(216 S.W.) ratification by appellant of the unlawful act by Boldin in withdrawing the fund. We cannot agree with the court in this regard. It is true appellant did not demand the money as soon as he discovered Will Boldin had drawn it out on forged checks, and that he waited eight or nine months thereafter before demanding same. His explanation for this is that at the time he made the discovery the money had been drawn out of the bank, and that he desisted for a time because Boldin claimed a disclosure of the facts would ruin him, and because of his promise to return the money to the bank. Appellant denied that he stated in the common pleas court that he told Will Boldin it was all right, after he discovered he had drawn out $50, and that he agreed to look to Boldin's crop in the year 1914 for the money. Had the record disclosed that appellee was prejudiced by appellant's failure to make disclosure promptly upon receiving the information, it might be said, as a matter of law, that appellant ratified the unlawful act of Boldin in withdrawing the fund; but, no prejudice being shown and no conduct disclosed indicating an approval and acquiescence by appellant in the unlawful act of Boldin in withdrawing the money, it cannot be said, as a matter of law, that appellant ratified the unlawful act. With reference to the ratification by a principal of the unauthorized acts of an agent, it was said in the case of Lyon v. Tams & Co., 11 Ark. 189, that: "The safer general rule, however, would seem to be that which Judge Story enunciates, and which is well sustained by almost all the authorities; that is, that the dissent must be expressed in a reasonable time after the information has been received, and thus the circumstances of each particular case will be regarded in determining the degree of promptitude incumbent upon the principal. As, if the danger of loss by delay be imminent, anything short of an instantaneous disavowal would be unreasonable, and if not so great, then a corresponding abatement of the rigor of the rule graduated upon principles of justice and fair dealing." So we think the question of ratification in the case at bar was a question upon which the jury was entitled to pass, under proper instructions. In dealing with the first issue, the suggestion made by this court that it would have been proper to give a peremptory instruction in behalf of appellant was based upon the facts before us, and can have no bearing upon a rehearing, if the record should disclose by competent evidence that Boldin represented to the cashier of the bank, at the time he made the deposit, that his name was Gilbert Robinson. For the error indicated, the judgment is reversed, and the cause remanded for a new trial. 1. RECEIVERS 142-PARTIES TO LEASE WITH RECEIVER BOUND TO NOTICE INCAPACITY TO CONTRACT WITHOUT COURT'S SANCTION. Where a receiver in a partnership dissolution suit made a rental contract after a petition for sale of the partnership land had been filed, and subsequently, and before any arrangement had been made by the tenants, subtenants, court ordered the receiver not to rent the lands, and share croppers to cultivate the land, the such tenants contracted at their peril, and were bound to take notice of receiver's incapacity to conclude a binding contract without the court's sanction, since they became parties to the litigation with respect to the property. 2. JUDICIAL SALES 51-THE COURT WILL ENFORCE PURCHASER'S RIGHT TO POSSESSION. Since the purchaser at judicial sale has a clear right to possession as against all parties to the proceedings, which right the court will summarily enforce by writ of assistance, the only exigencies which will warrant a denial of the writ are where the parties in possession are not parties to the suit and claim by legal right, or are entitled to hold on account of equibut tenants of the receiver are not so situated. ties paramount to the rights of the purchaser, 3. APPEAL AND ERROR 1175(1)-POSSESSION TO PURCHASER AT JUDICIAL SALE, JUDGMENT FOR RENTS GRANTED ON ERROR IN DENIAL OF. Where the error of chancellor in refusing a writ of assistance to a judicial purchaser cannot be remedied by restoration of the lands to the appellant, because the rental year has about closed, a technical reversal of the decree can only result in judgment in favor of the purchaser for rents and costs, which judgment will be directed by appellate court. Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor. Suit between J. Floyd Smith and William E. Murphy for dissolution of partnership, in which a receiver was appointed, and from a decree approving a rental contract made to the defendant Murphy and others and denying J. Floyd Smith a writ of possession, the latter appeals. Decree reversed, and judgment directed for the rental value of the lands. E. B. Stokes, of Humphrey, and Crawford & Hooker, of Pine Bluff, for appellant. Taylor, Jones & Taylor, of Pine Bluff, for appellees. HUMPHREYS, J. Appellant and William E. Murphy formed a partnership in 1905 to buy, cultivate, and sell lands, and to raise, buy, and sell live stock. They continued the partnership business until November 30, 1910, when a bill was filed in the Jefferson chancery court to dissolve the partnership, For other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes that it was the custom of the receiver to rent them in the fall for the following year; that the present contract was made in October or November, 1918, for 1919, in keeping with the custom, before the court made an order not to rent the lands for the year 1919; that the tenants had made sundry arrangements to, and they and their subtenants and share croppers were in possession of the lands, ready to cultivate them; that no other lands for miles around could be rented; and that the rental contract of $1,000 and necessary repairs was a fair rental for the lands. Evidence was adduced in support of the issuance of the writ, showing the sale, pursuant to a consent order, the purchase and execution of a secured and approved note for the purchase money, and tending to show that $1,000 and necessary repairs was not a reasonable rental value of the place for the year 1919. places. This contract of rental was made with the receiver after à petition for the sale of the lands had been filed. On December 5, 1918, before any arrangements had been made by the tenants, their subtenants, or share croppers to cultivate the lands, the court had ordered the receiver not to rent the lands for the year 1919. This order was clearly a disapproval of the rental contract made in the latter part of October or the first part of November. The general rule of law sell the personal property and place the real estate in the hands of a receiver for the purpose of rental, during the pendency of the proceeding. By consent of the parties, Dr. Arthur Fowler was appointed receiver. He accepted the trust and qualified by taking the oath and giving bond, after which he took charge of all the assets, sold the personal property, and applied the proceeds on the debts of the firm. He rented the lands from year to year up to and including the year 1919. His custom was to rent the lands in the fall for the succeeding year. On June 5, 1918, appellant applied for a sale of the lands in order to liquidate the unpaid indebtedness of the firm and wind up its affairs. Pending this application, either in the latter part of October or the first part of November, 1918, the receiver rented the lands known as the Murphy and Gross places to William E. Murphy and F. P. Bridge & Co. for the year 1919, at a rental of $1,000 and necessary [1] The sole issue presented by this appeal repairs. On the 5th day of December, 1918, is whether the court erred in refusing the the court made an order directing the re-writ of possession for the Murphy and Gross ceiver not to rent the lands for the year 1919. On January 4, 1919, by consent of parties, all the partnership lands were ordered sold. The lands were sold at public auction to appellant on January 29, 1919, for $32,250. He executed a note with approved security for the purchase money, and the commissioner reported the sale to the court and asked a confirmation thereof. On February 11th thereafter appellees interposed, by petition, objections to the issuance of a writ of possession for the Murphy and Gross places, on the ground that they had rented the lands for the year 1919 from the receiver, and had made arrangements for the cultivation of Appellant filed a reply to the petition, setting up his purchase, the,execution of an approved note for the purchase money, and asserting his right to a writ of posses[2] Not only the receiver, but also all parsion. On February 14, 1919, the receiver filed ties who contract with him in relation to the a report, setting up the rental contract for property in controversy held by him, become the Murphy and Gross places to F. P. Bridge parties in litigation in respect to the property, & Co. for 1919 for $1,000, and asking that and must be governed by the orders concernthe contract and his tenants' possession be ing it. It is a well-recognized principle of approved. The report of sale by the commis-law thatsioner and of rental by the receiver, the petition and response thereto, requesting a refusal of the writ of possession, together with the evidence introduced for and against the issuance of the writ, were submitted to the court, upon which the confirmation of the sale of the lands was decreed, the rental contract approved, and a writ for the possession of the Murphy and Gross places denied. From the decree approving the rental contract and denying the writ of possession, an appeal has been duly prosecuted to this court. same. Evidence was adduced in support of the rental contract tending to show that the tenants had rented and occupied the Murphy is that "All persons dealing with receivers do so at their peril, and are bound to take notice of their incapacity to conclude a binding contract without the sanction of the court." High on Receivers (2d Ed.) § 186; American & English Enc. of Law, vol. 23, p. 1066. "The purchaser at a judicial sale has a clear right to the possession of the property sold as against all parties to the proceeding in which the sale is made, and this right the court will summarily enforce by writ of assistance, or in some other appropriate manner." Am. & Eng. Enc. of Law (2d Ed.) vol. 17, p. 1014. It is true that a writ of assistance does not go as a matter of course, but it is also true that it is never withheld unless the exigencies of the particular case require it. The only exigencies which will warrant a denial of the writ are where the parties in possession are not parties to the suit and (216 S.W.) titled to hold on account of paramount equi- [trict. The statute provides for a board of ties to the rights of the purchaser at the sale. assessors to value the anticipated benefits. [3] We think the finding of the chancellor Section 14 of the statute, to the interpretato the effect that $1,000 and repairs was a tion of which the present controversy rereasonable rental for the places for the year lates, reads as follows: 1919 is supported by a preponderance of the "The state highway department shall at all evidence. The year has about closed, so the times render any assistance within its power, error of the chancellor in refusing the writ and if called upon by the district, shall have cannot be remedied by restoration of the general. supervision of the work of the enlands to appellant. At this late date a tech-gineer employed by the district. The construcnical reversal of the decree can result only in a judgment in favor of appellant for rents tion cost of the improvements of the road rowed money, shall not exceed in cost thirty herein called for, not including interest on borand costs. per cent. (30%) of the values of all lands and For the error indicated, the decree is re-real estate and real property in the district, versed, and judgment is directed here for $1,000, the rental value of the places, togeth er with his costs. as shown by the last county assessment; and in arriving at the proportion of the assessed value of any railroad, part of whose line or property is used for railroad purposes, within the district, the rate of value per mile of said railroad fixed by the state tax commissioner shall be used for each mile or fraction of a mile, or railroad or sidetracks within the district." Appellant is the owner of real property in the district, and instituted this action in the chancery court of Craighead county to restrain proceedings under the statute on the ground that appellees, who are the commissioners of the district, have made plans and are about to construct the improvement at a cost largely beyond the limits prescribed in that section of the statute. [1] The facts bearing on the point in controversy are set forth in the complaint and answer and must be taken as true, the court having overruled appellant's demurrer to the answer. and reported same to the county court for [2] The commissioners have adopted plans the construction of the improvement at a cost of $452,650, and the assessments on real property in the district for the year 1918 for Appeal from Craighead Chancery Court; state and county taxation, including tramArcher Wheatley, Chancellor. Action by F. H. Watson against C. M. Boydstun and others. From judgment for defendants, plaintiff appeals. Reversed and remanded, with directions. ways and railroads, amounts to the sum of $939,795.00, and 30 per centum thereof is $281,938.50. The cost of the improvement is, therefore, largely in excess of 30 per cent um "of the value of all lands and real estate and real property in the district as shown by Huddleston, Fuhr & Futrell, of Paragould, the last county assessment" of the assessfor appellant. A. P. Patton, of Jonesboro, for appellees. MCCULLOCH, C. J. The General Assembly of 1919 (regular session) enacted a statute creating a road improvement district designated as "Monette Road improvement district," composed of lands in Craighead county. Acts 1919, vol. 1, p. 105. The statute contains a description of the boundaries of the district, the route of the road to be improved, the names of the commissioners, and the authority to construct the improvement, borrow money, and levy and collect assessments on the benefits accruing to the lands in the dis ments for the year 1918 are to be considered as the basis. It is, however, alleged in the answer that the assessment for the year 1919, which was then in progress at the time this suit was pending in the court below (June 1919), would amount to the sum of $1,539,545, and that the cost of the construction of the improvement would not, according to the plans adopted, amount to more than 30 per centum of that sum. The question in the case, then, is whether the words "the last county assessment," in section 14 of the statute, relates to the last assessment preceding the enactment of the statute, or whether it means the last assess For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 216 S.W.-46 ment preceding the construction of the im- istence at the time of the passage of the provement. statute in creating a test for the limitation upon the authority of the commissioners with respect to the amount of the cost of im case of McDonnell v. Improvement District No. 145, Little Rock, 97 Ark, 334, 133 S. W. 1126; but in that case we were dealing with another subject, and nothing akin to the point involved in the present case was involved in that case. We are of the opinion that the special statute in question relates to an assessment already in existence, and that it fixes the com-provement. pleted assessment for state and county Counsel also rely on expressions in the taxation for the year 1918 as the basis for limiting the total cost of the improvement authorized by the statute. This is a special statute, it will be noticed, and contemplates immediate initiation and progress in making the improvement prescribed, and it is evident that the lawmakers intended to fix a definite basis for the limitation of the cost of the construction. It is left to the commissioners to form the plans for the improvement and to carry them out to completion, but this limitation was set by the lawmakers in the very beginning for guidance of the commissioners in determining whether or not the work could be done. Counsel for appellees rely on the case of Improvement District v. Offenhauser, 84 Ark. 257, 105 S. W. 265, where we construed a section of the general statute relating to improvement districts in cities and towns, which reads as follows: "It shall be provided by ordinance that the local assessment of benefits shall be paid in successive annual installments, so that no local assessment shall in any one year exceed twenty-five per centum of the assessed benefits accruing to said real property. The ordinance shall fix the day in each year when the local assessments for the year shall be paid, and the day fixed for the payment of the first installment shall not be later than sixty days from the date of the ordinance making the local assessment; provided, no single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property in such district as shown by the last county assessment." Kirby's Digest, 5683. According to the admissions in the answer, the commissioners are exceeding the limitation in the statute with respect to the cost of the improvement, and the court should have sustained the demurrer. The decree is therefore reversed, and the cause remanded, with directions to the chancery court to sustain the demurrer to the answer, and for further proceedings not inconsistent with this opinion. (141 Ark. 266) PEAY et al. v. SOUTHERN SURETY CO. (No. 59.) (Supreme Court of Arkansas. Dec. 15, 1919.) 1. ESTOPPEL 92(1)—OF PRINCIPAL TO DE NY RATIFICATION OF PAYMENT BY SURETY. Where, after a surety on the bond of a contractor, who was constructing municipal water and sewer system, had made payment to municipality in compromise of its action for nonfulfillment of the contract, the contractor recovered judgment against the city in the federal court, which judgment was rendered pursuant to a settlement specifically including any claim against the city on account of the surety's payment, held, that the contractor, having received benefit of the payment, was estopped from denying the surety's authority to make the same. 2. PRINCIPAL AND SURETY 66(2), 183 · Generally the liability of the principal is the measure of the liability of the surety, and if a surety pay where no liability exists against the principal, such payment will be treated as a voluntary payment, not recoverable from the principal. We decided in that case that the words "last county assessment" meant the last completed assessment in force, with additions made by the board of equalization, at the time of the passage of the ordinance levying the assessments of benefits. The statute there construed was a general and continuing one for the organization of improvement districts in cities and towns, whilst the statute now under consideration is a special one directly conferring authority to immediately proceed with the construction of the author-3. PRINCIPAL AND SURETY 183—LIABILITY ized improvements. It is clear that the general statute dealt with in the case cited above fixed a future date for the test in limiting the assessments on benefits according Where a contractor's application for an into the facts in each particular case at the demnity bond provided that, in any accounting between the contractor and the surety, the time of the enactment of the ordinance levy-surety should be entitled to credit for any and ing the assessments, and it is equally clear all disbursements made in good faith under the that the present statute looks backward and belief that it was liable, or it was necessary refers to the last assessment already in ex- to make the same, the surety, having in good OF PRINCIPAL FOR PAYMENT MADE BY SURE- (216 S. W.) faith made the payments and incurred expenses | addition to Nick Peay, were made parties dein investigating claims against the contractor fendant in the suit on account of alleged for nonperformance, held entitled to recover mortgage and judgment liens held by them the same, regardless of the general rule that the liability of the surety is that of the princi-troversy in this court concerning the reupon the same property. There is no conspective priorities of the lien claimants. The pal. 4. MORTGAGES 308-ABANDONMENT OF IN- only issues involved on the appeal grow out DEMNITY MORTGAGE LIEN. of the judgment rendered against Nick Peay Where a contractor executed a mortgage to and the lien declared upon the land to secure protect a surety on his bond, held, that the same. It was alleged in the complaint that fact that the surety, which had made pay- appellee had expended the amount aforesaid ments, etc., filed an intervention asserting in liquidation of claims against Nick Peay, rights in a judgment recovered by the contrac-growing out of an attempted performance of tor against the municipality, for which he was performing the work, was not an abandonment a contract made by him to construct a water by the surety of its mortgage lien. and sewer system for the city of Eufaula, Okl.; that said amounts were paid pursuant to and within the terms of an application for and an indemnity bond executed by appellee to said city of Eufaula to guarantee the 5. PRINCIPAL AND SURETY 185-RECOVERY OF ATTORNEY'S FEES AND EXPENSES INCURRED BY SURETY ON CONTRACTOR'S BOND. Under the terms of the indemnity agree-proper construction of said water and sewer ment, held, that a commercial surety was entitled to recover from its principal, a contractor for municipal work, the amount expended on attorney's fees and traveling expenses in defending suits, etc. systems, in accordance with the contract between said city and Nick Peay. The written application for and the indemnity bonds given by appellee to the city of Eufaula and the state of Oklahoma were made parts of the complaint. That portion of the application fixing the liability between appellant, Nick Peay, and appellee, Southern Surety Company, in case of default in the construction of the water and sewer systems, or in case of failure to pay for labor and material used in the construction thereof, reads as follows: 64 Will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all liability, damages, loss, costs, charges, and ex Appeal from Pulaski Chancery Court; J. E. penses of whatsoever kind or nature, including Martineau, Chancellor. 'Suit by the Southern Surety Company against Nick Peay and others. From a judgment for plaintiff for part only of the relief sought, defendants appeal, and plaintiff crossappeals. Affirmed on direct appeal, and reversed and remanded on cross-appeal. J. A. Comer and Mehaffy, Reid, Donham & Mehaffy, all of Little Rock, for appellants. Buzbee, Pugh & Harrison, of Little Rock, for appellee. counsel and attorney's fee, which the company shall or may at any time sustain or incur by reason or in consequence of having executed the bond herein applied for, or by reason or in consequence of the execution by the company of any and all other bonds executed for us at our instance and request, and that we will pay over, reimburse, and make good to the company, its successors and assigns, all sums and amounts of money which the company or its representative shall pay, or cause to be paid, or become liable to pay, on account of the execution of any such instrument, and on account of any liability, damage, costs, charges, and expenses of whatsoever kind or nature, including counsel and attorney's fees, which the HUMPHREYS, J. This suit was institut- company may pay, or become liable to pay, by ed in the Pulaski county chancery court by reason of the execution of any such instrument, or in connection with any litigation, appellee against appellants to recover $6,393.- investigation, or other matters connected there26 from Nick Peay, and to foreclose a mort-with, such payment to be made to the comgage given by Nick Peay and R. B. Malone, pany as soon as it shall have become liable on the 30th day of January, 1913, to secure therefor, whether the company shall have said indebtedness. Prior to the institution of the suit, R. B. Malone had died, and the administrator of his estate and his minor heirs, through their guardian, were made parties defendant to the suit, and are a part of the appellants herein. The other appellants, in paid out said sum or any part thereof or not. That in any accounting which may be had between us and the company the company shall be entitled to credit for any and all disbursements in and about the matters herein contemplated, made by it in good faith under the belief that it is or was liable for the sums For other cases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes |