Western Randolph County Road Improvement District v. Clifford

• Decision Date: 10 October 1921
• Docket Number: 146
• Parties: WESTERN RANDOLPH COUNTY ROAD IMPROVEMENT DISTRICT v. CLIFFORD
• Court: Arkansas Supreme Court

233 S.W. 914

150 Ark. 94

WESTERN RANDOLPH COUNTY ROAD IMPROVEMENT DISTRICT v. CLIFFORD

No. 146

Supreme Court of Arkansas

October 10, 1921

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Affirmed.

Page Campbell & Davis, for appellant.

No time was specified in contract for delivery of bonds, hence a reasonable time, in view of all the circumstances, was intended. Page on Contracts (2nd. Ed.) Vol. 4, p. 2647; 33 Conn. 1; 101 Ala. 14; 13 N.Y.S. 922. A tender of the bonds within eight months was within a reasonable time, as there were unusual circumstances connected with the case causing the delay.

A formal tender of the bonds was unnecessary, since appellant was notified that they would not be accepted. 96 Ark. 156; 93 Ark. 497; 68 Ark. 505; 132 Ark. 84.

The refusal to accept the bonds was not justified by changes in the law, as the contract was not thereby made more burdensome. 109 Ky. 408; 125 Md. 450; 128 N.Y.S. 697; 24 Pa Dist. 477; 42 N.Y. 126; 13 C. J. p. 646, § 720; Page on Contracts (2nd. Ed.) Vol. 5, p. 4765.

The reason for the refusal to accept the bonds was because of the break in the bond market, but changing events is no ground for preventing specific performance of a contract. 144 N.Y. 152.

Not necessary for the district to probate claim against Hahn's estate. Upon the refusal of the representative to accept the bonds, the contingency happened which gave the district the right to cash the certified check. It then became an absolute claim, not against the estate of Hahn, but against the bank on which the check was drawn. 116 Ark. 1; 5 R. C. L. pp. 528-9, §§ 48-50.

John F. Clifford, for appellee.

The very nature of the contract makes time its essence, regardless of whether it is expressly so stated or not. 105 Ark. 626; 134 U.S. 68; 23 R. C. L. p. 1371; 11 L. R. A. 526. The words "as expeditiously as possible," should receive a literal construction. 126 Ark. 46.

After the passage of the amendatory legislation the board could no longer deliver the article contracted for, and they necessarily tendered comething not contemplated by the original contract, which the appellee was not bound to accept. 85 Ark. 596; 13 C. J. 642-3.

The law does not place upon the representative of Hahn's estate the duty to continually notify the district that it is expected to comply with its contract. 62 Ark. 316; 76 Ark. 570; 89 Ark. 204.

OPINION

MCCULLOCH, C. J.

Appellant is a road improvement district in Randolph County created by a special act of the Legislature, approved February 27, 1919 (Road Acts 1919 p. 356), and on June 17, 1919, the district entered into a written contract with appellee's intestate, E. J. Hahn, for the sale of bonds to be issued for the purpose of raising funds to be used in the construction of the improvement. It was stipulated in the contract that the purchaser should accept the "entire anticipated bond issue in the sum of $ 400,000, or so much as the district may require, the bonds to be serial and run from one to twenty-five or thirty years, as the district may elect, to be dated October 1, 1919, and to bear interest at the rate of six per cent. per annum, payable semiannually." It was further agreed in the contract that the purchaser should, within ten days, deliver to the secretary of the board a certified check, in the sum of $ 10,000, "to guarantee compliance with the terms of the contract," the check not to be cashed, but to be held in trust until the bonds were tendered in compliance with the contract. Still another stipulation in the contract was that the commissioners agreed "to use their best efforts to have the assessment of benefits confirmed and the bonds issued with the least possible delay." Hahn delivered to the secretary of the board of commissioners a certified check for the sum of $ 10,000 on a bank in Little Rock, in compliance with the terms of the contract, and, shortly thereafter, before anything else had been done under the contract, Hahn died. The subsequent dealings with the district were conducted by Hahn's personal representative and those associated with him in the business. The bonds were never accepted by Hahn's representative, and this is an action instituted by the administrator to restrain appellant district from collecting the check and to restrain the bank from paying the same. The chancellor granted the relief prayed for in the complaint, and the district has appealed.

There was a clause in the contract to the effect that the purchaser of the bonds should make advances to cover the preliminary expenses of the district, which advances were to be paid out of the first issue of bonds. Sums of money were furnished from time to time, aggregating about $ 15,000, and negotiable promissory notes were executed by the district to cover the same, but it does not appear in this record what became of those notes, and they are not involved in the present litigation--the sole subject-matter of the suit being the check deposited by Hahn as a guaranty for the performance of the contract.

The district covered a large area in Randolph County, said to constitute about four-fifths of the county, and the original statute creating the district provided for surfacing the specified roads with crushed rock and constructing necessary bridges along certain roads in the district. There were eleven roads mentioned, which were to be improved. The statute also contained a provision that the average cost of the road should not exceed $ 3,000 per mile, and it was estimated by the engineer during the progress of the...