Chapman & Dewey Land Company v. Wilson

• Decision Date: 07 June 1909
• Citation: 120 S.W. 391,91 Ark. 30
• Parties: CHAPMAN & DEWEY LAND COMPANY v. WILSON
• Court: Arkansas Supreme Court

120 S.W. 391

91 Ark. 30

CHAPMAN & DEWEY LAND COMPANY v. WILSON

Supreme Court of Arkansas

June 7, 1909

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; affirmed with modification.

Decree affirmed.

W. J Lamb, Ashley, Gilbert & Dunn and R. S. Rodgers, for appellant.

1. Time was of the essence of the contract, and the attempted extensions thereof were void. Sandels & Hill's Dig §§ 1215, 1218, 1219; 54 Cal. 54; Id. 570; 80 Cal. 5; 69 Cal. 454; 68 Cal. 428; 89 Cal. 316; 80 Mo.App 574; 86 Mo.App. 349; 169 Mo. 376; 152 Mo. 585; 70 Mo.App. 535; 68 Mo.App. 352; 77 Mo.App. 616; 1 Y. & C. Ex. 401, 416; Pomeroy on Contracts, § 382; 81 Ark. 80.

2. The county court acquired no jurisdiction to establish a drainage ditch with a terminus different from that described in the notice to property owners. 31 Mo. 273; 53 Ill. 97. Although this court has held that the viewers might alter the terminus of the proposed ditch in their report (81 Ark. 80), it has not held that the county court has jurisdiction, after the terminus has been fixed by the report and notice to owners given, to assess lands for a ditch with a different terminus, or that the contractor may change it. See also 64 Ark. 555.

3. The work was not performed substantially as ordered by the county court and required by the contract. The assessments were made to pay for a drain to be constructed to Tyronza River; also to pay for a drain in which openings were to be left not less than 10 feet in width, not exceeding 50 feet apart, all along said ditch on both sides, and so constructed that "no dirt, stumps or other obstruction shall be left within 8 feet of the slope stakes." No such drain was constructed. 138 Ind. 117; 103 N.W. 979 and cases cited; 31 Mo.App. 522; 200 Ill. 432; 14 Bush, (Ky.) 31.

4. This action was not maintainable in the name of appellee on certificates of acceptance issued to the General Dredging & Construction Company, contractor, and not assigned to Wilson. Sandels & Hill's Dig. § 1220. He was under no contract, and his liability as a bondsman was a separate and distinct matter. That he was on the bond gave no power to the county court to constitute him as a contractor without a reletting as required by statute.

5. No proper authority was shown in W. M. Kerr to issue the certificates. He was neither county surveyor nor one of the surveyors who assisted the viewers. Sandels & Hill's Dig. §§ 1220, 1229.

6. No proof of the giving of notice of the letting of the contract by the county clerk appears in the record. There is no presumption of law that notice was given, and the answer expressly denies it. The burden, therefore, was upon plaintiff to prove it. 11 Enc. of Ev. 877 and cases cited; Cooley on Taxation, 3d Ed., 1004; Black on Tax Titles § 444. The presumptions created by section 1232, Sand. & H. Dig., are in express terms confined to "proceedings occurring prior to the order of the county court establishing the ditch." See also 158 Ind. 525; 30 Mo.App. 380; 49 Mo.App. 117; 51 Ark. 447; 31 Mo.App. 520; 96 Mo. 507; 57 Neb. 78; 49 Neb. 883; 55 Neb. 57; Id. 735; 58 Neb. 839; 3 Wash.St. 84; 18 Wis. 92.

7. The decree is reversible because of fatal variances and discrepancies between the assessments and the certificates sued on.

J. T. Coston, for appellee.

1. The first part of the answer simply denies that the plaintiff completed the shares or allotments "on or before the 2d day of January, 1905." The exact date of the completion was immaterial, and the denial is an admission that it was done at a subsequent date. 1 Enc. Pl. & Pr. 799. The remainder of the answer on this point is a mere negative pregnant, being an attempt to deny as a whole material facts alleged in the complaint, as conjunctively stated. Id. 797; 77 S.W. 906.

2. Appellant will not be permitted to assume inconsistent positions. Having in the lower court distinctly recognized the engineer's certificates of acceptance as certificates issued to plaintiff showing that he did the work for which they were issued, appellant is estopped to insist here that they were not issued to Wilson but to the Construction Company. 93 S.W. 61; 95 S.W. 1012; 2 Cyc. 665, 666. The statement in the certificates that the General Dredging & Construction Company had completed the work was mere surplusage, not required or authorized by law. Appellee was not deprived of the right to enforce the lien of the assessment in a court of equity. Sand. & H. Dig., § 1220; 36 Ark. 504.

3. The change by the viewers and court of the beginning point of the ditch was within the jurisdiction of the county court. Driver v. Moore, 98 S.W. 736; 70 S.W. 310; 64 Ark. 555.

4. The county court's finding that the ditch benefits appellant's lands is conclusive.

5. Failure to complete the work within the time specified in the contract did not render the contract void.

6. If the clerk failed to advertise the letting of the contract, this was a mere irregularity which did not affect the validity of the contract. But the notice was given, and the allegation in the complaint that it was given was not specifically denied. The manner of denial raises no issue under the statute, but is a species of negative pregnant. 54 Ark. 528; 32 Ark. 105; 46 Ark. 136; 35 Ark. 561; 50 Ark. 564.

7. The report of the viewers, and the contract based thereon, did not require any excavation of soil from Tyronza Bayou. The contractor was required only to construct the ditch in the "manner set forth in the report of the viewers. Sand. & H. Dig., § 1218. And the report of the viewers shows that they complied literally with the statute. Sand. & H. Dig., § 1204, with reference to setting apart to each tract of land, etc., a share of the work in proportion to benefits. The engineer testifies that he found that the allotments had been completed according to the specifications before he issued the certificates. The assessments are therefore unquestionably due. Sand. & H. Dig., § 1220.

8. The contract, with the viewers' report made a part thereof, must be construed as a whole, and, so construed, openings every fifty feet on the side of the ditch were not necessary or required. Did the contractor complete, according to specifications, the particular job or allotment assigned or set apart to the particular tract of land in question? This is the sole question. Sand. & H. Dig., § 1220.

After the work has been completed, and the engineer representing the land owners has inspected and received it and issued his certificates, appellant cannot go behind it and urge as a defense slight variations from the specifications contained in the contract. 51 N.E. 936; 109 N.W. 68; 49 N.E. 833; 4 N.E. 317; 43 N.E. 230; 40 N.E. 702; 36 N.E. 547; 2 Cooley on Taxation, § 1280.

9. Appellant knew of and encouraged the construction of the ditch, had many interviews with appellee about the assessments, and made no complaint at any time on account of defective construction or non-compliance with the contract. Appellant is estopped. 15 N.E. 797; 124 Mich. 285; 31 Neb. 668; 94 N.W. 1076; 119 Ill. 504; 166 Ind. 343; 43 Ia. 343; 69 Mich. 484; 22 Neb. 437; 15 O. St. 64.

10. The drainage law, as amended in 1899, not only authorized but required appellee to bring suit in his own name for the collection of the assessments. Acts 1899, p. 321, 322.

FRAUENTHAL J. BATTLE, J., dissenting.

OPINION

FRAUENTHAL, J.

The plaintiff, R. E. L. Wilson, instituted this suit against the defendant, the Chapman & Dewey Land Company, in the Mississippi Chancery Court, to recover the amounts of certain assessments made against the lands of the defendant for the construction of a public ditch or drain in a drainage district known as Tyronza Drainage Canal, and to enforce the lien thereon. The drainage district was established by the county court of Mississippi County under the provisions of sections 1203 to 1232 of Sandels & Hill's Digest. The complaint alleged in detail each step taken in the formation and establishment of the drainage district, the ascertainment of the benefits to the various tracts of land located in the district, and the assessment made against each tract for the construction of the ditch. It also set out in detail the letting of the contract for the construction of the ditch and its completion. The defendant filed an answer, in which it set forth several grounds upon which it resisted the recovery and enforcement of the assessments. The chancery court rendered a decree in favor of the plaintiff for the amounts of the various assessments against the several tracts of land of defendant and subjecting the lands to sale for the payment thereof. From this decree the defendant appeals to this court.

The defendant attacks the validity of the order of the county court establishing the drainage district on the ground that the termini of the ditch were changed from the points as set out in the petition. Upon the filing of the petition the county court appointed viewers who proceeded in manner prescribed by the then law to make an accurate survey of the proposed ditch and to perform the duties required by section 1204 of Sandels & Hill's Digest. The report of the viewers lengthened the ditch at its upper end, but maintained the route of the ditch as set out in the petition. It provided for excavations all along the route from said beginning point to a point where the ditch emptied into what is known as Tyronza Bayou. This bayou extends for a distance of about three miles to where it empties into Tyronza River. And, while the route and extent of the ditch was described from the said beginning point on to Tyronza River, no excavations were reported by the viewers as necessary in said Tyronza Bayou. But these alterations did not change the route of the ditch, and the...