| Ark. | Jan 18, 1909
(after stating the facts). I. It is said that the sureties were relieved by the change of the pavement required of the street car company. It was understood from an existing ordinance, and by a descriptive clause in the contract, that the space occupied "by the street car company, and two feet on each side thereof, was to be paved with whatever material the rest of the street was paved — in this instance, asphalt. This contract provides that in a certain contingency mentioned therein the contractor could be required to pave this space with asphalt under similar terms and conditions and specifications as the work contracted for. This, however, was at the option- of the city. Unless the city exercised that option and required it to pave this space, the contractor had no concern with this space. It was not a matter affecting the performance of his contract, and its only relation to the work done was1 its immediate proximity to it. The city could change its mind about how this should be paved, without touching his contract in the least. That is what it did, and neither the contractor nor the surety has cause to complain of a change not going to the performance of the contract. National Surety Company v. Long, 79 Ark. 523" date_filed="1906-07-02" court="Ark." case_name="National Surety Co. v. Long">79 Ark. 523.
H. It is argued that the bond is void because the city had no authority to take a bond for this purpose. Appellant refers to several decisions from which it may be seen that there is some ■ difficulty in sustaining bonds where there is no direct statutory authority for them. It is not important to consider them here, because, if it be conceded that it was an ultra vires act on the part of the city, the surety company is estopped from availing itself of it now. The contract is an executed one, the surety has received Its consideration for it, and the benefit of the act has been reaped by the principal of the surety company and the surety company i'tself, and it is too late to avoid the penalty. Minn. F. & M. Mut. Ins. Co. v. Norman, 74 Ark. 190" date_filed="1905-02-11" court="Ark." case_name="Minneapolis Fire & Marine Mutual Insurance v. Norman">74 Ark. 190; Forrest City v. Orgill, 87 Ark. 389" date_filed="1908-09-28" court="Ark." case_name="Forrest City v. Orgill">87 Ark. 389.
III. It is next insisted that the court erred in refusing to permit the defendant to prove the degree of heat in which the asphalt was laid. The contract called for the asphalt to be heated to 300 degrees Fahrenheit, and to be laid at a temperature of not less than 250 degrees Fahrenheit. If the contract was not complied with in the construction of the pavement, then there would be an action on the construction bond, and not on the maintenance bond, unless the city was responsible for the departure from the contract or waived its terms. Taking the terms of the contract and the maintenance bond together, it is .clear that the pavement was to be built according to plans and specifications of the contract before t'he maintenance bond was brought into action, so to speak. The language seems plain enough, and it is unreasonable to suppose that business men would contract to guaranty a pavement for ten years unless that pavement was built in an approved manner upon proper plans and specifications. If, therefore, the defendant had offered to show that there was a material departure from the plans and specifications of the contract with the city, then unquestionably the surety should be released, notwithstanding the city’s acceptance of the pavement, for it would not be the pavement it contracted to guaranty and maintain. But there is no such evidence here, nor the offer of such evidence.
Woodson, the president of the Arkansas Asphalt Company, was asked if he remembered the degree of heat of the asphalt in laying it, and an objection was1 interposed on the ground that the question of construction had not been gone into, and the objection was sustained.
Reichardt, a civil engineer who was employed by the city, and who assisted Howard, an expert in asphalt whom the city put in supervision of the work, was called as a witness for the defendant, and was asked: irWas any of the asphalt that was laid on that street under the direction of Maj. Howard laid at a less temperature than 300 degrees Fahrenheit?” This was objected to, on the ground that the work was accepted, and the objection was sustained. The question to Reichart did not go to the real question — laying the asphalt at not less than 250 degrees.
The appellant says: “The defendant offered to prove that instead of laying the asphalt at 250 degrees, as required by the contract, that it was laid at 150 degrees by the direction of Mr. J. W. Howard, who was working under the city engineer as an expert and as a special representative of the city.” The record fails to sustain this statement. All that is found therein on the subject is given above, and the abstract points out no other testimony, adduced or offered, to sustain this contention.
This court only reverses for prejudicial error, and it must be shown affirmatively that error occurred in the trial. It is not shown that any competent testimony was rejected. Meisenheimer v. State, 73 Ark. 407" date_filed="1904-12-24" court="Ark." case_name="Meisenheimer v. State">73 Ark. 407; Boland v. Stanley, 88 Ark. 562" date_filed="1909-01-04" court="Ark." case_name="Boland v. Stanley">88 Ark. 562.
IV. The next point made is that the court erred in refusing to submit to the jury evidence tending to prove the city’s failure to keep the street free from dirt, mud, gravel and other deleterious substances which impaired the wearing of the pavement. The court was right in this. The city did not contract" to perform this work. On the other hand, the contractor and its surety contracted to maintain the street. Had terms been inserted in the contract requiring the city to properly care for the street, then this would have been an issuable matter; otherwise it was not.
V. Lastly, it is insisted that the case should have been transferred to the Federal court. The facts in this regard are: The suit was brought by the city of Little Rock against Wood-son, Price, Arkansas Asphalt Company, and Aetna Indemnity Company. On the 30th of October the plaintiff dismissed as to Woodson and Price, and on the 31st of October, at the conclusion of the evidence, the plaintiff asked that a verdict be directed against the Aetna Indemnity Company, which was done, and the verdict against it alone was rendered on that date.
On November 9th a petition and bond for removal was filed by the Aetna Indemnity Company, and also a motion for new trial, for the filing of which leave was given. The petition for removal was denied on the ground that it was not presented until nine days after the judgment was rendered, and no prior notice given that it would be filed.
The action of the plaintiff in asking a peremptory instruction to find against the Aetna Indemnity Company alone was tantamount to a dismissal of the other defendant. This was followed by a formal dismissal as to the Asphalt Company. Both events are recorded in the same entry. The moment that the other defendant went out of the case, leaving it solely between corporations of different States, thé other elements being present, the defendant had a right to remove it to the Federal court. But the right to remove must be at once asserted as soon as a case, not theretofore removable, assumes a removable shape. Moon on Removal of Causes, § 157; Powers v. C. & O. Ry. Co., 169 U.S. 92" date_filed="1898-01-10" court="SCOTUS" case_name="Powers v. Chesapeake & Ohio Railway Co.">169 U. S. 92.
Here the defendant waited until nine days after judgment. There was then no case to remove; there was only a judgment to review. Finding no prejudicial error, the judgment is affirmed.