Day v. City of Malvern
| Decision Date | 07 March 1938 |
| Docket Number | 4-4969 |
| Citation | 114 S.W.2d 459,195 Ark. 804 |
| Parties | DAY v. CITY OF MALVERN |
| Court | Arkansas Supreme Court |
Appeal from Hot Spring Chancery Court; Sam W. Garratt, Chancellor reversed.
Judgment reversed and cause remanded.
Glover & Glover, for appellant.
Gordon E. Young, for appellee.
OPINION
This suit was originally brought in the circuit court of Hot Spring county by appellant against appellee to recover damages in the sum of $ 1,500 for breaching a contract entered into between them whereby the appellee agreed to lower lot 8 in block 22 in the city of Malvern, which was owned by appellant and which was about twelve feet above the level or grade of Main and Ash streets, to the level or grade of Main and Ash streets, for and in consideration of the bed of gravel thereon which appellee needed for constructing its streets and alleys. It was agreed that appellee might move the house thereon to another part of the lot while removing the gravel and move the house back to its original site and put it in as good condition as it then was, when the gravel had been removed to the level of the streets. It was alleged that the contract was oral and entered into between appellant and the mayor on behalf of the city, and that pursuant thereto appellant turned the property over to the city and that it removed the house to another site on said lot and in doing so damaged it to such an extent that it was unfit for occupancy and practically worthless, and that it removed and used some 6,500 yards of gravel from the lot leaving it some six or seven feet above the grade of the streets and in a very rough condition, and failed to move the house back to its original site and restore it to its former condition.
Appellee filed an answer to the complaint denying the material allegations therein and interposed the further defense that the contract was entered into by the mayor without authority to do so and, therefore, void.
After the pleadings were made up the cause was transferred to the chancery court upon a motion and without abjection and heard by the chancery court upon the pleadings and testimony introduced by appellant, at the conclusion of which the court dismissed appellant's complaint for the want of equity, from which is this appeal.
Appellee introduced no evidence and that introduced by appellant is in substance, as follows: The lot owned by appellant was situated between Ash and Main streets, fronting on Ash street. Ash street had been lowered by the city and in doing so it was discovered that the lot contained a fine bed of gravel suitable for graveling streets and building sidewalks. The lot was about twelve feet higher than the grade of the streets and level on top and had a residence on it which appellant was renting for $ 5 a month. The mayor proposed to appellant that the city would cut the lot down to the level of said streets and after doing so would move the house back to its original site and put it in the same condition or as good condition as it then was, for the gravel the lot...
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... ... For purposes of measuring damages for breach of construction contracts, those with municipal corporations (see City of St. Paul v. Bielenberg, 164 Minn. 72, 204 N.W. 544) are no exception to the general rule. No sound reason is assigned why they should be. We have ... Seymour, Sabin & Co., 26 Minn. 276, 3 N.W. 348; Frank W. Coy Real Estate Co. v. Pendleton, 45 R.I. 477, 123 A. 562; Day v. City of Malvern, 195 Ark. 804, 114 S.W.2d 459, and cases cited in Note 39 L.R.A.,N.S., 591. See, also, Anderson v. Nordstrom, 60 Minn. 231, 61 N.W. 1132; Sassen v ... ...
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