author: McCulloch/ 0. J.

text:
    Bradley County Road Improvement Districts Nos. 1 and 2 v. Wilson.
    Opinion delivered March 16, 1925.
    1. Highways — preliminary work — attorney’s pees. — An attorney-employed by a board of commissioners to perform legal services for a road improvement district, on tbe subsequent repeal of the •act creating the district, is entitled to recover on a quantum mer-uit fior services performed in good faith in the preliminary work, and the fact that he co-operated with those in favor of carrying out the scheme of improvement is not ground for refusing compensation to him. ■
    2. Highways — attorney’s pee. — An allowance of $1250 for services of an attorney for two road improvement districts in preliminary work will not ¡be held to be inadequate, though the testimony of Witnesses would have justified a larger sum, in view of the chancellor’s discretion and the fact that the questions involved and work done in both districts were the same as if done for one district.
    3. Highways — expenses op chairman for preliminary work.— The chairman of' the board of road commissioners was not entitled to compensation for 'services performed and expenses incurred on his o-&n initiative in giving his services outside of attendance' on board meetings and without authority from the board of commssioners.

      Appeal £rom Bradley Chancery Court; E: G. Hammock, Chancellor;
    affirmed.

      B. W. Wilson, and J. G. Clary, for appellants.

      B. E. Wiley, for appellees.
   McCulloch/ 0. J.

The two appellants are road improvement districts in Bradley County, created by special acts of the General Assembly of the ■ year 1919. Each district covers a large area, and was formed for the purpose of improving extensive roads at a very considerable cost; Each of the acts creating the districts are in- the customary form, providing for a levy of taxes on benefits to pay the cost of the improvement, and authorizing the commissioners to borrow money and issue bonds and to employ engineers, attorneys, and other agents. The board of commissioners in each case employed appellee, a practicing’ attorney at the bar of that county, as attorney to represent the district. A contract was made with a firm of engineers to do the engineering work. Appellee performed services very considerable in extent, according to his contention. He acted as counsellor for the districts throughout the preliminary work, and conducted important litigation involving the question of the validity of the organization of the districts. There were three different cases, which were bitterly contested, all of which litigation appellee conducted for the two districts. The cases were tried in the lower court and appealed to this court. Part of the preliminary engineering work was done, but, before that was completed, the opposition among the taxpayers of the county became so pronounced that all of the preliminary work’ of every kind was halted, and the General Assembly of 1921 enacted statutes repealing the former special statutes creating these districts, and authorizing the affairs of the districts to be wound up in the chancery court and the preliminary expenses paid. Pursuant to the statutes, appellee filed his claim in the chancery court for allowance, which claim was resisted. Appellee claimed the sum of $1,500 from each district as actual compensation for his services, making a total of $3,000, and expenses incurred, amounting to $1,460.64. He presented an itemized account .of Ms expenses,- containing very numerous items.for traveling expense, telegrams and telephone, stenograpMc work, certified copies of records, and various other kinds of expenses. The case was heard by the chancery court on testimony adduced by each side, and the court, rendered a decree allowing appellee a fee of $625. against each, district as actual, compensation, for his services, and the sum .of $1,027.13 for his expenses, making a, total allowance of $2,277.13. The cases, were.consolidated and tried together, but separate allowances were nmde against each district, and there has been an appeal from each of the allowances. Appellee cross-appealed, and contends that the amount of the chancellor’s allowance as compensation for his services was not sufficient. . , ...

The claim of F. S. Edrington, one of the .commissioners of the district, and the chairman thereof, yms involved, and the chancellor allowed him the sum of $25, and he .has prosecuted an appeal.

. The testimony adduced in the case took a very wide range, and there was a great volume of it directed to matters wMch we do not deem material — that, is, the controversy which arose between appellee and others interested in the districts, with dissatisfied taxpayers. In this testimony there are criminations and. recriminations and charges of bad faith. But we have reached tfie conclusion, in the consideration of this testimony, that it has little or no bearing whatever upon the present controversy, for. appellant is only claiming-, compensation for services actually rendered the. .districts and his expenses — nothing for services rendered after it .was determined that the work should be . halted until the Legislature could -have an opportunity . to repeal the statutes. ' . ...

The law of the case is very well- settled by decisions of -this court, and, according to those • decisions, appel-lee is entitled to recover for services performed in. good faith, not upon.his contract (for he had no. separate contract for the performance of preliminary services), but on the quantum meruit. Sain v. Bogle, 122 Ark. 14; Thibault v. McHaney, 127 Ark. 1. In the case last cited we summed up the law, as to the rights of an attorney to recover for services as follows:

“It must be remembered that, under our former decision,- the compensation to be allowed narrows down to- expenses which were necessary, to ascertain the feasibility of the plan. Of course, it was proper to have the services of attorneys in the proceedings to that extent, but no ■ compensation could be claimed for services which related to the completion of the improvements for which the- organization ' of the district was designed. The work of preparing the original bill and presenting it to the Legislature, and urging it before the committees of that body, was not service which was chargeable against the district.. Neither were the services performed in opposition to the effort of taxpayers to secure the dissolution of the district chargeable against the -district. The services thus performed by the attorneys for and against the scheme were in the interest of the individuals who were favoring or opposing the creation or continuation of the district, and not of the district itself.- In other words, those services were performed in promoting the scheme and not "in carrying out the purposes of the organization itself. Of course, the fees for conducting the litigation which involved the very life of the district should properly be allowed -as a claim against the district, as we held in the former opinion; so would any other service-performed looking to the ascertainment of the feasibility of the plan.”

It is contended by counsel for appellants that appellee, acted in bad faith in promoting the projects over the protests and opposition of taxpayers, and that he is not entitled to any compensation. They rely, in support of their contention,-on the case, of Kern v. Highway District, 154 Ark. 107. We do not think that the case just cited has any application, for it involved the right of an engineer to recover compensation for a survey made iii the face of actual knowledge that the project was wholly- without feasibility and could not be accomplished within the limits of cost prescribed by the statute, and- that it would be impossible to conform to the plans which he outlined.- In the present case, appel-lee was employed to perform legal services for the board, and, so far as concerns those services, he had nothing to do with the controversy between the taxpayers. His services do not relate- to that subject, nor can he be denied compensation because he participated in the controversy. The most that was shown in regard to that matter is that there was a controversy between factions, and that appellee coopér-ated with the one which was in favor of carrying forward the work of improving the roads. If it be conceded that he was on the wrong side of the controversy, this is not sufficient to afford grounds for denying, compensation for his services performed by authority of the board of commissioners of the districts.

There is scarcely any question about appellee being entitled to , the amount of compensation which the chancery -court allowed — that is to say, compensation for actual services- rendered. This fact is established by the testimony of eminent lawyers who were introduced on both sides of the controversy, whose testimony, without disagreement, establishes the reasonableness of the fees allowed by the chancellor, if appellee be found to be entitled to recover anything at all. :

There is a question involved as to the proper allowance to be made on appellee’s expense account. The chancellor eliminated a considerable portion of the account, and we are unable to say that -the finding of the chancellor is against the preponderance of the evidence, or that the items were not proper charges against the districts.

There is a still more serious question presented by appellee’s cross-appeal as - to the amount of fee allowed, but we are unable to say that the chancellor’s finding on that question was incorrect. The testimony of the lawyers justified a larger allowance, but the chancellor had some discretion in weighing this testimony and applying it to the peculiar facts of. this case, and we think it was very important to consider the fact that the two districts were operated, in their preliminary work, coor-dinátely, and that appellee was attorney for both,' and that the same questions were involved in all the litigation. In fact, it appears that the work was done for the two .districts the same as if it was all involved, in a single employment. Under those circumstances we are unable to say that the chancellor should have allowed more than $1,250 for the work.

. The chancellor allowed Mr. Edrington the sum of $25, which was the statutory allowance of five dollars per day for five days — it being shown that this appellant attended five board meetings. The testimony, shows, however, that Mr. Edrington devoted a great deal of time to this district, and in his account he claimed the statutory allowance for sixty-one days and for use of his automobile at four dollars per day. He concedes that he only attended five meetings of the board of commissioners, but the other.meetings were devoted to business of the .district in traveling around with the. attorney and attending lawsuits, and in furnishing his automobile for the use of himself and the engineers of the district.‘This feature of the case is ruled by our decisions in Gould v. Toland, 149 Ark. 476, and Holcombe v. Kennedy, 158 Ark. 585. Mr. Edrington may have performed the services in good faith — there is nothing in the evidence that shows to the contrary — but he acted on his own initiative in'grvmg his services outside of attendance on board meetings, and it does not appear that he had any authority from the board of commissioners to perform those services or to furnish an automobile. In fact, the board could not make a valid contract with him for the performance of such services. See cases suprá. The expenses he claims were not incurred by authority of the board, and, for that reason, he is not’ entitled to recover.

Otir conclusion is that the decree of the chancery court is correct, and the same is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Robertson v. Lain.
    Opinion delivered March 16, 1925.
    1. Exchange of property — rescission.—Evidence held to sustain the chancellor’s finding that there had been a mutual rescission of a contract for the exchange of standing timber for an automobile.
    2. Frauds, statute of — oral rescission of deed to timber. — An ' oral' agreement to rescind a contract, whereby an owner of land -,conveyed by deed the standing timber on the land together with a note for an additional.sum in exchange for an automobile, held not in contravention of the statute of frauds where the ■automobile was returned prusuant to the agreement to rescind, and where the grantee had never taken possession of the timber.
    Appeál from Cleveland Chancery Court; John M. Elliott, Chancellor.;
    affirmed.
    STATEMENT OE FACTS.
    J. N. Robertson brought this suit in equity against King Láin and Minnie Lain, his wife, to quiet his title to a certain tract of land in Cleveland County, Arkansas, and to restrain the defendant from interfering with him in cutting and removing the timber from said land.
    J. N, Robertson was a witness for himself. According to his testimony he exchanged an automobile, which he valued at $775, with King Lain for . the timber on a forty-acre tract of land' owned by him, and for $375 evidenced by the note of Lain. Lain .executed a deed to the timber on said land to J. N. Robertson.
    King Lain was the principal witness for himself. He admitted making the trade testified to by Robertson. According to his testimony, however, Robertson was to put the automobile in .first-class condition, and failed to do it. After keeping the automobile two or three weeks, Lain.made an agreement with Robertson whereby the latter was to take the car back and give Lain back his note and timber deed. Robertson took the car back, but failed to surrender the timber deed or to convey the timber back to Lain. Subsequently Robertson sent a man to cut the timber from the land, and Lain stopped him from cutting it. The timber on the land was of little Value, but was valued in the trade at $400. ' ■ ■■
    "Wallace Hobson, an automobile mechanic, "was also a witness for the defendants. According to his testimony, he heard the parties say that Robertson had traded the car to Lain' for some timber and thé balance to be evidenced by a promissory note. Robertson was to fix the car, but failed to do it. After the trade, the car was brought to the shop, and stayed there two of three weeks, and then Robertson took the car back. He heard the parties say that, as' he expressed it, they were going to rue back because Lain was not satisfied with the car.
    W. L. Overton, Jr., was' another witness for the defendants. He testified that Lain kept the car eight or ten days, and it was understood that Robertson was to have the car repaired. Robertson failed to have the car repaired, and the witness spoke to Lain about buying it. Lain refused to make a price on the car on the ground that he had let Robertson have it back.. The witness then asked Robertson what he wanted for the car, and Robertson said $700.
    The chancellor found the issues in favor of the defendants, and from a decree in their favor the plaintiff has duly prosecuted this appeal.

      George Brown, for appellant.

      Woodson Mosley, for appellee..
   Hart, J.,

(after stating the facts). The decision of the chancellor on the facts was sustained by a preponderance of the evidence, and,, under the settled rules of this court, it will not be set aside upon appeal.

The defense of Lain to the suit was that the original contract, whereby he conveyed to Robertson some timber for the automobile, was rescinded. On this point Robertson denied that the contract had been rescinded, and stated that he took the car back because, on account of short crops, Lain was unable to- pay the difference between the agreed value of the car and the timber which he sold to Robertson.

On the other hand, Lain testified positively that they agreed to rescind the contract in whole, and that, pursuant to this agreement, he gaye the car hack to Robertson, and the latter agreed to give him back his timber deed. Lain said that the reason the trade was rescinded was because Robertson had refused to make certain repairs on the car which he had agreed to make.

Lain’s testimony is corroborated by that of. the automobile mechanic where the automobile was delivered by Lain to be repaired. The repairs were not made as had been agreed upon, and Robertson then took the car back, in two or three-weeks.

Another witness testified that Lain told him that he had delivered the car back to Robertson, and could not sell it to him. Robertson admitted that he had received the car, and proposed to sell it to this witness for $700. Therefore a preponderance of the evidence on this point is in favor of the defendants, and the chancery court correctly held that the parties had rescinded the contract.

The plaintiff contends, however, that the rescission, if made, was an oral one, and therefore void under the statute of frauds. Counsel for the plaintiff contends that the conveyance of timber by the timber deed -was a conveyance of an interest in the land, and that the land could not be reconveyed to Lain by Robertson by an oral contract. Hence they contend that the court erred in not finding for the plaintiff under the rule laid down in Arkmo Lumber Co. v. Cantrell, 159 Ark. 445.

This would be true if- the plaintiff had entered into the possession of the land before the oral contract of rescission had been made. In that event the contract would have been fully executed, and it ■ would- have required a deed to have reconveyed the land to' Lain.

The record showsj however, that Robertson never entered into possession of the land or took possession of the timber on it. The oral contract for a rescission was miade, and the automobile was delivered by Lain to Rob.ertson. pursuant to the contract of rescission. Because of this fact, and for the further reason that Robertson had never taken possession,of the land, Lain would be allowed to defend this suit under the principles announced in Atkinson v. Thomas, 138 Ark. 47.

It follows that the decree will be affirmed.


text:
    Watts v. England.
    Opinion delivered March 16, 1925.
    1. VENDOR AND PURCHASER — EXECUTORY CONTRACT. — An agreement to sell land ¡is preliminary to a sale, but is not the sale itself, and it may be rescinded by agreement among the parties.
    2. Vendor and purchaser — option defined. — An option, as distinguished from a sale of or agreement to sell land is a contract 'by whieh the owner agrees with another that he shall have the right to purchase the .land at a fixed price within a'certain time.
    3. Vendor and purchaser — executory contract. — An executory contract to purchase land is distinguishable from an option in that the latter does not bind the optionee to purchase the land.
    4. Vendor and purchaser — contract' construed. — A contract reciting that the vendor has contracted to sell land to the purchaser, and to execute a warranty deed on payment of all the notes, and providing that the contract should be void if any note should not be paid when due, is an executory contract, and not an option.
    B. Vendor and purchaser — contract construed. — The fact that notes given for the purchase of land recite that they are given for the rent of land does not operate to change the contract from an executory contract of sale to an option to purchase, if the contract considered as a whole was intended as a contract of ■sale.
    6. Mines and minerals — conveyance op oil and gas.— A conveyance of oil or gas dn its natural state is a conveyance of an interest in land.
    7. Mines and minerals — assignment op lease. — An oil and gas lease containing no eonvenant against assignment is assignable.
    8. Mines and minerals — validity op oil and gas lease. — After an oil and gas lease was executed by a purchaser under an execu-tory contract and recorded, it could not be affected by a subsequent agreemént of the vendor and purchaser to rescind their ■agreement without the lessee’s consent.
    9.¡ Mines and minerals — forfeiture of lease. — An oil and gas lease executed by a purchaser under an executory contract of purchase was not forfeited by a failure to pay rent due by the lessee after filing of a suit by the vendor, after rescission of the contract of purchase, to quiet title as against the lessee, in view of the fact that a ¡bender is not required where it is evident that it will not ibe accepted.
    10. Mines and minerals — rights of lessee. — Rights of a lessee in an oil and gas lease, executed by a purchaser of land under an executory agreement to purchase and filed for record before rescission or of such executory agreement, held to entitle the lessee to protect his interest by paying off thq: balance of the purchase price.
    Appeal from Nevada Chancery' Court; G. E. Johnson, Chancellor;
    affirmed.
    STATEMENT OK FACTS.
    Appellants brought this suit in equity against appellees to cancel an oil and gas lease to certain land in Nevada County, Arkansas.
    Appellants are the widow and heirs-at-law of T. J. Watts, who died intestate in Ouachita County, Arkansas, on the 16th day of December, 1922. On the 26th day of March, 1917, T. J. Watts and Charlie Haynie entered into an agreement as follows:
    “That T. J. Watts, party of the first.part, has this day contracted to- sell to -Charlie Haynie,. party of the second part; the following described land: North half of the northeast quarter of section' 7, ■ northeast quarter of the northwest quarter of section 7, all in township-14 south, range 20 west, containing 120 acres, more or less; all in the county of Nevada, State- of .Arkansas, o.n the following terms: Eight notes of $150 each, due -and payable each successive year, beginning October 1, 1917,'the last note being payable October 1, 1924, with interest at the rate of 10 per cent, per annum from dhe date until paid, which were this day executed by Charlie Haynie to said T. J. Watts. Upon the payment of each note, arid the maturity of the last note, due October 1, 1924, with interest thereon, if any, T. J. Watts, party of the first pari agrees to grant Charlie Haynie, party of the second part, a warranty deed to the above described land, reserving and excepting timber as specified in deed given .T. J Watts. by Bank of Prescott and Westmoreland Bros. Should any one or all of these notes not be paid when due, this contract is void.
    “Signed this 26th day of March; 1917.
    .“Charlie HayNie.”
    On the same day Charlie Haynie executed eight notes of $150 each, due respectively on October 1, 1917, to October 1,: 1924, inclusive. The notes were signed by Charlie Haynie and made payable to T. J. Watts for $150 “as rent for 120 acres of land known as the West-moreland Place.”
    Charlie Haynie entered into possession of said land, and paid the two notes falling due respectively-on October 1, 1917, and 1918. Charlie Haynie made default in the payment of the notes falling due respectively on October 1, 1919, 1920 and 1921. On or about the 1st day of September, 1922, Charlie Haynie being unable to make further payments on said land, agreed with said T. J. Watts to surrender, and deliver to him the contract above quoted..
    On the-29th day of December, 1922, Charlie Haynie executed a note payable., on or before .October 1, 1923, to .the order of T. J. Watts in the .sum .of $100. - The note recites, that it was given for the rent of the land described in it, which is the same land involved, in this action.. .
    On the 16th day of July, 1919, Charlie Haynie and wife .executed to C. M. Martin a certain oil and gas lease to said land. Said lease was duly acknowledged and filed for record in the office of the circuit clerk of Nevada County, Arkansas, on July 28, 1919. J, E. England, Jr., trustee, is now by proper assignment.the owner of said lease.
    The amount of rent due under the contract above quoted, -except the rent due on July 16,. 1923, was deposited by the lessee or his assignee to the .credit, of Charlie Haynie in the Bank of Waldo, Waldo, Arkansas, bef ore the 16th &av of. Jul-v in each vear. This suit was filed on June 18,-1923, and the rent due July 16,1923, was not tendered • to appellants or to Charlie Haynie before it was due.
    T. J. Watts had no notice of the existence of the oil and gas lease until after November 1,1922, other than that the law might charge him with by reason of the filing for record of said lease.
    The chancellor found the facts generally in favor of appellees, and further found that J. E. England, Jr., trustee, in order to protect his rights under said oil and gas lease, had in equity the right to pay appellants the balance due them on the purchase price of said land by Charlie Haynie and to redeem said land from the forfeiture made by said Haynie, by depositing the balance of said purchase price and the costs in the registry of the court.
    Appellants refused to accept the'amount' so tendered them, and it was decreed that their complaint- be dismissed fox want of equity. '
    The case is here on appeal.

      T. J. .Gaughrm, J. T. Sifford, J. E. Gawghan and] Elbert Godwin, for appellants.

      W. T. Sage and J. N. Sage, for appellees.
   Hart, J.,

(after stating the facts). It has been well said that there may be a sale of land, an agreement to sell land, and what is generally called an option. An actual transfer of title from the grantor to the grantee by 'deed, or other instrument in writing, is an executed contract. ' A contract to be performed in the future, which, if fulfilled, results in a sale, is an executory contract. In other words, an agreement to sell is preliminary to a sale, and is' not the sale itself. It'may be réseind'ed- by agreement between the parties, and the contemplated sale may never take place.

An option is distinct from a sale of land, or an agreement to sell land. An option, in the proper sense, is a contract by which the owner of property agrees with another that he shall have the right to purchase the same át a fixed price within a certain time. 39 Cyc. 1232.

-One of the distinguishing features between an exec-utory contract to isell land and an option is- that .the latter does not bind the second party to purchase the land. Indiana & Arkansas Lumber & Manufacturing. Co. v. Pharr, 82 Ark. 573. On the other hand, a contract in which the second party binds himself unconditionally to pay the purchase price is often, fop that reason, held to be a contract to purchase. Vance v. Newman, 72 Ark. 359, and Bonanza Mining & Smelter Co. v. Ware, 78 Ark. 306.

¡When the contract is considered as a whole, we think that -it is an executory contract for the sale of land, and not merely an option. The contract recites that T. J. Watts has contracted to sell to Charlie Haynie certain déscribed lands for an amount evidenced by eight promissory notes for $150 each, due. October 1, 1917, to October 1, 1924, inclusive. The contract further recites that, upon the payment of each note and the maturity of the last note, T. J. Watts agrees to grant to Charlie Haynie a warranty deed to said land.

While the contract was only signed by Charlie Hay-nie, it will be seen that it imposed obligations upon Watts as well as upon Haynie. By the language of the contract Haynie promised to pay the notes as they fell due, and Watts promised to give Haynie a warranty deed when the last note was paid. By the terms of the agreement, Watts bound himself to execute a warranty deed to Charlie Haynie upon the payment of the purchase price, and Haynie bound himself to pay the purchase price in the time and in the manner specified in the contract. It is true that -the contract contained a provision. that, should any one or all of the notes not be paid when due, the contract should be void.

The purpose of this provision, however, was to insure the prompt and faithful performance of the contract by the purchaser, and might be enforced or not at the election of the vendor. It was the undoubted intention of both parties, by inserting this clause, to provide a-penalty to insure the prompt performance of the contract by the purchaser. If Haynie paid the purchase money, no discretion in the matter was left to Watts. On the other hand, if he did not pay the purchase money, he left the option with the other party to avoid the contract- or not. Hence, there was no lack of mutuality. Compliance on the part of the purchaser vested him with the power to compel specific performance if the vendor failed to respond to the obligations - imposed upon him by the contract. Dana v. St. Paul Investment Co. (Minn.) 44 N. W. 55, and cases cited, and Griffith v. Stewart, 31 App. D. C. 29.

It is true that the -notes recite that they are given for the rent of the land. Therefore it is insisted that the contract is a lease of land for the time, and for the price specified in the contract, with the option on the' part of the lessee to purchase the -land during’ the life of the lease. Such construction' as this would give no effect whatever to the language of the contract when considered in its usual and ordinary acceptation. We are of the opinion that, when considered as a whole, the contract was an executory contract for the sale of the land.

As we have already seen, the contract itself was one for the purchase of real estate. The notes in question were executed pursuant to the provisions of'the contract,' and we do not think that the contract could be changed from an executory contract of sale to an option merely by the recital that the notes were'for- the rent of the land. Trieschmann v. Blytheville Steam Laundry, 148 Ark. 237, and other cases cited by counsel for the plaintiff, have no application, because the contracts in those cases, by their express terms, were option contracts, and not executory contracts for the sale of land-.

This brings us to a consideration of the rights of J. E; England, Jr., trustee. The record shows that in September, 1922, Charlie Haynie and T; J. Watts agreed to rescind the contract. The record also showed that, on the-16fh day of July, 1919, Haynie and wife had executed to C. M. Martin an oil and gas lease to said land, which was duly filed for record -on the 28th day of July, 1919. J. E. England, Jr., trustee, became, by proper assignment, the owner of this lease.

A conveyance of oil or gas in its natural state is a conveyance of an interest in land. Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175.

The lease in question contained no covenant against assigning it, and could therefore be assigned to J. E. England, Jr., trustee. Lawrence v. Mahoney, 145 Ark. 310.

After the oil and gas lease had been executed and filed for record, neither the lessee nor his assignees could be affected 'by the subsequent agreement of Watts and Haynie to rescind the contract, without their consent.

It is next claimed that the oil and gas lease was forfeited because the lessee failed to pay the rent due on July 16, 1923. This suit was filed on June 18, 1923. The filing of the suit was notice to J. E. England, Jr., trustee, that Charlie Haynie had parted with his interest in the land, and was not entitled to receive the rent. No useful purpose could have been served by tendering the rent to the plaintiffs in this case. Their whole conduct showed that they would not have received it. A tender is not required where it is evident that it will not be accepted. The law does not require vain and useless things. Dickinson v. Atkins, 132 Ark. 84.

The rights acquired by England under the assignment of the lease to him gave him the right to protect his interest by paying off the balance of the purchase money due by Haynie. The record shows that the oil and gas lease was executed and filed for record before Watts claimed any forfeiture under the terms of the original contract.

The result of our views is ■ that the decree of the chancery court was correct, and will be affirmed.


text:
    Bauer v. North Arkansas Highway Improvement District No. 1.
    Opinion delivered March 16, 1925.
    1. .Constitutional law — release of< liability of public officers. —The legislature may relieve a public officer and his bondsmen from liability ■ for loss of public funds, not occasioned by the officer’s fault, since individual taxpayers have no vested interest in suoh funds, and there is no impairment of the obligation of contracts.
    2. Constitutional law — depositary of improvement district — act RELIEVING BONDSMEN FROM liability. — 'Special Acts 1923, p. 227, ^ ■ relieving'sureties on a bond given, to indemnify á road improvement district against loss of funds in a depositary bank, held invalid, as impairing the vested rights of taxpayers in such district.
    3. Appeal and error — conclusiveness of verdict. — On appeal a verdict is conclusive if supported by evidence of a substantial character.
    4. Depositaries' — indemnifying bond' — evidence as to signatures. —Evidence held to support a finding that defendants signed a - bond to indemnify a road improvement district against loss of funds in a depositary bank.
    5.. Trial — repetition of instruction. — It was not error to refuse to give an instruction covered by one already given. •
    6. Parties — substitution.— Where the commissioners of an improvement district abandoned a suit brought by them to enforce the liability of indemnitors to the district, it Was proper to permit taxpayers of the district to be substituted as plaintiffs.
    7. Indemnifying bond — liability of signers. — Where defendants signed an'instrument without reading it, thinking it was a petition when in fact it was an indemnifying bond,' their negligence will not relieve them from liability, where the bond was accepted without knowledge of their mistaken belief.
    8. , Indemnifying bond — effect of forgery of one surety’s name.— In an action by a road improvement district against several ' defendants as sureties on an indemnifying bond, where their defense was that none of them signed the bond, an instruction that the fact that the signatures of one of the defendants was forged would relieve the other defendants from liability was properly refused, though, under -Crawford & Moses’ Dig., § 8283, such forgery would diminish the liability of the other defendants by an -amount equal to that which would have been contributed -by the defendant whose name was forged.

      Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OE PACTS.
    On June 22, 1920, North Arkansas Highway Improvement District No. 1 of White County, Arkansas, by its commissioners, instituted tbis action in the circuit court against J. A. Bauer and others to recover the sum. of $20,400, alleged to be due by them as sureties on a-bond to said road improvement district to indemnify it against any loss by reason of depositing any funds by the' commissioners with the First National Bank of Judsonia, Arkansas. The suit was defended on ithe ground that the sureties had been released from liability on the bond by special act of the Legislature.
    The record shows that the names of all the defendants are signed to the bond. The bond was dated January 7, 1920, and the body of it is as follows:
    “We, the undersigned, are hereby held and firmly bound to the above-named- district in the sum of $30,000, to indemnify said district against any loss by reason oí depositing any funds by the commissioners of said district in the First National Bank of Judsonia; that said baiik being selected by the commissioners of said district in pursuance to act 213 of the G-eneral Assembly of the State of Arkansas for the year 1917.”
    Subsequently said bank became, insolvent, and, according to the proof, a large sum of money belonging to the road district was on deposit there. After the affair’s of the bank were wound up and the creditors paid pro fata, there still remains due -and unpaid the, sum of $6,120 belonging to said road district.
    The plaintiffs introduced proof tending to show that the defendants signed the bond. On the other hand, the defendants testified that they did not sign it, and other evidence was introduced to corroborate their testimony.
    Other facts will be stated under appropriate headings in the opinion.

      From a verdict and judgment in favor of the plaintiffs the defendants have duly prosecuted an appeal to this court.

      .John. E. Miller, C. E. Tingling, John D. DeBois, and P. R. Andrews, for- appellants.

      Brundidge & Neelly, for appellee.
   Hart, J.,

(after' stating the facts). The main reliance of the defendants for a reversal of the judgment is that they were released from liability on the bond by reason of a special act of the Legislature. The Legislature of 1917 passed an act creating North Arkansas Highway Improvement District No. 1. Acts of Arkansas, 1917, vol. 2, p. 1149.

Section ■ 22 of the act provides that the commissioners shall' select such, solvent. hanks as depositories for the funds .of the district as they may deem for the best interest thereof. The. section further provides that said depositories shall be required to give bond in such amount -as the commissioners shall fix, equal to or in excess of the largest amount of deposits that such depositories are expected to have, conditioned that all funds of the district placed in such depositories shall be kept ¿nd preserved by them and repaid only on the lawful orders of the board of commissioners.

Pursuant to this act, the commissioners deposited a large amount of the funds- of the district with the First National Bank "of .Judsonia and took a bond from the bank, as required by the statute. When the bank became insolvent and its affairs were wound up, it was ascertained that there remained due and unpaid of the funds of the district $6,Í2Q. The Legislature of 1923 passed qn act to release the stockholders and bondsmen of the First National Bank of Judsonia, Arkansas, from liability to the North Arkansas Highway Improvement District No. 1 of .White ‘County, Arkansas. Special Acts of Arkansas, 1923, p. 227.

’ '■ It is the contention of the defendants that this act is constitutional, and that the circuit court erred in not so holding. They base their contention on the general rule laid down by this court and various other courts of last resort to the effect that the Legislature possesses the power to cancel liabilities of officers- for money l’ost by them, when such loss was not occásioned by their wilful misconduct. Pearson v. State, 56 Ark. 138; McSurely v. McGrew (Iowa), 118 N. W. 415, 132 Am. St. Rep. 248; and Miller v. Henry (Ore.), 124 Pac. 197, 41 L. R. A. (N. S.), 97.

The syllabus of the Arkansas case reads as follows:

‘1 The Legislature is not precluded from passing ah' act to release a county treasurer from liability for school and county funds stolen by burglars, without fault on his part, from a safe furnished him by the county, by reason of the provision of § 3, art. 14, of the State (Constitution, which ordains that no school tax shall be appropriated to any other purpose than that for which it was levied, nor by the provisions of the State and Federal Constitutions that prohibit legislation divesting property rights or impairing the . obligation of contracts. ’ ’

All of these cases are based on the theory that the. Legislature’s power over taxation is only restricted by the limitations placed upon it by the Constitution, and therefore that-it may relieve public officers from the loss, of funds collected by general taxation where such loss is occasioned through no fault of the officer .or his bondsmen. In all these cases, where the money is collected by general taxation, the individual property -owners acquire; no vested rights in the premises, and therefore there is no impairment of the obligation of a contract as prohibited by the Constitution of the State and by that of the United States. .

A careful consideration of these cases leads- us to-the belief that this case does not fall within thé general rule, and that the Legislature has .no right to relieve the officer and his bondsmen from liability, unless the funds lost were raised by general, taxation, and they must have been raised by taxation on tire political subdivision of the State to be charged with the burden. - . ■

In cases where. a county treasurer, a county collector, or other county or township officer having charge of-public funds, loses the same by theft, or by insolvency of a bank in which he has lawfully deposited such funds, the Legislature, by its control over taxation, may relieve-such officer from liability ‘'occasioned by the loss,: and place the burden upon the people to replace the lost funds. Because the fund's are public funds, in which no person has any vested right, the Legislature may release the claim, though legally due, if, in its opinion, it would be unjust and oppressive to collect it.

It is true that the commissioners of an improvement district are public agencies intrusted with duties to the landowners of said district, but the funds which come to their hands are not collected by general taxation, and such commissioners are not officers of any political subdivision' of the State. On the other band, improvement district taxes are special taxes levied on the theory that the landowner receives a corresponding benefit. In short, improvement district taxes can only be levied to the extent that the benefits ‘conferred are equal to or exceed the- amount of the special taxes' levied. Therefore-, so far as improvement districts are concerned, we conclude that the individual landownérs have vested rights which cannot be impaired by subsequent legislative enactment. To- illustrate: Suppose the commissioners should let a contract -for a public improvement where the amount was not greater than the benefits assessed, the contract would be valid, and the contractor • and the landowners would both-Lave vested rights in it. If the assessments of benefits amounted to $100,000, and the total cost of the improvement, including the overhead charges, was the same amount, it is evident that no loss of funds could be suffered without disturbing the private rights of some one. If the money collected by the levy of these local assessments-was deposited-in a bank'and lost by the bank’s insolvency, either the contractor who. constructed the. improvement must lose a part of the fruits of.-his con-:' tract, or the landowners must be. assessed more than the. benefits received to make up such loss.

. This court has repeatedly held that local, improvement districts for constructing improved public roads may be. created by the Legislature and commissioners; may be appointed to construct such improvements. .Contracts made by, them for the construction-, of said roads, when made.in conformity with the-statute, have been uniformly upheld, and the landowners have been held to be bound by the final, assessment of benefits.

The theory is that the commissioners are the authorized, agents of . the landowners, and, throughout the. whole proceeding, act for them. The. legal theory is-that, when the district.is formed and the assessment of benefits becomes final, the property owners have 'consented to the burden .imposed upon their, property,by the act creating the district, and , thereby -become legally bound to pay the assessments. This gives them a private interest or vested right in the premises, and the imposition of. additional assessments to ; meet losses occasioned by the funds being dissipated' by the failure' of a bank in which they are deposited, would impair the vested rights of the landowners. ...

As -bearing on the question, and sustaining this Anew, we. cite a decision of the Supreme Court of California reported in 144 Cal. 329, 77 Pac. 937, under the style of Merchants’ Nat. Bank of San Diego v. Escondido Irr. Dist.

It, is also insisted that the evidence is not legally sufficient to sustain the verdict. On this'point but little need be said. It is our -duty to view the evidence, in the light most favorable to the plaintiffs, and to uphold the verdict if there is any evidence of a substantial character to support it. It is true that each of the sureties on the bond testified that they did not sign the bond. It is equally true that each of them testified that the signatures very much resembled their own genuine signatures. Then, too, most of the defendants testified that they signed some kind of a paper which they thought was a petition of some sort.

On the other hand, three experts on handwriting compared the signatures to the-bond with the admittedly genuine signatures of the defendants, and testified that, in their opinion, the signatures to the bond were genuine. There were seventeen names signed to the bond. When we consider the difficulty of forging this number of names to one instrument, in connection with the testimony of the expert witnesses to the effect that the signatures were genuine, and the further fact that most of the defendants testified that they signed some kind of written instrument, -we are of the opinion that the evidence was sufficient to warrant the verdict. Miller v. Jones, 32 Ark. 337, and Hughes v. Gardner, 144 Ark. 282.

It is next claimed that T. H. Beals is not liable, because he denied signing the bond in his answer, and did not testify in the case, and no1 admittedly genuine signature of Beals was introduced in evidence. While this is true, one of the expert witnesses testified that, in his opinion, the signatures to the bond were genuine. This included the signature of -Beals. The expert witness was a local banker in the county, and the jury might have inferred that he was familiar with the signatures of Beals without examining' other signatures of Beals admitted to be genuine. Therefore we conclude that the evidence was legally sufficient to support the verdict as to Beals.

It is next insisted that the court erred in not giving an instruction which placed the burden of proof upon the plaintiffs. While the court did not give the instruction requested by the defendants on this point, we think that instruction No. 3, given at the request of the plaintiffs, covers this phase of the case.-- Instruction No. 3 reads as follows:

“You are instructed that none of the defendants are liable to the plaintiffs by reason of their being stockholders or officers of the '-First National iBank, and, unless you find by a .preponderance of tbe evidence that the defendants signed the bond as alleged in the complaint, then your verdict should be for the defendants.

It is next insisted that the court erred in allowing certain taxpayers to become parties plaintiff, to this action.

After the Legislature of 1923 passed the special act releasing the sureties on the bond from liability, the commissioners passed a resolution to dismiss the case, and attempted to do so, on the theory that the special act was valid. Certain taxpayers objected to the suit being dismissed, and asked to be made parties plaintiff in their stead. The presumption is that the commissioners'acted in good faith, but their action amounted to a refusal to carry on the suit and thereby protect the interests of the landowners, for whom they were agents. The commissioners were the trustees of the landowners in the management and in the application of the funds of the district. If, for any reason, they abandoned the suit for the recovery of the money, the taxpayers had' a right to be substituted in their place. This principle is clearly recognized in Russell v. Tate, 52 Ark. 541, and other cases decided by this court.

The next assignment of error is that the court instructed the jury in substance that, , if it should find from the evidence that some of the defendants signed the bond sued on, and were told by the officers of the bank that it was a petition, and signed, it with that belief, still if if should find that they had the bond before them and failed to read it, the plaintiffs would be entitled to recover.

All the defendants except one testified that they signed a petition at the request of one of the officers of the banks, and denied that they signed the bond sued on. The names of the defendants appear as signers of the bond, and, if they signed it without reading it, under the belief that it was a petition of some sort, this would not relieve them from liability on the bond. The reason- is- that they eonld all read, and eonld not relieve themselves from liability in signing ■ an instrument by their- negligence in failing to read it.

. The -commissioners of the . district had no knowledge thqt they had signed the bond under the belief that it was a petition of some sort. Therefore the instruction, falls within, the principles announced in Hardy v. Ouachita, Nat. Bank of Monroe, 165 Ark. 532, and there was no error in giving it.

It is next insisted that the court.erred in rendering judgment against the defendants because counsel for .the plaintiffs conceded that there was not sufficient testimony to warrant a judgment against the defendant J. H. Orr. . In-other words, :the effect of the admission of counsel for. the plaintiffs during the trial of the case was that the signature of J. H. Orr was not his genuine signature.: No judgment was taken against Orr on the bond, and it is claimed that the admission that his- signature was not genuine released the other defendants from liability on the bond. ,

■This., contention is contrary to the .provisions of § 8283 pf Crawford & Moses’Digest. Under that section the liability of the other signers to the bond co.uld only be diminished by an amount equal to that which would have been contributed by Orr, to discharge the common liability. ‘ Therefore there was no prejudice in refusing to instruct the jury that the fact that Orr’s signature was forged would relieve the other defendants from liability on the bond. ■ See Johnson v. T. M. Dover Merc. Co., 164 Ark. 371.

It follows that the judgment must be affirmed.


author: Smith, J. McCulloch, C. J.

text:
    Shofner v. Dowell.
    Opinion delivered March 16, 1925.
    1. Counties — APPROPRIATION for street improvement. — Though a resolution oí a county quorum court appropriating money for street improvement in aid of an improvement, district recited that the necessity for the appropriation arose from the State’s failure to hear its share of the proposed improvement, this was a mere ■ ■ expression of the court’s- opinion as to the State’s duty, and the appropriation w.as proper, as the streets to be improved Were part of the county highway system.,
    2. Counties — lending of county’s credit. — Const, art. 12, § 5, prohibiting counties from lending their credit to any corporation, association, institution or individual, does not prevent a county from making an appropriation to aid in building a proposed street improvement. ■
    3. Counties — bridge fund — availability for road purposes. — A sum appropriated by the quorum court as a “bridge fund,” under Crawford & Moses’ Dig.,. § 1982, authorizing appropriations for building and repairing public, roads and bridges, is available for constructing roads as well as bridges, and an allowance from such fund in aid of a street improvement is not invalid under Const, art. 16, § 11, forbidding tax money levied for one purpose to be used for any other purpose.
    4. Counties — validity of allowance. — An allowance by the county court for a street (improvement out of a special1 bridge fund on hand is not invalid by reason of the fact that the county court agreed to make additional allowances out of the revenues of future years.
    5. Counties — contract to pay half of street improvement. — An agreement by the county judge with an improvement district on behalf of the county to pay one-half of the -cost of a street improvement is binding on the county on performance by the district, though it will require the revenues of future years to pay the county’s share.
    6. Counties — validity -of warrants payable in future. — County warrants to be paid from future appropriations for road and bridge purposes, given pursuant to a contract made by the county court to pay for one-half of a street improvement, held ■binding and not invalid because future appropriations would be required for their payment, in yiew of special act of June 30, 1924, validating such warrants.
    Appeal from Washington Chancery Court; Sam Williams, 'Special Chancellor;
    affirmed-.

      John Mayes and W. N. Ivie, for appellants.

      Nance & Seamster and Geo. A. Hurst, for appellee.
   Smith, J.

Appellants, wlio were plaintiffs below, are residents and taxpayers of Washington County, and, for their cause of action, alleged that, at the regular session of the quorum' court of that county, an illegal appropriation was made and an illegal tax levied.

It was further alleged that, at the meeting of the quorum court, a member thereof offered- a resolution which recited that the city of Fayetteville had for several years been endeavoring to have the streets around the University of Arkansas campus paved — that the adjacent property owners had petitioned for an improvement district to be formed for that purpose, but, there was an insufficient .valuation under the ilaiw. It was ’further recited, in the resolution offered in the quorum court, that the General Assembly of the State had been appealed to to pay for the State’s part of the' streets embraced in the improvement district, but this request had been denied, and therefore the improvement district could only be formed by Washington County bearing the State’s part of the expense of said improvement district.

The record of the quorum court further recites that, ‘ ‘ after due deliberation and consideration had thereon, it was moved by Justice A. B. Terry and seconded by Justice Ben F. Wood, that a sum of money, not exceeding $30,000, be and the same is hereby appropriated out of the special bridge fund of said county, payable as fol- ' lows: The sum of $10,000 from the collection of taxes made in the year 1924, the sum of $10,000 from the collection of taxes made in the year 1925, and any sum necessary, not exceeding $10,000, from the collection of taxes made in the year 1926, to pay the State of Arkansas’ part, or one-half of the paving of the following streets adjacen^ to the University of Arkansas property, in the city of Fayetteville, Arkansas, to-wit: (Thereafter follows a description of the streets to be improved). And the county judge is hereby authorized to issue warrants in keeping herewith when the owners of property along and on the opposite of said streets or parts thereof pave their ene-half thereof.” This motion was nnanimonsly adopted by the quorum court.

The complaint further alleged that, on, or about January 1, 1924, the county judge allowed and ordered paid a claim against the county by the commissioners of the improvement district in the sum of $24,536, to be ■ paid with three separate warrants, two payable in 1924 and 1925, for $10,000 each, and one in 1926 for $4,536 (these three payments equaling one-half of the total cost of the improvement), and, pursuant to this order, county warrants were drawn conforming thereto, payable to the improvement district.

That the warrant payable in 1924 was presented to the county treasurer on January 7, 1924, and was paid by that official to the commissioners of the district, it being alleged that this was done, although “there had been no part of said levy for .said special bridge fund for Washington'County collected at the time said warrant was paid by the county treasurer for the year 1924; that the county collector had paid into the county treasury more than $7,000 for the purpose and in furtherance of the Conspiracy to permit the said defendant, H. C. Evans, as commissioner, to cash said warrant, but as to where said collector obtained said money, and from what funds, are to the plaintiffs unknown, but the same was not a part of the collection of said two-mill levy for the special bridge fund for the year 1924, as none of said fund had been collected at that time.”

It was alleged that the warrants had been illegally issued, and that payment of one of them had been made in violation of law.

Plaintiffs therefore prayed, for the benefit of themselves and all other taxpayers similarly .situated, that the county judge, the sheriff and collector, the county treasurer, and the commissioner of the improvement district, who were all made defendants, be enjoined from attempting to enforce the illegal order or appropriation of the quorum court, and that the county judge be enjoined from issuing any warrants upon: said illegal 'appropriation, and that any warrants issued be canceled, and that the county treasurer be enjoined from paying any of ■ said warrants, and that the collector be enjoined from paying to himself any money he had advanced and paid into the county treasury to the credit of the county’s bridge fund, and that the improvement district be enjoined from cashing any warrant which may have been issued it, and that it, be required to refund the sum of $10,000 it had received in payment of the'$10,000 warrant.

The defendant demurred to the complaint upon the grounds (1), that the complaint did not state-facts sufficient to constitute a cause of action ¿gainst either of the defendants; 'and (2), that the court had no jurisdiction of the persons of the defendants or of the subject'of the action.

Upon the hearing the court overruled “that part of said demurrer as to the jurisdiction of the court, to which action the defendants, excepted, but sustained the other grounds in said demurrer, to which.the plaintiffs excepted and declined to plead further; whereupon this cause is dismissed at plaintiffs’, cost.” This appeal is from that decree.

It is first insisted that the entire appropriation is invalid, for the reason that.it appropriates:county funds for a State purpose. It is true that the resolution adopted by the levying court recites the failure of the State to pay its part of the cost of the improvement, and that the improvement could not be made unless the county would assume the State’s part of the cost. But this is a mere expression of the court’s opinion as to the State’s duty in the premises. The resolution’ did not change the facts in the case. The streets to be improved are a part of the county ’s highway system, .¿nd it was entirely appropriate and proper for • the: county - to improve them or assist.in doing so, notwithstanding the. members of the court were, of opinion that the State should have made an appropriation for this purpose.

It' is -next insisted that the appropriation is invalid as violating § 5, article 12, of the 'Constitution, which provides, among other things, that no county shall loan its credit to any corporation, association, institution, on individual.. ■

This court has held* however, in a number of cases, that improvement districts are not invalid because the street improvements contemplated cannot be constructed without the aid of the county in which they are located.

In the case of McDonnell v. Imp. Dist., 97 Ark. 304, it was contended that the proposed street improvement could not .be constructed with the tax which could be collected on the betterments assessed in the district, and that it would be a futile thing to waste money to begin an improvement which could only be completed with aid from the county, ‘and that the county might withhold this aid, although it had been pledged. This court held, however, that this contingency did not justify a court of equity in stopping, the work’ of. the improvement. Had it been thought that an appropriation could not be made by the County on account of an inhibition of the ’Constitution to the contrary, the holding would have been otherwise.

The power, of a- county to make such contribution was expressly recognized in the later cases of Deane v. Moore, 112 Ark. 254, and Mullins v. Little Rock, 113 Ark. 590; Mullins v. Little Rock. 131 Ark. 67.

. . In the case oí Greenburg Iron Co. v. Dixon, 127 Ark. 470, it was contended that the county court had no authority to expend the road fund in constructing a bridge in a-'city or town; but this contention was disposed of by saying that the court had held to the contrary in the case of Texarkana v. Edwards, 76 Ark. 22.

■ . = It is next insisted that the appropriation violates § 11, article 16, of the Constitution, which provides that ■<£no moneys arising from a tax levied for one purpose •shall'be used for any other purpose.” It is pointed out that, in making the animal appropriation, the levying court had levied' a special bridge tax of two mills on the dollar, and it is insisted that contracts for the construct ton of bridges only could be made.

■Section 1982, C. & M. Digest, provides the procedure for the quorum court in levying taxes for county purposes, and in paragraph 6 thereof specific items are mentioned for which appropriations shall be made, and sub-paragraph 6 thereof provides’ that appropriations shall be made “to-defray the expense of building and repairing public roads and bridges and repairing and taking care of public property.”

This special bridge tax of two mills was obviously voted pursuant to sub-paragraph ■ 6 of paragraph * 6 of § 1982, C. & M. Digest, and we think the money thus voted was available for the construction of roads as well as bridges.

In the case of School Dist. of Hartford v. West Hartford Special School Dist., 102 Ark. 261, a tax of seven mills Had been voted for school purposes, of which four mills had been voted for the construction of a schoolhouse and three mills for the payment of teachers. It was there contended that the tax voted for building purposes could not be appropriated for. any other purpose than that of erecting a schoolhouse, but the court 'Said': “'We cannot'agree with that contention. The section of the Constitution in question provides that the General Assembly may by general laws authorize "school districts to levy, by a vote of the qualified electors of such district, a tax not to exceed a certain rate. This is for all school purposes, and the particular rate which can be levied or used'for the purpose of constructing schoolhouses in the several' school districts is not designated. Evidently, then, the'section of the Constitution in question did not intend to place any restrictions on the use of school funds, other than that they should be used for school purposes. If it had,' appropriate language-' to effectuate that intent would have been used.' If the framers of the'iOonstittition did- not divide the school -fund "into separate classes, bat, on the contrary, did provide a maximum rate which might be levied for all school purposes, how can it be said that such fund is appropriated to another purpose, when it is designed and intended to be used for any of the purposes for which it might be levied? The Constitution places no restriction upon the use o£ school funds other than that they must be devoted to the purposes for which they were levied.”

We conclude therefore that an appropriation of the quorum court, pursuant to the statute, for bridge purposes authorized the county court to make contracts for the improvement of streets to be paid for out of that appropriation.

It is insisted that the appropriation is void because it attempts to appropriate the revenues of future years.; that it was contemplated that the cost to the county would exceed the sum appropriated for the then current year, and the county could not pay the part of the cost which it assumed out of the revenues appropriated for the then current year. In other words, it is insisted that the authorization to construct the improvement was void because its cost exceeded the appropriation for the current year, and the improvement could only be paid for by subsequent appropriations to be thereafter made.

In the case of Watkins v. Stough, 103 Ark. 468, the county court entered into a contract to build a bridge, and the clerk of the court, on behalf of himself and other citizens as taxpayers, appealed from the order of allowance made by the county court in payment of the work. It was contended that the contract was void for the reason that no specific appropriation of funds had been previously made by the levying court to pay for bridges of the class of the one in question, although there had' been an appropriation by the levying court generally for bridge purposes. In disposing of this contention the court said: “The statute expressly authorizes the county court to enter into contracts for the construction of bridges of any description needed, and the only limitation of that power is that found in the statute which provides that ‘no 'county court or agent of any county shall hereafter make any contract on (behalf of the county unless an appropriation has been previously made therefor and is wholly or in part unexpended. ’ Kirby’s Dig., § 1502. This statute applies to 'bridge contracts as well as all others made by the county. Fones Hdw. Co. v. Erb, 54 Ark. 645. The general appropriation for ‘bridge purposes/ if wholly or in part unexpended, was sufficient to authorize the county court to enter into contracts for bridges of any class. We do not understand the statute ,to mean that the levying court must first signify its ‘favorable judgment’ for the construction of a particular bridge by malting a specific appropriation for, that purpose. When the levying court makes an appropriation for the purpose of building bridges, the statute authorizes the county court to, make contracts for its expenditure and to continue to make such contracts as long as the fund remains unexpended, in whole or in part. Fones Hdw. Co. v. Erb, supra. There is no proof that the funds appropriated had been wholly expended at the time the contract with appellee was entered into, and, in the absence of such showing, we. must not presume .that the county court exceeded its authority in making the contract, Howard County v. Lambright, 72 Ark. 330.”

In the instant case there was an appropriation which authorized the county court to contract for the improve-’ ment of the highways of the county.

In the case of Hilger v. Chrisp, 98 Ark. 490, it was said that, under the Constitution, the full court, composed of the county judge and the justices, is’ the tribunal for the purpose of levying taxes, but that, the county court, composed of the county judge alone, is authorized to proceed to make contracts for the expenditure of the money appropriated.

Here the levying court made an appropriation which contemplated a particular improvement, not to exceed $30,000 in cost. Pursuant to this authority, the county court made a contract which involved the expenditure. of .$24,536 of this money. It is true only $10,000 was: available under the appropriation made out of the funds of the current year, hut this limitation did not deprive the county court of. its jurisdiction to contract for. an expenditure exceeding the appropriation available for the year in which the contract was made. An appropriation had. been made, and it had not been wholly expended,, and the county court had the authority to make the., contract. , .

, In the case of Greenberg Iron Co. v. Dixon, supra, the county judge and the city authorities of B entornille had decided to build a bridge on one of the streets of that city and to apportion the. cost between the city and the county. No appropriation had been made by , the levying court of the county to build the bridge, and' it was insisted that a county warrant which had been issued by the county court in payment of the part which the county had agreed to assume was invalid on that account, and the circuit court so held. In reversing .the judgment of the circuit court we said: “The judgment of the circuit court was wrong. It has been held that, under our statute, the county court has no power to let a contract to construct a bridge without some appropriation made for building bridges by the levying court. Fones Hardware Co. v. Erb, 54 Ark. 645. It.cannot be determined from the record whether or not there was an appropriation for building bridges in, Benton County for- the year in- question. It is true, the record recites that there was no appropriation for building this particular bridge,5 but this was not necessary. Upon the authority above recited, if there was an appropriation for building bridges, the county court had the power to act, and is not limited to the amount appropriated. When the levying court appropriated any sum for building bridges, that indicates its judgment that the work should be done, and the county court, in contracting for the construction of bridges, is not limited to the amount appropriated.”

■We think the agreement of the county judge to pay one-half the cost of the proposed improvement has all the attributes óf a contract, and was a contract which the court had the right to make, and, upon the performance of the contract by the other contracting party by improving the streets, the county became and is liable for the balance which it agreed to pay. We therefore decline to hold the orders of the court set out above to toe void.

We are unwilling also to order the cancellation of the unpaid warrants. These warrants evidence the contract on the part' of the county. Provisions for their payment must toe made toy future appropriations by the levying court, but it does not follow that'they are invalid because future appropriations will be necessary for their payment. They represent a contractual demand against the county, which the holder thereof may enforce against the county in the same manner that any other creditor of the county would proceed to enforce a valid demand, and will no doubt be paid in the same manner.

The fact that the order of the 'county court contributing to the prop’osed improvement contemplated that the county would incur an obligation which could not. be discharged out of the revenues collected in the year in which the contract was made, did not render it invalid.

In the case of Hilliard v. Bunker, 68 Ark. 340, the court said: “In such an expensive matter as the building of a courthouse and jail, it is not, of course, expected, under ordinary circumstances, to cover .the whole amount by the levy for one year, and in fact this cannot be done, since, together with the ordinary expenses'of the county, the levy for erecting these buildings must not exceed in one year the rate of five mills. The amount and number of the annual installments necessary to cover the whole cost of the structure must be and is left to the discretion of the levying court, to be exercised so as to accomplish the result intended in a reasonable time. ’ ’

In this connection, it may be said that these warrants evidencing this demand were validated toy act No. 3 of the Act's of the Special Session of the 1924 General Assembly, approved June 30,1924, page 46 of tbe 'Special Acts of 1924.

The county has entered into a valid and enforceable contract, and we think the court below was correct in refusing to cancel the evidence thereof which had been given to the party with whom the county contracted, and that decree is therefore affirmed.

The 'Chief Justice and Mr. Justice Hart dissent from that part of the opinion which relates to warrants payable in future years — 1925 and 1926.

DISSENTING OPINION.

McCulloch, C. J.

I agree fully with the majority that it was within the power of the county court to make contributions from county road funds to the improvement district to aid in paving a street, and that the warrant payable during the year for which an appropriation was made was valid, but I dissent from that portion of the opinion which holds that warrants payable in future years are valid.

The case contains no element of contractual relation between the county and the improvement district. The power of the county court over public highway does not arise out of any contractual relation, but is derived from the Constitution, and the power is exercised as a ■ public function. The county court may contract with an individual or a corporation with reference to the construction or improvement of the public highways, but it has no authority under the Constitution to enter into a contract with another public agency with reference to the cost of improving highways. The county may, as before stated, make donations in aid of the work being done on the highways by an improvement district or by a municipality, but it is not bound by a mere agreement to share the expense.' Eliminating,- therefore, all element of contract, the only thing that the county court could do was ' to make appropriations of the county funds and, when collected, make such contributions out of-those- funds-as ■' the county oburt saw fit:' There' could be no contributions from the funds until the same had been regularly appropriated by the quorum court, and that court has no authority to appropriate funds except for one year. If the quorum court can appropriate funds for two or more years, it can do so for a dozen years. The .Constitution " (art. 7, § 30) contemplates that the quorum court shall meet annually for the purpose of levying taxes for the ensuing year and making appropriations of the revenues thus raised.

My conclusion is’ that the warrants payable during the years 1925 and 1926 are invalid, and that the relief prayed for should have been granted.

Mr. Justice Hast agrees with me in these views.


author: Smith, J.

text:
    Griffin v. Chesney.
    Opinion delivered March 16, 1925.
    1-. ■ Contracts — party committing first breach. — The party who . . commits, the first substantial breach of contract cannot maintain ■an action against the other contracting party for a subsequent ' failure to perform.
    2. Injunction — breach of contract — A party is not entitled to enjoin the breach of a contract by another, unless he has per- ' formed what the contract required of him so far as possible; if he is in default or has given cause for nonperformance by the defendant, he has no standing in equity..
    Appeal from Benton Chancery Court; H. L. Pearson, Special Chancellor;
    affirmed.

      A..L. Smith,.ior appellant.

      McGill & McGill, for appellees.
   Smith, J.

The parties to this litigation entered into a written contract on the 10th day of- February, 1917, whereby they agreed, according to our interpretation of the contract, as follows: Chesney, who was -a local fire insurance agent representing four companies, sold his agency to Griffin for $500 cash, which was paid upon the transfer of the agency for these four insurance companies from Chesney to Griffin. Chesney reserved- the right, at his option, to solicit insurance business for Griffin, and .was to be paid for any business written by him as follows: For all new. business Chesney was to receive, the entire premium, whether the policy was for a year, or for a term of years, and new business was defined to mean not renewals of old policies, but business not on the: boofcs of Chesney at the time of the sale of his agency. From the commissions thus earned a deduction- of twenty-five cents for-each policy issued by Griffin was to be made for a period of twelve months, dating from the date of the sale.

When Griffin desired Chesney to assist in securing renewals of existing policies, that service was to be rendered by Chesney, and one-half of the commission thus earned was to be paid him for this service.

Chesney also agreed that he would not enter into the fire insurance business in Siloam Springs, Arkansas, where his agency had been located, for himself, or in connection with any other agent, so long as “the party of the second part (Griffin) shall remain continuously and directly from the date of -this contract in such business in this city, and not violate the terms of this contract.”

:- The contract contained certain other, provisions which need.not be stated, as -they are not involved in this litigation.

Suit was brought by Griffin, who alleged that Ches-ney had breached the contract by reentering the. insurance business in .Siloam Springs, and that Chesney sought to defend his .action in so doing by falsely claiming-that plaintiff Griffin had previously breached the contract. There was a prayer that Chesney be enjoined from continuing in the business of. writing* fire insurance in the city of Siloam Springs.

Chespey filed an answer admitting the execution of the contract, and admitted that he had reentered the fire insurance business, but he alleged that plaintiff had first breached the contract in several respects, and his obligation. under the 'contract to stay .out of the insurance busi•ness had thereby been annulled.

¡By way of cross-complaint, the defendant Ohesney alleged that Oriffin had failed to properly account to him for the commissions he had earned 'on insurance he had written, and he prayed that an accounting he had 'between them.

■ It would serve no useful purpose to set out the testimony offered by the litigants in .support of their respective allegations. The court found the fact to be that there was no equity in either the complaint or the cross-complaint, and dismissed them both as being without equity, for the reason that the plaintiff had violated the contract from the beginning by secretly withholding a portion of the commissions to which defendant was entitled, and defendant had violated the contract by secretly giving a portion of his business to other insurance agents, and upon this express finding the court assessed half of the' costs against each of the parties:

We are unable to Say that this finding is clearly against the preponderance of the evidence; in fact, the finding is virtually supported-by the admissions of the parties.

There is more uncertainty about who committed the first-breach, and this appears to be the principal question of fact in the case. Cases are cited holding that the party who commits the first substantial breach of a' contract cannot maintain an action against the other contracting party for a subsequent failure to perform. This i-s, of course, a well settled principle of - the law.

•' Without 'undertaking to. decide who committed the ■ first breach-of the; contract, it may be said that the testi- ' moxiy shows that each party had breached the contract before the other was aware of the fact that the -other had also breached it. Indeed, the plaintiff alleged in his ' complaint that it had come to- his knowledge, since the institution -of -this suit, that defendant had never in good faith complied with the contract, and, while the plaintiff alleged and testified that he had never breached the contract himself, we think, as we have .said, that the chancellor’s finding to the contrary is not clearly against the preponderance of the evidence.

As we have said, appellant (plaintiff) brought suit to enjoin defendant from engaging in the insurance business in the city of iSiloam Springs, and we think the court was warranted in denying him the relief prayed because of his own breach of the contract. There is no cross-appeal by appellee, and we do not consider what relief, if any, he might have had by way of damages had he cross-appealed. The question presented by appellant’s appeal is whether he is entitled to enjoin appellee from reentering the insurance business in the city of - Siloam Springs, and, as we have stated, this relief was properly denied him because of his own breach of the contract-upon which he predicates his cause of action.

In 32 C. J., p. 192, § 290 of the chapter on Injunctions, it is said: “A party is not entitled to enjoin the breach of a contract by another, unless he himself has performed what the contract required of him so far as possible; if he himself is in default,-or has given cause for nonperformance by defendant, he has no standing in equity.”

Under the circumstances we think appellant has not made a case entitling him to equitable relief, and the detree of the court below is therefore affirmed.


text:
    Garrett v. Edwards.
    Opinion delivered March 16, 1925.
    1. Landlord and tenant — purpose op unlawpul detainer action. : — The action of unlawful detainer merely decides the right to the immediate possession of lands and tenements, and not the right or title of the parties to or in them.
    2. Landlord and tenant — estoppel.—A tenant cannot. dispute the title of his landlord -while he remains in possession under him, nor acquire possession from the landlord by lease and then dispute his title, but must first surrender possession.

      3. Landlord and tenant — unlawful detainer — answer.—Where a landlord sued for possession', an answer of the tenant that after he received possession certain third persons claimed to own the premises and rents, and that thereafter defendant deposited the. rents in a bank awaiting, settlement of the question of ownership of rents, with prayer that such third party ibe made defendant and required to litigate the question of ownership of rents', held demurrable.

      Appeal from Conway Circuit Court,- J. T. Bullock, Judge;
    affirmed.

      E.dward Gordon, f or appellant.

      Eades dt Eddy, for appellee.
   Smith, J.

Appellee brought an action of unlawful detainer to recover from appellants the■ possession of. a. lot in the town of Blackwell, which he alleged that he had rented them on November 10, 1922, for a monthly rental of $10, to be paid at the end of each month; that default, was made in the payment of'the rents; and a notice in writing'to-vacate was served on defendants. Judgment for-rents and possession was^prayed.

Defendants filed an answer .admitting the tenancy,, but alleging the fact to be that, shortly after :they went, into possession of ,tbe property, they were notified' by..■ Maus and.Berkemeyer, trading'and doing business as Maus & Berkemeyer, that they were the owners of the property and were entitled to .the refits; that thereafter, defendants deposited the rents in a -bank, awaiting* a settlement of the question as to- who was entitled, to- the rents. There was a prayer that Maus & Berkemeyer be made parties defendant and required to litigate with plaintiff the question of ownership -of the rents.

A demurrer was -sustained to this answer, and, as defendants declined to plead further, judgment was pronounced .on the pleadings, in favor of the plaintiff.

The demurrer to the answer was properly sustained. In the case of Dunlap v. Moose, 98 Ark. 235, it was said: “The action of unlawful detainer is only-to decide the right to the immediate possession of lands and tené-ments, and fiot to determine the right or titlé of the parties to of in' thém. ’ A tenant 'cannot dispute the title, of . his-landlord, while he remains in possession under him, nor, acquire possession from the landlord by lease and then dispute his title, but must first surrender possession and bring his action.” See also Burton v. Gorman, 125 Ark. 141; Montgomery v. Massey, 145 Ark. 336; Morris v. Griffin, 146 Ark. 439.

The judgment of the court below is therefore affirmed.


text:
    Beloate v. Carruthers Motor Company.
    Opinion delivered March 16, 1925.
    1. TROVER AND CONVERSION — MEN OP AUTOMOBILE REPAIRMAN. — In a suit by the owner of an automobile against a repairman, in which each .presented ■ an account against the other, plaintiff for1 professional services and defendant for repairs- to the automobile, since defendant was entitled to a lien on the car for repairs, under Crawford & Moses’ Dig., § 6866, the court properly refused to submit the question of conversion.
    2. Trover and conversion — retention of automobile for repair charges. — An automobile repairman was not guilty of conversion in retaining a car on which he had made repairs where the owner failed to pay or tender his charges.
    Appeal from Lawrence Circuit Court, Eastern District ; Dene 3. Coleman, Judge;
    affirmed.

      W. P. Smith, for appellant.

      H. L. Ponder, for appellee.
   Smith, J.

Appellant sued appellee for the alleged, conversion of an automobile, delivered' to appellee in February, 1922, to be repaired, and of which appellee retained possession until May, 1923.

On May 26,1923, appellant delivered to appellee the following letter:

“Walnut Ridge, Ark., May 26, 1923. “Carruthers Motor Co., Walnut Ridge, Ark.
‘ ‘ Owing to the fact that you have permitted certain parts of the engine and two casings, rims and other parts to be removed from my Paige car, engine No. 7D687QÍ,, which was delivered to you in February, 1922, for repairs, I liave 'been unable to get same removed by other garage men for repairs.
“This is to notify yon to place said oar in the condition it was when you received it 'by June 10, or I will take it that you desire to convert same, and will sue you for the value of the car.”

After the expiration of the time limited by the letter this suit was brought.

Appellant asked two instructions, the first of which directed the jury to return a verdict in his favor for the value of the automobile at the time it was delivered to appellee, and the other instruction was to the same effect substantially, only it required the jury to. find, that possession of the car was. not delivered to. appellant within the time limited in the letter set out- above:

The testimony on behalf of appellant was to the effect that appellee kept his car without excuse and without repairing it, .and failed to repair or return it after repeated requests so to do. The testimony on behalf of appellee was to the effect that the car was about worn out. when it was delivered at the garage for repairs, such repairs were made as were authorized, and .appellant was advised of that fact, and was further advised that the car was ready for delivery, with the exception that it needed casings and a new battery, and that, when the battery was furnished, the car was “ready to be tuned up and to go, ’ ’ and, according to the testimony in appel-lee’s behalf, appellant was responsible for the delay.

There was' testimony -on the part of appellant that certain parts of the car had been removed or lost; but appellee was not responsible for this loss, according to the testimony in its behalf.

Each party presented an account against the other, one for repairs to the car, the other for professional services.

The issue of facts thus raised was submitted in an instruction reading as follows: “The burden is bn the defendant to establish the items of his cross-complaint, and the burden is upon the plaintiff to establish the value of his services. As to the possession of the car in this action or as to the value of it, the jury in this case has nothing to do with that. There is nothing in this lawsuit but for you to try to strike a balance between these two accounts■ under the evidence in the case.”

It appears from this instruction that the.court refused to -submit the question whether there had been a conversion of the car; indeed, the court.stated to the jury that the testimony presented no such question, and the only question submitted to or passed upon by the jury was the state of the account between the parties. The jury returned a verdict in favor of the appellee for $25, and this verdict is conclusive of the fact that the sum due defendant for repairs exceeded the sum due plaintiff for professional -services by $25. . •

Under the judgment pronounced on this verdict appellant would have been entitled to the possession of the car by paying the sum found due appellee for work done on it.

We think the court properly refused to submit the -question of conversion of the car to the jnry. The car may have been retained by appellee for an unreasonable length of time, although, as we have said, the testimony on appellee’s part tended to excuse this delay. ' But, at any rate, there is no question of conversion in the case. Appellant’s ownership of the car was never questioned, and his right to its possession would apparently not have been questioned, had appellee’s charges been paid. The verdict of the jury is conclusive of the fact that-there were charges which should have been paid, and' appellee Was entitled to a lien on the car'so long as these charges remained unpaid. Section 6866,'U. & M-. Digest; " ~

It will-be observed that, in the letter set out above, ■Ihere was ho tender by' appellant - of ■ thé charges, nor, indeed, was there any reference to them, and we think the court below'w-as correct in holding that the mere 'failure to surrender the car within the timé liinited' for that purpose did not constitute" a -conversion ;of-'it.- -f

d The judgment' of the court' below is ' therefore affirmed.


author: Humphreys, J.

text:
    Chambers v. State.
    Opinion delivered March 16, 1925.
    . 1. CRIMINAL LAW — INFORMATION—FORMALITY.—Ill prosecutions for misdemeanors on information, no formality is required, either in the affidavit charging the' offense or in the warrant of arrest describing same.
    2. Criminal law — proof of venue. — Proof that an offense was committed in and near Port Smith was sufficient to prove that the offense occurred in the- Fort Smith District of Sebastain County.
    3. Criminal law — permitting witness to remain . in ■ court.— Though the court put the other witnesses under the rule, it was not an abuse of discretion to permit the mother of the prose-cutrix in a contributory delinquency case to remain in the court ' room during the trial.
    4. Infants — delinquent.—In a prosecution for contributing to the delinquency of a minor, evidence held to show that the minor was a delinquent.
    5. Criminal law — repetition of instructions. — Refusal of erroneous instructions, or, instructions covered by those given was not error.
    6. Infants — contributory delinquency. — One may ¡be guilty, under Crawford &. Moses’ Dig., § 5754, for contributing to the delin- - quency of a minor if he either encourages or contributes to her ! • delinquency.
    Appeal from', Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed,

      T. S. Osborne, E. M. Ditmon, for appellant.
    . . II. W. Applegate, Attorney General, and John ,L. Carter, Assistant, for appellee. ■ ; .
   Humphreys, J.

Appellant was tried and convicted in the circuit court: of the Fort Smith District of Sebastian County,-on appeal from the municipal court of Fort Smith, for contributory delinquency, and, as punishment

■ therefor, was adjudged to pay a fine of $500' and to serve one year in-the-county jail, from which judgment he ha's prosecuted -an appeal to this court.

‘ ' : The information was based upon § 5754 of .Crawford & Moses’ Digest, and is as follows“On the 21st day of August; 1924, J; -Sam Wood filed -before me his affidavit charging Elza Chambers had, in the county of Sebastian, on or about tbe.day of June, 1924, committed the - crime of contributing to the delinquency- of Gertrude Lee, a minor. ’ ’

A demurrer was filed to the information, which was overruled by the court, and appellant questions the sufficiency of the affidavit. In prosecutions’ upon information for misdemeanors no formality is required either - in the ¡affidavit charging the offense or in the warrant of -arrest describing same. The purpose of the affidavit or warrant is to bring the offender into court, and, once ' there, it is within the province of the court to try and punish him for any misdemeanor triable by the court, - which he has committed. Section 5784 of Crawford & Moses’ Digest, under which appellant was tried, specifically provides that the crime is a misdemeanor. Mayfield v. State, 160 Ark. 474, and cases cited therein to this point.

Appellant -also questions the sufficiency o-f the' proof to establish the venue of the court.- The record reveals that the sexual intercourse between appellant and Gertrude Lee occurred in or near Fort Smith, and that their association was confined largely to that immediate locality. This court judicially knows that Fort Smith is in the Fort Smith District of iSebastian County,. Arkansas. •

Appellant also contends for a reversal of the judgment because the court permitted the mother of Gertrude - Lee, who was a witness, to remain in the courtroom while the other witnesses were testifying. It is true the court put the witnesses under the rule, at the 'request of the State, but it is in the court’s discretion to excuse -special witnesses from the rule. We know of no good reason why the court abused this discretion in permitting the mother, who was a witness, from sitting' with her daughter, Gertrude Lee, who was the prosecutrix in the case. We are unable to determine from the record that appellant was prejudiced on this account.

Appellant next contends for a reversal of the judgment upon the alleged ground that the instructions given by the court were erroneous declarations of law as applied to the facts in the case. We.have read them carefully, and do not think the two main objections made to them are tenable. The objections are that there was no testimony tending to show that the crime was committed in the Fort Smith District of Sebastian County, and none tending to show that the prosecutrix herself was a delinquent under § 5754 of Crawford &, Moses’ Digest.. There is positive evidence in the record-to the effect that appellant, a married man, had -sexual- intercourse with the prosecutrix,' who wag only seventeen yeans of age, within the city limits and in the suburbs of ■ Fort Smith. The record also reflects that- the prose-cutrix remained out late at nights with appellant and other men, and attended dances and other public places without protection. ¡She was out with appellant and other men nearly every night. The statute -defines a delinquent child as a female under eighteen years of age who knowingly associates with immoral persons. We do. not- think the instructions were abstract.

Appellant’s next and last contention for a reversal of the judgment is that the court erred in refusing to - give certain instructions requested by him. Such instructions as were not given were’ either covered by other instructions or were erroneous because they conveyed the idea 'that, before appellant could be guilty, it was necessary for him to have contributed to Gertrude Lee becoming- a delinquent, whereas, under the statute, he ■ might be guilty if he encouraged or contributed to her delinquency.- Courts are not required to repeat their instructions nor to give instructions which are incorrect.

No error appearing, the judgment is affirmed.


text:
    Rinehart v. Wheeler.
    Opinion delivered March 16, 1925.
    1.. Executors and administrators — authentication op demand.— A claim for damages against an estate, when presented to the administrator for allowance, or when suit is brought thereon, must he authenticated as required 'by the statute (Crawford & Moses’ Dig., § 101).
    2. Executors and administrators — form op affidavit. — An affidavit that the facts were true and correct is not a substantial compliance with Crawford & Moses’ Dig., § 101.
    3. Executors and administrators — time, for exhibiting affidavit. —The affidavit authenticating a claim against an estate of a decedent, required by Crawford & Moses’ Dig., § 101, must be exhibited within one year from the appointment of the administrator. '
    Appeal from Jefferson Cirenit Court; T. G. Par-ham, Judge;
    affirmed.

      Oscar E. Winn, for appellant.

      Rowell •<& Alexander, for appellee.
   Humphreys, J.

This suit was brought on March 15, 1923, by appeHants against appellees in the' circuit court of’ Jefferson County to recover $25,000- in behalf of Ollie Nelson Rinehart and $15,000 in behalf of Hervey Bost, a minor, against the estate of Daniel Nelson, deceased. Ollie Nelson Rinehart was the daughter and Hervey Bost the grandson of the deceased. Daniel Nelson died on April 1, 1922, owning a large estate. On the twelfth day of April, 1922, joint letters of administration of his estate were issued to C. K. Wheeler and Ollie Nelson Bost, widow, who, prior to the institution of this suit, married a man- by the name ’of Rinehart. It is stated in the amendment to the complaint that the suit is for damages growing out of -both contract and tort. The contract "seems to have been set out by way of inducement, the gist of the action being the contraction by appellants of tuberculosis from the deceased in his lifetime. Tt was alleged in the complaint that Mrs. Rinehart, née Bost, disposed of her home in Conway County and moved with her children to her father’s plantation in Jefferson County for the purpose of keeping house for him and assisting in the management of his plantation, with the understanding that he would give her his property at his death;-that her father had tuberculosis, hut withheld this information from her; that, as,he became weaker from the disease in the later years of his life, it became necessary for her and her son Hervey to sleep in the room of her father at nights in order to wait upon .him, which resulted in both of them contracting the disease. The prayer in the complaint and amendment thereto was for damages on account of the negligence of the deceased in causing them 'to contract the disease. Theré was no prayer in the -complaint for la performance ■of the contract. As we construe it, the action is one for tort.

The administrator, O. K. Wheeler, filed a demurrer to the complaint and also a motion to enter a nonsuit, for the reason that the claims were not authenticated in the manner required by law when presented to the administrators, and when suits were brought thereon. The court heard testimony upon the motion to enter a nonsuit, and sustained it, from which is this appeal.

. • Appellant first contends for a reversal of the judgment -because it was unnecessary to authenticate a claim for damages against an estate when presented to an administrator for allowance, or when suit is brought thereon. Appellant is in error in this contention, for the term “demand,” as: used in the statute requiring all claims to be authenticated. against estates, includes all claims capable of assertion against an estate of a deceased person. Hayden v. Hayden, 105 Ark. 95; Davenport v. Davenport, 110 Ark. 222; Keffer v. Stuart, 127 Ark. 499.

Appellant’s next contention for a reversal of the. judgment is that the’ authentication met the ■. requirements of the statute. The form of affidavit used- in ’authenticating-the claim was -that the facts were true and correct. This did not substantially meet the requirements of § 101 of Crawford & Moses’ Digest'. That section: requires that á claimant shall state “that nothing has been paid or delivered toward the satisfaction of the demand except what is credited thereon, and that the same demand, naming it,- is justly due. Such affidavit is a prerequisite to the right of action, and must he . exhibited within one year from the appointment of the administrator. Chapman v. Railroad Co., 97 Ark. 300.

No error appearing, the judgment is affirmed.