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are entirely too general to form the basis , set forth, and it is impossible, therefore, to of a cause of action. There is nothing in determine whether appellee had violated the this count to show what was meant by the contract, and, if so, whether such violation shift, nor what the delayed shifts cost ap- had resulted in injury and damage to the pellant, if anything, nor the manner in appellant. The court, therefore, was correct which the delayed shifts caused any expense in sustaining the demurrer to these parato the appellant. The allegation that appel- graphs to the complaint. Even if the delee delayed appellant 22 shifts, which caused murrer should have been treated as a motion appellant to suffer damage in the sum of to make more specific, it should have been $880, was but the statement of a conclusion, sustained. without any specific facts upon which it Since the appellant did not ask to amend could be seen that such conclusion was cor- his complaint, but elected to stand upon the rect. If appellee abandoned his contract as same, the rulings of the court in sustaining alleged, the measure of appellant's damage the demurrer and dismissing this complaint would be what it would cost it to complete | were correct, and its judgment is therefore it in excess of the contract price. Appel- affirmed. lant nowhere alleged what the contract price was, nor that on account of the abandonment of the work by the appellee he had to ex- DAVIS v. H. A. NELSON & SON. (No. 160.) pend more to complete it than he would have (Supreme Court of Arkansas. Feb. 18, 1918.) done had appellee completed the work and 1. JURY 32(4)—RIGHT TO JURY TRIAL been paid the contract price. The allega STATUTES. tions of the first paragraphs, therefore, are of any nine of the jurors in a civil case shall

Acts 1917, p. 229, providing that the verdict not sufficient to show that the failure of the be accepted as the verdict of the jury, is void appellee to complete the contract damaged as offending against the constitutional guaranty the appellant in any sum. See Plunkett v. of the right of trial by jury.

OBJECMeredith, 72 Ark. 3, 77 S. W. 600.

2. APPEAL AND ERROR Om 215 (1)

TIONS IN TRIAL COURT ERRONEOUS IN[3] While the allegations of the third par

STRUCTION-POLLING JURY. agraph are to the effect that the appellee, in Failure to have the jury polled as authorclearing the right of way, threw logs and ized by Kirby's Dig. § 6203, does not prevent brush off of the right of way onto the land struction that verdict might be returned on

appellant from insisting on error in an inowned by adjacent farmers, which damaged agreement of nine jurors. appellant in the sum of $225, being the 3. APPEAL AND ERROR m1031(6)-RECORDamount that he was compelled to pay these EFFECT OF ERROR-POLLING SURY.

An instruction that the jury might return farmers, there was no allegation showing

a verdict in accordance with an agreement of where, under the contract, the appellee was nine jurors is reversible error; it not appearing required to place the logs and brush as he from the record that the verdict was unanimous. removed or cleared the same from the right Appeal from Circuit Court, Union County; of way. For aught that appears to the con- Chas. W. Smith, Judge. trary, the contract may have required the Action between J. M. Davis and H. A. Nelappellee as he cleared the right of way to son & Son. From the judgment, J. M. Davis deposit the logs and brush, taken therefrom, appeals. Reversed and remanded. on adjacent lands belonging to the farmers.

Gaughan & Sifford, of Camden, for appel[4] Furthermore, the allegations of the

lant. Powell & Smead, of Camden, for apcomplaint show that the appellee was an in

pellee. dependent contractor, and there are no allegations to the effect that the work to be done under the contract and the piling of action the court instructed the jury, over ap

MCCULLOCH, O. J. [1] In the trial of this the brush and logs on adjacent lands of

pellant's objection, that: farmers would necessarily injure the same.

"If nine members of the jury should agree on Unless such was the case, even though ap- a verdict, then the jury could return a verdict pellee negligently piled the brush and logs for the party plaintiff or defendant in accordupon the adjacent lands of the farmers in ance with the agreement of said nino jurymen.” such manner as to injure the same, this This instruction was given by the court would be a tort for which he alone would be pursuant to the terms of a statute enacted by liable. See White River R. R. Co. v. B. & the General Assembly of 1917 (Acts of 1917, W. Tel. Co., 81 Ark. 195–200, 98 S. W. 721; p. 229), providing "that the verdict of any St. L., I. M. & So. Ry. Co. v. Gillihan, 77 Ark, nine of the jurors in a civil case shall be ac553, 92 S. W. 793; Martin v. Railway Co., cepted as the verdict of the jury;" but this 55 Ark, 510, 19 S. W. 314.

court decided in the case of Minnequa Coop(5) Likewise the allegations of the fifth erage Co. v. Hendricks, Judge, 197 S. W. 280, count are entirely too general to state a that the statute is unconstitutional. The cause of action. The statements there made statute is void as offending against the conare mere conclusions. The terms of the con- stitutional guaranty of the right of trial by tract between appellant and appellee as to a jury. The present case was tried in the the clearing of the right of way are nowhere court below prior to the decision of this court

wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in the case cited above. The verdict of the 4. EVIDENCE Cw17—JUDICIAL NOTICE-DAYS jury was in appellee's favor, without disclos OF THE WEEK. ing whether it was the unanimous verdict of particular date was on Sunday or some other

When the issue is raised as to whether a all of the members of the jury or a less num- day, the courts will take judicial notice of the ber of them,

days of the week. [2, 3] The contention of appellee's counsel in 5. MUNICIPAL CORPORATIONS C450(4)—TER

RITORIAL EXTENT-EVIDENCE. support of the judgment is that the prejudi

In a suit to enjoin proceedings under imcial effect of the instruction does not appear provement ordinances, evidence as to the filing from the record, for the reason that the ver- of petitions for the formation of the town and dict of the jury may have been unanimous to annex certain territory thereto, with no evi

dence that such petitions were granted, was inand that appellant failed to show to the con- sufficient to show that the improvement distrary, as he might have done by having the tricts extended beyond the city limits. jury polled. The right to have a jury polled 6. EVIDENCE @ww83(2)-PRESUMPTIONS-REGU

LARITY OF OFFICIAL ACTION. is a privilege provided for by statute (Kirby's

The presumption is that the board of comDigest, § 6203), but appellant did not forfeit missioners of an improvement district will not his right to insist on the erroneous direction contract for the making of an improvement, the of the court merely by failing to have the cost of which will exceed the statutory limit. jury polled. The polling of a jury might not 7. MUNICIPAL CORPORATIONS Om314(2)-PUB

LIC IMPROVEMENTS-CHANGE OF PLANS. have disclosed that the erroneous direction The board of commissioners of an improveof the court had no prejudicial effect, for un- ment district has full authority to change and der that direction as a guide to the action of reform the original plan, or make new plans so the jury a verdict concurred in by nine ju- that the cost of the improvement will not ex.

ceed the statutory limit. rors was the verdict of the whole jury. The 8. MUNICIPAL CORPORATIONS 323(3)—PUBrule here is that a reversal of a judgment LIC IMPROVEMENTS–COST-EVIDENCE. is ordered where it is shown that the instruc Where improvement districts were organtions of the court were erroneous, unless it ized in 1916, evidence that the cost of material

and labor had so increased that a waterworks appears from the whole record that no preju- and sewer plant costing $90,000 in June, 1916, dice resulted.

would now cost $150,000, or more, was not sufWe are of the opinion, therefore, that the ficient to overcome the presumption that the

board of commissioners would obey the statute erroneous instruction concerning the concur- and hold the cost within the statutory limit; rence of a less number than all of the jurors it not appearing that the witnesses had seen the calls for reversal of the judgment in this plans and the estimated cost as furnished by the

board. case, notwithstanding the fact that the jury was not polled.

Appeal from Howard Chancery Court; Reversed and remanded for a new trial. Jas. D. Shaver, Chancellor.

Suit by F. M. Buxton and others against the City of Nashville and others. From a

decree dismissing the action, plaintiffs apBUXTON et al. v. CITY OF NASHVILLE

peal. Affirmed. et al. (No. 147.) (Supreme Court of Arkansas. Feb. 11, 1918.)

This is a suit by the appellants against 1. MUNICIPAL CORPORATIONS 292(3)—PUB- the appellees to enjoin proceedings under

LIC IMPROVEMENTS - PETITION - ACTION OF certain ordinances establishing improvement COUNCIL-CONCLUSIVENESS.

districts in the city of Nashville. Under Acts 1913, p. 527, § 1, making the

The petition for injunction set up, among finding of the council that a petition for an improvement thereunder is signed by the requisite other things, that no petition as required by number of owners conclusive, unless within 30 law had ever been presented to the council days thereafter suit is brought to review its of the city of Nashville to lay off the land action, the finding of the council could not be mentioned in the ordinances; that a major. questioned in a suit brought more than 30 days after the ordinances establishing improvement ity of the owners had not petitioned the districts were passed.

city council praying for such improvements 2. APPEAL AND ERROR 173(6)-RESERVA to be undertaken; that the improvements

TION OF GROUNDS OF REVIEW-NECESSITY OF contemplated in the districts would cost the PRESENTATION BELOW.

The issue that ordinances establishing im- property owners more than two-fifths of the provement districts were passed on Sunday assessed value of all the real property in the cannot be raised for the first time on appeal in districts; that before any petition of any a suit to enjoin further proceedings.

kind had been presented to the city council, 3. APPEAL AND ERROR_232(1)-RESERVATION OF GROUNDS OF REVIEW-SUFFICIENCY

purporting to contain the names of a majorOF PRESENTATION BELOW.

ity in value of the owners of real property in If plaintiffs intended to challenge the va- the territory, owners in the territory affected lidity of the ordinances as passed on Sunday, who had signed the petitions asked that their they should have expressly set up their objection their complaint or directed the court's names be withdrawn, and that the enterprise attention specifically to the testimony, show- contemplated be abandoned; that without ing it was passed on Sunday, and a recital in such signatures there would not be a majora plea of limitation that the council acted on a ity in value of the owners of real property in specified date, which was Sunday, and testimony that the records showed their action on the district; that the council ignored the that date, did not raise the issue for review. request of the petitioners; that the districts

wFor utber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as set out in the ordinances extended beyond review its action in the chancery court of the the bonds of the limits of the incorporated county where such city or town lies." city of Nashville and embraced territory out This suit was instituted in the chancery side of and entirely disconnected from the court of Howard county June 4, 1917, and the city of Nashville; that since the petitions complaint, on its face, shows that the diswere filed and acted upon the conditions tricts whose validity is called in question brought about by the war have made it im- were created by ordinance passed “some time possible for the improvements to be made in the year 1916.” It thus appears that more except at a cost exceeding 40 per cent. or the than 30 days had elapsed after the ordinances value of the real property in the districts,

establishing the districts were passed before The defendants answered, denying the al- this suit was instituted. This court in the legations of the complaint, and, among other recent cases of Jacobs et al. v. City of Paris, things, set up affirmatively:

198 S. W. 134, and Pope v. City of Nashville, “That the city council of said city of Nash- 199 S. W. 101, decided that the above statute ville, Ark., on the 19th day of November, 1916, at a meeting in which all the aldermen were

was a valid exercise of legislative power, present, proceeded to hear the petition and then and that after the expiration of the time and there found that the total value of the real prescribed, the finding of the council that the estate situated in each of said improvement dis- petition was signed by a majority in value of tricts, the boundaries of which are identical, as shown by the last county assessment on file the owners of the real property in the disin the county clerk's office of Howard county, trict could not be questioned. This disposes Ark., was $361,553, and that the real property of appellant's contention that the majority owned by the signers of each of said petitions, in value of the owners of real property in situated in said district, was more than $191,000, and that each of the petitions for the im- the territory emuraced in the improvement provements in said district has a majority in district had not signed the petitions designatvalue as shown by the last county assessment, ing the improvement to be undertaken. all of which will appear by a copy of said proceedings had before said council on the said

[2] 2. The appellant contends that the or19th day of November, 1916, in reference to said dinances establishing the districts were passpetition, hereto attached, marked Exhibit A and ed on Sunday. The issue that the ordinance B and made a part of this answer, and that the plaintiffs or no one else by suit' or otherwise was passed by the city council on Sunday in the Howard chancery court attempted to was not raised in the court below, and cannot have the findings and proceedings of said coun- be raised here for the first time. Martin v. cil in regard to its said findings reviewed with McDiarmid, 55 Ark. 213, 17 S. W. 877; Southin 30 days after said findings were had, as provided by section 6826, Kirby & Castle's Digest, ern Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. and the plaintiff is now for that reason barred 1093. See, also, Newton v. Russian, 74 Ark. and precluded from calling in question the find: 88, 85 S. W. 407; White v. Moffet, 108 Ark. ings of said council on said petition to the effect that the signers thereof constitute a majority 490, 158 S. W. 505. in value of the real property situated within [3] Counsel for appellant contends that insaid district, and they here plead the 30-day asmuch as their complaints did not allege limitation as a bar to plaintiff's right to maintain this suit or to call in question the correct that the action of the council was not taken ness of the council's finding that petitions did on Sunday, and inasmuch as the answer of contain a majority of the real property situated the appellee and the proof introduced by in said districts."

them show that the ordinance was passed on After hearing the testimony, the court November 19th, sa me being Sunday, that, in found that “the action and finding of said this manner, the issue was raised. Now the council in regard to said petitions is conclu- city council had jurisdiction to pass the orsive, unless suit is brought to review the ac- dinance, and if the appellants intended to tion of said council within 30 days after said finding, and that in this case no such suit challenge the validity of the ordinance on the was brought, and that the plaintiffs are now ground that it was passed on Sunday they barred by statute of limitations," and dis- should have expressly set up that ground in missed the action.

their complaint, or specifically directed the

attention of the court to that fact when the W. C. Rodgers, of Nashville, for appellants. testimony was introduced showing that the W. P. Feazel, of Nashville, for appellees. ordinance was passed on the 19th of Novem

ber. WOOD, J. (After stating the facts as

The allegations of the appellee's answer above). [1] 1. The finding and judgment that the council on the 19th of Novemof the court were correct. The districts which were challenged by the proceedings et cetera, was an averment by way of a re

ber, 1916, "proceeded to hear the petition," instituted in the chancery court were formed cital in their plea of limitations, and likeunder Act 125 of the Acts of 1913, approved wise the testimony of the city recorder to March 3, 1913. The first section of that act, the effect that the records of the city council among other things, contains a provision that:

show that the council on the 19th of Novem"The owners of real property within such dis- | ber passed the ordinance was merely a recital trict shall be heard before the council which of what the records in his office showed. But sball determine whether the signers of said pe- all this was not sufficient to raise the affirmatition constitute a majority in value, and the finding of the council shall be conclusive unless tive issue before the trial court that the orwithin thirty days thereafter suit is brought to dinance was void because passed on Sunday.

201 S.W.-33

case.

[4] While courts will take judicial notice that any territory was included in the disof the days of the week when the issue istricts which lie outside of the corporate raised as to whether a particular date was on limits. Sunday or some other day, yet to call for a 4. Another contention made by appellants decision of the court to this effect the direct is that the uncontradicted evidence shows issue should be first raised by the pleadings that the improvements contemplated will cost and the proof. Unless the issue is thus ex more than 40 per cent. of the value of the pressly raised and the proof directed towards real property in the district, thereby exceedthat issue the court would not have an oppor- ing the limit prescribed by law. To sustain tunity to pass upon it. If appellant had chal- this contention appellant relies upon the teslenged the ordinance on the ground that the timony of a witness who states that he had same was void because passed on Sunday, been in the oil business for the last two or then the appellees would have been called up-three years, and was familiar to some exon to deny or to confess that such was the tent with the market value of tiling, piping,

If the allegations had been denied, and like material, and that material of this proof could have been taken directed specifi- kind was very much higher than in June, cally to this issue.

1916; that labor was also much higher; that Such was not the case in the court below, a plant for waterworks and sewer system and the date mentioned in the appellee's an- costing $90,000 in June, 1916, would cost as swer and also in the testimony of the re much again at the present time; that a concorder was, as already stated, by way of re servative estimate of the cost now would be cital merely, and for aught that appears to $150,000. In Kirst v. Improvement District the contrary may have been so put down No. 120, 86 Ark. 1, 109 S. W. 526, we said: through the misprision of the recorder, or the “Whether the improvement can be made withdraftsman of appellee's answer and plea of in this limit (20 per cent, of the assessed value) limitations. To permit appellants to remain er the consent of a majority in value of the

can and must be ascertained at the outset. Aftsilent in the court below on the issue as to property holders has been obtained and evidencwhether the date mentioned was Sunday and ed as required by law, the first step to be takto invoke here the doctrine that the court en is the appointment of a board of improve

ment, which shall immediately form plans for will take judicial cognizance of the fact that the improvement and procure estimates of its such date was on Sunday would be tanta-cost. The cost being ascertained, its comparimount to firing upon the holdings of the trial son with the value of the real property in the court from a battery that was kept masked will disclose whether it exceeds 20 per centum

district as shown by the last county assessment in the court below. This cannot be done. of that value, and, if it does, the improvement Keller v. Whittington, 106 Ark. 525, 153 S. w. should not be undertaken, unless the plans can 808, and cases cited.

be so changed as to reduce the cost within the

statutory limit." [5] 3. Appellants contend that the undisputed evidence shows that the district in

[6-8] The presumption is that the board of question extended beyond the city limits of commissioners of the improvement district the city of Nashville. To sustain this con- will not enter into a contract for the making tention they rely upon the testimony of the of an improvement the cost of which will exclerk of the county court of Howard county ceed the statutory limit. The board has full to the effect that he had in his possession the authority to change the original plan and to petition which had been filed for the forma- reform the same or make new plans so that tion and organization of the town of Nash- the cost of the improvement contemplated ville in the year 1883, and the territory de- will not exceed the statutory limit. Now the scribed in the petition and incorporated into testimony upon which the appellant relies the town was as follows (describing the terri- does not show that the witness had ever tory). Witness then stated that in 1906, and seen the plans of the two districts or the esalso in 1909, petitions were filed for the an- timated costs of the improvements as furnexation of certain territory, described there- nished by the board of commissioners. The in, to the town of Nashville. After describ- above testimony is not sufficient to overcome ing the territory set forth in these petitions, the presumption that the board will do its the witness stated that a map of the territory duty, obey the statute, and hold the cost of was filed as a part of the petition. But wit- the improvement within the statutory limit. ness nowhere testified that the county court Appellants have not shown any sufficient granted these petitions, nor is there any or- ground for invalidating the improvement disder or judgment of the court adduced in evi-tricts in controversy, and the decree of the dence showing that the petitions were grant- chancery court dismissing their complaint is ed. The appellants therefore do not show therefore correct, and is affirmed.

| rendered and articles furnished for the buriWILES BROS. & CO. V. WYNNE et al. al of the deceased. (Supreme Court of Tennessee. March 1, 1918.)

[2] There was no occasion for an expensive

funeral. The proof shows the estate was 1. EXECUTORS AND ADMINISTRATORS Om214- less than $10,000 in value and that, for a FUNERAL EXPENSES-ALLOWANCE. A charge of $1,000 by an undertaker for a ceased was an imbecile and an inmate of an

number of years prior to his death, the decasket which cost it only $307 was exorbitant, and was properly reduced.

asylum. An expenditure of $1,332 for the 2. INSANE PERSONS Om62 ALLOWANCES funeral of such a person is an unwarranted FUNERAL EXPENSES.

extravagance. An expenditure of $1,332 for the funeral

[3] It is the law in this state that, in the of a person who had been an imbecile and inmate of an asylum for years, whose estate was absence of any direction in the will, an execless than $10,000, was unwarranted.

utor or administrator has the right to use 3. EXECUTORS AND ADMINISTRATORS Om214- his discretion in incurring funeral expenses; FUNERAL EXPENSES.

however, the amount must be reasonable. In the absence of any direction in the will, Gooch v. Beasley, 137 Tenn. 407, 193 S. W. an executor or administrator has the right to use his discretion in incurring funeral expenses, 132; Steger v. Frizzell, 2 Tenn. Ch. 369. but the amount must be reasonable.

What good can be accomplished by a lavish 4. EXECUTORS AND ADMINISTRATORS Ow430% expenditure of money for such a purpose? FUNERAL EXPENSES PERSONAL LIABILITY.

[4] Defendant Wynne is sought to be held The mere fact that an administrator, or other person, wrote "0. K.” on an undertaker's personally liable upon the ground that he se. bill, did not bind him personally, because to lected the casket and after the burial wrote bind a person making arrangements for the “O. K.” upon the bill. He admits he selectburial of another it should distinctly appear that ed the casket, but denies that anything was he agreed to pay the debt.

said about his paying the expenses of the Appeal from Chancery Court, Davidson funeral, and that when he wrote "O. K.” County; Jno. Allison, Chancellor.

upon the bill he was suffering intensely from Bill by Wiles Bros. & Co. against Thomas a recent injury and had no idea that comF. Wynne and others. From a decree plainants desired to fix liability upon him. dismissing the bill as to defendant nam We are of the opinion that, before the pered, and awarding plaintiff part of the amount son who makes arrangements for the burial claimed against other defendants, plaintiff of another is held liable for the expense inappeals. Affirmed.

curred, it should distinctly appear that such Stokes & Stokes, of Nashville, for Wiles person agreed to pay the debt. Funeral exBros. & Co. Jno. T. Lellyett, of Nashville, penses are a debt against the estate of a defor Wynne and others.

cedent and, even where the estate is insolvent, by statute (Thomp. Shan. Code, g 4090,

subsec. 2), are made a preferred claim. FENTRESS, J. Complainants are under

When a person dies, frequently relatives, takers and seek, by their bill, to recover friends or neighbors make the funeral arfrom Thomas F. Wynne, personally, and the

rangements, with no thought of incurring Nashville Trust Company and Thomas F. personal liability for the payment of the exWynne as joint administrators of the estate of John Wynne, $1,332 for funeral expenses humane service, generally actuated by mo

pense. To hold that the performance of this incurred in the burial of the deceased. The defendant Wynne denies that he con- sire to relieve the bereaved family of the un

tives of esteem for the deceased and a detracted to personally pay the complainants and the administrators contest the claim up for the undertaker's claim, would be a sub

pleasant duty, makes such a person liable on the ground that it is exorbitant.

version of justice. The chancellor rendered a decree for $700

The decree of the chancellor is affirmed, against the estate of the deceased and dis

and the costs adjudged against complainants. missed the bill as to Thomas F. Wynne, and the complainants have appealed to this court.

[1] Attached to the bill is an itemized account of the claim. The largest of these HART et al. v. APPALACHIAN WASHED items is $1,000 for a black cloth, copper-lined

COAL CO. et al. casket. It is admitted that this casket cost (Supreme Court of Tennessee. Feb. 11, 1918.) the complainants $307. Thus it appears that 1. FIXTURES 15—LANDLORD AND TENANT on this single item the profit sought is $693. Cm 248(1)-CONDITIONAL SELLER-RIGHT OF There is no proof adduced as to the reason REMOVAL-TRADE FIXTURE. ableness of the other items, but it is quite taining title. The machinery was placed on the

A company sold machinery to a lessee, reapparent to the court that the prices charg- leased premises in a sheet iron building, and on ed for many of these articles are excessive. a concrete foundation, to which it was bolted

We think the claim is exorbitant and that by nine bolts, imbedded in the concrete, run the chancellor was correct in disallowing it. The machinery could be removed from the build

through prepared holes and confined by nuts. His decree for $700 in favor of the complain-ing at an expense of not more than $5, but the ants is full compensation for the services door of the building was too small to pass the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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