author: Mbhappy, J.

text:
    Walthour v. Pratt.
    Opinion delivered April 11, 1927.
    1. BROKERS — AGENCY question of fact. — In an action to recover a secret profit made by a broker in purchasing- a lot for plaintiff, the question whether defendant was the agent of plaintiff was one of fact for the jury.
    2. Appeal and error — conclusiveness of jury’s finding. — The finding of the jury on a question of fact, where there is .any substantial evidence to support it, cannot be disturbed by the Supreme Court.
    3. Brokers — proof of agency. — To establish a broker’s agency, the evidence need not show an express agreement, but it may be implied from circumstances, such as the relation of the parties and their conduct with reference to the subject-matter of contract.

      i. Brokers — secret profit. — A broker employed to buy land for his principal, who purchases it from the owner for $1,500, and pro- • cures a deed to a third person, who conveys it to his principal for $1,850, is liable to his principal for the difference as secret profit. »
    5. Trial — assumption of disputed fact, — In an action against a broker to recover secret profit made by the agent in purchasing lots for the principal, an instruction stating- to the jury that plaintiff would he entitled to recover whatever secret profits, if any they find, etc., was not erroneous as assuming that defendant made a secret profit.
    6. PRINCIPAL AND AGENT — SECRET PROFIT — FRAUD.—In an action to recover secret profit made by an agent in purchasing lots for his principal, it was 'not necessary to prove fraud in order to entitle the principal to recover.
    7. Principal and agent — duty of agent. — An agent is under duty to represent his principal faithfully, and he cannot acquire any private interest of his own in opposition to his principal.
    8. Principal and agent — duty of gratuitous agent. — The fact that an agent acts gratuitously does not relieve him 'of liability for wrongful acts or negligence, whether they amount to fraud or not.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      George A. McConnell, for appellant.

      Fred A. I a grig, E. B. Dillon and Philip McNemer, for appellee.
   Mbhappy, J.

Tlie appellee, Elsie Pratt, and lier husband, R. 0. Pratt, filed suit in the Pulaski Circuit Court against J. 1). Walthour, the appellant, 'alleging- that R. C. Pratt had entered into a contract with appellant fo purchase certain lots and 2, block 2, Pinehurst Addition to the city of Little Rock, from the owner, who was unknown to the plaintiff; that said Walthour was instructed by plaintiff to purchase the property for the least sum possible; that, in pursuance of said agreement, the defendant located the owner, and reported to plaintiff that he could not get the owner to state the price, but requested the plaintiff to make an offer to the owner; that, relying upon the-statements, plaintiff offered $1,850 and instructed defendant to convey the offer to the owner, and, if satisfactory, to have deed made to Elsie Pratt; that, instead of having deed, made to plaintiff, defendant purchased the property for himself through one J. S. Bailey, who was in collusion and connivance with the defendant, purchased, the property in his name for the sum of $1,500, and that Bailey conveyed the property to plaintiff for $1,850; that defendant paid only $1,500 of this to the owner, making a profit for himself of $350.

Defendant answered, denying* all the material allegations of the complaint. Thereafter R. C. Pratt’s name was stricken out, and the case proceeded to trial in the name of Elsie Pratt as the plaintiff.

Elsie Pratt testified, in substance, that she and her husband went out with Mr. Walthour to look at some lots; that was the first time she had ever met him, and they looked at lots which belonged to Mr. Walthour, but she did not care for them, and later they came to the lots involved in this suit; that she asked Mr. Walthour about them, and he said they belonged to Mr. Cox. Her husband asked if he had any idea what Mr. Cox wanted for them, and Mr. Walthour said he did not know, but lie imagined about $2,100. They told Mr. Walthour to find out what he would take for them, and that thereafter her husband conducted the negotiations, and that she signed the notes, but did not notice the name of the payee and never noticed the name of the grantor when the deeds were delivered to her; that she did not inspect it more closely because she thought Walthour would do the right thing; that she signed the notes'and made the payments; gave the money to her husband, and that it was her own money; that it was on a Saturday in July when they looked at the lots.

R. C. Pratt testified, in substance, that he went out with his wife and* Walthour, and they did not like tlaÉ lots first shown them, but they saw these lots, and Walthour told them there was not a chance to get price down below $2,100, and suggested that Pratt mqH an offer, and he did make an offer of $1,850. He sigiMI the contract, but did not remember seeing the name S Bailey on it; he placed confidence in'the bank to loo« after his affairs, and just signed the contract and paia no attention to it. He said that Walthour later came tel the house and said that Cox had accepted their offer. Hj gave him a check for $1,105, the balance to be paid $2 a month. They did not have the abstract examined. He carried the deeds home and put them in a trunk, and did not look at them; did not notice who the grantor was. Later he began to investigate, after he had a conversation with Mr. Cox, and looked over the papers, and saw Bailey’s name on the notes, and that was the first thing he knew of Mr. Bailey. He never read the contract. He never let his eyes get above the bottom line; he just signed the papers.

Contract was introduced, showing the agreement to purchase the lots for $1,850, the payment of $1,100 in cash, and the balance at $25 a month. Cash payment of < $100 was put up to bind the contract.

Tipton Cox testified, in substance, that he owned the lots, and that Mr. Walthour came to him, or called him over th'e ’phone, asking him what he would lake for the lots, and he told him $1,500, and finally agreed to take $1,400 net. This was allowing a commission to Walthour of $75. He said Pratt was buying it, that is, he mentioned the name of Pratt. It seems, when the deed was made, he said the deed would be made to Mr. Bailey, as there Avas some financing to be done. At the time he signed the contract he did not notice to Avhom he Avas making the offer; he Avals paid $1,400, and never paid any attention to the contract. The conversation Avas that Pratt Avas buying the lots to put a brick veneer house on, that was one of the considerations. There was some talk about making the deeds to Bailey on account of some ^financing, but he never gave that any thought. The Beeptanee of the offer from Bailey Avas dated July, 20. Be had not, prior to this time, listed these lots with him B>r sale. Walthour merely called him up and asked what pe would take for these lots. He had sold some lots to fWalthour prior to this.

* The defendant testified, in substance, that he Avas the manager of the real estate department of the W. B. Woi-then Company, and works on a commission basis, part of which goes to the bank and part to him; that he met Mr. and Mrs. Pratt on Saturday morning, July 20, look them out and showed them his lots. They did not like them, and, coming back, they came by lots 1 and 2, and Mr. and Mrs. Pratt said they were nice lots, but he told them that he did not own them, and the party who owns them wants $2,000 or $2,100, and he had just sold them for Cox the day before to J. S. Bailey. He bought them for an investment. Bailey is the 'brother-in-law of AValthour. He did not tell Pratt who owned the lots, but ho thought that, made no difference. He never at any time told them that Cox owned lots 1 and 2, or that he was negotiating for them to buy these lots from Cox. They never agreed at any time to pay him anything for finding the lots for them. He wrote this contract that Pratt signed; he told him if he would make an offer for $1,850 he could possibly get it through for him; that it was customary in real estate transactions to put, up some earnest money. He did not say to buy the lots from Cox or Bailey, and did not ask who they belonged, to. They never at any time agreed to pay any commission for his services. He was representing Bailey, and Bailey paid him a commission of $92.50, that is all the commission he made except the $75 commission on the sale from Cox to Bailey. There was no connivance or scheme between him and Bailey, as charged in the complaint, and the charge that they were in collusion, he says, is untrue. It was a straightout sale. There were two sales.

J. S. Bailey testified} in substance, the same as Walthour with reference to the purchase of the lots, and that there was no collusion.

The above statement of the evidence is sufficient to show the issues and the contentions of the parties. The jury rendered a verdict in favor of the plaintiff for $350. Defendant filed its motion for a new trial, which was overruled and exceptions saved, appeal to the Supremo Court prayed and granted.

The appellant earnestly contends that there is no evidence to show that he was the agent of appellee, and that, for that reason, the court should have directed a verdict in his favor. As to whether he was the agent of Mrs. Pratt is a question of fact properly submitted to tlxo jury, and, under tbe facts as developed in this case, the jury might have found either way. They might have found that there was no agency. They however found that the agency did exist, and there is some substantial evidence to support this finding, and their finding of this fact is binding on this court.

It has been held many times that the findings of a jury on questions of fact, where there was any substantial evidence to support it, could not be disturbed by this court. It is not necessary, in order to establish agency, that the evidence show any express agreement.

“It is not essential that any actual contract should subsist between the parties or that compensation should be expected by the agent; and while the relation, in its full sense, invariably arises out of a contract between the parties, yet the contract may be either express or implied. /* * * Whatever evidence has a tendency to prove an agency is admissible, even though it be not full and satisfactory, and it is the province of the jury to pass upon it. Direct evidence is not indispensable — indeed, frequently is not available — but, instead, circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject-matter of'the contract.” 21 R. C. L. 819-820.

“While the relation of agent and principal cannot be presumed and cannot be established by the acts or declarations of the agent in assuming authority, yet such relation and the authority of the agent, if the relation can be proved, can be shown by circumstances as well as bv- positive proof.” Moore v. Ziba Bennett & Co., 147 Ark. 216, 227 S. W. 753.

In the case at bar the evidence tends to show that the appellee requested appellant to see the owner of the lots, and appellees testify that the appellant told them it was Mr. Cox; that an offer of $1,850 was made; that afterwards appellant told appellee the offer had been accepted, a contract was signed, and afterwards deeds were executed and mpney plaid. Tipton Cox testified that, when Walthonr came to him or talked to him, he understood that Pratt was purchasing the lots, or that Pratt was the one making- the offer, and that he was to make the deed to Bailey because is,ome financing was- to be done. We think the evidence sufficient to support the verdict of the jury finding that there was in fact an" agency.

It is also earnestly contended by the appellant that iliere was no evidence of fraud or collusion, but this was also a question of fact for the jury, and, if there is any substantial evidence upon which to base the verdict, it cannot be disturbed by this court, and we think there -was substantial evidence from which the jury might have found that the appellant was the appellee’s agent, and, while acting as her agent, purchased the property from Mr. Cox for $1,500, and had the deed made to Bailey and then conveyed to appellee for $1,850. The appellant contends that there is no fraud, and that the court committed error in its instructions, because the suit was based on fraud. We cannot agree with appellant in this- contention. The complaint does not. allege fraud in so many words, but it alleges that, instead of having the deed executed to plaintiff, the defendant purchased the property foi; himself through one Bailey, who, in collusion and connivance with the defendant, purchased the property in his name for the sum of $1,500, and thereafter Bailey conveyed the property to Elsie Pratt for the sum of $1,850.

These are the allegations of the complaint, and there was sufficient evidence upon -which the jury based its verdict. Like the question of agency, it -was a question of fact, and a finding by the jury either way would have been conclusive.

Appellant insists that the instructions requested by him and refused by the court should have been given, but we think the court properly instructed the jury, and that it is unnecessary to set out at length the instructions given by the court or those requested by the defendant. What we have said about the manner in which agency may be established answers the argument with reference to defendant's first objection to the first-instruction given by the court.

Defendant also contends that the instruction assumed that defendant made a secret profit. We do not think the instruction assumes that he made a profit, but it states to the jury that, whatever secret profits, if any, they find, etc., thereby leaving it to the jury to determine the question not only of agency but also as to whether there was a secret profit.

He also objects to the instruction because he says that he was entitled to represent both Cox and Bailey and entitled to a commission from each. There is no doubt but that he was entitled to represent anybody he wished and charge, a commission for representing them, but the question here is whether he was representing the appel-lee, and whether he made a secret profit, and these questions were both submitted to the jury, and its verdict settles these questions against the appellant. It was not necessary to prove fraud in order to entitle plaintiff to recover in this case. It is the duty of an agent representing a principal to faithfully represent that principal and to be loyal and faithful to his interest, and he cannot acquire any interest for himself in opposition to the interest of his principal. And the fact that an agent acts gratuitously and without commission does not relieve him of liability for wrongful acts or negligence, whether they amount to fraud or not.

“Everyone, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect, to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of common-sense and honesty, as well as of law. The agent is not entitled to avail himself of any advantage that his position may give him to profit beyond the' agreed compensation for his services. He may not speculate for his gain in the subject-matler of (lie employment. He may not use any. information that he may have acquired by reason of his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.” 21 it. C. L. 825.

We do not think the statement of the court, excluding from the consideration of the jury all elements of fraud except as the court instructed them, was prejudicial. As we have already said, it is not necessary to prove fraud, and the court so told the jury. The instructions of the court correctly submitted the questions in controversy to the jury, and the evidence was sufficient to support the verdict of the jury, and the case is therefore affirmed.


source: Caselaw Access Project

author: McITaney, J.

license: Public Domain

text:
    Scott v. State.
    Opinion delivered April 11, 1927.
    1. Bastards — nature of bastardy proceeding. — A prosecution for bastardy is a civil action, though properly brought in the name of the State and prosecuted by the .prosecuting attorney, and a petition for change of venue must conform to the procedure in civil cases.
    2. Appeal and error — general exceptions to evidence. — Exceptions assigning error in admitting each and all the testimony admitted over appellant’s objection, and excluding each and all of the testimony offered by defendant and excluded by the court, held too general.
    3. Bastards — evidence.—In a bastardy prosecution, evidence that one doctor suggested to another that they get some person with money “to lay this child on” so they could get their fees, held properly excluded.
    4. Bastards — evidence.—In a bastardy prosecution, evidence as to the position in which sexual intercourse was consummated, whether standing or lying down, was competent, and should have been admitted.
    5. Bastardy — evidence—nonaccess of husband. — In a bastardy prosecution, the prosecuting witness, being married, could not testify as to nonaccess of her husband.
    0. Bastards — instruction disapproved. — In a bastardy prosecution, where it appeared that the complaining- witness was married at the time of conception, an instruction that the presumption of legitimacy may be overcome by evidence, was erroneous in failing to require evidence of nonaccess of husband.
    V. Bastards — non access of husband — burden of proof. — Evidence to charge defendant with paternity of a married woman’s illegitimate child must show the impossibility of her husband’s access by a preponderance of the evidence.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    reversed.

      U. C. May and White & White, for appellant.

      R. W. 'Applegate, Attorney General, Kineannon & Kincaunon and Evans £ Evans, for appellee.
   McITaney, J.

This is a bastardy prosecution against appellant, begun on the first day of July, 1925, at Paris, in the Northern District of Logan County, on a complaint of Mabel Freeman, charging that appellant is the father of a bastard child born to her on the 9th day of January, 1925, and praying that ho be retpiired to pay the lying-in expenses and a monthly sum for the support of said child. The case was tried before a jury in the county court, which resulted in a mistrial, and was tried again on the 21st day of September, resulting in a verdict and judgment against him. An appeal was duly prosecuted to the circuit court, where appellant filed a petition for change of venue, which was overruled, and he was again tried by a jury in the circuit court, which resulted in a verdict and judgment against him for the sum of $15 lying-in expenses, and $3 per month for the support of the child for a period of seven years. Appellant, in due time, filed his motion for a new trial, which was overruled by the court, from which he prayed and was granted an appeal to this court.

The first assignment of error urged for consideration here is that the court erred in overruling his petition for a change of venue. Appellant seems to have regarded this case as a criminal prosecution, as his petition and affidavits for change of venue appear to have been drawn -with the requirements of the criminal statutes in view, rather than the procedure for a change of venue in civil cases. This court has several times held that a. bastardy proceeding is of a civil nature, although properly brought in the name of the State and prosecuted by the prosecuting attorney. Wimberly v. State, 90 Ark. 514, 119 S. W. 668; Belford v. State, 96 Ark. 274, 131 S. W. 953; Chambers v. State, 45 Ark. 56; Pearce v. State, 55 Ark. 387, 18 S. W. 380.

At common law the mother was required to support her bastard child, and not the father, but the statutes of this Stale (§ 772 et secy., C. & M. Digest), give the mother of such a child the right to require the father to contribute to its support, and implies an obligation and a promise on his part to help support it, and this court has held that she can enforce such a promise based upon moral obligations and a legal liability. Davis v. Herrington, 53 Ark. 5, 13 S. W. 215. Therefore a bastardy proceeding is a civil.action, and a petition for a change of venue in such a case would come under the provisions of law applicable to changes of venue in civil eases. Section 10341, 0. & M. Digest. However, we have examined the evidence on the question of the change of venue, and find that there was no error in overruling the motion. It would unduly extend this opinion to set out such evidence, and no useful purpose could be served thereby.

It appears from the evidence that the prosecutrix, Mabel Freeman, has a living husband, from whom she was separated at the time, but not divorced, he living at Hon, in Scott County, and she residing at Magazine, in Logan County, but having visited at Hon in June or July, where she saw her husband several times.

Many proper exceptions were saved to the admission, over appellant’s objections, of testimony offered by the State, and for the refusal of the court to admit certain evidence offered by appellant, and to cross-examine the prosecuting witness, Mabel Freeman, in certain respects, with particular reference to the testimony of Mabel Freeman of non-access to her husband.

These objections and exceptions were attempted to be preserved by appellant in his motion for a new trial, as follows:

“Nine. Tlie court erred and committed separate and several errors in excluding each and all the testimony admitted by the court over the objection and exception of the defendant.

“Ten. The court committed separate and several errors in excluding each and all of the testimony offered by the defendant and excluded by the court.”

In paragraph nine, the word “excluding” is used when we think counsel intended the word “admitting” instead, but, even though the assignment be changed by substituting that word, still both assignments would be too general to bring before the trial court any particular objection and exception relied on, either in the admission or exclusion of testimony. It does not point out any particular testimony which was admitted or excluded by the court ovpr the objection and exception of the defendant, nor does it name any witness whose testimony is complained of, and the assignment is therefore too general to raise any question on the admission and exclusion of evidence for consideration by this court. .

In Lomax v. State, 165 Ark. 386, 264 S. W. 823, Hie assignment was “because the court erred in admitting testimony which was incompetent, irrelevant and immaterial to Hie issues involved in said cause.” This court held that such an assignment.was loo indefinite, and, in .disposing of the matter, said:

“This court has frequently held that a motion for a new trial on the ground that the court erred in admitting evidence on the part of the defendant, 'without naming the witnesses or pointing out the evidence, is too general, and does not present any question for review on appeal” (Citing cases).

To the same effect see Armstrong v. State, 171 Ark. 1136, 287 S. W. 590.

While we cannot reverse the ease on these assignments of error, and because it is reversed on another ground hereinafter set out, we deem it proper-to state that many of the exceptions, both to the admission and exclusion of testimony, were proper. We do not, however, think there was any error in the exclusion of the testimony offered on the part of appellant by witness, Dr. Ewing, that Dr. Miller suggested tliat they get some person with money to lay this child on, so that they could get their fees. But Ave are of the opinion that the questions asked by appellant’s counsel as to the position in which the sexual intercourse Avas consummated, whether standing up or lying doAvn, Avas competent, and should have been admitted.

On the question of non-access, the prosecuting witness cannot testify to non-access to her husband, as has been held by this court several times. In Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A. 1916B, 1052, Ann. Oas. 1917 A 1029, this: court said:

“Under our statute, the mother is a competent witness in all cases of bastardy, unless she be legally incompetent in any case. It is not necessary that her testimony be corroborated. She may testify to any facts tending to prove the illegitimacy of the child, except the single fact of non-access of her husband.”

The reason for the rule, as stated by the court in this case, is as follows:

“But avc are in full accord with the doctrine that, on the ground of decency and morality and as a matter of public policy, a husband and wife should not be permitted to testify to non-access in affiliation proceedings. For, Avhen they so testify, they proclaim their own lechery and their infidelity to each other, and reveal secrets that are so purely delicate and personal as to make it grossly indecent to advertise them to the world. By so doing they not only scandalize the sacred marital relation, but they cast a cloud upon the life of the unoffending child, and subject it to handicaps and embarrassments that are always most hurtful and most difficult to overcome. In the interest of society and for the benefit of the innocent offspring, this should never be permitted.”

Again, in this same case, the court used this language: “She may testify to facts which tend to prove that access on the part of her husband within the period of gestation was impossible, and, if slie testified to facts of that character, there would be a question for the court or jury trying the issue to determine as to whether or not the presumption of legitimacy had been overcome. But, in this, case, there is no such testimony. She does not testify to any fact that would warrant the conclusion that her husband did not have access within the period of gestation.”

This case was followed in the later case reported in the same volume, page 408, [174 S. W. 1196], Liles v. State ex rel. Johnson. In this ease the court said:

“The witness was permitted to testify, over appellant’s objection, that she had not cohabitated with Stevens, her husband, for more than four years, at the time the appellant had the sexual intercourse with her. ’ ’

The court reversed that case for the admission of such incompetent testimony.

In the case of Jacobs v. Jacobs, 146 Ark. 48, 225 S. W. 23, the court again followed the above cases, and there said:

“Nothing is allowed to impugn the legitimacy of a child, short of proof by fact showing it to be impossible that the husband could have been its father. This is the general rule on the subject.”

It was agreed that the. husband of the prosecuting witness resided at or near Hon, which was about thirty miles from Magazine, where she lived at all times within the period in which.the child could have been begotten. Therefore it is a matter of common knowledge that access of her husband was not impossible. We have made this statement in view of the complaint made against instruction No. 1, given on the court’s own motion, to which a proper exception was made and a proper assignment preserved in the motion for a new trial. This instruction is as follows:

“Gentlemen of the jury, the only question for you to determine is whether or not Charles E. Scott is the father of the bastard child of Mrs. Freeman, the prose-cutrix. If a married woman gives birth to a child, the presumption is that it is her husband’s. This presumption may be overcome by evidence, and that is a question for you to determine in this case.”

This instruction did not correctly declare the law, and it was not cured by any other instruction given by the court. It did not go far enough in defining the kind of testimony required to overturn the presumption that the husband of a married woman is the father of her child. Some instruction similar to appellant’s requested instruction No. 9 should have been given'to cure the defect in instruction No. 1 on the court’s own motion, with the words “clear and abiding” stricken out. The requested instruction is as follows:

“If you should find from the testimony that the said Mabel Freeman gave birth to a child, on or before the time alleged in the complaint, and that, at the time the said child was or might have been begotten, the said Mabel Freeman had a living -husband residing within a radius of 20 or 25 miles from her, she at Magazine, Arkansas, and he at Hon, Arkansas, although living apart from her, before you can convict the defendant of being the father of said child you must find from a fair preponderance of the testimonjr, to your clear and abiding satisfaction, that the said husband of her, the said Freeman, did not have access to his said wife, and did not, during such period of conception, have any acts of sexual intercourse with his said wife.”

In this view of the case it must be reversed, and remanded for a new trial; but we deem it proper to say' that, on a retrial, the evidence of non-access of the husband must be such as to convince the jury, by a preponderance of the evidence, of the impossibility of access. The evidence in the record before us is not sufficient to establish this fact.


author: McIíaney, J.

text:
    Primrose v. Brown.
    Opinion delivered April 11, 1927.
    1. Fences — failure to maintain division fence. — On failure of an adjoining landowner to maintain his half of a division fence, as required by Crawford & Moses’ Digest, §§ 2535-6, 4654, he became liable to the adjoining proprietor for damages sustained by the latter to his stock by reason thereof.
    2. Justices of the peace — jurisdiction.-—A suit between adjoining landowners for $90 damages to stock occasioned by defendant’s failure to maintain his half of a division fence is not a suit involving damages to real property, but to recover a damage to personal property, and is within the jurisdiction of a justice of the peace.
    Appeal from Benton Circuit Court; W. A. Dickson, J udge;
    reversed.
    Appellant pro se.

   McIíaney, J.

Appellant, Con Primrose, brought this action in the justice of the peace court of Benton County, alleging that he is in possession of an eighty-acre tract of land adjoining a tract of eighty acres owned by appellee in Benton County, between which property there is a division fence; that the cost of maintaining said division fence should be equally borne by appellant and appellee; appellant kept up his half of the fence, and that appellee has failed, neglected and refused to keep up the other half of said fence, and that Iris stock turned in on his premises would get through the unrepaired portion of the devision fence and be damaged thereby, and that hev had been damaged by reason of her negligence in the sum of $90 “in caring for and looking up his stock, and in the actual damage done to the stock as aforesaid.”

On the trial of this case in the justice of the peace court he recovered $20, from which an appeal was taken by appellee to the circuit court, where she filed a motion to dismiss for want of jurisdiction in the justice of the peace court, and the court sustained said motion, dismissed his cause, and he has appealed to this court.

There is an obligation in law resting on joint owners or users of a division fence to equally maintain same. Section 4654 of Crawford & Moses’ Digest reads as follows :

“When any person shall inclose land adjoining another’s land already inclosed with a fence, so that any part of the fence first made becomes the partition fence between them, in such case the charge of said division fence, as far as it is inclosed on both sides, should be equally borne and maintained by both parties. ’ ’ See also §§ 2535 and 2536 of C. & M. Digest.

By failure of appellee to maintain her half of the division fence she would be liable to appellant for whatever damage he sustained to his stock by reason thereof. This suit does not involve damages to real estate, which would not be within the jurisdiction of a justice of the peace, but is to recover a damage done to personal property.

The judgment of the circuit court in dismissing appellant’s complaint was wrong, and it is therefore reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Prince v. Alford.
    Opinion delivered April 4, 1927.
    1. Appeal and error — directed verdict — presumption.—Where a verdict is directed against appellant, the Supreme Court will give the testimony and the inferences reasonably dedueible therefrom the interpretation most favorable to him.
    2. Landlord and tenant — construction of lease. — Where a lease was prepared by the landlord’s attorney, any doubt as to its meaning should be resolved against the landlord.
    S. Landlord and tenant — jury question — breach of lease. — In a suit for damages for breach of a lease, the question whether a deed from the landlord to a third person was not in fact a mere subterfuge adopted to defeat the lease held for the jury.
    4. Landlord and tenant. — Where a landlord ■ and his grantee collude to defeat the tenant’s lease by a conveyance from the landlord to such grantee, both are liable to the lessee for breach of the contract.
    5. Vendor and purchaser — notice of tenant’s rights. — Although a lease, recorded but not acknowledged, was not constructive notice to a purchaser, it could be considered in determining whether the purchaser had actual notice of the lease before purchasing.
    6. Vendor and purchaser — possession of tenant as notice.- — Possession of the premises by the tenant is notice to the purchaser of the reversion of the tenant’s actual interest under the lease.
    7. Landlord and tenant — notice of tenant’s rights — jury question.- — In a suit by a tenant to recover damages for breach of a lease contract, the question whether one who purchased the leased premises did so with notice of the tenant’s rights held, under the evidence, to be a question for the jury.
    8. Landlord and tenant — covenant for renewal of lease. — An unconditional covenant for renewal of a lease is a covenant real which runs with the land, and is binding upon a subsequent purchaser with notice, as a covenant to renew a lease is a part of the lease and fixes the term thereof.
    9. Landlord and tenant — breach of contract of lease — persons liable. — Where a purchaser of land took title -with notice of the lease, he became liable with the lessor for a breach of the contract of lease.
    10. Landlord and tenant — breach of lease — damages.—The measure of damages for breach of a contract of lease by the lessor is the difference between the actual value of the leasehold estate and the agreed rental that was to have -been paid therefor.
    11. Landlord and tenant- — breach of lease — action.—Where a landlord extinguishes the tenant’s term by a wrongful conveyance, the tenant had a cause of action against him for damages to the value of the term, based upon the wrongful destruction of the term.
    Appeal from Mississippi Circuit Court, Cliickasawba District; W. W. Bandy, Judge;
    reversed.

      Frank C. Douglas and C. L. Summers, for appellant.

      Nelson & Crawford, for appellee.
   Smith, J.

On December 3, 1923, J. T. Alford was the owner of lot 17, in block 33, of the- original survey of. the city of Blytheville, at which time he entered into a lease contract for a period of two years for the lot described with D. L. Downs. The lease began January 1, 1924, and provided that the lessee 'should pay a rental of $6 per week. The lease contract contained the following provisions:

“It is further agreed that, when first party gets ready to build a new building upon said lots, he shall give second party ten days’ notice thereof, and second party hereby agrees to vacate said premises at once and deliver the same to first party. It is further agreed that, if first party constructs a new house upon said lot, then second party shall have the refusal of renting the same for a period of two years from date of .completion at the rental price of $50 per month, payable in advance.

“Signed in duplicate on this the 3rd of December, 1923.

“ J. T. Alford, first party.

“D. L. Downs, second part.

“Lease transferred satisfactorily. When old building is torn out the rent stops until new building is completed.

“ J. T. Alford to W. 0. Prince.”

W. 0. Prince purchased the lease from Downs, with - (he consent of Alford, as is shown by the indorsement made on the lease itself, and the lease was assigned to him by Downs on April 19, 1924. Alford did not erect the building mentioned in the lease, but sold the lot to T. E. Reeves, who did erect a building consisting of two rooms. Reeves tendered one of these rooms to Prince at a monthly rental of $50, but Prince declined the offer, and demanded possession of both rooms, or the entire building, at that rental. This demand was refused by Reeves, who thereupon rented the rooms to separate tenants for $50 per month each.' Prince then brought this suit against Alford and Reeves to recover damages for the breach of the contract, and alleged as the measure of his damages the difference between the agreed rental and the rent reserved, and judgment therefor was prayed.

Prince testified that he bought the lease with Alford’s consent, and paid rent to Alford, and, after doing so, Alford stated that he had never read the lease after it had been executed until the night before the conversation between them. While it is shown that Prince paid the rent on the.lease, it is not clear whether he took actual possession and occupied the house thereon. Alford proposed that a new contract be written, but Prince declined to change the old one. Alford then asked if Prince construed the contract as giving him all of the new building which Alford contemplated erecting, and, when Prince stated that he did so construe the contract, Alford stated that he would not erect a new building. Alford then conveyed the lot to Peeves, who discussed the matter with Prince and asked Prince how much he had invested. Prince declined to answer the question, whereupon Reeves said he would erect a building with a front of ten feet. The old building on the lot was twelve feet wide by twenty-six feet long. Prince paid $650 for the lease, and told Reeves that he claimed the right of possession to the lot for the term of the lease, and Reeves answered that he (Reeves) was perfectly safe, as he did not go into anything blindly. It appears that, when the original lease was made, both parties thereto knew that the building on the lot had been condemned under an ordinance of the city and would have to be torn down and removed. After Reeves bought the lot he erected a building twenty-six feet wide and ninety feet long on the lot, and Prince demanded.possession of the new buicling, and tendered $50 in payment of the first month’s rent. This demand was refused. There was substantial corroboration of the testimony of Prince, in addition to the lease itself, which was offered in evidence.

Alford admitted the execution of the written lease, and that he had it prepared by his attorney. He stated, however, that it was his plan to erect two buildings, or one building with a partition wall. Did not remember telling Reeves that Prince claimed the entire lot before selling to Reeves, but admitted telling Reeves what Prince contended for before the building was erected. Alford admitted that he had an interest in the building, but did not state what that interest was.

Reeves testified that he bought the lot from Alford, who had nothing to do with the erection of the building. He spoke to Prince about, the building, for the reason that he wanted to suit Prince, and that Prince “blew up” when he mentioned the matter to him. Reeves testified that he knew nothing* about the lease until after he had bought, the property, although he admitted that an abstract was furnished him. He did not state whether the lease was shown on the abstract or not, although the lease was of record. The lease had never been acknowledged.

At the conclusion of the introduction of the testimony the court directed the jury to return a verdict in favor of both Alford and Reeves, and from the judgment pronounced thereon is this appeal.

Inasmuch as a verdict was directed, against appellant, we must give the testimony and' the inferences reasonably deducible therefrom the interpretation most favorable to him. It may also be said that, inasmuch as appellee, Alford, had the lease prepared by his attorney, any doubt as to its meaning should be resolved against him. Buffalo Zinc & Copper Co. v. Hale, 136 Ark. 10, 206 S. W. 661.

When the testimony is thus viewed, it may be said that there was a question for the jury, as is contended by appellant, whether the deed from Alford to Reeves was not in fact a mere subterfuge adopted to defeat the lease. The relation between Alford and Reeves and the admission by Alford, which was not explained, that he had an interest in the building, notwithstanding the fact that he had. conveyed the lot on which it was erected, authorized the submission,of the question whether Alford and Reeves had colluded to defeat the lease. If they did so, both would be liable for that reason.

But appellant’s right to recover damages against either Alford or Reeves, or both of them, is not dependent on the affirmative finding that the deed was collu-sively executed. They may both be liable upon another ground which the testimony sufficiently raises for submission to the jury.

Eeeves may have bought with notice of the lease, although he did not buy collusively. It has been said that the lease was not acknowledged, although it was recorded, and, even though it would not therefore be constructive notice, under § 3 525, 0. & M. Digest, this fact may be considered in determining whether Eeeves had actual notice before purchasing the lot. Eeeves admitted that he had an abstract of the title made before purchasing, and in this way he may have acquired actual knowledge of the lease. The testimony of Prince tends to show that Eeeves had actual notice both from himself and from Alford of the existing lease. We have said that it is not clear whether Prince was in the actual possession of the lot when Eeeves purchased. If so, this possession was notice.

At § 10 of the chapter on “Landlord and Tenant” in 16 E. 0. L., 538, it is said: “It is a general rule that the possession of a tenant is notice to a purchaser of the reversion of the actual interest of the tenant * * V’

The syllabus in the case of First National Bank of Paris v. Gray, 168 Ark. 12, 268 S. W. 616, is -as follows: “The possession of a tenant or lessee is not only notice as against a subsequent mortgagee of all his rights and interest connected with or or growing out of the tenancy or lease, but is also notice of all interests he may have acquired through subsequent or collateral agreements.”

The question whether Eeeves purchased with notice should therefore have been submitted to the jury, and, if the finding b}r the jury be made that Eeeves -purchased with notice, then he is liable if Alford is liable\

In the case of Crane v. Patton, 57 Ark. 340, 21 S. W. 466, the factte were that Paddock executed to Patton a certain writing, which the court construed to be a lease, under which Patton had the right to cut and remove certain timber. Thereafter Paddock conveyed the land to Crane, who denied Patton the right to cut and remove the timber, and Patton sued Crane for damages. Upon the trial of the case the court instructed the jury as follows: “2. Tf the defendant, at the time of his purchase from Paddock, know7 that plaintiff was in possession or control of the land, it w7as his duty to make reasonaUle inquiry as 1o what right or authority he had such pc-session and the extent of his rights on the land, and is chargeable with knowledge of whatever he might have learned by such inquiry.” There was a verdict awarding damages to Patton, and, upon the appeal, the instruction set out was approved. The court, through Mr. Justice Hemingway, said: “The rights of the lessee are vested, not determinable at the will of the lessor; and a sale during the term of the lease, to one having notice of it, could not extinguish it.”

It is true the lease did not require Alford to erect a new building, and his grantee was under no duty to do so. But the lease did convey the lot for the term of two years, and gave the right of possession for that period of time, whether a new7 building was erected or not, the rental to be increased if a new7 building were constructed.

If, because of the uncertainty whether, a new building would be erected, the lease should be construed as being merely a covenant to renew the lease for the portion of the two years then unexpired at the increased rental, the rights and liabilities of the parties would not be changed, because the law7 is that an unconditional covenant for renewal in a lease is a covenant real which runs with the land and is as binding on a subsequent purchaser as is the lease itself. This is upon the theory that a covenant to renew a lease is a part of the lease and fixes the term thereof. Cases cited in the note to the case of Neal v. Jefferson, 41 L. R. A. (N. S.) 387, fully support this statement of the law.

At § 402 of the chapter on “Landlord and Tenant,” in 16 R. C. L., 897, it'is said: “It is the well-recognized general rule that the benefit of the lessor’s covenant to renew7 runs with the leasehold estate and is enforceable by an assignee; and, as a corollary of this rule, after a lessee has assigned the term, he loses his right to enforce the renewal, as such right has passed to his assignee.”

In tlie ease of Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L. R. A. 1916E 1227, the Supreme Court of Mississippi isaid: “The covenant to renew or extend the lease in the ease at bar ran with the land, and could he availed of by the assignee of the lessee as a matter of law. PLowever, this right was earned into the face of the lease. This provision could 'also be enforced against the lessor or his assigns or grantees. Therefore appellee, Norton, having-notice, both actual and constructive, of the provisions of the lease, and actual notice of the intention and purpose of appellant to avail of tlie extension covenant therein, the same is enforceable against him.” See also Leominster Gaslight Co. v. Hillery, 197 Mass. 267, 83 N. E. 870, where a syllabus reads as follows,: “Where a deed conveyed property subject to a lease of part of the premises, the grantee took the property subject to the rights of the lessee secured by the lease, including a covenant running with the land to renew the lease at the expiration of the term.”

It follows therefore that, if Beeves took title to the lot with notice of the lease, he is jointly liable with Alford for any damages resulting from the breach of the contract, and the measure of such damages is the difference between the actual value of the leasehold estate that should have been enjoyed and the agreed rental that was to have been paid therefor. Neal v. Jefferson, supra; Wakin v. Morgan, 165 Ark. 234, 263 S. W. 783; Reeves v. Romines, 132 Ark. 599, 201 S. W. 822.

So far we have considered the joint liability of Alford and Beeves. If it be found that Beeves is not. liable, because he took title to the lot without notice of the lease, the individual liability of Alford remains to be considered, and we think his liability is shown by the undisputed testimony.

In Williams v. Young, 81 Atl. 1118, it was said by the Court of Errors and Appeals of New Jersey that, where a landlord extinguishes his tenant’s tern; bv a ■wrongful conveyance, the tenant, has an action against liim for damages to tlie value of the term, based upon the wrongful destruction of his term.

The lease here involved has now expired, and, upon a new trial, which must be ordered (in the absence of testimony excusing Alford’s breach of the lease contract), the jury will assess damages against Alford under the measure herein announced.

The judgment of the court below will therefore be reversed, and the cause remanded for a new trial.


author: Kirby, J.,

text:
    Casey v. Douglas.
    Opinion delivered July 11, 1927.
    1. Highways — establishment of new roads. — Acts 1923, p. 490, amending Crawford & Moses’ Dig., § 5249, as to the mode of establishing new roads, expressly excepted Benton County, thereby leaving § 5249 in force in that county.
    2 Highways — establishment—taking property without compensation. — In the establishment of new roads under Crawford & Moses’ Dig., § 5249, county courts cannot disregard any applicable provision of the Constitution, including the provision against the taking of property without compensation, or the provisions of Amendment 11.
    3. Highways — establishment—authority of circuit court on appeal. — In a proceeding to establish a new road, under Crawford & Moses’ Dig., § 5249, the circuit court on appeal can exercise no greater power or authority than was within the jurisdiction of the county court. .
    4. Highways — establishment of new road — validity.—A judgment of the circuit court on appeal in a proceeding to establish a new road which materially changed the route adopted by the county court and made the location dependent on many contingencies as to procuring the right-of-way, payment of damages by certain individuals, release from others, and always upon the existence of sufficient funds in the county treasury, held erroneous, since the order establishing the road should be definite and not contingent upon conditions that may not be met or performed for a long or indefinite time or not at all.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      ‘ STATEMENT Rif THE COURT.
    A. >S. Casey and thirteen others filed their petition in the Benton County Court, praying the court to lay out and establish a county road as follows:
    “Beginning at Healing Springs and running westerly on and along the right-of-way of the Kansas City &• Memphis Bailway to the town of Highfill, Arkansas.”
    On December 27,1924, the court made an order establishing the road as prayed for, thirty feet in width, and ordered that certain stock-ways or crossings be built at three of the farms through which the road ran, naming the owners. J. M. Douglas et al., on February 5, 1925, hied an affidavit and bond for appeal in the circuit court, which was 'granted by the county court on the 3d day of March, 1925.
    The i!emonstrants filed an answer, denying the necessity for the road, showing another road already existing which would take care of the public need for the highway, and that their proposal could not be established without great public expense, and that certain portions of it extended into townships whose road funds were already being exhausted, and that the road established could not be paid for.
    Demurrer was filed to this answer, and then the petitioners filed the response, denying the allegations of it.
    It seems that two appeals were taken from the county court, and that, at the March term of the circuit court, the appeals were consolidated by consent of the parties,' and, after a motion made to dismiss the appeal of J. M. Douglas et al., to which a reply was filed, the circuit court, December 31, 1925, made final order providing for the opening of the road, changing the route very materially from the location by the county court on the end of the road coming into the town of Highfill.
    Various propositions of citizens for contributions toward the construction of the road and procuring the right-of-way necessary for the road as changed were accepted in the circuit court judgment, and orders made for the completion of the improvement when it could be done with funds collected and realized in some of the different road districts through which the proposed road was laid out.
    Appellant’s attorneys say of this judgment: “The circuit court in this case has laid out and established a road that no one asked for. To' permit this would be to allow the circuit court to lay out and establish roads without any citizen asking for it.”
    From* the .judgment of the circuit court the appeal has been prosecuted to this court.

      John Nance and W. 0. Young, for appellant. -

      Sam Beasley and McGill & McGill, for appellee.
   Kirby, J.,

(after stating the facts). This road was attempted to be laid out under the provisions of § 5249 Crawford & Moses’ Digest, which has been held to be constitutional, and to provide an independent method of authorizing the laying out and establishment of roads without giving notice, appointment of viewers, etc. Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260; McMahan v. Ruble, 135 Ark. 83, 204 S. W. 746. This statute has been amended by act No. 611 of the Acts of 1923, approved March 23, 1923, which was in force when this proceeding' was begun. The amending statute' included all that part of the old statute that was to become, the law under the amendment, but from its provisions were expressly excepted Benton and other counties of the State, which necessarily had effect, according to the majority opinion, to leave the law, so far as relates to Benton- and the other counties excepted from the terms of the. amending statute as provided in said § 5249, and as though no amendment to said section had been made, since it is expressly provided that such amendment shall not relate to. the excepted counties. .

The county courts, when,establishing new roads or laying out old roads under the authority of said § 5249, cannot ignore any of the applicable provisions of the Constitution, and, in exercising the power conferred upon it by that statute, cannot disregard the constitutional provision that “private property shall not be taken, appropriated or damaged for public use without compensation therefor,” nor disregard the mandates of Amendment No. 11, but must exercise its authority in conformity with, both the said provisions of the Constitution as interpreted by this court. Independence County v. Lester, post, p. 796.

The circuit court on appeal could exercise, of course, no greater power or authority than was within the jurisdiction of the county court, and, in making its order, not only departed materially from the route proposed and established by the lower court, but made the location of the néw road dependent upon many contingencies as to procuring right-of-way and payment of damages by certain individuals, releases from others and always upon proposition that the road as laid out should not be constructed unless and until there should be funds enough on hand in the county treasury to pay for all damages for right-of-way taken for the purpose. It could not have been made a valid order establishing the road that would have authorized the taking the lands of any owners required therefor without compensation first paid, as held in Independence County v. Lester, post, p. 796.

New roads are to be laid out and established only when the public convenience, as shown under the forms of law provided therefor, requires it shall be done, and, when such necessity is shown to exist, then the order' should be made- laying out and establishing the road definitely, and not contingent upon conditions that may not be met or performed for a long or indefinite time, nor at all.

More contingencies are recognized and attempted to be provided against in the order of the circuit court laying out the road and changing the route materially from that adopted by the county court than will permit the establishment of the neAV road with that degree of certainty required by law, and its judgment is reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


author: McHaney, J.

text:
    Fulton Ferry & Bridge Company v. Blackwood.
    Opinion delivered April 11, 1927.
    1. Bridges — jurisdiction of the county court. — Acts 1925, authorizing the State Highway Commission to build a toll bridge across a navigable river to connect with the existing highway held not invalid within Const., art. 7, § 28, giving the county court exclusive jurisdiction of county bridges, either because the act fails to provide for approval of the bridge plans by the county court or for the county to take over its control on its completion.
    2. Bridges — tolls no tax on public. — An exaction by way of tolls on users of a toll bridge is not a tax on the general public, being a tax only on those who use the bridge.
    3. Bridges — delegation of power to construct. — The Legislature may delegate to the State Highway Commission the .power to construct or improve and maintain a toll bridge on an existing highway, without infringing on the jurisdiction of the county court.
    4. Bridges — validity of franchise to build toll bridge. — Where two adjoining counties granted a franchise to build a toll bridge over' a navigable boundary stream upon a condition precedent that the consent of the Federal Government should be obtained, which was denied when Congress granted a conflicting franchise to the State Highway Commission by act of February 4, 1926, the consent of one party to the franchise granted by the two county courts was lacking, and neither party thereto was bound.
    5.' Eminent domain — authority of state to condemn conflicting franchise. — Under Acts 1925, p. 384, authorizing the State Highway Commission to build a toll bridge over a certain navigable river, and to condemn lands and any existing franchise necessary to the construction of the bridge, the Highway Commission was authorized to condemn and take over lands, and any existing franchise, rights or easement necessary therefor.
    6. Eminent domain — delegation of power. — Whenever public convenience or necessity is involved, the Legislature may delegate to a public agency the right of condemnation of property.
    7. Bridges — reasonableness of time limit. — A time limit of five years to begin construction of a county bridge held unreasonable."
    8 Constitutional law — contracts subject to right of eminent domain. — Exercise by the State of the right of eminent domain does not interfere with the inviolability of contracts for the reason that all property is held by tenure from the State and all contracts are made subject to the law of eminent domain.

      Appeal from Pulaski Chancery Court; T. M. Mehaffy, Special Chancellor;
    affirmed in part.

      J. D. Head and Rose, Hemingway, Cantrell S Lough-borough, for appellant.

      H. W. Applegate, Attorney General, O. A. Graves, W. H. Arnold, W. H. Arnold, Jr., and David G. Arnold, for appellee.
   McHaney, J.

On December 15, 1923, the county courts of Miller County and Hempstead County, Arkansas, by separate identical orders, granted a franchise to J. B. Shults and George T. Conway to build a toll-bridge across Red River, a boundary stream between said counties, “at the point where the improved road from Texarkana to Hope now crosses said river at the town of Pulton, or at such other point for crossing said river by a changed route of said highway as may be found necessary for engineering purposes, or as may be required by Government authorities in the interest of navigation.” Said courts made separate findings of fact, in identical language, to the effect, that such bridge would be of great benefit to the citizens of these counties, the State and that part of the traveling public having occasion to cross Red River at said point; that the expense of such a project was too great and burdensome for the counties and for the adjacent property, if taxed therefor; and that the petitioners were suitable arid competent persons to do so. Said courts, based on said findings, entered their separate orders granting to said Shults and Conway, “their heirs, executors, administrators and assigns,” “the exclusive right, privilege and franchise to construct, maintain and operate a toll-bridge for highway purposes over and across the Red River at said point,” some of the conditions thereof being as follows: that same shall be in force and effect for 49 years; that the exclusive privilege shall extend for three miles on either side of said bridge, measured along the channel; that said courts'will not grant a franchise to build a bridge to any other person on said rivei: in said three miles for the term of 49 years, nor will said courts build such a bridge, either separately or jointly; that no ferry license «ball be granted in said distance for said term; that the right to sell, assign and transfer is granted on certain conditions; that the rate of tolls shall be from 5 cents for pedestrians to $1 for automobiles, driver, and not exceeding seven passengers, with special rates for trucks of $1 for 1 y2 tons and $1 additional per added ton; that said rates cannot be changed for a period of twenty years, and then only on a joint agreement of both courts, and, if they cannot agree, the chancery court may fix them, and then they must be fixed to grant a “reasonable and proper return per annum upon the investment in said bridge,” approaches, abutments, etc., allowance for depreciation, cost of operation, repair, etc; that they shall begin construction in three years after acceptance of the franchise, and shall complete same in three years after construction begins, but time for completion may be extended by said courts ' on proper showing; that they shall, within two years from date, execute a bond for $10,000 to the county clerk of Hempstead County for the use and benefit of Hempstead County, “conditioned for the beginning and completion of said bridge within the time hereinbefore mentioned, otherwise this franchise to be null and void. ” A number of other conditions and stipulations are contained in said orders, but we do not deem it necessary to set them out here. On the same date, December 15, 1923, Shults and Conway accepted said franchise in writing to each of said courts, and, on the same day, appropriate orders confirming such acceptance were entered by each of said courts.

The franchise above mentioned was assigned by Shults and' Conway to the appellant, Fulton Ferry & Bridge Company, a corporation, and on October 6, 1924, the county court of Hempstead County, on the petition of appellant, .extended said “franchise and privilege,” as above granted, “fora period of two years from and after the date of the approval- of Congress and other governmental body, granting the said Fulton Ferry and Bridge Company the right to construct said bridge, and if the said Fulton Ferry & Bridge Company does not start construction of said, bridge in two years from date of said approval of Congress and other governmental bodies, then this franchise is to be null and void; otherwise to remain in full force and effect as called for in said franchise. ” The county court of Miller County made substantially the same order on October 20, 1924, with this proviso: “Provided that, if the said Fulton Ferry & Bridge Company does not start construction of said bridge within two 3rears from the date of said approval by Congress and other governmental bodies, then said franchise is to become null and. void; otherwise to remain in full force and effect, as called for in said franchise; provided further, this extension shall terminate upon the expiration of five years from date hereof, in any event, unless the construction of said bridge shall be sooner begun. ’ ’ These orders of extension were made upon petition which said: “Tour petitioner shows to the court that it has endeavored, in good faith, to begin the construction of said bridge, and to that end has secured the ■introduction in the Congress of the United States a bill authorizing the building and construction of said bridge, but that so far it has been unable to secure the passage of said bill or to secure authority to begin the construction of said bridg’e from the proper authorities of the United States Government, although it has made diligent efforts so to do; the said Red River being* a navigable stream, and the authority of the Congress to erect a bridge over and across the same being required by law.' Due to the fact that it required congressional authority or the passage of a bill authorizing the construction of said bridge before petitioner can begin work thereon, and the further fact that it has not yet been able to secure such authority * * * will not be able to obtain such authority for more than a year hereafter,” petitioner prays for an extension of two years ’ time.

At the special session of the Legislature in 1923, an act was passed and approved authorizing the above procedure. It is act 22, page 146, Special Session of 1923, entitled, “An act authorizing privileges for building toll bridges over watercourses between counties,” approved October 15,1923. Thereafter, at the regular session for 1925, an act was passed authorizing and directing the State Highway Commission to build a bridge across Red River in Hempstead and Miller counties, at a point within five miles of the Missouri Pacific Railway bridge across Red River at Fulton, Arkansas, not to cost exceeding $500,000,' including cost of condemnation of lands, purchase of any existing franchise, and all other expenses. This is act No. 136, page 384, Acts 1925, approved March 6, 1925.

This action was brought in the Pulaski Chancery Court by appellants, Fulton Ferry & Bridge Company, asserting rights under its franchise and as a property owner in both counties, and certain other property owners in said counties, against Herbert R. Wilson, Highway Commissioner, and the then members of the State Highway Commission, to enjoin them from taking any steps to build said bridge under act 136 of 1925. Dwight H. Black-wood, successor to Herbert R. Wilson, and the new-members of the Highway Commission, as successors to the former members, have been substituted as appellees here. Substantially the facts as above set forth relative to said franchise were set up, and it is charged, in addition, that act 136 of 1925 is unconstitutional and void, in that it is in conflict with § 28, art. 7, of the Constitution of Arkansas. Appellees filed an answer and cross-complaint, denying1 the invalidity of said act 136, and charging the invalidity of the franchise on many grounds, some of which will be hereafter referred to, and prayed that ■they be declared void, and that appellant be enjoined from asserting or making a claim under said franchise in conflict with the rights of appellees under act 136 of 1925, and under the act of Congress of 1926 granting to appellees the right to build said bridge.

The chancery court, after hearing all the evidence and-arguments of learned counsel, entered a decree dismissing the complaint of appellants and the cross-corn-plaint of appellees for want of equity, and both parties have appealed to this court.

The transcript in this case is a very large one, consisting of 1,622 pages, in four volumes. The evidence is directed very largely to. the question of whether Bed Biver at, above and below Fulton is navigable. The chancellor found that the preponderance of the evidence showed Bed Biver to be navigable at Fulton. Both parties to this litigation have so regarded it in the past —appellant, Fulton Ferry & Bridge Company, so regarded it when, in October, 1924, it petitioned the county courts of Hempstead- and Miller counties to extend its franchises in the language heretofore quoted; and appellees are so insisting here. Both parties have applied to Congress for authority to build this bridge, same being granted to the appellees by an act approved February 4, 1926, entitled “An act granting the consent of Congress to the State Highway Commission of Arkansas to construct, maintain and operate a bridge across Red Biver near Fulton, Arkansas,” and the authority of appellant to build same has been denied. We have also carefully examined the evidence on this question, and have reached the conclusion that perhaps the fair preponderance of the evidence is in favor of the findings of the chancellor — at least we cannot sa}r that it is against the clear preponderance of the evidence.

But we do not regard the question of the navigability of Bed Biver at Fulton of controlling importance in the case.

The serious and most important question we have to deal with in this case is the validity of act 136 of 1925, tested by § 28 of art. 7 of the Constitution of 1874, and the former decisions of this court construing said section of the Constitution. It is as follows:

“The county courts shall have exclusive original' jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective comities. The county court shall be held by one judge, except in cases otherwise herein provided.”

This section of the Constitution is found in article 7, which deals entirely with the judicial department and matters incidental thereto. The jurisdiction of the several courts is defined, from the Supreme Court on down to justices of the peace.

The act is too long to copy in full in this opinion. It authorizes and directs the Highway Commission to build this bridge; fixes the maximum cost; provides that it shall be a toll-bridge; fixes the tolls for ten years, and thereafter. to be fixed by the commission. Also that, when the bridge is paid for, it shall be toll-free, except sufficient to operate it and keep.it in repair. State and Federal aid are provided for, together with the power of the commission to borrow money to- pay the cost thereof. Section 5 is as follows:

‘ ‘ The State Highway Commission is given authority to borrow money in such sums as may be necessary to construct said bridge with the roads and approaches to connect said bridge with the existing highway from the city of Hope, in Hempstead County, to the city of Tex-arkana, in Miller County; and also to pay such sums as may be needed or necessary for the purchase or condemnation of lands for right-of-way for said bridge, roads and approaches, including the right to purchase or condemn any existing franchise, right or easement necessary in the construction of said bridge.”

Other provisions are for the sale of the notes or bonds, rate of interest and the security. A clause in § 8 provides: “Provided, however, that nothing in this act shall give the State Highway Commission authority to pledge the credit of any county or the State for the indebtedness incurred in building said bridge; and provided further, that the lands adjacent to said bridge, except approaches, shall not be liable fon any part of the construction price of said bridge for its maintenance, and tliat the bridge and its approaches, together with the tolls collected from said bridge, shall be the sole security for the notes or bonds herein authorized. And said bonds or evidences of indebtedness shall give notice in appropriate language of the limitations of the trust.”

■ It is earnestly insisted by learned counsel for appellant that the act is unconstitutional for the reason that it does not recognize the jurisdiction of the county courts of these counties, either in the approval of the plans or taking over its control on completion, and for the further reason that it provides for the payment of the cost of the bridge by tolls, which is an exaction on the general public.

■ Let us now examine this act carefully in the light of the former decisions of this court to determine whether this contention is logical and well founded.

In § 5 “the State Highway Commission is given authority to borrow money in such sums as may be necessary to construct said bridge with the roads and approaches to connect said bridge tuith the existing high-tvay from the city of Hope, in Hempstead' County, to the city of Texarkana, in Miller County.” It will therefore be seen that this bridge is to be built on an “existing highway” running through the State of Arkansas, from Memphis via Little Rock to Texarkana, and, as shown by the evidence, one of the main national highways, from the Atlantic seaboard on the east to the Pacific Ocean at San Diego, on the west. Who laid out this “existing highway from the city of Hope, in* Hempstead County to the City of Texarkana, in Miller County”? The county courts of Hempstead and Miller counties laid out this “existing highway,” and in doing so exercised their “exclusive original jurisdiction.” The county courts of both said counties have also laid out a site for said bridge. In making the orders granting appellant the franchise heretofore mentioned, they each provided that said bridge should be located “at the point where the improved road from Texarkana to Hope now Grosses said river at the town of Fulton.” The site for the bridge has therefore already been located by said courts, and in doing so they have exercised their constitutional jurisdiction.

It was further provided in said orders locating said bridge that it might be located at that point, ‘ ‘ or at such other point for crossing said river by a changed route of said highway as may be found necessary for engineering purposes or as may be required by Government authorities in the interest of navigation.” So it will be seen that thére has been an exercise of the constitutional jurisdiction of both county courts in making a definite location of said bridge with such deviation from the actual point as may be found necessary for engineering purposes or as may be required by Federal authorities in the interest of navigation, and the act of Congress granting this right to the Highway Commission recognized this necessity by providing that such bridge might be built within five miles of the Missouri Pacific bridge at Fulton.

Turning, now, to the decisions of this court on similar questions, we find the same contention made as urged here in a number of cases involving the constitutionality of acts creating improvement districts for the construction of roads and bridges on existing highways. Shibley v. Fort Smith & Van Buren District, 96 Ark. 410, 132 S. W. 144, decided in 1910, involved the validity of an act of 1909 creating an improvement district to construct a free bridge across the Arkansas 'River between Fort Smith and Van Burén, by levying an assessment on the property in the district to cover the cost- The Arkansas River is a navigable stream, and it is the boundary between Sebastian and Crawford counties. It was urged that the act was repugnant to § 28, aft. 7, of the Constitution in that it invaded the jurisdiction of the county .courts. In referring to the case of Road Improvement Dist. No. 1 v. Glover, 89 Ark. 513, 117 S. W. 544. the court said: “It was not held that the Constitution withholds from the Legislature the power to authorize the construction, as local improvements, of new roads to be paid for by assessments on property to be benefited, nor is tliere a justifiable inference to be drawn from the decision that the court should hold that the Legislature cannot authorize the construction of a bridge as a local improvement. The reason given by the court for the ruling Avas that to put the whole county into a road improvement district Avould be to substitute the commissioners or board of directors for the county court in the exercise of jurisdiction over the roads, and that it would be a usurpation of the county court’s jurisdiction to authorize the construction of a new public road as a local improvement and thrust it upon that court for maintenance as a part of the public road system of the county. We perceive no sound reason Avhy the Legislature may not, without trenching upon the jurisdiction of the county court, authorize the construction of neAv roads and bridges as local improvements. It does not impose upon the general public the burden of maintaining the improvement, nor does it fasten upon the county court the’ duty 'of supervising and maintaining the new road or bridge as a part of the internal affairs of the county. The statute hoav under consideration, by its express terms, is rescued from such an objection, for it provides that the county courts of said counties may take over and acquire the bridge after it has been constructed, and maintain it as a public highAvay, but that, in the event the county courts do not decide to take it over, then it' shall be maintained by levying annual assessments on the property benefited. It is left entirely optional with the county courts of the tAvo counties Avhether or not the control of the bridge shall be taken over, and this provision leaves unimpaired the jurisdiction of the county court over the bridge Avhen it has seen fit to exercise that jurisdiction.

“This conclusion leaves out of consideration the fact that the bridge is to span a navigable river Avhich is the boundary between two counties, and that it is not and can not be wholly within the jurisdiction of the county court of either county. The result would be the' same if it were a bridge to be erected Avholly Avithih the bounds of one oonnty 5 fox we axe of the opinion that, even undex those circumstances, its construction may he authorized as a local improvement. The construction of an improvement under those circumstances would not be an invasion of the jurisdiction of the county court.”

If the Highway. Commission builds this bridge, it will “not impose upon the general public the burden of maintaining the improvement, nor does it fasten upon the county court the duty of supervising and maintaining the new road or bridge as a part of the internal affairs of the county.” Eminent counsel for appellant stated, in oral argument, that, if the act in question had directed the construction of this bridge by the Highway Commission free of tolls, it would not be repugnant to the Constitution. We cannot agree that an exaction by way of tolls on the users of said bridge is a tax on the general public. It is a tax only on such part of the public as finds it necessary or convenient to use the bridge, just as the tax on gasoline is a toll charge for the privilege of using the roads. The gasoline tax is not a tax on the general public, but only on such part of the public as drive motor vehicles over the highways. If a person does not own an automobile he pays no tax. There are probably hundreds of persons in each county who will never have occasion to use this particular bridge, and will therefore pay no tolls. No funds of either county will ever be required, either in construction or maintenance, and no tax will be levied in either county for any purpose connected therewith. True, there is no provision in the act authorizing the county court to take over this bridge at any time, but such a provision is not necessary to its constitutionality, and it is contemplated that the State Highway Commission forever thereafter shall control, operate, repair and maintain same. In Conway v. Miller County Highway & Bridge Dist., 125 Ark. 325, 188 S. W. 822, the question was the authority of the 'immrovement district, embracing lands lying wholly in Miller County, to build roads and a bridge across Red River, at the same location as in this case, from the Miller County side to the Hempstead Comity side, and this court said: “Tlie fact that the bridge spans the boundary line oí the county does not make an invasion of the jurisdiction of the county courts of either of the counties.”

In Easley v. Patterson, 142 Ark. 62, 218 S. W. 381, this court said: “This statute does not, however, contain any provision that the plan for the improvement must be submitted to and approved by the county court, and it is contended that this constitutes an invasion of the county court’s jurisdiction. We have never had that question before us for decision, and now for the first time the question is squarely presented whether or not an improvement district created by statute can be authorized to make improvements on public highways without obtaining the. approval of the county court. Our conclusion is that the authority to improve a public highway does not invade the jurisdiction of the county court. The road is a public highway, but the improvement is for the betterment of the contiguous lands. The improvement of the road does not in any sense constitute an interference' with the general control of the county court over public highways. The authority of the board of commissioners is to bring about a betterment of the highway.”

And in Johns v. Road Improvement Districts of Bradley County, 142 Ark. 73, 218 S. W. 389, the court said: “It is not true, as contended, that the statute in question invades the province of the county court in authorizing the commissioners to lay out and improve roads not already established as public highways. In describing the various roads in the two districts, the statute does not in each instance refer to. the .roads as public highways, but it is fairly inferable that they were found by the framers of the statute to be public-highways, and there is no showing made in this case that they were not public roads; on - the contrary, the proof addiiced in the case shows that, they are public roads. It is not essential to the validity of the statute that they should be described therein as public roads.”

The effect of tlie holding of these decisions and various others that might be cited is that the Legislature may delegate to an independent agency, such as an improvement district, or to the State Highway Commission, the authority to take over, improve, repair and maintain an existing highway or a bridge thereon without trenching upon the jurisdiction of the various county courts of this State, so long as the proposed improvement exacts no tax from the general public and requires no expenditure of the county’s funds for such purposes. This does not in any way interfere with the jurisdiction of the county courts. While in many of the cases coming before this court it has not been the unanimous opinion of this court that the acts of the Legislature in question did not invade the jurisdiction of the county courts, none of the dissenting opinions have ever gone so far as to hold that the Legislature might not delegate to another agency of this State the power to construct or improve a road or bridge over an existing highway.' And from the decisions heretofore cited, and from many others too numerous to mention herein, we are of the unanimous opinion that the act in question, authorizing the State Highway Department to construct this bridge, does not invade the jurisdiction of the county courts of Hempstead and .Miller counties, either in the failure of the act to provide for a submission of the plans for same to said-county courts, or in providing for the taking over'of said bridge by said county courts. But the act does recognize the jurisdiction of the county courts, in that it provides that said bridge shall be located on the present highway from Hope, in Hempstead County, to Texarkana, in Miller County, and the provision therein for the exaction of tolls from the users of said bridge until same is paid for, and that thereafter it shall be toll-free except for the actual cost of maintenance, is not a tax upon the general public, but only on such part of the public as may find it convenient or necessary to use said bridge. The payment of tolls for the use of said bridge is no more a tax on tlie general public, indeed not so much so, as a tax on betterments assessed upon lands embraced in an improvement district created for the purpose of building such a bridge. The result of our deliberations is therefore that the act in question does not offend against § 28 of article 7 of the Constitution, and is therefore a valid exercise of legislative powers.

It is next suggested that, even “if act 136 of 1925 is valid and sufficiently operative to construct the bridge from a practical standpoint,- the contract rights of plaintiff set forth in the franchises are destroyed. ’ ’ Let it be conceded that, under §§ 10255-6-7-8 of Crawford & Moses’ Dig’elst, and by act '22 of the special session of .1923, which was passed before the granting of franchises in controversy, the county courts had authority to grant franchises to build bridges over county boundary streams, and the county courts of Hempstead and Miller counties have in this instance granted franchises, or a franchise, to appellant to build the bridge in question, still, since Red River at Fulton is a navigable stream, and, the consent of the Federal G-overnment being a condition precedent, such franchise or contract rights have not ripened into maturity. So far as the State of Arkansas is concerned, the franchises already granted appellant are valid, but the consent of Congress to the building of such a bridge by appellants having been denied by the passage of the act of February 4, 1926, granting the consent of Congress to the Highway Commission to, build said bridge, leaves the consent of one of the necessary parties to the contract lacking, with neither party bound by the terms thereof.

But, assuming for the sake of argument that Red River is not a navigable stream and that the franchises in question are entirely valid, still the Highway Commission would have the right, under act 136 of 1925, and under the general powers of condemnation in this State, to condemn and take over for public use not only the “lands for right-of-way for said bridge, roads and approaches,” but also “any existing franchise, right or easement necessary in the construction of said bridge.” The power of the Legislature" would not extend to the condemnation and taking over of such property, including franchises, for private use, nor could it transfer same to any other individual, firm or corporation, hut, whenever the public convenience or necessity is involved, the power of the Legislature to delegate to a public agency power of condemnation of private property for public use is supreme.

Furthermore, the franchise granted by Hempstead County is unilateral, and the time limit fixed in the Miller County part of .the franchise for performance is unreasonable. The time for commencement of the building of the bridge under the Hempstead County order was “extended for a period of two years from and after the dates of approval of Congress and other governmental body granting the said Fulton Ferry & Bridge Company the right to construct said bridge.” Appellant’s obligation therefore is conditioned upon its getting the approval of Congress and the consent of other governmental agency, and such approval and consent are too vague and uncertain to bind the appellant to ever construct the bridge or lo perform its part of the contract. In other 'words, there vras no mutuality of obligation. Slayden v. Augusta Cooperage Co., 163 Ark. 638, 260 S. W. 74; El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460; Grayling Lumber Co. v. Hemingway, 124 Ark, 354, 187 S. W.327; St. L. I. M. & S. R. Co. v. Clark, 90 Ark. 904, 119 S. W. 825.

The provision in the Miller County franchise contained in the order of extension provided that the “extension shall terminate upon the expiration of five years from the date hereof in any event, unless the construction of said bridge shall be sooner begun,” is unreasonable and void in that it requires nothing to be done toward the construction of said project for a period of five years. Whether the franchise would be void on account of the unreasonable time and tolls granted appellant in said franchise we do not deem it necessary to determine in this case. In the case of White River Bridge Co. v. Hurd, 159 Ark. 652, 252 S. W. 917, which was a case involving the right of the county court to fix the tolls on a bridge over White River, where the court had granted a franchise for a period of ten years, this court-said : ‘ ‘ Therefore -we have concluded that any apparent ambiguity in the statute is made certain when interpreted according to the evident purposes of the act, and . are of the opinion that the act conferred upon the county court the power, not only to grant the franchise, but to fix the toll for the first ten years of the life of the franchise. There is nothing in the record to show that the fixing of tolls for this period of time would be unreasonable or arbitrary.”

But, if we desired to go into this question, there appears to be ample evidence in tlie record that the return allowed by reason of the tolls fixed in the franchise, based upon an estimated cost of the bridge of $300,000 by eminent, engineers, would be an unreasonable exaction on the users-of said bridge, and it might be void for this reason. Since, from what we have said heretofore, it necessarily follows that appellants have acquired no valid rights by reason of the franchise attempted to be granted by the county courts of Hempstead and Miller counties, it becomes unnecessaiy to go into this question fully.

This is the view of the matter taken by the Supreme Court of the United States. In the West River Bridge Co. v. Dix, 6 Howard (U. S.) 507, it was held that a bridge owned by an incorporated company, under a charter from a State, may be condemned and taken as a part of a public road, under the laws of the State.

It was further held that, iu such a case, the charter is a contract between the State and the company, but, like all private rights, it is subject to the right of eminent domain in the State. The exercise of the right of eminent domain does not interfere with the inviolability of con.tracts, for the reason that all property is held by tenure from the State, and'all contracts are made subject to the right of eminent domain.

It necessarily follows, from what we have heretofore said in this opinion, that it is within the power of the Legislature to grant to the State Highway Commission, or to any other State agency, the right to enter upon, take over, construct, improve and repair any existing public highway as a part of the State highway system, and to construct, maintain and repair any bridges thereon, whether publicly or privately owned, so long as it does not involve the levying of a tax on the general public for such purposes, and, if privately owned, compensation for the taking of private property for public use will necessarily have to be made in accordance with the proceedings now provided by law.'

. The decree of ■ the chancery court is therefore affirmed, except in so far as it held that appellants have a valid franchise, and in this respect it is reversed and the cause dismissed.

Mehafpy, J., not participating.