36 Ark. 577 | Ark. | 1880
Defendants are the principals and sureties in a bond, given to the city to secure the payment of rent for the privilege of keeping a wharf, and occupying, for the purpose, the river-front of a piece of land belonging to the corporation.
The first paragraph of their answer set forth a release of part, payment of part, and for the balance a tender of city warrants, duly issued, with an offer to bring them into court. This paragraph was not demurrable, as it did show some good matter of defense, in the release and part payment. The tender was not strictly, well pleaded; principally, for lack of the “tout temps prist” clause. The real contest, however, on this point is, whether the rent could be paid in city warrants, or must be paid in money. The lease itself stipulated for the sum of $1,300, “ in United States currency” to be paid on the first of November, 1877. The bond upon which suit is brought, is for the same amount, “in United States currency,” to be void if the lessees of the wharf shall well and truly pay the rents reserved in the lease. The bond is a separate instrument, but evidently made with reference to the lease; and, construed together, they leave no doubt of an intention on the part of the city to demand, of the lessees to pay, and of the sureties to secure the payment of the rents in currency, as distinct from city warrants.
“ An act to prevent discrimination in county warrants or county scrip,” passed December 14, 1875, provided that all city warrants, etc., should be receivable for all debts due the corporation, “ by whom the same were issued,” without regard to the time or date of issuance. There is nothing in this act to forbid contracts with corporations for payment in money specially, although it may apply to debts and obligations generally. Persons may contract for anything legal, and not against good morals or public policy. It is a question of construction.
But for the existence of the law in question, the addition of the words, “ in United States currency,” would have had no significance. All contracts to pay mean that. It goes without saying. The use of the words, in connection with the law, shows a design to put the contract of leasing upon a footing different from that upon which, the law would leave it. Corporations, like individuals, however deeply in debt, must' have some actual money-income, to exist. The court erred in so far as it considered tlje plea of the tender a good defense.
The second paragraph, as a defectively-pleaded suggestion of no consideration, should have been made more definite and certain. It is too general, but that is not curable by demurrer. ■
The principal question which underlies all the objections and exceptions to the rulings of the court, arises from this: that, throughout, the defendants squarely contend, and aré supported by the court in the position, that the land and river-front, being dedicated to the public, could not be leased by the city for private uses; that the contract was void, and there was no obligation on the principal or sureties to pay anything.
The evidence shows that defendants, the lessees, paid part of the rent, entered under-the city, and were not molested in the enjoyment of the premises in any manner during the term.
We do not conceive it at all important to determine whether the city, holding the legal title of the property for public uses, ought to have leased it to defendants for their private emolument. There might be valid reasons for supposing that it could be best made to subserve the public convenience, by placing it in the hands of lessees, who would be interested to keep it in order for shipping purposes. However that may be, the public, or any citizen aggrieved, or molested in his enjoyment of the common property, might have found his appropriate remedy in chancery, if entitled to any. The defendants are estopped from denying the right under which they have been permitted to occupy, and of which they have availed themselves profitably. Certainly the city had control of it for the purpose contemplated by the conveyance, and for police purposes; and, holding the legal title, might, but -for the contract, have dispossessed the defendants at any time, as being themselves guilty of a nuisance.
We know of nothing peculiar in the nature of municipal corporations, to require, against them, any modification of the rule which prevents the tenant from denying his landlord’s title.
The court erred in its instructions throughout, upon this point.
The amendment to the complaint, set up the fact that the lessees entered under the lease, and quietly enjoyed it. It was permissible to the plaintiff-to'assume, in the first instance, the burden of this proof, although not essential to show cause of action on the bond. If the lessees had been evicted, or impeded in their enjoyment, it was matter of defense, and, upon an issue thus made, plaintifl-would have been allowed to prove the contrary. So, too, against a plea of want of authority to.make the lease, it might have introduced the same proof to show estoppel. No injury was done to plaintiff by striking it out. It was not apparently an effort to join a count for use and occupation, but an attempt to anticipate and neutralize matter of defense.
Eor error in refusing the motion for a new trial, reverse the judgment, and remand .the cause for further proceedings.