text:
    Champion v. Williams.
    Opinion delivered July 7, 1924.
    1. Taxation — tax sale on wrong day. — Under act of February 19, 1869, providing that the county clerk, immediately after the' list of delinquent lands is returned, shall publish the same for at least three weeks and that the sale shall be held on the Monday next succeeding, a tax deed which recites that the delinquent list was filed on August 1, 1869, and that the sale was had on November 15, 1869, shows that the law was not complied with and that the sale was void.
    2. Taxation — construction op two-years statute op limitation. The statute of limitation of two years applicable to possession under a tax deed applies to any tax deed which sufficiently describes the land occupied and purports to convey the same, even though the deed is void on its face.
    3. Limitation of actions — estate in — remainder.—The rule that the statute of limitation does not begin to run against a remainderman or reversioner until the death of the owner of the particular estate applies, whether the adverse occupant holds under the life tenant, or under an independent claim of title, or as a mere trespasser.
    4. Taxation — entry under void tax deed. — While a tax sale, if valid, bars the right of all interested parties, those holding remainder interests as well as the life tenant, yet, when the sale is void, one who enters under the sale is a trespasser.
    5. Taxation — tax sale — forfeiture of life tenant’s estate.— Under Crawford & Moses’ Dig., § 10054, providing that, if a life-tenant shall neglect to pay taxes on the land and shall not redeem from the sale, “such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate,” no forfeiture of a like estate results from a void sale for taxes.
    6. Quieting title — conclusiveness op decree confirming title.— A decree confirming a title to land, under Crawford & Moses’ Dig., § 8362 et seq., is conclusive on collateral attack against all persons, whether named as parties or not, and whether life-tenants or remaindermen, except for jurisdictional defects shown on the record.
    7. Quieting ‘ title — necessity of bond. — The requirement of a bond in proceedings by constructive process under Crawford & Moses’ Dig., § 6261, has no application to proceedings under Craw- - ford & Moses’ Dig., § 8362 et seq.

    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Lee Secimster, for appellants.
    1. Since the deed of J. B. Booth to Mary F. Champion conveyed to her a life estate, with remainder to the heirs of her body, on her death, the land descended to the appellants, her children. 44 Ark. 458; 95 Ark. 18; 116 Ark. 233; 117 Ark. 366; Id. 34. The tax deed exhibited by the defendants shows on its face that the tax sale was void because held on a day not authorized by law. 54 Ark. 666. The failure to levy taxes malíes a tax sale absolutely void. 100 Ark. 488. And the sale of real estate on a day not fixed bv law is “an entire omission to sell. ” 55 Ark. 549; 90 Ark 256; 89 Ark. 139; 99 Ark. 500.
    An affidavit of tender of taxes paid by the defendants was therefore not necessary in this case, since the complaint does not attack the tax title, and the defendants set it up as a defense and are using it as a shield to protect their possession. 43 Ark. 398, 411. Since the appellants did not acquire title until the death of the life tenant, it was the duty of the life tenant, or those in possession and receiving the rents and profits, to pay the taxes on the place, and that is an additional reason why no affidavit of tender was necessary. 33 Ark. 267; 44 Ark. 504: 98 Ark. 320; Annotated Cases, 1913E, 148; Id., 1916D, 321; 16 Cyc. 632; 137 Ark. 140, A tender is not required where it is known it will not be accepted, or where it is difficult to ascertain the proper amount, or where it would require an accounting to ascertain the amount. 74 Art. 343; 52 Ark. 132.
    2. The decree quieting title to the tract in controversy was void as to the plaintiffs for the reason that a decree affecting the real estate does not bar the remaindermen where they are not made parties. 23 R. C. L. 582, 583, 69 Ark. 539; 247 S. W. 708; 38 Ark. 167; 123 Ark. 347; 150 Ark. 594; 140 Ark. 367; 128 Ark. 342. The decree was void also for the failure of petitioners or plaintiffs in the decree to give a bond as required by statute. C. & M. Dig., § 6261, second subdivision; 126 Ark. 164.
    3. The court erred in holding that the statute of limitations had run against the appellants before they brought this suit. It is elementary that limitations never run against a party until a cause of action accrues. The authorities are uniform to the effect that no statute of limitations begins to run against a remainderman until the death of the life tenant, and, though the life tenant’s interest may be acquired by other parties, a remainder-man is not required to act until the life tenant’s death. Crawford & ‘Moses’ Digest, § 10054, contemplates a valid tax sale, and a void tax sale does not work a forfeiture to the remainderman. 80 Ark. 583; 95 Ark. 333. A new cause of action arises upon the death of the life tenant, the same as if no forfeiture had ever happened. 17 R. C. L. 650; 9 Am. St. Rep. 795, 800; 11 Am. Dec. 178; 97 Ark. 33; 140 Ark. 368; 128 Ark. 342; 83 Ark. 196, 200; 87 Ark. 428; 92 Ark. 143; 100 Ark. 399; Id. 488; 61 Ark. 36; 55 Ark. 192; 23 R. C. L. 991, § 160; 16 Cyc. 651, 652; Id. 567 § 116; R. C. L. 589 § 154; 148 Ark. 216, 219.

      Duty S Duty, for appellees.
    1. The failure to file an affidavit of tender, as ’ required by C. & M. Digest, § 3708, was a good defense, and, on appellee’s motion, the cause should have been dismissed. 23 Ark. 644. Douglas v. Flynn, 43 Ark. 398, relied on by appellants, has been explained, modified and overruled in a number of subsequent cases. 60 Ark. 499; 116 Ark. 115; 94 Ark. 490. A purchaser under a void deed who pays taxes thereunder and makes improve-meats is entitled to recover therefor. 99 Ark. 501; 92 Ark. 167; 120 Ark. 249.
    2. The tax sale of 1869, so far as the record in this case shows, was valid, and made on a day appointed by law, and after a proper levy. The court heard no evidence as to what was the proper day to make the sale in 1869. 69 Ark. 99.
    3. Appellants were barred by both the two-year and the seven-year statutes of limitations. As to the effect of a tax sale on the owner of the life estate, and on the estate in remainder, the effect of the purchaser going into exclusive and adverse possession, holding under a tax deed and paying taxes for over fifty years, see 91 Fed. 602; 29 So. 821; C. & M. Digest, §§ 10109, 10110, 10025,10054. 84 Ark. 1; 123 Akk. 537; 104 Ark. 108; 123 U. S. 747; 26 E. C. L. 403, § 360; 126 Ark. 86;. 84 Ark. 614; 129 Ark. 270; 129 Ark. 324; 77 Ark. 324; 20 Ark. 543; Id. 508; 60 Ark. 163; 79 Ark. 364; 78 Ark. 7; 71 Ark. 117; 140 Ark. 367. Two years’ adverse possession under a void tax deed will bar an action by the owner of the original title. 152 Ark. 368; 84 Ark. 140; 94 Ark. 490; 76 Ark. 447; 153 Ark. 620; 124 Ark. 379. A tax deed void on its face is also such color of title as will support the seven-year statute of limitations. 124 Ark. 379; 80 Ark. 82. Crawford & Moses’ Digest, § 6947, makes no'exceptions from its provisions, and there can be none in favor of remaindermen, minors or other persons under disability, except as to the right of infants to redeem within two years after attaining their majority. 53 Ark. 418.
    4. The estate of the life tenant in this case terminated long before her death. If the tax sale of 1869 was void, the life tenant was barred two years after the purchaser went into possession under the deed executed by the clerk in 1872. From that time her life estate was terminated, and, if her children had anv cause of action, it then accrued. 101 N. W. 195; 29 So. 821. One who has a vested remainder in land has the right to protect the estate, and may maintain an action for any injury to the inheritance committed or threatened, whether by the tenant in possession or by a stranger, as for taxes paid by tbe remainderman to protect tbe estate. 23 R. C. L. 579, § 136; 587, § 158; 556, § 103; 95 Ark. 18. See also 60 Ark. 499; 65 Ark. 70; 58 Ark. 151. The decree quieting the title recites proper notice, and cannot be attacked by appellants in this proceeding. It is conclusive against all parties, except those specifically excepted by the statute. Appellants were parties to that suit. 24 Ark. 519; 91 Ark. 95; 49 Ark. 336; 50 Ark. 188; 72 Ark. 101.
   McCulloch, C. J.

Appellants instituted this action in the circuit court of Benton County against appellees to recover possession' of a tract of land in that county containing forty acres. The land in controversy is shown to be in high state of improvement, and appellees and their grantors, immediate and remote, have been in actual possession thereof for more than fifty years, claiming to be the owners. Appellants deraign title back to the United States, and the immediate foundation of that' title is a deed, executed in the year 1859 by J. B. Booth to their ancestor, Mary F. Champion, the effect of which, under the statute (Crawford & Moses’ Digest, § 1499), was to convey an estate for life to Mary F. Champion, with remainder over to appellants. Mary F. Champion died on February 9, 1922, and this action was instituted shortly thereafter.

The material facts of the case are undisputed, being brought into the record either by agreement of counsel or by documentary evidence about which there is no dispute. The land was sold on November 15, 1869, for the taxes assessed against it for the year 1868. James Elam was the purchaser at the tax sale, and he assigned his certificate of purchase to John F. Owen, who received a tax deed from the clerk on December 30, 1872. Appellees deraign title by mesne conveyances back to John F. Owen. In the year 1906 M. L. Burns, who was then the holder of the title, under which appellees claim, and who is one of the remote grantors of appellees, instituted an action under the statute (Crawford & Moses’ Digest, §§ 8362 et seq.) to confirm her title, and a confirmation decree was rendered in accordance with the prayer of the petition. That decree and the record accompanying it was pleaded hy appellees in bar of the right of appellants to recover the land.

It appears from the agreed statement of facts that, at the time the land was conveyed by J. B. Booth in the year 1859, it was wild and unoccupied, and remained so until possession was taken by Owen under his tax deed in the year 1872. Neither Mary F. Champion nor any one claiming in her right ever occupied the land. Mary F. Champion and her husband removed to Texas in the year 1864, and remained there until they died, her husband’s death antedating her own death about ten years.

Appellees pleaded that they had a perfect title under the tax sale of 1869, and also pleaded the statute of limitations as a defense — the two-year statute under the tax deed, and the seven-year general statute of limitation. Crawford & Moses ’ Digest, §§ 6947, 6942.

Appellants attack the validity of the tax sale under which appellees claim title.

The case was tried before the court sitting as a jury, and the court found specifically that the tax sale was void, but found generally in favor of appellees. Appellants’ motion for a new trial was overruled, and they have prosecuted an appeal to this court.

The facts of the case upon all the issues presented are undisputed, and the question presented is whether the judgment of the court was correct or whether it was erroneous, irrespective of the particular findings made by the court.

The finding of the court that the tax sale to which appellees deraign title was void was, we think, correct. The validity of the sale was attacked on two grounds— one that it was made on a day not authorized by law, and the other on the ground that the amount for which the sale was made included school taxes, which it does not appear from the record were levied by the county court as provided by the statute in force at that time. The act of February 19, 1369, under which the tax sale in question was made, specified no fixed date for making tax sales, hut, on the contrary, contained provisions which rendered it impossible to determine, as a matter of law, whether the sale was made in accordance with the statute (McWilliams v. Bonner, 69 Ark. 99); however, the deed now under consideration contains recitals which show affirmatively that it was not made in accordance with the provisions of the statute. The deed recites that the delinquent list was filed with the clerk by the collector on August 1, 1869, and that the sale, after being duly advertised, was made- on November 15, 1869. The statute then in force (act of February 19, 1869, supra) provided that the clerk, immediately after the delinquent list was returned, should publish the same for at least three weeks, and that the sale should be held on the “Monday next succeeding.” ■ The recital in the deed that the collector’s delinquent list was filed on August 1, 1869, and that the sale was held oh November 15, 1869, shows affirmatively that the provisions of the statute were not complied with, and that the sale was void. Boehm v. Porter, 54 Ark. 665. In the ease just cited the collector had'filed his delinquent list -on-the first day of June, and the court said that “if the clerk had complied with § 14 of the act by publishing the list ‘immediately,’ the sale would necessarily have taken place hi June or July. So far, then, as appears from this record, the sale was at a later day than the law authorized.” The sale of the land was also void for the reason that the amount for which the land was sold included school taxes, which were not properly levied by the county court.

The judgment of the circuit court is defended by counsel for appellees on the ground that the right of action of appellants was barred by the statute of limitation — by each of the statutes pleaded. This contention is untenable, for the reason that, as appellants were the owners of the remainder interest in the land, subject to the life estate of their ancestor, Mary F. Champion, their right of action did not accrue until the expiration of t-he life estate upon the death of Mary F. Champion, and that neither statute of limitation began to run against them until that time. The two-year statute applicable to possession under tax deed applies to any deed which sufficiently describes the land occupied and purports to convey the same, even though the deed is void on its face for other reasons (Ross v. Royal, 77 Ark. 324; Dickinson v. Hardie, 79 Ark. 364; Black v. Brown, 129 Ark. 270), but the operation of that statute is subject to the restriction that it does not begin to run until a right of action accrues, and it does not begin to run against a remainderman until the expiration of the prior estate. It has long been the recognized rule of this court, reiterated in many decisions, that the statute of limitation does not begin to run against a remainderman or reversioner until the death of the owner of the particular estate. The cases on the subject are cited in the recent case of Hayden v. Hill, 128 Ark. 342, where we said: “This court has held in a long line of eases that the right of entry, and therefore the right of action, does not accrue to the remainderman or reversioner until the death of the owner of the particular estate.” The opinion in that case shows that there is no distinction between an instance where the adverse occupant holds under a life tenant or under an independent claim of title, or- as a mere trespasser. This rule was again reiterated in the more recent case of Kennedy v. Burns, 140 Ark. 367. Other eases not cited in Hayden v. Hill, supra, are Killeam v. Carter, 65 Ark. 68; Gannon v. Moore, 83 Ark. 196; Harris v. Brady, 87 Ark. 428; Smith v. Scott, 92 Ark. 143. The decisions in the following cases related to the application of the two-year statute: Gannon v. Moore, supra; Harris v. Brady, supra; Smith v. Scott, supra; Kennedy v. Burns, supra.

The tax sale, if valid, would have barred the right of all interested parties, those holding remainder interests as well as the life tenant, for the sale operated in rem, and all parties were bound by it; but, the sale being void, one who entered under the sale was a mere trespasser. Cotton v. White, 131 Ark. 273. So far as concerns tlie statute of limitation, it could not be put into operation against the remaindermen prior to the expiration of the estate of the life tenant merely because the entry was under a tax deed. Our conclusion therefore is that the judgment cannot be sustained on the ground that appellants were barred by the statute of limitation.

Attention is called to the statute (Crawford & Moses’ Digest, § 10054) which provides, in substance, that, if a life tenant shall neglect to pay taxes on the land so held, and shall not, within a year after the sale, redeem from the sale, “such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate,” and it is contended that the forfeiture of the land for taxes operated as a forfeiture of the life estate of the tenant in this instance, which set the statute of limitation in motion, and that appellants are barred for that reason. It has been decided by this court that, under the statute in question, no forfeiture of a life estate results from a void sale for taxes. Magness v. Harris, 80 Ark. 583. The life estate of Mary F. Champion under the deed was absolute and unconditional, and there was no contingency upon which the life estate ceased except the death of the life tenant, therefore the right of action of appellants as remaindermen did not accrue until the death of the life tenant.

We are of the opinion, though, that the judgment was correct for the reason that the title was duly confirmed by the decree of the chancery court in the proceedings which were brought forward into this record. The proceedings were under the statute heretofore cited, and appear to have 'been in accordance with the statute. It was not a proceeding to confirm the tax title, but to confirm the title generally under that statute. The record shows that the statute was strictly complied with, and the decree of confirmation recites proper notice. It is true that there were certain parties other than appellants named as defendants, but it was against all claimants of interest in the land, whether- named in the proceedings or not. The statute expressly authorizes such a proceeding, and also provides for the making of parties to the suit all individuals who are known to assert an interest, hut this does not lessen the effect as a proceeding against all persons who have an interest in the property. The statute (Crawford & Moses’ Digest, § 8363) provides that, if the petitioner for confirmation has knowledge of any person who claims an interest in the land, it shall he so stated, and such person shall be summoned as defendant in the case, and another section (8369) provides that the decree shall not affect adverse occupants or any persons who have paid taxes within seven years, unless such persons are made defendants. Known claimants may be made parties to the proceeding, and, to that extent, it becomes adversary, but, under the statute, as we have already said, the proceeding may be for the purpose of confirming against any and all claimants, whether known or not, and such was the effect of the proceedings in the present case. This is a collateral attack on the validity of the confirmation decree, but the decree on such attack is. binding against all parties, except for jurisdictional defects shown on the faee of the record. Clay v. Bilby, 72 Ark. 101. There are no defects in this record, and the decree is therefore conclusive on collateral attack. The confirmation decree is also binding on remaindermen as well as life tenants. Though remaindermen have no right of action for recovery of possession until the expiration of the life estate, yet they have an interest which they can protect from the binding force of a confirmation decree, and they are aa much bound by the confirmation decree as one who has a present right of action for recovery of possession.

Appellants contend that the decree was not binding on them for the reason that there was no service of-process on them, and that they were not directed to be made parties to the proceeding. The answer to this is that it is not essential that they should have been made parties to the record, as they were not in possession of the land and had not paid taxes on the land within seven years.

Again, it is contended, that the decree is void because no bond was given pursuant to the statute, which requires bond in case of judgment against nonresident defendants. Crawford & Moses’ Digest, § 6261. The statute just referred to does not apply to confirmation decrees, and no bond was required. The statute prescribing the procedure for confirmation of title (Crawford & Moses’ Digest, § 8370) provides that any person interested in the land which is the subject-matter of a decree of confirmation may appear within three years and set aside the decree upon showing a meritorious defense, and that persons under disability of infancy, lunacy, idiocy or coverture may appear and set aside the decree at any time within three years after the removal of such disability. The lawmakers, in framing the statute, manifestly determined that this section g*ave all the protection that interested parties were entitled to; at least there is no provision in this statute for the giving of a bond, and we cannot read any such provision into the statute by applying the provisions of the general statute with reference to adversary litigation against nonresidents.

Decree affirmed.

Hart, J., concurs on ground that limitation applies.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Collier Commission Company v. Wright.
    Opinion delivered July 7, 1924.
    1. Accord and satisfaction — jury question. — Where statements were furnished showing the net balance due on the purchase of carloads of peaches with check accompanying the statements,' but neither the statements nor the check showed on their faces that the check was tendered in full, it was a question for the jury to determine whether, under the circumstances, the tender was conditioned on its acceptance in full.
    2. Accord and satisfaction — instruction.—Where a cheek was tendered in full payment of a disputed claim and was accepted by the payee with knowledge thereof, it became an accord and satisfaction; and it was error to charge the jury that the acceptanee of the check would not constitute an accord and satisfaction if accepted by the payee as part payment.
    3. Sales — breach of purchaser — measure of damages. — On a breach by a purchaser of a specified number of carloads of peaches which the seller had arranged to procure from farmers and deliver to the purchaser, the seller is entitled to recover the difference between the net price he would have received from the purchaser and the cost of delivering the peaches under the contract.
    4. Sales — tender of performance — waiver.—A seller is not bound to make a tender of performance of a contract of sale which has been refused in advance by the purchaser.
    5. Sales — performance of contract. — Where a contract for the sale of a 'specified number of carloads of peaches stipulated that the purchaser would send an inspector to inspect the cars at the point of shipment, it was not error to instruct the jury that the purchaser would be liable for the peaches either if they were inspected and accepted by its inspector or if, not having been inspected, they were of the grade, quality and condition called for in the contract.
    6. Parties — right to sue for another’s benefit. — Under Crawford & Moses’ Dig., § 1092, a party may sue on a contract made in his own name, without making other interested persons or the persons for whose benefit the contract is made parties to the suit.
    7. Appeal and error — -judgment for excessive amount — reduction. — Error in awarding an excessive amount may he cured by reducing same.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed in part.

      Hill é Fitshugh, for appellant.
    1. Appellee was the sole plaintiff in the case. Floyd not only testified that he was a partner with appellee, but also testified to all the elements which go to make up a partnership. These facts having developed, appellant was entitled to the requested instruction to the effect that, if it appeared from the evidence that Floyd was interested in the contracts sued upon, either to the extent of an equal interest in the profits and losses, or to the extent of a half-interest in the profits, and would, in the event of a recovery, be entitled to receive a share thereof, he was a necessary party, and the verdict should be for the defendant, unless he had been made a party. C. & M. Digest, § 1089; 4 Ark. 616; 151 Ark: 209; 49 Ark. 100; 74 Ark. 54; 91 Ark. 52; 144 Ark. 621; 134 Ark. 368; 143 Ark. 439; 74 Ark. 437; 89 Ark. 412; 93 Ark. 447; 124 Ark. 143.
    2. Under the evidence, there was a clear accord and satisfaction as to three of the carloads of peaches involved. The utmost of Wright’s testimony as to his receipt of the statements and check in settlement for these cars is that he had a mental reservation that he would take what he got and not treat the check as full payment, but this will not avail him. He not only made no protest, but he accepted and cashed the check, which showed on its face that it was in settlement of the three cars, and was given to him with the statements showing the full amount due him according to these statements. 150 Ark. 197; 94 Ark. 158; 100 Ark. 251; 98 Ark. 269; 122 Ark. 212; 148 Ark. 512; 134 Ark. 36.
    3. The rule as to lost profits is predicated wholly upon one party to the contract being prevented from performing the same by the fault of the other. If he is not so prevented, there is no basis for damages for loss of profits, and if he is prevented by the fault of the other, then the loss is to be measured by the rule announced in Blade v: Hogsett, 145 Ark. 178,182.

      Warner, Hardin & Warner, for appellee.
    1. There is no defect of parties because of the failure to make Floyd a party plaintiff. There was no partnership existing between appellant and Floyd. Stone v. Biggs, 163 Ark. 211; 159 Ark. 621; 138 Ark. 281; 152 Ark. 465; 13 C. J. 701, § 805; 6 R. C. L. 882, § 270; 144 Ark. 8-10; 128 Ark. 149-154.
    2. The burden was oh the appellant to prove an accord and satisfaction, and, in order to do that, it was necessary to show either that there was an express agreement to accept the check as settlement in full, or prove such facts and circumstances as would necessarily lead to the conclusion that there was an agreement between the creditor and debtor, that such check was given and received as a full settlement of the claim. 156 Ark. 370, 374-5; 158 Ark. 512.

      3. Plaintiff is entitled to recover for loss of profits. 140 Ark. 73; 136 Ark. 231; 111 Ark. 474; 91 Ark. 180,192; 9 Exch. 354.
   Smith, J.

Appellee instituted this action against appellant to recover on alleged contracts for the sale of peaches — to recover the unpaid price of six carloads of peaches delivered under contract of sale, and to recover lost profits on several other carloads contracted to be sold and delivered, but which appellant is alleged to have refused to accept. There was a recovery below for the full amount prayed for in the complaint.

The principal controversy relates to the nature of the contract between the parties, appellee claiming that the contract was for sale of the peaches directly by appellee to appellant, whereas the claim of appellant is that the contract was that appellant should handle the peaches for appellee merely as broker, and not as purchaser. There was a sharp conflict in the testimony on that issue, and, as it was properly submitted to the jury, we must treat the verdict as conclusive.

The transactions between the parties now under consideration occurred in July, 1922. Appellee was cashier of the Bank of Lavaca, in Sebastian County, and was also interested in farming. Appellant at that time was engaged at Fort Smith in the grain and produce business. The parties entered into an oral contract for the shipment of four carloads of peaches at a stated price, and those cars were' inspected, shipped and delivered in accordance with the directions of appellant, and were fully paid for. There is no controversy in the case concerning the payment of the price of those cars. The only controversy is as to the character of the contract between the parties. The sale and shipment of those cars was only brought into the controversy by appellee for the purpose of showing what the contract was. After the delivery of those cars there was another oral agreement for the shipment of more cars, and these were shipped and paid for. Two more ears which were shipped have not been paid for, and the price of those two cars, one $600 and the other $589, making a total of $1,189, is involved in this suit. The cars were not shipped to appellant, but were shipped to dealers in Kansas City and other places — most of them to Baldwin-Pope Marketing Company, Kansas City.

The claim of appellant is, as before stated, that it acted as broker, and that these cars were shipped to Baldwin-Pope Marketing Company as purchasers.

The claim of appellee is that the sales were to appellant, and were shipped to the consignee under appellant’s direction.

Appellant contends, as a further defense to these two items, that there was a defect in the quality of previous shipments to the Baldwin-Pope Marketing Company, and that the price of these two cars was credited on the account of Baldwin-Pope Marketing Company against appellee for such shortage. This is but another way of contending that appellant was not the purchaser, but merely handled the shipments as a broker, and is not responsible as purchaser.

The finding of the jury on the issue as to the nature of the contract between the parties is necessarily conclusive as to the liability of appellant for these two items.

There was still another contract for the sale and shipment of fifteen carloads, and this action includes the-balance on the price of four carloads shipped and received under the contract. The net price of three of the cars amounted, according to the contention of appellee, to the aggregate sum of $1,431.25, and, after crediting the sum of $517.88 paid to appellee, it leaves a balance of $913.37. The price of the fourth car amounted, according to the contention of appellee, to the sum of $543.75, and, after crediting the sum of $122;91 paid by appellant to appellee after the commencement of this suit, it leaves a balance of $420.84. The contention of appellant is that the amount paid on the three cars was accepted by appellee under sueli circumstances as constituted an accord and satisfaction. The facts with reference to the payment on those three cars were that appellant delivered to appellee an itemized statement as to each one of the cars, showing the number of bushels of peaches, gross price, and the price per bushel, the freight, cost of icing, and commissions on each car, and showing the net balance of the price, after deducting the freight, expenses and commission. These statements were delivered to appellee with a check covering the aggregate of the three net amounts shown by the statements, and appellee received the check and statements without comment, and cashed the check. The present action was commenced a few days thereafter. The payment on the last car was made in the same way, except that it was made after the commencement of this suit. Counsel for appellant contend that the facts stated constituted, beyond dispute, an accord and satisfaction, and that the court should have given a peremptory instruction, at least as to the price of the three carloads embraced in the payment made prior to the commencement of the suit. We cannot agree with counsel in this contention, for neither the statements nor check delivered by appellant to appellee showed on their faces any statement that the payment was tendered in full, nor was any condition imposed on the face of the check or statements. Therefore it was a question of inference for the jury to determine whether, under the circumstances, the tender of payment was made on condition that it be accepted in full. Longstreth v. Halter, 122 Ark. 212; O’Leary v. Keith, 134 Ark. 36; Arkansas Z. & S. Corp. v. Silver Hollow Min. Co., 148 Ark. 512; Beeson-Moore Stave Co. v. Brewer & Story, 158 Ark. 512.

It is also contended that the court erred in its charge to the jury on this issue. Appellant requested the court to give instruction No. 9, which reads as follows:

“If you find from the evidence that the defendant, Collier Commission Company, rendered statements to the plaintiff, Lawrence Wright, of each of three cars of peaches sold by them, which statements purported to give the amount received' for the peaches, less the commissions, freight and icing charges, and showed a balance in favor of the said plaintiff, and each of said statements were accompanied by a check showing the identity of the cars for which the statements were rendered, and the said statements and the check were accepted by the plaintiff, Lawrence Wright, the check cashed by him, then you are instructed he cannot recover on account of said three cars for which said statements were thus rendered and check given and accepted by him. ’ ’

The court refused to give the instruction as asked, and modified it by adding the following: “Unless you find from the evidence that the checks were only accepted by plaintiff Wright as part payment, and, in that event, you should find* for plaintiff Wright such sum as the evidence shows is due him, if any.” Appellant objected to the modification, and saved exceptions.

The instruction as requested by appellant was erroneous, and the court properly refused to give it, for the reason that it stated in peremptory terms that the delivery and acceptance of the statements and check constituted an accord and satisfaction. This is not correct, for the reason, already stated, that neither the statements nor the check contained any condition that the payment was to be accepted in full, and the issues should have been submitted to the jury whether the payment, under the cir-cumstances, constituted an accord and satisfaction. O’Leary v. Keith, supra. The court could properly have refused the instruction and have given nothing in its place, for it was the duty of appellant to ask a correct instruction. But this the court did not do. On the contrary, the court modified the instruction by adding the qualification, “unless you find from the evidence that the checks were only accepted by plaintiff Wright as part payment. ’ ’ Appellant objected to this modification, and excepted to the action of the court in giving it. While, as we have said, appellant should have asked a correct instruction, his failure to do so did not deprive him of the right to object to an incorrect instruction on the subject covered by the instruction which he asked. The court might very well have refused to give an instruction on this question, for the reason that a correct instruction was not asked, but, having attempted to charge the jury on this question by modifying the instruction asked, a correct instruction should have been given.

The instruction as given was not a correct declaration of law, for it made the intention of Wright in accepting the check conclusive of its effect. Under the instruction, the jury would naturally, or very probably, have concluded that it was immaterial that appellant tendered the check in full payment of the item which it purported to cover if Wright did not, in fact, accept it as such, whereas the law is that, if the check was tendered in full payment of the disputed items covered by it, and Wright was so advised, it became an accord and satisfaction upon his acceptance of the check. Such is the effect of the authorities cited above.

The finding of the jury on the issue as to whether the sale was made directly to appellant as purchaser, or merely to' other purchasers through appellant as broker, is conclusive as to the liability of appellant for the balance due on these cars after crediting the amounts paid. But the jury’s finding as to whether there was an accord and satisfaction as to the three cars referred to in instruction No. 9 is not conclusive of that question, for the reason that this issue was not submitted under an instruction correctly declaring the law.

The remainder of the amount sued for and recovered pertains to the item of lost profits on account of the failure of appellant to accept the remainder of the fifteen cars covered by the last contract. Appellee relies for recovery upon the fact that there was a contract for a specific number of cars at a specified price, that appellant broke the contract by refusing to take any more cars after acceptance of a certain number, and that there was a difference between the stipulated price which appellant was to pay and the price at which appellee had' engaged the peaches from growers in the locality where he was operating, which said difference would have accrued' to appellee as profit on the consummation of the sale. It is also shown that there were certain expenses incurred by appellee in the performance of the contract, which constituted a loss to him on appellant’s refusal to perform the remainder of the contract. If, as contended by appellee,, there was a contract between him and appellant for the sale and purchase of a specified number of cars, which appellee had arranged to procure from farmers and deliver to appellant, and that appellant broke the contract, then appellee is entitled to recover, as his profits in the deal, the difference between the net price he would have received on the sale to appellant and the cost of delivering the peaches under the contract. Black v. Hogsett, 145 Ark. 178. 'The principal issue of fact, then; is whether or not, after having determined that there was a contract between the parties, appellant broke the contract by refusing to take the remainder of the carloads specified in the contract. There was a sharp conflict in the testimony on this issue, as upon others in the case. Appellant contended on this branch of the case, as well as on the others, that he did not purchase the peaches at all, but was merely a broker. He also testified that the dealer in Kansas City to whom shipments were being made refused to take any more cars .on account of the claim that the peaches were not of good quality. Mr. Collier, who testified in the case, testified that, after this controversy arose, he told his inspector, Plunkett, not to accept any more shipments, that the deal was off. Appellee testified that his contract was solely with appellant, and that he was ready and willing to complete the contract, but that appellant declared the deal off. The jury were warranted in finding from this testimony that there was a breach of the contract on appellant’s part.

It is suggested by counsel for appellant, in the argument, that appellee should have shipped the cars, or offered to ship them, in order to put himself in an attitude to recover damages, but this is not true, for the reason that appellant declined in advance to take any more cars, and appellee was not bound to go out and buy the peaches and load them into cars when he was notified in advance that they would not.be accepted. It is an elemental principle of law that a party is not bound to make a tender which has been refused by the other party in advance.

There are other assignments with reference to the rulings of the court in giving or refusing or modifying instructions. The evidence adduced in the case shows that, under the contract of sale, appellant was to send an inspector to inspect the cars at the point of loading and shipment. The testimony also shows that appellant did send an inspector, who inspected some of the cars, but that he had to cover a large territory and was not able to be present at the loading of each car. There was evidence tending to show that appellee took this matter up with appellant,' and it was agreed that the inspector should instruct the loaders, and should be present as often as possible when loading was being done.

The court gave, over appellant’s objection, the following instruction at the request of appellee:

“5. You are instructed that, if you find from the evidence that the defendant entered into a contract for the purchase of peaches from the plaintiff, by the terms whereof it was in part provided that the defendant should inspect said peaches at the loading points, and that, pursuant to the terms of said contract, if any, the defendant appointed an inspector for the purpose of inspecting and examining said peaches, in its behalf, at the time that they were loaded in the 'cars at the loading points, and that, said inspector, acting under the directions of the defendant and as its representative, did inspect said peaches and accepted same, then, even though you may find that said peaches were defective in quality, the defendant is not entitled to set up such defective condition, if any, in defense to the payment of the purchase price, if any, that remains unpaid for said peaches.”

Appellant requested the court to give the following instruction, which was refused:

“2. You are instructed that, if you find from the evidence that the cars numbered A. R. T. 10898 and A. R. T. 11419 were in fact sold to the defendant, and you further find that the peaches loaded therein were not of the grade, quality and condition called for in the contract between the parties, you must find- for the defendant. ’ ’

The court refused to give the instruction as requested, but modified it by adding the following: “Unless you further find that the representative of the Collier Commission Company accepted same for defendant Collier Commission Company; in that event you should find for plaintiff Wright such sum as you think may be due him. ”

Appellant requested the court to give instruction No. 5, which reads as follows:

“You are instructed that tlie plaintiff must prove by a preponderance of the testimony the contract as defined in the preceding instruction, and also, before he can recover upon any car sued for in the complaint, that said car was inspected by a representative of the defendant at the point of loading and was accepted by a representative of the defendant at the point of loading, as containing peaches of the grade, quality and condition called for in the contract, and, unless plaintiff establishes this by the preponderance of the testimony, you must find for the defendant, Collier Commission Company.”

The court refused to give the instruction as requested, but modified it by adding the words, “unless you should further find from the evidence that Wright had complied with his contract in quality of peaches and in loading the same, then you should find for the plaintiff Wright such sum as you may find from the evidence is due him.”

It is contended that these instructions as modified erroneously stated the applicable principles of law. We do not think so. It is true that it was agreed as a part of the contract that appellant would send an inspector to accept the cars at the point of shipment, but there was no agreement, so far as the evidence shows, that the decision of the inspector should be conclusive. It is not a case where parties have selected a disinterested third party to settle controversies arising during the progress of the performance of the contract. Appellant was to inspect the peaches for its own benefit, but, if the peaches came up to contract with respect to quality, appellant was bound to accept them. So the law was correctly stated, as a whole, that, if the peaches tendered were actually accepted by the inspector, then appellant was liable for the contract price, regardless of the quality of the peaches; and, on the other hand, if appellant failed to inspect, it was liable, regardless of such failure, if the peaches tendered and shipped were in fact of the quality specified in the contract. We are of the opinion that the case went to the jury upon instructions which were substantially correct.

Finally, it is contended that there was a defect of parties, in that another person — Floyd, by name — was a partner with appellee in the performance of the contract, and that he should have been made a party plaintiff. During the progress of the trial appellee introduced Floyd as a witness to establish the fact that the contract was complied with on his part. On cross-examination the fact was drawn out from him that he had an agreement with appellee whereby he was to share with appellee the work and expense of performing the contract, and was to share equally in the profits or losses. Appellant asked an instruction stating, in substance, that, if Floyd was a partner with appellee, the verdict should be in favor of appellant because of the fact that Floyd had not been made a party. The court refused to give that instruction. We are of the opinion that the court was correct in its ruling, and that, according to the undisputed evidence, appellee was entitled to sue on the contract without making Floyd a party to it. It is undisputed that, whatever the terms of the contract were, it was one solely between appellant and appellee. Neither party disputes that fact. This being true, appellee had the right to sue without making Floyd a party, even though the latter was interested in the performance of the contract, or even if he had been the sole beneficiary under the contract. Our statute provides that “a person with whom, or in whose name, a contract is made for the benefit of another * * * may bring an action without joining with him the person for whose benefit it is prosecuted.” Crawford & Moses’ Digest, § 1092. This court has often held that, under this statute, a party may sue on a contract made in his own name without-making other interested parties, or the persons for whose benefit the contract is made, a party. Shelby v. Burrow, 76 Ark. 558; Beekman Lbr. Co. v. Kittrell, 80 Ark. 228; Starnes v. Boyd, 101 Ark. 469; Winter v. Lewis, 132 Ark. 399. If, as some of the evidence tended to show, Floyd was a partner with appellee, he was a proper party in bringing the action and could have been joined, but he was not a necessary party, and his absence did not defeat the right of appellee, in whose name the contract was made, to recover.

The court’s error in giving modified instruction number five was prejudicial to appellant only to the extent of the amount found by the jury on the additional price of the three cars which appellant contends was covered by the accord and satisfaction. The additional amount over and above the amount paid on the accord is the sum of $913.37, as shown by the statement hereinbefore set forth, and the error may be eliminated 'by reducing the judgment to that extent and affirmed as so reduced. The right to recover the price of the three carloads of peaches involved in this part of the controversy may be adjudicated separately on the question of accord and satisfaction, and tbe cause will be remanded •as to that feature for a new trial. In all other respects tbe judgment will be affirmed.

Wood, J., dissents.


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

text:
    Hiter v. Harahan Viaduct Improvement District.
    Opinion delivered July 14, 1924.
    1. Highways — improvement district — description op boundaries. —The act creating the Harahan Viaduct Improvement District (Special Acts 1923, p. 1243) in describing the boundaries of the district as including “all of the real property in the limits of the St. Francis Levee District,” without a more particular description, contemplates that the boundaries shall be coextensive with the present boundaries of the levee district, and is not void for uncertainty.
    2. Highways — change in route — approval of county court.— The act creating the Harahan Viaduct Improvement District (Special Acts 1923, p. 1243) provided that the new viaduct should be constructed along substantially the route of the existing wooden viaduct, that the adoption of the route must meet with the approval of the county court, and that if, in the opinion of the board of commissioners, it was impracticable to construct a viaduct along the route of the present wooden viaduct they should have power to select another route for the construction of said viaduct. Held that the act did not contemplate that material changes in the route could be made without the approval of the county court, and was not invalid as invading the jurisdiction of that court.
    3. Highways — -improvement district. — In providing for the construction of a new viaduct to take the place of an old structure, the Legislature could provide that, as a part of the improvement, the old structure should be repaired and maintained at the cost of the improvement district, and that the acquisition of the old structure should be treated as a part of the new improvement to the extent of the unpaid indebtedness on it.
    4. Highways — improvement district — authority to incumber district. — Under- the act creating the Harahan Viaduct Improvement District, which provides that no liens shall be created “until three-fourths of the improvements shall be paid or provided by the United States Government, the State of Tennessee or some political subdivisions thereof, or some other outside agency” (Special Acts 1923, p. 1243, § 27), the intent was to forbid the incumbering of the lands of the district with the costs of construction in excess of one-fourth thereof, and that nothing should be done until the other three-fourths should be “paid or provided” from other sources.
    5. Highways — improvement district — preliminary expenses.— Under the act creating the Harahan Viaduct Improvement District (Special Acts 1923, p. 1243, § 25) the commissioners were authorized to do preliminary work to determine whether or not the improvement can be constructed within the limits prescribed in the act, and may issue certificates of indebtedness therefor, but not negotiable paper; but no separate taxes can be levied for the purpose of paying such indebtedness except in the event that the construction of the improvement is abandoned, in which case a levy of taxes may be made by the chancery court in a suit to wind up the affairs of the district.
    6. Highways — construction op act creating improvement district. — The. act creating the Harahan Viaduct Improvement District, in providing in § 6 that the district should repair the old viaduct and pay the remaining indebtedness of Crittenden County thereon, did not contemplate two separate projects, and contemplated only one assessment for the entire project, including the temporary maintenance of the old viaduct and the construction of the new.
    7. Improvement districts — authority to issue bonds. — Until the assessments have been made in an improvement district, so as to demonstrate that the cost of the improvement will not exceed the benefits, there is no authority to issue bonds or make other contracts looking to the construction of the improvement.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      L. C. Going, for appellant.
    1. The act takes from the county court its original jurisdiction to establish the route of the proposed improvement and lodges the same in the commissioners.
    2. The boundaries of the district are indefinite and uncertain, and lands are omitted which would be benefited, making the act an arbitrary exercise of legislative power.
    3. The finding of the Legislature that the lands would be benefited to the extent of the cost of the improvement, including the indebtedness of Crittenden County, is arbitrary, unreasonable and capricious.

      4. The acts of the commissioners in creating preliminary expenses and issuing certificates of indebtedness and in preparing to make an assessment, upon the lands to pay same are void.

      J. G. Brookfield and M. B. Norfleet, Jr., for appellee.
    The boundaries of the district are definite and certain, and include all lands in the levee district as of the date the present act went into effect. 103 Ark. 452. A district is not invalid because certain lands may be benefited which are not taxed. 139 Ark. 153; 133 Ark. 380; 139 Ark. 534; 141 Ark. 301; 146 Ark. 247; 155 Ark. 176. A legislative finding of benefits is in accordance with law. 239 U. S. 237. The district may lawfully pay .the outstanding indebtedness of Crittenden County under the following; authorities: 114 Ark. 360; 139 Ark. 347; 154 Ark. 551; 156 Ark. 267. See also 79 Ark. '233. The commissioners have the power to contract for and pay for preliminary expenses. 151 Ark. 47; they may issue negotiable notes. 152 Ark. 422. Section 26 of the act has been complied with in that three-fourths of the total cost has been provided from outside sources.

      A. B. Shafer, amicus curiae, for interveners.
   'McCulloch, C. J.

There is a bridge across the Mississippi River at Memphis, known as the Harahan bridge. It was constructed and is maintained-by a corporation for use primarily as a railroad bridge, but, under the requirements of the act of Congress authorizing its construction, provision is made for other modes of travel by vehicles or by pedestrians, and it is operated for those purposes as a free bridge. The Arkansas terminus of the bridge is in Crittenden County, and that county several years ago constructed a viaduct from the terminus of the wagonway of the bridge to the levee constructed and maintained by the St. Francis Levee District, so as to connect with the public highway and afford means for travelers to approach the bridge. The viaduct is a wooden structure, and Crittenden County still owes a large amount of indebtedness for the cost of the structure, estimated now to be about $100,000. The wooden viaduct was deemed to be insufficient for travel permanently, and the General Assembly of 1923 (Special Acts 1923, p. 1243) enacted a statute creating an improvement district comprising “all of tbe real property in the limits of the St. Francis Levee District, which district was organized and established as an improvement district under the act of February 15, 1893,” and designated as “Harahan Viaduct Improvement District,” for the purpose of constructing and maintaining “a viaduct as a public highway connecting the terminus of the wagonway of the Harahan Bridge spanning the Mississippi River at Memphis with the levee of the St. Francis Levee District opposite the same, and to maintain or have maintained said viaduct in a state of good repair.” The statute names the commissioners, provides means for electing their successors, authorizes the employment of attorneys and engineers, and also provides for the assessment of benefits to lands in the district, the levying of taxes thereon, the letting of contracts for the construction of the improvement, and the issuance of bonds to obtain money to hasten the work of constructing the improvement. The statute, in other words, provides a complete scheme for constructing and maintaining the improvement and paying for the same as in similar acts enacted in recent sessions of the Legislature for the improvement of roads and for other improvements. Sections 6 and 7 of the statute read as follows:

“ Section 6. The board of commissioners shall have the power to maintain and repair that part of the wagon-way of the Harahan bridge situated in Crittenden County, Arkansas, until such time as a new viaduct, contemplated under the terms of this act, is constructed, and the benefits to be derived therefrom by the lands in the district shall be considered and assessed in making the assessment of benefits, and to secure funds therefor the board shall have power to borrow money, issue bonds, and pledge the assessment of benefits conferred by this act for other purposes, and the repair and maintenance of such wagonway shall be considered as part of the work of improvement in the district.

“Section 7. As the construction of the viaduct, authorized by this act will destroy the use of the existing wooden viaduct, the district shall assume and pay the outstanding indebtedness of Crittenden County created in the construction of said wooden viaduct,' not yet due and unpaid, but in no event shall said board of commissioners assume and pay any indebtedness created in the construction of said wooden viaduct that is past due and unpaid.”

Section 8 of the statute provides that the new viaduct “shall be constructed along substantially the route now occupied by the existing wooden viaduct belonging to the said Crittenden County, if the same be a practicable route, in the opinion of said board, and if the same meet with the approval of the county court of Crittenden County; and if, in the opinion of said board, it is impracticable to construct a viaduct along the route of the present wooden viaduct, they shall have the power to select another route for the construction of the said viaduct.”

Sections 25, 26 and 27 read as follows:

“Section 25. If, for any reason, the improvements contemplated by this act are not made, the preliminary expenses of the district shall be a first lien upon all the lands of the district and shall be paid by a levy of a tax thereon upon the assessed value for State and county taxation, which levy shall be made by the chancery court, and shall be collected by a receiver to be appointed by said court.

“ Section 26. Said viaduct shall be at all times maintained as a free viaduct, and it shall be unlawful for said board of commissioners or for any agency of the State to establish toll-gates on same, or to charge for passageway over the same. Said board of commissioners are hereby authorized and are hereby given full authority, and it is their duty, to accept from outside sources contributions to the construction cost of said viaduct, including any and all contributions that they may be able to obtain from the Federal Government, the State of Tennessee, or from any other source. Provided, that no liens shall be created on the lands or improvements made under the terms of this act until three-fourths of the cost of the improvements shall be paid or provided by the United States Government, the State of Tennessee, or some political subdivisions thereof, or some other outside agency.

“Section 27. After determining the cost of construction of said viaduct, and approving the plans, as herein provided, it is the duty of the board of commissioners to determine the amount of outside contributions available for the construction of the improvement, and in making a levy and issuing bonds for the construction of said improvements the said board of commissioners shall credit the construction cost of said viaduct with such contributions, and issue bonds alone for the remainder. Provided, that the total bond issue authorized under this act shall in no event exceed one-fourth of the total cost of construction.”

The board of commissioners has organized and has employed engineers, attorneys and other agents and servants, and are proceeding with the preliminary work of preparing plans and specifications, determining the exact route of the viaduct, and have otherwise made preparations to construct the improvement, and have already incurred considerable debt for which certificates of indebtedness had been issued.

Appellant is the owner of real property in the district, and he instituted this action in the chancery court of St. Francis County attacking the validity of the statute creating the district and seeking to restrain the commissioners from proceeding to operate under its provisions. He also alleges that the condition expressed in § 26 of the statute, with respect to obtaining funds from other sources, has not been complied with, and that, notwithstanding, the commissioners are proceeding with the work in violation of that part of the statute. He also alleges that the commissioners are about to make assessments of benefits and levy taxes to pay the preliminary expenses and to issue bonds in advance of any ascertainment whether the improvement can be constructed.

The answer of appellee admits the truth of the allegations of fact set forth in the complaint except the allegation with respect to failure to comply with the proviso -set forth in § 26, and it -is alleged in the answer that there has been a compliance with that proviso in that the Federal Government has provided for the payment of one-half of the cost of the improvement and that the State of Tennessee has made provision for the payment of one-fourth of the cost of the improvement. That is the only issue of fact'involved in the case.

Appellee took the testimony of two of its officers, who testified in substance that the total cost of the improvement had been estimated at the sum of $1,000,-000, and that they “had been assured by Mr. McDonald, chief of the bureau of public roads of the Agricultural Department of the United States, that $500,000 of government aid will b.e available to us whenever we are ready to begin the work of construction,” and that the General Assembly of the State of Tennessee had, at the 1923 session; enacted a statute authorizing the city of Memphis to vote upon the question of issuing $250,000 in bonds for the purpose of securing funds for the construction of the viaduct, and that, on the vote of the electors of the city of Memphis, the bond issue had been approved, and that the commissioners of the district had been notified by the mayor of Memphis that $250,000 would be available on thirty days’ notice.

At tire final hearing of the cause the chancellor dismissed appellant’s complaint for want of equity, and he has prosecuted an appeal to this court.

The statute creating the district provides for the advancement of any case in the Supreme Court involving the validity of the statute or proceedings thereunder, and, in accordance with that statute, this court made an order on June 9, 1924, advancing the case and setting it for submission on June 30, on which latter date certain owners of real property in the district, other than appellant, appeared in this court and asked leave to intervene for the purpose of showing that the litigation between appellant and appellee was collusive, that the cause had been unduly hastened for the purpose of cutting off opportunity for other property owners to be heard, and that the testimony upon the- issue of fact involved in the case had not been fully developed. The interveners asked that the court either dismiss the cause or that its consideration in this court be postponed until the interveners could institute another action raising the issue of fact involved in the controversy, and take additional testimony directed to -that issue. Upon consideration of the matter it was concluded by the court that the litigation was not conducted by -the parties collusively, and that the cause should not be dismissed for that reason. "We passed the case for a week for submission, with leave to the attorneys for appellee to file a brief, and we reserved, at that time, the decision of the question whether or not the issue of fact was fully developed. The attorneys for the interveners filed a brief as amici curiae, joining in with appellant in all of the attacks made on the validity of the statute and the attempted proceedings thereunder. In the consideration of the testimony adduced in the case we readily reached a conclusion in favor of appellant and in favor of the contention of the interveners upon the only issue of fact involved in the case, and, as the interveners, through their attorneys as friends of the court, have presented their views upon the questions of law involved, no prejudice can result to any of the parties appearing here from finally determining the case at this time, without any further postponement. We proceed therefore to that task.

It is contended, in the first place, that the act is void for uncertainty, in that it merely describes the boundaries of the district to include “all of the real property in the limits of the St. Francis Levee District,” without a more particular description. It is suggested in the argument in support of appellant’s contention that, after the creation of the St. Francis Levee District by the act of February 15, 1893, prescribing the boundaries, some of the lands were eliminated because not found to be benefited from the construction of the levee, and that the statute now under consideration does not show whether the present district is to be coextensive with the original boundaries of the district or whether it shall exclude the lands which were excluded from the district because not benefited. It is plain from a consideration of the language of the present statute that its framers meant to make the boundaries of this district coextensive with the present boundaries of the St. Francis Levee District, and that it does not include lands heretofore excluded from the St. Francis Levee District. The act of April 15, 1893, creating the St. Francis Levee District (Acts 1893, p. 2'á) describes the boundaries of the district as follows: “Beginning on the left bank of St. Francis Biver, at its confluence with the Mississippi Biver, thence in a northwesterly direction along said left bank of the St. Francis-Biver to the southern boundary line of Lee County, to extreme high water line on the base or slope of the highlands, thence in a northerly direction with the meanderings of the said highlands to the north boundary line of Craighead County, thence east along said north boundary line to the north line of Mississippi County, thence along said line to the Mississippi Biver, thence in a southerly direction along said right bank of the Mississippi Biver to the place of beginning, containing all that area which has heretofore at any time, either directly or indirectly, overflowed by water from the Mississippi Biver.”

It will be noted from the language of the act of 1893, supra, that definite means were prescribed and pointed out for ascertaining the boundaries of the district; still the boundaries were not accurately described, and the lines remained to be ascertained by a survey following the directions prescribed in the statute. The boundaries of the district were ascertained by determining, from proper surveys and other investigations, “the extreme high-water line on the base or slope of the highlands,” and the boundaries as thus ascertained and established and as now existent were declared by the present statute to be the boundaries of the Harahan Viaduct Improvement District. The fact that the boundaries are described merely by reference to the boundaries of the St. Francis Levee District does not render the description indefinite. Our decision in the recent case of Britt v. Laconia Circle Special Drainage District, ante, p. 92, is decisive of the question now presented. In that case the drainage district known as the Laconia Circle Special Drainage District was created, and the boundaries were described as embracing all lands within what is “generally and historically known as Laconia Circle, in Mississippi Township, in Desha County, Arkansas,” and we decided that the description was sufficient. We think that the principle announced in that case is decisive of the present case, and that this attack is unfounded.

The validity of the statute is next assailed on the ground that it constitutes an invasion of the jurisdiction of the county court, in conferring authority upon the commissioners of the district to select the route of the viaduct without the approval of the county court. This attack is also unfounded.. 'Section 4 of the statute refers to the viaduct as a “public highway,” and, for the purpose of this discussion, we may as well treat it as such, without stopping to consider whether it is in fact a part of the bridge or a part of the highway. But, in either event, any change of route authorized by the statute is necessarily slight and immaterial, for the statute itself fixes the location of the viaduct by prescribing that it must connect the end of the wagonway of the Harahan bridge “with the levee of the St. Francis Levee District opposite the same.” Giving this language a practical interpretation, it necessarily means that the route of the viaduct shall be from the end of the bridge to a point on the levee substantially opposite the end of the bridge. From this specification there could be no substantial change in the route, and any attempt on the part of the commissioners to make a substantial change would be beyond the authority conferred under the statute, and such attempt could be restrained. We have held that immaterial changes in the route of a public highway to be improved could be made by commissioners without the approval of the county court. Wimberly v. Road Imp. Dist. No. 7, 161 Ark. 79. The statute provides that the adoption of the route of the existing wooden viaduct must meet with the approval of the county court, and the obvious reason for that was that it is a structure which was built by the county, and for which there was an outstanding indebtedness, and it was deemed wise not to permit that structure to be disturbed without the consent of the county. But this provision necessarily meant that whatever route was selected would supersede the oH wooden structure, and that the approval of the county court should be obtained. As we have already said, any change in the route would necessarily be immaterial, and the construction of the new viaduct would necessarily supersede the old structure, therefore the only reasonable interpretation to put upon the language of the statute is that any route adopted, even though it deviated from the route of the present structure, must be approved by the county court.

The case of Haley v. Sullivan, 162 Ark. 59, relied on by counsel, is not applicable, for the reason that the language of the statute involved in that case is very different from that used in the statute now under consideration. In that case the statute plainly, according to the view of a majority of the court, authorized the commissioners of the district to adopt, without the approval of the county court, a new route for a road wholly different from the public road described in the statute.

We have not considered, in this connection, the statute enacted by the General Assembly at the extraordinary session in September, 1923, which contains a provision that all plans for the improvement must be made subject to the approval of the county court. The validity of that statute is challenged by counsel, but we find that the question of its validity or invalidity is not really involved in the present controversy, and we will not therefore consider that question at the present time.

The next ground of attack on the validity of the statute is that it gives authority to the commissioners to repair and temporarily maintain that part of roadway of the bridge in Crittenden County and to assume and discharge the indebtedness incurred by Crittenden County in the construction of the old viaduct. It will be remembered that § 6 of the statute provides that the commissioners “shall have the power to maintain and repair that part of the wagonway of the Harahan bridge situated in Crittenden County,' Arkansas, until such time as a new viaduct, contemplated under the terms of this act, is constructed;” that “the benefits to be derived therefrom by the lands in the district shall be considered and assessed in maídng the assessment of benefits ; ’ ’ that the repair and maintenance of the wagonway “shall be considered as a part of the work of improvement in the district,” and that, in order to secure funds, the commissioners “shall have power to borrow money, issue bonds, and pledge the assessment of benefits conferred by this act for other purposes.” Section 7, as we have already seen, recites that the construction of the new viaduct “will destroy the use of the existing wooden viaduct,” and provides that “the districts shall assume and pay the outstanding indebtedness of Crittenden County, created in the construction of said wooden viaduct, not yet due and unpaid.” We perceive no valid reason why the Legislature cannot prescribe, in giving authority for the construction of the new improvement, that, as a part of the improvement, the old structure, which is to be supplanted by the new, shall be repaired and maintained at the cost of the new district, and that the acquisition of the old structure shall be treated as a part of the new improvement to the extent of the unpaid indebtedness on it. The statute constitutes a legislative determination that the old structure shall be supplanted by the new, and that its value is equal to the unpaid part of the cost of construction. McClelland v. Pittman, 139 Ark. 341; Southern Crawford Road Imp. Dist. v. Brown, 156 Ark. 267; Wagner v. Lesser, 239 U. S. 207; Valley Farms Co. v. Westchester, 261 U S. 155. It is not essential to the validity of this provision of the statute that the old structure should actually enter into and become a part of the new. On the contrary, the fact that the old structure is to be destroyed and supplanted is sufficient to authorize the provision for the payment to the county, by way of compensation, of the present value of the old structure, which, as before stated, is estimated to be the unpaid amount of the cost.

We next come to a consideration of the attacks upon the acts of the commissioners in exercising the authority conferred by the statute. The first is that the condition prescribed in § 26 of the statute with respect to contributions of three-fourths of the cost of the improvement from the United States Government or from the State of Tennessee had not been complied with, and that the commissioners are about to proceed, notwithstanding, to levy assessments, make contracts and issue bonds for the construction of the improvement. It is conceded by the commissioners that they are preparing to proceed' with the construction of the improvement, but they contend that the condition of the statute has been perf ormed. Testimony was adduced on that issue, but we are of the opinion that the evidence shows that there had been no performance of the condition. All that the testimony establishes is that Mr. McDonald, chief of the bureau of public roads of the Agricultural Department of the United States, has “assured” the commissioners that $500,000 of Government aid would be available whenever needed. This is far from showing a compliance with the requirements of the statute, which requires that no lien shall be created until three-fourths of the cost of the improvement “shall -be paid or provided by the United States Government, the State of Tennessee, or some political subdivision thereof, or some other outside agency.” There is no mistaking the meaning of this language of the statute. The plain purpose of the lawmakers was to forbid the incumbering of the lands of the district with the cost of construction in excess of one-fourth thereof, and that nothing should be done until the other three-fourths should be “paid or provided” from other sources. This states' a condition precedent which must be performed before the lands can be incumbered with any of the cost of construction. It is not claimed that anything has been paid, and the evidence does not show any legal provision from any other source. The testimony on this subject is only hearsay — the witnesses only state what Mr. McDonald said, and, even if that be treated as an official statement, it does not show any authority on the part of that official to bind the United States Government. We think this language means that there must be some actual and enforceable provision made for the contribution of this fund — not a mere promise from any source, but an actual provision, a setting apart so that the fund will be available when called for, and official evidence of it must be established before the commissioners of this district are authorized to proceed. Being forbidden to construct the improvement unless three-fourths of the expense is provided from other sources, the commissioners have no right to incumber the lands with taxes for construction, when the scheme would prove abortive unless the remainder of the funds should be furnished. Certainly one-fourth construction without the completion of the project would be of no benefit to the lands in the district, and the commissioners have no power to burden the district unless a benefit may be anticipated. Our conclusion therefore is that the attempt of the commissioners is unauthorized, and that, as no provision has been made for the contribution of the remaining cost of the improvement, they have no right to proceed with the construction of the improvement or with the sale of bonds.

It is also contended by counsel that the commissioners have no right to proceed with the preliminary work or to issue certificates of indebtedness for the cost of such work until the conditions of the act have been complied with, but we are of the opinion that counsel are mistaken in this respect in their interpretation of the statute. The conditions prescribed in § 26 manifestly relate to the construction of the improvement, and not to the preliminary work for the purpose of determining whether or not the improvement can be constructed within the limits prescribed in the statute. Preliminary plans and specifications must be made and estimates must also be made of the cost, so as to determine whether outside funds of sufficient amount are available, and to ascertain whether or not the benefit to the property will be sufficient. These are matters which necessarily must be attended to in advance, and it was not the purpose of the statute, we think, to prevent this preliminary work being done until three-fourths of the funds are provided from other sources. Section 25, hereinbefore quoted, provides for the payment of preliminary expenses in the event that the effort to construct the improvement shall prove abortive, and this shows that it was not in contemplation of the lawmakers that the other three-fourths of the cost of the improvement should be obtained before preliminary work is begun. The commissioners have a right to make contracts for preliminary work. Southern Crawford Road Imp. Dist. v. Brown, supra. Any such contract made by the commissioners is, of course, subject to review by the courts on a charge of improvidence or fraud, but such contracts, if fairly and not improvidently made, are binding on the district. Having such authority to incur liability on the part of the district, the commissioners may issue evidences of indebtedness therefor, but not negotiable paper. Altheimer v. Board of Directors Plum Bayou Levee Dist., 79 Ark. 229. The theory entertained by the commissioners, however, in determining their powers and duties, seems to be that they have the right to levy assessments to pay preliminary expenses before the ascertainment of the question whether or not the improvement can be made. We think this theory is unsound, and that the authority to impose assessments on the lands, independently of the construction of the improvement, can only be exercised under § 25 of the statute after it is determined that the scheme will prove abortive and the improvement cannot for any reason be made. If the conditions are all performed and the improvement is constructed, then preliminary expenses .are merged into the general cost of the improvement as a part thereof, and are paid out of the funds received from the sale of bonds and the collection of assessments. There is no provision for a separate levy of taxes to pay preliminary expenses except in the event that the construction of the improvement is abandoned, in which case there is a provision in § 25 for the levy of taxes to be made by the chancery court in a proceeding to wind up the affairs of the district. The commissioners concede that they are about to make such a levy, and, as the improvement had not been abandoned, nor have the conditions upon which they are proceeding with the improvement been performed, they should be restrained from, levying any assessment at this time.

Another theory contended for by the commissioners is that the repairing of the old viaduct and the payment of the indebtedness owing by Crittenden County together constitute a project separate and apart from the construction of the new viaduct, and that they may proceed with the performance of that part of the work without waiting for the conditions to be performed with respect to the construction of the new viaduct. They are mistaken in this theory, for there is no indication in the language of the statute of an intention to create two separate projects. On the contrary, it is manifest that the whole thing is treated as one project; that is to say, the repair and maintenance of the old viaduct until the nfew one is ready for use, the payment of the indebtedness of Crittenden. County, and the construction of the new viaduct all form a part of a single project. The language of § 6j we think, is plain on that subject. Only one assessment is provided for, and that is for the whole improvement, including the temporary maintenance of the old viaduct and the construction of the new, and also the payment of the Crittenden County debts for the cost of the old viaduct. The commissioners concede that they are about to proceed with that work, issue bonds and levy assessments, and they should be restrained from doing so until the conditions are performed with respect to the construction of the whole improvement, that is to say, until three-fourths of the total cost of the improvement shall be paid or provided as prescribed in § 26 of the statute.

We have refrained from any discussion of the question of the method of assessments, as that would be premature, in view of the fact that the assessments have not been made or actually attempted.

In conclusion, we call attention to the oft-repeated rule of law announced by this court in such cases, that, until all the conditions imposed by law have been performed by ascertaining whether or not the improvement can be made within the bounds set by the statute, that is to say, until, the assessments have been made so as to demonstrate that the cost of the improvement will not exceed the benefits, there is no authority to issue bonds or make any other contract looking to the construction of the improvement. Until those conditions are performed, the authority of the district is limited to preliminary work.

The conclusion therefore reached in this case is that the statute is valid, but that the commissioners are about to exceed their powers in the respects hereinbefore mentioned.

The decree is therefore reversed, and the cause remanded with directions to enter a decree in accordance with this opinion, restraining the commissioners of the district from proceeding with any work of construction as defined in this opinion, including the temporary repairs to the old viaduct, and the payment of the indebtedness of Crittenden County and the issuance of bonds and the levying of taxes, until three-fourths of the funds have been provided from other sources, in accordance with the terms of the statute.

Hart, J.

Mr. Justice Humphreys and myself think that the hearing of this case should have been postponed until the court reconvenes in the fall, to the end that the interveners might have time to present the issues raised by their intervention in the manner in which they are advised to do so by their attorneys.

This suit was filed by appellant on June 3, 1924. An answer to the complaint was filed on the same day. Again on the same day a decree was entered of record in the case. The transcript was filed in this court on June 9, 1924. The interveners are landowners in the proposed district, and did not know of the proceedings in the court below or of the filing of the transcript on appeal in this court until some time after the appeal had been lodged here. The issues raised by the appeal involve a construction of our Constitution and of the statute creating the district. The interveners had only one week within which to file their brief. They __ did not even have time to have it printed under the rules of the court. No reason is given for the undue haste in bringing the case here, and no reason is assigned why the postponing of the hearing of it until next September should not have been done without prejudice to any one.

The building of the proposed improvement will necessarily place special taxes upon the lands of the district, and we think that the interveners, as landowners in the district, should have had a reasonable time in which to have presented the issues in the manner advised by their attorneys. We do not think that special taxes, which often prove to be grievous and burdensome to the landowners, should be placed upon their lands without their having a reasonable opportunity to present the issues involved in the manner advised by their own attorneys, provided they proceed in an expeditious manner, and only ask a postponment for a reasonable time.