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note in controversy, in the execution of ing, the value of the well had been depredwhich his wife joined. The sum of $50 was ated to the extent of the amount of the bal. paid on the note, and this action was, as be- ance due on the note. fore stated, instituted to recover the bal [3] The court further instructed the jury

The defendants defended on the that the plaintiff was not bound by his ac ground that the well was worthless by rea- ceptance of the well, even though he was son of poor workmanship of the plaintiff in present and knew the character of the macurbing it, and that the consideration of the terial and workmanship, if he was ignorant note therefore failed to the extent of the on the subject and relied entirely upon the unpaid balance.

representations of the plaintiff as to his skill. The testimony adduced by the defendants We think those instructions were correct; establishes the fact that after using the well for if, as contended by defendant George W. awhile the water became wholly unfit for Million, he had no knowledge of the proper use, many of the witnesses testifying that it method of constructing the curbing, and had a dry or “irony" taste and looked muddy merely accepted the work because of his reand dingy. Defendants themselves testified liance upon the representations and superior that the water was unfit for use, as stated knowledge of the plaintiff, he would not be by the other witnesses, and that it had sand bound by his acts and was entitled to claim and dirt in it which spoiled the well. There a failure of the consideration to the extent is also testimony to the effect that the de- of the depreciation of the well caused by fendant in putting in the galvanized iron unskillful workmanship. Our conclusion is casting or curb cut holes in it so as to let that the case was submitted under proper the water run into the well, and this caused instructions and that there was enough evithe well to fill with seep water and to let dence to sustain the verdict. sand and dirt into it. Another witness, of [4, 5] The suit

was, as before stated, experience in the well business, testified to against the defendant George W. Million and the effect that cutting holes in the casing his wife; but the verdict of the jury was in had the effect of ruining the well. Defend- favor of the defendant George W. Million, ant George W. Million admitted that he was and omitted any mention of his wife. The present when the well was dug and curbed, judgment followed the form of the verdict and knew the manner in which the work and was only in favor of George W. Million. was done, but testified that he had had no ex- Subsequently the plaintiff filed a motion to perience in the well business and relied en- redocket the case as against Mrs. Million tirely upon the skill and judgment of the and proceed with another trial against her. plaintiff and did not know at the time he The court overruled that motion, and we made the cash payment and executed the think that was correct. The defendants pre note that the workmanship, was unskillful sented a common defense, and the verdict or that the well would prove unsatisfactory. should have been in favor of both if in favor

It is earnestly contended on behalf of the of either. The court should have rendered plaintiff that the evidence is insufficient to judgment in favor of both defendants upon establish the defense; but we are of the opin- the verdict, and the plaintiff cannot complain ion that, while the evidence is not entirely because that was not done. Moreover, the satisfactory, there is enough to warrant a undisputed evidence in the case showed that submission of the issue to a jury and to sus- the defendant Mrs. Million was not liable on tain the verdict.

the note, as it was executed jointly with her [2] In the case of Webster v. Carter, 99 husband and not with reference to her sepArk. 458, 138 S. W. 1006, we held that in an arate estate nor for the benefit thereof. action on a promissory note the defendant is Judgment affirmed. entitled, by way of recoupment, to abatement for so much of the consideration as had failed; and, in disposing of the case, we quoted

LEWIS v. REIFF et al. (No. 165.) with approval from the Supreme Court of Alabama in the case of Peden v. Moore, 1 (Supreme Court of Arkansas. Oct. 12, 1914.) Stew. & P. (Ala.) 71, 21 Am. Dec. 649, as fol- MUNICIPAL CORPORATIONS (8 450*)-PUBLIC lows:

IMPROVEMENTS - IMPROVEMENT DISTRICTS“Whenever a defendant can maintain a cross

POWERS OF. action for damages, on account of a defect in tion of improvement districts for the purpose

Kirby's Dig. § 5664, authorizes the formapersonal property purchased by him, or for of grading or otherwise improving streets and a noncompliance by the plaintiff with his part alleys, etc., while section 5672 authorizes th: of the contract; he may, in a defense to an action upon his note made in consequence of board of public improvement to form plans for such purchase or contract, claim a deduction; made

with reference to the grades of streets and

the improvement of the district which shall be corresponding th the injury he has sustained.'

alleys as fixed by the city ordinances. Held The court submitted this case to the jury that, as sections 5456, 5593, and 5648 proride upon instructions which permitted them to different agencies for and give municipalities return a verdict for the defendants if they themselves the power of opening and establishfound that, by reason of negligence or un- the establishment of improvement districts does

ing streets and alleys, the section authorizing skillfulness of plaintiff in putting in the cas not authorize the organization of an improve •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ment district for the purpose of establishing and functions which the statutes have expressly grading a new alley.

conferred upon them. In Sewer District v. [Ed. Note. For other cases, see Municipal Moreland, 94 Ark. 381, 127 S. W. 469, 21 Ann. Corporations. Cent. Dig. 88 1073, 1074; Dec. Cas. 957, the court said: Dig. $ 450.*]

“The effect of our former decision on the subAppeal from Pulaski Chancery Court; Jno. ject of improvement districts organized within E. Martineau, Chancellor.

the limits of cities and towns, and of fencing, Bill by H. F. Reiff and others, as the Board drainage, and levee districts, is to make them of Alley · Improvement, against Francis M. governmental agencies, or public quasi corpora

tions, which are 'purely auxiliaries to the state, Lewis. From a judgment for plaintiffs, de and have no powers, duties, or liabilities except fendant appeals. Reversed and remanded, as conferred expressly by statute.'” with directions to dismiss.

They are neither municipal corporations Mehaffy, Reid & Mehaffy, of Little Rock, nor agents of the municipal corporations for appellant. Carmichael, Brooks, Powers within which they are organized, but they & Rector, of Little Rock, for appellees.

derive their powers directly from the Legis

lature, and in exercising them act as the KIRBY, J. The only question presented agent of the property owners. Fitzgerald v. by this appeal for determination is whether Walker, 55 Ark. 157, 17 S. W. 702. They an improvement district can be organized in have no control over the streets and alleys of a city for opening, establishing, and creating the municipality, except for the purpose of an alley through property where no alley has making the improvement for which the dis. ever been opened, dedicated, or provided for. trict was organized, and, this being accomSection 5664, Kirby's Digest, provides: plished, the street or alley becomes subject to

“The council of any city of the first or second the exclusive control of the municipality. class, or any incorporated town, may assess all Pulaski Gaslight Co. v. Remmel, 97 Ark. 318, real property within such city, or within any 133 S. W. 1117. Improvement districts are district thereof, for the purpose of grading or otherwise improving streets and alleys, con- given the power to exercise eminent domain structing sewers or making any local improve in furtherance of the purpose of their organment of a public nature, in the manner herein- ization. Sections 2921-2925, Kirby's Digest. after set forth."

It is true, as contended by appellee, that Section 5672 authorizes the board of im- this court has held that an improvement disprovement to form plans for the improvement trict can be created in a city for the purpose within the district and prescribe estimates of acquiring and improving a public park; for the cost thereof, “but all such improve the court saying of the statute: ments shall be made with reference to the

"The language is certainly broad enough to grades of streets and alleys as fixed, or may include any kind and class of improvement be fixed, by the ordinances of said city." which will enhance the value of real estate of Said section 5664 authorizes the formation of the particular district that is benefited." improvement districts, "for the purpose of But the only limitation upon the making grading or otherwise improving streets and of improvements is not, as contended by apalleys, constructing sewers or making any peilees, that it shall be a local improvement local improvements of a public nature," etc., of a public nature, for the statute expressly and the appellee insists that an alley is a limits the power to organize such districts, so local improvement of a public nature within far as streets and alleys are concerned, to the the meaning of the statute. The statute, “purpose of grading or otherwise improving however, provides a restriction, and limits them," manifestly intending that they shall the purposes for which districts may be form- have already been opened, laid out, dedicated, ed to "grading or otherwise improving streets or established by competent authority. The and alleys,” evidently referring to streets city council was without authority to create and alleys already opened, dedicated, or pro- the improvement district, and it had no auvided for. This view is confirmed by the thority to levy the assessment against the statutes providing a different agency and giv- property of the appellant which is void. ing the municipalities themselves the power The judgment is reversed, and the cause for opening and establishing streets and al- remanded, with directions to dismiss the leys. Section 5456 and subdivision 2 of complaint for want of equity. sections 5593 and 5648, Kirby's Digest.

It was not the purpose of the law to give two separate agencies power to open and es

HASTINGS INDUSTRIAL CO. V. COPEtablish streets and alleys, or to have control

LAND. (No. 161.) and supervision of them, as held in Sander

(Supreme Court of Arkansas. Oct. 12, 1914.) son v. Texarkana, 103 Ark. 529, 146 S. W.

1. CORPORATIONS ( 433*) AUTHORITY OF 105, and the power has een expressly given

AGENT - SUBSCRIPTION CONTRACT — QUESto the municipality and cannot be delegated

TIONS FOR JURY. by it to a different agency. Improvement On evidence in an action to recover upon districts are governmental agencies or quasi a stock subscription contract, defended on the corporations, with certain powers and duties ground that plaintiff's agent had made a written

agreement to pay the defendant a certain of a public nature, and can only exercise the amount per day for hauling to be applied on .For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

169 S.W.-75

his subscription, held, that the question whether HART, J. The Hastings Industrial Comthe authority of the plaintiff's agent was limited pany, a corporation organized and doing busito getting subscriptions was for the jury.

[Ed. Note: -For other cases, see Corporations, ness in the city of Chicago, state of Illinois, Cent. Dig. 88 1706, 1719, 1738, 1744; Dec. Dig? | instituted this action before a justice of the § 433.*]

peace against J. M. Copeland to recover an 2. APPEAL AND ERROR (8 273*) REVIEW amount alleged to be due it upon a subscripGENERAL EXCEPTION TO INSTRUCTIONS. A general exception to the refusal to give ment for the defendant in the justice of the

tion contract. There was a verdict and judg. several instructions, requested collectively, will not be considered on appeal if any of them was peace court, and the plaintiff appealed. In properly refused.

the circuit court there was again a verdict [Ed. Note. For other cases, see Appeal and and judgment for the defendant, and the Error, Cent. Dig. $$ 1590, 1606, 1620–1623, plaintiff has appealed to this court. 1625-1630, 1764; Dec. Dig. § 273.*]

The foundation of the action was a written 3. CONTRACTS (8 147*)–CONSTRUCTION-INTENT OF PARTIES.

contract between the Hastings Industrial The object in construing a contract is to company and the other subscribers to the arrive at the intention of the parties. as shown contract whereby the former agreed to conby the circumstances at the making of the contract, the situation and relation of the parties, struct and equip for the subscribers a cenand the sense in which the words used would trifugal power creamery and ice cream plant naturally be understood,

and each subscriber agreed to pay therefor [Ed. Note.-For other cases, see Contracts, the amount set opposite his name. The Cent. Dig. 88 730, 743; Dec. Dig. § 147.*]

contract provided that the subscribers there4. CORPORATIONS ($ 77*)—SUBSCRIPTION CON- to, after the ice cream plant was constructed, TRACT-CONSTRUCTION BY PARTIES.

Where a contract, whereby plaintiff was should organize a corporation, and each one to construct and equip a creamery and a sub- should become a shareholder in the amount scriber was to pay the amount set opposite his paid by him for the construction of the plant. pame, and, after the plant was completed, to become a shareholder in the corporation to be

The defendant Copeland became a suborganized by the subscribers in the amount of scriber to this contract and agreed to pay his subscription, and to a written agreement, for the construction of the plant the sum of whereby the subscriber was to be paid a certain $100. The agent of the corporation, at the amount per day for hauling, to be applied on his subscription, was construed by the parties same time the contract sued on was executas not requiring the subscriber to pay any parted, executed a written agreement with the of bis subscription unless allowed to do the hauling, and, as a conditional subscription, that defendant agreeing to pay him $3.50 per day construction was binding upon them.

for hauling, to be applied on his share of [Ed. Note.-For other cases, see Corporations, stock. The agreement further provided that Cent. Dig. 88 210-212, 219–243, 455; Dec. Dig. the defendant was to have 90 days for the 8 77.*] 5. CORPORATIONS (8 81*)_SUBSCRIPTION Con- had not been paid in hauling.

payment of any part of his subscription that TRACT_REQUISITES-CERTAINTY AND DEFIN

The defendant testified that he kept his An agreement with a subscriber for the team ready to perform the hauling during the construction of a creamery, who, after its com time provided in the contract, and that the pletion and the organization of a corporation by the subscribers, was to become a shareholder plaintiff refused to permit him to do any to the amount of his subscription, whereby the hauling to be applied on his subscription, contractor agreed to employ the subscriber at and that he did not thereafter participate a certain amount per day for hauling to be applied on his subscription, was not void be in the organization of the corporation for cause too indefinite; since as between two con- | the purpose of operating the ice cream plant, structions, one of which accomplishes the inten- and did not consider himself in any way tion of the parties and the other of which de bound on his subscription for the construcfeats such intention or makes the contract meaningless, the former construction is to be tion of the same. Other evidence was also preferred.

introduced by him to that effect, and also to [Ed. Note.--For other cases, see Corporations, the effect that the agent of the plaintiff, Cent. Dig. $$ 266–284; Dec. Dig. § 81.*]

with whom he made the contract for the 6. APPEAL AND ERROR ($ 301*)-REVIEW-M0- hauling, was its general agent in regard to TION FOR NEW TRIAL.

No other grounds than those alleged in the taking the subscription and making the conmotion for a new trial can be considered by the tract. Supreme Court on appeal.

The plaintiff asked the court to give seren [Ed. Note.-For other cases, see Appeal and instructions in its behalf and excepted to the Error, Cent. Dig. 88 1743, 1753–1755; Dec. Dig. $ 301.*]

action of the court in refusing to give them.

The refusal of the court to give these instrucAppeal from Circuit Court, Howard Coun- tions is now assigned as error for which the ty; Jeff. T. Cowling, Judge.

judgment should be reversed. Some of the Action by the Hastings Industrial Com- instructions asked by the plaintiff were perpany against J. M. Copeland. Judgment for emptory in their nature in that they asked defendant, and plaintiff appeals. Atfirmed.

the court to tell the jury, as a matter of law, A. F. Auer, of Nashville, for appellant. J. that the agent of the plaintiff who procured W. Bishop and J. G. Sain, both of Nashville, the defendant's signature to the contract for appellee.

was a special agent and that his authority *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexos



was limited to getting subscriptions for the , enforceable. By its own terms it was capable establishment of the creamery.

of definite enforcement and capable of being [1, 2] There was evidence in the record performed according to the interpretation from which the jury might have inferred which the parties themselves placed upon it. that the authority of the agent of the prin [6] No other grounds were alleged by the cipal was not limited to getting subscrip- plaintiff for the reversal of the judgment in tions for the establishment of the creamery. its motion for a new trial, and, according The exceptions of the plaintiff to the refus- to the well settled rules of this court, no ed instructions were in gross, and it is well other grounds than those mentioned in the settled that a general exception to the re- motion can be considered by us on appeal. fusal to give several instructions requested It follows that the judgment must be afcollectively will not be considered on appeal firmed. if any of them was properly refused. Tiner v. State, 109 Ark. 138, 158 S. W. 1087, and cases there cited.

ALEXANDER et al. v. PHILPOT et al.

(No. 156.) [3] In construing a contract the object is to arrive at the intention of the parties as (Supreme Court of Arkansas. Oct. 12, 1914.) shown by the circumstances surrounding the


PROCEEDINGS TO OBTAIN-RIGHT TO APPEAL making of the contract, the situation and re

-"AGGRIEVED PARTY." lation of the parties, and the sense in which, Where, pending applications for licenses to taking these things into consideration, the sell intoxicating liquors on a petition for the words used would naturally be understood. by a majority of the white adult inhabitants of

granting of licenses alleged to have been signed Alf Bennett Lumber Co. v. Walnut Lake Cy- the city, as provided by Going Act February press Co., 105 Ark. 421, 151 S. W. 275. 17, 1913 (Laws 1913, p. 180), to which applica[4] The parties to the present contract ed leave to take a nonsuit and withdraw the

tions remonstrances were filed, petitioners askhave adopted a construction of it which we petition, the remonstrants were not aggrieved think is binding on them. In other words, by an order granting such application; its efthe parties to the contract have treated it as fect being to withdraw the applications for lia conditional subscription on the part of the

[Ed. Note. For other cases, see Intoxicating defendant. According to the interpretation Liquors, Cent. Dig. 88 74, 76–79; Dec. Dig. $ placed on this contract by the parties them- 75.* selves, the defendant was not to pay any

For other definitions, see Words and Phrases, part of his subscription unless allowed to do First and Second Series, Aggrieved Party.) so by hauling material for the construction Appeal from Circuit Court, Jefferson Counof the ice cream plant, at the price of $3.50 ty; Antonio B: Grace, Judge. per day.

Petition by V. 0. Alexander and others for The contention made by counsel for the a writ of mandamus against C. M. Philpot plaintiff in the court below was that the and others to compel the county court to agent of the plaintiff who secured the sub- make an order granting an appeal to the scription did not have authority to make the circuit court. From an order denying the contract with the defendant for the haul writ, petitioners appeal. Affirmed. ing. As we have already stated, there was This is an appeal from a judgment of the testimony tending to show that he had au- Jefferson circuit court denying appellants' pethority to make that contract and that he tition for a mandamus. The facts as disdid not allow the defendant to do any haul- closed by the pleadings and the agreed stateing in payment of his subscription. The ment of facts in the record are substantially parties themselves having placed a particu- as follows: In January, 1914, H. B. Fienlar construction on the contract, they will berg and divers other persons filed in the be held bound to that construction here. county court of Jefferson county their several

[5] Again, it is objected by counsel for applications for license to sell intoxicating plaintiff that the contract for the hauling is liquors in the city of Pine Bluff. Some days void because too indefinite. As between two thereafter they filed with the county court constructions, each reasonable, one of which a petition purporting to contain the names will make the contract enforceable, and the of a majority of the white adult inhabitants other of which will make it unenforceable, of Pine Bluff, praying that license be granted that construction which makes the contract for the sale of intoxicating liquors within enforceable will be preferred. Thus, if a that city. The petition was presented under contract is open to two constructions, one of the act approved February 17, 1913, and genwhich will accomplish the intention of the erally known as the “Going Act.” Laws 1913, parties and the other of which will defeat p. 180. The appellants appeared, under ausuch intention or will make the contract thority of the act, as remonstrants to the pemeaningless, the former construction is to tition, and set up in their remonstrance that be preferred. 2 Page on Contracts, par. the petition did not contain a majority of 1120.

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the adult white inhabitants of the city of Tested by this principle of law, we do not Pine Bluff as required by the act. The court think the contract was too indefinite to be proceeded to hear the testimony, and many

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

days were consumed in the trial, and on Feb-toxicating liquors to be issued. When the ruary 12, 1914, the county court announced petitioners were permitted to withdraw their that he was ready to give his opinion. petition, they were no longer asking for liThereupon the petitioners for license asked censes, or that such petition be granted, and leave of the court to take a nonsuit. It was therefore no order on such petition was made the opinion of all the attorneys in the cause granting licenses. that the petition asking that license be grant The withdrawing of the petition placed in ed and the remonstrance thereto was in the statu quo the matter of granting or not nature of a suit between the parties, and it granting licenses to sell intoxicating liquors was agreed that the nonsuit be lanen. On in the city of Pine Bluff. After the petition February 17th the remonstrants to the peti- was withdrawn, no licenses could be issued tion filed an affidavit for appeal, in which until the “Going Law” was complied with. they set up:

The order of the court allowing the petition "That the appeal in this cause is taken be- to be withdrawn was, in legal effect, tantacause the remonstrants verily believe that they are aggrieved by the judgment of the court in mount to making no order permitting liallowing a nonsuit in this cause, and is not censes to be issued. The remonstrants were taken for vexation or delay, but that justice contending for this, and by the order of the may be done."

court they obtained virtually that for which On the 18th of February, 1914, the county they were contending. They were therefore court made an order permitting the attorney not aggrieved by the court's order and had for the petitioners to take the petition from no right to appeal from such order. the files, and on the 28th of February, 1914,

In Phillips v. Coe, 85 Ark. 304, 108 S. W. the same petition containing additional names 207, we said: was filed in the county court, and the county

"The parties who appealed from the order of court permitted the old petition to become the county court were parties to the proceedthe basis of the new petition for license. On ings, but they were not protestants, and therethe 20th of February the appellants, peti- | appealed from, within the meaning of the statute

fore were not persons aggrieved by the judgment tioners herein for the writ of mandamus, allowing appeals to be taken from judgments who were remonstrants in the county court, of the county court." filed in the circuit court their petition in the The cases of Bordwell v. Dills, 70 Ark. 175, present cause, praying a writ of mandamus 66 S. W. 646, Williams v. Bordwell, 73 Ark. to compel the county court to make an order 418, 84 S. W. 474, and Clark v. Daniel, 77 granting an appeal to the circuit court, and Ark. 122, 91 S. W. 9, and other cases on directing the county clerk to transmit all of which appellants rely, are not analogous and the original papers, including the original not in point. There the petitioners had signpetition and the record entries, to the clerk ed a petition to put in force the three-mile of the circuit court. On the 16th of March, law prohibiting the sale of liquor, and the 1914, appellants filed an amended petition, court held that, after the petition had been setting up substantially the same facts as al- filed with the county court and had been ready stated, and with the alternative taken up for consideration, it was not within prayer:

the province of the petitioners to withdraw "That if the circuit court should bold that their names from the petition without leave the county court had no authority to grant a nonsuit that a mandamus be granted compelling of the court, and that such leave could not the county court to hear and determine the be granted except for good reason, because matter of the majority or no majority on the the petitioners had inaugurated a proceedoriginal petition, and that said order be entered ing for a salutary police regulation for the nunc pro tunc as of February 13, 1914, and that said order when so made shall not be al- preservation of morals and protection of the lowed to prevent an appeal, or such action as peace of the citizens. Here the petitioners appellants may then see proper to take; that were seeking to do precisely the opposite of an order be made in the nature of an injunc- what the petitioners were asking in those tion preventing the county court from considering the original petition as a basis for granting cases. Here the petitioners were asking that or refusing saloon license until the circuit court licenses be granted to sell intoxicating liq shall have heard and determined the relative

uors, and the remonstrants were objecting rights of all parties as presented by the complaint."

to that, and when the petition was withW. B. Sorrells, of Pine Bluff, for appel- drawn it was equivalent, as before stated, to lants. W. D. Jones, of Pine Bluff, for appel- asking for. In the language of the learned

giving the remonstrants what they were lees.

circuit judge: WOOD, J. (after stating the facts as above), application for saloon licenses, which was pre

"The withdrawal of the petition defeated all The record does not show that any one of cisely what the remonstrants desired. The petithe remonstrants prayed for an appeal to the tion became functus officio, so far, at least, as circuit court; but, even if it had 'so shown, that case was concerned." the remonstrants were not aggrieved by the As to whether or not a petition, after har. ruling of the court in allowing the petition ing been once filed and thereafter by the perto be withdrawn. The remonstrants to the mission of the court withdrawn, could have petition were, in effect, asking that the court other names added thereto and then be remake no order allowing licenses to sell in- | filed as an original application for the grant

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