Appellant is a road improvement district created by a special statute enacted at the extraordinary session of the General Assembly of 1920, and the statute was repealed by a later one passed at the regular legislative session of 1921.
Appellees are professional engineers, engaged especially in road construction, and they were employed by this road district as engineers to make preliminary plans and estimates and supervise the construction of the improvement.
The contract was for the whole of the work, both preliminary and supervisory, and a specified percentage was agreed upon as compensation of the engineer's, but the contract was premature because it was entered into before an assessment of benefits was made to determine whether or not the cost of the improvement would exceed the benefits. There was no separate contract for the preliminary work, therefore the compensation of the engineers is to be determined upon the quantum meruit. Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47.
The preliminary work was done by appellees, and the plans and estimates were presented to the commissioners, but further proceedings were suspended because it was found that the cost of the construction would exceed the benefits.
The repealing act provides for the payment of the preliminary expenses by taxation of the lands in the district. Appellees thereupon presented their claim in the sum of $8,338.37 for allowance. The commissioners had previously issued certificates to appellees aggregating $2,500, which constituted a part of the total claim presented by appellees. The commissioners refused to allow the claim as presented, and this action was instituted in the chancery court to recover the amount claimed.
The repealing statute provides that, if the commissioners reject the claim in whole or in part, the claim shall he barred unless suit is instituted within ninety days after notice of the rejection of the claim. The present action was instituted within apt time.
The claim of appellees specified the sum of $4,838.43 as actual expenses, and the further sum of $3,500 as compensation to the engineers, and profits.
The chancery court, after hearing the evidence, allowed the claim in the sum of $7,348.52, which was $4,-348.52 for expenses and $3,000 for compensation.
The items of expense allowed by the chancellor are as follows:
For expenses field party..................................................... $2,135.00
For expenses of draftsmen...................... 1,137.50
For expenses of office help........................ 170.00
For expenses of drafting and blue-print paper...... 78.24
For expenses of stakes................................................................ 37.48
For expenses of railroad fare, telephone bills and other incidentals.................................................... 86.95
For expenses of automobile hire, gasoline and repairs................................................................................... — .......... 353.35
For overhead expenses................................................................... 100.00
For depreciation on automobiles and instruments 250.00
Being a total of......................................................$4,348.52
The plans prepared by appellees in accordance with the terms of the statute contemplated the construction of a road 37.5 miles in length, at an estimated aggregate cost of about $600,000.
There is a conflict in the testimony as to the amount of time spent in making the preliminary surveys and plans, and also as to the cost thereof. The evidence shows that the field work covered a period of about thirty-five days, and that there were eight men in the party engaged in the survey, consisting of two instrument men, two chainmen, a stiekman, an axman, a flagman and a rodman.
Appellees testified that the actual cost of the field work was $2,135, and this, item was allowed by the chancellor as claimed by appellees.
The commissioners, testified that when they issued the certificates- to appellees the latter claimed that the total expense of the preliminary work, which included the office work in making the plans, amounted to about $2,300. Appellees denied that they made any such admission, but that they stated that amount as an estimate of the cost of the field work, which they now claim amounted to the sum specified above.
The evidence adduced by appellees, not only their own personal testimony but that of other witnesses, tended to show that the cost of the field work amounted to the sum now specified by them, exclusive of the office work. There is a conflict in the testimony, but the finding of the chancellor on this issue is not, we think, against the preponderance of the evidence.
Appellees, in their testimony, go into details as to the amount of work involved, both in the field w;ork and office work, and amount of time expended, and we are of the opinion that the testimony is sufficient to support the finding of the chancellor.
Appellees testified that they kept no separate account as to the cost of this work, except as to the amount of time and the number of men used in the work. They are not, however, to be denied compensation merely because they failed to keep a separate account of the amounts paid out as expenses.
A further analysis of the testimony would serve no useful purposes, and it is sufficient to say that, after careful consideration, the conclusion is reached that the evidence as to the amount of compensation earned in the preliminary work is not against the finding of the chancellor.
The decree is therefore affirmed.