53 Ark. 287 | Ark. | 1890
These two cases were submitted by consent upon the same abstracts and briefs, and considered by this court at the same time. In the first case it appears the county court of Conway county ordered a jail to be built, awarded the contract to R. S. Truitt, he being declared the lowest bidder, and ordered him to enter into bond for the faithful performance thereof. The contract was reduced to writing and presented to the court for approval. Thereupon Carroll Armstrong, a citizen, resident and tax payer of Conway county appeared, and for several reasons objected to its approval. His objection was overruled, and the contract was approved, and he appealed to the circuit court. In the circuit court his appeal was dismissed, and he appealed to this court.
In the other case the county 'court of Conway county, at its July term, 1888, on the 7th of September, 1888, made the following order: “Now on this day it appearing to this court that the contractor for building the jail for Conway county, R. S. Truitt, has filed his bond as such contractor, and in accordance with the contract that upon the filing and approval of said bond said contractor should have issued to him one thousand dollars, it is therefore considered, ordered and adjudged by the court that the clerk draw his warrant on the treasury of Conway county in favor of R. S. Truitt, payable out of jail funds, for one thousand dollars.’’ And Carroll Armstrong appealed from it to the circuit court, which, “after hearing the testimony of witnesses and argument of counsel,’’ affirmed the order of the county• court, and rendered judgment for costs against Armstrong. Without filing a motion for a new trial or bill of exceptions, he appealed to this court.
The appeals in the two cases are separate and distinct, and will be so considered.
In the latter case the order appealed from was an allowance against the county. There is nothing in the record to indicate the nature or purpose of the allowance, except the order of the county court. From that it appears that it was made at the time the contract to build the jail was consummated by the filing and approval of the bond of Truitt — that both the order and contract were made at the same time. Assuming that the order is correct as to facts, it conclusively appears that no' part of the contract was performed when it was made, and that the amount thereby allowed was intended to be paid before anything was done under the contract. No other reasonable interpretation can be placed upon it. As an order for such a payment, it was affirmed by the circuit court, and could not have been affirmed in any other way. The whole record conclusively shows that the allowance was for an advance payment. Did the circuit court err in affirming it?
The judgment in the first case dismissing the appeal is affirmed; and the judgment affirming the allowance in the other is reversed, and the cause is remanded for a new trial.