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The Batesville stone was substituted in its, in the building during the progress of the place, and the substitution made no difference work, they had a right to make these changwhatever in the appearance of the building, es, and that they did not render the contract except in the color of the stone. Both stones void. We do not mean to hold that they were suitable for the erection of the kind of had a right to change the general plans of building under construction, and there ap- the building and construct a building of pears to be no difference in their suitableness wholly different kind and character from for that purpose as far as durability is con- that provided for under the original contract. cerned. Therefore it was entirely proper To do so would be a palpable evasion of the to make this change.

Constitution and statute regulating the erecThe building, as originally contemplated, tion of public buildings, and would constitute was not what is commonly known as steel fraud. But we do not think the changes construction, but was a combination of steel made in the erection of the courthouse annex and masonry construction. The steel con were of that character, and are of the truction was supported on brick walls; in opinion that they did not change the subother words, the interior walls were built stantial character and general plan of the of brick, On these brick walls were to be building. placed steel I-beams, resting from one brick [2] It is also contended by appellant that wall to another at intervals of from six to the changes and modifications made in the ten feet. On top of that was placed a rein- original contract were procured by fraud. forced concrete slab. The roof was to be con- The county judge, the courthouse commisstructed in like manner, except that it was sioner, the architect, and the contractor all to be made of cinder concrete.

testified that the reduction made on acThe change to reinforced concrete construc- count of the changes is fair and adequate, tion gave about 6,000 square feet of addi- and represents the difference in cost of contional floor space. The evidence shows that struction. They say that the changes were the reinforced concrete construction makes a made honestly and in good faith and because better kind of building than the construction it was necessary to do so in order not to under the original plan, because the building unduly delay the erection of the building. is put up independently of the walls, and the The evidence on the part of the appellees interior arrangement of the building can be shows that the Batesville stone was placed easily changed. Under the plan of the origi- in the first story before this suit was comnal construction, the interior arrangement of menced, and that the change in the interior the building could not be changed, because construction from steel and masonry to reinthe brick wall supported the building. The forced concrete was practically completed betestimony shows that the reinforced concrete fore the suit was instituted. The contractor construction was as durable as that provided testified that on this account he knew exactfor under the original plan, and that the in- ly what the changes cost, and that he did terior arrangements of the building can be not charge any profit to the county but only easily changed under the altered construc- required the county to pay him the actual tion, for the simple reason that the parti- cost of construction, as far as these changes tions are carried independent on each floor are concerned. He took up the plans and and that the interior wall can be shifted specifications in detail and showed what the about in any way required. Under the origi- work actually cost. He also took the original plans and specifications, the work was nal plans and specifications and, in a detailed let to Campbell for the sum of $565,987. Un- manner, showed what the cost would have der the contract as modified, the county was been under them. He said the reductions allowed the sum of $9,554 on account of the allowed to the county actually represented changes made in the construction of the the difference in cost of construction. Witbuilding. No change has been made in the nesses who were en ged in cut stone, margeneral plan of the building. It presents ble, and granite work in Little Rock, Ark., the same general appearance, both on the testified that they were familiar with the interior and exterior of the building, except prices of Arkansas granite and Batesville that the color of the stone on the first floor stone, and knew the difficulties in procuring is different. The substantial character of the Arkansas granite. They took the dethe building remains as it was under the tailed plans and specifications of the original original plans and specifications.

contract for the Arkansas granite, and the When we consider the cost of the change detailed plans and specifications under which as compared with the cost of the whole build- the Batesville stone was substituted for the ing under the original contract, and the re- Arkansas granite, and, after figuring and lation of the changes made to the whole estimating the difference in the cost of the building, and the necessity for the same, as two stones, say that the reduction allowed well as the conditions which confronted the the county by the contractor was fair and county court and the courthouse commission represented the actual difference in the cost er, inducing them to make the change, we of substituting the Batesville stone for the are of the opinion that, under the terms of Arkansas granite. the original contract providing for changes Other witnesses who had had great ex

MISSIBILITY.

perience in constructing buildings of rein. 12. USURY ($_115*) - PAROL EVIDENCE — ADtorced concrete took up the original plans

Parol evidence is admissible to show that and the changed plans in detail, and testi

a contract for the purchase and resale of land fied that the reduction made represented is a mere cloak for usury. the actual difference in the cost of substitut- [Ed. Note. For other cases, see Usury, Cent. ing reinforced concrete for steel and masonry Dig. $ 326; Dec. Dig. $ 115.*] construction on the interior of the building. 3. APPEAL AND ERROR ($ 842*) — REVIEW The testimony shows that the change gave QUESTIONS OF Fact. an additional floor space of 6,000 feet, and

In a suit to have a conveyance declared a

usurious mortgage, evidence held to make a that the reinforced concrete construction was question of fact for the trial court as to whethas durable and more desirable than the con- er defendant loaned plaintiff the money with struction provided for in the original con- which to carry out a contract of purchase with tract because the interior arrangement of a third person taking a deed as security, or

whether he purchased the land from the third the rooms could be changed if it became de person and resold it to plaintiff. sirable in the future to do so. Opposed to [Ed. Note. For other cases, see Appeal and this is the testimony of appellant's witnesses | Error, Cent. Dig. $8 3316–3330; Dec. Dig. $

842.*] as to the difference of the cost of the building, as originally planned, and of the same 4. APPEAL AND ERROR (8 1009*)_REVIEWas changed. None of these witnesses took

QUESTIONS OF FACT.

The chancellor's findings of fact will not be up the plans and specifications in detail and disturbed on appeal unless against the preponfigured as to the difference in cost. They derance of the evidence. only testified in a general way that the (Ed. Note.-For other cases, see Appeal and cost would have been much less under the Error, Cent. Dig. $$ 3970–3978; Dec. Dig. 8

1009.*] original plans and specifications. One of them frankly admitted that his estimate Appeal from Logan Chancery Court; J. V. was only a guess, and the others admitted Bourland, Chancellor. that their testimony was not based upon an Suit by A. G. Prickett and wife against examination of the detailed plans and speci- Charles X. Williams. From a decree dismiss. fications, but was made from their general ing the complaint, plaintiffs appeal. Afknowledge of the matter.

firmed. Without meaning in any way to reflect upon their integrity and honesty of purpose,

Robt. J. White, of Paris, for appellants. we do not think that the general declarations Anthony Hall, of Paris, for appellee. made by them are sufficient to overcome the testimony given by the witnesses for the

HART, J. In the spring of 1911, T. M. appellees, as above set forth, and established Downs made an agreement with A. G. Prickfraud. We have not attempted to set out ett to sell and convey to him 130 acres of in detail the testimony of the witnesses land, and the price agreed upon was $1,750 ; on the question of fraud. To do so would $300 of the purchase money was paid down, extend the opinion beyond reasonable limits and the balance of $1,450 was to be paid on and could serve no useful purpose. The January 1, 1913. Downs executed a deed testimony is set out at length in the ab- to A. G. Prickett for 90 acres of the land and stracts of both parties, and we have careful- to his wife for the remaining 40 acres. The ly and patiently considered it and weighed deeds were deposited by Downs with Charles it in all its bearings, and have reached the X. Williams to be delivered to Prickett upon conclusion that the finding of the chancellor the payment of the balance of the purchase in favor of appellees is not against the pre money on January 1, 1912, and it was unponderance of the evidence.

derstood that if the money was not paid on [3] It is well settled in this state that the that date the deeds were not to be deliverfindings of fact made by a chancellor willed, and the verbal contract of sale was to be not be disturbed on appeal unless they are canceled. Prickett entered into possession against the clear preponderance of the evi- of the land, but failed to make the payment dence.

on the 1st day of January, 1912. When The decree will therefore be affirmed.

Prickett failed to pay the balance of the purchase money on January 1, 1912, it was agreed that Downs should make a deed

to Charles X. Williams to the land for $1,PRICKETT et ux. V. WILLIAMS.

450, which was done. Williams made a (Supreme Court of Arkansas. Dec. 1, 1913.) contract in writing with Prickett, whereby he 1. MORTGAGES_(§ 32*)—ABSOLUTE DEED As agreed to make him a deed to the lands in MORTGAGE-EVIDENCE.

question on a payment to him, on or before A deed absolute in form will be construed June 1, 1912, of the sum of $1,550; and the to be intended as a mortgage if the proof of agreement provided that if the payment was such intent is clear, unequivocal, and convincing.

not made on or before that date the contract [Ed. Note.-For other cases, see Mortgages, should be of no effect. This suit was instiCent. Dig. S$ 60–66, 84-94; Dec. Dig. $ 32.*] tuted by Prickett and his wife against Wil

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

ous.

liams, and its object and purpose is to have question, and I was perfectly familiar with the conveyance from Downs to Williams de- it. I never agreed to lend him money to pay clared to be a mortgage, and the debt which off the balance due on the land. I told him it was given to secure is alleged to be usuri. I thought he had agreed to pay too much

The chancellor held that the transac- money for the place; he having agreed to tion complained of was a sale and not a loan pay $1,750 for it and having already paid of money from Williams to Prickett. A de $300 of this amount. I bought the land from cree was accordingly entered, dismissing the Mr. Downs and paid him $1,450 for it. I complaint for want of equity, and the case is then agreed to sell it to Mr. Prickett for $1,here on appeal.

550." [1, 2] The appeal raises the question as to Mrs. Mattie Edwards testified: "I heard whether the alleged contracts of purchase part of the conversation between Mr. Wiland of resale were a mere cover for a loan. liams and Mr. Prickett in regard to the land We have held that a deed absolute in form in question, but did not pay much attention will be construed to be intended as a mort- to it. I heard enough of the conversation gage in effect if the proof of such intent is between them to know that Mr. Prickett clear, unequivocal, and convincing. Griffin wanted to borrow money and Mr. Williams v. Welch, SS Ark. 336, 114 S. W. 710; Rush- refused to lend to him. Mr. Williams said ton v. Mclllvene, 88 Ark. 299, 114 S. W. 709. the only way he would have anything to do We have also held that parol evidence is ad- with the transaction would be to buy the missible to show that contracts of purchase land outright." and of resale of land may be a mere cloak Dorsey Yancy testified that he was a tenfor usury. Lowe v. Loomis, 53 Ark. 454, 14 ant on the place, and that Prickett told him S. W. 674; Tillar v. Cleveland, 47 Ark. 287, that he had arranged things with Mr. Wil1 S. W. 516.

liams; that a deed had been made to the [3] Prickett testified that he borrowed the land to Mr. Williams for so much money, $1,450 from Williams to pay Downs for the and that he had a contract with Williams. land, and that he was to pay him $100 bonus [4] Thus, it will be seen that it is a quesand 10 per cent. interest. That the deed tion of fact whether or not Williams bought was executed by Downs to Williams for the the land and then contracted to resell it to purpose of securing the latter. Prickett stat. Prickett, or whether the transaction was a ed that the contract with Williams purport- mere cloak for usury. The testimony of Wiling to resell the land to him was executed on liams and Prickett in regard to the transthe 8th day of January, 1912, before the action is in direct and irreconcilable conflict. deed from Downs to Williams was execut. While Downs testifies that he understood ed and delivered.

that Williams was lending money to Prickett T. M. Downs testified: “After Mr. Prick. with which to pay him the balance of the ett failed to pay the balance of the purchase purchase price of the land, he also states money on the land on the 1st of January, that Williams said that he would have noth. 1912, he came to me and said that he had ing to do with the matter unless all the made arrangements to get the money from strings were cut loose and a deed was made Mr. Charles X. Williams to pay me. We direct to himself. He further stated that then went down to the bank, of which Mr. he did not know what Williams meant by Williams was cashier, to talk over the mat- saying that all the strings must be cut loose. ter, and Williams said that he would not It is evident, however, from Williams' testi. have anything to do with the matter unless mony, and that of Mrs. Edwards, that he all the strings were cut loose. He said: 'I meant that he would not have anything to will take up the deal, but all strings will do with the matter unless the contract behave to be cut loose on that place, and I will tween Downs and Prickett was canceled, in have to have the deed direct to me. I exe which event he would purchase the land himcuted a deed to Williams for the land, and self and resell it to Prickett, provided the he paid me $1,450. I do not know that I un- terms could be agreed upon. While Mrs. derstood at any time that I was selling the Edwards testified that she did not pay much land to Williams. I understood the agree attention to the conversation between Prickment between Prickett, Williams, and my- ett and Williams, she does state that Prickself to be that I would have to make Wil- ett was trying to borrow money from Williams a deed for the place, as I was looking liams, and that Williams refused to lend it to him for the money; but I thought I was to him. She also says Mr. Williams said the carrying out my original deal with Prickett. only way he would have anything to do with Williams executed a written contract to the place was to buy it outright. Under Prickett, whereby the latter was to pay him this state of the proof, the chancellor found $1,550 for the land."

that the transaction in question was a purCharles X. Williams testified: "Prickett chase by Williams from Downs and a re applied to me to borrow money, both as sale by Williams to Prickett, and that it was cashier of the bank and as a private individ- not a loan of money from Williams to Prick: ual, and I refused to lend it to him. My ett. It is well settled that the findings of grandfather owned and settled the land in fact made by a chancellor will not be dis

turbed on appeal unless against the prepon- | telegraph blanks limiting damages for delay to derance of the evidence.

$50 is ineffectual to so limit the recovery for It follows that the decree must be affirmed. negligence in transmitting a death message.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. $$ 39-47; Dec. Dig. $ 54.*]

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WESTERN UNION TELEGRAPH CO. V.

Appeal from Circuit Court, Pike County; HEARN.

Jeff. T. Cowling, Judge.

Action by Mrs. Jennie Hearn against the (Supreme Court of Arkansas. Nov. 17, 1913.)

Western Union Telegraph Company. From 1. TELEGRAPHS AND TELEPHONES (

873*)TRANSMISSION OF MESSAGES - DELAY – AS

a judgment for plaintiff, defendant appeals. SESSMENT OF DAMAGES.

Affirmed. In an action for damages for delay in transmitting a death message, evidence of neg

Geo. H. Fearons, of New York City, Rose, ligence held sufficient to go to the jury.

Hemingway, Cantrell & Loughborough, of [Ed. Note. For other cases, see Telegraphs Little Rock, and W. C. Rodgers, of Nashand Telephones, Cent. Dig. $ 76; Dec. Dig. $ville, for appellant. S. S. Langley and A. P. 73.*]

Steel, both of Murfreesboro, for appellee. 2. TELEGRAPHS AND TELEPHONES (8 66*) — TRANSMISSION OF MESSAGES-DELAY. Where a telegraph company accepted a

McCULLOCH, C. J. The plaintiff, Mrs. death message on Sunday and transmitted it to Jennie Hearn, instituted this action against within a short distance of the destination be the Western Union Telegraph Company to refore 2 o'clock in the afternoon, and the message was not delivered until 8 o'clock the following cover damages on account of alleged neglimorning, the telegraph company has the burden gent failure of appellant to deliver a teleof explaining and excusing its unreasonable de gram apprising plaintiff of the death of her lay.

father. She alleges and attempts to prove [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. 88 61-63; Dec. Dig. that, if the telegram had been delivered with § 66.*]

reasonable promptness, she could, and would, 3. TELEGRAPHS AND TELEPHONES ($ 38*)-DE- have reached the place where her father died LAY IN TRANSMISSION OF MESSAGE_EXCUSE. in time to attend the funeral, and that she

Where a telegraph company accepted a suffered mental anguish by reason of being death message for transmission on Sunday, and

The plaintiff it was not transmitted because of a defect in deprived of that privilege. the line, the fact that the lineman refused to lived at Roseboro, Ark., a point on the railrepair it on that day will not alone excuse the road north of Gurdon, and her father, R. B. company; for, having accepted the message, it Alexander, lived at Whelen, Ark., a railroad was bound to use reasonable diligence and is point south of Gurdon. Her father died at chargeable with the lineman's negligence.

[Ed. Note.-For other cases, see Telegraphs Whelen early in the morning on Sunday, and Telephones, Cent. Dig. § 33; Dec. Dig. 8 October 6, 1912, and about 10 o'clock that 38.*]

morning one Stone delivered to defendant's 4. APPEAL AND ERROR (8 882*)—PERSONS En- telegraph operator at that place a message TITLED TO ALLEGE ERROR.

directed to plaintiff in the following lanIn an action against a telegraph company guage: "Father died about 1 o'clock. Come for damages for delay in the transmission of a death message, where proof of the giving of at once." The customary toll was paid, and written notice within 60 days of intention to the message was accepted. If the message claim damages for delay was excluded on the had been delivered at any time prior to 7 company's objection, it cannot urge on appeal

o'clock a. the failure to give notice as ground for re

m. Monday, October 7th, plainversal.

tiff could have gotten a train at Roseboro, (Ed. Note. For other cases, see Appeal and which would have carried her to Whelen in Error, Cent. Dig. 88 3591-3610; Dec, Dig. S time to reach there several hours before the 882.*)

funeral occurred; but the telegram was not 5. TELEGRAPHS AND TELEPHONES ($ 54*)– delivered until shortly after 8 o'clock on

DAMAGES NEGLIGENT DELAY – CON- October 7th, which was too late to get a train
TBACTS LIMITING LIABILITY,
While

carriers

stipulate or any other mode of conveyance to the against contractual or common-law liabilities, it scene of the funeral. The body could not be is against public policy to allow them by con- kept over another day, and plaintiff was tract to protect themselves from liability for their own negligence, and hence a stipulation thus deprived of the privilege of attending on a telegraph blank' limiting. damages for de her father's funeral. She recovered damages lay to $50 is ineffectual.

at the trial in the sum of $250, and the (Ed. Note.-For other cases, see Telegraphs amount of the verdict is not challenged as and Telephones, Cent. Dig. 88 39-47; Dec. Dig. $ 54.*)

being excessive. The operator at Whelen

transmitted the message to Little Rock, and 6. TELEGRAPHS AND TELEPHONES ($ 54*) thence it was sent to Gurdon, reaching there DAMAGES FOR DELAY-STATUTE.

Under Kirby's Dig. $ 7947, providing that about 2 o'clock p. m. Sunday. It was sent telegraph companies shall be liable in damages over the railroad wire, because of the fact for mental anguish or suffering, for negligence that the commercial wire was not in use in transmitting or delivering messages, and that the jury may award such damages as they con

except during the office hours for that day, clude resulted from negligence, a stipulation in which were limited to the hours between 8

FOR

common

may

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

161 S.W.-65

a. m. and 10 a. m. and from 4 p. m. to 6 liable. Arkansas & Louisiana Ry. Co. v. Lee, p. m. The Gurdon operator attempted to for- 79 Ark. 448, 96 S. W. 148. ward the message to Roseboro, but found the [4] It is contended that the plaintiff's acwires down, and an effort was made to have tion must fail because she failed to allege the wires repaired, but the linemen on duty and prove that she gave notice to the comat that place refused to work because it was pany within 60 days of her intention to Sunday. The operator also testified that he claim damages. The blank upon which the tried to telephone the message to Roseboro, message was written contained the usual but found that the telephone wire to Gurdon stipulation that “the company will not be liawas also out of use. The message was sent ble for damages or statutory penalties in any through early Monday morning soon after the case where claim is not presented in writtelegraph line was repaired and, as before ing within 60 days after the message is filed stated, was delivered about 8 o'clock, but with the company for transmission." It is too late for plaintiff to catch the morning not alleged in the complaint that this provi. train. There is evidence to the effect that sion of the contract was complied with, but the telegraph wire between Gurdon and Rose the answer contains a paragraph denying boro went down on the evening or night of that the contract in that respect was comOctober 5th.

plied with. Thus, notwithstanding the omis[1, 2] We are of the opinion that the evi. sion of such an allegation in the complaint, dence was sufficient to sustain a finding of the answer set up this failure on the part negligence which warranted the award of of plaintiff to comply with the contract as a damages and that the court did not err in defense to the action, and the issue was thus refusing to give a peremptory instruction. tendered. No objection was made to the There was an unreasonable delay in trans- sufficiency of the complaint by demurrer or mitting and delivering the message, and the otherwise. Counsel for appellant in their burden was on the defendant to account for brief call attention to the fact that, during the delay so as to free itself of the charge of the progress of the trial, the plaintiff offered negligence. Western Union Telegraph Co. v. to introduce testimony to the effect that this Chilton, 100 Ark. 296, 140 S. W. 26. The clause of the contract was complied with, message reached Gurdon at 2 o'clock p. m. but upon their objection the court escluded on Sunday, and appellant had from then un- the testimony. Appellant, by its own act in til 7 o'clock the next morning to forward objecting to the testimony, eliminated this and deliver it in time for the train which issue from the case, and it is too late now to plaintiff might have caught.

raise the issue for the first time here White [3] The evidence tends to show that the v. Moffett, 158 S. W. 505. A party cannot line was down the evening before, and rea- on appeal take advantage of a defect in the sonable diligence might have discovered its proof which was brought about by a ruling condition even before the Sunday hours be- of the court made at its own request.

There was no. attempt to show that (5, 6] Nor is there any merit in the contenthe trouble with the wires was discovered tion that the damages must be limited to the at the earliest moment and effort made to sum of $50 by reason of the stipulation to repair it Western Union Telegraph Co. v. that effect in the contract. It has long been Bickerstaff, 100 Ark. 1, 138 S. W. 997, Ann. the rule of this court that a common carrier Cas. 1913B, 242. But be that as it may, de- cannot lawfully stipulate for exemption from fendant having accepted the message on Sun-responsibility on account of negligence of its day, it was its duty to exercise reasonable own servants. Railway y. Lesser, 46 Ark. diligence to transmit it to destination, and 236. Carriers may, for a reasonable considerit does not free itself from the charge of ation, stipulate against contractual or comnegligence merely by showing that its line mon-law liabilities, express or implied; but men on duty at Gurdon refused to work. it is contrary to public policy to permit them The trouble with the line might have been to stipulate against responsibility for their a trifling one which could have been easily own acts of negligence. Railway v. Weakley, remedied by some one else. The fact that 50 Ark. 397, 8 S. W. 134, 7 Am. St. Rep. 104. it was Sunday did not relieve defendant of Besides, a statute of this state expressly exercising diligence to repair its line and de- declares that “telegraph companies doing liver a message which it had received for business in this state shall be liable in damtransmission, and the fact that its linemen ages for mental anguish or suffering, even in refused to work on that day was no excuse the absence of bodily injury or pecuniary for failing to transmit a message which it loss, for negligence in receiving, transmitting had accepted for that purpose. It had the or delivering messages; and in all actions legal right to refuse to accept messages on under this section the jury may award such Sunday, but, having done so, it was bound damages as they conclude resulted from the to exercise diligence to transmit and deliver negligence of the said telegraph company." the same. The refusal of the lineman to Kirby's Digest, $ 7947. This is a positive perform his part of the work necessary to statutory provision which cannot be chang. complete the transmission of the message is ed by contract, for the reason, as before chargeable to the company and renders it stated, that it is contrary to public policy to

gan.

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