Phoenix Cement Sidewalk Company v. Russellville Water & Light Company

• Citation: 140 S.W. 996,101 Ark. 22
• Parties: PHOENIX CEMENT SIDEWALK COMPANY v. RUSSELLVILLE WATER & LIGHT COMPANY
• Decision Date: 13 November 1911
• Court: Arkansas Supreme Court

140 S.W. 996

101 Ark. 22

PHOENIX CEMENT SIDEWALK COMPANY v. RUSSELLVILLE WATER & LIGHT COMPANY

Supreme Court of Arkansas

November 13, 1911

Appeal from Pope Circuit Court; Hugh Basham, Judge; reversed.

Judgment reversed and cause remanded for new trial.

U. L Meade, for appellant.

1. Appellant's motion to strike from the files the answer filed by the defendant on the day of the trial should have been sustained. In the order continuing the case made at the former term, the court having limited defendant's time for filing answer to thirty days from that date, it had no discretion to permit the answer to be filed at the succeeding term, without a showing of good cause for failing to comply with the former order. Kirby's Digest, §§ 6111 6116.

2. The court erred in instructing the jury to return a verdict for the defendant. The evidence shows a sufficient consideration for the agreement between appellant and the Water & Light Company. 64 Ark. 637; 72 Ark. 354; 33 Ark. 97; 125 S.W. (Mo App.) 535.

3. Appellant's complaint and account, the basis of the action, are both verified. The answer was not verified. The lower court's judgment should be reversed, and judgment entered here for appellant. Kirby's Digest, §§ 3108, 3151; 34 Ark. 622; 65 Ark. 320.

Brooks, Hays & Martin, for appellee.

1. It is within the discretion of the trial court to permit an answer to be filed at any time up to the trial; and, unless an abuse of this discretion is shown, the trial court's ruling will not be disturbed here.

2. The court was right in instructing a verdict for appellee. There was no legal liability upon the county growing out of the contract between appellant and the county judge acting as judge and not as a county court. 68 Ark. 160. Since appellant had no valid contract with the county, it could not make such invalid contract the basis of an action against appellees. On the part of the Water & Light Company, there was no consideration for the contract moving from the appellant, and no mutuality of contract. 7 Am. & Eng. Enc. of L., 104, note 2; Id. 114; 68 Ark. 276; 66 Ark. 550; Id. 26.

OPINION

FRAUENTHAL, J.

This was an action instituted by the appellant, who was the plaintiff below, against the Russellville Water & Light Company, a private business corporation, and also Pope County, to recover damages growing out of an alleged breach of contract. The plaintiff attached to its complaint an itemized account of the damages alleged to have been sustained, which was duly verified. At the return term of the court in which this action was brought, an order was entered by consent of the parties, continuing the cause until the following term and giving to the defendants thirty days in which to file their answer. At the following term of the court, and on the day upon which the cause was set for trial, the court permitted the defendant, the Russellville Water & Light Company, to file its answer, over the objection of the plaintiff. The plaintiff moved the court to strike the answer from the files on the ground that it was not filed in the time required by law, and that it was filed after both parties had announced ready for trial. The court overruled this motion.

It appears that the defendant Pope County did not file any pleading, and that the cause of action as against it was abandoned by the plaintiff, and was so treated by all the parties and the court. Upon the trial of the case the court directed the jury to return a verdict in favor of the remaining defendant, which was done.

It is urged by counsel for the plaintiff that the court erred in permitting the defendant to file its answer out of time and on the day of the trial. But by section 6116 of Kirby's Digest it is provided: "The court may, for good cause shown, extend the time for filing an answer or reply to some subsequent day in that or the next succeeding term, the party applying for a delay paying the costs occasioned thereby." When nothing appears to the contrary, it will be presumed that good cause was shown for extending the time for filing an answer, when this is done by the court.

The answer in this case consisted of denials of the allegation of the complaint, and it is not claimed by plaintiff that it was surprised by any denial therein made. It did not ask for a continuance of the trial when the answer was filed, and it does not appear that it was prejudiced in any way by the action of the court. We can not say, therefore, that the court abused its discretion in permitting the answer to be filed.

It is also urged that the plaintiff was entitled to judgment because the answer of the defendant was not verified, and the affidavit of plaintiff to the account of the damages attached to the complaint was duly made. This contention is made in reliance upon section 3151 of Kirby's Digest But if this itemized statement of the damages should be considered an account within the meaning of that section, still the failure to verify the answer would not be sufficient ground to strike the same from the files, or to prevent a consideration of its contents, unless there had been a refusal to verify after a motion to that effect had been made. Jackson v. Reeve, 44 Ark. 496. Furthermore, this objection to the answer was not made in the trial court, and it can not be raised for the first time upon appeal. Payne v. Flournoy, 29 Ark. 500.

It is earnestly insisted by counsel for plaintiff that the court erred in directing a verdict for the defendant. In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence which is most favorable to the party against whom the verdict is directed.

The testimony on the part of the plaintiff tended to prove the following facts: Pope County was the owner of a rock crushing machine, which it leased to the defendant by written contract, executed on December 1, 1908. By the terms thereof, it leased said machinery to the defendant "for at least four months, and not to exceed five months, unless by additional contract, from this date" (the date of the contract). The contract also provided that the defendant "will return said machinery, when the dam is completed," at a designated place, and in good condition.

On May 5, 1909, Pope County entered into a written contract with the plaintiff by which it leased to it said machinery for a period of four months from June 1, 1909. At the time when this latter contract was entered into, the machinery was still in the possession of the defendant, who had not completed the dam which it was constructing. Before entering into this latter contract with the plaintiff, the county judge of Pope County received assurances from defendant's agents that it would return the machinery by June 1, 1909. For that reason the term of the lease in the latter contract was not to begin until that date, although, as contended by the county judge and the plaintiff, the term of the lease of defendant had expired on May 1, 1909. The testimony tended further to prove that a few days after June 1, 1909, the county judge demanded from defendant the return of this machinery, in order that same might be delivered to plaintiff in accordance with the terms of the lease made to them. Thereupon, the plaintiff, the county judge representing Pope County, and certain attorneys and officials of defendant, amongst whom was its president, met to settle the matter. It was there agreed by the parties that the defendant should retain the machinery until it completed said dam, and in consideration of such retention of the property it promised to furnish to the plaintiff machinery of the...