Meek v. Christian

Hart, J.,

(on rehearing). .Counsel for C. S. Christian

earnestly insist that the court erred in not allowing him interest from the date of the completion of his services: as. engineer in making the preliminary survey of the roads in the district and his" plans and estimates showing the cost of the construction of the improved roads. They strongly rely upon the case of Iron Mountain & Helena Rd. v. Stansell, 43 Ark. 275. In that ease there was a contract between the railroad 'company and 'the construction company for the construction óf defendant’s line of road from-Helena to Forrest City;- Arkansas.- Thp court held that the contract was a single and indivisible contract. The railroad company issued certain certificates of' indebtedness for the amount it owed the construction company, which were called change tickets, and whieh; were held to be in violation of law. Although illegal,The court held that- they might be used as evidence of the amount due on the cob tract; inasmuch as1 they were a written admission that the railroad company had'received the value expressed in them. Interest was allowed when the payments became due to the construction company under the contract. Thus it will be seen that the interest wa-S contractual and followed the ordinary rule in [shell cases. ' ’' ■ • ¡

The facts in this case are materially different’. The commissioners made an indivisible contract with Christian to do both the preliminary and construction engineering Work for the district, and, under the'contract, he was to receive four per cent, of the. actual construction cost of all the improved roads. The contract provided that when the engineer had filed his approved plans, specifications, and estimates, then the district- shall pay' him fifty per cent, of the estimated entire fee’., ' It further provided that, if the district had no funds to make such payment, then it would execute certificates of^ indebtedness therefor bearing interest at six per cent.

As will be seen by reference to our original opinion, this, contract never became. effective because no final assessment of benefits was ever made and in consequence there, could be no ascertainment that the assessment of benefits would exceed the cost of the improvement.

Improvement district.. commissioners exercise ■ no powers except those .expressly granted, by the legislature. and can exercise the powers conferred only.in;the manner pointed out expressly or by necessary implication. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229.

Section 3 of : the act gives the commissioners the power to employ engineers to make a preliminary survey and to prepare plans and specifications for the construction of the improved roads. By necessary implication, this would give them the authority to issue evidence- of indebtedness therefor; but not negotiable paper. Hiter v. Harahan Viaduct Imp. Dist., 165 Ark. 351. In this connection it may be stated that no attempt was made by the district to issue negotiable interest bearing certificates of indebtedness for preliminary engineering, expenses ; but it distinctly shows that the certificates were issued under-the contract,, which was for the whple of the engineering work. . . , .

The record shows-that the, district first made ,two advance payments of $10,000 each -for preliminary engineering expenses. The resolution expressly recites that the advances were made under -the contract which the board of commissioners had made with the engineer; A subsequent resolution of the board of commissioners recites that certificates of indebtedness had been theretofore issued to 0. -S. Christian in the sum of $20,000 .as advances on his 2 per cent, commission due on approval of the plans, specifications, and estimates of the roads in said district. The .resolution further recites that there is now due to C. S. Christian, all told ait 2 per cent, on the estimated cost of the improvement, the sum of $27,489.10, less the $20,000 in certificates held by Christian. ■

Thus it will be seen that the certificates of indebtedness were not issued to. Christian because' the commissioners had agreed with him that he . was due the sum of $27,489.10 upon a quantum meruit for making.the preliminary survey and preparing the plans, specifications and estimates. On the contrary, it is manifest from the record that these certificates were isáued under the contract with the engineer for doing the preliminary surveying and the construction engineering Work. It will be seen, then, that the certificates were issued'under a contract which- neverhecame effective;. . Thexefore, Christian had. no bright, whatever to , recover ,on his contract, and the action of the commissioners in renewing the certificates under the contract did not constitute an .admission that Christian-was due. that sum of money upon a quantum m'&ruit basis. ,

The record does not show that the commissioners and Christian ever took up the matter of settling his- compensation upon a qucmium meruit basis. The entire course of their dealings show that they proceeded upon the theory that he was entitled to '2 per cent, of the entire commission under his contract with the board of commissioners.- Hence, there is nothing in the record whatever to show that the commissioners ever agreed that Christian was entitled to any stipulated amount upon a quantum meruit basis.

In this connection it may be stated that the general rule ’which denies the right to interest on unliquidated damages has found very frequent application in the case of /unliquidated demands for services rendered, which as a general rule do not bear interest until rendition of judgment; 33 C. J., § 72, p. 211. The cases cited show that quantum meruit for services rendered is within the rule.,' The value .of services upon a qucmtum meruit can only be ascertained by an accord or by the judgment of a court after hearing proof of the value of the services. The general rule does not apply here because of the statute creating the district. • ■

Section 23 provides that, in case for any reason the improvement contemplated by the district is not made, the preliminary expenses shall be a first lien upon all the- land in the district and shall be paid by the levying of a tax thereon upon the assessed value for county and State taxation. This was a direct recognition that the preliminary work was to be undertaken by the district ahd that its cost must be met by the landowners. As we have ^already' seen, the commissioners could only exercise the UQ.wers granted them expressly or by necessary implication, and, having failed to enter into a separate contract with •• Christian for the preliminary surveying expenses, he was only entitled to recover upon a quantum meruit.

Under the statute he must file his claim in the chancery court and was not entitled to-interest until he filed his claim for two reasons. In the first place, the statute did not authorize the commissioners to pay him interest for preliminary work. Of course, if the contemplated improvement had been .carried out 'and bonds for the costi of construction had been issued as provided by § 16 of the act, -the preliminary expenses would have become a part of the cost of construction and the c.omlmissioners might have issued negotiable bonds bearing the rate of interest provided by the statute.

• As we have just seen,. § 23 of the statute .creating the district provides that, in ease the improvement is not made, the preliminary expenses shall be paid by the levying of *a tax on .the land of the district. By fair inference this means-that no interest shall be due on the claims for preliminary expenses until the same are filed as provided by. the act. The mere fact that § 3 gave the commissioners the power to employ an engineer to make a preliminary survey, and to prepare estimates of cost, did not by implication .authorize them to pay him interest on-his. claim until the claim "Was filed as, directed by statute..

It f ollows that the petition to nmdify the decree will be overruled.

Wood,- J., dissents,.