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Ark.) BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DIST. v. WILLIFORD

665

law requires. The court will not make con- certificates of indebtedness in cases of extraorditracts for the parties.

nary emergency, not to exceed $21,000 in any The court therefore erred in directing a sued 'the power of the board was at an end,

event, and that when such amount had been isverdict for the appellees, so the judgment is since, after authorizing bond issues in large reversed, and the cause remanded for a new amounts to provide for the normal construction trial.

and maintenance of the levee of the district, the Legislature undertook to provide for cases of

extraordinary emergency arising thereafter, and BOARD OF DIRECTORS OF ST. FRANCIS limited the entire amount to be expended in all LEVEE DIST. et al. V. WILLIFORD.

emergencies to $21,000.

[Ed. Note. For other cases, see Levees, Cent. (No. 184.)

Dig. 19; Dec. Dig. 34.) (Supreme Court of Arkansas. Oct. 25, 1915.

Hart and Smith, JJ., dissenting in part. Separate Opinion, Nov. 8, 1915.) 1. LEVEES 34-LEVEE BOARD-DISCRETION Appeal from Crittenden Chancery Court; TO DECLARE EXTRAORDINARY EMERGENCY_Chas. D. Frierson, Chancellor. STATUTE.

Suit by J. E. Williford against the Board Acts 1909, p. 724, § 5, providing that it shall be unlawful for the board of directors of of Directors of the St. Francis Levee Disthe St. Francis levee district, or any officer, trict and others. Decree for plaintiff, and member, or agent thereof, to pledge or deposit defendants appeal. Affirmed in part, and reany bond, etc., issued under the act as security versed and remanded in part, with directions.

, or to appropriate any money arising from the This suit was instituted by the plaintiff, sale of any such bond to any use other than as expressly directed by the act, etc., also provid- a taxpayer owning lands in the St. Francis ed that interest-bearing certificates of indebted-levee district, to restrain the board of direcness of the board or district, payable to bearer tors from issuing certificates of indebtedness and negotiable, may be issued in cases of ex amounting to $95,670. The board of directraordinary emergency for levee work, not to exceed a certain amount. Held that, since the tors, it appears from the pleadings, passed act does not define what an extraordinary emer- resolutions providing for the issuance of cergency is, the question is left to the discretion of tificates of indebtedness varying in amounts the board, and their action in the premises, so from $16,000 to $21,120 to repair and conlong as it is not arbitrary, capricious, or fraud- struct the levee of the district at five difulent, cannot be challenged.

[Ed. Note. For other cases, see Levees, Cent. ferent places therein. The board declared Dig. 8 19; Dec. Dig. 34.]

that the work of repairing and constructing 2. STATUTES @ 22544 CONSTRUCTION OF the levee at each of the places named was an ACTS RELATING TO SAME SUBJECT.

extraordinary emergency, and directed the Where the Legislature passed two acts deal-officers to contract for the work and to sell ing with the powers of a board of directors of a levee district, and the language of one of the interest-bearing certificates of indebtedness acts was ambiguous, to determine the intention to pay for the same. These five separate resof the Legislature, the court should consider olutions were passed by the board on Septhe other act with that under consideration.

tember 9, 1915. It appears that during the [Ed. Note.-For_other cases, see Statutes, months of April and May, 1912 and 1913, the Cent. Dig. § 304; Dec. Dig. Omw22514.]

board of directors of the St. Francis levee 3. LEVEES 34-LEVEE BOARD-POWER IN district had already declared extraordinary EMERGENCY-STATUTE.

Acts 1909, p. 724, § 5, reads: "It shall be emergencies and had caused to be issued inunlawful for the * * board of directors of terest-bearing certificates of indebtedness the St. Francis levee district * to pledge amounting to the sum of $21,000. or deposit any bond * issued under

The chancellor entered a decree perpetualthis act, as security of the payment of any borrowed money,

or to appropri- ly enjoining the board of directors from isany money arising from sale of suing and selling interest-bearing certificates any such bond

to any use

of indebtedness in an amount exceeding $21,other than as herein expressly directed, or to sell 000 in any one or all of said emergencies negotiate any such

bond * * less than par, or to issue any interest- mentioned in said resolutions, but entered a bearing certificate of indebtedness of said board decree authorizing them to issue interestor district: Provided, that interest-bearing cer- bearing certificates of indebtedness in the tificates of indebtedness sued in cases of extraordinary emergency for sum of $21,000 to cover one or all of the levee work not to exceed $21,000 upon a two- emergencies mentioned in the resolutions. thirds vote of the entire membership of said Both parties have appealed. The facts as board."

Acts 1909, p. 717, passed on the same set forth in the pleadings were undisputed. day, provided for a bond issue of $750,000 to redeem a previous bond issue, issued to complete

Section 5 of Act No. 237 of the Acts of the levee begun by the directors and for "build- 1909 provides (Acts 1909, p. 721): ing, repairing, rebuilding, raising, and main- "It shall be unlawful for the said board of taining levees within the district. The first, directors, St. Francis levee district, or for any second, third, and fourth sections and the first officer, member or agent thereof, to pledge or part of the fifth section of the last-named act deposit any bond or coupon issued under the authorized another bond issue of $325,000 to provisions of this act, as security of the paypay for and carry out the provisions of all con- ment of any borrowed money or any debt or tracts for work and labor "in the repairing, obligation of said board or of any person, firm constructing, and maintaining of the levee in or corporation whatever, or to appropriate or the district made prior to March 1, 1909." use any money arising from the sale of any such Held that, under the statutes, the board of levee bond or bonds to any use or purpose whatever directors had power to issue interest-bearing other than as herein expressly directed, or to

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sell or negotiate any such bond or bonds for consideration, but may consider other acts and at an amount or price less than par, or to in pari materia. The Legislature at the issue any interest-bearing certificate of indebtedness of said board or district: Provided, that same session, on the same day (Act No. 236), interest-bearing certificates of indebtedness of had provided for a bond issue of $750,000 for said board or district payable to bearer and ne- the purpose of redeeming a previous bond isgotiable may be issued in cases of extraordinary sue in that sum, which had been issued "for emergency for levee work not to exceed twentyone thousand ($21,000) dollars upon a two- the purpose of completing the line of levee thirds vote of the entire membership of said begun by the board of directors of the St. board. And the St. Francis levee board shall Francis levee district," and for "building, not enter into any contract for levee work of any kind unless the board has or will have from repairing, rebuilding, raising and maintaining the revenue thereby of that year sufficient mon- levees within the district.” See Act No. 55, ey in its treasury to pay for such work. Any Acts of 1899. The first second, third, and

or tors, St. Francis levee district, who shall violate fourth sections and the first part of the fifth any of the provisions of this section shall be section of the act now under consideration deemed guilty of a felony, and upon conviction show that the Legislature had authorized thereof shall be imprisoned in the penitentiary another bond issue of $325,000, the proceeds for not less than one nor more than five years. of which were "for the purpose of paying for

B. J. Semmes, of Memphis, Tenn., for ap- and carrying out the provisions of all conpellants. L. C. Going, of Harrisburg, for ap-tracts for work and labor in the repairing, pellee.

constructing and maintaining of the levee in

said district made prior to March 1, 1909.” WOOD, J. (after stating the facts as above).

It is manifest from these acts, when conThese appeals involve the construction of strued together, that the Legislature was the above section. The plaintiff, on his ap- treating the levee or levees provided for in peal, contends that the board of directors, the act creating the St. Francis levee district under the above section, had authority to is- as a completed project, and the proceeds of sue interest-bearing certificates of indebted- | these bond issues were intended to pay for ness in extraordinary emergencies in an all the work that had been done in building, amount not exceeding $21,000, and that when repairing, constructing, and maintaining such such certificates were issued in that amount levee as a completed whole up to March 1, during the years 1912 and 1913 the power 1909. The Legislature prohibited the St. of the board was exhausted, and that, there- Francis levee board from expending the monfore, so much of the decree of the chancellor ey raised by these bond issues for any other as authorized the issuing of interest-bearing purpose than that declared in these acts. certificates of indebtedness in the amount of Then, after authorizing the bond issues in $21,000, pursuant to the resolutions of the these large amounts and the expenditure of 9th of September, 1915, was erroneous. the money raised by such issues in building,

The defendants, on their appeal, contend repairing, constructing, and maintaining the that the chancellor erred in not holding that levee of the district, and limiting the amount the board had authority to issue interest of money thus raised for the purposes therein bearing certificates of indebtedness in an named, the Legislature, in the section under amount not exceeding $21,000 to do the work review, undertook to provide for cases of contemplated in each case, where the board extraordinary emergency that might arise declared that an emergency had arisen. thereafter, and limited tte entire amount to

[1] The act does not define what an extraor- be expended in these emergencies to the sum dinary emergency is. That, necessarily, is of $21,000. It is the same, in effect, as if the left to the discretion of the board. So long Legislature had said: as the board does not act arbitrarily, capri- "For extraordinary emergencies the board ciously or fraudulently, their conduct in de- may issue interest-bearing certificates of indebtclaring extraordinary emergencies cannot be edness not to exceed the sum of $21,000.” challenged.

The language of the whole act shows that [2, 3] When the whole act is considered, it the Legislature had in mind to place a defis manifest that the Legislature did not in- inite limit as to the amount that the board tend by the section under review to grant might expend in extraordinary emergencies. the board of directors of the St. Francis The Legislature doubtless concluded that aftlevee district any such unlimited power as er the expenditure of the large sums of monthat contended for by defendants. On the ey that had been previously authorized for contrary, the purpose of the proviso, as we levee purposes, and the completion of the construe the act, was only to allow the board work contemplated by the money raised by to declare extraordinary emergencies, when these bond issues, it would not be necessary any should arise, and to issue interest-bear- in the immediate future to expend any very ing certificates of indebtedness to pay for the large sums, and that the expenditure of any work done in an endeavor to meet such emer- further sums should not be allowed, except gencies, to the amount of $21,000 and no in cases of extraordinary emergency, and more.

then only to the extent of $21,000, for all To determine the intention of the Legisla- emergencies that might arise. ture, where the language is ambiguous, the The board derived its power in the matter Ark.)

WARD V. NUTT

667

cates of indebtedness from the Legislature, 1 largement work is not an extraordinary and, although the board of directors, as an emergency. It is necessary work, of course, agent of the state, was charged by the Legis- but work the necessity for which has existed lature with the performance of certain du- since the building of the levee was begun; ties, to wit, the building, repairing, main- and such necessity will continue until the taining, etc., of the levee within the district, final standard of perfection and safety has yet this board, under the act, has no power been reached. But we think this necessity to issue bonds or interest-bearing certificates does not constitute an extraordinary emerof indebtedness and to raise and expend the gency within the meaning of the act, and for money derived therefrom, except as therein this reason we concur in the conclusion anexpressly provided. While the language of nounced by the court. the act, to wit, “in cases of extraordinary emergency,” indicates that there may be more HART, J., concurs. than one case of extraordinary emergency, yet this language does not denote that in each case the sum of $21,000 may be expended. On the contrary, the plain language indicates that the sum of $21,000 is the maximum amount for which interest-bearing certificates WARD V. NUTT et al. (No. 180.) of indebtedness can be issued.

The severe penalty which the Legislature (Supreme Court of Arkansas. Oct. 25, 1915.) imposed for a violation of the provisions of 1. PRINCIPAL AND SURETY Pm106 DISsection 5 shows an intention that these pro

CHARGE OF SURETY-EXTENSION OF TIME FOR

PAYMENT. visions, concerning the issuance of interest

An agreement, upon a valid consideration, bearing certificates of indebtedness, should by a creditor, without the consent of the surebe restrictions upon the power of the board of ty, not to sue the principal debtor for a stated directors to expend money in cases of extraor- time, discharges the surety. dinary emergency, and that they should not

[Ed. Note.-For other cases, see Principal and go beyond the amount designated in the act. Surety, Cent. Dig. $$ 211, 212; Dec. Dig. Om

106.] It follows that so much of the decree as

DIS

2. PRINCIPAL AND SURETY Ow108 perpetually enjoined the defendants from is

CHARGE-ALTERATION OF CONTRACT-EXTENsuing certificates of indebtedness in an

SION OF TIME FOR PAYMENT. amount exceeding the sum of $21,000 is cor- Where a note was past due when the interrect, and it is affirmed. That part of the est thereon was paid by the maker, who agreed decree, however, which permits the issuance with the payee at the time for an extension of

, of interest-bearing certificates of indebted- did not operate to discharge the maker's surety, ness not exceeding $21,000 in pursuance of since the payment of a debt at the time or after the resolutions of the board passed Septem- it becomes due is not a sufficient consideration ber 9, 1915, is erroneous, because the plead to support the creditor's agreement for forbearings show that the board had, on a former ance, while an agreement to extend the time for

payment which will discharge a surety must be occasion, since the passage of the present act, valid and enforceable. issued interest-bearing certificates of indebt- [Ed. Note.-For other cases, see Principal and edness in an amount equal to that sum. That Surety, Cent. Dig. 88 213-218; Dec. Dig. Om

108.] part of the decree, therefore, permitting the further issuance of interest-bearing certifi- 3. PRINCIPAL AND SURETY Cw104 – Dis

CHARGE-ALTERATION OF CONTRACT_EXTENcates of indebtedness will be reversed and

SION OF TIME FOR PAYMENT - PRIOR CONremanded, with directions to perpetually en- SENT. join and restrain defendants from the issu- Where a note contained an express stipulaance of further interest-bearing certificates tion that the parties consented that the time of

payment might be extended without notice, a of indebtedness.

subsequent extension did not discharge the mak

er's surety on such note. HART and SMITH, JJ., concur in part

[Ed. Note.-For other cases, see Principal and and dissent in part.

Surety, Cent. Dig. $8 186-190, 193–195, 197

200; Dec. Dig. Om 104.] Separate Opinion.

Appeal from Circuit Court, Howard CounSMITH, J. We agree with the chancellor ty; Jeff. T. Cowling, Judge. that the act contemplated that more than

Action by J. F. Ward against S. L. Nutt one emergency might arise, but that not and others. Judgment for the named defendmore than one could arise or exist at any ant, and plaintiff appeals. Judgment set given time. However, we do not agree that aside, and judgment entered for plaintiff. the enlargement work covered by the res- W. C. Rodgers, of Nashville, for appellant. olutions of the board was such an emergency as was contemplated by the Legislature. The MCCULLOCH, C. J. This is an action inpurpose of this enlargement work was to stituted before a justice of the peace by apbring the levee more nearly to the final stand-pellant to recover the amount of two promisard adopted as being necessary for the pro- sory notes executed by S. L. Nutt, the aptection of the lands of the district. This en- pellee, and other joint makers. Appellee

Nutt appealed to the circuit court, and a ance, founded upon such consideration, even

though carried out by the creditor, will not distrial in that court resulted in his favor.

charge the surety. In such cases, no benefit is On the face of the notes appellee appears received by the creditor but what he was entito be a joint maker, but the undisputed proof tled to under the original contract, and the debtestablishes the fact that he was merely a

or has parted with nothing but what he was surety. .

One of the notes is for the sum of already bound to pay." Thompson v. Robinson, $200, bearing date April 2, 1914, and due and payable 7 months after date, with interest

In Vestal v. Knight, 54 Ark. 97, 15 S. W. from date until paid. The other note is for 17, it was held that payment of interest on $142.80, with a credit of $17.50, and is dated a note in advance is sufficient consideration June 3, 1914, and due and payable 6 months to support a contract for the extension of after date, with interest from date until the time of payment, and that an agreement paid. The last-mentioned note also contains of the creditor with the principal for an exthe following stipulation:

tension of time based upon such considera

tion discharges the surety. "The makers, sureties, indorsers, and guarantors of this note severally waive presentment for

[3] The interest on the first note was past payment, notice of nonpayment, protest, notice due when it was paid, as claimed by Kenof protest, and diligence in bringing suit against nedy. Therefore, according to the well-setany party thereto, and consent that the time of tled principles already announced, there was payment may be extended without notice there

no consideration for an extension of the time of." The only defense interposed is that appel- tained an express stipulation to the effect

of payment of that note. The other note conlant entered into an agreement with one Kennedy, who was also one of the makers of that the parties "consent that the time of the notes, for an extension of the times of payment may be extended without notice the notes, for an extension of the times of thereof." That stipulation is not susceptible payment. The testimony of Kennedy, which the verdict shows that the jury accredited, is the parties to the note consented to any

to any other interpretation than that all of that a few days before the last note became due he paid the interest on each of the notes agreement of extension which might there

after be made. It means that, if it means to appellant, and that the latter agreed to anything at all; and since appellee expressly extend the time for payment on each of the consented in advance to an extension of time, notes for 12 months. It will be seen from his rights are not affected by the alleged the above recitals of facts that the last note agreement of appellant to extend the time. became due and payable on December 3, 1914,

The verdict was therefore erroneous, acand the first note on November 2d, so it is cording to the testimony adduced by appelevident that at the time Kennedy says that lee. According to the undisputed testimony he paid the interest, and that the alleged extension of time was agreed to by appellant, fered, except that referred to above, appel

in the case, there being no other defense ofthe first note was nearly a month past due.

lant is entitled to a judgment for the amount [1, 2] The law on the subject, as laid down of each of the notes (less the credit of $17.50 by this court, is as follows:

indorsed on the second note), with interest "An agreement upon a valid consideration by from maturity. Appellant denied that the a creditor without the consent of the surety, not to sue the principal debtor for

a stated time, interest was paid at all, but the verdict of discharges the surety. Such an agreement ties the jury settles that issue against him. up the hands of the creditor, because, if he The judgment in appellee's favor will breaks it, he may be sued for damages. But the payment of part of a debt by the princi- entered here in favor of appellant for the

therefore be set aside, and judgment will be pal, at the time or after it becomes due, is not a sufficient consideration to support an agreement amounts due on the notes as above indicatfor forbearance; and an agreement for forbear-led. It is so ordered.

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Tex.)

WILKERSON V. STASNEY & HOLUB

669

clusions of fact and law are filed, the appelWILKERSON et al. v. STASNEY & HOLUB. lant has the right to appeal without filing a (No. 5578.)

motion for a new trial. We think this posi(Court of Civil Appeals of Texas. Austin. tion is well taken. By article 1612, Vernon's Oct. 13, 1915.)

Sayles' Rev. Civ. St., the appellant is reAPPEAL AND ERROR 282-RESERVATION OF quired to file with the clerk of the court beGROUNDS OF REVIEW - MOTION FOR NEW low his assignments of error upon which he TRIAL.

Under District court rule 71a (145 s. w. relies for a reversal, before he takes out vii), providing that a motion for a new trial the transcript, provided that, where a motion shall be filed in all cases where parties de- for new trial has been filed, the assignments sire to appeal from a judgment or sue out a therein shall constitute the assignments of writ of error unless the error complained of is fundamental, except in such cases as the stat- error, and need not be repeated by the filute does not require a motion for a new trial, ing of assignments; thus contemplating that and Vernon's Sayles' Ann. Civ. St. 1914, art. in some cases such assignments might be 1612, providing that appellant or plaintiff in er- filed in the court below without filing a moror shall file with the clerk of the court below all assignments of error, provided that, where tion for new trial. Article 1991, Id., reads a motion for a new trial has been filed, the as- thus: signments therein shall constitute the assign- "It shall be sufficient for the party, excepting ments of error, and need not be repeated, and to the conclusions of law or judgment of the article 1991, providing that it shall be sufficient court, to cause it to be noted on the record in for the party excepting to the conclusions of the judgment entry that he excepts thereto; and law or judgment of the court to cause it to be such party may thereupon take his appeal or noted on the record in the judgment entered writ of error without a statement of facts or that he excepts thereto, and that such a par- further exceptions in the transcript; but the ty may appeal or take a writ of error without a transcript shall in such cases contain the special statement of facts or further exceptions in the verdict or conclusions of law and fact aforetranscript, a party may appeal and file assign- said, and the judgment rendered thereon.” ments of error without a motion for a new trial where a case has been tried by the court with

These two statutes have been construed by out a jury and conclusions of fact and law fil- several of the Courts of Civil Appeals as aled, and the judgment has been duly excepted to. lowing the right of appeal on the part of the

[Ed. Note. For other cases, see Appeal and appellant, in the absence of a motion for a Error, Cent. Dig. $s 1662–1665; Dec. Dig. Om new trial, where, as in the instant case, the 282.]

trial was before the court without a jury, Appeal from Williamson County Court; and conclusions of fact and law had been filRichard Critz, Judge.

ed which were duly excepted to, as required Action between A. E. Wilkerson and oth- by statute. See American, Rio Grande Land ers and Stasney & Holub. From the judg- & Irrigation Co. v. Mercedes Plantation Co., ment, Wilkerson and others appeal. On mo- 155 S. W. 286; Pollard v. Allen & Sims, 171 tion to strike out the assignments of error. S. W. 302; Cornelius v. Harris, 163 S. W. Motion overruled.

346; Cooney v. Dandridge, 158 S. W. 177, W. A. Barlow, of Taylor, for the motion. 178; Moore v. Rabb, 159 S. W. 85; Dees

v. Thompson, 166 S. W. 56; Commonwealth RICE, J. This case was tried before the Bonding & Casualty Co. v. Cator, 175 S. W. court without a jury, and judgment render- 1074. In Dees v. Thompson, supra, it is ed therein against appellants on the 12th day held that Acts 33d Leg. c. 136 (Vernon's of April, 1915, from which judgment they Sayles' Ann. Civ. St. 1914, art. 1612), makhave perfected this appeal. Appellees have ing assignments of error in motions for filed their motion to strike out the assign- new trial the assignments on appeal, did not ments of error herein filed on behalf of ap-change the rule that no motion for new pellants, on the ground that no motion for trial need be filed in cases tried by the court new trial was made in the court below, pred- without a jury, in which findings of fact and icating their right so to do on district court conclusions of law were filed and excepted rule 71a (145 S. W. vii), which reads as fol- to. The only case cited by appellees suslows:

taining their contention is that of Head v. "A motion for new trial shall be filed in all Altman, 159 S. W. 135, which is in conflict cases where parties desire to appeal from the with the cases above cited, in which Mr. judgment of the trial court, or sue out a writ of error in the cause, unless the error complained Justice Connor, in support of his views, cites of is fundamental, except in such cases as the Davidson v. Patton, 149 S. W. 757, Nunn statute does not require a motion for a new v. Veal, 149 S. W. 758, and Murphy v. trial.”

Earl, 150 S. W. 486, the first two of which If in certain cases the statute does not re- were decided by the Court of Civil Apquire a motion for new trial to be filed in peals of the Amarillo District, and the the court below as a prerequisite for an ap- last by the El Paso court. In Nunn V. peal, and this case falls within that class, Veal and Murphy v. Earl there were jury then appellees' insistence is not well taken. trials, and in Davidson v. Patton the record

Appellants contend that in all cases tried does not disclose whether tried by the court before the court without a jury, where the or with a jury; but said courts have since judgment rendered is excepted to, and con- said time reversed their holdings in this re

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