(222 S.W.)

Since the pay

the motion for a postponement was filed. The payment of such premium. continued illness of Rose during the summer ment of the premium was for Hardy's benebefore the day set for the trial of the cause | fit, the presumption is that he would have conshould have caused the appellant to antici-sented thereto. But that matter is not left to pate that the services of other counsel might presumption, for the undisputed proof here is be necessary at the trial, and proper dili- that he desired to pay his premium and to gence on its part would have resulted in continue his policy. the employment of such additional counsel in time for them to have prepared for the trial of the case when the same was called. At least, the motion was addressed to the discretion of the trial court, and we do not discover any abuse of discretion in overruling the motion.

Hardy on November 10, 1917, applied for reinstatement and remitted $19.88. On that date he had not yet received the $20 sick benefit which reached him on the 14th, and, of course, he could not know whether the company had allowed his claim for sick benefit and whether it had applied same for the The appellant contends that the undisputed payment of his premium. At the time Hardy evidence shows that the policy upon which receipted the company for the sick benefit this action was based lapsed and was for- fund, the company had not returned to him feited on account of the failure of the insur- the $19.88, which he had remitted to it. This ed to pay the premium due October 3, 1917, remittance was not returned to Hardy until on or before November 3, 1917; the latter the 17th. So there was no interval from Ocdate being the last day of grace for the pay-tober 3, 1917, until November 14th, when the ment of the premium. company did not have money in its hands of Hardy's more than sufficient to have paid his premium.

[3] Appellant's contention cannot be sustained for the reason that the undisputed evidence shows that on November 3, 1917, it had the sum of $20 in its hands belonging to Hardy, which sum exceeded the amount that was then due the appellant for the premium on the policy in suit. It is of no consequence that this fund accrued to Hardy under the provisions of a different policy from that in suit. The policies were issued on the same day and were between the same parties; but even if that were not true, and if the appellant had in its possession funds belonging to Hardy derived from any source whatsoever, it was the duty of the appellant, in the absence of instructions from Hardy that he desired the use of the funds for some other purpose, to appropriate the same for the payment of his premium when it became due in order thereby to prevent forfeiture of the policy.

The appellant, having kept in its hands money of the appellee until after time for the payment of Hardy's premium expired, ⚫will not be heard to say, in the absence of affirmative evidence to the contrary, that it had no right to use this money to pay the premium and thus prevent a forfeiture of Hardy's policy. In other words, the effect of the undisputed evidence is to show that the premium was paid.

The trial court was correct in so holding and in granting the prayer of appellee for a peremptory instruction in her favor. Although there is some difference in the facts, the case is ruled by the doctrine announced and the principles applied in Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S. W. 355, where we said:

or course of

"The doctrine does not arise out of the peculiar facts of any particular case. It does not depend upon contract, custom dealing for its existence and potency. It has its origin in that fundamental principle of justice which will compel one who has funds in his hands belonging to another, which may be used, to use such funds, if at all, for the benefit, and not to the injury, of the owner; for his consent to the one, and dissent to the other, will be presumed. * These principles

The undisputed evidence shows that Hardy was sick in August, 1917, and that his claim for $20 sick benefits which had accrued under his health policy had been sent to the company long prior to October 3, 1917, when the premium was due. Yet the appellant delayed sending him the amount of the sick benefit until after November 3, 1917. If Hardy after making claim for sick benefit had directed the appellant that he desired the use of this amount for some other purpose than the payment of the premium on his life policy, then appellant would not have been warranted in appropriating the funds in its hands for the payment of the premium. But in the absence of such direction, appellant could not hold on to the funds of Hardy until the time for the payment of the premium had expired The judgment is correct, and is therefore and then declare a forfeiture for the non-affirmed.

are founded upon reason and common fairness wherever it becomes necessary to prevent a and honesty, and they will have application forfeiture, which is favored neither at law nor in equity."

See, also, Nat. Ins. Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; Mutual Life Ins. Co. v. Henley, 125 Ark. 372, 188 S. W. 829.

BRADLEY COUNTY ROAD IMPROVE-
MENT DISTRICTS NOS. 1 AND 2 v.
JARRATT et al. (No. 14.)

(Supreme Court of Arkansas. May 24, 1920.)
I. Highways 90-State highway department
not bound to make preliminary survey, and
where it fails district may engage engineers
to make same; "may."

tion to be paid when the plans, specifications, and estimates of cost of the improvements are completed, and the balance in installments as the work progresses. The validity of the contracts was attacked on the grounds: First, that they embraced the cost of the preliminary surveys, plans, and estimates of cost of the improvements, which, under the act aforesaid, were to be made and prepared for said districts by the highThe provision of Road Laws 1919, vol. 1, way department of Arkansas, free of charge; Act No. 237, § 5, that boards of commissioners and, second, that the contracts were proof highway districts may make application to cured by taking advantage of the ignorance the state highway department for preliminary surveys and the department may make such of the commissioners as to the meaning and plans and estimates, is not mandatory in view terms of the act creating the districts and of the word "may," which, while used in a are arbitrary, unjust, and inequitable. mandatory sense, ordinarily imports permis- Appellant H. R. Carter filed answer, adsion, possibility, or ability, and hence, as sec-mitting that he entered into the alleged contion 6 provides, it shall be the duty of the tracts with said Bradley county road imboards of commissioners to make improvements as expeditiously and as economically as possible, such a board has authority to engage an engineer to make preliminary surveys where the state highway department is unable to make

the same for lack of funds.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, May.] 2. Appeal and error 839(1)-Questions not disposed of below will not be reviewed.

Questions not disposed of by trial court will not be reviewed on appeal.

provement districts, but denying that the boards of commissioners of said districts were without authority to embrace in the contracts the charge for preliminary surveys, plans, and estimates of the cost of improvements, and that the contracts were procured through a lack of knowledge on the part of the commissioners as to the meaning of the act creating the districts, or that they are arbitrary, unjust, and inequltable.

Appellee J. T. Tatum, alleged owner of real

Appeal from Bradley Chancery Court; E. estate in said districts, also entered suit in G. Hammock, Chancellor.

Suit by E. J. Jarratt and others against the Bradley County Road Improvement Districts Nos. 1 and 2, consolidated with a suit by J. T. Tatum against the same defendants. From decrees of injunction, defendants appeal. Reversed and remanded, with directions.

J. R. Wilson, of Warren, for appellants. W. C. Medley, of Eldorado, and J. C. Clary and B. L. Herring, both of Warren, for appellees.

said court to enjoin appellants from making of the cost of the contemplated improvea preliminary survey, plans, and estimates ments in said district, upon the same grounds alleged in the bill of appellees E. J. the alleged invalidity of practically every Jarratt et al., and the further ground of section of Act No. 237 aforesaid, creating Bradley county road improvement districts Nos. 1 and 2.

Appellant H. R. Carter filed answer to the petition of appellee J. T. Tatum, specifically denying every allegation assailing the validity of his contracts with said improvement districts and the act of the Legislature creating them.

The testimony in the two cases was the same and disclosed that, after the passage of Act No. 237, creating the districts, the commissioners of each met in the office of the state highway commissioner and perfected an organization; that the commissioners thereupon made personal requests of the state highway department to have pre

HUMPHREYS, J. Appellees, E. J. Jarratt et al., property owners in Bradley county road improvement districts Nos. 1 and 2, instituted suit against appellants in the Bradley chancery court to restrain them from making a preliminary survey of the roads proposed to be constructed in said districts, created by Act No. 237 of the Legislature of 1919 (Road Laws 1919, vol. 1), and to cancel contracts entered into between the boards of commissioners of said road im-liminary surveys made of the roads to be provement districts with H. R. Carter, an made under said Act No. 237, which requests engineer, to do all the engineering work con- were refused by the state highway commisnected with the improvements to be made sioner for the reason that no funds were and supervision of the construction thereof, available for that purpose; that the approat his own expense, for a compensation equal priations were insuflicient to cover prelimito 5 per cent. of the cost of construction not nary surveys, plans, and estimates for proexceeding $1,000,000 and 4 per cent. in ex-posed districts under the Alexander Road cess of $1,000,000, one-half of the compensa- Law, which required preliminary surveys,

(222 S.W.)

plans, and estimates of costs as prerequisites state highway department to make the preto the organization of proposed road dis- liminary surveys, plans, and estimates of tricts; that only $20,000 had been appro- cost of improvements to be made in said priated for the purpose of making prelimi- districts free of charge against the lands nary surveys by the state highway depart-thereof as a condition precedent to proceedment; that the general and special sessions ing with the improvements. The requireof the Legislature of 1919 provided that 9,- ment in section 5 of said act for the board 600 miles of roads in the state should be im- of commissioners in each district, after qualproved; that a preliminary survey thereof ification, to apply to the state highway dewould have cost $8 per mile, and a final sur-partment for preliminary surveys, plans, vey to ascertain the yardage of the road and estimates of cost of the proposed imwould have cost from $100 to $125 per mile; provements, is clearly mandatory; but it is that the boards of commissioners of Bradley just as clear, from the language used in said county road improvement districts were in-section 5, when read in connection with the formed by the state highway department that other sections of the act, that the duty imthey would have to employ an engineer any-posed upon the state highway department to way, and he could make the survey under the make the preliminary surveys, plans, and direction of the state highway department estimates of the cost of the improvement at and file the surveys, plans, and specifications the expense of the state was a sound discrewith it for approval; that the course sug- tionary one, dependent upon the conditions, gested was adopted; that three engineers facilities, etc. In this respect, the section made talks before the boards and applied reads: for the position of engineer of each district, one of whom was H. R. Carter; that Carter did not tell the commissioners they would have to employ him, or use words to that effect; that, later, H. R. Carter was employed as engineer, and entered into written contracts with the commissioners for engineering services, including preliminary, as well as final, surveys, plans, and specifications for the improvements and supervision of the construction thereof, for a fee of 5 per cent. on the cost of said improvements up to $1,000,000 and 4 per cent. in excess

thereof.

"And the state highway department may make such plans and estimates on more than one type of surface for the roads, together with any recommendations that they may see fit to make."

Had the intention been to compel or force the state highway department to make the preliminary surveys, plans, and estimates, the Legislature could have easily employed the word "shall" in this connection, as it did in the first clause of the section, in relation to the application to said department for such surveys. The use of "shall" for "may" would not have been absolutely conThe causes were submitted to the court trolling as to the intent, but, in the connecupon the pleadings, testimony of the several tion used, would have been indicative of it. witnesses, in substance detailed above, the While the word "may" is frequently used written contracts of employment, and a cer- in an imperative or mandatory sense, orditified copy of Act No. 237 aforesaid, from narily its employment in statutes imports which the court found that it was the pur- permission, possibility, ability, etc. 26 Cyc. pose and intent of section 5 of said Act No. 1590. Had the intention been to employ the 237 to absolve the property in said districts word "may" in its imperative or mandatory from the cost of preliminary surveys, plans, sense in said section 5, the Legislature and specifications, and to place that burden would certainly have imposed the duty upon absolutely upon the state highway depart- the commissioners to adopt one of the prement as a condition precedent to proceed-liminary surveys and plans furnished by ing with the improvements. In accordance said department. The section of the act with this finding, the court rendered decrees immediately following made it optional with against appellants, permanently enjoining the commissioners whether they would acthem from making the preliminary surveys, cept the preliminary plans of said departplans, and estimates as a charge against the ment, or some other plan. Again, the inland situated in said districts, and from tention, in the use of the word "may" in proceeding with the improvements at all said section 5, as imposing discretionary until such time as the state highway depart-power only on the state highway department ment shall make the preliminary surveys, to make preliminary surveys, plans, and plans, and estimates of cost of more than estimates, is indicated in the broad mandaone type of surface roads and transmit them tory powers conferred on the commissioners to the commissioners of said districts. By of the districts by sections 3 and 7 of said consent of all parties, both causes were con- act. Section 3 provides: solidated for the purpose of appeal, and an appeal from the decrees has been duly pros

ecuted to this court.

[1] It is insisted by appellants that the court erred in interpreting sections 5 and 6 of said Act No. 237 as mandatory upon the

"It shall be the duty of the respective boards

of commissioners to make the improvements

in their respective districts as herein authorized, as expeditiously and economically as pos sible, and they shall have all the necessary powers to accomplish this purpose."

developed or passed upon by the chancellor, a decision of them at this time is pretermitted.

Section 7 provides: "For the purpose of assisting them in the preparations of plans for the improvement in said districts, the commissioners of each of said districts may employ such persons as they see fit, including an engineer, and fix their compensation. It is apparent, from a reading of these desired, not inconsistent with this opinion.

*

two sections in connection with section 5 of said act, that the intention of the Legislature was that the commissioners should make the same as expeditiously and economically as possible, with the aid of preliminary surveys, plans, and estimates of the state highway department, if the conditions as to finances, etc., warranted the department in making them, but, if unable to procure them from the department upon request, then to employ an engineer to assist them in the preparation of the plans and completion of the improvements. No other interpretation of section 5 of said act would give effect to the other provisions of the act and the accomplishment of the improvements intended by the Legislature. The undisputed proof is to the effect that the commissioners requested the state highway department to make the preliminary surveys and that the request was denied for the reason that no funds were available for that purpose.

For the error indicated, the decrees of injunction are reversed, and the causes remanded, with directions to dissolve the writs and for such further proceedings as may be

Where a vendor sells land, taking the notes of the vendee for the purchase money, and executes a bond for title, the effect of the confavor of the vendor on the land to secure the tract in equity is to create a mortgage in purchase money, subject to all the essential incidents of a mortgage.

2. Vendor and purchaser 278—Provision for acceleration of payment is valid, though not contained in notes.

Where vendor contracted to sell land, receiving a cash payment and a series of notes, the fact that the notes made no provision that, in case of two defaults, the vendor might declare the entire sum due, does not invalidate such provision in the contract. 3. Vendor and purchaser

278-Provision for acceleration of payment not invalid, as working forfeiture.

[2] The appellees contend that the decrees of injunction should be upheld because the engineering contracts were entered into without the exercise of discretion on the part of the commissioners and in ignorance by them of the provisions of the law, and for the further reason that the contracts Where vendor sold land under a contract are arbitrary, unjust, and inequitable. The providing that, in event of two defaults in payinterpretation placed upon the act by the ment of a series of notes given for the purcommissioners, as empowering them to make chase price, he might declare the entire sum a contract with an engineer for preliminary due, such provision is not invalid as working a forfeiture, for the purchaser might thereupon surveys, plans, and specifications, when unable to procure them from the state high-pay the entire amount and in event the land was sold on foreclosure of the vendor's equitaway department for a good reason, was cor- ble mortgage, the purchaser would be entitled rect. The reasonableness or unreasonable- to any surplus in excess of the balance due. ness of the amount of the fee agreed upon for engineering services was not fully developed by the evidence nor passed upon by the court, so we refrain from expressing an opinion as to whether exorbitant, unjust, or inequitable.

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor.

Action by Minnie E. Fairbairn against J. H. Pofahl and another. From a decree dis

missing the complaint, complainant appeals. Reversed and remanded, with directions.

Carmichael & Brooks, of Little Rock, for appellant.

A. J. Newman, of Little Rock, for appellee.

SMITH, J. This case was tried in the court below upon the following agreed statement of facts:

A number of other questions are raised and argued by appellees in support of the injunction decrees, but they were not developed by the evidence or passed upon by the chancellor. The gist of the evidence and the decrees of the court were restricted to the proposition of whether the commissioners had authority under the act to employ an engineer to make preliminary surveys, plans, and estimates of cost of the improve- On September 16, 1918, appellant entered ments. Many of the questions raised have into a contract to sell E. C. Smith a lot in been settled adversely to the contentions of the city of Little Rock for the sum of $1,200, appellees in recent opinions written by this of which $100 was in cash, and the balance court. The other questions not having been of purchase money was evidenced by 110

(222 8.W.)

notes, for $10 each; the first note falling due mortgage securing the notes. It was there October 16, 1918, and one note on the 16th contended that the provision maturing the day of each month thereafter, with interest entire debt was void; but the court held othat 8 per cent. The contract of sale provided erwise, and in the opinion said: that, if a second default in payment was made, all the notes then remaining unpaid should at once become due and payable. The contract also provided that Smith should insure the property for appellant's benefit and should keep the premiums paid. Smith failed to insure the property, and made default for four consecutive months in the payment of his notes. Thereafter, for a valuable con sideration, Smith assigned his contract to ap-time, and in relation to the same subject, as pellees J. H. and Mary Pofahl.

stituted a single contract, and it is this contract or equitable mortgage which appellant seeks to enforce, and the notes merely evidence the sum due and secured by the contract, and we think the provision accelerating "Can the appellant, at her option, declare the the payments, if otherwise valid, is not renresidue of the promissory notes of appellees dered unenforceable by reason of the fact due and foreclose same upon a failure to pay that it does not appear in both the contract two or more of such notes when due, as pro-and the notes. In Jones on Mortgages (7th Ivided in the contract of sale, but not so pro