Reed v. Doniphan Lumber Co. , 91 Ark. 303 ( 1909 )

Wood, J.,

(after stating the facts). Section 4919 of Kirby’s Digest provides: “When any notice or advertisement relating to any cause, matter or thing in any court of record shall be required by law or the order of any court to be published, the same when duly published shall be paid for by the party at whose instance it was published, which payment, or so much thereof as is deemed reasonable, may be taxed as other costs otherwise allowed by the proper courts in the course of the proceedings to which sqch advertisement relates.”

Section 4921 provides: “When any law, proclamation,-advertisements, order or notice shall be published in any newspaper for the State or for any officer on account of the State, or for any county or for any officer on account of any county, or for any legal advertisement for any individual, there shall not be allowed for such publication a higher rate than one dollar per square of ten lines (two hundred and' sixty-eight ems) of nonpareil type for the first insertion, and fifty cents per square for each subsequent insertion, fractional squares and parts of squares to be counted as whole squares.”

Neither of the above sections prevents any individual at whose instance any legal notice is published from contracting with the publisher to publish such notice at any price they may agree upon. And, as between the individual and publisher, the contract would be binding upon them. The individual in a suit between him and the publisher’ would be liable for whatever amount he had contracted to pay for the publication. The provisions of the statute were not intended to limit the power of any private individual to pay any amount he might contract to pay for any legal publication that was made at his instance. Section 4919 clearly indicates that, as between the individual at whose instance the publication is made and the publisher, they are left to contract for any amount they may agree upon, which amount the individual having the publication made shall pay. But, after he shall have paid it and asks to. have amount so paid by him taxed as other costs by the courts in the course of the proceedings to which such advertisement relates, then the court shall not allow for such publication a higher rate than that prescribed by section 4921, supra, which sum the lawmakers evidently deemed a reasonable charge for the character of work prescribed. For it will not be presumed that the Legislature fixed as a maximum charge an unreasonable amount. Taking the two sections together, we are of the opinion that section 4921 was a declaration by the Legislature of the sum that it deemed reasonable for the court to allow as costs wherever the party at whose instance the publication was made had paid that or a larger sum. In other words, under the statute, when fixing the sum paid for legal publication as costs, unless the sum so paid exceeded the amount authorized to be charged by section 4921, supra, it could not be held unreasonable.

Appellant has submitted without objection to having the amount claimed by him for publishing the notices taxed as costs in the chancery proceeding to confirm; otherwise the court would have had no jurisdiction. Treating the case as the parties have treated it as a motion to tax as part of the costs in the suit to confirm 'the claim of appellant against appellee, we are of the opinion that under the statute the court should have adjudged the cost of the publication of the notices at the sum claimed by him in his response to the motion, which sum was the amount,authorized under the provisions of the statute supra.

But, if the statute authorizes the court to fix any amount it may deem reasonable under the amount prescribed by section 4921, as contended by the appellee, we are then of the opinion that the finding of the court as to what was a reasonable sum was against the clear preponderance of the evidence. For it was not unreasonable that appellant should charge for his services the regular and customary price charged and paid for such work. It would be unreasonable to expect or require appellant to receive less for his work than others engaged in similar business would have charged appellee for the same work under the same circumstances. Yet, according to the clear preponderance of the evidence, that is what the decree of the chancellor does. For, judging by the record, a great majority of the publishers would have charged the same as appellant.

In the absence of any-express contract, appellees must be held to have impliedly agreed, when it requested appellant to do the work for it, that it would pay the regular and usual price. The evidence tends strongly to show that appellee knew from previous transactions with appellant what the price would be and made no objections to it. The decree is reversed and remanded with directions to enter a decree taxing the cost of the publication of the notices at the sum of $1,148, with interest on same at 6 per cent, from December 17, 1907.