(dissenting). The opinion of the majority contains a recital of the clauses in the lease-contract between the United States Government and the Lonoke Chamber of Commerce giving the lessee authority to destroy buildings and crops which would interfere with the use of the premises for aeronautical purposes, and to commit waste and to injure the premises for such purposes; but in the discussion of the facts and the principles of law applicable thereto, which control the decision of the case, those features of the contract are completely ignored.
The clauses to which I refer redd as follows: “That said lessor (chamber of commerce) agrees that the lessee (United States), without expense, may demolish or destroy any and all buildings, and any crops now growing on said land, in so far as they interfere with the use of the site for aeronautical purposes. That it (United States) will commit no waste and will not suffer the same to be committed and will not misuse or injure the said premises, except in so far as is consistent with the use of this tract for aeronautical purposes.”
The original lessors, the landowners, entered into an additional contract with the United States Government ratifying the' lease made with the chamber of commerce.
It is undisputed, and the record contains an express concession, that all the damages done and changes made by the United States Government were necessary for the use • of the premises for aeronautical purposes. This being true, there is no liability, under the contract) on the part of the Government to the landowners.
Learned counsel for one of the appellants argue that the above-quoted clause of the contract gives permission to demolish the buildings and crops, but that it does not mean that it could be done without compensation to the landowners. In other words, they argue that the words “without expense” only mean that it should be without exnense to the government’s lessor, the Lonoke Chamber of Commerce. This is not. in my opinion, a proper interpretation of the contract.
Under the language used, permission was expresslv granted to the government to demolish the buildings and crops so far as necessary for the use of the premises for aeronautical purposes, and, unless the contract itself provided for compensation, there is no liability imposed on the government for the damage done.
Where a contract authorizes a thing to be done, it is necessarily implied that it will be permitted without liability for compensation, unless provided for in the contract.
It would seem from the way in which the words “without expense” are used that it was meant that the government should be without expense or liability; but, even if it does not mean that, the use of that term would have no other bearing on the question of liability of the government unless it can be construed to mean that the government shall pay the damages done by the destruction. I can scarcely conceive that the words “without expense” can be construed to mean that the government shall pay damages or become liable for damages incurred in that way.
It seems to me, therefore, that it necessarily results from a fair interpretation of this clause of the contract that there is no liability on the part of the government, and, that being true, there can be none on the part of appellant under its contract with the government. Conceding that the contract between appellant and the government is all that appellees claim it to be with respect to the assumption of the obligation of the government, there is no liability for the simple reason that the government itself is not responsible, and there is no liability, therefore, to be assumed by appellant.
The trial court gave instructions permitting recovery under the alleged oral agreement at the auction sale to assume the obligation of the claimants, and the verdict of the jury was based upon a finding upon that issue. There was a conflict in the testimony, but there was enough testimony to sustain the contention of appellees with respect to what occurred at the sale. This court has, however, affirmed the judgment of recovery in favor of appellees on the theory that the undisputed evidence,.that is to say, the contract which was entered into later between appelllant and the government, established liability for the claims.
I think the rights of the parties must be determined by the terms of the written contract entered into between the government and appellant subsequent to the sale, for the claims asserted by appellees, so far as concerns liability of appellant, derive their existence from the contract between the principal contractors — the government and appellant.
Until a binding contract was entered into between the parties, no liability could arise in favor of appellees. The terms of the contract as finally reduced to writing after the sale must therefore control in determining the liability of appellant. The incidents of the sale itself can not be considered for the purpose of construing the contract, for they were only antecedent transactions, which became merged into the contract itself when reduced to writing and signed by the parties as evidence of their several undertakings.
I agree with counsel for appellant that the doctrine of liability of one person upon a contract made for his benefit by another cannot be extended to contracts for. indemnity. None of our cases go to that extent, and I do not believe that any cases can be found where the doctrine is thus extended. Any other rule would be contrary to the reasoning upon which such liability is based, which is that a promise made for another’s benefit creates a right of action in his favor. Now, a contract merely ,for indemnity is not made for the benefit of any one ^except the party to the contract who is to be indemnified ''"thereby, and no rights accrue thereunder to a person against whose claim indemnity is given under the contract.
But it seems to me that this contract, when considered as a whole, is not one merely of indemnity, but that it amounts to a contract on the part of the appellant to assume the obligation of the government to the landowners — the original lessors. It is true that in the contract the word “indemnity” is used, but the contract contains an express stipulation that appellant should not only ‘£ save and hold harmless the party of the first part from all claims of the owners of any of said lands,” etc., but it goes further and states that the performance of such undertaking should be evidenced “by said party °of the second part procuring for and delivering to the said party of the first part either valid and complete releases from the owner of said lands of all the claims of the latter as aforesaid, or satisfactions in full of all judgments.” And it is also declared in the contract that a cause of action in favor of the landowners is created against appellant under its contract of indemnity.
Of course, the parties had no right to declare a right of action where none could exist under the law, but the last-mentioned feature of the contract demonstrates an intention that appellant should assume and pay the obligation of the government to the landowners.
Taking the contract as a whole, while it uses language which makes it a contract of indemnity, it is more than that, for it, in effect, constitutes an obligation to assume and discharge the liability to the landowners.
My view is that there is no liability in this case to the road district for any sum. The district was not a landowner nor a lessor, and there was no obligation on the part of appellant in its contract with the government to assume any other obligation except that to the landowners.