Davis v. Cook

• Decision Date: 07 May 1923
• Docket Number: 360
• Citation: Davis v. Cook, 251 S.W. 691, 159 Ark. 84 (Ark. 1923)
• Parties: DAVIS v. COOK
• Court: Arkansas Supreme Court

251 S.W. 691

159 Ark. 84

DAVIS v. COOK

No. 360

Supreme Court of Arkansas

May 7, 1923

Appeal from Little River Chancery Court; James D. Shaver Chancellor; affirmed.

Affirmed.

E F. Friedell and Evans & Evans, for appellant.

The court erred in sustaining demurrer to paragraphs 10 and 12 of the amended complaint and also to paragraph 11, except the last subparagraph, and the last subparagraph of paragraph 13124 Ark. 6.The fact that the contract was made with the bank does not remedy the condition, since Cook, secretary of the board, was a stockholder, director and president of the bank, the inhibition is against the commissioner being interested, "either directly or indirectly," in any contract made by the board."Indirectly" defined, 32 Md. 561, 3 Am. Rep. 364; 4 Words & Phrases;36 N.W. 868, 38 Minn. 255;2 Gill & J. 382;84 N.E. 737, 198 Mass. 413; 2 Words & Phrases, 2d series.Paragraph 12 is substantially the same as paragraph 25 of complaint in 147 Ark. 476.The subparagraph of paragraph 11 charges waste and mismanagement relative to a gravel bed the commissioners attempted to procure from the district.The 2d subparagraph of said paragraph 11 charges commissioners unlawfully paid $ 1,500 fee to a firm of lawyers for an opinion on validity of district bonds, when the opinion was procured at the instance and for the benefit of the bond buyers.122 Ark. 14;143 Ark. 446.The subparagraph of paragraph 15 charges that the commissioners built a mile of road unnecessarily in order to pass the residence of one of the commissioners and in front of the bank of which he is president.Commissioners would not permit time slips of employees cashed except at store of which Commissioner Cook was president of company.Tallman v. Lewis,124 Ark. 6.The Jewell-Greenwood shoals lateral and all the laterals were built without complying with the law and making separate assessment of benefits and applying the funds arising from additional assessment of benefit to the construction of the particular lateral for which made.Sec. 21, act 292.

Shaver & Shaver, A. D. Dulaney, Jones & Head, and Paul Jones, Jr., for appellees.

The opinion of the court on the motion to dismiss eliminates from the appeal all paragraphs of the complaint except those relating to the alleged waste committed and suffered by the commissioners, by the engineers and contractors of the district.Many of these charges have been abandoned by appellant's failure to argue them in their brief.135 Ark. 272;139 Ark. 283;147 Ark. 469.No error in sustaining demurrer to paragraph 10.Tallman v. Lewis,124 Ark. 6, not in point.The district lost no money by its employees trading with the New Rocky Grocery Co., nor by placing the funds in the depositories selected.No personal liability of commissioner unless he acted with a corrupt and malicious intent.Sec. 17, act 292, Acts 1919.Demurrer properly sustained to subparagraph 2, paragraph 11, relative to payment of fee for attorney's opinion of validity of district bonds for benefit of bond buyers.Opinion was necessary in order to sell the bonds, and commissioners had right to make contract.151 Ark. 47.Word "unlawfully" does not aid paragraph.Pharr v. Knox,145 Ark. 4.Not sufficient to plead fraud generally.35 Ark. 555;17 Ark. 603;51 Ark. 1;72 Ark. 478;110 Ark. 416.Paragraph 12 also insufficient.Case of 147 Ark. 469 readily distinguishable from facts herein.Proof shows (Wright case) only usual price agreed to be paid engineers.Burden was on plaintiffs to show contracts unreasonable.149 Ark. 476; Pomeroy's Equity, par. 927.As to last paragraph of 13, commissioners had right to select route through town of Foreman, §§ 1and2, act 292, Acts 1919, and there is no allegation of existence of a more feasible or less expensive route than one selected.Only conclusions of law stated.145 Ark. 4;35 Ark. 555;43 Ark. 296.Assessments were properly levied and moneys used for laterals as authorized by the act.Appellants were estopped to bring these actions objecting to the construction of the primary roads or laterals and attempting to put upon the commissioners the burden of paying for the laterals.61 N.E. 111;50 Ark. 116;36 L. R. A. (N. S.) 39, 43 Mass. 336;55 Ark. 148.

OPINION

SMITH, J.

Appellants are landowners in Road Improvement DistrictNo. 7 of Little River County, which was created by a special act of the 1919 General Assembly.

They brought separate suits attacking the district on numerous grounds.The court below dismissed their complaints, and they appealed to this court, and we decided that so much of the appeal as involved the validity of the district, or the assessment of benefits, should be dismissed because the appeal was not taken and perfected within the thirty days required by the act creating the district.We also held that the thirty-day limitation on the right of appeal did not apply to the parts of the complaint which sought to recover against the commissioners, the engineers and contractors for waste, as to which allegations we held the general statute of limitations applied.Davis v. Cook,155 Ark. 613, 245 S.W. 11.

The case has now been briefed upon the allegations of waste and the testimony relating thereto, the court below having found against the plaintiffs on all the questions raised.

It is first insisted that certain laterals were constructed without authority, and without assessing against the lands benefited thereby the cost thereof, as provided by the act.

Express authority was given by the act to construct these laterals; but it is insisted there was no separate assessment of betterments, as required by the act.The testimony shows there was a separate assessment of benefits for each lateral.The lands were divided into six zones with reference to their proximity to the main thoroughfares, and a maximum assessment of $ 12 per acre was made against the lands lying in the first zone, the one nearest the road.Lands lying adjacent to the lateral roads were assessed on the same basis, but an assessment exceeding $ 12 was not made against any land, although it was within a mile of both a main thoroughfare and a lateral.Certain other objections to the assessments were also made.

We think all of these questions may be disposed of by saying that the former decision of this case is decisive of them.If proper assessments were not made, or if assessments were made upon an improper basis, an appeal therefrom should have been taken within the time and manner provided by section 22 of the act, and that was not done.

It is next insisted that the commissioners wrongfully selected as the depository of the district a bank of which one of the commissioners was president, director and stockholder, and therefore interested in the contract between the bank and the district.This allegation of the complaint was disposed by demurrer thereto, which the court sustained; and we think the demurrer was properly sustained.The act does require that the directors take an oath, and, pursuant to the act, they took the oath, that they"would not be interested, directly or indirectly, in any contract made by the board. "The case of Tallman v. Lewis,124 Ark. 6, 186 S.W. 296, is cited in support of appellant's insistence.

We think that case has no application here.There was no allegation that the commissioners, or any of them, paid out any funds of the district to the bank, or to anyone else, for the services of the bank in acting as a depository.The director was not the bank, and there was no contract with him in regard to the funds.We do not see just what relief could, in any event, be awarded under this paragraph of the complaint.The funds of the district have been expended in building the road, and there is no allegation of waste or of loss of funds by the bank.

What we have said about this allegation of the complaint is conclusive of the allegations of another paragraph of the complaint, that the commissioners did not allow the time-slips of the men employed in the construction of the road to be honored at any place except at a place of business owned by the commissioner who was the bank president.A demurrer was sustained to this paragraph of the complaint, and, we think, properly so.The contract had been let for a fixed sum to the construction contractor.This arrangement about the time-slips was between the men working on the road and the store at which they traded, and there is no allegation that they were charged a higher price for goods than was charged other people who bought for cash, and there is no allegation that the district lost anything by this arrangement, or that it was required to pay out any of its funds on that account.The arrangement, however reprehensible it may be considered, is at an...