text:
    Paving District No. 3 v. Meyer.
    Opinion delivered May 14, 1923.
    1. Municipal corporations — improvement district — reassessment of benefits. — Where an assessment of benefits in a street improvement district is found to be invalid for any reason, it may be withdrawn and a new assessment made.
    2. Municipal corporations — improvement district — presumption as to assessment. — Even on a direct attack on an assessment of benefits in a street improvement district-, there is a presumption in favor of the validity of the assessment, and the courts will not substitute their judgment for that of the assessors, unless this presumption is overcome by satisfactory evidence.
    3. Municipal corporations — improvement district — assessment. Evidence held insufficient to overcome the presumption in favor of the validity of an assessment of benefits in a street improvement district.
    Appeal from Crawford Chancery Court; «7. V. Bourlan cl, Chancellor;
    reversed.

      E. L. Matlock, for appellant.
    The court erred in refusing to strike out the supplemental complaint which tendered a new issue. The case was remanded for further proceedings (148 Ark. 623), and, in absence of specific directions, new issues could not be introduced. 149 Ark. 401. A new assessment -of benefits was properly made 'before the mandate of this court was filed below. None but board of assessors can make assessment of benefits. 151 Ark. 398; 71 Ark. 4. No irregularity in the proceedings of the city council relative to new assessment. No evidence to overcome the presumption in favor of the assessment. 80 Ark. 462; 81 Ark. 80; 84 Ark. 527; 93 Ark. 563; 98 Ark. 543; 99 Ark. 508; 141 Ark. 164.

      Starbird <& Starbird, for appellees.
    The former assessments on appeal were held to have been made on a proper basis, and the court below could, well have determined that the new assessment was-invalid for a like reason, that certain elements tending to show benefits were not considered. 86 Ark. 14. The action of the commissioners and city council in making the new assessment was premature. 98 Ark. 552.

      E. L. Matlock, in reply.
    Second assessment not premature. Cases of 86 Ark. 1 and 98 Ark. 543, distinguished.
   McCulloch, C. J.

There were two separate improvement districts organized at the same time by the city council of Van Burén, under the authority of general statute (Crawford & Moses’ Digest, § 5647 et seg.), one designated as Paving District No. 3, for the purpose of paving certain streets, and the other designated as Curb and Gutter District No. 1, for the purpose of curbing, guttering and draining the streets which were to be paved through the instrumentality of the other district. The two districts covered the same territory.

There was an attack made upon the validity of the district and upon all of the proceedings thereunder, including the assessment of benefits, by certain property owners in the district, who instituted an action m the chancery court. Said court decided all the points against the attacking parties, but, on appeal to this court, it was decided that the plans showed that the cost of the improvement was to exceed the limit prescribed by the statute, that is to say, twenty per cent, of the assessed valuation of the property, and 'for that reason the plans could not be carried out; and this court also decided that the assessments were void and unenforceable for the reason that they were not made by the assessors upon the proper basis, in that elements which tended to establish benefits were not considered. The decree' of the chancery court was reversed and the cause remanded “for further proceedings to be therein had,¿according to the principles of equity and not inconsistent with the opinion or this court.” Meyer v. Board of Improvement, 148 Ark. 623. The decree of the chancery court upholding the validity of the district upon the points of attack made was affirmed by this court, but, before the mandate of this court was filed in the chancery court, the commissioners of each of the districts -appeared before the city council and presented revised plans of the improvement, showing reduction in 'the cost, and asking that the city council, by order, direct a -new assessment of benefits, and the council passed a resolution to that effect. Another member of the board of assessors of each of the districts was substituted, for one failed to serve, and a new assessment of benefits was made for each district. The assessment lists were filed with the city council and notice given, as provided by statute, and there was a hearing before the city council. The appellees, who were the original plaintiffs in the case which was appealed to this court and remanded, appeared before the city council and made objections to the assessments, but these objections were overruled, and the assessments were approved, and, within thirty days after the ordinance approving the assessments and imposing them upon the property of the district, appellees filed a supplemental complaint in the original action then pending in the chancery court, on remand from this court, attacking the validity of the new assessments on' the ground that they were made without authority before, the mandate of this court was-filed in the chancery court, and also on the ground that the assessments were made on the wrong basis, in that the assessors failed to take into account all the essential elements tending to make up the benefits. The commissioners of the district objected to the filing of this complaint, on the ground that th chancery court was confined to the entry of a decree pursuant to the opinion of this court, and that it had no right to permit new issues to be formed concerning the new assessments.

Appellants filed a motion to strike the supplemental complaint from the files, which was overruled by the court, and there was a hearing on oral and documentary evidence introduced, and the chancery court decided that the new assessments were void. Another appeal has been proscuted to this court by each of the two districts.

There is no merit in the contention of appellees that the districts had no right to proceed with the making of new assessments of benefits until the final decree was entered by the chancery court on the mandate from this court. In the recent case of Thomas v. Street Improvement Dist. No. 296, ante, p. 187, we decided this question against the contention of appellees. We decided in that (‘ase that where an assessment of benefits was found to be invalid for any reason it could be withdrawn by the board of assessors and a new assessment made.

Upon consideration of the testimony in the case we have reached the conclusion that the decree against the validity of the assessment is not supported by the evidence in the case, and it is unnecessary to discuss the question in the case whether appellees were properly permitted to file a supplemental complaint in the original action. The filing of the additional plea could at least be treated as a new action attacking the validity of the assessments, and appellees are bound by an adverse decision, so it is unnecessary to determine whether appellants should have been properly brought into court as upon the filing of an entirely new action.

Appellees are owners of large amounts of real estate in the district, particularly Meyer, who appears, from the testimony, to be the owner of a very large and valuable quantity of real property. He testified in 'his own behalf, and also introduced other witnesses, who stated their opinions to be that the property, of Mr. Meyer and the other appellees was assessed too high. These witnesses, including appellees themselves, were cross-examined, but there was no testimony introduced by the district in support of the correctness of the assessment. Notwithstanding the fact that no testimony was introduced by the district, we must indulge a presumption in favor of the correctness of the assessment made by the board of assessors and approved by the city council, until overcome by sufficient proof introduced in the case.

The supplemental complaint attacking the validity of the assessment was made within thirty days, and constitutes a direct and not a collateral attack on the assessment; but even on a direct attack there is a presumption in favor of the validity of the assessment, and the court should not substitute its judgment for that of the commissioners unless it is overcome by satisfactory evidence. In Wilkinson v. Road Impr. Dist., 141 Ark. 164, where a direct attack, as in the present case, was made on the correctness of the asesssments, we said:

“In making the assessments to pay for any proposed improvement, the question is to what extent will the proposed improvement enhance the value of the property against which the assessment is to be levied, for it is this enhanced value which is taxed.’ The method of arriving at that enhanced value is to be determined by the men charged with that duty, and, as we have frequently said, the judgment of the judges reviewing the assessments should not be substituted for that of the assessors who made the assessments, unless the evidence clearly shows that the assessment is erroneous.”

Appellees also attempted to- show that the assessment was erroneous and void for the reason that the board of assessors did not take into account all the necessary elements. The principal contention was that, as a great deal of the property in the district fronted on Main Street, which had been paved through the instrumentality of another district, the paving should have been taken into account by the assessors in determining the amount of benefits derived from the paving and curbing to be done in these districts.

The testimony of appellees themselves and witnesses as to the excessiveness of the assessments was intended, of course, to be directed to this issue, and also appellees introduced one of the .assessors, Mr. Allen, and attempted to show by him that the assessors did not take into consideration the fact that property in the district fronted on a paved street out of the district. After careful consideration of Mr. Allen’s testimony we do not tliink it is sufficient to show that the board of assessors failed to take into consideration all the essential-elements of benefits. We think that an examination of Mr. Allen’s testimony shows that it does not carry the force that it ought to as coming from one of the members of -the board of assessors, but, as far as it goes, it tends to show that the board of assessors did consider the fact that some of the property fronted on Main Street, which was paved, and the witness did state, over and over again, that they attempted to consider every element which tended to affect the question of benefits to the property in the district. Whatever weakness there was in the testimony of witness Allen is chargeable to appellees themselves, for they introduced him and relied on his testimony, and any of its shortcomings in its tendency to establish facts that would break down the assessments must be charged against appellees, upon whom rested the burden of successfully overcoming the presumption in favor of the correctness of the assessments. There were some apparently contradictory statements in Mr. Allen’s testimony. The following excerpts from his testimony tend to support rather than to break down, the assessments:

“Q. I wish you would explain to the court what you took as a basis of these assessments, how you made them, if you will? A. Prom benefits derived by each piece of property * * * Q. You had no system of arriving at it except just think up the benefits? A. Just assess- the benefits, and our judgment was the only thing we had in that. Q. And when you arrived at the end it ran to a little over $123,000? A. I don’t remember that.I don’t remember what it ran. I guess this-book shows. Q. And you had no system of percentage? A. No system of percentage. Q. And no system of deducting from'the old assessment? A. No, we took each piece of property separately. Q. And examined the old assessment, did you? A. No sir. Q. Did you make any reference to that? A. No reference. Q. Can you tell us now, or explain in any way, how you arrived at these odd cents of the assessment? A. I can’t tell you any more than I have told you. Q. Don’t you know how you did it? A. Only from the benefits is all. * * * Q. What did you take into consideration in making those assessments? A. Benefits. Q. What benefits? A. Any benefits. You take a man that is running’ a grocery store up here (indicating), if this part of town is paved, don’t he get benefits? Q. You took into consideration benefits that he would get if the street that his property is on is paved? A. I don’t know about that. * * * Q. Could you tell anything else you took into consideration? A. No sir. Q. Don’t you know anything else you took into consideration, except as you looked at a piece of property, and made up your minds it would be benefited the amount set opposite that property? A. That is the way it was assessed. Q. Did you take into consideration the streets that it faced on? A. I don’t remember that we did; I don’t know that that had any effect on it. Q. I see you have totaled the assessments on Main Street, and it is within the amount of $49,000. Now, did the fact that that property was on Main Street make any difference in your assessments? A. Yes, we took Main Street into consideration. Q. What else did you consider besides it was on Main Street? A. Nothing. Q. Nothing besides the fact that it was on Main Street? A. That was all.”

On cross-examination the statement of the witness was as follows: “Q. Mr. Allen, in arriving at the benefits to be assessed against the several pieces of property in the improvement district, you say that you took the pieces of property as a whole in determining the benefits. Do you mean by that you took into consideration its peculiar situátion and surroundings? A. We took into consideration each piece of property, all property,- the peculiar situation and surroundings of each individual piece. Q. In arriving at thé benefits which you would assess against the property? A. Yes sir.”

While, as before stated, Mr. Al^,g ig not very clear as to wha., was by the board in making- the assessmen s.^ ^ b§§'tiffl.ony is more negative m its character, and^ ^ -guiui'ds little, if any, force towards overcoming tbulíhg's of the assessors. None of the other the board were introduced in evidence, aLu introduced no testimony at alh

Wfe think that the testimony in the record, is not sufficient to overcome the presumption of the correctness of the assessment made by the boards, and that the chancery court should not have set aside the assessment on this showing.

'The decree is therefore reversed, with directions to dismiss the supplemental complaint of appellees for want of equity.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Luthy v. Arkansaw Trading Company.
    Opinion delivered May 14, 1923.
    1. Landlord and tenant — transfer of reversion — reservation op RENT. — A landlord may transfer Ms reversion or -any part thereof, and in doing so may reserve in a deed the right to collect the rent of an unexpired outstanding lease, or he may, by oral contract with his vendee, reserve such right.
    2. Landlord and tenant — purchase of lease by landlord— merger. — Where a landlord purchased from a sublessee his outstanding lease contract in order to give possession of the premises to his vendee, the term of the lease became merged in the reversion, and the lease was at an end.
    Appealed from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      J. F. Wills, for appellant.
    The court erred in directing a verdict for appellee, also in refusing to give appellant’s requested instruction numbered 1. Appellant reserved the rent when he sold the reversion to Shannon. 16 R. C. L. “Landlord & Tenant” §§ 118, 422: Underhill on Landlord & Tenant, § 319. ■ '
   Wood, J.

C. L. Luthy, hereafter called appellant, rented to the Arkansas Trading Company, hereafter called appellee, a certain place in White County, Arkansas, for the year beginning June 1, 1920, and ending June 1,1921. The rent foY the year was $150, to be paid $12.50 monthly. After the appellee had paid the sum of $43.75 on the rent, it sold its lease to one Broderick. About the first of September, 1920, appellant purchased from Broderick the lease and paid him for the same the sum of $125. The appellant purchased the unexpired term of the lease from Broderick in order to enable appellant to give immediate possession to one Shannon, to whom appellant had sold the place. Shannon would_ only purchase on condition that the outstanding lease from appellant to appellee was canceled and he was given possession of the place. Shannon did not make any claim to the rents under the lease from the appellant to the appellee. After the year had expired, the appellant instituted' this action ag’ainst the appellee to recover unpaid rents in the sum of $106.25.

The appellee defended on the ground that the appellant had purchased the lease from its subtenant Broderick, and had thereby canceled the same. The appellee had paid rent up to the time that the appellant purchased the lease from appellee’s subtenant, Broderick, and put his vendee, Shannon, in possession thereof.

. The above are the undisputed facts upon which the appellant requested the court to instruct the jury to return a verdict in his favor. The court refused the appellant’s prayer for instruction, and directed the jury to return a verdict in favor of the appellee. The verdict was so returned, and judgment was entered in favor of the appellee, from which is this appeal.

To sustain his contention that the court erred in refusing to grant his prayer for a peremptory instruction, learned counsel for the appellant invoke the familiar doctrine that “a landlord may transfer his reversion or any part thereof,” and in doing so he may expressly reserve in the deed the right to collect the rent of an unexpired outstanding lease, or he- may, by oral contract with his vendee, reserve such right. 16 R. C. L., Landlord & Tenant, p. 633, §§ 118, 422; 1 Underhill on Landlord & Tenant, § 319. But this doctrine has no application to the undisputed facts of this record, for, when the appellant purchased from the appellee’s tenant the outstanding lease contract, as the appellant did here, in order to give possession to his vendee, by that act he extinguished the lease between himself and the appellee. By such purchase the outstanding leasehold estate merged in himself as the owner of the fee.

Says Mr. Underhill: “The same result which is brought about by a purchase of the reversion by a tenant follows also when the term is acquired by the landlord. If the tenant for years conveys all his term and the title to his leasehold interest to the lessor, the term is merged in the reversion, and'the lease is at an end.” Underhill, 2 Landlord & Tenant, p. 1230, § 725 ; 2 'Taylor, Landlord & Tenant, § 505; 10 R. C. L. “Merger,” p. 666, § 26.

The undisputed evidence shows that the appellee had paid the rent to the time appellant purchased the lease from the appellee’s tenant. The judgment is therefore correct, and it is affirmed.


text:
    Hudson v. Burton.
    Opinion delivered May 14, 1923.
    Landlord and tenant — liability of landlord for conversion of tenant’s crop. — Where a landlord, having a lien on his tenant’s crop and a right to enforce -same by attachment, wrongfully seized and sold the crop, he is liable only for the value of the crop at the time of conversion, and not at some subsequent period.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Geo. G. Dent, for appellant.
    The evidence is undisputed that, appellee converted the cotton to his own use, and the court erred in directing a verdict against appellant. It is insisted that appellant was entitled to the highest value of the cotton between the date of its conversion and the filing of suit. Damages not limited to value at time of conversion. 14 Ark. 505; 25 Ark. 380. Plaintiff only sued for value at time of conversion in these cases. 27 Ark. 365; 31 Ark. 286. Cases supporting highest value. 65 Ark. 448; 69 Ark. 302; 87 Ark. 81; 94 Ark. 511; 109 Ark. 223; 117 Ark. 127; 122 Ark. 341; 139 Ark. 53; 38 Cyc. of Law and Procedure, “Trover & Conversion,” 2096.

      J. G. Washom, for appellee.
    Appellant was only entitled to recover the value of the cotton at the time of its conversion and legal interest on the amount thereof.- The first Arkansas cases cited by' appellant support this position, and the other cases and authorities cited from and after Eaton v. Langley, 65 Ark. 448, have no application to the case made here. Appellant had an interest in or lien ón the cotton, and case is ruled by 51 Ark. 19. See also 57 Ark. 92; 63 Ark. 279; 65 Ark. 319; 66 Ark. 562; 95 Ark. 575; 110 Ark. 58; 123 Ark. 49; 38 Cyc. 2104; L. R. A. 1915-E, 200, note; 26 R. C. L. 1152; 131 Ark. 34; 94 N. W. 750,103 A. S. R. 444; 26 R. C. L. 1140.
   Wood, J.

During the years 1920 and 1921 W. A. Hudson rented certain lands from E. P. Burton. Hudson was to pay Burton half of the cotton raised on the place as rent. Burton furnished Hudson supplies to make the crop, amounting to the sum of $498.50. Hudson delivered to Burton half the cotton that was grown on the place. Hudson’s half of the cotton consisted of seven bales, which he left at the gin, taking the ginner’s receipt therefor. He was not satisfied with the prise offered for the cotton at the time same was ginned, and informed Burton that he had left the cotton there for a better price, and had the same insured. Burton objected to this, and wanted Hudson to ship the cotton. so as to dispose of it. Some time after Hudson stored the cotton Burton took charge of it, and shipped it, without asking anything about it. Burton offered Hudson at one time twenty cents per pound, but Hudson refused to take it. Two or three days before Burton shipped the cotton Hudson was notified that the insurance had expired, and that the gin company would remain responsible no longer, and Hudson made no effort to reinsure it. Notice was served on Burton that the insurance and storage had run out. Burton then shipped the cotton to Memphis. Hudson had moved off of Burton’s place and did not settle his account with Burton, and Burton concluded that he would ship the cotton and take his loss rather than pay more insurance and storage.

About the first of April, 1921, Burton sold the cotton and obtained $457.33 for same, which sum represented the market price of cotton of that grade. He credited Hudson’s account with the amount. The price of 1920 cotton in October, 1921, was sixteen cents per pound. It was worth about five or six cents less per pound than new cotton of the same kind and grade. The highest price readied for cotton of the kind and grade raised by Hudson between April 1 and November 17, 1921, was twenty-one cents per pound.

This action was instituted by Hudson against Burton for the alleged conversion of his cotton. He laid his damages in the sum of of $987.50. Burton answered the complaint, and denied that he was indebted to Hudson in any sum whatever. He alleged that Hudson was indebted to him in the sum of $32.17, same being the balance of his account due after deducting the proceeds of his cotton, which Burton had sold, and for which he prayed judgment against Hudson.

The above are substantially the facts upon which Hudson prayed the court to instruct the jury that he was entitled to recover the highest market value of the cotton between the date of the sale of the -cotton by Burton ancl the filing of this suit, less the sum of $489.33. The court refused to grant Hudson’s prayer for instruction, hut directed the jury to return a verdict for Burton. The jury returned a verdict as directed. Judgment was entered in favor of Burton, from which is this appeal.

The only question presented by this appeal is whether or not, under the undisputed facts, the appellant’s measure of damages was the highest market value of the cotton between the time of conversion thereof and the time of filing the suit. To sustain his contention that his prayer for instruction, which the court refused, contains the correct rule for the measure of damages in this ease, appellant relies, by analogy, upon the rule announced by this court, in certain cases, as to the measure of damages to the owner of timber lands whose timber had been converted either by wilful or innocent trespassers. The doctrine of these cases is that, where timber has been cut by a wilful trespasser, the measure of damages, where delivery cannot be had, is the full value of the property at the time of the trial in its converted form,, without deduction for the labor and expense in the enhancement of its value; but if the trespasser be innocent, then the measure of damages is the value of the timber at the time of the trial in its converted form', less the labor expended on it, provided such expense does not exceed the increase in value. See Eaton v. Langley, 65 Ark. 448; Central Coal & Coke Co. v. Shoe Co., 69 Ark. 302; U. S. v. Flint Lumber Co., 87 Ark. 81; Randleman v. Taylor, 94 Ark. 511; Griffith v. Tie Co., 109 Ark. 223; Bradley Lbr. Co. v. Hamilton, 117 Ark. 127; Foreman v. Holloway, 127 Ark. 321; Brown v. Daub, 139 Ark. 53. But the doctrine of the above cases has no application whatever to the facts of this record.

Here the appellee had a lien on appellant’s crop for supplies furnished him to make and gather the same. Appellee’s account against appellant for supplies was past due.. Appellant had moved away from the place, and had not paid his account. Appellee, under the law, was entitled to the possession of the property in order that he might subject the same to the payment of his claim against the appellant for supplies. Sec. 6890, C. & M. Digest. Appellee could have proceeded by attachment, but, instead, he took possession of the property without resorting to the law. His conduct in so doing was illegal, and he was a wrongdoer and guilty of a conversion of appellant’s cotton.

This states the case as strongly in favor of the appellant as the facts warrant, because the appellee only became a trespasser in that he did not take possession of the cotton in the manner prescribed by statute, supra. The rule for damages in such cases is announced by Chief Justice Cockrill, speaking for this court, in Jones v. Horn, 51 Ark. 19-25, as follows: “The rule is that wherever the defendant has a legal or equitable interest in or claim upon the specific property for the conversion of which he is sued, the recovery against him is limited to the actual net amount of the plaintiff’s interest, although the possession is wrongfully assumed or retained. This fully indemnifies the plaintiff, and leaves the balance of value in the hands of him who is entitled to it, thus settling the whole controversy in one suit. Where the defendant is a mortgagee who was entitled to the possession, with power to sell at the time of the seizure or conversion, and who has become a wrongdoer by reason of the manner of acquiring possession, or in the irregularity of the sale, he is liable to the mortgagor (in the absence of proof of special damages) only for the value of the property at the time of the conversion, less the amount of the mortgage debt. * * * It was only for the improper method of exercising his rights that the defendant was mulcted in damages. It is obvious therefore that the value of the property at the time of the -conversion, and not at some subsequent period, should govern.” The same rule for the same reason applies in the case at bar. See also Cocke v. Cross, 57 Ark. 92.

No special damages accrued to the appellant growing out of the method adopted by the appellee of taking possession of the cotton. The appellant admitted that the appellee sold the cotton for. less than the appellant’s indebtedness to the appellee. Therefore, under the rule above announced in Jones v. Horn, the appellant was not prejudiced by the ruling of the court in directing the verdict in favor of the appellee.

The judgment is correct, and it is therefore affirmed.


author: Hart, J.

text:
    Gallup v. St. Louis, Iron Mountain & Southern Railway Company.
    Opinion delivered May 14, 1923.
    1. Appeal and error — appeal prom order discharging injunction. • — The force and effect of a decree dismissing a bill and discharging an injunction is neither suspended nor annulled as a mere consequence of an appeal, even if an appeal bond is filed.
    2. Appeal and error — discharge op injunction — liability on appeal bond. — Where the United States District Court enjoined appellant’s testator from suing appellee railway company for freight and passenger overcharges, and the Circuit Court of Appeals dismissed the bill and discharged the injunction, whereupon appellee prosecuted an appeal to the Supreme Court of the United States, and filed an appeal bond conditioned to answer all costs and damages that might be adjudged against it, but no order of supersedeas was granted by the Supreme Court of the United States,' appellant’s testator was not prevented from suing for such overcharges, and appellee’s surety was not liable for overcharges subsequently recovered against appellee railway company.
    Appeal from Baxter Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Allyn Smith, for appellant.
    The court erred in rendering judgment against appellant. During pendency of appeal in IT. ,S. Supreme Court, and while supersedeas bond sued on was in effect, the railway became involved, and appellant-should be allowed to recover amount of Ms judgment against the bond. 58 So. 792; 56 So. 849.

      McConnell $ Henderson, for appellees.
    The record does not contain .all the evidence introduced at the trial, and case should be affirmed. 33 Ark. 119; 147 Ark. 197. Injunction not revived by taking an appeal from order modifying it. Case was decided by-Supreme Court June 4, 1917, 244 U. S. 368, 37 Sup. Ct. Rep. 611. Appellant had the right, at -any time after the case was decided by the Circuit Court of Appeals in March, 1915 (220 Fed. 876),. to prosecute his case in Baxter Chancery Court. He took no appeal from that decision. 84 Ark. 494 ; 84 Ark. 596; 219 U. S. 527, 31 Sup. Ct. Rep. 295; 132 U. S. 14, 10 Sup. Ct. Rep. 8; 115 U. S. 465, 6 Sup. Ct. Rep. 127; 251 U. ‘S. 511, 40 Sup. Ct. Rep. 285. Liability of surety strictly construed. 203 U. S. 441, 27 -Sup. Ct. Rep. 56. No damage resulted to appellant from the appeal to the U. S. Supreme Court, and -there can be no recovery against the bond. Cases •cited by appellant have no application to facts herein. Attorney’s fees are not allowed as damages in dissolution of injunction. 366 Ark. 191. Not recoverable as damages. 77 Ark. 128.
   Hart, J.

This is a suit in chancery by appellants against appellees to recover upon an appeal bond filed in the Circuit Court of Appeals of the Eighth Circuit, in the ease of Bellamy v. St. Louis, I. M. & Southern Railway Company, reported in 220 Fed. 876. In that case the Federal district court had granted a perpetual injunction against Howard H. Gallup and other defendants, including the Railroad Commissioners of the State of Arkansas, from, maintaining any suits for excess freight and passenger charges against the St. Louis, Iron Mountain & Southern Railway Company during the pendency of the injunction. The Circuit Court of Appeals held ■ that parties from whom excessive rates had been -exacted were not confined to suing-on the injunction bonds, but that they had the right given them by law tq recover the overcharges, and that the right was not destroyed, by the injunction, but was only suspended. Hence the order of the trial court was modified accordingly. In short, it was held that the shippers might recover the overcharges by separate suits under the statute.

The railroad company prosecuted an appeal to the Supreme Court of the United States and filed an appeal bond conditioned as follows: “Now, therefore, the condition of this obligation is such that if the above named appellant shall prosecute its appeal to effect and answer all costs and damages that may be adjudged against it, if it shall fail to make good its plea, then this obligation is to be void; otherwise to remain in full force and effect. ’ ’

This bond was signed by the Fidelity & Deposit Company of Maryland. Upon appeal to the Supreme Court of the United States the judgment of the Circuit Court of Appeals was affirmed. St. Louis, I. M. & S. R. Co. v. McKnight, 244 U. S. 368. The court held: “Where a carrier, by reason of temporary and permanent injunctions against State officials and shippers and travelers as a class, collects rates in excess of those fixed by law, the right of a person who did not appear to sue for the excess paid by him during the restraint revives when the final decree is reversed by this court and its mandate is issued to dismiss the bill.”

The court said that Gallup sued on causes of action to recover overcharges arising under the Arkansas statute, and that his right to sue, suspended by the injunctions knprovidently granted, revived as soon as the permanent injunction was dissolved by -the decree dismissing the appeal. The opinion of the Circuit Court of Appeals was delivered on March 8,1915, and the decision of the Supreme Court of the United States was on June 4, 1917.

The St Louis, Iron.Mountain & Southern Bailway Company 'became insolvent, and Gallup died. . Gallup obtained judgment for the overcharges against-the railroad in the chancery court of Baxter County, Ark. Gallup v. St. Louis, I. M. & S. R. Co., 140 Ark. 347.

The chancellor was of the opinion that Gallup’s estate could not recover against the surety on the appeal bond, aiid dismissed the complaint of the plaintiff for want of equity. The case is here on appeal.

The judgment of the chancery court was right. It is well settled that an injunction is not such a judgment as can be stayed by filing a supersedeas bond. It requires a judicial order to do this. Union Sawmill Co. v. Felsenthal Land & Townsite Co., 84 Ark. 494. When an injunction has been dissolved, it cannot be revived except by a new .exercise of judicial power, and no appeal by the dissatisfied party can of itself revive it. Knox County v. Harshman, 132 U. S. p. 14. It is well settled that the force and effect of a decree dismissing a bill and discharging an injunction is neither suspended nor annulled as a mere consequence of an appeal, even if a supersedeas is allowed. Merrimack River Savings Bank v. Clay Center, 219 U. S. 527.

It does not appear from the record that any court order was ever made reviving the injunction after the judgment of the Court of Appeals of the Eighth Circuit was rendered. Hence, under the decisions above referred to, the appeal bond which was filed by the railroad company could not operate to have that effect.

No order of supersedeas having been granted by the court, the filing of the bond in the Court of Appeals did not have the effect to supersede the judgment of that court, and Gallup then had the right to prosecute his suit for overcharges which was pending in the Baxter Chancery Court.

The railroad company was insolvent at the time the opinion of the Circuit Court of Appeals was delivered on March 8, 1915, and on May 28, 1915, the date on which the appeal bond in question was filed. It has continued insolvent since that date, and its property has been sold to satisfy its creditors. Hence the necessity of suing the surety.

Under the holding of the courts above announced, (he surety on the appeal bond is not liable for the overcharges recovered against the railroad company, because no order was made by the court granting supersedeas, and the filing of the bond did nut have that effect.

It follows that the decree must be affirmed.


text:
    Corning Roller Mills v. William Kelly Milling Co.
    Opinion delivered May 14, 1923.
    1. Assignments — executory contract op sale. — An executory contract for the shipment of flour of a certain kind is not of- a personal nature and may be assigned, in the absence of a provision to the contrary.
    2. Assignments — ratification or waiver. — Though an executory contract for the shipment of flour of a certain kind and quantity contains a provision prohibiting its assignment, such provision may be waived or its violation ratified by the other party.
    3. Assignments — ratification—evidence.—Evidence held to justify a finding that the buyer in an executory contract for the ' sale of flour consented to or ratified the assignment of the contract by -the seller.
    Appeal from Clay Circuit Court, Western District; IF. TF. Bandy, Judge;
    affirmed.

      C. T. Bloodworth, for appellant.
    There is no testimony showing that appellant assented to or ratified the assignment of the contract, which, by its terms, was not assignable. Parol testimony was not competent, being 'within statute of frauds. 25 R. C. L. 642, par.. 272, 644, par. 274, 645, par. 276. The court erred in refusing to exclude the letters attached to depositions as exhibits. Erred also in giving instructions 1, 2, 3, 7 and 8, and in refusing appellant’s requested instructions 1 to 9 inclusive.

      F. G. Taylor, John R. Beeching, John F. Rhodes, and William H. Burnett, for appellee.
    Contract could be assigned. 1 Williston on Contracts, 779, 789; 5 C. J. 876. The testimony shows assignment of contract was assented to and ratified. 1 Williston on Contracts, 790; 55 Ind. App. 605, 104 N. E. 519; 21 N. J. Eq. 479; 176 Mass. 237, 57 N. E. 380. Statute of frauds not involved. 5 C. J. 989. Consented to estoppel. 21 E. C. L. 930, 5 C. J. 940; 219 Mass. 304, 106 N. E. 990; 173 Mass. 460, 53 N. E. 906; 83 Mo. A. 576.
   Wood, J.

Tlie William Kelly Milling Company (hereafter called appellee) a corporation of Kansas, engaged in the sale of mill products in this State, purchased of the Eeno Flour Mills Company of Kansas City its plant before the 13th of October, 1920. On the 18th of October, 1920, it also purchased a contract which the Eeno Flour Mills Company had with the Corning Eoller Mills (hereafter called appellant) at Corning, Arkansas, of August 25,1920. Under that contract the Eeno Flour Mills Company agreed to sell to the appellant 310 barrels of “Craftsman” flour at $11.60 per barrel, to be shipped within sixty days. The contract, across its face, carried the following indorsement: “For value received we hereby assign the within contract to the William Kelly Milling Company. Eeno ■ Flour Mills Co., By C. O. Heinley. ’ ’

In the body of the contract, among others, is the following provision: “Contract not subject to change: That there are no conditions, representations, warranties, oral or-otherwise, and that there shall be no assignment or cancellation of this contract, except as herein stated, and that no agent or representative has authority to modify the printed terms of this contract.”

On October 18, 1920, the appellee wrote to the appellant advising the latter that it had purchased its contract with the Eeno Flour Mills Company, and advising the appellant that, unless appellee heard from the appellant to the contrary by wire, appellee would arrange to ship the floür as per appellant’s contract with the Eeno Flour Mills Company. The appellant answered on October 20 and acknowledged the receipt of the letter of the a.n-péllee and stated, among other things, as follows: “We note that yon have control of the Reno mill. In regard, to the flonr that we have hooked with yon for shipment October 25, we do not see how we can use this flour.” Then, after assigning reasons for this action, the letter concludes: “We will have to ask that you cancel our order.” The letter was signed “Corning Roller Mills, by Ed.” On the 23rd of October the appellee wrote the appellant in answer that it had bought high-priced wheat for the purpose of filling appellant’s order, and therefore could not consider cancellation, but would be willing to extend the shipping time thirty days. In answer the appellant wrote appellee as follows: “We are in receipt of your letter of the 23rd, and in reply beg to state im will appreciate it if you, will hold our flour for us thirty days and ship same latter part of November, as you stated.” The appellee in answer 'to the last letter' wrote: “ As requested, we will withhold shipment of your order until the last of this month.” On November 20 the appellant wrote the appellee detailing the financial straits of appellant, and concluded the letter by requesting the appellee to cancel its order. In reply, the appellee stated that it could not cancel the order as requested, but “must insist either upon your accepting the' contract as entered into or make a cash settlement for the difference between the contract price and the price at which we '«muid be obliged to resell the flour, which, on this date, would amount to $914.59. The letter concluded by requesting the appellant to answer by return mail which method it preferred.

After the above correspondence the appellee, through the Miller’s Exchange of Kansas City, Missouri, endeavored to have the appellant accept the order. Appellant wired the exchange on December 4, 1920, “Extend shipping period on car of flour.” On December 6 the appellee again wrote the appellant that they had extended the order for shipment of flour on contract until December 24. On December 25, 1920, appellant wired appellee stating, “Just received notice you were ship.ping us car of flour,” and further stating that it could not handle the car just then, and asking appellee to divert it, as it would be left in the hands of the railroad on arrival. Appellant also on that day wrote appellee telling it that it should not have loaded the car without ascertaining whether the appellant would take up the draft $ind unload the car. On December 27, 1920, the appellee wrote to the appellant that it had sent forward the car on the 25th, and that the matter was now out of its hands. The appellant in answer wired the appellee that the car would he refused on arrival.

This action was instituted by the appellee against the appellant. The appellee, in its complaint, set up the contract and the purchase thereof by it, and alleged that, for valuable consideration, it was assigned to the appel-lee by consent of the appellant, and that the appellant was due the appellee the sum of $725.15 for loss growing out of breach of the contract. The appellant answered, and admitted that they had entered into a contract with the Reno Flour Mills Company, but alleged that such contract was not assignable, and denied that it had consented to'the assignment, and denied any liability to the appellee.

The appellee introduced the correspondence by letter and telegram as above set forth. A witness for the appel-lee testified that it had sustained a loss of $725.15 by reason of the refusal of appellant to accept the flour. One of the witnesses for the appellee (Anderson) testified that he was agent of the appellee, and as such on-December 3, 1920, went to Corning, Arkansas, for the purpose of settling the controversy between appellant and the ap-pellee. He talked with Bennett, one of the members of the firm of the appellant, and Bennett told witness that at that time ho could not take any of the flour; that they then had too much on hand. "Witness asked Bennett what date the appellee could ship the flour, and Bennett replied that he could take care of it along about the 20th of December, and it was agreed that the 24th should be the date of shipment.

D. L. 'Bennett testified, on behalf of the appellant, that he was a member of the firm. He stated that he didn’t know anything about the letters introduced in evidence by the appellee referring to the alleged assignment to the appellee of the appellant’s contract with the Reno Flour Mills Company. He denied that he had any knowledge of letters purporting to have been written by the appellant to the appellee requesting the latter to hold the flour order for appellant and ship the same the latter part of November, as stated in one of the letters. Witness never wrote such a letter, and didn’t authorize any one else to write a letter to that effect. Witness admitted having a conference with Anderson, but denied that he had told Anderson that he would accept the flour. The appellee sent witness a contract to sign, but he refused to sign the same.

Anderson also was called as a witness for the appellant, and identified a letter written by the appellee to the appellant of January 5, inclosing new contracts for appellant to sign, and suggesting to appellant that, instead of extending the time on the original contract, it would be better to cancel that and enter into a new contract dated as of January 5, to run for sixty days.

Beard testified that he and Bennett were the partnership composing the firm of appellant. He testified that he did not authorize any one to sign the letter purporting to be the letter of his firm dated October 29, 1920, requesting the appellee to hold the flour for appellant for thirty days, and to ship the same the latter part of November. He stated that “Ed,” who signed the letter, was Ed Stevens, and that witness gave him no authority to write any such letter. He further stated that he (Beard) had nothing to do with running the business; that the same was under the control of D. L: Bennett; that Stevens was the general roustabout. Bennett either did the correspondence for the firm or-told “Ed” to write, when he wanted to.

Bennett was rcalled, and stated that Stevens was salesman for the appellant; that he had no right to make a contract binding the partnership.

Stevens testified in rebuttal, on behalf of the appel-lee, that he wrote the letter of October 29th, and admitted that he wrote other letters. He stated that if he wrote letters he would sign them “Ed.” He did not consult Bennett when he wrote letters. Bennett had objected to witness writing letters. Witness did a little office work, selling goods, waiting on the trade, and also collecting and keeping books some. He stated that he had no authority or instruction from any member of the firm to write the letter of October 29th.

The above sets forth the salient features of the testimony. The appellant asked the court to instruct the jury to return a verdict in its favor, on the ground that the contract which is the foundation of the action is in writing and unassignable. The court refused this prayer.

The appellant offered instructions numbered from two to nine, inclusive, in which it sought to have the court tell the jury that the contract was unassignable, and that if this provision were waived it must be done in writing and with a full knowledge of all the facts, and with the intention to waive such provision; that the terms of the contract could not be changed by parol; that the appellant must have contracted with the appellee and agreed to accept the Hour included in the contract from the appellee; that the appellant, after knowledge that the appellee was claiming to be the owner of the contract, must have done some act or made some contract or agreement with the intention, at the time, of ratifying the assignment of the original contract to the appellee.

The court refused appellant’s prayers, and granted prayers of the appellee to the following effect: That if appellant entered into a contract with the Reno Mills Company, and that contract was assigned to the appellee, and the latter notified the appellant of such assignment, and if the appellant ratified the assignment by requesting further time for the delivery of the flour under the contract, and further time was granted by the appellee, then appellant would be bound by the contract. And further, if the appellee shipped the flour in accordance with the contract between the Beno Mills Co. and the appellant, if there was a contract between them, and appellant refused to accept the flour, and appellee suffered a loss thereby, the verdict should be in favor of the appellee for such loss.

The court also, on its own motion, instructed the jury that, if Ed Stevens was the agent of the appellant, and appellant had received notice from the appellee of the assignment of the contract, and knew, after receiving such knowledge, that Stevens had written the letter of October 29, 1920, and did not within a reasonable time disavow such letter, then the jury should find for the appellee, unless Stevens wrote the letter without knowledge of the facts relating to the negotiations between the appellant and the appellee in regard to the contract and its assignment.

The court further instructed the jury that if Stevens, when he wrote the letter of Oct. 29, 1920, had authority to write the same, or if he had authority of Bennett to write the same, or if he had authority to act for the defendant generally, or if, in writing the letter, he acted within the apparent scope of his authority, but did not have special or general authority to write the letter, then appellant would be bound by the letter, if Stevens knew all the facts connected with the negotiations between appellant and appellee concerning the matter.

The court further told the jury that, in reaching a conclusion as to whether the appellant assented to. the assignment, if there was an assignment, they should consider all the evidence introduced, including all the correspondence between appellant and the appellee, and all acts of the parties. If they found that the appellant assented to the assignment, then the verdict should be in favor of the appellee, but if appellant did not assent, the verdict should be in favor of the appellant. The jury returned a verdict in favor of the appellee in the sum of .$629.30. Judgment was entered in favor of the appel-lee for that sum, from which is this appeal.

1. The appellant contends that there was -no testimony to prove that appellant consented to the alleged assignment by the Reno Flour Mills Company to the ap-pellee of the contract between the appellant and the Reno Company. We cannot concur with learned counsel in this view of the evidence. The contract itself, by the indorsement across its face, shows that it was assigned, and it was proved that it was assigned for a valuable consideration. It was proved that this was made by the Reno Flour Mills Company and accepted by the appellee». Without reiterating and discussing the evidence, suffice it to say the correspondence between the appellant and the appellee shows that appellant, with frill knowledge that the assignment had been made, ratified the same by recognizing the binding effect of the contract and asking the appellee to cancel the same, or, if it would not cancel the same, to indulge appellant in the matter of exténding the time for shipment. Appellant repudiates the letters on the ground that they were not written by the authority of the appellant. But the issue as to whether or not Stevens, who signed his name to the letters as “Ed,” had authority to do so, was, under the evidence, one for the jury. That issue was submitted to the jury under correct declarations of law.

The contract was not of a special personal nature, and therefore unassignable. It was for the sale and purchase of “Craftsman”'flour, and the flour that was shipped was that kind of flour. “When a bilateral contract, still executory on both sides, is spoken of as assignable, it can mean no more than that performance of the duties can be delegated and that the right can be assigned.” 1 Willistoii on Contracts, 779. But, conceding, for the purpose of the opinion, that the contract contains a provision prohibiting its assignment, the provision nevertheless was one which the appellant could, and did, waive by the alleged letters which it wrote to the appellee above set forth. See also Todd v. Griffin, 55 Ind. App. 605; Griggs v. Landis, 21 N. J. Eq. 490; Staples v. Sommerville, 176 Mass. 237; also 5 C. J. 989.

2. Learned counsel for the appellant presents various other assignments of error in connection with the rulings of the court in granting and refusing prayers for instructions. We have carefully examined these, and find that the court’s charge, when taken as a whole, is free from error, and it would unduly extend this opinion to discuss these rulings in detail, and could serve no useful purpose, as a precedent, to do so.

The most important issue is whether or not the appellant consented to or ratified the alleged assignment of the contract, which is the foundation of this action. That issue, as we have seen, was fully and fairly submitted to the jury by the trial court, and, since there was testimony legally sufficient to sustain it, the verdict is' conclusive here. The judgment is therefore in all things correct, and it is affirmed.


author: Smith, J.

text:
    Garrison v. Geren
    Opinion delivered May 14, 1923.
    1. CONTRACT — CONCLUSIVENESS OF ARBITER’S DECISION. — Where the parties to an oil and gas lease contract made a certain firm of attorneys the arbiters to determine the validity of the lessor’s title, their opinion can he questioned only for fraud or mistake.
    2. Specific performance — right to relief. — The grantor in an oil and gas lease, as well as the grantee, may maintain a suit for specific performance.
    3. Escrow — performance of conditions. — Where the conditions of an escrow agreement with reference to an oil and gas lease have been met, it becomes the duty of the. lessee to’accept the lease and pay for it if the lease tendered is the one called for by the escrow agreement.
    Appeal from Pulaski 'Chancery Court; John E. Mar-lineau, Chancellor;
    affirmed.

      John D. Shackleford, for appellant.
    The burden was opinion appellee to prove the title was merchantable, and no attorney having been agreed on to pass on the title, he should have introduced the abstract as a part of his testimony. 142 Ark. 268. The agreement for terms and stipulations in a lease must be understood by both parties alike. 19 Ark. 23; 49 Ark. 306. A lease is a oonvejmnce of a particular estate in lands. 228 S. W. (Ark.) 393; 2 Blackstone, Com. 367. Burden of proof of terms of lease on appellee, and testimony must be clear and satisfactory as to the precise terms. 228 S. W. 393; S. W. Ark. 854; 39 Ark. 424; 96 Ark. 98; 44 Ark. 334; 12 Ark. 421; 23 Ark. 704; 33 Ark. 294. The effect of this suit is to collect a forfeiture, and courts of equity abhor forfeitures. 30 Ark. 556.
   Smith, J.

The parties to this litigation entered into the following written contract:

‘‘Escrow Agreement.
“This agreement made and entered into this 14th day of January, 1921, b}*" and between W. J. Goodwin, attorney in fact, for IT. M. Geren and Julia Geren, bis wife, party of the first part, and W. P. Garrison, of Little Rock, Arkansas, party of the second part, witnesseth:
“The party of the first part has executed an oil and gas lease to certain lands situated in section 22, township 17 south, range 15 west, in Union County, and the party of the second part attaches to said lease his draft in the amount of twelve thousand two hundred fifty ($12,250) dollars. In addition to the amount of $12,250, the party of the second part deposits herewith two thousand ($2,000) dollars cash, to be paid to the party of the first part when title to said land is passed by the attorney for the party of the second part. A copy of the opinion of the attorney selected by the party of the second part, exhibited to the bank by the party of the first part, shall be authority for the payment of the said two thousand ($2,000) dollars.
“The party of the first part shall furnish and deliver abstract of title to land described in said oil and gas lease within two days from date hereof, showing-good and merchantable title to said lease to be vested in party of the first part. Party of the second part shall have said abstract examined and said title to said lease passed upon by a competent attorney within five days from date of this instrument. If title is good and merchantable, then the bank hereinafter named shall pay said sum of two thousand ($2,000) dollars to party' of the first part, and shall hold the said draft for twelve thousand two hundred fifty ($12,250) dollars, and the said oil and gas lease, for a period of'fifteen days from date before final payment is made. The opinion of said attorney shall be in writing, and if he shall hold said title is defective, then all defects shall be clearly indicated and set forth by him in writing. If said title is defective, then party of the first part shall have five days from the date said attorney’s opinion is delivered to him within which to cure said defects, and if he should fail to cure said defects, then said lease shall be delivered, at the expiration of the time limit of fifteen (15) days, to the party of the first part, and said sum of money shall be delivered and paid over by said bank to the party of the second part. It is distinctly understood that the party of the second part shall have a total of fifteen (15) days from date within which to make balance of payment of twelve thousand two hundred fifty ($12,250) dollars. It is agreed by and between the parties hereto that this instrument shall be deposited in escrow with the Citizens’ National Bank of El Dorado, Arkansas.
“In witness whereof we have hereunto . set our hands on this 14th day of January, 1921A

An abstract of the title to the land described was examined by Marsh & Marlin, a firm of attorneys practicing at El Dorado, and a written opinion was prepared by them on January 21, 1921, in which they advised that Geren had a good and indefeasible title, subject only to an outstanding lease — an objection which was immediately met by the reassignment of the lease.

After the approval of the title by Marsh & Marlin, the surrender of the $2,000 cash and the draft was demanded. This demand was refused, whereupon Geren brought suit for the specific performance of the lease, and made the bank a party.

Garrison answered, and filed a cross-complaint. He alleged that' Marsh & Marlin were not the attorneys of his selection, and that he was therefore not bound by their opinion. He also alleged that the lease did not contain the recitals and agreements upon which he and Geren had agreed, and that the execution of the original escrow agreement had been procured by the false representation that no part of the land described was within the corporate limits of the city of El Dorado, whereas a material part of the land was situated within the corporate limits of that city, and therefore subject to certain municipal regulations in regard to drilling for oil and in piping oil from a producing well which did not obtain and were not in force outside of the city. By way of cross-complaint he alleged that he sustained a loss of $11,000, because some third parties refused to carry out a trade with him for'the reason that the title shown by the abstract was not good and merchantable.

Geren brought this suit to enforce specific performance of the contract, and from a decree in his favor Garrison has appealed.

The principal question in the case is the one of fact whether Marsh & Marlin were the attorneys designated by Garrison to examine and pass upon the title. The court below expresslv found the fact to be “that an ab-tract of title was duly furnished by plaintiff to the attorney selected by the defendant, and on January 21, 1921, the attorney so selected by said defendant approved the title, in a written opinion which was delivered to the defendant.”

We concur in this finding of fact, and as- the parties, by their agreement, made Marsh & Marlin the arbiters to determine the validity of the title, the opinion so prepared can only be questioned for fraud or mistake. LeRoy v. Harwood, 119 Ark. 418; Whitener-London Realty Co. v. Ritter, 94 Ark. 263; Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Lewelling & Price-Williams v. St. Francis County Road Imp. Dist. No. 1, 158 Ark. 91; Williams v. Board of Directors, 100 Ark. 166; Drainage Dist. v. Kochtitzhy, 146 Ark. 494.

It appears that Garrison procured the written opinion of another firm of attorneys under date of April 5, 1921. This was, of course, long after the time limited by the escrow agreement, but this opinion did not disapprove the title. It called attention to the outstanding lease referred to in the opinion of Marsh & Marlin, and it also called attention to the fact that there was a missing link in the chain of title, but there may have been some showing in the abstract (which is not in the record) from which it appeared that the title was good and merchantable. notwithstanding this missing link. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 192.

There appears to be no substantial testhnunv to support the allegation that the execution of the agreement set out above had been procured through false, representations as to the location of the land: and the court express!v found against Garrison on the allegation of loss of profits resulting from the defective title. We also concur in this finding.

Garrison testified that the lease called for in the escrow .agreement never became a valid and binding contract, because he never assented to it or signed it. If his signature was essential to the validitv of the lease, he could easily have signed, as that opportunity was afforded. A reading of the escrow agreement clearly indicates that the terms of the lease itself .had been agreed upon, and upon the approval of the title nothing remained to he done except to deliver the lease to Garrison and the money and the draft to Geren, as the lease .was attached to the draft. Garrison testified that the lease tendered was not such as he had agreed to accept, in this, that the lease he agreed to accept called for a rental of a dollar per acre per annum, and the rent for a gas well in use was $200; whereas the lease offered in evidence called for $285 for the '57 acres of land embraced in the lease and $500 a year for gas rental.

On the other hand, the agent and attorney for Geren who acted for him in the matter testified that the terms and conditions of the lease were discussed in minute detail, and were fully agreed upon, and that he prepared the lease in Garrison’s presence, and they discussed it in every detail as its preparation proceeded, and that as completed it was fully approved b}^ Garrison, and nothing was left to be done except to execute and deliver it; and that the lease as thus prepared and agreed upon was delivered to Marsh & Marlin, along with the abstract.

The court below accepted this testimony; and so do we, for it accords with the recitals of the escrow agreement, and Garrison should have accepted the lease tendered.

The court decreed a specific performance of the contract, and we think the testimony warranted that action. The grantor, as well as the grantee, may maintain suit for specific performance. Robinson v. Florence Sanitarium, 149 Ark. 355; Dollar v. Knight, 145 Ark. 522; Wilkins v. Eanes, 126 Ark. 339.

The', controlling question is whether. or not Geren complied with the escrow agreement by furnishing a good and merchantable title which was approved by his attorney, and tendered a written lease the provisions of which conformed to the agreement of the parties. The court below decided-these questions in favor of Geren, and -so do we, and, having done so, the remaining question is whether the lease contract will be specifically enforced.

The conditions of the escrow agreement having been met, it became the duty of Garrison to accept the lease which had been placed in escrow and pay for it, if the lease tendered was the one called for by the escrow agreement. Master v. Clark, 89 Ark. 191; 21 C. J. § 34, chap. Escrows; Roach v. Malone Mercantile Co., 135 Ark. 69.

The lease itself then became the contract between the parties, and we must look to it to ascertain the relative rights and obligations of the parties. There is nothing indefinite or uncertain about this lease, and we perceive no reason why the court should withhold the relief of specific performance, and the decree to that effect is affirmed.


author: Humphreys, J.

text:
    Harkins v. National Handle Company.
    Opinion delivered May 14, 1923.
    1. Master and servant — independent contractor. — Where the lessee of a sawmill employed his own labor, bought his own material, and conducted the business according to his own methods, he was an independent contractor, though the lessor reserved the right to control the kind, quality and quantity of the output according to specifications and prices submitted from time to time, and the right to cancel the lease in case the lessee should create obnoxious and- offensive conditions, -and advanced money to meet the lessee’s payrolls on lessor’s payroll forms.
    2. Master and servant — independent contractor — liability for fire. — A lessor of a -sawmill is not liable for -a -fire originating from a pile of sawdust created by his lessee, even though its creation was a natural and necessary result of the operation of the mill, where it does not appear that the ignition thereof was a necessary and natural result of the operation of the sawmill.

      Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    affirmed.

      J. F. Costen, for appellant.
    The court erred in directing -a verdict against appellant. Under tlie contract between appellee and Rogers he was bound to operate the plant virtually for and as directed by appellee, which controlled it, and Rogers was its servant, for whose wrongful acts it was liable. 103 Pac. 785; 163 S. W. (Ark.) 161; 194 Fed. 841; 115’Pac. (Kan.) 583; 122 Pac. (Kan.) 123; 32 Am. Rep. 707. Rogers’ status .as fixed by the contract was analogous to but less independent than the share-cropper. 166 S. W. 431; 39 Ark. 286. Appellant liable if Rogers a tenant. 6 Words & Phrases, 498; 15 N. Y. Supp. 701. The burning sawdust pile was a nuisance. 84 Atl. 437; 80 N. E. 587; 139 S. W. (Ark.) 633; 66 Ark. 276; 47 N. J. Law, 23. Contract required premises used in such a way as necessarily created a nuisance, and appellee landlord liable as original wrongdoer. 12 Fed. 280; 59 N. Y. 34; 23 Pac. (Col.) 293.

      Bittle, Buck & Lasley, for appellee.
    Rogers was an independent contractor, and responsible alone for his negligence. 83 Kan. 349, 45 L. R. A. (N. S.) 930; 26 Cyc. 1546; 81 Atl. 838; 77 Ark. 551; 118 La. 1089; 38 N. Ú. 432; 55 Ark. 522; 147 N. C. 26; 77 Ark. 551; 53 Ark. 503. The accumulation of sawdust into a great pile not a nuisance per se. 29 Cyc.-1192; 80 N. Y. 597; 21 L. R. A. 569; 123 Ala. 292; 47 N. E. 2. Rogers discharged his whole duty in attempting to control the fire, even if sawdust pile caught on fire through his negligence. 64 Ark. 311.

      J. T. Costen, in reply.
    Reserving the right to control the work is an important element in determining liability in cases of this kind. 163 S. W. 161. No question of an independent contractor here, and cases cited by appellee not in point. Apnellant not guilty of contributory negligence. 23 N. W. 804; 23 Pac.. (Wash..) 930. Appellee’s manager knew of the burning- pile of sawdust. 96 S. W. 377; 139 S. W. 634.
   Humphreys, J.

This suit was instituted by appellant against appellee in the circuit court of Poinsett County, to recover the value of appellant’s sawmill, which was destroyed by fire alleged to have originated from sparks blown from a large burning sawdust pile on the sawmill property belonging to appellee. It was alleged, in substance, that appellee allowed a large pile of sawdust to accumulate on its premises, which caught on fire, and which appellee suffered to smolder and burn for many months, and until escaping sparks therefrom were carried by the wind to appellant’s sawmill in such quantities that they, set fire to arid destroyed said mill, to the damage of appellant in the sum of $50,000.

Appellee filed an answer, denying the material allegations of the complaint.

The cause was submitted upon the pleadings and testimony, which resulted in an instructed verdict for appellee and a consequent judgment dismissing appellant’s complaint, from which an appeal has been duly prosecuted to this court.

The facts revealed by the record are, in substance, as follows: Prior to the destruction of appellant’s mill by fire appellee purchased a sawmill, located at Lepanto, and immediately leased same to Walter Rogers for one year, with the privilege of renewal for four years, at a* rental of $100 per month, payable monthly in advance. Rogers was operating the mill under the lease at the time appellant’s was destroyed. In operating the3 mill he employed his own labor, bought his own material, and used his own methods in producing the output. He was required to pay all taxes and to preserve and maintain the leased plant and equipment in good .condition and repair, and to replace all broken parts. It is unnecessary to set out the lease in full, as only four other provisions therein are made pertinent to the issues involved on this appeal by the contentions of appellant. The four provisions referred to are as follows: first, either party-may, at any time, terminate the contract upon thirty days’ written notice to the other; second, Rogers is bound to “manufacture, on said leased premises and properties, ash squares, ash dowels, and ash handles, in quantity and quality and according to the specifications and prices submitted and to be submitted from time to time by said National Handle Companythird, “it is further agreed that, in default of either one or more of said payments of rent, or in the performance of any of the agreements herein made by the said Rogers, the said National Handle Company may, at its option and without notice to said Rogers, re-enter and take possession’of said leased premises and properties, without being required to demand the same, * * fourth, “it is further agreed that the said Rogers shall allow nothing obnoxious to exist on said premises, and will, when requested by the lessor, abate all such offensiveness at his' own expense, and will suffer nothing on said premises' that will invalidate any policy of insurance the said lessor may have thereon, unless consent in writing of said lessor be first obtained.”

4t the time the lease was executed there was no sawdust pile on the premises. It was accumulated during the time Rogers operated the mill. It was about forty feet high, and covered a space two or three times as large as the courthouse in said county. After the pile’ of sawdust had accumulated, some time during the year * of 1919, R. 8. Mitchell, who was at the time operating appellant’s mill, went to C. H. Windt, the manager of the southern division of the National Handle Company, and called his attention to the sawdust pile, and told Mm it would endanger both mill properties unless moved. He testified that Windt told him he was going to build some kind of a burner to burn it up. Subsequent to the conversation the sawdust pile caught on fire, and, while Rogers and his employees tried to put it out, they never succeeded in entirely doing so. It smoldered for a num ber of months, and finally sparks therefrom were blown into appellant’s mill in snch numbers that it was set on fire and destroyed. The testimony warrants the inference that Windt, the manager of the handle company, knew that the sawdust pile was and had been on fire for .a number of months. Windt admitted that when he leased the mill to Rogers they both knew that the sawdust pile would be created in the operation of the mill.

Appellant’s first contention for reversal is that the trial court erred in holding that Rogers was an independent contractor, and for that reason appellee was exempt from liability on account of Rogers’ negligence in the operation of the mill. The argument is made that, because appellee reserved the right in the lease to control the kind, quality and quantity of the output according to specifications and prices submitted and to be submitted by it from time to time, the right to cancel the lease and take possession of the property in case Rogers should create obnoxious and offensive conditions, and because it advanced money to meet payrolls made out on National Handle Company payroll forms, the relationship of master and servant was established between 0 appellee and Rogers, and that appellee became responsible for the negligent acts of Rogers. In the case of Harger v. Harger, 140 Ark. 375, this court construed a coal mine lease, almost similar to this in essentials, as constituting Wallace Harger an independent contractor. Facts' were proved outside the contract in that ease, in an attempt to establish the relationship of master and servant between the coal company and Harger, equally as potent as the facts proved in the instant case in an attempt to establish such relationship between the handle company and Rogers. In that case Harger testified that he was an employee of the coal company, and his name appeared on the payroll as . an employee. The ■ payrolls were made ou-t on the stationery of the coal company. The circumstances just related were held to be entirely consistent with the relationship of lessor and ■ lessee. None of the reservations by the lessor in the lease, in the instant ease, and none of the circumstances proved outside of the contract, are inconsistent with the relationship of lessor and lessee, when measured by the test adopted and announced in the case of J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117, which is as follows: “An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes or directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of the work.” 2 Elliott on Railroads, p. 863, § 1063; 2 Words and Phrases, p. 1034. Walter Rogers employed his own labor, bought his own material, and conducted the business according to his own methods. The National Handle Company had no interest save in the output which it purchased.

Appellant’s next insistence for reversal is that ap-pellee is liable even though the relation of lessor and lessee existed between it and Rogers under the contract. The argument is made that, because appellee reserved the right to cancel the contract and take possession of the property, if Rogers made default in the performance of any of the agreements in the contract, and failed to exercise that option when Rogers created the sawdust pile which caught on fire, rendered appellee liable. The fight to annul the contract and take possession of the property if Rogers permitted anything ¡obnoxious to exist on the premises, or suffered anything thereon which would invalidate the insurance, was purely personal and not reserved for the benefit of third parties. In order to render an employer liable to a third party for an injury 'resulting from the negligence of an independent contractor, it must appear that the employer retained control over the work. Reserving, the right to enforce forfeitures will not of itself render an employer liable for the negligent'acts of an independent contractor. St. L. I. M. & S. R. Co. v. Gillihan, 77 Ark. 551. The same rule, of course, governs as between third parties and lessors to independent lessees.

Appellant’s next and last insistence for reversal is that appellee is liable for the negligence of its independent lessee because the creation of the pile of sawdust was a natural-and necessary result of the operation of the mill. Even so, the piling of sawdust is not a nuisance per se, and unlawful. The doing of a lawful thing which is the natural result of the operation of a business cannot fix liability upon the lessor as an original wrongdoer. It may be that the ignition of the sawdust converted the sawdust pile into a nuisance, but, if so, it does not appear from the evidence that the ignition thereof was a natural and necessary result of the operation of the business. The thing itself must be unlawful and the necessary result of the performance of a lease before a lessor can be held liable to third parties for the negligence of an independent lessee. Martin v. Railway Co., 55 Ark. 521.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Kerby v. Road Improvement District No. 4, Saline County.
    Opinion delivered May 21, 1923.
    1. Highways — liability op Road contractor. — A road contractor is liable to a subcontractor for work which his contract required him to do, though the road improvement district made no allowance .to him for doing’ such work.
    2. Principal and agent — unauthorized act — ratification.— Where an agent, with the principal’s knowledge, made an unauthorized contract of which the principal received the benefit, he will be held to have ratified the contract.
    3. Highways — contractor’s bond — alteration as release of surety. — Where a contractor’s bond was based upon a contract between the contractor and the road improvement district which authorized alterations or changes to be made, the sureties were not discharged from liability by changes made in accordance with the terms of the contract.

      4. ' Highways — contractor’s bond — who may sue. — Crawford & Moses’ Dig1., § 5446, requiring- road contractors to give bond for performance of their contracts, and providing that “any person, individual or corporation supplying- labor and material shall have a right of action, intended to extend the benefit of the act to those who supply the labor of others as well as those who labor themselves.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed.

      Longstreth & Bohlinger, for appellants.
    The court erred in giving’ instructions numbered 1 and 2 and in refusing appellant’ requested instruction No. 2, submitting his theory of the liability to the jury. Had the right to -specific instructions applying the law to the facts of the case. 98 Ark. 17; 122 Ark. 259; 69 Ark. 172; 87 Ark. 243; 87 Ark. 531; 90 Ark. 249; 122 Ark. 125. Court should properly instruct the jury as to any particular theory of the case if there is evidence to support it. 76 Ark. 227; 50 Ark. 545; 52 Ark. 45; 77 Ark. 128. The court refused all three instructions asked by appellant, and instructions given did not submit their theory of the case, and were highly prejudicial to the sureties on the bond. The court erred in refusing appellants ’ requested instruction numbered 1, relating to release of sureties on the bond by material changes of the contract without their consent. 30 Ark. 667; 77 Ark. 125; 112 Ark. 429; 112 Ark. 207; 123 Ark. 486: 74 Ark. 600; 69 Ark. 126; 65 Ark. 550; 96 Ark. 268; 122 Ark. 522; 65 Ark. 250.'

      Mehajfy, Donham & Mehaffy, for appellee.
    The case should be affirmed for failure to make a proper abstract as required by Rule 9; 136 Ark. 188; 101 Ark. 30; 80 Ark. 259; 81 Ark. 237: 110 Ark. 7: 57 Ark. 441; 188 Ark. 447; 104 Ark. 64; 57 Ark. 304; 58 Ark. 448. Appellant Kerbv was liable for the fourth estimate, also liable to appellee for payment to Reed for grubbing two acres of ground. Sureties on Kerbv is bond mot released by changes in the contract. 21 R. C. L. 1016 • 234 U. S. 448; 249 Fed. 322; 92 Fed. 549;'192 Fed. 364; 240 Fed. 400; 25 N. E. (Ind.) 443; 21 R-. C. L.'301'6,' § 5446.' The judgment should he affirmed.

      Longstreth & Bohlinger, in reply.
    Cases cited by appellee on question of release of sureties by change of contract not applicable hex-e, Reed being a subcontractor. 4 Elliott on Contracts, 735, No. 3544.
   McCulloch, C. J.

The road improvement district involved in this controversy was organized in Saline County by order of the county court, pursuant to general statutes (Crawford & Moses’ Digest, § 5399 et seq.), for the purpose of constructing a highway beginning at the end of Arch Street, at the Pulaski County line, and running thence 6.4 miles south, through Saline County, to the Grant County line.

Appellant Kerby entered into a contract with the district to build the road in accordance with the, plans and specifications prepared by the engineer, and he gave bond to the district in the sum of $15,000, in accordance xvith the statute (Crawford & Moses’ Digest, § 5446), for the faithful performance of his contract, and containing an obligation to pay for all labor and materials supplied by any and all persons.

The contract between appellant Kei’by and the district was in writing, and he entered into an oral subcontract xvith T. H. Read for the latter to do the grading work on a mile of-the road. After the completion of the work, Read claimed a balance due him on his contract in the sum of .$617.50, and this action was instituted in the name of the district, for the benefit of Read, against appellant Kei’by and the sureties on his bond, O. B. Field and W. A. Baxley.

Appellant Kerby admitted liability to Read in the sum of $312.75, but denied liability for the remainder of the amount claimed. The -sureties pleaded that they were discharged from liability on the bond by reason of material changes in the contract between Kerby and- the. i district. Kerby also claimed, in his defense, that under the contract with Read' there was to be a retained percentage of the contract price until completion of the road, and that the road had not been completed.

There was a trial of the issues before a jury, and the verdict was in favor of appellee for the full amount of Read’s claim.

There is really no dispute in the evidence as to the correctness of the items in Read’s claim, but the dispute arises over the question of the liability of appellant for payment of the same.

The amounts in dispute are divided into two items, the first being the sum of $204.75 for what is .termed the “fourth estimate” of Read’s work, and the remaining item of $100 is for clearing and pulling stumps from two acres of ground.

. Kerby claims that he is not liable for the item of $204.75, for the reason that it was not in Ms contract with the district, and that the work was done by Read under what is termed “force account,” by direction of the engineer of the district.

Appellant requested the court to instruct the jury that if “the engineer for the district had authority to order work done for the district other than contemplated in the contract between the district and defendant Kerby, and that he directed the plaintiff to do other work than that embraced in Kerby’s contract, and that no payment was made or allowed to Kerby. by the district, you are instructed that the defendant. Kerby. .would not be liable to the plaintiff for the. amount of such woi’k.” We do not think that the evidence warranted this instruction, for, according to the evidence, the work covered by this estimate was within the contract between Kerby and the district, and also was in the contract between Kerby and Read. The work was back-filling at bridges and culverts. The evidence showed that, under the contract, the engineer had the right to direct Kerby to do any work necessary for the construction of the road, whether specified or not, and the engineer, who was introduced as a witness by appellants, testified that it was inconvenient for Kerby to go back to that work to do it, and that for that reason he directed the work to be done by Read. The proof shows that this was in Read’s contract. Since this is true, Kerby cannot escape liability because an allowance was not made to him for the work. All that the proof shows is that the work was under what is called “force account,” and that the estimate was made directly to the district by Read. Of course, Kerby is entitled to credit for this in his settlement with the district, but the fact that it has not been credited to Kerby by the district does not release Kerby from his obligation to pay the subcontractor.

As to the other item of $100 for clearing and grubbing, the proof shows that this work was embraced in Kerby’s contract with the district, and that he was to receive $125 an acre. It is not embraced in the original contract between Kerby and Read, but Kerby’s foreman made a contract with Read to do this work on two acres of ground at $50 per acre. Kerby testifies that the foreman had no authority to make this contract, but he does not claim that it was done by Read without his knowledge, and he is deemed to have ratified the unauthorized acts of his foreman.

Error of the court is assigned in submitting to the jury the issue concerning the retention of the percentage. The court told the jury, in substance, that, if there was an agreement between Kerby and Read that fifteen per centum was to be retained until the entire road was completed by Kerby, there should be no verdict for the amount of the retained percentage, but, on the other hand, if there wás no agreement for the retention of the percentage, the amount should not be deducted from Read’s recovery. There was conflicting testimony on this subject, and it' was proper to submit the issue to the jury. Kerby testified that there was an express agreement between him and Read that fifteen per cent, should be retained, but Read testified that there was no such agreement. This made an issue for the jury to settle.

It is contended on behalf of the sureties that they were discharged by reason of material changes in the contract, and error is assigned in the refusal of the court to submit that issue to the jury. Appellants invoke the familiar rule that sureties are bound only by the letter of their contract, and that any alteration of the contract between the principals discharges the sureties.

The obligation of the bond executed by the sureties was based upon the contract between Kerby and the district, and there is a clause in the contract which authorizes changes, both material and immaterial. Paragraph 27 of the contract provides that the engineer, with the consent of the board, can “alter or change any detail in the material or method of construction, or the - location of roadway or grade, which would not materially increase or decrease the cost of the work, without additional compensation to the contractor.” In the same section it is further provided that “important changes or alterations may be made, but the contractor shall not proceed with such changes or ' alterations without written orders from the engineer. The price covering such changes or alterations shall be fixed by agreement between the engineer and the contractor.” Now, this is a clear agreement for immaterial changes to be made by the engineer, or material changes to be made by agreement between the engineer and the contractor. The engineer had no right to make material changes without the consent of the contractor, but any changes made in accordance with the contract, however material, did not discharge the sureties from liability.

It is also contended that the clause of the contract requiring said contract to be in writing and approved by the engineer affected the liability of the sureties, and that the acceptance of a subcontract orally, without written approval by the engineer, discharged the sureties; We cannot agree to this contention. Section 20 of the contract provides that the contractor “will not he permitted to sublet, assign, sell, transfer, or' otherwise dispose of the contract or any portion thereof, or his right, title or interest therein, to any indivinal, firm or corporation, without the written consent of the board and engineer.” This general provision was put into the contract evidently for the benefit of the district, and the latter was estopped from disputing the rights of the subcontractor, if it accepted the services without requiring a written contract and the written approval of the engineer. This did not constitute a material change in the contract which affected the liability of the sureties.

Finafiy, it is contended that the sureties are not liable to-the contractor, but are only liable to those who actually performed labor or furnished material. The statute under which the bond was given reads as follows:

“All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them, with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that sueh contractor, or contractors, shall promptly make payment to all persons, supplying him or them, labor and materials in the prosecution of work provided for in such contract. Suit may be brought by and in the name of the district upon the bond given to the board. Any person, individual or corporation supplying labor and material shall have the right of action, and shall be authorized to bring suit in the name of the district for his, their, or its use and benefit, against said contractor and surety, and to prosecute same to final judgment and execution, but such action and its prosecution shall involve the district in no expense whatsoever.” Crawford & Moses’ Digest, § 5446.

The language of the bond is in conformity with the statute.

In construing the statutes of this State giving liens to mechanics and furnishers of material, we have decided that contractors are not entitled to a lien for. furnishing labor, and that the lien was only given to. the xnechanic or laborer who performed the services. Little Rock, Hot Springs & Texas Ry. Co. v. Spencer, 65 Ark. 183; Royal Theater Co. v. Collins, 102 Ark. 539; Cook v. Moore, 152 Ark. 590. The statute prescribing the terms of the bond now under consideration is, however, quite different, for it expressly provides that the “contractor, or contractors, shall promptly make payment to all persons supplying him, or them, labor and materials in the prosecution of work provided for in such contract.” Now, the term “supply * * * labor and materials” means something more than mere performance of labor. In other words, it includes the supplying of the labor of others. This Anew is fortified by the fact that the words “labor and materials” are coupled together, and the Avord “supply” has reference to both, meaning to confer benefit upon persons who supply labor as well as those who supply materials. Another feature of the statute which fortifies this view is that it provides that “any person, individual or corporation supplying labor and material shall have the right of action.” It is obvious that a corporation can not itself labor, and therefore it was not the purpose of the Legislature to confine the benefits floAving from this statute to persons who labor themselves, but, on the contrary, it Avas intended to extend the benefit to those who supply the labor of others as well as those who labor themselves.

This covers all the assignments of error in the case, and Ave have reached the conclusion that none of the assignments are well taken. The judgment is therefore affirmed.


text:
    Kirby v. Paragould.
    Opinion delivered May 21, 1923.
    1. Municipal CORPORATIONS — power to license soda fountains.— A city ordinance imposing an annual license tax on persons run- • ning soda fountains is within the powers of a city of the second class.
    2. Municipal corporations — license of soda fountains — amount. —An ordinance imposing an annu.al license tax of $30 on the operation of a soda fountain in a city of 6,000 inhabitants -will not be declared void where the license is not disproportionate to the probable cost of its enforcement and the regulation of the business to which it applies.
    Appeal from Greene Circuit Court, Second Division; J. Marion Futrell, Judge;
    affirmed.

      M. P. Huddleston, for appellant.
    The tax or license for operating a soda fountain was so large in proportion to the probable expense of supervision of the business as to show that it was imposed for the purpose of raising revenue, and beyond the power of the city to exact. Fort Smith v. Ayers, 43 Ark. 82. The court erred in giving instructions numbered 1 and 2. There is no occupation tax in the city of Paragould, and this tax creates an unjust discrimination against the occupation of appellants. The cause should be reversed and dismissed.

      Jeff Bratto'n, for appellee.
    Appellants did not except to any instructions given and can not complain now that they are erroneous. The business of appellants is one affecting the public health and welfare, and is within the police power of the State and its municipalities to regulate. Dreyfus v. Boone, 88 Ark. 353; §§ 5155-5156 CraAvford & Moses’ Digest, and also § 7618; Davis v. Hot Springs, 217 S. W. 771. The case of Fort Smith v. Ayers, 43 Ark. 82, is not an authority to this controversy. The case should be affirmed.
   Hart, J.

Elton Kirby, George Lackey, O. O. Fisher, Guy Westbrook and Bradley Scott were each fined in the police court of the city of Paragould upon the charge of running a soda fountain without having paid the license fee required by the city ordinance, and, upon appeal to the circuit court, the cases were consolidated. Upon a trial before a jury each defendant was fined .in the sum of $30, and from the judgment of conviction an appeal has been duly prosecuted to this court.

No objections were made or exceptions saved to the instructions of the court, and the only issue raised by the appeal is whether or not the evidence is legally sufficient to support the verdict.

The city ordinance required each keeper or proprietor of a soda fountain to pay an annual license fee of $30. The vocation of selling soda water and soft drinks is a proper subject of police regulation, because it affects the public health and welfare generally. It is a matter of common knowledge that impure milk and uncleanliness generally, if permitted at public drinking fountains, would be a fruitful source of disease, and it needs no discussion to show that the business is one 'which particularly falls within the power of the State and its municipalities to regulate, upon the same principle as a meat market or restaurant. Trigg v. Dixon, 96 Ark. 199, and Fort Smith v. Gunter, 106 Ark. 371.

But it is insisted that the amount of the license required was unnecessary for the purpose of regulation, and is therefore arbitrary. It is true that the defendants testified that but little attention was paid to their places of business by the city health officer; but that is not the controlling test. In the exercise of the police power for the purpose of regulation, the city council has the right to consider what may have to be done by the city health officer and the police department in the way of regulation; and the authority of a municipality in fixing the amount of the license will not be reviewed by the courts unless there is an abuse of its discretion. It must fix such a charge for a license as will bear some reasonable relation to the necessary expense involved in the regulation. This, however, will include the cost of issuing the license and a reasonable sum for the expense of supervision. Paragould is a city of the first class, with over 6,000 inhabitants. Dr. F. N. Scott was the city health officer, at a salary of $25 per month. It was a part of his duty to inspect the places where soft drinks were sold in tlie city of Paragould and to keep general supervision over them, to the end that the milk and other articles sold therefrom should be kept free from impurities and thus prevent the spread of disease to those drinking at such fountains.

An ordinance will not be declared -void where the license provided is not disproportionate to the probable cost of its enforcement and the regulation of the business to which the ordinance applies. Considering the nature of the business, the amount of time and expense required for a proper supervision of it, and the benefit to the health of the inha bitans of the city, it cannot be said that the license fee required in this case is arbitrary or unreasonable.

It follows that the judgment in each case will be affirmed.