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(248 S.W.)
was a part of the “premises," and was in-, tract to Nakdimen. This testimony is volu-
cluded in that designation. The second rea- minous and in many respects conflicting.
son was the fact, as it then appeared to us, This might well be expected as the basis of
that Nakdimen was not operating his ele most of it is the opinion of the witnesses as
Fator, and we had refused to compel him to to rental value. No useful purpose would be
do so. This refusal imposed upon the com served by setting this testimony out.
pany elevator the service which the parties We have had much difficulty in determin-
contemplated the two elevators should per- ing what the fair rental value is as shown
form. Nakdimen had breached his contract, by the testimony, and after carefully con-
as we found, and this breach was to be com- sidering this testimony and reconciling our
pensated by way of damages. The other own views in regard to it, we have concluded
privileges conferred by the contract, such as that the rental value should be fixed at $33.33
the use of the stairway, lobby, and hallways, per month, and the decree of the court be-
were being jointly used by the parties as the low will be modified to accord with that
contract contemplated, and the value of view,
these privileges was to be considered in de-
termining the rental value.

The Nakdimen elevator is now being oper-
ated, and the parties are getting what they
mutually contracted for originally. It ap WESTERN CRAWFORD ROAD IMPROVE.
pears the parties then contemplated there


CO. et al. would be a difference of opinion as to the

(No. 187.) rental value after the 10-year period, for they provided for an arbitration of that question (Supreme Court of Arkansas. Feb. 26, 1923. without requiring the parties to first con

Rehearing Denied March 26, 1923.) sider it.

1. Highways On90—Method of assessment to The reciprocal privileges for the 10-year

pay preliminary expenses, If improvement period were identical with those for the first

contemplated by special act creating district 10-year period, and “the rental to be paid by

is abandoned, held valid. the party of the first part to the party of the The method of assessment prescribed by second part for the concession and privilege special statute, extraordinary session 1920, herein granted, as herein set out," was the creating Western Crawford road improvement matter which the contract provided the arbi- district in Crawford county, if the contemplated trators should determine, but as Nakdimen improvement thereunder is abandoned, which failed and refused to name an arbitrator, as provides (section 25) that the preliminary exthere provided, it became the duty of the pense shall be a first lien on all of the lands court to make the finding which the arbi- in the district, paid by levy of a tax on the astrators should have made, and the direction sessed value for county and state taxation, is

valid. given to the court below was to make this finding after compensating the company for 2. Highways On90_Legislative determination Nakdimen's refusal to operate his elevator. as to preliminary expense of improvement

As we have said, the court below was large abandoned by improvement district conclusive, ly controlled, in fixing the rent at $25 per

unless prima faclo arbitrary and unreasona

month, by the fact that the parties had them-
selves fixed it at that amount, and it is in-

The legislative determination that the presisted that we, too, should reach the same

liminary expenses of an improvement abandonconclusion, for the reason that conditions

ed by an improvement district would not exceed

the anticipated benefits from its construction have not substantially changed since the ex- is conclusive, unless shown on its face to be ecution of the contract, and the parties were arbitrary and unreasonable. the best judges of the reciprocal value of th contract to each other.

3. Highways mil 22-Legislative determination The fact mentioned is, of course, very sig

as to method of determining benefits from an nificant, but it is not controlling. It now

improvement conclusive, unless shown arbi.

trary, and not so shown.
appears that the company elevator carries
97 per cent. of the traffic, with the consequent

While the assessment for preliminary excost of its operation, which the owners of penses of an abandoned road improvement unthat building must pay. This results chiefly exceed the anticipated benefits, the legislative

der a special act creating a district must not from the more convenient location of the determination as to the amount of the benefits company elevator, and from the fact that it or its provision for the method of determining is more modern. In other words, it now benefits, is conclusive, unless shown arbitrary, appears that the company is largely furnish- and it is not sufficient to overcome this by ing the elevator service which the contract showing that an incomplete assessment of bencontemplated should be jointly furnished. efits was less than the amount of taxes landThe testimony developed this and other facts owners would be required to pay under the which the numerous witnesses mentioned in method prescribed. testifying as to the rental value of the con Wood and Hart, JJ., dissenting.

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Appeal from Crawford Chancery Court;| cuted from that part of the decree. The reJ. V. Bourland, Chancellor.

mainder of the claims were approved by the Petition filed by the Western Crawford chancery court and ordered paid, but, in the Road Improvement District to assess the final decree rendered, the court refused to property of the Missouri Pacific Railroad order payment of assessments in accordance Company and other landowners in the dis- with the directions of the statute quoted trict, to pay preliminary expenses of an above, but ordered that the payments be abandoned road improvement. From the

made in proportion to the anticipated benedecree entered the district appeals. Re

fits assessed by the board of assessors. versed and remanded, with directions.

It appeared from the proof that the prop

erty of two railroad corporations, whose E. L. Matlock, of Van Buren, for appel. lines of railroad ran through the district, lant.

would, under the method of assessment preThomas B. Pryor, of Ft. Smith, for ap-scribed by the statute, amount to more than pellees.

the whole of the anticipated benefits as as

sessed by the assessors of the district. It McCULLOCH, C. J. A road improvement is shown that the assessed benefits of the district, designated as Western Crawford Missouri Pacific Railroad were $1,960, whereroad improvement district, was created in

as the levy of the tax on that property, acCrawford county by special statute (unpub-cording to the "assessed value for county and lished) at the extraordinary session of the state taxation,” would amount to $2,396.62. year 1920, and there were proceedings under The board of assessors had assessed the the statute up to the assessment of benefits property of the St. Louis-San Francisco by the assessors and the filing of the list of Railway Company at $2,341.50, and it is assessments with the clerk of the county court shown that the amount to be paid on a levy for approval by the board of commissioners. in accordance with the provisions of the The statute contained the usual provisions

statute would be $2,769.40. with reference to giving notice of the assessments and providing for a hearing upon the the ground that the assessment made by the

The chancery court based its conclusion on correctness of the assessments.

On the day provided for the hearing, there board of assessors was conclusive as to the were numerous protests made by owners of amount of anticipated benefits from the conproperty to further proceedings toward the struction of the improvement, and that the construction of the improvement, on the owners of property could not be taxed for ground that the improvement was too ex- preliminary expenses in excess of the anticipensive, and that the cost would probably pated benefits. exceed the benefits, and the commissioners, [1] It will be observed that the statute inwithout acting upon the list of assessments volved in this inquiry expressly provides filed by the assessors, decided to abandon the that, in case the contemplated improvement whole project as being impracticable. There is abandoned, “the preliminary expense shall were no further proceedings towards carry-be a first lien upon all of the lands in the ing out the construction of the improvement, district, and shall be paid by a levy of a but there had been preliminary expenses in- 1 tax thereon upon the assessed value for curred, and the statute contained the follow; county and state taxation." This court has ing provision with reference to the payment decided heretofore that the method of asof such expenses:

sessment prescribed in this statute is valid “Sec. 25. In case, for any reason, the im- as applied to the method of payment for a provement contemplated by this district is not completed improvement (St. L. S. W. Ry. Co. made, the preliminary expense shall be a first v. Board of Directors, 81 Ark. 562, 99 S. W. lien upon all of the lands in the district, and 843), or for the method of payment of preshall be paid by a levy of a tax thereon upon liminary expenses (Board of Directors y. the assessed value for county and state taxa- Dunbar, 107 Ark. 285, 153 S. W. 96: Neterer tion, which levy shall be made by the chancery v. Dickinson & Watkins, 153 Ark, 5, 239 S. court of Crawford county and shall be collected W. 722). The decisions on this question were by a receiver to be appointed by said court."

based on the ground that the statute conTne commissioners of the district, pursu

stituted legislative determination that ant to the provisions of that part of the stat- benefits would accrue in proportion to value. ute quoted above, prepared an itemized state- Special application of this rule was made ment or list of the preliminary expenses, in the Neterer Case, supra, where a different and filed a petition in the chancery court method of assessment had been provided unof Crawford county, setting forth in detail der the statute for payment of the cost of the all the proceedings in connection with the improvement, if completed. In that connecpreliminary expenses incurred, and asked tion we said: the court to levy a tax upon the property in "The two methods of assessment are for the district to raise funds for the payment wholly different purposes. One is for the payof such expenses. The court disallowed one ment of the cost of the completed improvement,


(248 S.W.) portioned on benefits to accrue. The other is an incomplete assessment of benefits made by å mere provision for the payment of prelimi- the board of assessors was less than the nary expenses where the improvement is not amount of taxes that the appellees would be undertaken at all. This provision necessarily required to pay under the other method implies a determination by the Legislature that

prescribed by the statute. there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, fusing to follow the statute, and the decree

The chancery court erred, therefore, in re-
apportioned according to assessments for coun-
ty purposes, but it is neither unfair nor vio- is reversed and the cause remanded, with di.
lative of any right of landowners to provide rections to enter a decree levying taxes on the
that, in the event the contemplated improve- property in the district in accordance with
ment is not undertaken, the preliminary ex- the terms of the statute; that is to say, "upon
penses shall be paid according to value, and the assessed value for county and state pur-
not according to anticipated benefits. The dis-

tinction lies between the payment of prelimi.
pary expenses and payment of the actual cost
of the improvement."

WOOD and HART, JJ., dissent.

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[2] It is true that we reiterated in that
case what had already been held in the Dun-
bar Case, supra, that assessments for pay-
ment of preliminary expenses could not be COLUMBIA SCHOOL SUPPLY CO. V. CALI.
exacted in excess of 'anticipated benefits, but


(No. 164.) in each of those cases we emphasized the principle that a provision for payment of (Supreme Court of Arkansas. Feb. 12, 1923. preliminary expenses necessarily implied a

Rehearing Denied March 26, 1923.) legislative determination that the cost of the preliminary expenses would not exceed Contracts no 240_Evidence showed modifica. the anticipated benefits from the construc

tion of contract for school desks, but not comtion of the improvement. The legislative de

plete novation thereof. termination is conclusive, unless shown on

Where a school district ordered supplies its face to be arbitrary and unreasonable. which included 288 tubular desks from a third Desha Road Imp. Dist. v. Stroud, 153 Ark. person who placed order for the desks with

plaintiff and assigned to it so much of the order 587, 241 S. W. 882, and cases cited therein.

as included the desks as security for payment,
There is nothing shown in the present case in an action against the school district for the
to overcome the legislative determination, ex- amount of goods shipped after notice of as-
cept the unapproved assessment lists filed by signment was given the district, evidence held
the board of assessors. The assessment was to show a modification of the contract but not
incomplete, because it was never approved a complete novation thereof.
by the board of commissioners. The point

Wood and Hart, JJ., dissenting.
was never reached for the approval, for there
was an abandonment of the district before

Appeal from Circuit Court, Izard County;
this was done, and we do not certainly know W. L. Pope, Judge.
what the assessments against the railroads

Action by the Columbia School Supply would have been had the assessment of bene- Company against the Calico Rock Special fits proceeded to finality.

School District. From a judgment for de (3) Counsel for appellees lay stress upon fendant, plaintiff appeals. Reversed and the statement in the opinion in the Neterer

rendered conditionally; otherwise remanded Case to the effect that the payment of pre

for new trial.
liminary expenses must not exceed the an-
ticipated benefits, but this was a mere re-

Rogers, Barber & Henry, of Little Rock,
iteration of what we have held in other cases for appellant.
in regard to taxation upon property, and was

John L. Bledsoe, of Pocahontas, and God. a mere statement of the principle, without win & Sherrill, of Melbourne, for appellee. undertaking to determine how it might be shown that the taxes exceeded those benefits. HUMPHREYS, J. Appellant instituted We have always adhered to the principle that suit in the Izard circuit court against appel. the right to tax for local improvements is lee to recover $1,432.80 for school desks allimited to the amount of anticipated benefits, leged to have been sold and delivered to apbut, at the same time, we have consistently pellee by appellant. held that the legislative determination of Appellee filed an answer denying that it the amount of benefits, or the legislative pro-owed appellant for the desks, stating that the rision for the method of determining bene- desks in question were purchased from the fits was conclusive unless shown to be ar- Educational Supply Company and paid for bitrary. So we hold now that this legisla-in cash and school warrants when the purtive determination is conclusive, and it is not chase was made, and that said school warsufficient to overcome this by showing that rants were subsequently redeemed.

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The cause proceeded to a hearing upon the , cational Supply Company to said Columbia pleadings and testimony, at the conclusion School Supply Company." of which both appellant and appellee requested a directed verdict. The court therefore A part of the desks were shipped before a found the issues in favor of appellee and ren-copy of the written assignment was mailed ered judgment accordingly, from which an | to appellee and before any correspondence appeal has been duly prosecuted to this occurred between appellant and appellee. court.

There was a delay in the delivery of the The facts in substance, as reflected by the shipment and some delay in making the rectestimony of the several witnesses and the ond shipment, so W. D. Mathews, secretary correspondence between the parties, are as of the school district, inquired of J. F. Driesfollows: On the 24th day of November, 1919, back the cause of the delay. Driesback inappellee ordered in writing a large amount formed Mathews that the desks were to be of school supplies totaling $4,350.10, which in- shipped by appellant. Mathews then wrote cluded 288 tubular desks, from J. F. Dries- appellant to hurry up the shipment. Appelback, who was doing business in the name lant answered that the delay was due to the of the Educational Supply Company. The failure of Driesback to assign the order, but Educational Supply Company ordered the that same had been assigned and a part of desks from appellant to be shipped to appel- | the desks shipped, and that the others would lee at Calico Rock, Ark., and for the purpose be shipped immediately; that Driesback of securing such indebtedness as the Educa- had assigned the account to it as security, tional Supply Company owed appellant, the and that appellee must not settle with Driesorder of appellee for the desks was assign- back until informed that Driesback had ed in writing to appellant. The original made satisfactory settlement with appelorder for the desks recited that in settle-lant. A part of the desks were shipped diment of the school supplies ordered, said ap- rectly to appellee, received, and installed; pellee had paid the Educational Supply Com- the others were shipped to shipper's order pany $2,000 in cash, and had issued and de- with bill of lading attached. After some livered to said supply company two school correspondence they were released upon aswarrants in the respective amounts of $1,350 surance of W. D. Mathews that appellee and $1,000, due July 15, 1920. The written would pay appellant direct. An itemized assignment is as follows:

statement of the shipments was mailed to “Whereas, the Educational Supply Company, appellee, but the amount of the account was a corporation of Little Rock, Ark., has an or

not inclosed. According to the tenor of the der for a certain number of Perfection sanitary letters, appellant did not know what amount steel school desks made by the Columbia School was due under the contract from appellee to Supply Company, a corporation of Indianapolis, the Educational Supply Company and could Indiana, said order coming from the schools not make a correct statement of the amount at Calico Rock, Ark., which said order will ap- due. Mathews explained that when he proximate $1,400.00, more or less; and whereas the Educational Supply Company is indebted wrote appellant that appellee would pay it to the Columbia School Supply Company,

direct he thought appellant had the outstandagainst which indebtedness it has sent some ing warrant for $1,000, and that he meant certain vouchers from other schools but not appellee would pay whatever balance might an amount sufficient to cover all its indebted- be due the Educational Supply Company upness, including the order above mentioned; on settlement, directly to appellant. J. C. now, therefore, to induce the Columbia School Moore, the general manager of appellant, Supply Company to ship the order to Calico testified that he released the shipment on the Rock, said Educational Supply Company does hereby assign, set over and transfer said order promise of appellee that the account would from Calico Rock, together with all obligation be paid directly to appellant meaning that of the school for shipment of said desks, to appellee should pay the invoice price of the Columbia School Supply Company to se- $1,432.80 less freight, drayage, and assemcure the indebtedness of said Educational Sup- bling. At the time appellee promised to make ply Company.

direct payment to appellant, it had reThe Colimbia School Supply Company will ceived the assignment of the order or allow the Educational Supply Company to collect for said shipment of desks from Calico contract by the supply company to appelRock as agent for the Columbia School Sup- lant, and had not redeemed the outstandply Company unless such authority is later ing warrant of $1,000. The letters writwithdrawn, which right the Columbia School ten to appellee subsequent to the delivery Supply Company withholds. In the event that and installation of the desks disclosed that the Columbia School Supply Company receives appellee owed the Educational Supply Comin cash or in accepted school board warrants or pany a balance of $712.47 after deductvouchers the sum sufficient to cover the in- ing freight, drayage, and installation chargdebtedness from the Educational Supply Company, including shipment to Calico Rock, then es from the outstanding warrant of $1,000. this assignment shall be null and void, but oth- The letters written in response by appellant erwise shall be in force up to the extent that expressed surprise that the amount was so

(248 S.W.) the amount, if paid directly to it in cash or contract was with the privilege of renewal, and in a warrant, if made to include interest. asking for a reformation, evidence of alleged The payment was not made direct, presum- fraudulent misrepresentations concerning the ably because the balance covered by the out- contents of the contract were insufficient withstanding $1,000 warrant had, in the mean

in the rule requiring that grounds of relief time, been assigned by the Educational Sup

must be established by clear and convincing evi

dence. ply Company to Peters & Volz.

Appellant insists that the judgment
shonld be reversed because the evidence is Ben F. McMahan, Chancellor.

Appeal from Washington Chancery Court; insufficient to support the judgment; and for a judgment here for the amount sued for less Action by the Outcault Advertising Comfreight, drayage, and assembling charges, up pany against the Arkansas National Bank. on the ground that such a judgment is war. From a decree for plaintiff, defendant ap ranted by the undisputed testimony.

In peals. Affirmed. other words, appellant contends that under B. R. Davidson, of Fayetteville, for appelthe undisputed evidence there was a com lant. plete novation of the contract. We cannot Jno. W. Grabiel, of Fayetteville, for appelfully agree with appellant's interpretation lee. of the testimony. The evidence is entirely wanting to support the judgment rendered McCULLOCH, C. J. Appellee, a foreign by the court; but the testimony, as now re- corporation, is engaged in the business of vealed by the record, is sharply conflicting furnishing to banking institutions and other as to whether appellee is indebted to appel- business institutions supplies for advertising lant in a sum greater than $712.47. The un purposes, to be paid for in weekly installdisputed testimony, as now reflected by the ments, and appellant entered into a written record, does show a modification of the con contract with appellee in the form of an actract, but not a full and complete novation | cepted order for furnishing supplies and thereof. According to the undisputed testi- services of the character just mentioned for mony, payment was to be made directly to a period of two years, beginning with the appellant in some amount. The amount, date of the contract (December 20, 1916), however, is not disclosed by the undisputed with the further stipulation that the contestimony. The testimony introduced by ap

tract waspellant tends to show that the sales price, "to continue in full force and effect for a furless freight charges, etc., is the correct ther period of three successive years on the amount, and the testimony introduced by ap- same conditions, unless we (the appellant) nopellee tends to show that $712.47 is the cor- tify you to the contrary in writing on or before rect amount.

February 1, 1918." For the error indicated the judgment is

That portion of the order which specifies reversed, but a judgment for a larger sum the unconditional period of the contract is than $712.47 cannot be rendered here on the in the beginning of the printed order, but the undisputed evidence. Judgment is directed other portion is in the middle of the last to be entered for that amount, if, within 15 clause of the contract, a place more obscure days, appellant assents thereto; otherwise than at the top of the writing. the cause will be remanded for a new trial.

Appellee furnished the supplies until ap

pellant unequivocally refused to accept the WOOD and HART, JI., dissenting.

same, which was in August, 1918. Appellant did not exercise the option of countermanding the order until after the expiration of the time specified in the contract. In other

words, the first request made by appellant ARKANSAS NAT. BANK V. OUTCAULT for discontinuance of the service was by letADVERTISING CO. (No. 185.)

ter dated March 22, 1918. This letter writ(SuĻreme Court of Arkansas. Feb. 26, 1923. ten by appellant did not claim the privilege Rehearing Denied March 26, 1923.)

of discontinuing the service as a matter of

right under the contract, but requested apReformation of instruments Omw45(2) Evi- pellee, as a matter of grace, to release appeldonce insufficient to establish fraudulent rep- lant from further performance of the conresentation concerning contract to be within

tract, rule of relief.

Appellee instituted this action in the cirWhere an advertising order provided for cuit court of Washington county against apautomatic renewal unless an option of countermanding was exercised by buyer, in an action pellant to recover the amount due under the for supplies furnished after the original term contract, but appellant filed an answer and bad expired in which buyer alleged fraud of cross-complaint, alleging false and fraudulent plaintif's agent in procuring the contract

, in misrepresentations of appellee's agent in se that defendant understood from him that the curing appellant's signature to the contract,

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