text:
    Nakdimen v. Atkinson Improvement Company.
    Opinion delivered July 4, 1921.
    1. Landlord and tenant — covenant to renew lease. — While covenants for continued renewals of leases are not favored because they tend to create a perpetuity, they are valid when there is an express covenant to that effect.
    2. Landlord and tenant — covenant to renew lease — construction. —• The general rule is that where .a provision for renewal of a lease is in general terms, the lessee is entitled to only a single renewal for the same term and at the same rent.
    3. Landlord and tenant — right to renewal op lease. — Under a lease for a ten-year period stipulating that, at the expiration of a period of ten years, the rental should be fixed by arbitration, it was intended that there should be a renewal of the lease for the further period of ten years at a rental to be fixed by arbitration.
    4. Specific performance — contracts involving skill or judgment. — Under the rule that chancery courts will not decree specific performance of contracts requiring continuous acts involving mechanical skill and judgment or technical knowledge, or acts requiring special skill, judgment and discretion, equity will not enforce specifically a contract requiring the continuous operation of an elevator.
    6. Arbitration and award — enforcement by court’ of contract to arbitrate. — Where the essence of a contract was the renewal of a lease for another term, the fixing of the rental for that period by arbitration being merely auxiliary to the main contract, the party refusing to name an arbitrator cannot be heard to complain where the court performs or provides for the performance' of such service.
    6. Landlord and tenant — renewal of lease — validity of contract. — A clause in. a contract of lease providing for renewal of the lease at the end of the term at a rental to be fixed by arbitration is not void as being too indefinite to be enforceable.

      7. Reformation of instruments — burden of proof. — While parol evidence is admissible in an action to reform an instrument on the ground of fraud or mistake, the evidence to warrant reformation must be clear and convincing.
    8. Equity — administering complete relief. — Where equity takes jurisdiction for one purpose, it takes it for all purposes, and will grant complete relief.
    9. Landlord and tenant — eviction—damages.—Where a tenant is unlawfully evicted from the premises by the landlord, he may recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord.
    10. Appeal and error — reversal—reopening chancery case — Where a decree in a chancery case is reversed and remanded for further proceedings, and it appears to the Supreme Court that the testimony' upon any branch of the case has not been fully developed, or that the court in making a finding on a particular branch of the case has proceeded upon an erroneous theory, it is within the province of the Supreme Court to allow the case to be reopened and further testimony taken on that point.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bou-rland, Chancellor;
    reversed.
    STATEMENT OF PACTS.
    This is a suit in equity by appellee against appellants‘to enforce the specific performance of a renewal covenant in a lease, and also to compel the defendants to submit to an arbitration to fix the rent as provided in the covenant of renewal.
    The lease is in writing and is as follows:
    “State of Arkansas,
    County of Sebastian, ss.
    “This instrument witnesseth a contract this day entered into by and between I. H. Nakdimen, hereinafter called the party of the first part, and Atkinson Improvement Company, hereinafter called the party of the second part, which is- in the words and figures following, towit:
    ‘ ‘ The party of the first part contemplates the erection of a six-story building upon his lot lying immediately west of and adjacent to the Merchants National Bank building, owned by the party of the second part, on Garrison Avenue, Fort Smith, Arkansas; and, for the mutual benefit of said parties of the first and second parts, they have entered into the following agreement and contract:
    '‘For and in consideration of the sum of one dollar each to the' other in hand paid, receipt of which is hereby acknowledged, and the mutual concessions, covenants and agreements hereinafter set out; the party of the first part is hereby granted the privilege and permission to use, for the period of ten years from the completion of his said building, the lobby and stairway of the Merchants National Bank Building, paying as rent and compensation for said privilege and use, to the party of the second part, the sum of twenty-five dollars per month, the said sum to be paid in advance, on the first day of each month during the said ten years; and in order to have such use and privilege said party of the first part is hereby authorized and permitted to cut through the wall of said Merchants National Bank Building, on the first floor, for the purpose of access to his elevator, which is to be so located in his own building as to be accessible from the lobby of the Merchants National Bank Building, and on the second, third, fourth, fifth and sixth floors, he is to cut archways, so as to give direct communication from his building to the said Merchants National Bank Building at the elevators in each, so that the said elevators shall be common to both buildings.
    ‘ ‘ This work of cutting through said wall shall be done in a skillful and workmanlike manner, so as not to injure or impair said wall or said building, and said openings shall be finished in the same style and material as that used in said Merchants National Bank Building; and all this work shall be done at the expense of the party of the first part.
    “It is mutually agreed that at the expiration of said period of ten years, the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein set out, shall he fixed by a hoard of arbitrators, three in number, one to be named by each of the parties hereto, and the third to be selected by the two so named by the parties hereto, and that the award of any two of said arbitrators shall be final and conclusive upon the parties hereto.
    "And it is further mutually agreed that in cutting through the said wall and making said openings and using the saíne, party of the first part must do the work and use said opening so as not to increase the rate of fire insurance upon said Merchants National Bank Building, and that if such work and use can not be accomplished without increasing the present rate of fire insurance upon said building then the party of the first part is to pay to the party of the second part said increased rate .of insurance; and he hereby obligates himself to pay the same.
    “And said party of the first part hereby obligates and binds himself to do, keep and perform all the acts and things herein undertaken by him, and especially to pay the rent herein reserved at the time herein indicated, and the rents named by said board of arbitrators; and to keep said .openings so made in the wall of the Merchants National Bank Building in repair during the life of this agreement; and the party of the second part binds and obligates itself to put no hindrance in the way of the exercise of the use of the privilege herein granted to the party of the first part, so long as he, and his heirs and assigns, keep and perform the .obligations and agreements herein assumed by him.
    “It is further agreed that the party of the first part is permitted to remove that part of the east party wall, now used exclusively for his present building, without recompense to the party of the second part, and by setting his new wall back two feet on his own property from the line between his lot and the lot of the party of the second part, lie is by this concession, to enjoy the use of the areaway (for light and ventilation), now in nse, and the additional two feet of areaway produced by setting his new wall back two feet, and the party of the second part is to also enjoy the privilege of the additional area-way so created.
    “It is further agreed that the area walls of both parties to this agreement are to be painted white and enameled.
    “In testimony whereof, the parties hereto have set their hands in duplicate; and party of the second part being thereunto authorized by resolution of its board of directors, empowering the president to execute this contract in its name, upon this 10th day of July, 1909.
    “I. H. Nakdimen,
    “Atkinson Improvement Company
    “By W. J. Echols, President.”
    The lease was duly acknowledged and recorded. Subsequent to the execution of the contract, Nakdimen conveyed a part of his property to the other appellants, and for this reason they were, also, made defendants in the chancery court.
    Under the terms of the lease, it extended over a period of ten years from the completion of the building by Nakdimen. Appellee claims that the lease contained a covenant for its perpetual renewal on a rental to be fixed by a board of arbitrators as provided in the lease.
    A short time prior to the expiration of the first term for ten years, appellee made demand upon appellants to-fix the rental for the next term by a board of arbitrators, as provided in the lease contract. Appellants refused to comply with this clause of the contract and claimed that the lease expired by its own terms at the end of the ten years, which was on the 10th of September, 1920.
    Other facts will be stated under appropriate headings in the opinion.

      The chancellor found that the lease copied above was a oontinnons contract and remained in force during the life of the buildings specified in it; that appellee was entitled to compensation from appellants in the nature of an annuity; that the lease calls for the rental value for the use of the elevator, stairway, and lobby to be fixed ■by a board of arbitrators; that appellants, upon being notified of appellee’s desire to arbitrate under the contract, refused to appoint an appraiser or arbitrator; that the reasonable rental value for a period of five years is $300 per year, payable in monthly installments of $25; that the rental value at $25 may be increased on application of appellee for any month during said five-year period by showing more than a designated number of persons occupying the Nakdimen building going in and out of the building; that, owing to the fact that the Nakdi-men building had become vacant for a period of three months next ensuing, appellants may abate the monthly payment of $25 as rent, by showing the actual number of persons going in or cut of the building are less than a designated number; that the court retained jurisdiction of the cause in regard to the rent in order to carry out its decree by appropriate supplemental orders; that the rent fixed by the court for the use of the stairway and lobby expired five years from September 10, 1920; that at the expiration of that period the arbitration clause of the contract will again be in force and then on the failure of either party to select an arbitrator the other may apply to the court to fix the rental.
    A decree was entered of record in accordance with the finding of the chancellor. Appellants, who were defendant in the chancery court, have duly prosecuted an appeal from that part of the decree holding that the lease did not expire at the end of ten years. ApphQee has been granted a cross-appeal from that part of the decree fixing the rental value of the premises.

      Warner, Eardm & Warner, and James B. McDon-ough, for appellants.

      " (1) The lease or contract terminated at the end of ten years. In construing a contract the court should construe it according to the spirit and intention of the parties. 1 Ark. 325. Where ambiguous, it should be construed against the grantor. 1 Ark. 325; 2 Ark. 491. The law looks to the substance and not to the form of the transaction. 52 Ark. 30. The contract must be construed as a whole. 94 Ark. 461; 53 Ark. 58. In construing a contract the court should ascertain the intention of the parties. 106 Ark. 400; 113 Ark. 174. The situation and relation of the parties will be considered. 105 Ark. 421. The lease might have been extended by the conduct of the parties. 61 Ark. 377; 71 Ark. 251. If the meaning of the contract is doubtful, the circumstances and surroundings and transactions become admissible. 52 Ark. 95; 46 Ark. 122; 55 Ark. 18; 90 Ark. 272; 97 Ark. 522; 90 Ark. 504.
    (2) Courts will not construe a contract as perpetual unless they are compelled to do so. Where a contract provides its duration, that clause will prevail. 101 Ark. 22. The court will construe a contract to impose an obligation in perpetuity only when the language of the agreement compels that construction. 130 S. W. 836; 120 Mo. 447; 28 Mo. 420.
    (3) Courts will not, by inference or implication, extend the duration of leases or contracts. 2 Addison Contracts, §683.
    (4) Courts will construe a contract most strictly against the party who prepared it. 84 Ark. 431; 97 Ark. 522; 105 Ark. 518; 112 Ark. 1; 115 Ark. 166.
    (5) Courts construe contracts most strictly against the party seeking to enforce it. 2 Page, Contr. §1120; 130 S. W. 836.
    (6) The contract has not the legal requirements necessary to convey an interest in real estate. Crawford & Moses’Dig., §1495; 109 Ark. 223.
    (7) The defendants were entitled to a decree modifying and rescinding the language of the contract, so as to make it a contract for ten years only. 24 Am. and Eng. Enc. of Law 647-9; 66 Ark. 155; 32 Ark. 346; 28 L. E. A. (N. S.) 785. Grant of a privilege to nse a stairway and lobby carries the meaning of an easement, and not any right or title or interest in the land. 10 Atl. 526. Such privilege is not the grant of a perpetual right. 77 Pae. 388.
    (8) A vague, uncertain and indefinite contract will not be enforced in equity. 223 S. W. 393.
    (9) The contract is not one which can be specifically performed. It calls for a succession of acts which cannot be consummated by one decree. 194 Pac. 945; 36 Cyc. 584; 68 Am. St. 749; 126 Cal. 657. A court will not enforce a contract to operate a mine. 39 Ill. App. 630; 82 S. W. 932; 462; 93 Pa. St. 434; 8 S. E. 664; 10 Wall. 339; 193 Pac. 210. The operation of an elevator is a mechanical service, and is not enforceable. 140 Am. St. 52. Contracts containing clauses for arbitration will not be specifically enforced. 36- Cyc. 577. The parties do not agree that the court may fix the rental. 123 la. 344; 6 Gill and J. 424; 6 Harr, and J. 485; 168 Mass. 339; 70 Mo. 69; 44 N. J. Eq. 349; 17 N. Y. 491; 7 N. C. 189; 1 Ohio St! 166; 3 Humph. 644.
    (10) There is no ambiguity in the contract as to the right to use the stairway and lobby for a period of ten years only. In the construction of contracts containing conflicting clauses control is given to that contract which is plain, certain and specific. 72 Ark. 630 ; 97 Ark. 322; 116 Ark. 212. A specific limitation of time in a contract controls inferences which might be drawn from other clauses'. 101. Ark. 22; 124 Ark. 90.
    (11) Even if the contract is continuous during the life thereof, that does not make it a perpetual contract. Every part of the contract must be considered. 124 Ark. 90. The courts abhor perpetuities.
    (12) Mutual concessions do not make the contract perpetual.

      Hill & Fitzhugh, for appellee.
   Hart, J.

(after stating the facts). It is the contention of counsel for appellants that under the terms of the lease contract which is copied in our statement of facts thelease expired ten years after the completion .of the Nakdimen building, which was on the 10th day of September, 1920, and that the lease contained no covenant for renewal.

On the other hand, it is the contention of counsel for appellee that the lease contained a covenant for renewal which might be exercised at the end of each succeeding ten-year period.

Covenants for renewal are frequently inserted in leases for terms of years, and they add much to the stability of the lessee’s interest, and afford inducement to make permanent improvements. The landlord is not bound to renew without a covenant for the purpose. Covenants for continued renewals are not favored because they tend to create a perpetuity. They are valid, however, when there is an express covenant to that effect. The'general rule is that where the provision is in general terms for a renewal, the lessee is only entitled to a single renewal. A single covenant to renew a lease implies a renewal for the same term and at the same rent. 4 Kent’s Commentaries; Winslow v. Baltimore & Ohio Rd., 188 U. S. 646; Taylor’s Landlord and Tenant, 9 ed., vol. 1, sec. 334; Thaw v. Gaffney (W. Va.), 3 A. L. R. 495; Hoff v. Royal Metal Furniture Co., 103 N. Y. Supp. 371; Tracy v. Albany Exchange Co. (N. Y.), 57 Am. Dec. 538; Western Transp. Co. of Buffalo v. Lansing, 49 N. Y. 499, and Cunningham v. Pattee, 99 Mass. 252.

The lease contract under consideration does not contain any express covenant for continued renewals, and the chancellor erred in holding that the lease continued during the life of the buildings specified in the contract.

On the other hand, when the lease is read from its four corners in the light of the situation and condition existing at the time of its execution, it is fairly inferable that the parties contemplated a renewal of the lease at the expiration of the period of ten years from the completion of the Nakdimen building. This is shown by the fact that the parties provided for a hoard of arbitrators to fix the rental value after that period of time expired. This indicates that they intended fot the lease to he extended for another term. If they had intended that “the lease should expire after the ten-year period, it would have been a vain and idle thing to have provided a hoard of arbitrators to fix the rent thereafter. This view is strengthened when we consider that the lease provides for the erection and operation of an elevator for the common use of both buildings. Therefore, we hold that, when the language of the lease is considered in its entirety, it was intended by the parties that there should he a renewal of the lease for the period of ten years upon a rental to he fixed by a hoard of arbitrators as provided in the lease.

Appellants declared that the lease was terminated by its own terms at the expiration of ten years and refused to comply with its provisions any longer.

The court rendered a supplemental decree in which it ordered appellants to restore the operation of the elevator service in the Nakdimen building. The appeal also challenges the correctness of this holding.

We think the court erred in directing appellants to continue the elevator service. Chancery courts will not decree the specific performance of contracts requiring continuous acts involving mechanical skill, and judgment or technical knowledge or acts requiring special skill, judgment and discretion. 25 R. C. L., sec. 117, p. 303, case note to 140 Am. St. Repts., p. 62; case note to 68 Am. St. Repts. 760-761.

The courts generally recognize that to enforce the specific performance .of such contracts would unreasonably tax the superintendence of the court. In recognition of the principle, this court has held that equity will not decree the specific performance of a contract to build a levee for the reason that there is no reasonable method by which such a decree can be enforced. Leonard v. Bd. Dir. Plum Bayou Levee Dist., 79 Ark. 42.

Again in the case of Warmack v. Major Stave Company, 132 Ark. 173, the court refused to direct the specific performance of a contract with an electric light company to supply current for light between itself and a manufacturing company.

The running of an elevator requires both mechanical skill and judgment, and we are of the opinion that the contract in question comes within that class of cases which courts of equity will not specifically enforce. If the court should undertake to enforce the contract in the present case, it might involve the frequent necessity of hearing complaints from the appellee, charging the appellants with a breach of duty, or similar complaints from the appellants for a breach of duty on the part of ap-pellee. There would be no limit to the number of times the court might be called on during the life of the lease to say whether the appellants have performed their duties faithfully or efficiently. For the same reason a court of equity in the presént case would not seek to enforce the contract by a mandatory injunction. The performance of the contract would require continuous duties on the part of the appellants involving mechanical skill and care of such a character that the court could not superintend it.

Again it is contended by counsel for appellants that the contract is void because it provides for the rent to be fixed by a board of arbitrators, and they invoke the general rule that an agreement to enforce a contract by arbitration will-not be carried out by a court of equity. The presence of an arbitration clause in a contract does not necessarily prevent the court from acting. It is only where the act to be performed by the board of arbitrators is of the essence of the contract that the court will refuse to act.

In the present case the essence of the contract was the renewal of the lease for another term of ten years, and the fixing of the rental for that period was merely ancillary to the main contract. Where the provision for an appraisal is incidental and subsidiary to the substantive part of the agreement, the party refusing to name an appraiser or arbitrator can not he heard to complain where the court performs or provides for the performance of such service. The court in fixing the reasonable rental value treats the method as a matter of form rather than substance. So it may he said in the present case that the clause of the contract providing for a hoard of. arbitrators to fix the rental value of the premises does not render the contract void as being too indefinite to he enforceable. Mutual Life Ins. Co. of New York v. Stephens (N. Y.), L. R. A. 1917 C, p. 809; Grosvenor v. Flint, (R. I.), 37 Atl. 304; Kaufman v. Liggett (Penn.), 67 L. R. A. 353. In each of the two cases last cited the court held that the fixing of the rental is not of the essence of a contract to renew a lease upon receipt of notice of that effect upon a rental to he fixed by arbitrators to be appointed by the parties. See, also, Castle Creek Water Co. v. Aspen (U. S. Ct. Ct. of Appeals), 8 A. & E. Ann. Cas., p. 660.

On the question of the reformation of the lease contract, but little need be said. In Welch v. Welch, 132 Ark. 227, we reviewed the authorities on this question, and held that, while parol evidence is admissible in an action to reform an instrument on the ground of fraud and mistake, the evidence must be clear and convincing to warrant a reformation of the instrument. No useful purpose can be served by stating or discussing the. evidence on this branch of the case. We need only say that it clearly falls short of the requirement of our decisions on the subject, and appellants are not' entitled to reformation.

The court fixed the rental value of the premises fór a period of five years, and then provided that the matter might again be taken np by it if the parties refused to arbitrate.

There is some confusion in the testimony as to what the rental value of the elevator service should be, and for this reason and the further reason that the decree must be reversed and the cause remanded, the court will be directed to make a further finding on this branch of the case, and each party will be allowed to take additional proof therefor.

The result of our views is that there could have been only one renewal of the contract for the period of ten years from the 10th of September, 1920, and no specific performance of that contract could be enforced. The record shows that appellee applied to appellants for a renewal of the lease and for the appointment of a board of arbitrators under the contract to fix the rent. Appellants declined to appoint an arbitrator and to further perform the contract. This constituted a breach of the contract on the part of appellants. Having denied ap-pellee the specific performance of the contract, it was entitled to recover from appellants for the damages suffered on account of the breach of the contract by appellants. The rule is that, chancery having properly assumed jurisdiction of an action, it will determine all issues presented by the pleading and evidence. In other words, when equity takes jurisdiction for one purpose, it takes it for all purposes and will grant complete relief.

Upon the remand of the case for the error in granting specific performance of the contract, it will be the duty of the court to settle the damages which resulted to appellee from a breach of the contract, by appellants. Where a tenant is unlawfully evicted from the premises by the landlord, he may recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. Byers v. Moore, 110 Ark. 540.

In fixing the damages to be allowed to the appellee for tlie breach of the contract by appellants, it. will be necessary for the court to consider and fix the rental value of the premises. Therefore, for the reasons above stated, the rental value of the premises, fixed by the court, will not be considered as the correct rental value of the premises under the contract, and the court will be directed to make a new finding on that issue, and each party will be allowed to take additional proof thereon and as well on the question of the amount of damages suffered by the breach of the contract.

While chancery cases are tried de novo in this court, they are tried on the record made in the court below. Where a decree is reversed and a cause is remanded for further proceedings, and it appears to this court that the testimony upon any branch of the case has not been fully developed, or that the court in making a finding on a particular branch of the case has proceeded upon an erroneous theory, it is within the province of this court to allow the case to be reopened and further testimony to be taken on that point. It will be the duty of the court upon the remand of the present case to fix the amount of damages suffered by appellee by the breach of the contract upon the part of appellants, and, inasmuch as it will be necessary for the court to know the rental value of the premises for the renewal period of ten years in fixing the damages, it will be necessary for the court to fix the rental value for the elevator service for the reason that appellants refused to proceed under the arbitration clause looking to that end, as above stated. The court will allow both sides to take additional testimony on these points if they are so advised.

For the errors pointed out in the opinion the decree will be reversed and the cause remanded for further proceedings as indicated in the opinion, and not inconsistent therewith.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Terry v. State.
    Opinion delivered July 4, 1921.
    1. Homicide — indictment op ACCESSORY — sufficiency.—An indictment of one as accessory after the fact to murder in the first degree which alleges the commission of the crime by the principal, and that the defendant, with full knowledge that the principal had committed such crime, “did then and there wilfully, unlawfully and feloniously harbor, protect and conceal said crime” held to charge defendant with concealing the principal’s crime after full knowledge of its commission.

      2. Homicide — trial of accessory — evidence of principal’s conviction. — On the trial of an accessory to the crime of murder, the judgment of conviction of the principal is admissible as •prima facie evidence of the principal’s guilt, so long as it remained in force, though the time for filing a motion for new trial had not then expired.
    3. ■ Homicide — concealment of crime — question for jury. — Testimony held to warrant the jury in finding that it was the purpose of defendants to shield the principal from detection and arrest.
    4. Criminal law — trial by jury of county having two districts.— Under Const. 1874, art. 2, § 10, providing that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed, a provision in an act relating to a county having two judicial districts that in selecting jurors in either of said districts the circuit judge .may direct that the venire be selected from either or both districts is constitutional.
    5. Criminal law — waiver of objection. — Objection that act No. 282 of 1921 required that the presiding judge should first make an order for a special venire from a judicial district other than the one in which the trial was had before such venire can be summoned was waived where the only objection in the' trial court was.that the act above mentioned was unconstitutional.
    6. Homicide — instructions—self-defense.—Where the defendant’s t estimony showed that he killed an officer while resisting arrest for the commission of a felony, the mere fact that at the time he shot the officer, the latter was bringing his gun to his shoulder did not make out a case calling for an instruction defining the law of self-defense.
    Appeal from Prairie Circuit Court, Northern District; George W. Ciarle, Judge;
    affirmed.

      Brundidge & Neelly, for appellant.

      (1) The demurrer to the indictment should have been sustained. The statute defines an accessory after the fact to be a person who, after full knowledge that a crime has been committed, conceals it from the magistrate or harbors and protects the person charged with or found guilty of the crime. The indictment charges defendants with concealing the crime. Nothing can be taken by in-tendment. 94 Ark. 242; 93 Ark. 81; 67 Ark. 308; 43 Ark. 93; 95 Ark. 48; 91 Ark. 5. The indictment is not sufficient. 88 Pac. 819; 104 Atl. 525. It does not attempt to follow the language of the statute.
    (2) It is not shown that either of the defendants has knowledge of the commission of the crime by Long.
    (3) Defendants were not guilty if they concealed the crime because of anxiety for their own safety. 43 Ark. 366; 51 Ark. 189; 66 Ark. 16; 51 Ark. 115.
    (4)' Defendants were entitled to a trial before a jury of the Northern District of Prairie County. Art. 2, §10, Const.
    (5) The court erred in giving instruction No. 1.

      J. 8. Utley, Attorney General, Elbert Godwin, Assistant Attorney General, and W. T. Hammock, Assistant Attorney General, for appellee.
    (1) The demurrer to indictment was propertly overruled. In 91 Ark. 9, the court declined to follow the construction of the statute given by the California Court.
    (2) The proof was sufficient to sustain a finding that defendants had knowledge of the crime.
    (3) Defendants’ contention that they concealed this crime through fear was submitted to the jury. The verdict is supported by the evidence.
    (4) Defendants were tried by a jury from the county in which the crime was committed.
    (5) Instruction No. 1 is the law. The conviction of the principal is prima facie evidence of his guilt. 1 R. C. L. §§ 153-4.
   Smith, J.

Appellants were separately indicted and tried. The indictments are identical, and charge each appellant with the crime of 'being an accessory after the fact to the crime of murder in the first degree. They were convicted, and the punishment of each fixed at ten years in the penitentiary. The proceedings at the trial below are so nearly identical that the appeals have been briefed together as a single case.

The indictment against the appellant Terry reads as follows: “The grand jury of Northern District of Prairie County, in the name and by authority of the State of Arkansas, accuse S. A. Terry of the crime of accessory after the fact to murder in the first degree committed as follows, towit: The said Robert Long in the county, district and State aforesaid, on the 14th day of February, A. D. 1921, unlawfully, feloniously and with malice aforethought, with deliberation and premeditation did kill and murder one Alfred Oliver, by shooting him, the said Alfred Oliver, with a gun then and there loaded with gunpowder and leaden bullets, and had and held in the hands of him, the said Robert Long; and that the said S. A. Terry, after said crime of murder had been committed, and with full knowledge that the said Robert Long, had committed said crime of first degree murder as aforesaid, did then and there wilfully, unlawfully and feloniously, harbor, protect and conceal said crime as aforesaid, against the peace and dignity of the State of Arkansas. ’ ’

The sufficiency of this indictment is questioned both on demurrer and by a motion in arrest of judgment.

The indictment against appellant Comall is identical except the use of his name instead of that of appellant Terry.

■ At each trial the record of the conviction of Long was read in evidence. The trial of the appellant Terry was had the day after that of Long. Objection was made to the introduction of the judgment of conviction against Long for the reason that Long had three days within which, to file a motion for a new trial and sixty days within which to appeal, and that the judgment could not become final until the expiration of that time. Objection was also made and exceptions saved to the action of the court in permitting the attorney who defended Long to testify that there would 'be no appeal in Long’s ease. Long was convicted of murder in the first degree and given a life sentence in the penitentiary.

The trial occurred in the Northern District of Prairie County, and in making up the jury jurors residing in the Southern District of the county were accepted. Exceptions were saved to the action of the court in holding these jurors competent.

After the introduction of the record of Long’s conviction, the first witness to testify was Long himself. Long was asked if he knew what had become of Alfred Oliver, the person alleged to have been killed 'by him. Objection was made to this question “because the same is a matter of record evidence, and the record is the best evidence of that fact.” In passing upon this objection the court said: “I am going to instruct the jury, gentlemen, when we reach that, that the introduction of that record con stitutes a prima facie case of murder in the first degree as against Robert Long, and unless there be testimony contradictory of that record that that is sufficient to establish that allegation in the indictment of the murder of Oliver by Long, the witness now on the witness stand. What else do you want now at this time?”

The State asked witness Long nothing about the circumstances of the killing, but had him relate what had happened after the killing occurred, and a most gruesome story was told. Long was engaged in the illicit manufacture of moonshine whiskey, and after killing Oliver — to whom he referred as the “detective” — he loaded the 'corpse into a wagon, covered it with quilts and bales of hay, and left his home, where the killing occurred, about dark. He drove to the home of Terry, a distance of about seventeen miles, where he arrived about eleven p. m. He awakened Terry, and as soon as Terry came ont where the wagon was advised him that “We have got a detective ont here, and I want yon to help me secrete him.” Appellant Cornall was called on by Terry to assist, and the corpse was loaded into a boat and carried ont into a creek and thrown into the water after a large rock had been fastened to the body. Other details were related by Long which, if trne, fully warranted the jury in finding that both Terry and Cornall had consciously assisted in the attempt to cover up the evidence of Long’s crime. They admit this to be true, but attempt to excuse their conduct by stating that they were coerced and intimidated by Long. That they were asked by members of searching parties if they knew anything about the disappearance of Oliver, and denied that they did. This they also admit, but explain that conduct by saying that they kept silent and denied their knowledge of the crime because Long had stated he would kill them both if they told what they knew, and that his partner, Bridges, would kill them if he failed to do so. They stated that, as'soon as Bridges and Long were taken into custody and they no longer feared for their safety, they told what they knew and carried the searching party to the creek where the body of Oliver was found. Bridges himself testified. He was present at the killing, and stated that, after the corpse was put into the wagon, Long got a tow sack, into which he put the blood and brains of the deceased which had been scattered over the floor. This sack and the bloody blankets were burned at Terry’s home.

Just before the conclusion of the cross-examination of the witness Long, counsel for appellant Terry asked the witness if he killed Oliver in self-defense. The court sustained an objection to this question, holding that the witness could not express his opinion as to what constituted self-defense, but that he might tell what was done. Thereupon counsel asked the witness, “What was Oliver doing when you shot him?’’ The following questions and answers then appear in the bill of exceptions: “A. Raising his gun. (The witness then made a motion with 'both of his hands showing Oliver bringing his shotgun up to .his shoulder or bringing it up in a shooting position). Q. Who? A. Alfred Oliver. Q. Who on? A. Me.”

This concluded the cross-examination of the witness, and there was no other effort made to show that the killing of Oliver was justifiable.

Exceptions were saved to the action of the court in giving and in refusing to give a number of instructions.

The objections to the indictment are that it does not charge the appellants with concealing the commission of the offense of murder from a magistrate, nor does it allege that appellants harbored and protected Long, the person charged with its commission, and, further, that the indictment is indefinite in its allegations as to the acts of appellants which constituted the concealment of the crime.

The statute under which the prosecutions were conducted reads as follows: “An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from a magistrate, or harbors and protects the person charged with or found guilty of the crime. ’ ’ Section 2310, C. & M. Digest.

This court has had frequent occasion to consider this statute, and a number of the cases are cited in the briefs of respective counsel. In the case of Stevens v. State, 111 Ark. 299, we considered what affirmative action would be required to constitute one an accessory after the fact. We there quoted from the case of Davis v. State, 96 Ark. 7, the following statement of-the law: “The mere passive failure to disclose the commission of the crime would not make one an accessory under our statute. There must be some affirmative act tending toward the concealment of its commission, or a refusal to give knowledge of the commission of the crime, when same is sought for by the officials of the person having such knowledge. It has been held by this court that the fact that the person knowing of a crime conceals his knowledge of its commission, for bis own safety does not raise a presumption that he is an accomplice. ’ ’

We think the indictments under review meet the requirements of the case cited. The indictments allege that, with full knowledge that Long had committed the crime of murder in the first degree, the appellants “did then and there wilfully, unlawfully and feloniously, harbor, protect and conceal said crime as aforesaid.”

The indictments do not allege that the crime was concealed from a magistrate. Its allegations are broader, the fair and reasonable interpretation thereof being that the crime was concealed from all persons. As has been said, we have held that mere silence in the presence of crime, or the mere failure to inform the officers of the law when one has learned of the commission of a crime, ’ does' not make one an accomplice. Stevens v. State, supra, and cases there cited. But appellants are charged with the affirmative act of harboring, protecting and concealing said crime, and when this language is read in connection with that which immediately precedes it in the indictment, as it should be, we think it fairly charges appellants with concealing the crime of Long after full knowledge of its commission.

Cases are cited from the courts of other States which hold the pleader to greater strictness and require the' recital of the facts which constitute the concealment of the crime. We do not follow these cases, as they they do not comport with our statute, which provides that an indictment is sufficient if it can be understood therefrom (a) that it was found by a grand jury impaneled in a court having authority to receive it; (b) that the offense was committed within the jurisdiction of the court, and at some time prior to the finding of the indictment; and (c) that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case. Section 3013, C. & M. Digest.

No error was committed in permitting the judgment in Long’s trial to be admitted. It is trne the time foT filing a motion for a new trial had not then expired, and, of 'course, the time for appeal had not expired; but the judgment showed the disposition of the charge against Long. He had been convicted of murder in the first degree, and the judgment recited that fact. It was not conclusive of Long’s guilt, so far as Terry and Cornall were concerned, nor would it have been had the time for appeal, or for filing a motion for a new trial, expired, as the court properly held; but that judgment was prima facie evidence of the truth of its recital against Long, so long as it remained in force and effect. 1 B. C. L., p. 154, section 35, of the article on “Accessories.”

• It is insisted that the proof conclusively shows that appellants acted under the coercion of the threats of Long. But at appellant’s request the court charged the jury, -if the failure of appellants to disclose the information possessed by them was not for the purpose of shielding Long, to find them not guilty. An instruction more favorable could not have- been asked, and we think the testimony warranted the jury in finding that it was the purpose of appellants to shield Long from detection and arrest.

The court committed no error in permitting jurors to serve who resided in the Southern District of the county. The insistence of appellants in this respect is that by act 133 (p. 217) of the Acts of the General Assembly of 1885, Prairie County was divided into the Northern and Southern Districts. By section 6 of this act it is provided ‘ ‘ That the circuit courts, hereby established in the respective districts of Paririe County shall be as distinct from each other and have the same relation to each other as if they were circuit courts of different counties, and may change the venue of any case from one district to another, or to any other county in the judicial circuit, in like manner as changes of venue are granted in this State.” By section 10, of article 2, of the Constitution it is provided that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of tlie county in which the crime shall have been committed. Counsel say that when section 6 of the act of 1885 is read in connection with section 10, of article 2, of the Constitution, the right existed to demand a jury coming’ from the body of the Northern District of the county, where the crime was committed and where the trial occurred.

It appears, however, that by act 282 of the Acts of the G-eneral Assembly of 1921, section 6 of the act of 1885 has been amended by the addition of the following proviso: “Provided, however, that, in selecting juries in special venire in said circuit courts in either of said districts of said county, the circuit judge presiding may direct that said venire be selected from the district in which the court is sitting, or from either or both of said districts of said county.”

"We see no constitutional objection to this amendment. The General Assembly of 1921 had the right to amend the act of 1885. It had the authority to prescribe the practice of the courts of that county, and the authority of the General Assembly was limited only by the restrictions of the Constitution. The guaranty of the Constitution is that the accused shall enjoy the right to a trial before a jury of the county in which the crime was committed — unless the venue is changed. The Northern District of Prairie County and the Southern District of Prairie County are alike parts of that county, and the guaranty of the Constitution is met when jurors are selected from either division of the county.

It is now objected that the act of 1921 requires that the presiding judge shall first make an order for a special venire from the district other than the one in which the trial is had before such venire can be summoned. This, however, was not the ground of the objection in the court below. Counsel expressly stated that it was his purpose to raise the question of the constitutionality of the act of 1921, and if he had also then raised the question now raised it might have been made to satisfactorily appear that the court had ordered a special venire from the other district of the county.

The court gave an instruction numbered 1 reading as follows: “You are instructed that the record read to you 'by the clerk of this court makes a prima facie proof of the charge contained in the indictment that Robert Long killed Alfred Oliver in the form and manner charged in the indictment and in the killing thereof it is prima facie proof by such record that he was guilty of murder in the first degree and that the State is not required, unless such record be contradicted, to produce additional proof upon this issue.”

As we have said, this is a correct statement of the law. But after giving this instruction the court refused instructions requested by appellants defining the law of self-defense. It is very earnestly insisted that the refusal to give these instructions constituted reversible error, as the cross-examination of Long, set out above, tended to show that Long had killed Oliver in self-defense. • We do not think the testimony presents that issue. The court gave appellants permission to show that the killing of Oliver by Long was justifiable; but no other effort was made to show that such was the case. Long was not asked to detail the circumstances leading up to the killing. It is fairly inferable — and the jury no doubt found — - that, while resisting- arrest for the commission of a felony, Long killed an officer of the law who was in the discharge of his duties in making an arrest. Goats v. State, 101 Ark. 51. The statement that Oliver was bringing his gun to his shoulder does not, under the circumstances detailed by the witness, make a case of self-defense, and the court did not err in refusing to submit that question to the jury.

Numerous errors are assigned in giving and in refusing to give instructions. We do not discuss these instructions in detail, as the questions raised have been many times considered by this court, and a discussion of these assignments of error -would unduly protract this opinion.

The court gave a very elaborate charge, included in which were a number of instructions requested by appellants which submitted their theory of the case to the jury. These instructions, as a whole, fairly and fully submitted the case; the evidence is legally sufficient to support the verdict; and, as no error of law appears, the judgment in each case is affirmed.


author: Humphreys, J.

text:
    Bankers’ Trust Company v. Hudson.
    Opinion delivered July 4, 1921.
    1. MORTGAGES — CHATTEL MORTGAGE NOT PROPERLY PILED — VALIDITY.— A chattel mortgage of cattle, which was filed but not recorded without the indorsement required by Crawford and Moses’ Dig., § 7384, is not binding on one who subsequently leased the cattle from the mortgagor under an agreement that he should be repaid for expenditures for feed, salt and dipping and should receive one-half of the increase in value of the cattle as remuneration for his care of them.
    2. Landlord and tenant — term op lease. — A contract of lease whereby the tenant was to rent a farm and certain cattle thereon for a stipulated rent and for one-half of the increase in value of the stock, no time limit being expressed, is a contract good for one year.
    3. Damages — breach op lease. — Under a contract of lease of land • and cattle, no time limit being expressed, the tenant’s right to recover for taking the cattle from his possession would be limited to such damages as would have accrued within one year from the date of the contract.
    Appeal from Perry Circuit Court; Guy Fulh, Judge;
    reversed.

      W. B. Rutherford and Owens & Ehrmcm, for appellant.
    (1) The mortgage, although not properly indorsed, was valid and binding between the parties to the suit. The rent and lease contract between Dale and appellee was nothing more than an agreement on appellee’s part to cultivate the land and care for the cattle, and a promise on the part of Dale to pay for any expense incurred in the care of the cattle other than for feed on the farm. The unrecorded mortgage is binding between the parties. 112 Ark. 187; 123 Ark. 28; 49 Ark. 279. The case of 79 Pac. 749 is almost identical with this.
    (2) If the mortgage was invalid, appellee was not entitled to $550.00. If entitled to judgment at all, he was entitled to $195.00.

      J. H. Bowen, for appellee.
    Appellee was a stranger to the mortgage, and as to him it was void, and replevin could not be maintained against him under the same. If appellee was a bailee, he. had an interest in the property, and replevin could not be maintained against him. 52 Ark. 164; 83 Ark. 109; 121 Ark. 346; 16 Ark. 90; 21 Ark. 559; 126 Ark. 462.
    The value of the cattle was the correct measure of damages. 50 Ark. 169.
   Humphreys, J.

This suit in replevin, for the possession of nineteen head of cattle, was filed by appellant against appellee in the Perry Circuit Court. It was alleged, in substance, that appellant was entitled to the possession of the cattle under a chattel mortgage executed by J. L. Dale to J. T. Chafin, February 17, 1920, to secure a promissory note in the sum of $500; that appellant, in due course of business, had acquired the note and mortgage; that, under the terms of the mortgage, appellant was entitled to the immediate possession of the property for the purpose of selling it under the power of sale contain'ed in the mortgage. Appellee interposed the defense that he was entitled to retain the possession of the cattle under a contract with J. L. Dale, which invested him with an interest in said cattle; that the mortgage did not 'Constitute a lien upon the property as against appellee, 'because he was a stranger thereto, and, when filed with the clerk, was filed without instructions to the clerk to file but not record, as required by section 7384 of Crawford & Moses’ Digest. Appellee alleged damages in the maximum sum of $495 on account of the breach of contract in taking the cattle before the expiration of the contract. The contract between J. L. Dale, the mortgagor, and the appellee, under which he held possession of the cattle, is as follows :

“Perry, Arkansas, April 10, 1920.
“RENT AND LEASE CONTRACT.
“This contract and agreement, made this the 10th day of April, 1920, between J. L. Dale, as party of the first part, and C. W. Hudson, party of the second part, witnesseth and voids all previous contracts between parties hereto or their agents.
“Party of the first part, being the owner of 120 acres of farm and twenty head of cattle, calves, and twenty-four head of sheep, does this day rent and lease unto the party of the second part on following terms and conditions : • Party of second part is to care for all stock, furnish all feed and give them all necessary attention; cultivate and care for farm, and pay to party of first part one-third of all marketed crops, except cotton, on which he is to pay one-fourth.
“Party of first part agrees to pay to party of second part at rate of two and fifty hundredths dollars per day for any work done on farm in the way of permanent improvements, and to furnish all materials for repair.
“It is mutually agreed that party of second part is to have one-half of wool clipped from sheep and one-half the increase in value of all stock, based on following agreed valuation:
“One male (no value given).
“Fourteen (14) cows over two years old, at $50 per head.
“Six (6) yearlings and calves at $5 per head.
“The offspring from sheep to be equally divided between parties hereto.
“Party of the first part agrees to pay to party of the second part twenty cents per head for each head each time dipped. Party of second part to pay vat charges out of same.
“Party of first part agrees to pay all expenses nee-, essary for any and all skilled attention to stock, all med- ■ icine, salt and feed necessary for maintenance of stock not produced on farm.
“J. L. Dale,
Party of the first part.
Party of the second part.
“Witness: R. M. Barrington.”

The appellant offered the mortgage in evidence, which was excluded over appellant’s objection and exception on the ground that it was not properly indorsed for record.

Appellee, the only witness in the case, testified that the sheriff took nineteen head of cattle from him under the writ of replevin, worth, on the Kansas City market, $550; that he expended about $137.50 for feed, and $11 for salt in the care of the cattle; that he dipped them, which was reasonably worth twenty cents a head. The contract was identified by him and introduced in evidence.

At the conclusion of the evidence, the court, at the request of appellee, over the objection and exception of appellant, peremptorily instructed the jury to return a verdict in favor of appellee for $550, which the jury did. A judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court.

Appellant first insists that the court erred in excluding the mortgage, although improperly indorsed for record, because, under the terms of the rent and lease contract, appellee was a mere bailee of the mortgagor, and, in that capacity, in effect, a party to the mortgage. The doctrine is invoked that, as between the parties, as well as their privies, an unrecorded mortgage is valid. The contract not only provides that appellee should be repaid for expenditures for feed, salt and dipping, but for one-half the increase in value of the cattle as remuneration for his attention and for feed raised on the farm by him and fed to them. This working interest in the cattle, coupled with possession, rendered appellee a stranger to the mortgage, and not a privy merely to the mortgagor. The court therefore properly excluded the mortgage when offered as evidence.

Appellant next insists that the court erred in instructing $550 damages for appellee. The mortgage being valid between appellant and J. L. Dale, the mortgagor, appellant is in the same position in relation to damages that the mortgagor would have been had he breached the contract by taking possession of the cattle. No time limit appears in the contract, so, as between them, the contract was good for one year. By analogy, a written contract without a time limit is valid for the same length of time an oral contract would be. Under the statute of frauds, an oral contract of this kind would be good for only olie year. Appellee then must be limited to a recovery of damages accruing within one year from the date of the contract. Had the mortgagor been plaintiff in the action, appellee was privileged to treat the contract as rescinded when the cattle were taken from him and to ask for all damages sustained to the date of the breach. This he did in his answer, alleging his damages at $495. It was error to instruct damages in the sum of $550, the value of the cattle on the Kansas City market.

For this error, the judgment is reversed, and the cause remanded for a new trial.


author: Humphbuys, J,

text:
    Gould v. Toland.
    Opinion delivered July 4, 1921.
    L Highways — authority op board op commissioners to adjudicate claims — Acts of Special Session of 1920, No. 114, unpublished, in directing the commissioners of Howard County Road Improvement District No. 2 to ascertain the preliminary expenses of said district, including damages for failure of the district to carry out it contracts, did not constitute the board a judicial tribunal to adjudicate finally such preliminary expenses and damages; while much weight should be given to settlements by the board under the act, they cannot he regarded as final, but the burden is on the complaining taxpayers of showing that the' allowances were inequitable and unjust.
    2 Highways — abandonment of road project — claims allowable. —Where there was no assessment of benefits in a road improvement district, and therefore no ascertainment that the cost of the improvement would come within the assessed benefits to the lands in the district, a contract with a bond dealer for the sale of the district’s bond is unenforceable, except as to advances made for preliminary expenses, which, with interest, may be recovered.
    3. Highways — abandonment of road project — engineer’s fee.— Where, upon the abandonment of a road improvement, the Legislature directed the commissioners to ascertain the preliminary expenses of the district and to levy a tax to pay the same, an engineer who did preliminary work under a contract which stipulated that the compensation of the engineer should be five per cent, of the cost of construction, of which one per cent, should be paid when plans, specifications and estimates of cost were completed, was entitled to recover only upon a quantum meruit basis; and if the per cent, for the entire work provided under the contract was reasonable, it should be accepted as a basis, and a proportionate amount thereof should be allowed for preliminary services.
    4. Highways — expenses of commissioners. — Under Acts 1920 No. 114, § 5, allowing to highway commissioners of a certain district $5 for each day devoted to his duties,” and § 7, providing that the board may incur other necessary expenditures, held, that the commissioners could not charge the district for their personal expenses while attending board meetings, but that if any commissioner should be called upon to transact business for the district not included in his personal duties in attending meetings of the board and should incur expenses in performing such duty, he would be entitled to recover therefor.
    7. Highways — abandonment of road improvement — attorney’s fee. — Where a road improvement district employed an attorney for' a lump sum for all services to be rendered in relation to preliminary as well as permanent work of the district, upon the abandonment of the work, the contract can be regarded only as evidentiary of the value of his preliminary services, and not effective for any other purpose.

      Appeal from Howard Chancery Court; Jas. D. Shaver, Chancellor;
    reversed and affirmed.

      •Coleman, Robinson & House, for appellants.
    The commissioners were justified in charging- their expenses for railroad fare, auto hire and hotel bills to the district. Acts 1919, No. 243, §§ 5-7. The expenses were incurred in good faith. The allowance to James Gould, under § 2 of the act, was final and binding. No right of appeal was given. 1 L. E. A. (N. S.) 438; 50 do. 233; 127 N. W. 226. The act of 1920 providing for the payment of damages, in addition to preliminary expenses, on dissolution of the district, was valid. The engineer’s fee should be estimated by the proportion of the work done as compared with the contract. 115 Ark. 445; 127 Ark. 14. Under the testimony the engineer was entitled to judgment for 2 1-2 per cent of the total fee, which was the amount allowed by the board of commissioners.

      W. P. Feasel and W. C. Rodgers, for appellees.
    The statute (§5) fixed a per diem for the commissioners. No provision is made for their “expenses.” The expenses of the district are rigidly circumscribed and strictly limited to matters and things specifically and expressly mentioned in the act.
    Any contract which Judge Gould made with reference to a sale of bonds for the district was made before there was an assessment of benefits, and was void. The allowance to Judge Gould for $35,000, to the extent of the excess of the preliminary expenses of the district, was ultra vires.

    The contract of the engineer with the board provided that he should receive one per cent, of the estimated cost when the plans, specifications and estimates are complete. The engineer is bound by the contract.
    Allowance to Mr. House of $1000 as attorney’s fee was improper. $250 for the nominal services shown would be an outside figure.
   Humphbuys, J,

This suit was instituted in the Howard Chancery Court by appellees against appellants, to set aside settlements made by the Board of Commissioners of Howard County Road Improvement District No. 2 with certain of the appellants, for services rendered by them to the district, expense allowance to said commissioners, and to prevent the collection of taxes from the landowners in said district to pay same. The district was created by Special Act No. 243, General Assembly of 1919. The act permitted an abandonment of the district at any time. On account of local opposition, the commissioners suspended work before it was ascertained that the benefits to the property in the district were equal to, or exceeded, the cost of the improvements, whereupon the Legislature passed act No. 114 at its special session in 1920, directing the commissioners to ascertain the preliminary expenses of said district, including damages for the failure of the district to carry out its contracts and to levy a tax against the real estate in the district, in accordance with section 12 of the act creating the district, to pay same.

Subsequent to the organization of the district, and before any assessment of benefits was laid on the land in the district, the commissioners entered .into a contract for the sale of bonds with James Gould, and employed an engineer and attorney. The contract with James Gould for the sale of the bonds contained the following clauses:

“First party hereby sells and agrees to deliver to the party of the second part serial bonds of said improvement district in an amount as is authorized under the special act creating said district, miuimnm of four hundred thousand dollars and a maximum of seven hundred thousand dollars, at a price of $1.02, said bonds to mature within a period of twenty-five years and to 'be dated the first day of May, 1919, and shall bear interest at the rate of six per cent, per annum semi-annually, New York City payment.
“That as soon, as the board of commissioners has delivered to said James Gronld, party of the second part, a written opinion of.-.or G-eo. B. Bose, attorneys, with the 'board of commissioners, for a right to borrow funds to be expended upon the preliminary work of said road district and upon the execution of a note signed by members of the board of. commissioners as commissioners of said district and delivered to the said James Gould, party of the second part, he contracts and agrees to advance to the said board of commissioners the sum of $20,000 in cash, and said commissioners shall execute a note payable to James Gould, party of the second part, to bear interest at the rate of six per cent.”

The contract with the engineer contained the following clause:

“The compensation of the party of the second part shall be an amount equal to 5 per cent, of the actual construction cost of all improvements made by the party of the first part, not exceeding in cost $1,000,000, to be paid as follows: One per cent, of the estimated cost when plans, specifications and estimates of costs are completed, 1% per cent, of the construction costs when the contract is let, and the balance to be paid in installments.”

The contract with the attorney was, in substance, for him to render all necessary legal services to the district during the construction of the work for a stipulated amount of $1,000.

Before the work was suspended, James Gould had advanced $20,000 in cash to the board, under his contract, on a note executed to him, bearing interest at the rate of six per cent. All this money, except $7,000[, was used in the payment of preliminary expenses. The work progressed to the point where contractors made bids for constructing the improvement. The lowest bid, however, was for $1,260,859.60, considerably in excess of the estimate according to the preliminary survey and estimate, which was for $922,154.14. The contract for the construction of the improvement was not let.

Pursuant to the provisions of the act authorizing the commissioners to settle all preliminary expenses and damages growing out of its contracts, the commissioners settled with James Gould, including damages growing out of his contract, upon the 'basis of $4,000 for his profits on a tentative sale of the minimum amount of bonds, $18,000 as interest thereof from the date of his contract until the date of settlement, and $13,000 at that time unpaid upon the advance of $20,000 in cash, making a total balance allowance to him of $35,000, for which they issued the district’s notes in denominations of $500 each, bearing interest at the rate of six per cent, per annum from date until paid; also settled with the engineer, H. E. Carter, upon the basis of two and one-half per cent, of the estimate of the cost of the improvement, and, on that basis, allowed him a balance of $14,000, for which amount they executed notes of the district of the denomination of $500 each, bearing interest at the rate of six per cent, per annum from date until paid; also settled with the attorney by allowing him $1,000, the total amount of his contract, for which they issued the notes of the district, bearing the same rate of interest.

In addition to the settlements and allowances aforesaid, the commissioners allowed themselves expenses covering the items of railroad fare, auto hire and hotel bills incurred while attending meetings of the board and. per-, forming other services for the district.

Upon a hearing of the cause in the chancery court, the allowance to James Gould was reduced to the actual amount of money advanced by him, with interest thereon,’ the allowance to the engineer to one per cent, on the estimated cost of the improvement, approved the allowance to the attorney and disapproved the allowance to the commissioners for expenses. Appellants have prosecuted an’’ appeal from the decree of the court, in so far as it was adverse to them, and appellees have prosecuted a cross appeal from the allowance of the attorney’s fee.

The first insistence of appellants is that act' No. 114, Acts of the General Assembly of 1920, constituted the commissioners of said district a judicial tribunal without right of appeal, to finally adjudicate the preliminary expenses and all damages resulting on account of contracts entered into by the district, which it failed to carry out. We find no language in the act susceptible of this construction. The act simply directs the board to ascertain the amount due by the district for preliminary expenses and damages growing out of any of the contracts entered into by the board, to collect the amount from the landowners in the district and to pay said claims. The act does not pretend to authorize the board to sit as a court in making the ascertainment and settlement.

While much weight must be given to settlements made by the board under the act, they .can not be regarded as final. The effect of the ascertainment and settlement necessarily casts upon the landowners in the district the burden of showing that the allowances were inequitable and unjust.

The next insistence of appellants is that the court erred in reducing the allowance of James Gould to the actual amount advanced, with interest thereon, for the purpose of paying preliminary expenses. This must depend upon the construction given the contract for the sale of the bonds. There is no express provision in the statute prohibiting the making of such a contract before the benefits to the lands in the district have been assessed, but, under the authority of Cherry v. Bowman, 106 Ark. 39, and the later cases of Thibault v. McHaney, 119 Ark. 188, and Thibault v. McHaney, 127 Ark. 1. contracts for permanent construction remain in abeyance and do not become effective until an assessment of benefits has been made for the purpose of ascertaining whether the cost of the improvement will exceed in value the assessment of benefits against the lands. The contract for the bond issue in the instant case related to the procurement of money for -the permanent construction, save and except the amount of $20,000 agreed to be advanced for preliminary work. Save for the money actually advanced to pay for preliminary work, the contract must be characterized as an unenforceable contract until the contingency upon which it was based happened — that contingency being that, before becoming a binding- and effective contract, it must be ascertained by an assessment of benefits that the cost of the improvement does not exceed the benefits to the lands in the district.

In the instant case, there has never been an assessment of benefits, and therefore no ascertainment that the cost of the improvement would come within the assessed benefits to the lands in the district. It follows from this construction of the contract, as related to the facts in the case, that the court was correct in reducing the allowance by the commissioners to the amount of money actually advanced for preliminary costs, together with interest thereon, for damages are not recoverable growing out of an ineffective, unenforceable contract.

The next insistence of appellants is that the court erred in reducing the allowance of the engineer to one per cent, of the estimated cost of the preliminary work. This reduction was made by the court under the construction given to the contract to the effect that one per cent, on the estimated cost of the improvement was the contract price between the parties for all necessary preliminary engineering work of the district. This was an incorrect interpretation of the contract. The one per cent, clause in the contract related to the time such installment should be paid, and not in full payment for the services rendered to that date. Such construction was placed upon a contract of the same tenor and effect in the case of Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437. A majority of the court are of the opinion that a contract for engineering and attorney’s services, entered into before an assessment of benefits has been made, providing a total per cent, of the assessed cost of the improvement, or for a total amount for all services relating to preliminary as well as permanent work of the district, can not be regarded as effective in arriving at the value of the preliminary services, . except as evidentiary. The Chief Justice and the writer are of the opinion that the same effect should be given to this contract as was given to. the contract in Morgan Engineering Co. v. Cache River Drainage District, supra, —that is to say, if the contract provided for a total per cent, of the estimated cost of the construction as remuneration and the per cent, provided was reasonable for the whole work, it should be accepted as a basis and a proportionate amount- thereof should be allowed the engineer or attorney for preliminary services rendered by him. The majority view results in the application of the quantum meruit rule in arriving at the value of the preliminary services of the engineer in this case. The chancellor tried the case upon the theory that the one per cent, provided in the contract covered the value of all preliminary services rendered by the engineer. This constitutes reversible error. In the application of this ’rule, it would be proper to cqnsider, along with all the other evidence in the- case, the actual cost of the preliminary services rendered. The evidence was not fully developed in that respect. It is unnecessary to reiterate the rule and character of evidence admissible in the proper ascertainment of the value of the engineer’s fees, as both were fully discussed in the case of Thibault v. McHaneg, supra.

The next insistence of appellants is that the court erred in disallowing the allowance made by the board for the expenses incurred by the members thereof. Section 5 of the act creating the district provides that “each of the commissioners shall receive as their compensation the sum of $5 for each day devoted to his duties. ’ ’ As the section malms no provision for personal expenses while discharging his duties in attending board meetings, ' any member of the board must necessarily bear his own expenses when thus engaged. Section 7, however, of the act provides that the board may incur other necessary expenditures which shall he treated as a part of the cost of the improvement. Should any member of the board, however, be called upon to transact business for the district, not included in his personal duties in attending meetings of the board, and, in performance of the duty, incurred necessary expenses, such expenses should be treated as a part of the cost of the improvement and be governed by the authority vested in the board to incur other necessary expenditures. Nothing’in the views now expressed on the subject conflicts with the decision of this court in Tollman v. Lewis, 124 Ark. 6, where we held that a contract between an improvement district and one of its commissioners for the performance of services by the latter outside of his duties as such commissioner, was void, and that he was not entitled to compensation for such services nor for his expenses in performing them. We adhere strictly to the rule there announced in that case, but we hold that there is a distinction between expenses incurred by a commissioner under a void contract and expenses incurred at the instance of the board of commissioners by one or more of its members in the performance of the duties of the board. This rule was not applied by the chancery court, nor was evidence adduced with this rule in view. It will perhaps be necessary to more fully develop the evidence in this regard.

On direct appeal, the decree will be affirmed as to the allowance made to James Gould, and reversed as. to the allowance to the engineer and disallowance of expenses to the commissioners, with leave to all parties to introduce additional evidence upon these issues.

Appellants, in the cross-appeal, insist that the court erred in allowing the attorney a fee of $1,000.. The court based the allowance upon the contract. The contract for attorney’s fees is upon like basis of the contract for engineering fees. The contract was for a total sum of $1,000 for services to be rendered in relation to preliminary as well as- permanent work of the district. The contract can only be regarded as evidentiary and not effective for any other purpose for the reason that the work was suspended in the preliminary stage. The qua/n-tum meruit rule is applicable to the services of an attorney. The chancellor erred in enforcing the contract as a whole, and, for that reason, the decree must be reversed and remanded with directions to allow both parties to introduce further evidence under the quantum meruit rule.

Justices Wood and Hart dissent in part.


author: McCulloch, C. J.

text:
    Houston v. Hanby.
    Opinion delivered July 11, 1921.
    1. Highways — establishment of private road — damages.—Under Crawford and Moses’ Dig. §§ 5250-1, authorizing the county court to establish a private road across another’s land, evidence held to justify a finding that the damage to the owner’s land did not exceed $25.
    2. Highways — establishment of private road. — Crawford and Moses’ Dig., §§ 5250, 5251, providing that when it is necessary for the owner of lands, dwelling house or plantation to have a private road across another’s land to a public road or watercourse, the county court may order such road to be laid off at the petitioner’s expense, held to authorize the establishment of a private road for the benefit of the owner of lands, whether occupied or unoccupied, and the road established thereunder becomes a public road, in the sense that it is open to the use of all who see fit to use it.
    3. Highways — private road — necessity.—In determining whether a private road is necessary, under Crawford and Moses’ Dig., §§5250-1, it is not required that the petitioner show an absolute necessity for such road by showing that he had no other means of reaching the public highway or watercourse.
    4. Highways — private road — necessity.—In determining whether a road is necessary, under Crawford and Moses’ Dig. §§ 5250-1, the county court should take into consideration not only the convenience and benefit it will be to the limited number of people it serves, but also the injury and inconvenience it will occasion to the owner of the land through which it is proposed to extend the road.
    5. Highways — private road — necessity.—The trial court’s finding that a proposed private road was necessary to enable petitioner to haul logs to a public road was sustained by evidence that the proposed road runs about 125 or 150 yards through appellant’s cleared land, to his damage in the sum of $25; that another route suggested by appellant was along a steep grade with sharp angles which rendered it impossible to haul logs, and would cost petitioner from $500 to $1000 for bridges; and that petitioner could reach a public road by travelling two and a half miles by a route by which it was impracticable to get out the logs.
    Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Oscar S. Winn and II. R. Whyte, for appellant.

      Combs & Combs, for appellee.
   McCulloch, C. J.

This is a proceeding originating in the county court of Madison County on the part of appellee to establish a road from certain lands of ap-pellee across lands of appellant to a public road.’ The proceeding is based on the statute which provides that if “the lands, dwelling house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling house or plantation to any public road or navigable water course over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such owner, * * * to appoint the viewers to lay off said road,” and that upon the report of the viewers if “the court shall be of the opinion that it is necessary for the petitioner to have said road from his said lands, dwelling house or plantation to said public road or navi- • gable water course, and said petitioner shall pay all costs' and expenses accruing on account of said petition for such private road, * * * an order shall be made establishing the same as a private road, not exceeding fifteen feet wide, and the person applying for such road may proceed to open the same.” Crawford & Moses’ Digest, §§ 5250, 5251.

The county court granted the petition of appellee, and upon the report of the viewers made an order authorizing the opening of the road across appellant’s land. The viewers awarded damages to appellant in the sum of $25, which said award of damages the county court approved. Appellant prosecuted an appeal from this order to the circuit court. There was a trial of the issues as to the right of appellee to have the road established and as to the amount of damages to be awarded, and the trial resulted in a judgment of the circuit court establishing the road in accordance with the order of the county court and.awarding to appellant the same amount of damages as was awarded by the viewers in their report and by the county court in its judgment. An appeal has been duly prosecuted to this court.

The only question presented for our consideration is whether or not there was evidence sufficient to sustain the findings of the court upon the issues involved. The land of appellant over which the road is sought to be established is a small farm in Madison County, occupied by appellant as his homestead.. Only a small portion of the land is in cultivation, as we understand the testimony, though the amount is not shown. Appellee owns an adjoining tract containing 160 acres of unenclosed timber lands. He owns and operates a sawmill a few miles distant from this land, and at the time the present proceeding was instituted he was engaged in cutting the timber from his own lands and hauling it to his mill. He claimed that it was necessary to have a road across appellant’s land in order to haul the timber away from his own land. It appears from the testimony that there was an old road across appellant’s land along the route now sought to be established — not a public road, nor a private way acquired by prescription, but there had been a country road used to some extent by appellee and others —and appellant stopped up this road by cutting timber across it and refused to permit appellee to use it in hauling his logs. Appellant offered to open up another road around the edge of his place and permit appellee to use it, but the contention of appellee is that that road was an .impractical one by reason of the fact that the grade was too steep, the angles too sharp and that it was too expensive to build bridges across the gulches.

There is a conflict in the testimony as to the amount of damage to appellant in opening up the proposed road, but in testing the legal sufficiency of the evidence we must view it in the light most favorable to appellee’s cause. The road viewers were introduced as witnesses by appellee and there were certain other witnesses and each of the parties testified themselves. According to the evidence adduced by appellee, the proposed road runs about 125 or 150 yards through appellant’s cleared land, i. e., a small field enclosed by a two-wire fence. At the time the road was laid out appellant had planted sugar cane. The viewers testified that the laying out .of the road that way cut off a small patch of about three-fourths of an acre from the remainder of the field and that the total damage, including the value of the land taken and the inconvenience in using the remainder of the land and loss of the crop, did not exceed $25. There was, we think, sufficient evidence to justify the finding that the award .of $25 was proper compensation to appellant for his injury.

It will be observed that the language of the statute is broad enough to include all lands whether occupied or unoccupied, and, as said by this court in construing the statute, a road established thereunder becomes a public road in the sense that it is open to the use of all who see fit to use it. Roberts v. Williams, 15 Ark. 43; Pippin v. May, 78 Ark. 18; Carter v. Bates, 142 Ark. 417.

In Pippin v. May, supra, Judge Riddick, speaking for the court, said:

“It being a public road, it was not, we think, required that plaintiff should establish an absolute necessity for such road by showing that he had no óther means of reaching the public highway. The fact that there is already a road leading from his place to the public highway does not conclusively show that the road that he petitioned for is not necessary. * * * In determining whether such a road is necessary, the court must, of course, take into consideration, not only the. convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not. ’ ’

In that case the facts were that the petitioner sought to establish a road over adjoining lands for a distance of about a quarter of a mile when he had the use of another road about three-quarters of a mile long, which, at certain seasons of the year, was boggy and difficult to travel. The judgment of the circuit court was reversed .on account of a declaration made by the court stating the law to be that “one person is not entitled to a private road through the land of another except in case of absolute necessity and where he had no other way of ingress and egress.”

In the recent case of Carter v. Bates, supra, the facts were, according to the undisputed evidence, that the land over which the road was sought to be established was a valuable farm which wa.s tile-drained and that the establishment of the road and traveling over it would cause ruts to be formed and the tiling broken and that injurious consequences would inevitably result to the owner by establishing the road out of proportion to the expense and inconvenience of adopting another route.

In the present case there is testimony to the effect that appellant was injured only to the extent of $25 by establishing the road along the proposed route, and that he sustained less injury to his farm than by adopting the other road which he was willing to give around the edge of his place. It is also shown that the road which appellant proposed to give around his place was along a very steep grade, and that there were-sharp angles which rendered it impossible to haul logs that way. . It was also shown that it would cost from $500 to $1,000 to build bridges across the gulches. There was testimony also that appellee could get out to a public road by traveling about two and a balf miles, but appellee and some of bis witnesses testified that it was impracticable to get tbe timber out by hauling it along that route. Appellee, after stating tbe facts with reference to tbe location of tbe proposed road and of tbe other road named, gave his positive opinion that tbe use of this road was a necessity in affording ingress and egress to and from bis land.

We think tbe evidence is legally sufficient to sustain the findings.

Judgment affirmed.