set forth, and it is impossible, therefore, to determine whether appellee had violated the contract, and, if so, whether such violation had resulted in injury and damage to the appellant. The court, therefore, was correct in sustaining the demurrer to these paragraphs to the complaint. Even if the demurrer should have been treated as a motion to make more specific, it should have been sustained. are entirely too general to form the basis of a cause of action. There is nothing in this count to show what was meant by the shift, nor what the delayed shifts cost appellant, if anything, nor the manner in which the delayed shifts caused any expense to the appellant. The allegation that appellee delayed appellant 22 shifts, which caused appellant to suffer damage in the sum of $880, was but the statement of a conclusion, 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. lant nowhere alleged what the contract price was, nor that on account of the abandonment of the work by the appellee he had to expend more to complete it than he would have done had appellee completed the work and been paid the contract price. The allegations of the first paragraphs, therefore, are not sufficient to show that the failure of the appellee to complete the contract damaged the appellant in any sum. See Plunkett v. Meredith, 72 Ark. 3, 77 S. W. 600. Appel [3] While the allegations of the third paragraph are to the effect that the appellee, in clearing the right of way, threw logs and brush off of the right of way onto the land owned by adjacent farmers, which damaged appellant in the sum of $225, being the amount that he was compelled to pay these farmers, there was no allegation showing where, under the contract, the appellee was required to place the logs and brush as he removed or cleared the same from the right of way. For aught that appears to the contrary, the contract may have required the appellee as he cleared the right of way to deposit the logs and brush, taken therefrom, on adjacent lands belonging to the farmers. [4] Furthermore, the allegations of the complaint show that the appellee was an independent contractor, and there are no allegations to the effect that the work to be done under the contract and the piling of the brush and logs on adjacent lands of farmers would necessarily injure the same. Unless such was the case, even though appellee negligently piled the brush and logs upon the adjacent lands of the farmers in such manner as to injure the same, this would be a tort for which he alone would be liable. See White River R. R. Co. v. B. & W. Tel. Co., 81 Ark. 195–200, 98 S. W. 721; St. L., I. M. & So. Ry. Co. v. Gillihan, 77 Ark. 553, 92 S. W. 793; Martin v. Railway Co., 55 Ark. 510, 19 S. W. 314. affirmed. DAVIS v. H. A. NELSON & SON. (No. 160.) (Supreme Court of Arkansas. Feb. 18, 1918.) 1. JURY 32(4)-RIGHT TO JURY TRIAL STATUTES. Acts 1917, p. 229, providing that the verdict be accepted as the verdict of the jury, is void of any nine of the jurors in a civil case shall as offending against the constitutional guaranty of the right of trial by jury. 2. APPEAL AND ERROR 215 (1) OBJECTIONS IN TRIAL COURT ERRONEOUS INSTRUCTION-POLLING JURY. Failure to have the jury polled as authorized by Kirby's Dig. § 6203, does not prevent struction that verdict might be returned on appellant from insisting on error in an inagreement of nine jurors. 3. APPEAL AND ERROR 1031 (6)-RECORDEFFECT OF ERROR-POLLING JURY. An instruction that the jury might return a verdict in accordance with an agreement of nine jurors is reversible error; it not appearing from the record that the verdict was unanimous. Appeal from Circuit Court, Union County; Chas. W. Smith, Judge. Action between J. M. Davis and H. A. Nelson & Son. From the judgment, J. M. Davis appeals. Reversed and remanded. lant. Powell & Smead, of Camden, for apGaughan & Sifford, of Camden, for appel pellee. action the court instructed the jury, over apMCCULLOCH, C. J. [1] In the trial of this pellant's objection, that: "If nine members of the jury should agree on a verdict, then the jury could return a verdict for the party plaintiff or defendant in accordance with the agreement of said nine jurymen." This instruction was given by the court pursuant to the terms of a statute enacted by the General Assembly of 1917 (Acts of 1917, p. 229), providing "that the verdict of any nine of the jurors in a civil case shall be accepted as the verdict of the jury;" but this 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 When the issue is raised as to whether a in the case cited above. The verdict of the | 4. EVIDENCE 17-JUDICIAL NOTICE-DAYS OF THE WEEK. jury was in appellee's favor, without disclosing whether it was the unanimous verdict of all of the members of the jury or a less number of them. [2, 3] The contention of appellee's counsel in support of the judgment is that the prejudicial effect of the instruction does not appear from the record, for the reason that the verdict of the jury may have been unanimous and that appellant failed to show to the contrary, as he might have done by having the jury polled. The right to have a jury polled is a privilege provided for by statute (Kirby's Digest, § 6203), but appellant did not forfeit his right to insist on the erroneous direction of the court merely by failing to have the jury polled. The polling of a jury might not have disclosed that the erroneous direction of the court had no prejudicial effect, for under that direction as a guide to the action of the jury a verdict concurred in by nine jurors was the verdict of the whole jury. The rule here is that a reversal of a judgment is ordered where it is shown that the instructions of the court were erroneous, unless it appears from the whole record that no preju dice resulted. We are of the opinion, therefore, that the erroneous instruction concerning the concurrence of a less number than all of the jurors calls for reversal of the judgment in this case, notwithstanding the fact that the jury was not polled. particular date was on Sunday or some other day, the courts will take judicial notice of the days of the week. 5. MUNICIPAL CORPORATIONS ~450(4)—TERRITORIAL EXTENT EVIDENCE. In a suit to enjoin proceedings under improvement ordinances, evidence as to the filing of petitions for the formation of the town and to annex certain territory thereto, with no evidence that such petitions were granted, was insufficient to show that the improvement districts extended beyond the city limits. 6. EVIDENCE 83(2)-PRESUMPTIONS-REGULARITY OF OFFICIAL ACTION. The presumption is that the board of commissioners of an improvement district will not contract for the making of an improvement, the cost of which will exceed the statutory limit. 7. MUNICIPAL CORPORATIONS 314(2)-PUB LIC IMPROVEMENTS-CHANGE OF PLANS. The board of commissioners of an improvement district has full authority to change and reform the original plan, or make new plans so that the cost of the improvement will not exceed the statutory limit. 8. MUNICIPAL CORPORATIONS_323(3)-PUBLIC IMPROVEMENTS-COST-EVIDENCE. Where improvement districts were organized in 1916, evidence that the cost of material and labor had so increased that a waterworks and sewer plant costing $90,000 in June, 1916, would now cost $150,000, or more, was not sufficient to overcome the presumption that the board of commissioners would obey the statute and hold the cost within the statutory limit; it not appearing that the witnesses had seen the plans and the estimated cost as furnished by the board. Appeal from Howard Chancery Court; Reversed and remanded for a new trial. Jas. D. Shaver, Chancellor. BUXTON et al. v. CITY OF NASHVILLE et al. (No. 147.) (Supreme Court of Arkansas. 1. MUNICIPAL CORPORATIONS Feb. 11, 1918.) PETITION Suit by F. M. Buxton and others against the City of Nashville and others. From a decree dismissing the action, plaintiffs appeal. Affirmed. This is a suit by the appellants against 292(3)-PUB- the appellees to enjoin proceedings under LIC IMPROVEMENTS ACTION OF Certain ordinances establishing improvement COUNCIL CONCLUSIVENESS. districts in the city of Nashville. Under Acts 1913, p. 527, § 1, making the finding of the council that a petition for an improvement thereunder is signed by the requisite number of owners conclusive, unless within 30 days thereafter suit is brought to review its action, the finding of the council could not be questioned in a suit brought more than 30 days after the ordinances establishing improvement districts were passed. The petition for injunction set up, among other things, that no petition as required by law had ever been presented to the council of the city of Nashville to lay off the land mentioned in the ordinances; that a majority of the owners had not petitioned the city council praying for such improvements 173(6)-RESERVA- to be undertaken; that the improvements contemplated in the districts would cost the 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. 2. APPEAL AND ERROR TION OF GROUNDS OF REVIEW-NECESSITY OF kind had been presented to the city council, 3. APPEAL AND ERROR 232(1)-RESERVA-purporting to contain the names of a majorTION OF GROUNDS OF REVIEW-SUFFICIENCY OF PRESENTATION BELOW. ity in value of the owners of real property in the territory, owners in the territory affected who had signed the petitions asked that their names be withdrawn, and that the enterprise contemplated be abandoned; that without such signatures there would not be a majority in value of the owners of real property in the district; that the council ignored the If plaintiffs intended to challenge the validity of the ordinances as passed on Sunday, they should have expressly set up their objection in their complaint or directed the court's attention specifically to the testimony, showing it was passed on Sunday, and a recital in a plea of limitation that the council acted on a specified date, which was Sunday, and testimony that the records showed their action on that date, did not raise the issue for review. request of the petitioners; that the districts For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as set out in the ordinances extended beyond the bonds of the limits of the incorporated city of Nashville and embraced territory outside of and entirely disconnected from the city of Nashville; that since the petitions were filed and acted upon the conditions brought about by the war have made it impossible for the improvements to be made except at a cost exceeding 40 per cent. of the value of the real property in the districts. The defendants answered, denying the allegations of the complaint, and, among other things, set up affirmatively: review its action in the chancery court of the county where such city or town lies." This suit was instituted in the chancery court of Howard county June 4, 1917, and the complaint, on its face, shows that the districts whose validity is called in question were created by ordinance passed "some time in the year 1916." It thus appears that more than 30 days had elapsed after the ordinances establishing the districts were passed before this suit was instituted. This court in the recent cases of Jacobs et al. v. City of Paris, 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 districts, the boundaries of which are identical, petition was signed by a majority in value of 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 improvements in said district has a majority in value as shown by the last county assessment, all of which will appear by a copy of said proceedings had before said council on the said 19th day of November, 1916, in reference to said petition, hereto attached, marked Exhibit A and B and made a part of this answer, and that the plaintiffs or no one else by suit' or otherwise in the Howard chancery court attempted to have the findings and proceedings of said council in regard to its said findings reviewed within 30 days after said findings were had, as provided by section 6826, Kirby & Castle's Digest, and the plaintiff is now for that reason barred and precluded from calling in question the findings of said council on said petition to the effect that the signers thereof constitute a majority in value of the real property situated within said district, and they here plead the 30-day limitation as a bar to plaintiff's right to maintain this suit or to call in question the correctness of the council's finding that petitions did contain a majority of the real property situated in said districts." the territory embraced in the improvement district had not signed the petitions designating the improvement to be undertaken. [2] 2. The appellant contends that the ordinances establishing the districts were passed on Sunday. The issue that the ordinance was passed by the city council on Sunday was not raised in the court below, and cannot be raised here for the first time. Martin v. McDiarmid, 55 Ark. 213, 17 S. W. 877; Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093. See, also, Newton v. Russian, 74 Ark. 88, 85 S. W. 407; White v. Moffet, 108 Ark. 490, 158 S. W. 505. [3] Counsel for appellant contends that inasmuch as their complaints did not allege that the action of the council was not taken on Sunday, and inasmuch as the answer of the appellee and the proof introduced by them show that the ordinance was passed on November 19th, same being Sunday, that, in this manner, the issue was raised. Now the city council had jurisdiction to pass the ordinance, and if the appellants intended to challenge the validity of the ordinance on the ground that it was passed on Sunday they should have expressly set up that ground in their complaint, or specifically directed the attention of the court to that fact when the testimony was introduced showing that the 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 instituted in the chancery court were formed under Act 125 of the Acts of 1913, approved March 3, 1913. The first section of that act, among other things, contains a provision that: "The owners of real property within such district shall be heard before the council which shall determine whether the signers of said petition constitute a majority in value, and the finding of the council shall be conclusive unless within thirty days thereafter suit is brought to et cetera, was an averment by way of a reber, 1916, "proceeded to hear the petition," cital in their plea of limitations, and likewise the testimony of the city recorder to the effect that the records of the city council show that the council on the 19th of November passed the ordinance was merely a recital of what the records in his office showed. But all this was not sufficient to raise the affirmative issue before the trial court that the ordinance was void because passed on Sunday. [4] While courts will take judicial notice of the days of the week when the issue is raised as to whether a particular date was on Sunday or some other day, yet to call for a decision of the court to this effect the direct issue should be first raised by the pleadings and the proof. Unless the issue is thus expressly raised and the proof directed towards that issue the court would not have an opportunity to pass upon it. If appellant had challenged the ordinance on the ground that the same was void because passed on Sunday, then the appellees would have been called upon to deny or to confess that such was the case. If the allegations had been denied, proof could have been taken directed specifically to this issue. Such was not the case in the court below, and the date mentioned in the appellee's answer and also in the testimony of the recorder was, as already stated, by way of recital merely, and for aught that appears to the contrary may have been so put down through the misprision of the recorder, or the draftsman of appellee's answer and plea of limitations. To permit appellants to remain silent in the court below on the issue as to whether the date mentioned was Sunday and to invoke here the doctrine that the court will take judicial cognizance of the fact that such date was on Sunday would be tantamount to firing upon the holdings of the trial court from a battery that was kept masked in the court below. This cannot be done. Keller v. Whittington, 106 Ark. 525, 153 S. W. 808, and cases cited. [5] 3. Appellants contend that the undisputed evidence shows that the district in question extended beyond the city limits of the city of Nashville. To sustain this contention they rely upon the testimony of the clerk of the county court of Howard county to the effect that he had in his possession the petition which had been filed for the formation and organization of the town of Nashville in the year 1883, and the territory described in the petition and incorporated into the town was as follows (describing the territory). Witness then stated that in 1906, and also in 1909, petitions were filed for the annexation of certain territory, described therein, to the town of Nashville. After describing the territory set forth in these petitions, the witness stated that a map of the territory was filed as a part of the petition. But witness nowhere testified that the county court granted these petitions, nor is there any order or judgment of the court adduced in evidence showing that the petitions were granted. The appellants therefore do not show that any territory was included in the districts which lie outside of the corporate limits. 4. Another contention made by appellants is that the uncontradicted evidence shows that the improvements contemplated will cost more than 40 per cent. of the value of the real property in the district, thereby exceeding the limit prescribed by law. To sustain this contention appellant relies upon the testimony of a witness who states that he had been in the oil business for the last two or three years, and was familiar to some extent with the market value of tiling, piping, and like material, and that material of this kind was very much higher than in June, 1916; that labor was also much higher; that a plant for waterworks and sewer system costing $90,000 in June, 1916, would cost as much again at the present time; that a conservative estimate of the cost now would be $150,000. In Kirst v. Improvement District No. 120, 86 Ark. 1, 109 S. W. 526, we said: Aft "Whether the improvement can be made within this limit (20 per cent. of the assessed value) er the consent of a majority in value of the can and must be ascertained at the outset. property holders has been obtained and evidenced as required by law, the first step to be taken is the appointment of a board of improvement, which shall immediately form plans for the improvement and procure estimates of its cost. The cost being ascertained, its comparison with the value of the real property in the district as shown by the last county assessment will disclose whether it exceeds 20 per centum of that value, and, if it does, the improvement should not be undertaken, unless the plans can be so changed as to reduce the cost within the statutory limit." [6-8] The presumption is that the board of commissioners of the improvement district will not enter into a contract for the making of an improvement the cost of which will exceed the statutory limit. The board has full authority to change the original plan and to reform the same or make new plans so that the cost of the improvement contemplated will not exceed the statutory limit. Now the testimony upon which the appellant relies does not show that the witness had ever seen the plans of the two districts or the estimated costs of the improvements as furnished by the board of commissioners. The above testimony is not sufficient to overcome the presumption that the board will do its duty, obey the statute, and hold the cost of the improvement within the statutory limit. Appellants have not shown any sufficient ground for invalidating the improvement districts in controversy, and the decree of the chancery court dismissing their complaint is therefore correct, and is affirmed. 2. INSANE PERSONS 62 ALLOWANCES FUNERAL EXPENSES. An expenditure of $1,332 for the funeral of a person who had been an imbecile and inmate of an asylum for years, whose estate was less than $10,000, was unwarranted. 3. EXECUTORS AND ADMINISTRATORS FUNERAL EXPENSES. 214 In the absence of any direction in the will, an executor or administrator has the right to use his discretion in incurring funeral expenses, but the amount must be reasonable. 4. EXECUTORS AND ADMINISTRATORS 430FUNERAL EXPENSES PERSONAL LIABILITY. The mere fact that an administrator, or other person, wrote "O. K." on an undertaker's bill, did not bind him personally, because to bind a person making arrangements for the burial of another it should distinctly appear that he agreed to pay the debt. Appeal from Chancery Court, Davidson County; Jno. Allison, Chancellor. Bill by Wiles Bros. & Co. against Thomas F. Wynne and others. From a decree dismissing the bill as to defendant named, and awarding plaintiff part of the amount claimed against other defendants, plaintiff appeals. Affirmed. Stokes & Stokes, of Nashville, for Wiles Bros. & Co. Jno. T. Lellyett, of Nashville, for Wynne and others. FENTRESS, J. Complainants are undertakers and seek, by their bill, to recover from Thomas F. Wynne, personally, and the Nashville Trust Company and Thomas F. Wynne as joint administrators of the estate of John Wynne, $1,332 for funeral expenses incurred in the burial of the deceased. The defendant Wynne denies that he con tracted to personally pay the complainants and the administrators contest the claim up on the ground that it is exorbitant. rendered and articles furnished for the burial of the deceased. [2] There was no occasion for an expensive funeral. The proof shows the estate was less than $10,000 in value and that, for a number of years prior to his death, the deceased was an imbecile and an inmate of an asylum. An expenditure of $1,332 for the funeral of such a person is an unwarranted extravagance. [3] It is the law in this state that, in the absence of any direction in the will, an executor or administrator has the right to use his discretion in incurring funeral expenses; however, the amount must be reasonable. Gooch v. Beasley, 137 Tenn. 407, 193 S. W. 132; Steger v. Frizzell, 2 Tenn. Ch. 369. What good can be accomplished by a lavish expenditure of money for such a purpose? [4] Defendant Wynne is sought to be held personally liable upon the ground that he selected the casket and after the burial wrote "O. K." upon the bill. He admits he selected the casket, but denies that anything was said about his paying the expenses of the funeral, and that when he wrote "O. K.” upon the bill he was suffering intensely from a recent injury and had no idea that complainants desired to fix liability upon him. We are of the opinion that, before the person who makes arrangements for the burial of another is held liable for the expense incurred, it should distinctly appear that such person agreed to pay the debt. Funeral expenses are a debt against the estate of a decedent and, even where the estate is insolvent, by statute (Thomp. Shan. Code, § 4090, subsec. 2), are made a preferred claim. When a person dies, frequently relatives, friends or neighbors make the funeral arrangements, with no thought of incurring personal liability for the payment of the expense. To hold that the performance of this humane service, generally actuated by mo tives of esteem for the deceased and a desire to relieve the bereaved family of the un pleasant duty, makes such a person liable for the undertaker's claim, would be a subversion of justice. and the costs adjudged against complainants. The decree of the chancellor is affirmed, The chancellor rendered a decree for $700 against the estate of the deceased and dismissed 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 casket. It is admitted that this casket cost the complainants $307. Thus it appears that on this single item the profit sought is $693. There is no proof adduced as to the reason COAL CO. et al. (Supreme Court of Tennessee. Feb. 11, 1918.) 1. FIXTURES 15-LANDLORD AND TENANT 248(1)-CONDITIONAL SELLER-RIGHT OF 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. through prepared holes and confined by nuts. The machinery could be removed from the buildHis 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 |