Martin v. Hempstead County Levee District No. 1

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Martin v. Hempstead County Levee District No. 1, 135 S.W. 453, 98 Ark. 23 (Ark. 1911)
• Decision Date: 20 February 1911
• Parties: MARTIN v. HEMPSTEAD COUNTY LEVEE DISTRICT No. 1

135 S.W. 453

98 Ark. 23

MARTIN v. HEMPSTEAD COUNTY LEVEE DISTRICT No. 1

Supreme Court of Arkansas

February 20, 1911

Appeal from Hempstead Chancery Court; James D. Shaver, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellant instituted this action in the circuit court to recover the sum of $ 1,864.86 on an alleged balance due and unpaid under a contract for the construction of a levee along Red River in Hempstead County, and for the sum of $ 1,000 alleged to be due on account of appellee's failure to perform its part of said contract. A copy of the contract, plans and specifications is exhibited with the complaint.

The appellee filed an answer and cross complaint, in which it asked that the cause be transferred to the chancery court. Appellee alleges that the contract for the construction of the levee was made by the members of the levee board with P J. Martin acting for appellant; that the plans specifications and contract, with the changes indicated by interlineations as agreed upon, were turned over to Etter & Monroe, attorneys, to be rewritten; that after the contract plans and specifications were rewritten, and before the same were signed, a copy was turned over to P. J. Martin to be submitted by him to persons at Lewisville, Ark., who contemplated signing appellant's bond for the faithful performance of the contract; that thereafter P. J. Martin returned to the office of the Levee Board at Fulton, Ark., a copy of the plans, specifications and contract, which he represented at the time to be the copy borrowed of the officers of the levee board, but which in fact was a copy rewritten, altered and changed for appellant's benefit and profit, and among other changes appellee alleges the following material changes, towit:

The contract as agreed upon read in paragraph 29 of the plans and specifications read:

"When the embankment has been brought up to the proper height, it shall be dressed and planted with tufts of living bermuda grass four inches square three feet apart, well pressed into the earth and lightly covered with soil."

The contract as changed and rewritten by the said P. J. Martin acting for the said W. Martin, reads:

"When the embankment has been brought up to the proper height, it shall be dressed and planted with tufts of living bermuda grass four inches square, well pressed into the earth and lightly covered with soil."

Appellee alleges that section 49 of the contract as agreed upon by the said parties, read:

"It is understood that no compensation will be allowed for refilling the muck ditch, stump holes or other excavations outside of the slope stakes. Payment will be made at the same price per cubic yard as the levee itself."

The contract and plans and specifications as changed by the said P. J. Martin for the said W. Martin, reads as follows:

"It is to be understood that no compensation will be allowed for refilling the muck ditch, stump holes or other excavations when within the base of the levee. For filling holes and refilling the muck ditch, stump and other excavations outside the slope stakes, payment will be made at the same price per cubic yard as the levee itself."

Appellee alleges that the said P. J. Martin, acting for the said W. Martin, returned said plans, specifications and contract rewritten, altered and materially changed for the benefit of said W. Martin, to the said appellee, and represented that the same was the contract borrowed for the purpose above stated; there being attached to said contract the bond signed and executed by the bondsmen. The officers of the said board, relying upon the representations of the said P. J. Martin as being true and on account of the length of the document referred to, accepted the said plans, specifications and contract as signed.

Appellee alleges that these changes and alterations were not discovered until the present suit was instituted; and asks for a reformation of same. Appellee's cross complaint alleges a violation of the terms of the contract in certain respects, which will be hereafter more specifically referred to, and asks judgment for damages against appellant on account of her failure to perform the contract according to its terms. A copy of the contract, plans and specifications as appellee allege them to be is made an exhibit to their answer.

The circuit court transferred the case to the chancery court over the objections of appellant, and the chancellor, over the objections of appellant, heard and determined the cause. The chancellor found that the contract, plans and specifications should be reformed in the manner asked in the answer and cross complaint; that the $ 1,000 alleged in the complaint for negligent delay caused appellant by appellee should be disallowed; that the sum of $ 835.45 alleged to be due appellant for filling stump holes outside of the slope stakes should be disallowed; that appellant should be only entitled to recover the sum of $ 1,032.41, on embankment work in the event she completes said levee according to the plans and specifications.

The chancellor further found that appellant has not completed the construction of said levee according to contract, in that she has not constructed the borrow pits at a distance of 25 feet from the base of the levee on the river side, or within 50 feet of the land side, and in the construction of said borrow pits has exceeded the depth of three feet on the river side, with a slope of one on twenty-five.

The chancellor further found that appellant has not cut 216 standing trees within 40 feet of the base of said levee, and has not properly sodded said levee with tufts of living bermuda grass four inches square and not more than 3 feet apart, and has not filled in the washes which have resulted in the levee from the defective sodding.

The chancellor was, however, of the opinion that appellant should be given further time to complete the levee according to the contract plans and specifications, and four months' time was given her for that purpose, and final judgment was deferred until the expiration thereof.

Appellant did not attempt to do further work upon the levee, and the chancellor found that the damages as proved on the counterclaim of appellee were greater than the amount due appellant under the contract. A decree was accordingly entered, reforming the contract as prayed for by appellee and dismissing the complaint of appellant. Appellant has duly prosecuted an appeal to this court.

Decree affirmed.

D. L. King, for appellant.

1. The circuit court erred in transferring the case to chancery. 96 Ark. 371. One who enters into a contract and receives the benefit thereof cannot afterwards object that he was not authorized to enter into such contract. 89 Ark. 96.

2. One will not be heard to deny the existence of a state of facts which he, either in express terms or by contract represented as existing, which he intended that the other should act upon, and which was acted upon by the other party in good faith, to his detriment. 64 Ark. 639; 81 Ark. 81. And where one party to a contract suffers the other to fully perform his part of it, and receives such benefit as would accrue to it under the contract, it will be estopped to assert that its agent exceeded his powers in making the contract. 86 Ark. 287; 67 Ark. 238; 24 Ark. 210; Id. 269; 6 L. R. A. (Mass.) 342; 48 L. R. A. 685; 1 L. R. A. 826.

William H. Arnold and Will Steel, for appellee.

1. Where affirmative relief is sought on the ground of fraud or mistake in the execution of a contract, such contract may be reformed in a court of equity. 76 Ark. 182; 77 Ark. 41; 89 Ark. 259; 85 Ark. 25; 79 Ark. 592; 76 Ark. 43; 69 Ark. 406; 71 Ark. 614; 66 Ark. 155; 75 Ark. 240; Id. 382; 32 Ark. 346; Id. 399; 50 Ark. 179; 33 Ark. 119; 60 Ark. 304. The long and complicated account exhibited with the complaint, the correctness of which was denied in the answer, was itself sufficient cause for transferring the case to equity. 82 Ark. 550; 31 Ark. 345; 51 Ark. 201; 48 Ark. 434; 49 Ark. 576.

2. It is conceded that the proof must be clear, unequivocal and decisive in order to justify the reformation of a contract but the evidence here is of that...