unwilling to disturb the finding of the chancellor in dismissing the complaint as being without equity. Plaintiff’s husband is not questioning her character, as she insists. Upon the contrary, he is resisting her application for divorce, and earnestly expresses the hope and desire that she return to him as his- wife, and the record is convincing that he genuinely desires her to do so. It does appear that he does not work regularly, and did not work as much as he might have done during the time he and his wife were living together, but he is unquestionably not able to work at all times, and, as is pointed out in the case of Arnold v. Arnold, 115 Ark. 32, non-support is not made a ground for divorce by our statute.

We approve the decree in regard to the custody of the child. Mr. Hodge has no home to which the child might be carried, except that of his aged father and mother, unless his wife consents to live with him again. She declares she will never do this, 'because she is unable to support her husband in idleness, and she should not be required to do this as a condition upon which she may retain the custody of the child. All the testimony shows that the child is being well cared for, and is living under good influences.

We also approve the allowance of five dollars per week for the support of the child. Certainly this is little enough, unless the father is to be relieved of all responsibility in that respect. But we cannot say that his earning capacity is such as to require him to pay a larger sum.

Because of the husband’s lack of earning capacity, and the lack of merit in the wife’s suit for divorce, the action of the court in refusing to allow a fee to the wife’s attorney will 'be affirmed, and no fee will :be allowed on this appeal; and the decree in regard to the costs below will be affirmed, but the costs of the appeal will be assessed against appellant.


author: Humphreys, J.

text:
    Allison v. State.
    Opinion delivered December 3, 1923.
    1. Criminal law — conclusiveness of verdict. — A verdict supported by legal evidence of a substantial nature is conclusive on appeal.
    2. Weapons — object of statute against carrying. — Crawford & Moses’ Dig., § 2804, prohibiting any person from wearing or carrying, as a weapon, any pistol of any kind, was intended to prevent the carrying of a pistol with a view of being armed and ready for offense or defense in case of conflict with a person, or wantonly going armed.
    3. Weapons — aiding officers. — Under Crawford & Moses’ Dig., § 2804, making the carrying of concealed weapons a misdemeanor, and excepting weapons carried by persons summoned to aid officers while actually engaged in guarding prisoners, evidence that defendant was deputized by the town marshal to assist in preventing an expected disturbance, which did not occur, did not bring his act of carrying a pistol within the exception, as the marshal was not engaged in guarding prisoners.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Allyn Smith and Owen Kendrick, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Boone County, and, as punishment therefor, was adjudged to pay a fine of $75. From the judgment of conviction an appeal has heen duly prosecuted to this court.

The indictment was returned under § 2804 of Crawford & Moses’ Digest, which is as follows: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie-knife, or sword or spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, shall be. guilty of a misdemeanor.’ Provided, nothing in this act shall 'be so construed as to prohibit any person from carrying such pistols as are used in the army or navy of the United States, when carried uncovered and in the hand; provided, officers whose duties require them to make arrests, or to keep and guard prisoners, together with persons summoned by such officers to aid them in the discharge of such duties, while actually engaged in such duties, are exempt from the provisions of this act. * * *”

Appellant contends for a reversal of the judgment upon three alleged grounds: first, because the pistol carried by him was an army pistol which he carried uncovered in his hand; second, because he did not carry it as a weapon; third, because he was deputized to carry it by the city marshal of Harrison.

(1) While the testimony adduced 'by appellant tended to show that the pistol carried by him was the kind used in the army or navy of the United States and that he carried it uncovered in his hand, the testimony adduced by the State tended to show that it was not an army or navy pistol, and that he carried it concealed from view in his overcoat pocket. This disputed question of fact was submitted to the jury for determination, under an instruction to acquit appellant if they found it was such a pistol as was used in the army or navy of the United States, uncovered in his hand. The finding of the jury is conclusive 'against appellant, as the verdict is supported by legal evidence of a substantial nature.

(2) There was evidence tending* to show that the pistol was carried for offensive or defensive purposes in anticipation of a disturbance. Appellant testified that he came down town after his mail, on the evening* in question, and ran across William Parr, the city marshal, who told him rumors were afloat that there would be a disturbance on account of the arrest of two railroad men, and that he wanted him to act as a deputy; that the marshal directed and authorized him to arm himself ; that, in obedience to the request, he went home after his pistol, returned about eight o ’clock p. m. armed, and remained upon the public square for two hours for the purpose of assisting the marshal in preserving the peace, if it became necessary. The record reflects that the anticipated disturbance failed to materialize. In support of his contention that the pistol was not carried as a weapon, appellant cited the case of Cornwell v. State, 68 Ark. 447. In that case the evidence showed that Cornwell carried his pistol to a neighbor’s home, a distance of about three miles, for the purpose of killing hogs, and the court ruled that, under the testimony, it was a question for the jury to say whether Cornwell carried it as a weapon. In the case at bar the court submitted this question to the jury, while in the Cornwell case the court refused to do so. The Cornwell case was reversed on account of such refusal.

This court has said that the object of § 2804 of Crawford'& Moses’ Digest “is to prevent the carrying of a pistol with a view of being armed and ready for offense or defense in case of conflict with a citizen (person), or wantonlv to go armed.” Cornwell v. State, supra; State v. Wardlow, 43 Ark. 73; Carr v. State, 34 Ark. 450; Lemons v. Slate, 56 Ark. 530. The court did not err in the instant case in submitting the question of whether appellant carried the pistol as a weapon, to the jury.

(3) The contention of appellant, that he was exempt from the penalty imposed by the statute against carrying weapons because deputized by the city marshal to do so, is not tenable. He was not summoned by the mar-shal to assist him in making arrests or guarding prisoners, while in the actual discharge of such duties, and therefore within the exempting proviso of the statute upon which he relies.

No error appearing, the judgment is affirmed.


text:
    Gerard B. Lambert Company v. Rogers.
    Opinion delivered December 3, 1923.
    1. Pleading — elimination op issue — instruction.,—Where, in an action for breach of a contract of employment, in which the testimony was directed to the question whether plaintiff resigned or was discharged, but not as to whether the plaintiff was rightly - or wrongfully discharged, the latter issue was eliminated, • and an instruction submitting it was properly refused as being abstract.
    2. Master and servant — breach op employment. — damages.—In an action for breach of a contract of employment of plaintiff as a farm manager, plaintiff’s contention that he sustained damages by being deprived of a home is sustained, as to the amount of damages caused thereby, by evidence that the rental value of the house ranged from $10 to $25 per month.
    3. Trial — repetition op instructions. Denial of written instructions covered by the charge given was not error.
    4. Trial — instructions on issues not pleaded. — It is within the court’s discretion to refuse an instruction upon an issue not embraced within the pleadings, especially one which it was necessary to plead.
    5. Estoppel — pleading.—An estoppel must be specially pleaded.
    Appeal from Phillips Circuit C.ourt; J. M. Jackson, Judge;
    affirmed.

      Moore & Moore and J. G. Burke, for appellant.
    The court erred in giving instructions Nos. 1 and 2, requested by plaintiff, because misleading. 140 Ark. 162. Where an employee voluntarily quits the employment of bis employer, he thereby forfeits his right in the contract of employment, and cannot recover compensation for Ms services. 38 Ark. 102; 87 Ark. 330; 26 Cyc. 984, Master & Servant; 55 S. E. 613; 59 N. E. 524; 20 Eng. Law & Equity, 157.

      John G. She,field and W. G. Dimming, for appellee.
   Humphreys, J.

This suit was brought in the circuit court of Phillips County by appellee against appellant to recover two months’ wages and the rental value of a house for the same length of time, for an alleged breach of an employment contract. It was alleged that appellant employed appellee on August 1, 1920, as a farm manager on its plantation during the balance of the year, for $275 per month and the use of a house, and that, during the month of October, it discharged him without cause, and refused to pay him Ms salary and the rental value of the house for November and December.

Appellant filed an answer denying that it discharged him without cause, but that, on the contrary, he voluntarily resigned his position, wMch resignation was immediately accepted by it.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, wMch resulted in a verdict and consequent judgment for $580, from which is this appeal.'

Appellant first contends for a reversal of the judgment because the instructions given deprived the jury of deciding the question of whether or not appellee was rightfully or wrongfully discharged. It is true that the complaint alleged the discharge without cause, and that the answer denied it, and alleged a resignation, but the proof was mainly directed to the issue of whether appellee resigned or was discharged. The trend of the testimony eliminated the issue in the pleadings of whether the discharge, if any; was wrongful. The reliance of appellant upon the resignation of appellee as its sole defense made it unnecessary for the court to submit any other issue than whether appellee resigned or was discharged. An instruction submitting the issue of whether the discharge, if any, was without cause would have been abstract and misleading. The court did not therefore commit reversible error in refusing to insert the words “wrongfully and without cause” after the word “discharged,” in instructions numbers one and two, given at the request of appellee.

Appellant next contends for a reversal of the judgment upon the alleged ground that the proof failed to show that appellee sustained any damages by reason of being deprived of the use of the house. This contention is based upon the fact that appellant did not rent another house to live in. Appellant testified, however, that he had to board, which amounted to the same thing. There was testimony in the record tending to show that the rental value of the house ranged from $10. to $25 per month.

Appellant next contends for a reversal of the judgment upon the alleged ground that the court refused to submit its theory of the case to the jury. The theory of appellant is that appellee voluntarily resigned his position, and for that reason was not entitled to recover his monthly salary beyond the date of his resignation. It is true that the court refused to give the instructions asked by appellant to this effect, but the instructions requested by appellant were covered by the oral instructions given by the court upon this issue. The court orally instructed the jury as follows:

“If you find from the testimony in this case that the plaintiff, T. L. Rogers, resigned and was not discharged from the employ of the Gerard B. Lambert Company, then you will find for the defendant.
“You are instructed that the burden of proof in this case is on the plaintiff, T. L. Rogers, to establish the allegations in this complaint. ’ ’

Appellant’s next and last contention for a reversal of the judgment is that appellee accepted a check in payment for his salary until November 1, and by so doing estopped himself from claiming any additional salary. The check was inclosed by appellant to appellee in a Letter of date October 16, 1920, which is as follows:

“Lambrook, Ark., Oct. 16, 1920.
“Mr. T. L. Rogers, Lambrook, Ark.
“Dear sir: Confirming onr verbal conversation on
Monday the 11th, it is understood that you resigned your position with the Gerard B. Lambert Co., effective at . once, and I accepted your resignation. I am sending you attached, your salary check for the month of October, less your store account to the amount of $226.45. It is -our desire to gain possession of the house in which you live by November 1, if possible, and would appreciate it very much if you would arrange your affairs accordingly.
“Thanking you for past favors and wishing you success in the future, we are,
“Tours truly,
“The Gerard B. Lambert Company.
“E. S. Cole, Asst. Treas.”

The answer to this contention is that it was within the discretion of the court to refuse an instruction upon an issue not embraced within the pleadings, and especially an issue which, it was necessary to plead. The defense of estoppel is one that must be specially pleaded. No request was made to amend the answer so as to plead an estoppel. Sims v. Stovall, 127 Ark. 186.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Amedon.
    Opinion delivered December 10, 1923.
    1. Railroads — negligence—jury question. — In an action for injuries sustained by plaintiff, who went upon the platform at defendant’s station to meet a passenger, and fell into an uncovered coal-hole, evidence held to justify submission to the jury of the issue of negligence.

      2. Railroads — negligence—uncovered coal-hole. — Where plaintiff fell down an uncovered coal-hole in defendant’s station platform, the jury was justified in finding defendant negligent in failing to have the covering more secure, where the hinges on the door had been broken, and there was no lock or other kind of fastening.
    3. Railroads — duty to person at station to meet passenger.— Where plaintiff went to defendant’s railroad station to meet an expected passenger, he was there by implied invitation, and entitled to the exercise of ordinary care on defendant’s part in maintaining the premises in a reasonably safe condition.
    Appeal from Lonoke Circuit Court; George W: Clark, Judge;
    affirmed.

      Thos. S. Buzbee, H. T: Harrison and A. S. Buzbee, for appellant.
    The testimony was uncontradicted that the coal-hole was left in a safe condition by appellant. This uncontradicted testimony by appellant’s employees should not be disregarded by either court or jury. 117 Ark. 483; 101 Ark. 532. The duty rested upon appellee to show that appellant had notice of the unsafe condition, or an opportunity to discover same, before he could recover.

      Reed & Beard and Trimble & Trimble, for appellee.
    A peremptory instruction in favor of appellant was properly refused. There is no evidence that appellee was guilty of negligence. 42 Ark. 321. It is for the jury to say whether or not appellee exercised ordinary care for his safety. 144 Fed. 948. Appellee had a right to be on the depot platform, and it was the duty of the company to see that its platform was in reasonably safe condition. 102 Ark. 505.
   McCulloch, C. J.

Appellee claims that he received severe personal injuries by falling into an uncovered coal-hole in the platform at appellant’s station building at Lonoke, and he instituted this action against appellant to recover damages, alleging negligence in failing to exercise ordinary care to keep the premises safe. There was a trial of the issues before a jury, which resulted' in a verdict in appellee’s favor assessing-damages, and an appeal has been prosecuted from the judgment.

It is conceded that the court’s charge to the jury was a correct statement of the law, and the sole ground urged here for reversal of the judgment is that the evidence is not sufficient to establish negligence on the part of appellant or its servants.

According to the testimony of appellee and other witnesses introduced, the injury occurred about one o’clock on the morning of July 11, 1922, when appellee went to the station to meet a passenger train, on which a friend of his was expected to arrive. Appellee had an engagement to meet his friend, and, as before stated, went to the station for that purpose.

On the station platform, near the west wall of the ■ building, there was a hole, or door, for the purpose of depositing coal in the basement. This door was usually kept covered with a metal covering, which fitted over the opening and was about flush with the floor, so that it could not be displaced without lifting it. The covering was not.fastened; it had no lock on it, and the hinges originally on it had been broken off several years prior to this occasion, and had never been replaced. Appellee testified that he did not see the opening, and that, after the signal was given from the approaching passenger train, he stepped .back into the hole, and was injured. His testimony was corroborated by that of a companion who was with him at the time he was injured, and the testimony, of other witnesses tended to show that appellee fell into the hole and was severely injured. This is contradicted by witnesses introduced by appellant, who stated that the covering of the hole was in place the next morning, and that appellee could not have fallen in as- claimed.

The station agent employed by appellant, and the porter, each testified that they left the station each night about seven o’clock, or a little thereafter, and that, before leaving, the porter always placed the baggage trucks parallel with the west wall of the station, so that the coal-hole was covered, and that the wheels of the trucks were spragged so that the trucks would not roll away. After the departure of the station agent and porter, there was no other' servant of the company at the station throughout the night, except the night operators, two of whom were on duty at different hours throughout the night. The night operator who was on duty at the time appellee was injured was introduced as a witness, hut he stated that he knew nothing about appellee’s injury until several days after it was said to have occurred. He testified that it was his custom to switch on the lights outside of the office a few minutes before the arrival of the train, and that on the night in question he did so after the signals were given. Electric lights’were burning in the operator’s office all night, and the other lights were turned on as the train approached. The lights in the office, according to the testimony of this witness, threw a dim lig’ht on the platform.

The porter testified that, on the night in question, he left the trucks in the usual place, over the opening, and that the cover' of the opening was in place. The station agent testified that he usually looked around the station to see that the trucks had been placed before he left. It cannot be said, however, that this testimony is uncontradicted, for there is a positive contradiction as to the condition of the covering of the coal-hole the next morning. We think there was enough testimony to justify the submission to the jury of the issue of negligence. The fact that the coal-hole was uncovered and open when appellee fell into it is established bv positive evidence, and, under all the circumstances, the jury were warranted in drawing the inference that the hole was left uncovered that night. No one else had been seen about there, and one of the night operators was there in the office at all hours. The jury were also warranted in finding that there was negligence on the part of appellant in failing to have the covering more secure. The proof shows that originally there were hinges on the door, but that they were broken off and were never replaced, and that there was no lock or any other kind of fastening.

Appellee was not a trespasser on the platform, nor even a bare licensee, for, according to the testimony, he went there for the purpose of meeting an expected passenger, and was therefore upon the premises of appellant by its implied invitation, and was entitled to the exercise of ordinary care on the part of appellant in maintaining the premises in a reasonably safe condition. Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278.

There is no complaint made here concerning the correctness of the court’s charg’e to the jury, and, as the evidence is sufficient to sustain the verdict, the judgment should be affirmed, and it is so ordered.


text:
    Barry v. Armstrong.
    Opinion delivered December 10, 1923.
    1. Process — waiver op objection — Error in refusing to quash service of process is waived by filing an answer and cross-complaint without expressly reserving defendant’s rights.
    2. Sales — instruction as to place .op delivery. — Where a shipper of cotton agreed to deliver same to buyer at destination, an instruction which assumed that delivery was to be made at the point of delivery to the carrier was properly refused.
    3. Sales — consignment to shipper’s order. — Where a seller consigns a shipment to his own order, thus manifesting his intention to reserve his dominion and right of disposition over the property, nothing else appearing to manifest an intention to pass the title, such consignment does not constitute a delivery to the purchaser.
    4. Sales — agreement to settle by weights at designated point.— Where sellers of cotton made shipment to their own order at a designated point, for delivery to the purchasers on payment of a draft attached to bill of lading, they made the carrier their own agent and were responsible for its unauthorized diversion of the shipment to another point, so that the purchasers were not hound by an agreement to settle according to the weights at the agreed destination, but could recover for actual losses in weight at the point to which the shipment was diverted, on proving that they were correct.
    5. Appeal and error — instruction—harmless error.- — In an action for loss in weight of cotton consigned to plaintiffs’ order at a designated place, from which the carrier diverted it to another place, an instruction that, if -it was agreed between plaintiffs and defendants that settlement -should be made according to the weights at original destination, the burden was on plaintiffs to -show what the loss would have been if it had been weighed there as agreed, was not prejudicial to defendants, as plaintiffs were entitled to recover on the basis of the weights at the place -of actual delivery.
    6. Appeal and error — invited error. — In an action for loss of weight in cotton, ,as shown by the compress weights at a place to which it was diverted by the carrier, where defendants attacked the reputation of -the weigher at such point, they cannot complain that plaintiffs -introduced testimony as to such weigher’s good reputation.
    Appeal from Sebastian Circuit Court, Fort .Smith District; John Briszolara. Judge;
    affirmed.

      Cravens, Oglesby & Cravens, for appellants.
    1. Personal service obtained by inveigling or inducing one into the territorial jurisdiction of a court by fraudulent means, or by trick or device, is illegal, and should be quashed. 32 Cvc.. 448; 53 N. J. Eq. 91; 55 N. Y. App. Div. 292; 67 N. Y. Sup. 165.
    2. None of the instructions given covered the appellant’s theory of the case, although there was evidence to support it, and it was therefore error to refuse requested instructions covering that theory. 149' Ark. 225.

      Warner, Hardin & Warner, for appellees.
    1. Having pleaded to the merits, not only answering, but also having filed a cross-complaint, without reservation as to the point raised by the motion to quash the service, appellants entered their appearance and waived the error, if any, in overruling that motion. 90 Ark. 316; 4 C. J. 1337, § 28; 139 Ark. 590, 593. However, on the merits of this proposition, there was no evidence which lants to come within the jurisdiction of the court. 150 N. W. 669, syllabus 4; 49 L. ed. (U. S.) 988; 24 Fed. 439; Ann. Cas., 1916-C, 614. The trial court heard the testimony on the issues of fact involved in the motion and made its finding' upon them. Its finding- is conclusive here. 150 Ark. 43, 51.
    ■ 2. Appellants, having failed to abstract the instructions given, requested and refused, will not be heard to urge error in refusing to instruct on their theory of the case. 126 Ark. 562.
    3. There was no breach of the contract on the part of appellees, growing out of the delivery of the cotton at Van Burén. If there was any breach in that respect, it was on the part of appellants. 88 Ark. 557. The consignment was to appellants’ own order, did not constitute delivery to appellees. 154 Ark. 92, 94.
    4. The reputation of Keith, the weigher at Van Burén, was, under the issues raised in this case, competent, and it was not error to admit testimony to prove it, appellants having attacked his reputation as a weigher, by attacking the reliability of the weights at this compress. 34 Cyc. 1624; 80 Mo. App. 638; 111 Ark. 337; 3 Labatt on Master & Servant, 2 ed., § 1079; 199 Mass. 254; 136 S. W. 435; 45 Ark. 318. If this testimony was not competent, appellants invited it, and therefore cannot complain. 54 Ark. 30.
   McCulloch, C. J.

Appellees purchased two hundred bales of cotton from appellants during the month of January, 1920, at thirty-nine cents per pound, and it was agreed that payment for the cotton should be made according to gin weights, but that final- settlement was to be made in accordance with compress weights after the cotton should be shipped by appellants to appellees- and received by the latter. ' Appellants shipped the cotton by rail from Okemah, Oklahoma, to Fort Smith, consigned to themselves, and mailed to appellees a draft for the price, according to gin weights, with bills of lading attached. The shipment was diverted from Fort Smith to Van Burén on account of the embargo at Fort Smith, but the testimony introduced in the present litigation establishes the fact that this diversion was not made by the carrier at the instigation either of the appellees or appellants. Appellees paid the draft and took up the bills of lading, and caused the cotton to be weighed at the compress at Van Burén. According to these weights there was a loss in the weight of the- cotton sufficient to amount to the sum of $683.18 at the purchase price paid for the cotton, -and appellees instituted this action in the -circuit court of Sebastian County (Fort Smith District) to recover this amount.

Appellants moved to quash the service on the ground that they resided in the State of Oklahoma but were served with process in Sebastian County, and that.they were induced by appellees to go from their place of residence in Oklahoma to the city of Fort Smith for the ostensible purpose of adjusting the differences between the parties, but that plaintiffs fraudulently took advantage of their presence thus obtained in Sebastian County to cause process to be served on them in this case.

The court heard oral testimony on the motion to quash the service, and overruled the motion, whereupon appellants filed their answer, and also filed a cross-complaint against the Missouri Pacific Railroad Company, the carrier of the cotton, over whose lines it was shipped, and asked that the latter be made a defendant in the case, which was done.

There was a trial of the issues before the jury, which resulted in a verdict in favor of' appellees for the amount claimed, and judgment was rendered accordingly.

It is first contended that the court erred in refusing to quash the service, but we must treat the motion to quash as having been waived by reason of the fact that appellants, without preserving their rights in that respect by an express reservation in their subsequent pleadings, filed an answer as well as a cross-complaint, thus voluntarily submitting to the jurisdiction of the court. This constituted a waiver, and it is too late now to raise the question of insufficiency of the service, or fraud in procuring the service. Tindall v. Layne, 139 Ark. 590.

Objection is made to portions of the court’s charge on the ground that it failed to submit appellants’ theory of the case to the jury. There is very little, if any, material conflict in the testimony concerning the contract between the parties and its effect. Appellees were engaged in the cotton business in Muskogee, Oklahoma, and appellants were engaged in the same business at Okemah, Oklahoma, and during the month of January, 1920, the parties entered into an agreement for the sale of two hundred bales of cotton by appellants to appellees at the price of thirty-nine cents per pound, the price to be paid according to gin weights, subject, to final adjustment in accordance with compress weights after shipment and delivery to appellees. It was agreed that the cotton should be shipped by rail to Fort Smith, consigned to appellants’ order, with draft on appellees attached to the bills of lading. There is a slight difference in the statements of the parties as to the precise words of the agreement, but little difference as to the effect. Mr. Vann, one of the appellees, who conducted the negotiations with appellants, testified that there was an embargo on compresses in that locality, except at Fort Smith and Van Burén, and that he expressed a willingness to have the cotton shipped to either place, but that appellants claimed that they had had trouble with weig’hts at the Van Burén compress, and preferred to ship to Fort Smith, to which he readily agreed. Mr. Barry, one of the appellants, testified that he objected to shipping to Van Burén, and declined to do so on account of having had trouble with the compress weights at that place, and that he insisted on shipping the cotton to Fort Smith, to which Mr. Vann agreed.

The evidence is sufficient to show that appellants were unwilling to ship the cotton to Van Burén, and that there was an express agreement that it was to be shipped to Fort Smith, consigned to appellants’ own order.

There is no testimony at all that either party was responsible for the diversion of the shipment from Fort Smith to Van Burén.

Counsel for appellants contend that the court excluded their defense by refusing to give the following instructions:

“1. If you believe from the evidence that defendants sold to plaintiffs two hundred bales of cotton, to be weighed at Fort Smith compress, and with the distinct understanding that the cotton was not to be weighed at Van Burén compress, and was delivered to plaintiffs at Okemah, Oklahoma, and you further believe that said cotton was weighed at Van Burén, Arkansas, without the consent of Barry Bros., then your verdict should be for the defendants.”
“3. You are instructed that the defendants had the right to sell the cotton in question with a stipulation or agreement that they would not be bound by the weights of said cotton if weighed at the compress at Van Burén, Arkansas, and if you find from a preponderance of the evidence that this agreement was made at or before the time of sale, and that the defendants, after said sale was made, and at the request and under the direction of the purchasers, Armstrong-Vánn & Co., delivered said cotton to the Fort Smith and Western Railroad at Okemah, Oklahoma, to be delivered to Fort Smith, Arkansas, and was thereafter, without fault on the part of the defendants, diverted to and weighed at the compress at Van Burén, Arkansas, then the defendants would not be bound by such weights as shown by the Van Burén compress, nor liable to the plaintiff for any damage on account of loss of weight, if any is shown.”

There was no testimony tending to show that there was a delivery of the cotton to appellees at Okemah, Oklahoma, therefore the court was correct in refusing to give this instruction on that account. The undisputed evidence gs that the cotton was to be shipped to appellants’ own order at Fort Smith, and delivered there to appellees, upon payment of the draft attached to the bills of lading. That instruction was also erroneous, as will be seen in the discussion of the other instructions hereafter, in denying appellees recovery on account of loss in weights merely because the cotton was not weighed in Fort Smith.

Instruction No. 3 was erroneous in telling the jury that the shipment of the cotton to Fort Smith constituted a delivery to appellees, and that for that, reason appellees could not recover for loss of weights except as shown by the compress weights at Fort Smith. According to the undisputed evidence, shipment was made to appellants’ own order, and, nothing else being proved to manifest the contrary intention of the parties, this constituted a reservation of the title, and the delivery to the carrier was not a delivery to the purchaser. In a recent case we said that “where the seller consigns the shipment to his own order, thus.manifesting his intention to reserve his dominion and right of disposition over the property, nothing else appearing to manifest an intention to pass the title, such consignment does not constitute a delivery to the purchaser.” Richardson v. Fowler Commission Co., 154 Ark. 92, and cases there cited. Appellants having reserved their dominion and control over the cotton by consigning it to their own order at Fort Smith, made the carrier their own agent, and they alone are responsible for the unauthorized diversion. Appellees were therefore not bound by the agreement to settle according to the Fort Smith weights, unless appellants gave an opportunity to ,carry out that agreement by re-weighing the cotton at Fort Smith. There is no 'contention that appellants gave an opportunity to re-weigh the cotton at Fort Smith, and they could not, therefore, escape liability for loss in weights merely because the carrier, as their agent, had diverted the cotton to another place. The agreement was, as before stated, to make final settlement upon the compress weights at Fort Smith. The agreement was that the cotton was to be shipped to Fort Smith, and that the compress weights were to be the basis of final settlement, and this necessarily meant the compress at Fort Smith. There was no agreement that the parties should be bound by the compress weights at Van Burén, or at any place other than Fort Smith, but, since the cotton was not delivered to the compress in Fort Smith, appellees were entitled to recover for actual losses in weight. The parties were not bound by the compress weights at Van Burén unless they were correct weights, and the burden of proof was on appellees to show that those weights were correct.

It is insisted that the court erred in giving the following instruction at the instance of appellees:

“9. Even though you may find that it was a part of the agreement of sale, if you so find, that the cotton was to be shipped to Fort Smith, yet if you believe from a preponderance of the evidence that there was actual loss in weights, the defendants would be liable for such loss in weights, if' any shown by the evidence, and the plaintiff would be entitled to recover the value thereof according to the sale price, together with interest at the rate of six per cent, per annum. ’ ’

This instruction was in accordance with the views of the law which we have just expressed, and there was no error. It told the jury, in substance, that, even though the cotton was to be shipped to Fort Smith, if there was, in fact, an actual loss in the weights, appellants would be liable for the loss, based on the price of the cotton. There was, as before stated, no issue of fact as to the appellees being responsible for the diversion of the shipment.

Objection was also made to the following instruction given by the court of its own motion:

“A. If you believe from the evidence defendants sold plaintiff certain cotton, and it was agreed that said cotton was to be weighed at a certain point, and settlement for loss of weight, if any, was to be made accordingly, then the burden of proof rests upon the plaintiff to show what the loss of weight would have been if said cotton had been weighed as agreed.”

If there was any error in this instruction, it was not to appellants’ prejudice. As we have already said, the burden was on appellees to prove the actual weight of the cotton, as the parties had not agreed to be bound by the Van Burén compress weights, and were not bound. But the instruction was too favorable to appellants in telling the jury that, if there was an agreed place for the re-weighing of the cotton, the burden would be upon appellees to show what the weights would have been if it had been re-weighed there. Appellees were not bound to cause the cotton to be weighed at the agreed place, after it had been diverted by the carrier, without their consent, therefore they were not bound to show what the weights would be at that place before they could recover. They had the right to ascertain the actual weights, and were entitled to recover on that basis. Appellees introduced the Van Burén compress weights, and proved that they were correct, and the recovery is authorized, based on these weights, not because there was any agreement to be bound thereby, but because the weights were founl by the jury to be correct.

Finally, it is insisted that the court erred in permitting appellees to introduce testimony as to the good reputation of the man who weighed the cotton at Van Burén. The answer to this contention is that appellants themselves attached the reputation of the weigher at Van Burén, and this invited the introduction of the testimony on that subject. They are therefore in no attitude to complain of the error of the court in permitting testimony in that direction to be introduced. In other words, the error was invited by appellants themselves.-

No error' is found in the record, and the judgment is therefore affirmed.


author: McCulloch, C. J. Hart, J.

text:
    Moore v. North College Avenue Improvement District No. 1.
    Opinion delivered December 10, 1923.
    1. Pleading — sufficiency on demurrer. — In determining the sufficiency of the complaint, as against a demurrer on the ground that . the facts are insufficient to .constitute a cause of action, the allegations must be taken as true.
    2. Municipal corporations — improvement district — limitation.— An action to test the validity of the organization of a street improvement district may be brought more than 30 days after the city council has .ascertained that the majority of the property owners have signed the petition for formation of the district; Crawford & Moses’ .Dig., § 5653, relating only to a review of the findings of the city council as to such majority, and not to attacks upon the organization of the district for jurisdictional defects.
    3. Municipal corporations — statute validating improvement districts. — Act of October 13, 1923, which, in effect, suspended or withdrew the authority of rural road districts over streets which are the subjects of municipal improvement districts, and validated the latter districts, held valid and retroactive, so as to validate a municipal improvement district whicli had been attacked by the property owners.
    4. ' Municipal corporations — statute validating improvement districts. — Act of October 13, 1923, which, in effect, suspended or withdrew the authority of rural road districts over streets which are the'subjects of municipal improvement districts, arid validated the latter districts, was effective retroactively as to a municipal improvement district which was in litigation and pending on appeal at the time of its passage.
    5. Municipal corporations — improvement districts — legislative power. — When a street in a city or town needs improving, a majority of the owners of property to be affected have a right to provide therefor, in the manner authorized by the statute, by the formation of an improvement district, and it is within the power of the Legislature to withdraw any authority previously • conferred upon a rural road improvement district.
    6. Municipal corporations — review op assessments. — A complaint in an action to review assessments made by a municipal .street improvement district which alleged, in general terms, that the assessments were excessive, arbitrary, discriminatory, inequitable and unfair, and not according to the value of the benefits, and also alleged that church property “had been favored,” and mentioned a certain property with its value and assessed benefits without stating that it was under-assessed, held not to state facts calling for a review of the assessments.
    7. Municipal corporations — review op assessments — pleading.— In order to call for a review by the courts of an assessment of benefits made by an improvement district, facts showing the assessments to 'be unjust and discriminatory must be properly and directly pleaded.
    Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      E. B. Wall, for appellants.
    1. For the purpose of testing the sufficiency of the complaint on demurrer, all its allegations of fact must be taken as true. 141 Ark. 8; 134 Ark. 106, 107; 31 Ark. 657; 77 Ark. 1; 110 Ark. 423; 107 Ark. 142; 75 Ark. 64; 90 Ark. 158; 96 Ark. 371.
    2. It is therefore admitted as true that the control of the street, for the purpose in question, was vested in the county court, or judge thereof, acting through the road commissioners, at the time the street improvement district was organized, and still remains so vested. 97 Ark. 318, 321; 56 Ark. 205. Therefore the city council had no control or jurisdiction over the subject-matter, and was without authority to create the district. Moreover, the control of this street was still vested in the county ■court and road commissioners, by virtue of the special act No. 52, approved February 4, 1920, and referred to in the amended complaint. 118 Ark. 119; 130 Ark. 507; 139 Ark. 153; Id. 168; Id. 277. The power of the Legislature, in all matters of taxation, is limited only by the ■Constitution. 4 Dillon on Municipal Corporations, § 1366, pp. 2371-2374; Constitution, art. 2, § 23; art. 12, § 2; art. 16, § 5; art. 19, § 27.
    3. The city council could not legally superimpose one district upon another, under the facts stated in the complaint. The result of the organization of the street improvement district was to create a second improvement district, for one and the same purpose, so far as pertains to the street in question, as that for which the road district was created, and it is therefore void. 123 Ark. 467, 470; 3 Dillon, Mun.- Corp., § 1140, p. 1812 and note; 24 111. 496.
    4. The assessment per se was illegally and improperly made. The allegations pertaining to the assessment may have been open to a motion to make the same more definite and certain, but we insist that they were impervious to a general demurrer.

      George A. Hurst, for appellees.
    Appellant declined to plead further. Therefore, even if the demurrer should have been treated as a motion to make more specific, it was proper to render judgment for the defendants. 132 Ark. 528. A complaint must state every essential element of the cause of action, and mere conclusions of law cannot take the place of such allegations. If it is defective in this respect, it is demurrable. 110 Ark. 423; 72 Ark. 478; 121 Ark. 261; 17 Ark. 445 ; Id. 603; 34 Ark. 169; 35 Ark. 555. .Since the original complaint was filed more than two and one-half months after the city council had passed on the second petition, plaintiffs were barred from questioning the validity of the district. C. & M. Digest, § 5652; 131 Ark. 28; 134 Ark. 315. If a complaint fails to state a cause of action at all, it cannot be amended on motion to make more specific. 110 Ark. 130-139. Appellants never having requested a reduction of their assessments, or that they be given credit for any former improvement made, they cannot question the validity of the assessments here. 148 Ark. 623. The allegations as to double assessment amount to a mere abstract conclusion of law, which is refuted by allegations preceding it in the complaint. Moreover, the inclusion of the same territory in a new district does not of itself impute double assessment. 109 Ark. 97; 103 Ark. 463, 464; 121 Ark. 16.
   McCulloch, C. J.

Appellants, who were plaintiffs below, are owners of real property in an improvement district in the city of Fayetteville, organized for the purpose of paving a street designated as North College Avenue, and they instituted this action in the chancery court, attacking the validity of the organization, as well as attacking the correctness of the assessment of benefits of their respective properties. The action was commenced more than thirty days after the city council passed upon the petition of property owners asking for the improvement and appointed the board of commissioners, but it was commenced within thirty days after the city council approved the assessment of benefits. The court sustained a demurrer to the amended complaint on the ground that facts were not stated therein sufficient to constitute a cause of action. We therefore have to deal only with the question of the sufficiency of the complaint, and in doing so we must treat the allegations as true.

■Counsel for appellees insist that the demurrer was properly sustained to that part of the complaint which relates to the attack on the validity of the organization of the district on the ground that the action was not commenced within thirty days, as provided by' statute (Crawford & Moses’ Digest, § 5653), after the city council ascertained that a majority of property owners had signed the petition for the improvement. The answer to that contention is that the statute referred to applies only to a review of the findings of the city council as to a majority of property owners signing the petition — not to jurisdictional defects in the organization of the disT trict.

The point of attack of appellants on the validity of the statute is that there had been previously organized and put into operation, under general statutes (Crawford & Moses’ Digest, § 5299 et seq.), a road improvement district for the purpose of improving a road running to and through the city of .Fayetteville and including North College Avenue, that the territory of the district now under review overlaps the territory of said road district, and that the present organization constitutes an encroachment on the road district and causes double taxation on property in the district for the same improvement. According to the allegations of the complaint, a road district, designated as Road Improvement District No. 2 of Washington County, was organized under general statutes in the year 1918, for the purpose of improving (paving with gravel or rock) a road extending through Washington County from the Crawford County line to the Madison County line, through the city of Fayetteville and along North College Avenue; that “all or nearly all of the real estate within the corporate limits of Fayetteville is being taxed for said road district,” and that “said road district is still in progress, but that no work has as yet been done on the North College Avenue part thereof.” It is also alleged in the complaint that said road district organization was validated by special statute enacted by the extraordinary session of the General Assembly in 1920, and approved February 4, 1920. It is charged in one of the paragraphs of the complaint, and it is contended in the argument here, that, ‘ ‘ assuming the validity of the organization of said district, the necessary effect will be to withdraw, for the purpose of making said improvement, the streets and parts of streets constituting the said roadway or improvement through the corporate limits of the city of Fayetteville from the control of the city and to vest said control in the Washington County Court, until said improvement within the corporate limits has been made, and that said improvement through said corporate limits has not, as yet, been made;” and that “the municipality has been divested of all authority over said roadway within the corporate limits, including North College Avenue.”

Counsel for appellees bring to our attention a general statute (containing the emergency clause) enacted by the G-eneral Assembly at the recent extraordinary session, and approved October 13, 1923 (after the rendition of the decree in this case), which reads as follows:

“Section 1. That no road improvement district within this State shall in any way. affect the validity of any municipal improvement district which is organized for the purpose of paving streets over which any road improvement district may pass.
“Section 2. All municipal improvement districts heretofore organized, and which are included in road improvement districts heretofore organized, are hereby declared to be valid.”

The question of the validity of this statute and its effect on the present litigation presents itself. "Appellants contend that the statute is only prospective — not retroactive — in its terms and application. We do not agree to that view. The statute is necessarily retroactive if it. can be legally made so, and is by its terms applicable to municipal districts theretofore organized. The fact that the statute was enacted since the rendition of the decree below does not prevent its having effect now. Sudberry v. Graves, 83 Ark. 344. The effect of the statute is to suspend or withdraw the authority of rural road districts in the improvement of streets in municipalities which are the subject of districts organized in municipalities for that purpose, and to validate municipal improvement districts organized to improve streets included in a general road district.

We conclude that the statute is valid and is applicable to the present controversy, for its effect is such as could have been imposed before the organization of either district, and it prescribes only such restrictions as could have been declared by law in the first instance. Sudberry v. Graves, supra.

There are no allegations in the complaint which show that the application of the statute in suspending the authority of the road district as to improvement of the street in question would result in an impairment of the obligation of a contract, or would result in unjust inequalities in taxation, or in taking property without due process of law. It is true that the complaint contains an allegation that the operation of the municipal district will result in double assessments for the same improvement, but this is merely a statement of a conclusion, and not facts upon which the conclusion is based. It is not shown that there are inequalities which cannot be removed in the assessment or reassessment of benefits in either of the districts as provided by law. Sembler v. Water & Light Imp. Dist., 109 Ark. 90; Van Dyke v. Mack, 139 Ark. 524. The complaint shows on its face that no work has been done by the road district in the improvement of this particular street, and the matter is within legislative control. Van Dyke v. Mack, supra.

When a street in a city or town needs improving, a majority of the owners of property to be affected have a right to provide therefor; in the manner authorized in the statute, by the formation of a district, and it is within the power of the lawmakers to withdraw any authority previously conferred on a road-district. All of the constitutional requirements are complied with when the will of the majority of the owners of property in a municipal district is ascertained.

The next question presented is whether or not the allegations of the complaint are sufficient to state facts and constitute grounds for reviewing the assessment o'f benefits to the property of appellants. The complaint contains statements as to the respective amounts of assessed benefits to property of appellants in each of the districts, and states in general terms that the assessments are excessive, and that they are “arbitrary, discriminatory, inequitable and unfair,” and are not “according to value of benefits.” There is an allegation that church property and other valuable properties in the district “have been favored.” The complaint also mentions specifically a particular piece of valuable property, stating its market value and also the assessed value of benefits, but there is no allegation that this particular property has been under-assessed. These are mere conclusions, and do not show facts upon which the conclusions are based. The allegations are not sufficient to call for a review of the assessments made by the board of assessors. Moore v. Board of Directors, 98 Ark. 113; McClelland v. Pittman, 139 Ark. 341.

A judicial review of assessments, even in a direct proceeding, as in this instance, does not authorize the substitution of the court’s judgment for that of the assessors, unless facts are shown which render the assessments unjust and discriminatory, and these facts must be properly and directly pleaded before a court should enter upon the investigation.

Our conclusion therefore is that the demurrer was properly sustained by the court, so the decree dismissing the complaint is affirmed.

Hart, J., dissents; Humphreys, J., did not participate.

DISSENTING OPINION.

Hart, J.

I entertain no doubt but that the facts alleged in the complaint are sufficient to put in issue the question of the assessment of benefits on the lots of appellants as being discriminatory. ' Inasmuch as the facts upon which my dissent is based are not fully stated in the majority opinion, it becomes necessary for me to write my reasons for dissenting.

It is true that the rule is settled in this State that mere conclusions of law are not to be pleaded, and that mere allegations that the assessments of benefits are discriminatory or confiscatory may be reached by demurrer. The reason is that it is within the province of the court to apply the law to the facts, and this cannot be' done unless the ultimate facts are pleaded. But this rule does not'extend to conclusions of fact. ' Inasmuch as it is the ultimate and not the probative facts which should be alleged or averred, where the facts are defectively stated the remedy is to correct the defect by a motion to make more definite and 'certain, and not by demurrer.

This court has repeatedly and uniformly held that the object of the Code system of pleading is to force a trial oh the merits. A pleading is but the statement of the claim or the defense of the pleader. It seems to me that the allegations of the complaint were sufficient to put the defendants upon notice upon what facts the plaintiffs relied to prove that the assessment of benefits as to them were discriminatory.

In the case at bar, paragraph 17 of the complaint first alleges that the assessment of benefits in the improvement district in question is arbitrary and discriminatory. 'Continuing, it alleges the following:

"‘That the most valuable property has been favored and the burden placed upon the smaller property owners. That all church property has been favored. That some of the most valuable resident property has been favored; and, on this point, plaintiffs instance lot 4, block 18, owned by Geo. Appleby, worth approximately $48,000, and assessed at $2,417.57.”

Paragraph 13 of the complaint contains a particular description of the lots of the plaintiffs, together with the amount of the assessment of benefits opposite each particular tract. For instance, it alleges that A. I. Moore owns lot 18, block 1, assessed at $570.84, and that Moses Baum owns lot 2, block 10, assessed at $1,235.76. The corrected assessment of benefits is also specifically made a part of the complaint, and is made an exhibit thereto. It contains the particular description of the church lots, together with the name of the church owning the lots, and the amount of the assessment of benefits opposite the description. It appears, for instance, that the lot of the First Presbyterian Church is assessed at $1,265.63. The court sustained a demurrer to the complaint, therefore its allegations must be taken as true.

Here then we have an allegation that the lots of the plaintiffs, which are specifically described, were assessed for the building of the street in question at certain amounts, which are set opposite the description. The plaintiffs also sets out the description of the three churches in the district and the amount of benefits assessed against each church. It also contains a particular description of the property of 'Geo. Appleby, and the amount of benefits assessed against it. The complaint then alleges that the assessment against the property of the plaintiffs, as compared with the property of the churches and Appleby, is discriminatory. If the complaint is to be a statement of the claim of the plaintiffs, I think that the above facts, inferentially at least, contain a statement of facts which should put' the parties to the proof. As we have already seen, it is not necessary to state the evidential facts. It is only necessary to plead the ultimate facts upon which the pleader relies. The facts stated, it seems to me, would admit proof of the alleged discriminatory character of the assessments.

Moreover, § 16 of the complaint alleges substantially that the assessment of benefits is arbitrary and discriminatory, because such assessment absolutely, ignored the assessment of benefits made in the road district, and, without allowing any credit or reduction for the road district improvement, assessed benefits de novo for the North College Avenue Improvement District.

Other paragraphs of the complaint allege that the road district is still in progress; that the road district was paying nothing towards the construction of the improvement of North College Avenue; that two and a half miles of the streets of the city of Fayetteville are included in the route of the road district; that the road district contemplated the improvement of these two and a half miles of street by making them a macadam roadway, in like manner as the rural part of the public roads to be improved.

The complaint also alleges that the assessment of benefits of the road district was first made as if the two and a half miles of streets in Fayetteville, including North College Avenue, were to be a part of Said improved roads; that, after the improvement district was formed to pave North College Avenue, the property in that district which had been assessed in the road district, was again assessed, without taking into consideration the fact that it had been assessed to construct the improved public road. I think that these facts are sufficient to allege that the assessment of benefits in the North College Avenue Improvement District is discriminatory.

It seems to me that, under the allegations of the complaint, viewed either as a city improvement district or as a component part of the road district, the property in the city improvement district is subject to be taxed in excess of the tax or assessment levied against other property of the road improvement district of which it forms a component part. Hence the tax or assessment levied and sought to be enf orced in the city improvement district is amenable to objection as being discriminatory..

According to the allegations of the complaint, two and a half miles of the road to be improved was in the city of Fayetteville. While this court has held that the streets of a city may be included in a road improvement district, it has not heretofore held that a road improvement district might be formed to reach to one boundary of a city, and then jump across the city to another boundary and be continued as the same improvement. If this could not be done in the first instance, it could not be done at any subsequent time, without breaking the continuity of the road to be improved and thus creating two distinct improvements. I do not think that two roads, disconnected from each other for 2% miles, in so far as the improvement is concerned, could be embraced in one improvement district; and, if that is so, I do not think that an improvement district could be organized in a city which could have that effect and still leave the road improvement district in operation. The very situation that has arisen here impresses me more vividly than before that the framers of our Constitution never intended that public roads should be constructed by road improvement districts.


author: Hart, J.

text:
    Kirten v. Chicot County Drainage District.
    Opinion delivered December 10, 1923.
    1. Drains — special term op circuit court. — Under Crawford & Moses’ Dig., § 3607, providing that, if lands in a drainage district are in one county, the county court shall have power to establish the district, but, if the lands are in more than one county, the application shall be addressed to the circuit court of either county, and § 3647, providing that ‘‘the county and circuit court may, at the request of the commissioners of the district, at any time, hold special sessions for the purpose of acting upon any petition or report, or making any order in a matter involving any drainage district,” held that the circuit court has jurisdiction to hold a special term, not only where it has formed a drainage district, but also to hear an appeal from the county court questioning the correctness of drainage assessments.
    2. Drains — special term op court. — Where, upon appeal to the circuit court from an order of the county court refusing to set aside a drainage benefit assessment, the appeal was, by consent, continued until the next term, the court had jurisdiction to hear the appeal at a special term held before the next regular term; the order for continuance merely excusing further attendance upon this court.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      Wm. Kirten, pro se.

    This drainage district being wholly in Chicot County, the circuit court was without original jurisdiction thereof, and had no power to call a special term to try matters relating to the same. C. & M. Digest, §§ 3607, 3647.

      Carmichael da Kendricks, for appellant.
    1. The circuit court lost jurisdiction by making the order of continuance. 37 Pac. 548, 551; 2 Okla. 180; 85 Ark. 200; 0. & M. Dig., §§ 1270,1272; Id. §§ 6290; 2211, 2218, 1325.

      2. Crawford & Moses’ Digest, § 3647, applies to the organization and formation of districts, and not to the procedure after they are organized. It does not give the circuit court power to hold a special term of court upon the petition of the commissioners of the district. The evident meaning of the statute is that the county court shall -act when the district is wholly within one county, and that the circuit court shall act when the district includes lands within two or more counties. See the act, of which this section, § 3647, is § 15. Acts 1913, p. 748; also § 21, and § 1, at page 742, and § 2; C. & M. Dig. § 3607.

      N. B. Scott, J. G. Gillison and Bose, Hemingiuay, Cantrell Loughborough, for appellee.
    This court has settled the question as to the validity of statutes such as C. & M. Digest, § 3647, in favor of its validity. 135 Ark. 196; 150 Ark. 157; 159 Ark. 298. The statute authorizes the circuit court to meet for the purpose of “making any order in a matter involving any drainage district;” and' that is equivalent to saying “every possible order.” Century Diet., “Any.” The concluding sentence of § 3638, C. & M. Digest, as printed, is meaningless. In the original act it reads: “And this act shall apply to the organization of districts, the main object of which is the construction of levees.” The purpose and intent of the entire act is to hasten proceedings leading up to reclamation work. See §<§, 3644, 3636, 3615, 3617, as well as the section 3647 in question. If the case was continued to the next term, that fact would not prevent its being called up at a special term called and held for that purpose.
   Hart, J.

This appeal questions the jurisdiction of the circuit court to hold a special term to consider an appeal from the judgment of the county court assessing benefits upon the lands of William Kirten, situated in the Chicot Drainage District.

It appears ‘from the record that the Chicot Drainage District was created by act No. 405 of the Acts of the General Assembly of the State of Arkansas of 1920, and that it has elected to become a drainage district under the general drainage acts of 1909.

Under the statute, certain landowners in the drainage district, including William Kirten, filed in the county court their written objections to the assessment of benefits made against their lands, and asked that the assessment be set aside as illegal and void for the grounds stated in their petitions. The county court found against their contention, and refused to set aside the assessment of benefits made against their lands. Judgment was entered accordingly, and the petitioners appealed to the circuit court.

At the March term, 1923, of the Chicot Circuit Court, by consent, the appeals from the county court above referred to were continued for the term. On June 18, 1923, the commissioners of the Chicot Drainage District presented a petition to the judge of the circuit court, setting forth grounds for the calling for a special term of the circuit court to consider the appeals taken by the landowners from the judgment of the county court refusing to set aside the assessment of benefits made against their lands.

After conferring with the attorneys representing both parties, and after due consideration of the petition, the circuit judge of the Chicot Circuit Court ordered the circuit court to convene in special session at nine o’clock on Wednesday, the first day of August, 1923, for the purposes set out in the petition. It was also ordered that the clerk should spread the order of record and docket all of the cases referred to in the petition, and issue subpoenas to all parties to the suit, and the petitioners were required to give notice of the order to attorneys representing litigants in the suits. This order was signed by the circuit judge on June 18, 1923. On the first day of August, 1923, the circuit court was duly convened, and proceeded to call said cases for trial. The landowners appeared specially for the purpose of questioning the jurisdiction of the court to hold a special •term for trying the causes above set forth. Their plea to the jurisdiction of the court was overruled, and, after hearing proof in the matter and the argument of counsel, their appeals from the county court were dismissed.

The correctness of the decision of the circuit court as to its jurisdiction in the premises is the only question presented for review in this court. As we have already seen, the drainage district perfected its organization under the general drainage statutes, notwithstanding it was originally created by the special act of the Legislature. The special term of the circuit court was called pursuant to the provisions of § 3647 of Crawford & Moses’ Digest, and is a part of our statutes under the title of “Alternative System of Drainage Districts.” The section reads as follows: “The county and circuit court may, at the request of the commissioners of the district, at any time hold special sessions for the purpose of acting upon any petition or report, or making any order in a matter involving any drainage district.”

The principal reliance of appellant for a reversal of the judgment is that the section in question does not refer to appeals from the county court questioning the correctness of the drainage assessments, but that it only refers to orders made by the circuit court in forming drainage districts.

Section 3607 provides that, if the lands in the drainage district' are in one county, the county court shall have power to establish the district, and that, if the lands in the drainage district are in more than one county, the application shall be addressed to the circuit court of either county, and all proceedings shall be had in such circuit court.

It is claimed that, when this section is construed in connection with § 3647, the latter section only gives jurisdiction to the circuit court where the drainage district is situated in two counties and the application to create the district is made in the circuit court. We do not agree with counsel in this contention. The language of the section does not carry on its face any such limitation or restriction, and we do not see any reason for placing such limitation upon the section, because jurisdiction for the formation of the district is given to the' county court where the lands in the drainage district are situated in one county, and in the circuit court where the lands in the drainage district are in more than one county. The original drainage act in question, which is called “An Alternative System of Drainage Districts,” in force at the time of its passage, was enacted by the Legislature in 1909. See Acts 1909, p. 829. This act was amended by the Legislature of 1913. See Acts of 1913, p. 738.

Section 15 of that act provides for special sessions in county and circuit courts in certain cases, and is § 3647 of the Digest.

' The evident purpose of the section was to facilitate the establishment of drainage districts, and the hearing of the appeals upon the assessment of benefits is just as much a part of the formation and organization of the distriqt as the other proceedings. The language of the section is broad enough to include appeals from the judgment of the county court in the matter of assessing benefits, and we can perceive no reason for limiting its scope in that respect.

Li the absence of some language of a qualifying nature, we feel constrained to hold that the language of the statute is broad enough to include appeals like the one in this case. The concluding part of the section is very broad, and provides for a special session of the county and circuit court for making any order in a matter involving any drainage district.

Again, it is insisted that the circuit court could not acquire jurisdiction on appeal, because, by consent of the parties at the March term, 1923, the cases had been continued until the next regular October term of the court. We cannot perceive how the consent to a continuance until the next term could give either party any greater rights in the premises than eonld he secured by a continuance by operation of law or by reason of the court having adjourned for the term without trying the cases. The only object of entering an order continuing eases by consent is that the parties may be excused from further attendance upon the court. In other words, the court might set aside the order, upon proper notice, and try the cases at that term of the court. If such course was not pursued, and court should be adjourned for the term, the order for a continuance amounts to no more than if the cases had been continued by operation of law because they had not been reached on the calendar before the end of the term.

In this connection it may be stated that a statute authorizing the county judge to hold a special term of the county court when the good of the county demands it, has been held valid, and is a power to be exercised largely in the discretion of the county judge. Wilmans v. Bordwell, 73 Ark. 418.

Ag&in, it was held that the Legislature may pass a statute prescribing that a court shall be open at all times for the transaction of business of an urgent character, and that the act of the judge in vacation in such cases is the act of a court. Wilmot Road Imp. Dist. v. DeYampert, 159 Ark. 298.

The special session of the circuit court in question was held pursuant to the statute, after due notice, to all interested parties, and we are of the opinion that the authority for holding the special session is included in the phrase, ‘ or making any order in a matter involving any drainage district.”

It follows that the judgment will be affirmed.