Young v. Gaut , 69 Ark. 114 ( 1901 )

Hughes, J.,

(after stating the facts.) The plaintiff’s attorney contends that there is no bill of exceptions, and that there is no showing in the record that what purports to be a bill of exceptions was ever filed. The evidence appears to have been taken by a stenographer in the presence of the court by agreement of counsel, and to have been deposited with the papers and recognized by the court as the evidence in the case, and a part of the bill of exceptions, whereupon the court made the following order: “And now comes said defendant, Mrs. S. J. Young, and presents to the judge of said court this her bill of exceptions, comprising all the evidence introduced in this cause, which is signed, sealed and made a part of the record herein, this the 25th day of July, 1898. E. S. McDaniel, Judge.” This bill of exceptions transcribed by the stenographer, as to the evidence, as per agreement, as we understand, •was approved and ordered filed by the court, and was deposited with the clerk within 90 days; and while the record is awkwardly presented in the transcript, we think it sufficiently identifies and shows the evidence, and that it was filed in apt time.

When it was delivered to the clerk within time, the omission of the filing mark would not be evidence that it was not filed, if it was delivered for the purpose of being filed. Case v. Hargadine, 43 Ark. 148.

There was no reply to the defendant’s counter-claim, and counsel for defendant contends that, by reason of the fact that his counter-claim was not answered, the appellant should have had judgment. But it does not appear that the appellant moved for judgment because of the failure to answer her counter-claim. Wherefore she cannot take advantage of it Here. By failing to move for judgment for the want of answer, and by going into trial, she must be held to have treated the issues as made. Gibbs v. Dickson, 33 Ark. 107; Winters v. Fain, 47 Ark. 496.

As there is conflict in the testimony as to the character of and deficiency in the work, we will not disturb the finding and decree in this behalf. But we think the evidence, by a decided preponderance, tends to show an unnecessary and unwarranted delay in completing the building according to contract, and that by the use of proper diligence the contractors could have completed the building within the time they contracted to do it. It is true, there were some alterations in the plans, and in some of the materials to be used in the building, which were provided for in the contract; yet no additional time was asked, or seems to have been contemplated, by reason of these alterations, which were inconsiderable, and need not have caused any delay beyond the time fixed and agreed upon for the completion of the building. The contract was entered into on August 10, 1897, and the house, was, according to its stipulations, to be completed by December the 1st, 1897, with a forfeiture of $6 a day as “liquidated damages,” for each day’s delay thereafter. The appellant got possession of the house on the 7th of April, 1898, and it was not then completed in all particulars, as found by the court. There was, therefore, a delay in completing the house in 128 days after December the 1st, 1897, for which, in our judgment, the appellant was entitled to' an allowance of $5 per day as liquidated damages — in aggregate $640. It may be that appellees made a hard bargain, and built the house for less than it was worth; but, if this be true, we cannot change their contract, nor can. we relieve them of the consequences of their failure to comply with it. “While courts of equity afford relief against penalties, they will not relieve against liquidated damages" Williams v. Green, 14 Ark. 315; Lincoln v. Little Rock Granite Co., 56 Ark. 405.

The decree is affirmed, save as to this item of liquidated damages that should have been allowed the appellant; but as to this the judgment is reversed and remanded, with directions to the court below to modify the decree in accordance with this opinion.