contractor, that the engineer should have the right to make alterations in the line, grade, plan, form, and quantity of the work, and that if such alterations diminished the quantity of work, this should not constitute a claim for damages on anticipated profits. A proposal for bids, which stated the approximate quantities upon which bids would be received, was not in cluded nor referred to in the contract. Held, that the contract being unambiguous and such proposal not having become a part thereof, the district was not bound to give the contractors the quantity of work specified in the proposal, but was bound to permit them to do all of the work required to be done so long as the contract continued in force, and the district could not, under the guise of making alterations in the contract, take from the contractors certain designated streets and do the work itself or through other contractors. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 883; Dec. Dig. 352.1 2. MUNICIPAL CORPORATIONS 366-PAVING STREETS-CONTRACTS-COMPLETION OF WORK BY CITY. Where the district paved certain of the streets after giving the contractors notice that this would be done in the exercise of the option reserved to employ additional forces of men and purchase materials in the open market, it did not attempt to deprive the contractors of the work, but only to pave such streets at the expense of the contractors, and the contractors were entitled to the difference between the cost to the district of doing the work and the agreed price. for paving roadways of all the streets of said city and the work was carried on by them during a period of 5 or 6 years, after they had erected a brick manufacturing plant, at an expense of near $150,000, in the city of Ft. Smith, to comply with the terms of the contract in furnishing brick manufactured in Ft. Smith for the work. A great mass of testimony was introduced, and the record is voluminous. A master was appointed by the chancellor, and reported his findings on the different claims made, and upon exceptions to the master's report the chancellor found in favor of appellants on their claim for retained percentage $38,297.86, of the amount due for paving, and for pine headers $197.88, and for iron gutter plates, $377, and rendered a decree for the whole Sum, $42,260.88, found to be due, from which Burke Bros. appealed, contending that the chancellor erred in finding against them on their other claims and in reducing their claims on the items for pine headers and iron gutters. The court held against appellees on all claims made by way of counterclaim and set-off, and they also appealed. In the notice and proposal for bids sent out by the district it was stated: "The approximate quantities upon which bids will be received and compared are as follows: "Square yards of completed brick pavement [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 899; Dec. Dig. laid on said foundation, 20,000 sq. yd. 366.] 3. MUNICIPAL CORPORATIONS 362-PAVING STREETS-CONTRACTS-DAMAGES FOR DELAY. Where a paving district and parties contracting to pave the streets of the district recognized that the paving could not possibly be completed within the time provided in the contract because of the time required for the construction by the contractors of a plant for the manufacture of bricks and the time lost on account of the failure of abutting property owners to construct the curb and guttering against which the pavement must rest, for which failure neither the paving district nor the contractors were to blame, a finding that the district was not entitled to any damages for the failure to complete the work within the specified time was warranted. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 894, 895; Dec. Dig. 362.] Appeal from Sebastian Chancery Court; Jas. D. Shaver, Special Chancellor. Action by M. C. Burke and J. A. Burke, copartners as Burke Bros. against the Board of Improvement Paving District No. 5 and others. From a judgment for plaintiffs for an insufficient amount, they appeal, and defendants also appeal. Modified and affirmed. Pryor & Miles, John H. Vaughan, and J. V. Bourland, all of Ft. Smith, for appellants. Kimpel & Daily, of Ft. Smith, for appellees. "Square yards of completed brick pavement laid on concrete foundation, 20,000 sq. yd. "Cubic yards of concrete in place for gutterways 4,000 cu. yd. "Pounds of cast iron cover plates for gutterways, 300,000 pounds." The bidders were also advised "to make such examinations as may be necessary to inform themselves in respect to present conditions of the streets and local surroundings before submitting proposals." Appellants' bid of 814 cents per square yard for the pavement on sand foundation, $1.46 per square yard for pavement on concrete foundation, $12 for each yard of concrete in place for guttering, and 3 cents per pound for iron covers for gutterways, all materials to be furnished and work done by the bidders, was the lowest bid and accepted by the board and a contract made with them. The contract as entered into for the construc tion of the paving contains no provision relative to the particular kind and amount of paving to be done, and makes no reference to the proposals for bids, nor bids received, except it recites that Burke Bros., party of the first part "in competition submitted the lowest and best tender for constructing the paving improvement in paving district No. 5, of the city of Ft. Smith, Arkansas, said improvement being as follows, viz.: The construction and completion of the paving of the roadways of the streets and avenues in said paving district No. 5, as indicated re-by said board of improvement, and furnishing the necessary labor, materials, tools and plant KIRBY, J. This suit was brought by Burke Bros. for an accounting and to recover the balance claimed to be due under a contract with improvement district No. 5 therefor." of the city of Ft. Smith, for paving the The other provisions necessary to be set streets of said city. The contract provided out are sections 9, 14, and 15 of the contract and the specifications relating to concrete | dinance passed after a grant of power by and gutterways as follows: "9. If, in the judgment of the engineer, the work is not being pushed with the degree of activity necessary to its completion within the specified time, then it shall be at his option upon written notice and approval of the board, to employ such additional force of men as may be required, and to purchase material in open market and deduct the cost thereof from money due the contractor." "14. The engineer, in concurrence with the board, shall have the right to make alterations in the line, grade, plan, form and quantity of the work herein contemplated, either before or after the commencement of the work. this contract. the Legislature succeeded in having it done. There was much friction between the board and the contractors, each insisting that the other was at fault in the performance of the contract; the contractors insisting that they were being arbitrarily required to move to different and distant places at great expense and loss of time; that they were harassed by numerous inspections and rejection of brick captiously made, and the board claiming that the brick used and attempted to be put down in paving was not of the kind and quality contracted to be used, and did not meet the test prescribed; also that the contractors were furnishing brick from their tractors were furnishing brick from their plant to be used and using them on other contracts and improvements at different places, outside of Ft. Smith. Certain paving on sand foundation was done in some of the gutters, which should have been done by the property owners, and likewise in the alleys, but which was done by the contractors at the regular price to the district, and for which the property owners paid the commissioners $1 per yard. Payments for the work were made in accordance with the schedule of prices fixed in section 15 of the contract upon monthly estimates of the engineer, less 10 per cent. of the amount of the estimates retained by the board, in accordance with the contract, until the completion and acceptance of the work. "If such alterations diminish the quantity of the work to be done, they shall not constitute a claim for damages on anticipated profits on the work dispensed with; if they increase the amount of work, such increase shall be paid for according to the quantity actually done, and the price or prices stipulated for such work in "15. In consideration of the completion by the said first party of all work embraced in this contract in conformity with the specification and stipulations herein contained, the board of improvement of paving district No. 5 of the city of Ft. Smith, Arkansas, party of the second part hereby agrees to pay said first party the following prices: For each square yard of completed brick pavement laid on sand foundation the sum of eighty-one and three quarter cents (81-34 cents) dollars; for each square of completed brick pavement laid on concrete foundation the sum of one and forty-six one hundredths ($1.46) dollars; for each cubic yard of concrete in gutterways, the sum of twelve ($12.00) dollars; for each pound of cast-iron cover for gutterways, the sum of three (3) cents." "Concrete. If upon any street to be paved the board of improvement should decide to use a concrete base due to the presence of street or steam railway tracks, or for any other cause, the engineer may order that the surface of the subgrade be brought eleven (11) inches below and parallel with the finished cross-section of the street, and that upon this subgrade, when properly prepared, there shall be laid a layer of Portland cement concrete, not less than five (5) inches in thickness when tamped. * * * "Gutterways. At such street and alley inter-struction of the work; such notices assumed sections as may be designated by the engineer there shall be constructed by the contractor, as a part of the street pavement, covered gutters or waterways, the same to conform to the details therefor on file. * * Appellees, after constructing a plant for the manufacture of paving brick out of shale, at Ft. Smith, which required almost two years, proceeded with the work of paving the streets as they were designated for that purpose by the engineer of the district. They were delayed greatly in the prosecution of the work of paving by the failure of the property owners to construct the sidewalks and curbs on the abutting property, and were compelled often to move their working companies and appliances to different streets, or to different sections of the same street, in order to continue the work without too great break or delay. Neither the paving district nor the contractors were at fault for the failure of the property owners to sooner construct their sidewalks and curbs. The city attempted to compel the construction by an ordinance which was declared void by this court, and finally by another or Certain designated streets and portions of streets were paved by the district with concrete after the board of improvement and engineer notified the contractors that it would be done in exercise of the option, reserved in section 9 of the contract, to employ additional forces of men and purchase materials in the open market for the con for the purpose of it only, that the contract was still existing, and expressed that the engineer, with the concurrence of the board, had the power (which was denied by the contractors), under section 15, providing for the alterations, to diminish the quantity of work contemplated under the contract, by eliminating therefrom the streets designated for concrete pavement by the board. As already said, the volume of testimony is great and in many instances it is in direct conflict. Especially is this true relative to the conduct of the engineers and the improvement district in the designation and failure to designate streets to be paved and in the inspection and rejection of the brick to be used and in the action of the district and failure to have the curb and guttering completed that the paving could be continued, as well as in the kind and quality of brick furnished and used in the paving, none of which it was claimed came up to the test required by the specifications. No useful purpose can be served by setting out the testimony in detail, and it will suffice to say that it supports the findings of the chancellor upon all claims, upon which judgment was rendered in appellants' favor, and that his findings upon any and all other matters, except as indicated herein, are not clearly against the weight or the preponderance of the testimony. [1] The proposals for bids sent out by the board of improvement, with instructions to bidders stating the approximate amount and kinds of paving to be done, did not become a part of the contract, not being included nor referred to therein and the contract having afterwards been prepared and executed without any agreement for or designation of a certain amount and kind of paving to be done, the price alone for the certain kinds or units of a class being stipulated in said section 15 thereof. The contract provides for "the_construction and completion of the paving of the roadways and streets and avenues in said paving district No. 5, as indicated by said board of improvement and furnishing the necessary labor, materials, tools and plant therefor," "and to complete the work in strict conformity with the details and plans for said work on file in the office of the said board of improvement, and according to the specifications hereinafter contained and made part of this contract, and in compliance with the directions of the said board of improvement, or their duly authorized agents, and to the satisfaction and acceptance of said board." The contract being unambiguous, the notice and proposal for bids, containing the approximate amounts of the different kinds of paving, cannot be construed to be a part of it, having been omitted therefrom, and must be considered only as belonging to the preliminary and antecedent negotiations. Soudan Planting Co. v. Stevenson, 83 Ark. 163, 102 S. W. 1114; Tedford Auto Co. v. Thomas, 108 Ark. 503, 158 S. W. 500. The district was not bound to give the contractors the number of square yards of completed brick pavement on concrete foundation and the number of cubic yards of concrete in place for gutterways mentioned in the proposal for bids, the contract not providing therefor, but it was bound to permit them to put down in concrete all the gutterways that were designated by the engineer and all the kinds of pavement that were required to be made in paving the streets, so long as the contract continued in force. In other words the district could not, under the guise of making alterations under the provisions of section 14 of the contract, take from the contractors certain designated streets, a substantial portion of the work contracted to be done, and deprive them of the benefit thereof by giving it to the other contractors, or having the work done itself. Kieburtz v. Seattle (Wash.) 146 Pac. 400 (March 15, 1915). [2] Such would not be the case of a loss suffered because of the performance of the work required by the contract on account of a change in the plans, increasing the number of units of work in the one class and de creasing the number of units in another. The court is of opinion, however, that the district did not attempt to deprive the contractors of the work, but only to pave said designated streets at the expense of the contractors under the provisions of said section 9 of the contract, because the work was not being dispatched by the contractors as rapidly as the board thought it should be done, in order to the completion of the paving within the time given therefor. Appellants were therefore entitled to recover for said paving the difference between the cost thereof per yard to the district and the price agreed to be paid them for pavement, on a concrete foundation, which was 10 cents per square yard on 105,000 square yards of pavement, amounting to $10,500, as found by the master. The parties appear to have disregarded and waived the provisions of the contract in many particulars, the district appearing to have endeavored to get all the pavement laid on a sand foundation, out of the best brick that could be manufactured by the contractors at their plant from the material available, while the contractors appeared desirous of making the best paving brick that could be manufactured under the existing conditions and using them in the laying of the pavement on the streets designated, with proper expedition and dispatch. Both parties appear finally to have waived and disregarded all the provisions of the contract, except only those relating to the price and payment for the pavement laid of the best brick. that the commissioners could get the contractors to make and use therein, and the rattler test was never insisted upon, the parties appearing to have recognized that the brick that could be manufactured at the contractors' plant would not stand this test, and to have accepted instead the best brick that could be manufactured from the materials available to the plant and that were of a standard of quality equal to those that had theretofore been used in the paving of Garrison avenue. [3] The parties appear also to have recognized that the paving could not possibly be completed within the time provided in the contract, because of the time required for the construction of the plant for the manufacture of the bricks and of the time necessarily lost from the work of paving on account of the failure of the abutting property owners to construct the curb and guttering against which the pavement must rest, and the chancellor's finding that the district was not entitled to any damages for failure to complete the work within the specified time, is also in accordance with the testimony. The decree upon the items found in favor of appellants is correct, and appellants are further entitled to recover the difference between the cost of the paving laid in concrete done by the board of improvement at the expense of the contractors and the price to be paid them therefor-$10,500, as found by the | phis, for carrying freight and passengers for master-with interest, and to judgment here hire, contrary to the articles of incorporation for that additional sum. and the constitution and by-laws thereof, The decree is accordingly modified and, as and have appropriated $50,000 to be used in modified, affirmed. 3. CORPORATIONS 447-CHAMBER OF COMMERCE-POWERS. The Little Rock Chamber of Commerce, incorporated under Kirby's Dig. §§ 937-943, providing that such corporations shall have, for carrying out their object, such powers as are possessed by other corporations, and which may be necessary to their management and purposes, and whose constitution declared its object to be the upbuilding of the city, the encouraging of its public improvements and educational advantages, and the development of its industries, and whose by-laws provided for an industrial committee to have exclusive control of the industrial fund and the power to grant aid or subsidies for public purposes, did not exceed its powers by granting a subsidy for the construction of boats and the navigation of the river from the city to Memphis, with a view to lowering prevailing freight rates. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1786, 1788, 1807; Dec. Dig. 447.] Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor. Suit for injunction by Frank B. Gregg and others against the Little Rock Chamber of Commerce and others. Decree for defendants, and complainants appeal. Affirmed. the purchase of the boats and payment of subsidies to the owners and operators thereof, to induce them to engage in the carriage of freight and passengers for hire, for a term of five years; that when the plaintiff subscribed to the fund it was represented to him that it would be collected for the Chamber of Commerce, and purposes in Little Rock and vicinity, and that "would be used for industrial and development the principal part of said fund would be used for the purpose of locating factories and developing the resources of the city of Little Rock, and Pulaski county, and incidentally of advertising the resources of the state of Arkansas and the opportunities for the development of manufacturing and other industries in the city and state." It was alleged, further, that it would be a diversion of the fund from the purpose for which it was raised, and so reduce the fund as to create an irreparable injury, and asked an injunction to prevent it. The Chamber of Commerce admitted the allegations of the complaint as to its incorporation and powers, and that it was about to execute the contract granting the subsidies for a boat or boats to navigate the Arkansas river, as alleged in the complaint, but denied that it was contrary to its articles of incorporation or beyond its powers; denied any representations to the parties subscribing to or donating lands in aid of the fund, taat such fund would be used solely in locating factories and developing the resources of the city of Little Rock and incidentally advertising the resources of the state; alleged that the contracts donating the lands and purchasing them from it were in writing. The object and purpose of the Little Rock Chamber of Commerce is stated in article 2 of its constitution, as follows: The object and purpose of this organization shall be the upbuilding of the city of Little Rock, Argenta, Pulaski county and the state of Arkansas, encouraging and assisting in public improvements of all kinds therein, including streets, highways, sewers, public buildings, and This appeal challenges the power of the any and all things which are for the public good; locating schools and colleges, libraries, Little Rock Chamber of Commerce and its and all things which look toward higher and industrial and development committee, to better educational advantages; locating and degrant or give the funds and property donat-veloping and assisting in the location and development therein of manufactures and other ed to the Chamber of Commerce for the pro-industries; buying, owning, developing and sellmotion of the general welfare of the cities of ing property, real and personal, borrowing monLittle Rock and Argenta, the county of Pulas- ey and issuing bonds and other evidences of inki, and the state, in educational, commercial, debtedness, and executing mortgages or deeds of trust to secure same; conducting a merchants' and industrial ways, for subsidizing and es- association, which will bring merchants and partablishing a boat line for the navigation of ties engaged in trade in closer association and the Arkansas river from Little Rock to Mem- work for the mutual advantage and protection of the same, conducting a board of trade with phis, Tenn. all the necessary adjuncts, conducting a real estate exchange, which shall unite under rules of business and justice the business of buying, conduct and control of brokers, agents and others selling and exchanging real estate and for the engaged in that line of business; for organizing and conducting any other bureau or bureaus, The complaints allege that the Chamber of Commerce is about to make a contract for the purchase of a steamboat, to cost approximately $30,000, to be operated on the Arkansas river, between Little Rock and Mem tle Rock and Memphis will enable citizens of "The operation of a boat line between Lit Little Rock to demand of the Interstate Commerce Commission a river and rail rate to all points in the United States, the same as other cities on navigable streams. exchanges, which the board of governors may de- He stated the purpose of the contract was cide shall be beneficial or necessary in the build- for the purchase of the boat, that it was the ing up of said cities and state, and for the best intention of the committee to navigate the interest thereof and of this organization; shall have full power to do any and all things deemed river and, if necessary, to purchase a boat necessary in carrying on any and all of the above to engage in the freight and passenger trafobjects; to foster and promote the commercial, fic between Little Rock and Memphis, and: industrial, physical and moral development of the cities of Little Rock, Argenta and vicinity. Article 10, § 6, of the by-laws provides: An industrial and development committee of the Chamber of Commerce is hereby created. Said committee shall have exclusive control of the disposition of the industrial and development fund raised by the Chamber of Commerce, and The terms of the contract for the buildthe fund shall be paid out only upon drafts or ing of the boat were shown in evidence. No warrants of said committee. The committee financial benefit was to be derived by the shall have the right to make investments of Chamber of Commerce from the operation of said funds, to make donations and grant aids or subsidies and use it in any manner which a ma- the boat, no profit to be paid it, nor loss to jority may determine upon for public purposes, be sustained by it. The section further provides that the committee shall consist of six members, and provides for their term of office, and that it may have the right to establish by-laws, rules and regulations for the control of its meetings. It appears from the testimony what representations were made by the canvassers securing the donation and subscriptions to the "million dollar fund" and Mr. Frank B. Gregg, who was president of the Chamber of Commerce at the time, stated that it was represented to him, as an inducement to sign a contract for the purchase of certain lands from the Chamber of Commerce, that the proceeds would be used for industrial and development purposes by bringing factories to Little Rock. The money was to be used to induce factories to locate in Little Rock. He said: D. K. Hawthorne, of Little Rock, for appellants. Mehaffy, Reid & Mehaffy and Lawrence B. Burrow, all of Little Rock, for appellees. KIRBY, J. (after stating the facts as above). The Chamber of Commerce was not organized for pecuniary profit or dividend. making or sharing, but under the statute providing for the organization of corporations. for benevolent purposes, and as boards of trade or chambers of commerce, which provides they shall have, for carrying out the purposes and objects of their organization, such powers as are possessed by other corporations and which may be necessary to their efficient management and the promotion of their purposes. Sections 937-943, Kirby's: Digest. It is insisted that because the terms of the charter designating the purposes of the organization do not expressly state that the "At the time the million dollar fund was raised in 1912 by the Chamber of Commerce, it was not contemplated by the officers of the Chamber of Commerce that any part of the fund would be used in inducing navigation on the Arkansas river. It was contemplated that the fund, when it was raised, would be used in giv-corporation shall have power to grant a subing bonuses to factories and giving sites, part paying for sites, for factories, and advertising Little Rock and vicinity; in fact, in any way that would help the industrial development of the city." Mr. Carl J. Baer testified that he was industrial commissioner of the Chamber of Commerce and made the campaign for the million dollar fund. He said there were no contracts made with the plaintiffs, except those in writing. He states generally what was necessary to the industrial development of the city, and: "Freight rate is the real hindrance to the development of Little Rock. Money could not be spent in a more advantageous way than in securing cheaper transportation. The object in subsidizing the boat was to secure cheaper rates, and thereby to improve conditions in Little Rock. Without effort to get cheaper transportation the Chamber of Commerce would be very much hindered in the development of Little Rock, and the money expended would not result in material advantage in anything like it would if it expended the money in securing lower rates. Cheaper transportation is necessary in locating schools and colleges and industrial plants, and all things of that kind and character that go to build up a city. Was familiar with Little Rock and its surroundings, and in his opinion there was no way to secure low rates sidy for the operation of boats on the Arkan- Rock and Argenta, Pulaski county and the state- Thompson says: "The powers of the corporation are to be measured by its charter, read in connection with the general laws applicable to such corporations, and whatever under the charter and general laws, reasonably construed, may be fairly |