The testimony adduced by the defendants establishes the fact that after using the well awhile the water became wholly unfit for use, many of the witnesses testifying that it had a dry or "irony" taste and looked muddy and dingy. Defendants themselves testified that the water was unfit for use, as stated by the other witnesses, and that it had sand and dirt in it which spoiled the well. There is also testimony to the effect that the defendant in putting in the galvanized iron casting or curb cut holes in it so as to let the water run into the well, and this caused the well to fill with seep water and to let sand and dirt into it. Another witness, of experience in the well business, testified to the effect that cutting holes in the casing had the effect of ruining the well. Defendant George W. Million admitted that he was present when the well was dug and curbed, and knew the manner in which the work was done, but testified that he had had no experience in the well business and relied entirely upon the skill and judgment of the plaintiff and did not know at the time he made the cash payment and executed the note that the workmanship was unskillful or that the well would prove unsatisfactory. It is earnestly contended on behalf of the plaintiff that the evidence is insufficient to establish the defense; but we are of the opinion that, while the evidence is not entirely satisfactory, there is enough to warrant a submission of the issue to a jury and to sustain the verdict. [2] In the case of Webster v. Carter, 99 Ark. 458, 138 S. W. 1006, we held that in an action on a promissory note the defendant is entitled, by way of recoupment, to abatement for so much of the consideration as had failed; and, in disposing of the case, we quoted with approval from the Supreme Court of Alabama in the case of Peden v. Moore, 1 Stew. & P. (Ala.) 71, 21 Am. Dec. 649, as follows: "Whenever a defendant can maintain a crossaction for damages, on account of a defect in personal property purchased by him, or for a noncompliance by the plaintiff with his part of the contract; he may, in a defense to an action upon his note made in consequence of such purchase or contract, claim a deduction, corresponding with the injury he has sustained.' The court submitted this case to the jury upon instructions which permitted them to return a verdict for the defendants if they found that, by reason of negligence or unskillfulness of plaintiff in putting in the cas ing, the value of the well had been depreciated to the extent of the amount of the balance due on the note. [3] The court further instructed the jury that the plaintiff was not bound by his acceptance of the well, even though he was present and knew the character of the material and workmanship, if he was ignorant on the subject and relied entirely upon the representations of the plaintiff as to his skill. We think those instructions were correct; for if, as contended by defendant George W. Million, he had no knowledge of the proper method of constructing the curbing, and merely accepted the work because of his reliance upon the representations and superior knowledge of the plaintiff, he would not be bound by his acts and was entitled to claim a failure of the consideration to the extent of the depreciation of the well caused by unskillful workmanship. Our conclusion is that the case was submitted under proper instructions and that there was enough evidence to sustain the verdict. [4, 5] The suit was, as before stated, against the defendant George W. Million and his wife; but the verdict of the jury was in favor of the defendant George W. Million, and omitted any mention of his wife. The judgment followed the form of the verdict and was only in favor of George W. Million. Subsequently the plaintiff filed a motion to redocket the case as against Mrs. Million and proceed with another trial against her. The court overruled that motion, and we think that was correct. The defendants presented a common defense, and the verdict should have been in favor of both if in favor of either. The court should have rendered judgment in favor of both defendants upon the verdict, and the plaintiff cannot complain because that was not done. Moreover, the undisputed evidence in the case showed that the defendant Mrs. Million was not liable on the note, as it was executed jointly with her husband and not with reference to her separate estate nor for the benefit thereof. Judgment affirmed. LEWIS v. REIFF et al. (No. 165.) (Supreme Court of Arkansas. Oct. 12, 1914.) MUNICIPAL CORPORATIONS ($ 450*)-PUBLIC IMPROVEMENTS IMPROVEMENT DISTRICTS— POWERS OF. tion of improvement districts for the purpose Kirby's Dig. § 5664, authorizes the formaof grading or otherwise improving streets and alleys, etc., while section 5672 authorizes the board of public improvement to form plans for the improvement of the district which shall be made with reference to the grades of streets and alleys as fixed by the city ordinances. Held that, as sections 5456, 5593, and 5648 provide different agencies for and give municipalities themselves the power of opening and establishing streets and alleys, the section authorizing the establishment of improvement districts does 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 grading a new alley. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1073, 1074; Dec. Dig. 450.*] Appeal from Pulaski Chancery Court; E. Martineau, Chancellor. functions which the statutes have expressly conferred upon them. In Sewer District v. Moreland, 94 Ark. 381, 127 S. W. 469, 21 Ann. Cas. 957, the court said: "The effect of our former decision on the subJno.ject of improvement districts organized within the limits of cities and towns, and of fencing, drainage, and levee districts, is to make them governmental agencies, or public quasi corporations, which are 'purely auxiliaries to the state, and have no powers, duties, or liabilities except as conferred expressly by statute."" Bill by H. F. Reiff and others, as the Board of Alley Improvement, against Francis M. Lewis. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to dismiss. Mehaffy, Reid & Mehaffy, of Little Rock, for appellant. Carmichael, Brooks, Powers & Rector, of Little Rock, for appellees. KIRBY, J. The only question presented by this appeal for determination is whether an improvement district can be organized in a city for opening, establishing, and creating an alley through property where no alley has ever been opened, dedicated, or provided for. Section 5664, Kirby's Digest, provides: "The council of any city of the first or second class, or any incorporated town, may assess all real property within such city, or within any district thereof, for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvement of a public nature, in the manner herein after set forth." Section 5672 authorizes the board of improvement to form plans for the improvement within the district and prescribe estimates for the cost thereof, "but all such improvements shall be made with reference to the grades of streets and alleys as fixed, or may be fixed, by the ordinances of said city." Said section 5664 authorizes the formation of improvement districts, "for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature,” etc., and the appellee insists that an alley is a local improvement of a public nature within the meaning of the statute. The statute, however, provides a restriction, and limits the purposes for which districts may be formed to "grading or otherwise improving streets and alleys," evidently referring to streets and alleys already opened, dedicated, or provided for. This view is confirmed by the statutes providing a different agency and giving the municipalities themselves the power for opening and establishing streets and alleys. Section 5456 and subdivision 2 of sections 5593 and 5648, Kirby's Digest. It was not the purpose of the law to give two separate agencies power to open and establish streets and alleys, or to have control and supervision of them, as held in Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105, and the power has been expressly given to the municipality and cannot be delegated by it to a different agency. Improvement districts are governmental agencies or quasi corporations, with certain powers and duties of a public nature, and can only exercise the They are neither municipal corporations nor agents of the municipal corporations within which they are organized, but they derive their powers directly from the Legislature, and in exercising them act as the agent of the property owners. Fitzgerald v. Walker, 55 Ark. 157, 17 S. W. 702. They have no control over the streets and alleys of the municipality, except for the purpose of making the improvement for which the district was organized, and, this being accomplished, the street or alley becomes subject to the exclusive control of the municipality. Pulaski Gaslight Co. v. Remmel, 97 Ark. 318, 133 S. W. 1117. Improvement districts are given the power to exercise eminent domain in furtherance of the purpose of their organization. Sections 2921-2925, Kirby's Digest. It is true, as contended by appellee, that this court has held that an improvement district can be created in a city for the purpose of acquiring and improving a public park; the court saying of the statute: "The language is certainly broad enough to include any kind and class of improvement which will enhance the value of real estate of the particular district that is benefited." But the only limitation upon the making of improvements is not, as contended by appellees, that it shall be a local improvement of a public nature, for the statute expressly limits the power to organize such districts, so far as streets and alleys are concerned, to the "purpose of grading or otherwise improving them," manifestly intending that they shall have already been opened, laid out, dedicated, or established by competent authority. The city council was without authority to create the improvement district, and it had no authority to levy the assessment against the property of the appellant which is void. The judgment is reversed, and the cause remanded, with directions to dismiss the complaint for want of equity. 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 the authority of the plaintiff's agent was limited to getting subscriptions was for the jury. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1706, 1719, 1738, 1744; Dec. Dig. § 433.*] 2. APPEAL AND ERROR (§ 273*) REVIEW GENERAL EXCEPTION TO INSTRUCTIONS. A general exception to the refusal to give several instructions, requested collectively, will not be considered on appeal if any of them was properly refused. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.*] 3. CONTRACTS (§ 147*)-CONSTRUCTION-INTENT OF PARTIES. The object in construing a contract is to arrive at the intention of the parties. as shown by the circumstances at the making of the contract, the situation and relation of the parties, and the sense in which the words used would naturally be understood. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*] 4. CORPORATIONS (§ 77*)-SUBSCRIPTION CONTRACT-CONSTRUCTION BY PARTIES. Where a contract, whereby plaintiff was to construct and equip a creamery and a subscriber was to pay the amount set opposite his name, and, after the plant was completed, to become a shareholder in the corporation to be organized by the subscribers in the amount of his subscription, and to a written agreement, whereby the subscriber was to be paid a certain amount per day for hauling, to be applied on his subscription, was construed by the parties as not requiring the subscriber to pay any part of his subscription unless allowed to do the hauling, and, as a conditional subscription, that construction was binding upon them. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 210-212, 219-243, 455; Dec. Dig. § 77.*] 5. CORPORATIONS (§ 81*)-SUBSCRIPTION CONTRACT-REQUISITES-CERTAINTY AND DEFIN ITENESS. An agreement with a subscriber for the construction of a creamery, who, after its completion and the organization of a corporation by the subscribers, was to become a shareholder to the amount of his subscription, whereby the contractor agreed to employ the subscriber at a certain amount per day for hauling to be applied on his subscription, was not void because too indefinite; since as between two constructions, one of which accomplishes the intention of the parties and the other of which defeats such intention or makes the contract meaningless, the former construction is to be preferred. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 266-284; Dec. Dig. § 81.*] 6. APPEAL AND ERROR (§ 301*)-REVIEW-MOTION FOR NEW TRIAL. No other grounds than those alleged in the motion for a new trial can be considered by the Supreme Court on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*] Appeal from Circuit Court, Howard ty; Jeff. T. Cowling, Judge. Coun Action by the Hastings Industrial Company against J. M. Copeland. Judgment for defendant, and plaintiff appeals. Affirmed. A. F. Auer, of Nashville, for appellant. J. W. Bishop and J. G. Sain, both of Nashville, for appellee. HART, J. The Hastings Industrial Company, a corporation organized and doing business in the city of Chicago, state of Illinois, instituted this action before a justice of the peace against J. M. Copeland to recover an amount alleged to be due it upon a subscription contract. There was a verdict and judg ment for the defendant in the justice of the peace court, and the plaintiff appealed. In the circuit court there was again a verdict and judgment for the defendant, and the plaintiff has appealed to this court. The foundation of the action was a written contract between the Hastings Industrial Company and the other subscribers to the contract whereby the former agreed to construct and equip for the subscribers a centrifugal power creamery and ice cream plant and each subscriber agreed to pay therefor the amount set opposite his name. The contract provided that the subscribers thereto, after the ice cream plant was constructed, should organize a corporation, and each one should become a shareholder in the amount paid by him for the construction of the plant. The defendant Copeland became a subscriber to this contract and agreed to pay for the construction of the plant the sum of $100. The agent of the corporation, at the same time the contract sued on was executed, executed a written agreement with the defendant agreeing to pay him $3.50 per day for hauling, to be applied on his share of stock. The agreement further provided that the defendant was to have 90 days for the payment of any part of his subscription that had not been paid in hauling. The defendant testified that he kept his team ready to perform the hauling during the time provided in the contract, and that the plaintiff refused to permit him to do any hauling to be applied on his subscription, and that he did not thereafter participate in the organization of the corporation for the purpose of operating the ice cream plant, and did not consider himself in any way bound on his subscription for the construcOther evidence was also tion of the same. introduced by him to that effect, and also to the effect that the agent of the plaintiff, with whom he made the contract for the hauling, was its general agent in regard to taking the subscription and making the contract. The plaintiff asked the court to give seven instructions in its behalf and excepted to the action of the court in refusing to give them. The refusal of the court to give these instructions is now assigned as error for which the judgment should be reversed. Some of the instructions asked by the plaintiff were per emptory in their nature in that they asked the court to tell the jury, as a matter of law, that the agent of the plaintiff who procured the defendant's signature to the contract 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 Indexes was limited to getting subscriptions for the enforceable. By its own terms it was capable establishment of the creamery. [1, 2] There was evidence in the record from which the jury might have inferred that the authority of the agent of the principal was not limited to getting subscriptions for the establishment of the creamery. The exceptions of the plaintiff to the refused instructions were in gross, and it is well settled that a general exception to the refusal to give several instructions requested collectively will not be considered on appeal if any of them was properly refused. Tiner v. State, 109 Ark. 138, 158 S. W. 1087, and cases there cited. [3] In construing a contract the object is to arrive at the intention of the parties as shown by the circumstances surrounding the making of the contract, the situation and relation of the parties, and the sense in which, taking these things into consideration, the words used would naturally be understood. Alf Bennett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S. W. 275. [4] The parties to the present contract have adopted a construction of it which we think is binding on them. In other words, the parties to the contract have treated it as a conditional subscription on the part of the defendant. According to the interpretation placed on this contract by the parties themselves, the defendant was not to pay any part of his subscription unless allowed to do so by hauling material for the construction of the ice cream plant, at the price of $3.50 per day. The contention made by counsel for the plaintiff in the court below was that the agent of the plaintiff who secured the subscription did not have authority to make the contract with the defendant for the hauling. As we have already stated, there was testimony tending to show that he had authority to make that contract and that he did not allow the defendant to do any hauling in payment of his subscription. The parties themselves having placed a particular construction on the contract, they will be held bound to that construction here. [5] Again, it is objected by counsel for plaintiff that the contract for the hauling is void because too indefinite. As between two constructions, each reasonable, one of which will make the contract enforceable, and the other of which will make it unenforceable, that construction which makes the contract enforceable will be preferred. Thus, if a contract is open to two constructions, one of which will accomplish the intention of the parties and the other of which will defeat such intention or will make the contract meaningless, the former construction is to be preferred. 2 Page on Contracts, par. 1120. Tested by this principle of law, we do not think the contract was too indefinite to be of definite enforcement and capable of being ALEXANDER et al. v. PHILPOT et al. (Supreme Court of Arkansas. Oct. 12, 1914.) LICENSE PROCEEDINGS TO OBTAIN-RIGHT TO APPEAL “AGGRIEVED PARTY." Where, pending applications for licenses to sell intoxicating liquors on a petition for the granting of licenses alleged to have been signed by a majority of the white adult inhabitants of the city, as provided by Going Act February 17, 1913 (Laws 1913, p. 180), to which applicaed leave to take a nonsuit and withdraw the tions remonstrances were filed, petitioners askpetition, the remonstrants were not aggrieved by an order granting such application; its effect being to withdraw the applications for li censes. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. 88 74, 76-79; Dec. Dig. 75.* For other definitions, see Words and Phrases, First and Second Series, Aggrieved Party.] Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge. Petition by V. O. Alexander and others for a writ of mandamus against C. M. Philpot and others to compel the county court to make an order granting an appeal to the circuit court. From an order denying the writ, petitioners appeal. Affirmed. This is an appeal from a judgment of the Jefferson circuit court denying appellants' petition for a mandamus. The facts as disclosed by the pleadings and the agreed statement of facts in the record are substantially as follows: In January, 1914, H. B. Fienberg and divers other persons filed in the county court of Jefferson county their several applications for license to sell intoxicating liquors in the city of Pine Bluff. Some days thereafter they filed with the county court a petition purporting to contain the names of a majority of the white adult inhabitants of Pine Bluff, praying that license be granted for the sale of intoxicating liquors within that city. The petition was presented under the act approved February 17, 1913, and generally known as the "Going Act." Laws 1913, p. 180. The appellants appeared, under authority of the act, as remonstrants to the petition, and set up in their remonstrance that the petition did not contain a majority of the adult white inhabitants of the city of Pine Bluff as required by the act. The court 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 granted and the remonstrance thereto was in the nature of a suit between the parties, and it was agreed that the nonsuit be taken. On February 17th the remonstrants to the petition filed an affidavit for appeal, in which they set up: "That the appeal in this cause is taken because the remonstrants verily believe that they are aggrieved by the judgment of the court in allowing a nonsuit in this cause, and is not taken for vexation or delay, but that justice may be done." On the 18th of February, 1914, the county court made an order permitting the attorney for the petitioners to take the petition from the files, and on the 28th of February, 1914, the same petition containing additional names was filed in the county court, and the county court permitted the old petition to become the basis of the new petition for license. On the 20th of February the appellants, petitioners herein for the writ of mandamus, who were remonstrants in the county court, filed in the circuit court their petition in the present cause, praying a writ of mandamus to compel the county court to make an order granting an appeal to the circuit court, and directing the county clerk to transmit all of the original papers, including the original petition and the record entries, to the clerk of the circuit court. On the 16th of March, 1914, appelfants filed an amended petition, setting up substantially the same facts as already stated, and with the alternative prayer: The withdrawing of the petition placed in statu quo the matter of granting or not granting licenses to sell intoxicating liquors in the city of Pine Bluff. After the petition was withdrawn, no licenses could be issued until the "Going Law" was complied with. The order of the court allowing the petition to be withdrawn was, in legal effect, tantamount to making no order permitting licenses to be issued. The remonstrants were contending for this, and by the order of the court they obtained virtually that for which they were contending. They were therefore not aggrieved by the court's order and had no right to appeal from such order. In Phillips v. Coe, 85 Ark. 304, 108 S. W. 207, we said: "The parties who appealed from the order of the county court were parties to the proceedings, but they were not protestants, and therefore were not persons aggrieved by the judgment appealed from, within the meaning of the statute allowing appeals to be taken from judgments of the county court." The cases of Bordwell v. Dills, 70 Ark. 175, 66 S. W. 646, Williams v. Bordwell, 73 Ark. 418, 84 S. W. 474, and Clark v. Daniel, 77 Ark. 122, 91 S. W. 9, and other cases on which appellants rely, are not analogous and not in point. There the petitioners had signed a petition to put in force the three-mile law prohibiting the sale of liquor, and the court held that, after the petition had been filed with the county court and had been taken up for consideration, it was not within the province of the petitioners to withdraw "That if the circuit court should hold 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 appellants may then see proper to take; that an order be made in the nature of an injunction preventing the county court from considering the original petition as a basis for granting or refusing saloon license until the circuit court shall have heard and determined the relative rights of all parties as presented by the complaint." peace of the citizens. Here the petitioners were seeking to do precisely the opposite of what the petitioners were asking in those cases. Here the petitioners were asking that licenses be granted to sell intoxicating liquors, and the remonstrants were objecting to that, and when the petition was with W. B. Sorrells, of Pine Bluff, for appel-drawn it was equivalent, as before stated, to lants. W. D. Jones, of Pine Bluff, for appellees. WOOD, J. (after stating the facts as above). The record does not show that any one of the remonstrants prayed for an appeal to the circuit court; but, even if it had so shown, the remonstrants were not aggrieved by the ruling of the court in allowing the petition to be withdrawn. The remonstrants to the petition were, in effect, asking that the court make no order allowing licenses to sell in giving the remonstrants what they were asking for. In the language of the learned circuit judge: application for saloon licenses, which was pre"The withdrawal of the petition defeated all cisely what the remonstrants desired. The pettion became functus officio, so far, at least, as that case was concerned." As to whether or not a petition, after having been once filed and thereafter by the permission of the court withdrawn, could have other names added thereto and then be refiled as an original application for the grant |