4.

building it was occupying to prevent a materialman from filing a lien was not ultra vires.

CORPORATIONS - ULTRA VIRES CONTRACTS - WHEN ENFORCED.When an ultra vires contract entered into by a corporation has been fully performed by the other party, and the corporation has had the benefit thereof, the contract is binding on the corporation.

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge; affirmed.

Richard M. Mann, for appellant.

1. The verdict of the jury was contrary to the evidence, and appellant's requested peremptory instruction should have been given. The testimony shows that there was no oral understanding on any different terms than that disclosed by the correspondence; the lien was not waived on account of any oral understanding and the court properly instructed the jury in No. 4 that the agreement must be in writing. This was an exclusion of testimony of an oral understanding. Correspondence evidencing a meeting of minds does not constitute a contract. 166 S. W. 533; 112 Ark. 380. If we concede that the correspondence constituted a contract to guarantee the payment of any amount, it was only such an amount as could "be established against Harrison for material furnished on your job," or, in other words, for such an amount as could be proved a lien on the building. There is no proof that any of the material charged in the account of G. W. Harrison was delivered to or used in the work on the building. 84 Ark. 560; 105 S. W. 583. If there was any agreement, it was to guarantee the payment of a valid not a void lien. 222 S. W. 365.

Unless a valid claim was established against G. W. Harrison, appellant would not be liable. 126 Ark. 307. Appellant was a corporation, and has no authority to indorse paper or guaranty accounts except where some benefit accrues to the corporation; the waiver of a void lien is no benefit. 95 Ark. 368; 130 S. W. 162.

2. Appellant's motion to make G. W. Harrison defendant should have been sustained. The original contractor is a necessary party for the establishment of a mechanic's lien. 114 Ark. 464; 122 Id. 141.

3. The court erred in giving plaintiff's instruction No. 1, as (a) there was no testimony showing delivery at the premises; (b) mere proof of delivery of material without proof of the improvement by the use of material of a kind similar to that delivered would not authorize a verdict for plaintiff as directed in this instruction. It was in fact a peremptory instruction and should not have been given.

4. It was error to give plaintiff's instruction No. 2. It assumes as a fact that said material was used on the building and it is in conflict with appellant's instruction No. 4.

5. The court erred in modifying defendant's requested instructions 312 and 5.

Owens & Ehrman, for appellees.

The verdict and judgment were correct. (1) There was a binding contract for appellees' forbearance, and (2) no material error was committed by the court. The promise was an original undertaking and in no sense a guaranty. 134 Ark. 543; 204 S. W. 418. There was a new and original consideration. 45 Ark. 67; 102 Id. 407. It was not within the statute of frauds, and was binding, though not in writing. 110 Ark. 325. A waiver of a legal right is sufficient consideration to support the promise of another. 106 Ark. 1 ; 151 S. W. 1001; 134 Ark. 543. See, also, 215 S. W. 653. The evidence clearly shows a promise, a definite sum in consideration of appellees' forbearance, and the instructions were most favorable to appellant, and the evidence fully sustains the verdict.

WOOD, J. Appellant employed one G. W. Harrison, a painting contractor, to do certain painting on its building where it conducted its business in the city of Little Rock. Harrison purchased the painting material from the appellees, the bill amounting in the aggregate to $154.95. The last item of the account was furnished on June 17, 1918. The appellees contemplated filing a lien for the material furnished on the building occupied by appellant and through their attorney on the 7th of September, 1918, wrote the owner of the property to that effect. The owner on that day requested the appellees not to file the lien, stating that he would get behind it and see that it was paid. The lien was prepared to be filed and on the 12th day of September the president of appellant requested the attorney for the appellees, who had prepared the papers for filing the lien, not to file the same, saying that he would pay the account. After that conversation appellees' attorney advised appellees of what the president of appellant had said, and thereafter on the same day wrote appellant and in the letter referred to the conversation and requested appellant to write a letter stating that it would guaranty the payment of appellees' claim. In reply to this letter, on the 13th, appellant wrote stating it would pay its part of the bill and would try to make Harrison come over with the money as soon as possible, that is, when he got his receipts and accounts adjusted with the appellees. In reply to this letter, on the 14th of September, appellees' attorney wrote that it would be satisfactory if appellant would guaranty the payment of the Parker claim, or whatever amount thereof may be established against Harrison. Appellant's president also called up over the telephone and said that he was sorry that he had not been as explicit as he should have been; that what he meant to say was that Becker Provision Company would pay every dollar that was owing for material on the job. The president of appellant in this conversation requested the appellees' attorney to undertake to collect the money for appellees from the contractor, Harrison. As a result of the promise made by the appellant to appellees' attorney, appellees refrained from filing the lien. At the time this promise was made appellees had five days remaining in which to file the lien. The attorney for the appellees had notified the president of appellant in a conversation with him that appellees had the right to file a lien on the property and that the time had not expired, and he (the president) had agreed to pay the account before the 18th of September.

On the 18th of September the appellees' attorney wrote the appellant, and, among other things, stated that he would be glad to assist appellant in any possible way in collecting from Harrison and concluded the letter by saying, "On the strength of your agreement guarantying our claim, which amounts to $151.50, I am advising my client not to file any lien, and I trust that it will be agreeable to get the matter closed up within a reasonable length of time." In answer to this letter the appellant, on September 19, wrote as follows: "Referring to your letter of September 18, I will be very glad if you would take the matter up with Mr. Harrison and Mr. Mick regarding the Parker account and see what you can do with it."

The president of the appellant testified that during the progress of the work by Harrison, he called up the appellees and inquired if it would be all right to pay Harrison the money due him, and appellees said it was all right. Witness then paid Harrison on June 15, 1918. He heard no more about it until September. Witness did not have any reason to believe that the appellees would make any claim against the appellant. Witness agreed with appellees' attorney that, if the lien was not filed, witness would pay the account to an extent. Witness did not think he ever told appellees' attorney that he would pay the account in any sense different from the letters. Witness only agreed to see that it was settled. Witness agreed to guaranty the account. He asked the appellees' attorney not to file any lien and stated to him that he would see that the account was settled. The articles of incorporation of the appellant showed that it was authorized, among other things, "to buy, own, sell and lease real estate."

The appellee instituted this action in the municipal court at Little Rock against the appellant and alleged in its complaint that it had a materialman's lien upon the property occupied by the appellant, and that on the 12th of September, 1918, the appellant agreed that if appellees would not file the lien upon the property occupied by appellant they would pay appellees' claim; that appellees relied upon appellant's agreement to pay the account, and as a result of such agreement did not file their lien and was prevented from doing so by virtue of the agreement; that the agreement was an original undertaking upon the appellant's part and that by reason of the agreement appellees had waived their legal right to file a lien. Appellees prayed judgment for the sum of $151.50. Judgment was rendered in favor of the appellees, plaintiffs below, in the municipal court, and the cause was appealed to the circuit court. In the circuit court the appellant moved to dismiss on the ground that G. W. Harrison, who, on motion of the defendant below, appellant here, had been made a party defendant, had obtained a judgment in his favor dismissing the cause of action as to him, from which the plaintiffs below, appellees here, had not appealed; that if any debt was due the appellees it was due primarily from G. W. Harrison, and that, since the municipal court had rendered judgment in his favor, from which the appellees had not appealed, there could be no liability against the appellant. The court overruled the motion to dismiss.

Testimony was adduced which developed the facts substantially as above set forth. The cause was submitted to the jury upon instructions, which we deem it unnecessary to set forth. The jury returned a verdict in favor of the appellees, and the court rendered a judgment in their favor, from which is this appeal.

The undisputed testimony shows that before the correspondence between the appellant and the appellees, be