Martin v. Street Improvement District No. 324

• Decision Date: 22 December 1924
• Docket Number: 69
• Citation: 266 S.W. 941,167 Ark. 108
• Parties: MARTIN v. STREET IMPROVEMENT DISTRICT NO. 324
• Court: Arkansas Supreme Court

266 S.W. 941

167 Ark. 108

MARTIN v. STREET IMPROVEMENT DISTRICT NO. 324

No. 69

Supreme Court of Arkansas

December 22, 1924

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

E. G Shoffner, for appellant.

Section 5741, C. & M. Digest, constitutes specific authority for the contract which appellant sues on. The necessary inference to be drawn from the court's language in 112 Ark. 260 (where the suit was brought under act of March 3, 1913, the preliminary work having been done before the passage of said act) is that the service rendered by appellant was authorized and a valid charge.

Philip McNemer, for appellee.

Where a decision is correct on the whole case, it is immaterial on what ground the court below based its finding. 85 Ark. 1; 117 Ark. 304. The meeting of the board at which the alleged contract was made was not legal, and the contract is therefore not valid. 69 Ark. 159; 109 Ark. 125. The interveners have a right to attack the contract. 158 Ark 241. The contract is unreasonable. 158 Ark. 242; 143 Ark. 446. A promoter's fee is not a necessary preliminary expense under § 5741, C. & M. Digest, and does not fall within the description of such expenses as outlined in 119 Ark. 189. See also 161 Ark. 570; 155 Ark. 308; 151 Ark. 53. Promoters' contracts are odious to the law and contrary to public policy. 42 L. R. A. 347; 76 N.W. 476; 48 L. R. A. 294; 162 F. 533; L. R. A. 1915C 823; 134 Ark. 328; 159 Ark. 36.

OPINION

WOOD, J.

This is an action brought by Melbourne M. Martin against Street Improvement District No. 324 of the city of Little Rock, and George M. Heard, Mrs. Dixie F. Jackson and J. E. Lord, commissioners thereof. The plaintiff alleged that he entered into a contract with the defendants whereby they agreed to pay plaintiff the sum of $ 300 for services performed in the promotion and organization of the district; that the contract had been performed on the part of plaintiff and the defendants had refused to pay him for his services under the contract.

Two of the commissioners and certain property owners filed an answer for the district, in which they denied the material allegations of the complaint, and denied that the district was liable. Among other things, they set up that the act of 1913, upon which the plaintiff relies as authority for the contract upon which he bottoms his claim, was not intended to cover a promoter's fee, especially when the same attorney had attended to the legal work of its organization. They set up that the appellant had received the sum of $ 522.90 as attorney for the district, which was paid to him with the understanding that it was the entire sum to be paid for the services he rendered the district; that the sum thus paid him was a reasonable compensation for his services.

The plaintiff introduced the contract, which, among other things, specified "that for and in consideration of work done in the promotion of Street Improvement District No. 324 by the party of the second part, the party of the first part hereby agrees to pay said party the sum of $ 300 for said services." The plaintiff testified that, at a meeting of the board of commissioners of the district, at which all the members were present, the matter of his fee as attorney for the district and promotion work was discussed, and it was agreed by all members of the board to pay plaintiff $ 500 attorney's fee and $ 300 for promotion work, consisting of circulating the petition, creating a sentiment for the improvement, etc.; that he was directed to prepare and did prepare written contracts, one of which is the contract upon which he bottoms his action.

Plaintiff stated that he asked for his services $ 1,000, and, by way of compromise, they agreed to give him two per cent. attorney's fee, amounting to the sum of $ 500, and $ 300 for promotion, which was to be evidenced and was evidenced by two separate contracts. The witness then testified that, by his personal efforts, he created a sentiment for the district, and walked from house to house for about thirty days until he got a majority in valuation to sign the petition. Among other things the witness said: "I not only procured the signatures that I have testified about, but I walked the streets, Rock Street, frequently late at night, seeing the property holders in this district, because it was a bitterly contested district; so much so that we were successful in carrying it only to Twentieth Street. * * * I experienced great difficulty in getting signatures on the petitions, and there were several I had to interview three or four times. I consented to go on with the legal work only in view of the fact that they would pay my promoter's fee of $ 300, to which they agreed I was justly entitled."

The plaintiff's testimony as to the promoter's contract for a fee of $ 300 was corroborated by Mrs. Dixie F. Jackson, one of the commissioners. There was testimony for the district to the effect that the drawing of the ordinances and petitions for the district and the improvement was the work of a lawyer, and two per cent. of the cost of the improvement, where such cost exceeded $ 25,000, or, in this case, $ 500, was a reasonable charge; that the attorney's fee in an improvement district usually included the work of a lawyer in organizing the district. It was shown that the sum of from $ 10 to $ 25 was a reasonable fee for circulating a petition.

The cause was submitted to the court upon substantially the above facts. The court found generally against the plaintiff, and rendered judgment against him, from which is this appeal.

Section 6 of act No. 125, approved March 3, 1913, § 5741, C. & M. Digest, provides: "The commissioners of improvement districts are authorized to pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof." In Deane v Moore, 112 Ark. 254 at 254-260, 165 S.W. 639, the commissioners of an improvement district sought to pay a party who circulated the petition for the improvement the sum of $ 100, under the authority of the above act. At the time the petition was circulated the act of March 3, 1913, supra, had not been passed, and we held that the charge of $ 100 for circulating the petition was not justified, saying: "The act of 1913, which authorized the board of improvement to pay a reasonable compensation to the persons who have done necessary preliminary work...