Rees & Co. v. Road Improvement District No. 1

• Decision Date: 19 January 1925
• Docket Number: 116
• Citation: Rees & Co. v. Road Improvement District No. 1, 267 S.W. 770, 167 Ark. 383 (Ark. 1925)
• Parties: REES & COMPANY v. ROAD IMPROVEMENT DISTRICT NO. 1
• Court: Arkansas Supreme Court

267 S.W. 770

167 Ark. 383

REES & COMPANY v. ROAD IMPROVEMENT DISTRICT NO. 1

No. 116

Supreme Court of Arkansas

January 19, 1925

Appeal from Clark Circuit Court; J. H. McCollum, Judge; reversed.

Judgment reversed, and cause remanded.

Arnold & Arnold, for appellants.

The court erred in allowing certain tax payers and land owners in the district to serve as jurors. 119 Ind. 368; 21 N.E. 977; 5 L. R. A. 253; 81 Kan. 616; 166 P. 1034; 28 L. R. A. (N. S.) 156; 115 La. 575; 40 So. 37; 57 Ore. 236; 119 P. 130; 5 L. R A. 253; 90 Ind. 119; 20 Kan. 156; 34 Cyc. 271; 17 Am. & Eng Enc. Law 1133; 147 So. 585; 1 L. R. A. 620; 9 Am. St. Rep 750; 18 N.E. 587. A person who has any interest in a case is disqualified to serve as a juror. 23 Ark. 50; 93 Ark. 301. 23 Ark. 0; 93 Ark. 301. The engineers of defendant having interpreted the contract and Rees & Co. having acted under that interpretation in carrying out the contract, the defendant is now estopped from denying liability. 230 S.W. 656; 133 Ark. 302; 95 Ark. 449; 114 Ark. 415; 293 F. 155; 9 Wall. 50; 19 L. ed. 594; 107 U.S. 402; 185 U.S. 236; 22 S.Ct. 633; 46 L. ed. 890; 114 F. 474; 52 C. C. A. 276; 193 N.Y. 543; 86 N.E. 565.

McMillan & McMillan, for appellee.

There was no error on the part of the court in allowing certain named tax payers and landowners to qualify and serve as jurors. 30 Ark. 328; 155 Ark. 130; 150 Ark. 155; 154 Ark. 119; 153 Ark. 300; 151 Ark. 601; 32 Ark. 766; 121 Ark. 210; 57 Ore. 236; Ann. Cas. 1913 A. p. 119. The interest of a citizen and tax payer of a municipal corporation is not sufficient to disqualify him in a civil action to which the city is a party. 104 Am. St. Rep. 600; 121 Ann. 1913A; 14 Bush 87. The rights of the parties were fixed by the contract and not by the decision of the engineer. 100 Ark. 166; 146 Ark. 166.

OPINION

HUMPHREYS, J.

This suit was brought by appellants against appellee in the circuit court of Clark County to recover an alleged balance of $ 6,300 due them under contract for clearing and grubbing about 121 acres of the right-of-way of three roads in said county, between July 1 and December 1, 1919.

Many pleadings were filed by the respective parties, introducing a number of issues, but the real issue joined and upon which the case turned in the trial court was the amount of clearing and grubbing done, according to the measurement of the area under the proper interpretation of the contract relative thereto and as applied to the facts in the case, and whether, under a proper interpretation and application thereof, appellant had been fully paid for the work done.

The cause was submitted upon the pleadings, testimony and instructions of the court, which resulted in a verdict and judgment dismissing appellant's complaint from which is this appeal.

There was no dispute about the price per acre which appellant was to receive for the work, the only dispute being the manner in which the amount of the acreage should be determined. Appellant was to receive $ 150 an acre for the work under the contract, and sublet it to J. W. Overton for $ 100 per acre. The engineers of the appellee estimated that only 54 acres had been cleared and grubbed, and appellees refused to pay for any acreage in excess of that estimate. A suit was brought by Overton against appellants, in which he recovered $ 4,200 additional upon the theory that his contract with appellants allowed a recovery for the entire acreage contained in a station if he did any clearing or grubbing in said station. The highways of the various roads embraced in the contract had been divided into stations and numbered for purposes of convenience in identifying any particular part of the road. Overton claimed a greater estimate in acreage than the jury allowed, in arriving at their verdict. Appellants defended that suit upon the theory that the contract they made with Overton was the same, in substance, as the contract they made with appellee, and that Overton should only recover for such acreage as they were entitled to receive pay for from appellee. During the pendency of this suit a settlement was reached between appellants and appellee as to the amount due them for the construction of the road, excepting from the contract appellants' claim for additional acreage due them on account of the Overton claim and suit. The settlement contract was reduced to writing, and contained the following exception relating to the Overton suit: "If said contractor (Overton) finally collects judgment from C. A. Rees & Company, then the said C. A. Rees & Company have not, by this agreement and settlement with the said road district, released their right to sue the road district to recover such amount as they shall have been compelled to pay said Overton."

The settlement aforesaid was introduced in the case, appellant contending that, under it, appellee agreed to pay appellants any amount that Overton might recover against them, and appellee contending that it preserved the right of appellants to test out their claim of extra acreage in the courts if Overton recovered a judgment against them. We think the latter construction of the settlement contract correct, and that the issue should not have been submitted to the jury as was done by the court. The submission of the issue, however, was not prejudicial to appellant, but was favorable to him.

The reversal of the judgment is also sought upon the ground that a number of the jurors owned property and were taxpayers in appellee Improvement District No. 1 of Clark County, Arkansas, and that Graham Brown, one of the jurors, was also in business with one of the attorneys for appellee, and with Mr. Clark, one of the commissioners of said district. The jurors were examined very carefully upon their voir dire, and stated that they would not be influenced in returning their verdict on account of being owners of land and taxpayers in said district. The amount of any judgment which might have been rendered when apportioned amongst the taxpayers would have been almost infinitesimal. Their interest was so slight that it is easy to see how they might answer, under oath, that they would not permit their interest to influence them in arriving at a verdict. This court ruled in the case of Osborne v. Board of Improvement of Paving District No. 5 of Fort Smith, 94 Ark. 563, 128 S.W. 357, that the "interest that will disqualify a judge must be direct and immediate, and not contingent and remote," citing in support of the ruling Mr. Works in his "Treatise on Courts," p. 396, and, in making the ruling, said: "It does not appear that the chancellor had any interest in the real estate of the litigation other then the general interest which any other citizen and property owner in the district had, * * * which is, at most, only a remote interest and not a direct one."

Neither do we think that, because Graham Brown was associated with one of appellee's attorneys and one of the commissioners in business, he was necessarily disqualified as a juror. He stated that his association with these gentlemen in business would not influence his verdict.

The court did not abuse his discretion in permitting the jurors to serve and in refusing to sustain the challenges to them.

Appellant also seeks a reversal of the judgment because the court refused to permit H. H. Catchings to testify, in rebuttal that according to the evidence of Overton and the statement filed with his testimony, he had cleared and grubbed 107 acres. Overton, one of...