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Wood, J.
At the September, 1904, term of the Polk Circuit Court the grand jury returned an indictment against appellant, charging him with murder in the first degree, and, having been granted a change of venue to the Sevier Circuit Court, he was, at the January term thereof, tried upon the plea of not guilty, convicted of murder in the second degree, and his punishment assessed at five years in the penitentiary. His motion for a new trial having been overruled, he appealed to this court, alleging numerous grounds for reversal of the judgment.
The. indictment was sufficient. The word “willingly” in the indictment instead of “willfully,” which latter word was doubtless intended, does not render the indictment insufficient. The utmost that can be claimed is that the word “willfully” was omitted. But the indictment, with the word “willfully” omitted, still charges that the defendant .“unlawfully, feloniously and of his malice aforethought and after deliberation and premeditation did kill and murder,” etc. These words include all the meaning that could be conveyed by the word “willfully.”
The record shows that “T. B. Holman, who was a juror and a member of the regular panel of the jury, during the impaneling of the jury in this action, was duly accepted as a juror herein by the State and the defendant, and the State was permitted by the court, over the objection and exception of the defendant, to excuse said T. B. Holman by peremptory challenge, ■ without stating or showing any 'cause therefor, after the said Holman had been accepted by the State and the defendant as a juror as aforesaid.” This record does not show that the State was permitted to exercise this peremptory challenge “after the jury had been made up,” as stated by counsel for appellant. As every presumption, in’ the absence of a showing to the contrary, must be indulged in favor of the regularity of the proceedings, we must presume that the State exercised this peremptory challenge before the juror was sworn in chief, as prescribed by section 2357, Kirby’s Digest. These are the only grounds for a new trial which the verdict could not cure, and these are not well taken. All the others relate to alleged errors of the court ■during the progress of .the trial, which do not affect the integrity •of the trial itself, and which, however egregious, the verdict of the jury upon the uncontradicted evidence has cured.
The undisputed facts show that appellant was guilty at least of murder in the second degree, and the jury gave him the lowest punishment for that offense. Therefore, no error in the introduction of the evidence complained of, the argument •of counsel, or the instructions of the court could be prejudicial to the rights of appellant. His own evidence shows that he was .an engineer on the Kansas City Southern Railroad, and on the night of .August 18, 1904, he returned from a trip on the road to his home at Mena, Ark. He arrived at his home about 1 .-25 .a. m., and found the deceased, Dr. Magness, in his house, under circumstances which indicated clearly that he was committing .adultery with his wife. The appellant chased the doctor, who was partially disrobed, from his house, failing, however, to catch him. The doctor left behind in the house of appellant a shirt, collar, cuff, necktie and hat, which afforded indisputable evidence of his identification. Besides, the unfaithful wife, when called upon by appellant for an explanation, frankly cbnfessed to appellant that Dr. Magness was the author of her ruin, and told her husband that Dr. Magness had first accomplished his purpose by administering to her on one occasion a narcotic, when she had called him in on a professional visit. Dr. Magness was the family physician and intimate friend of appellant. The appellant proceeds to tell how the betrayal of confidence by his family physician and friend and the disclosure of his wife’s infidelity so preyed upon his mind that he could neither eat nor sleep. He shows that during the remainder of the night of the awful discovery he could not sleep. In fact, he says he neither ate nor slept from the time he came home and caught the doctor in his house until he had killed him. He says his wife had told him that Dr. Magness had said that if he (appellant) ever came home and found him (Magness) in their house, he (Magness) would kill him (appellant). “Knowing,” he says, “that he had just threatened my life, and finding this murderous thing (pistol) in my house, I saw nothing but to go prepared, as I firmly believed that man would kill me. That is the reason I took the pistol, and went to the hardware store, and bought the cartridges.” He further portrays his feelings and subsequent conduct as follows:
“I could get no satisfaction from life, knowing that that man had robbed my home and taken from me everything that T had. I sought in some manner redress for the harm and disgrace that he brought upon me. I knew that he would kill me on sight. I looked for him' on the street the next day, but failed to find him. I was on the streets most of the day, but I did not see him anywhere, and feel sure that he was hiding from me. That night I could not sleep, and the next morning I went down town, and as I passed the drug store I saw his horse and' ■buggy hitched there in front, but did not see him. I went into-the drug store, passed the last opening between the counters on the lefthand side. I went behind these counters in an upright manner, as straight as I could walk,, and as I got about half way between the counters, Dr. Magness came out from behind the prescription case. He had a bottle of medicine in his hand, ■ and from his appearance he was reading the directions on the label. I started toward him, and when I got in about ten feet of him he saw me, and as he did so he went for his gun. Up to that time my right hand was by my side. When I saw him reach for his gun, I knew the time had arrived, and that one of us was going to die. I pulled my gun, and while he was looking at me I shot him in the lip. I shot him twice more, while he was standing upright, over the heart. At that he fell over on his back, and while he was falling he stumbled over a chair, which turned his right side toward, me while he was falling, and I shot him twice more. That man’s back was never to me at any moment of the shooting. I did not make any step toward him, nor did I shoot him while on the floor. I shot him to protect my life. He had ruined my home, and had threatened to kill me, and I believed that he would do it.”
This testimony reveals the settled purpose of appellant, from the time he found Dr. Magness in his home, to seek and take his life. About two days intervened, the appellant not wavering one moment in his determination. All the eyewitnesses save appellant show that appellant shot the deceased in the back, and when he was apparently unaware of appellant’s presence. The pathetic portrayal of the deplorable circumstances which destroyed appellant’s home and happiness, and caused him to take the life of the wicked author of it all, can but elicit the profound sympathy of every man who loves virtue and appreciates conjugal fidelity and domestic peace. But, nevertheless, the law, in its wisdom, defines the taking of human life under the circumstances as detailed by appellant as murder; and, so long as it is thus written, courts and jurors must obey its plain mandate.
Affirmed. | [
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Wood, J.
The only question presented by this record is, does the act of May 23, 1901 (Kirby’s Digest, § 5450), repeal the act of April 20, 1895 (Kirby’s Digest, § 5451), with reference to the impounding of stock in cities and towns?
The act of 1901 does not expressly repeal the act of 1895, and there is no repeal by necessary implication; for the two acts may stand together. There is no irreconcilable conflict between them. Th act of 1901 expressly confers upon cities and towns power to prevent the running at large of the animals designated within their corporate limits, and prescribed impounding, in general, as a method which they are authorized to adopt in order to carry out the purpose of preventing such animals from running at large. But in this act the Legislature does not undertake to prescribe “the manner of such impounding. .That had already been done by the act of 1895.
The Legislature "of 1901 did not take up the whole subject-matter; for, if so, it is hardly probable that they would, in such general terms, have repealed the former law. The Legislature must be presumed to have known the prior statute, and to have enacted with reference thereto. This being true, it is hardly probable, since they did not expressly repeal the prior law, that they intended to do so, and the language used does not have that effect. Repeals by implication are not favored.. There must be repugnance, or it must be clear that the whole subject-matter of the prior law is covered by the last enactment. Pratt v. Dudley, 73 Ark. 536; 26 Am. & Eng. Enc. Law, p. 721; English v. Oliver, 28 Ark. 317; McPherson v. State, 29 Ark. 225.
. The statutes, construed together, present the complete system for impounding the animals named. The last statute in express terms confers the power of impounding, and the prior limits and prescribes the exact manner of its exercise. It follows that the couft did not err, under the facts of this case, in giving the instruction asked for by the plaintiff and in refusing the prayer of appellant. There was no question raised in the case as to the right of the town to collect the expense in the taking care of the animals. The town was proceeding under an ordinance in conflict with sec. 5451, and it must fail.
Affirmed. | [
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Riddick, J.
This is a controversy between E. Adams and other creditors of W. T. Gibbs and his wife, Sidney Gibbs, over a piece of land which she claims as a homestead, and exempt from execution against her husband. The chancery court, to which the case was transferred, held that the evidence failed to show that the land was a homestead, and ordered the land sold to pay the debts. Mrs. Gibbs appealed.
Briefly stated, the evidence -shows that W. T. Gibbs owned about two acres and a half of land in the town of Malvern, .on which was his dwelling and homestead. A street of the town divided the land in two parts. On one side was the dwelling house and 1.40 acres of land; on the other about 1 acre- of land, on which was a wagon yard and barn and a small one-room house, formerly used in connection with the wagon yard as a camp house. These last named buildings were in a bad state of repair. Sometime in March, 1902, Gibbs and his wife sold the 1.40 acres of' land on which their dwelling was located. Gibbs also endeavored to sell the other acre. . Shortly after this sale Gibbs abandoned his wife and family, and left for parts unknown, but sent a message to his wife, directing her to move into the small house across-the road which had been used as a camp house. Mrs. Gibbs had a small amount of furniture and household goods carried across the street and placed in the camp house. The witnesses say that this furniture and goods was of little value. Some of them say that all of it was not worth over five dollars. After the attachments were levied Mrs. Gibbs made no attempt to occupy the house, and neither she nor any member of her family has ever lived in it. In fact, the witnesses say that the roof of the cabin was so full of holes, and the structure so dilapidated that it was not suited for a human habitation.
Now, a homestead in an incorporated town is, by our Constitution, limited to one acre. Art. 9, § 5. The burden was on the homestead claimant to show, either that this land across the street from the dwelling, and which she now claims, was a part of the homestead upon which she lived, or that it. had been impressed as a homestead after the sale of the other homestead. The mere fact that the land was separated from the dwelling house by a street is not conclusive of the question, but .that fact may be considered in connection with other evidence. There was over an acre of land across the street where the dwelling was located; and when that fact is considered, the evidence as to' the boundaries of this homestead-'is not clear and definite enough to show that the-acre in controversy is a part of the old homestead.
Gibbs, of course, had the right to establish a new homestead after the sale of the old homestead. In his absence his wife was the head of the family, and we may concede that her acts'done in his absence, but with his sanction, may be treated as his acts; but the evidence makes it very doubtful as to whether Mrs. Gibbs ever had any present intention of occupying this cabin on this lot as a home. She may have formed the intention of occupying it at some future time after it had been repaired and rendered fit for a habitation, but the intention to make it her home in the future did not protect it from the attachment lien. Tillar v. Bass, 57 Ark. 179.
It is true that the mere fact that "the cabin was small and in a dilapidated condition does not show that it was not a homestead. A thatched-roofed cabin, however. humble, even a canvass tent, may be a homestead, if -the owner actually dwells in it, and has his home there. But when a debtor sells his home and absconds, and his wife moves a few household gpods into a dilapidated cabin on land which creditors are about to seize, the court must consider all the circumstances to determine whether the claim of a homestead is made in good faith, and with' an intention to occupy it as a home, or whether it is only colorable and made to shield the land from creditors.
We have examined the evidence in this case, and, while there is room for a difference of opinion, we think that the evidence, taken as a whole, fails to show that the land claimed was a homestead., v
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Wood, J.
Appellant was convicted of murder in the second egree, and sentenced to nineteen years in the penitentiary.
1. The tenth ground of the motion for new trial alleges hat the jury, after being impaneled to try the cause, were ex posed to improper influences in this: “that the said jury was not at all times in charge of a specially sworn officer or in the presence of the court.” The bill of exceptions shows that, after a part of the evidence for the State had been submitted to the jury, and during the recess of the court, the special bailiff who had charge of the jury received word that a member of his family was sick, and thereupon he left the jury in charge of a regular deputy sheriff, who had not been specially sworn to take charge of the jury and to keep them from improper influences. There were a great many people in the court room where the jury were left. This was all in the absence of the judge and the defendant. Section 2390 of Kirby’s Digest is as follows: “The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and suffer no person to speak to or communicate with them on any subject connected with’ the trial, nor to do so themselves.”
It is within the discretion of the court, under the statute, "before the cause is submitted to the jury, to permit them to separate, or to keep them together. When the court decided to keep them together, that showed that such course was deemed necessary to secure the accused a fair trial. Having exercised the discretion to keep the jury together in charge of proper officers, the statutory requirements should have been complied with, in order to preserve the integrity of the trial. These provisions are designed to shield the jury from any extraneous influences that might prevent a fair and impartial trial. The purity of the trial is impeached prima facie by showing that the jury was- subjected to such influences, and the burden was at least cast upon the State to show that no prejudice in fact resulted. Maclin v. State, 44 Ark. 115; Vaughan v. State, 57 Ark. 1.
2. Lee Newman, a witness on behalf of the State, testified that he did not see defendant cut deceased’s throat, but that he told George Pruett and George Burns that he did. Over the objection of appellant," witnesses George Pruett and George Burns were permitted to testify in substance that Lee Newman told them that he saw defendant cut deceased’s throat. This testimony of Pruett and Burns was hearsay, and therefore incompetent. It was not in contradiction of anything witness Newman had testi fied to, and was not therefore admissible to impeach such witness. No proper foundation had been laid for his impeachment. By permitting this testimony the State was allowed to show indirectly what she could not prove directly. The testimony was improper and erroneous. But its prejudicial effect was probably removed by an instruction which was given by the court at the instance of appellant. For this reason we would not reverse for this error alone. The error in this regard will not likely be repeated on another trial. For the error in not granting new trial for the reason set up in the tenth ground of the motion therefor, the judgment is reversed, and the cause is remanded for-that purpose. | [
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Battle, J.
This action was instituted by Walter Pratt & Co. against S. M. Duffie & Co. upon the following written contract:
“Walter Pratt & Co. hereby guaranty that the purchaser’s gross profit from the sale of the perfumery and toilet preparations bought under this order and' hereafter purchased of said firm will not be less than 33 >1-3 per cent, of the amount of this order each yeaV for a period of three years from date of invoice, and the said Walter Pratt & Co. further agree and hold themselves bound at the end of each year, if the gross profits do not amount to 33 1-3 per cent, of the amount of this order for that year, to pay to the purchaser a sufficient sum of money by New York or Chicago draft to make up the deficiency, if there be any, or to buy back at the purchase price at the expiration of this agreement. all goods remaining on hand at that time. The foregoing is conditional on the purchaser keeping the goods tastefully displayed in his store in the show case furnished by us for that purpose, purchasing from us at least semi-annually sufficient goods to keep this department complete and up to the amount of this order, making settlement for all goods purchased of us as provided in order, sending us by registered mail at the end of each year a complete and accurate list of all goods sold, with a correct inventory of all goods on hand at that time, allowing no article to go for a "less profit than is usually made on this class of goods, and using reasonable diligence in promoting the sale of these goods. Goods shipped to purchaser and not on hand or returned will be considered sold. Bond to be filed with Security Bank covering all agreements in the order.
“Exchange — Any goods contained in this order may be returned to us for exchange at any time. To protect us from unreasonable demands for exchange, we require that goods so returned must be accompanied by a new order for goods of an equal value. We pay freight to factory on goods returned for exchange.
“Warranty- — All goods are warranted to be same in quality, material and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination, and if said goods fail to comply with said warranty he shall within five days from date of arrival at destination give detailed written notice of such failure by registered letter to Walter Pratt & Co., Chicago, 111.; otherwise, all warranty of said goods is waived. Goods cannot be returned for credit on account, except as herein provided.
“We deliver all goods to purchaser by delivering them to the transportation company herein specified, purchaser to pay all transportation charges.
“The following is the list of goods contained in this order:
Per
Doz. Ain’t. R’t’l.
4 Doz. Handkerchief Extracts, assorted, on easel... $ .75 $ 3.00 $ .10
2 “ Handkerchief Extracts, assorted, No. 745... 2.00 4.00 .25
3 “ Handkerchief Extracts, assorted, No. 755... 4.00 12.00 .50
4 “ Sachet Powders ...........................75 3.00 .10
2 “ Persian Violet Perfume ...................40 .80 . .05
1 “ Princess Toilet Water, No. 237............ 4.00 4.00 .50
Y.í “ Princess Toilet Water, No. 247............ 4.00 2.00 .75
1 “ Farina Cologne .......... 4.00 4.00 .50
2 Doz Velvet Talcum Powder.................... •75 x-So .10
i “ Roger’s Hair Grower ..................... 6.00 6.00 •75
1 “ Benzo Plazel Cream ...................... 2.00 2.00 •25
2 “ Mentholated Cream ....................... 4.00 8.00 •50
i “ Invisible Toilet Powder (white)........... 2.00 2.00 .25
i “ Invisible Toilet Powder (flesh)............ i “ Pratt’s Velvette ........................... 2.00 6.00 2.00 6.00 •25 •75
i “ Pratt’s Dentifrice ......................... 2.00 2.00 .25
I “ Pratt’s Tooth Powder...................... 1.6s 1.65 •25
3 “ Rosalana ................................. 4-25 12.75 •So
1 “ Princess Tissue Developer ................ 6.23 6.25 •75
2 “ Pratt’s Toilet Soap ....................... ■75 1.50 .10
2 “ Quinine Hair Tonic ...................... I “ Foot Relief ............................... 6.00 2.00 12.00 2.00 •75 •25
i “ Invisible Complexion Powder (white)..... 4.00 4.00 •So
I “ Invisible Complexion Powder (flesh)...... 4.00 4.00 •50
1 “ Invisible Complexion Powder (Brunette).. 4.00 4.00 •So
x “ Cherry Lip Pomade ...................... 2.00 2.00 •25
2 “ Pratt’s Shampoo Powder ................. 2.00 4.00 .25
y2 “ Bulk Sachet Powder, violet................ 3-oo x.So
y2 “ Bulk Sachet Powder,, rose................. 3-oo 1.50
y2 “ Bulk Sachet Powder, heliotrope............ 3-oo 1.50
z/2 “ Crushed Sachet Powder, carnation......... 3-oo 1.50
y2 “ Crushed Violet Handk’f Extract, No. 923... 4.00 2.00 .50
y2 “ Crushed Violet Handk’f Extract, No. 946... 6.00 3-oo •75
y2 “ Persian Rose Handk’f Extract, No. 933..... 4.00 2.00 •50
y2 “ Persian Rose Handk’f Extract, No. 956..... 6.00 3- oo •75
1 “ Pearl Toilet Powder ..................... •75 •75 .10
1 Bottle Pink Bulk Perfume, White Rose ......... 4.00 4.00
1 “ Pink Bulk Perfume, White Lilac ........ 4.00 4.00
i “ Pink Bulk Perfume, Frangipanni ......... 4.00 4.00
1 “ Pink Bulk Perfume, Snow Lily .......... 4.00 4.00
1 “ Pink Bulk Perfume, Jockey Club ........ 4.00 4.00
i “ Pink Bulk Perfume, Heliotrope .......... 4.00 4.00
i “ Pink Bulk Perfume, Blue Gentian ....... 4.00 4.00
1 “ Pink Bulk Perfume, Jasmine ............. 4.00 4.00
1 “ Pink Bulk Perfume, Red Carnation ...... 4.00 4- 00
1 “ Pink Bulk Perfume, Crab Apple Blossom. 4.00 4.00
1 “ Pink Bulk Perfume, Swiss Violet ........ 4.00 4.00
1 “ Pink Bulk Perfume, Wild Thorn Blossom. 4.00 4.00
1 “ Pink Bulk Perfume, Crushed Violets 6.00 6.00
i “ Pink Bulk Perfume, Persian Rose ....... 6.00 6.00
Total amount of this order $194.20
1 Atomizer.
1500 Circulars advertising this line of goods.
1500 Circulars describing the pictures going with the Perpetual Advertising System.
Name and address of purchaser printed on above circulars.
3 Bottles of Perfumery, retail price 50c each, to pay for distributing circulars.
1 Graduate.
6 Portfolio, No. 5607, containing 10 sample pictures belonging to the Advertising System.
100 Booklets, “Suggestions.”
8 Sterling Silver Thimbles, assorted sizes.
97 Envelopes containing advertising and drafts good for one Sterling Silver Thimble each, mailed by Walter Pratt & Co. to a list of
97 names furnished by the purchaser.
1 Walter Pratt & Co. Regulation Oak Show Case, wood doors and wood shelves. Size 21 in. wide, 48 in. long, and 40 in. high.
“Terms — Five per cent, fifteen days from date of invoice, or two, four and six and eight months net, divided into four equal payments, each for one-fourth of the amount of this order. When long terms of credit are taken, account must be closed by notes without interest, due in two, four, six and eight months from date of invoice. Accounts not closed as provided above will be subject to sight draft without further notice. Separate verbal or written agreements with salesmen are not binding upon Walter Pratt & Co. All conditions of sale must be shown on this order.
“Positively no goods on commission or open account. This order not subject to countermand.
“Hot Springs, Ark. Feb. 27, 1902.
“Walter Pratt & Co., Chicago, 111. — Gentlemen: Please ship us, care of Burlington, Cedar Rapids & Northern Ry., the assortment of goods listed above, like samples shown us by your salesman, at the prices specified and in accordance with all the terms above specified, which we have carefully read and find to be complete and satisfactory. We have no agreement or understanding with salesman except as printed or written on this order. Receipt of duplicates of this order from youi salesman is hereby acknowledged.
“Name of purchaser, S. M. Duffie & Co.
“Walter Pratt & Co. •
“By M. Sankey, Salesman.”
In making the foregoing contract, plaintiffs were represented by a traveling salesman, who sold the goods referred to in the contract to the defendants by samples exhibited to them at the time the order was made. The goods were shipped, and were received by the defendants on the 9th of March, 1902. On the 17th of the same month they notified the plaintiffs of the receipt. Defendants tested the White Lilac perfume, which was sold to them at the price of $4, and, on a day subsequent to the 17th of March, 1902, refused to accept the goods, because the lilac perfume did not correspond to the sample by which it was sold to them. They did not test any of the remainder of the goods by the samples by which the same were sold.
According to the terms of the contract, the defendants waived the warranty and accepted the goods, and thereby became bound to pay for them, having failed to give notice of the failure of the goods to comply with the warranty within five days after, they (defendants) received them. Pratt v. Meyer, 75 Ark. 206.
But the defendants asked the court to instruct the jury as follows: “4. The contract between plaintiffs and defendants is an entire contract; and defendants were not required to accept any of said goods, if any material part of the goods shipped under said contract were different and inferior in quality from the goods ordered.” '
The court refused to instruct the jury as asked, but instructed them as follows:
“The contract shows that several articles of goods were included in one and the same order, and that a price was fixed in said contract for each separate article. I therefore .instruct you that said contract is not an entire, hut a severable contract; and if any of said articles correspond with the samples, then defendants were bound to accept each of said articles as cor responded with samples, and are liable to plaintiffs for the value thereof, as the same were fixed in said contract.
“If you find from the evidence that the defendants, within a reasonable time after the receipt of the goods mentioned in said contract, examined a bottle of lilac mentioned in said contract as bulk perfume, and upon such examination it was found that said bottle of lilac did not correspond with the sample, then defendants had the right to refuse to accept said bottle of lilac.
“If defendants did not examine, any of said goods except a bottle of lilac, then they are bound to have accepted all of said goods which they did not examine, and are liable to plaintiffs for the value thereof, as the same are fixed in said contract.
“If you find from the evidence that the bottle of lilac mentioned in said contract as bulk perfume did not correspond with the sample, then you will find that that is evidence tending to show that all the bulk perfume mentioned in said contract did not correspond.with the samples; and if you find that the bulk perfume mentioned in said contract did not correspond with the samples, then defendants had the right to refuse to accept said bulk perfume; and if they did refuse to accept the same, they are not liable to plaintiff therefor.”
The jury returned a verdict for plaintiffs in the sum of $134.20. They evidently deducted from the amount of the order $60, the aggregate price for which the “bulk perfumes” sold. The defendants appealed.
Assuming that the question as to the nature of the contract was properly raised in the trial court, was the contract sued on entire or severable ?•
Mr. Parsons, in his work on the Law of Contracts, says: “Any contract may consist of many parts; and these may be considered as parts of one whole, or as so many distinct contracts entered into at one time, and expressed in the same instrument, but’not thereby made one contract. No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable.” 2 Parsons on-Contracts (9th Ed.), bottom page 672.
Judged by this citation, the contract in this case is severable. The list of goods embraced in the order sued upon consists of fifty items, with the price for which each sold placed opposite the same, amounting in the aggregate to $194.20. The price of no single item exceeds $12.75. Each item was sold by a sample, and was warranted to be the same in quality, material and in all other respects as sample; the contract as to each article, in that respect, being different; and the purchaser was furnished with a sample to enable him to determine whether the goods shipped were such as he agreed to buy. The acceptance of each depended upon a distinct test; and the price to be paid for each was stipulated. According to the general rule in such cases, the contract is several. Lucesco Oil Company v. Brewer, 66 Pa., St. 351; Wooten v. Walters, 110 N. C. 251, 256; Beach, Contracts, § 731; Clark, Contracts (2d Ed.), page 453.
The guaranty of profits set out in the paper sued on does not affect the severalty of the contract of sale. It applied to all the -goods purchased in the same year, and was to continue for three years. The sale was in no way dependent on it.
Appellants have no right to complain of the judgment against them.
Affirmed. | [
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Riddick, J.,
' (after stating the facts.) This is an application by attorneys, who brought an action to recover a debt against an insolvent bank and secured the appointment of a receiver, for allowance of a fee fop such services. The action was brought in the name of the Little Rock Vehicle & Implement Company, and the attorneys were acting'for this company and one or two other creditors of the bank. The receiver collected assets of the bank amounting to $185,000, sufficient to pay all the creditors of the bank, and the petitioners allege that the petition filed by them was in the interest of all the creditors, and that they are entitled to have compensation for their services allowed out of the funds in the hands of the receiver.
Our statute forbids an insolvent corporation from giving preference to any of its creditors, and provides that, “any creditor or stockholder of any insolvent corporation may institute proceedings in the chancery court for the winding up of the affairs of such corporations, and upon such application the court shall take charge of all the assets of such corporation and distribute them equally among thé creditors, after paying the wages and salaries due laborers and employees.” Kirby’s Digest, § § 949, 950. A consideration of the statute shows that the action brought by the plaintiff to secure the appointment of a of a receiver and wind up the affairs of this insolvent bank was for the benefit of all the creditors of the bank. For that reason it is just and equitable that the cost of. securing the receiver, including reasonable attorney’s fees, shall be borne by all the creditors, in proportion to the amount realized by them. Otherwise, the creditor who brought the action, having to bear all the cost of the attorney’s fees, would, in the end, secure a less proportion of his debt than the other creditors. To avoid this inequality, it is customary and usual for the court in such cases to make him an allowance sufficient to cover reasonable charges for his counsel. This question came before 'the Supreme Court of Massachusetts in a recent case where the plaintiff had procured the appointment of a receiver, and the court sustained the allowance, and said that “when many persons have a common interest in a fund, and one of them for the benefit of all brings a suit for its preservation, and retains counsel at his own .cost, a court of equity will order a reasonable amount to be paid to him out of the funds in the hands of the receiver in reimbursement of his outlay.” Davis v. Bay State League, 158 Mass. 434; Tompkins Co. v. Chester Mills, 90 Fed. 39; Burden Central Sugar Refining Co. v. Perris Sugar Mfg. Co., 87 Fed. 810; Trustees v. Greenough, 105 U. S. 527.
The main purpose of such an allowance, however, is not to benefit the attorney, but for the benefit of his client and to secure equality and justice between the creditors. For that reason, we on first thought were inclined to the opinion that the application for such an allowance should be made by the creditor, and not by the attorney, and that for that reason this petition was properly dismissed. But on examination of the case we find that the ■ petition can be made either by the creditor who employed counsel or by the attorneys who performed the services. Trustees v. Greenough, 105 U. S. 527.
So, treating the petition as properly brought, we have next to consider the proper basis for determining the amount of such fees.
Before proceeding to that point, it is proper to observe that this allowance does not come out of the bank, but from the creditors in proportion to the sums received by them from the receiver. It is alleged that the funds of the bank in the hands of the receiver are sufficient to pay all the creditors in full; and when the bank has paid its creditors in full, it cannot be taxed any further for attorney’s fees. The cost which a successful litigant may recover of his adversary in this State does not include such fees.
The petitioners in the action brought by them represented only their own clients, though the action brought was equally beneficial to all creditors of the bank. If their services had resulted in securing or producing a fund for the benefit of the creditors, then the amount of this fund might well be the main element to be considered in fixing the amount of such fee; but no such fund was produced here. The attorneys, acting for two or three creditors, filed a complaint against an insolvent bank, asking for a receiver. The bank admitted insolvency, a receiver was appointed, and here the services of the attorneys ended. The insolvency of the bank resulted from a large loan made by the bank to a party who never repaid it. A mistake was made, but there is no charge of any dishonesty or fraud on the part of the bank officials, or that the remaining assets were in danger of being squandered; and for this reason we, as before stated, do not think that, these assets were produced or secured by the action against the bank. In fixing the amount to be allowed, the extent of the assets that came to the hands of the.receiver may, no doubt, be considered; but the object of the allowance, as before stated, is not to give the attorneys a larger fee than they might .have re covered from their own clients, but to shift the burden of the charge from them and place it upon the creditors of the bank generally. The inquiry then is, what would have been a reasonable charge against their own clients for the services performed ? No witness testified on this point, though Mr. Bradshaw said that he did not intend to charge his client a very large fee. For this reason, we are of the opinion that the sum demanded is excessive, but we are of the opinion that it is better to refer the matter to the learned chancellor before whom the proceedings were had,, and allow him to make the allowance against the creditors generally in such sum as to him may seem proper.
Judgment of dismissal reversed, and cause remanded with an order that a reasonable allowance be made to counsel sufficient to cover costs of services actually performed. | [
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Hile, C. J.
Boon had a policy of insurance in appellant’s company on his store building, and the adjoining building burned, injuring the intervening brick wall, the roof and front of his building. The adjuster of the insurance company and Boon failed to agree on the amount of damage, and the company invoked the arbitration clause of the policy. The clause was in the usual form of such clauses in standard Are insurance policies, providing that each party select a competent and disinterested appraiser, and the appraisers to select a competent and disinterested umpire. The appraisers were required to estimate the loss, stating separately the sound value and damage, and, failing to agree, to submit their differences to the umpire, and the .award of any two in writing should be binding. The appraisers were selected, and they selected an umpire.
The preponderance of the evidence establishes the facts to be that the appraisers radically disagreed, one demanding an estimate based on a new wall, and the other based on a slight damage to the wall. The appraiser selected by the insurance company then called in the umpire, and it seems that he and the appraiser for the company differed more radically than he and the other appraiser. Then the appraiser for the insurance company withdrew, and the umpire and the other appraiser made the award in conformity to the policy. This suit was brought on the award, and the company had it transferred to chancery on allegations impeaching the award and seeking to set it aside. The case was tried by the chancellor, and there is much conflict in the evidence; but, as stated, a preponderance sustáins the facts briefly outlined above, and which version comes accredited by the chancellor.
1. Objections are made to much testimony: to some because elicited by leading questions; to other because opinion evidence was admitted from witnesses not properly qualified as experts; and for some other reasons. The case was heard before the chancellor, and he is presumed to have disregarded all incompetent testimony ; and on trial de novo here the case is weighed solely on the competent testimony. Hence there is no profit in discussing these objections.
2. It is insisted that the appraisers selected by the insured did not estimate on the basis required by the policy, and thereby departed from the terms of the submission.
The point turned on whether the old wall was to be treated as worthless, or an estimate made on its damaged condition. There is much evidence to sustain the appraiser in his opinion that it would have to be taken down, and the value of it would not compensate the expense of tearing it down. Even if wrong in his opinion on that subject, there is not sufficient evidence against it to set aside the award as founded in mistake. Judge Sanborn thus stated the rule:
“An agreement of appraisal is a contract. Appraisers who make an award under such an agreement are presumed to have ácted in accordance with the law and the terms of the contract, and the burden of proof is on those who attack their award to establish the contrary by convincing evidence. Every reasonable intendment and presumption is in favor of the award, and it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or of the misfeasance or malfeasance of the appraisers.” Bernard v. Lancashire Ins. Co., 41 C. C. A. 170.
The evidence satisfies the court, as it did the chancellor, that the award was fairly made. Certainly, it cannot be said that it clearly appears that it was the result of fraud, mistake, misfeasance or malfeasance of the appraiser or the umpire. The evidence against it on material questions is that of the appraiser selected by the company and the adjuster, and they are contradicted by the other appraiser and umpire and other testimony strongly sustaining the latter.
3. There is much said about the bias and partisanship of the appraisers, but no evidence is apparent to sustain a disqualification of them on this account, within the rule on that subject recently announced by this court in National Fire Ins. Co. v. O’Bryan, 75 Ark. 198.
4. It is contended that the arbitration was dissolved by the appraisers, and the award made by the umpire and one appraiser, acting as appraisers after the appraisers had agreed to dissolve, and that this was contrary to the terms of submission, which provided for the umpire to only act when the appraisers submitted their differences to him.
The evidence satisfies the court that the appraiser selected • by the insurance company called upon the umpire to settle the differences, and, finding him more difficult to agree with than the appraiser, then withdrew. There is some evidence that the withdrawal was under the direction of the adjuster, who learned of the situation of affairs. That is not important here; for it is thoroughly settled that an arbitration cannot be defeated, after it is properly submitted, by the withdrawal of one of the appraisers during the investigation. Ostr. Fire Ins. § 291; Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137.
Other questions are discussed as to the revocation of the arbitration by the withdrawal of the appraiser on account of the arbitrary action of the other appraiser, and other questions based on the theory of appellant that the appraiser acted without the scope of the submission and improperly. But the court is satisfied from the evidence that the appraisers’ conduct was not within any of the grounds for impeaching the ¿ward; hence it is unnecessary to pursue the subject further. There was sufficient evidence to sustain the award as to the value. Even if it was not an accurate valuation, it would not be open to attack unless so grossly erroneous as to indicate bad faith or other grounds to set aside the award.
The judgment is affirmed.
Mr. Justice McCurroch disqualified and not participating. | [
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McCulloch, J.
This is an action brought by appellee, Merit Pants Company, against appellants, H. M. Waters and wife, in which- appellee seeks to subject certain lands to the paynjent of a debt in the sum of $380.75 due appellee by said H. M. Waters. It is alleged that H. M. Waters, being insolvent and indebted to appellee, purchased the land in controversy from one McClure, and, with intent to defraud his creditors, caused the title to be conveyed to his wife. The proof in the case consisted only of the testimony of McClure and Mrs. Waters, and it appears therefrom that McClure sold the land to H. M. Waters at a fixed price of $300, which was paid by delivery to McClure of a lot of cattle and a small stock of merchandise, a remnant of the stock carried by Waters as a merchant, and that, at the request of PI. M. Waters, McClure made the deed to his wife. McClure •testified that the cattle were taken at a valuation of either $64 or $67. Mrs. Waters testified the value of the cattle were fixed at $80, and that they were her separate property. She also testified that her husband owed her about $1,000 for a lot of cattle and horses which she had sold him when they were married twenty years previously, and for proceeds of sale of her farm thirteen years previously; that no note or other evidence of the indebtedness was executed by the husband, and that she had given him credit on the debt for $220, the estimated value of the stock of merchandise used in payment of this tract of land. The chancellor found that the conveyance to Mrs. Waters was fraudulent, but that her property, the cattle, of the value of $80, had been used in the purchase, and decreed a lien in favor of appellee for $220, the value of the stock of merchandise. The defendants appealed.
It is settled by the decisions of this court that an insolvent husband, when justly indebted to his wife, may, without fraud, prefer her claim to that of other creditors, and make valid appropriation of his property to pay it, even though the result be to deprive other creditors of the means to satisfy their claims. But such transactions between husband and wife are viewed by the courts with suspicion, and the perfect good faith of the transaction must be established by proof. Where the wife asserts, as a consideration for conveyance of his property to her, a claim of debt against her insolvent husband for money loaned to him many years previous, no note or other written evidence of an agreement to repay being shown to have been executed, and the alleged debt having become stale by long lapse of time, as in this case, her bare statement should be corroborated by some other evidence of the existnce of a valid debt, before the courts can accept it in support of the conveyance. Bor a discussion of the law on this subject reference is made to the recent case of Davis v. Yonge, 74 Ark. 161; and nothing need be added here on the subject. See also, Godfrey v. Herring, 74 Ark. 186; Driggs v. Norwood, 50 Ark. 42. We think the evidence in this case is far from satisfactory as to the existence of a valid debt, and that the chancellor was right in his conclusion.
Appellants complain that the court erred in allowing witness McClure to testify that, of the merchandise received from Waters, about one hundred and twenty-five dollars’ worth bore ■.the marks and name of appellee, thus tending to show that these goods were bought by Waters from appellee. The witness was ■allowed to examine the itemized account sued on, and after •examination state that he recognized the number of suits of ■clothes and the prices thereof on the account as the same he purchased from Waters. The decree was not dependent on this .testimony for sufficient evidence to support it; and, if it be held to be incompetent, the presumption must be indulged that the •chancellor was not controlled by it in reaching his conclusion. A ■chancery case will not be reversed for the failure to exclude improper testimony where, without it, the decree is supported by a preponderance of the legal testimony. Niagara Fire Ins. Co. v. Boon, ante p. 153; Allen v. Ozark Land, Co., 55 Ark. 549.
Counsel for appellant also contends that the proof of insolvency is not sufficient; but we think that fact is satisfactorily ■established by the proof on the subject, in connection with the undenied allegation of insolvency at the time of the commencement of this suit.
Decree affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a decree ordering the specific performance of a contract to sell and convey land. The'evidence is amply sufficient to support the finding of the chancellor that the plaintiff did contract to sell this land to the plaintiff, and that the lumber company, which afterwards bought the land from her, had notice of his purchase, at the time it purchased. But the contract of the plaintiff with Mrs. Cross was not in writing, and the main question in the case is whether the facts in proof are such as to take the contract out of the statute of frauds. The plaintiff paid fifty dollars on the purchase when the contract was made, and he took immediate possession of the land, and commenced to clear and improve the land. Plaintiff, it is true, was already in possession of the cleared land, as a tenant, but there was only an acre or two of this cleared land, and the plaintiff had no control of the uncleared land until his purchase. If the only possession shown had been that he continued to remain in possession of the land that he already held as tenant, that would not have been sufficient: but the evidence shows that he not only held the cleared land, but, after the purchase and in pursuance of his contract, plaintiff took possession of the uncleared land, and commenced to make improvements upon the same by clearing the same and getting it ready for cultivation. He had no authority as tenant to cut timber and clear the land, and these acts of plaintiff show that he had taken possession of the land as owner thereof. As the evidence shows that this was done under the contract of purchase, we think that this, in connection with the part payment of the price, was sufficient to take the case out of the statute, and to authorize the decree rendered by the court. Morrison v. Peay, 21 Ark. no; Pomeroy, Contracts, § 115.
By some oversight the decree of the court made no reference to the deed of Mrs. Cross to the Pearson Lumber Company, but, unless this deed is canceled, it is evident that a deed from Mrs. Cross to the plaintiff will be of no avail. As this was probably a mere oversight, the case, if plaintiff desires, may be remanded so that the decree can be corrected in that respect; but if that is done, the additional cost must be paid by the plaintiff. In other respects the decree is affirmed. | [
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Riddick, J.
This was an action by A. K. Shannon against the railway company to recover damages for the loss of two cows and a calf killed by the train of the company. He recovered judgment for $45. The accident happened on a dark and rainy night. The engineer testified that the train consisted of an engine, a baggage car and passenger coach. He said that he was keep ing a careful lookout, and discovered the cattle when they were about 90 or 100 feet ahead; that the headlight on the locomotive was a common oil headlight, and on such a night did not light up the track for more than 90 or 100 feet; and that he could not have discovered the cattle sooner than he did. He further testified that the train was running about fifteen or eighteen miles an hour, and that, though there were only two cars attached to the engine, he could not have stopped under about 200 yards. But a witness for plaintiff testified that, though he had never ridden on an engine, he knew how far a common headlight would light up a track; that he had stood by the side of engines on rainy nights, and in that position could see the track for 200 yards ahead. While this evidence was not very satisfactory, we think it was competent, and it tended to show that the headlight on the engine of defendant, which only gave light for 90 or 100 feet ahead, was of a very inferior kind, and that the company was guilty of negligence in using such a light. For this reason, we think it cannot be said that the verdict is without evidence to support it.
One of the instructions given by the court, if it stood alone, might be misleading; but, when the whole charge is considered, we are of the opinion that it was substantially correct.
Judgment affirmed. | [
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Hirr, C. J.
Godbold under his own testimony cannot recover as a broker. Mr. Mechem thus states the reason: “Like other agents in whom trust and confidence are reposed, the broker owes to his principal the utmost good faith and loyalty to his interests. * * * It is his duty, therefore, to fully and freely
disclose to his principal at all times the fact of any interest of his own or of another client which may be antagonistic to the interests of his principal, and he will not be permitted to take advantage of the situation to make gain for himself by forestalling or undermining his principal.” Mechem on Agency, § 952. It is unquestionably good law, as well as good morals, that the unfaithful broker who seeks a profit from the transaction other than the commission for his brokerage cannot recover of his principal for any commissions. Wordsworth v. Adams, 138 U. S. 380; Shaeffer v. Blair, 149 U. S. 248; Mechem, Agency, § § 952, 972, and numerous authorities cited. This necessarily reverses the case, and there is another matter which calls for its dismissal. Either the sale as claimed by Godbold was through him as broker or to him individually. If the former, he cannot recover on account of his failure to disclose to his principal that he had sold to his, the principal’s, advantage at $1.00 per ton and commissions above what the principal asked; and if the latter, he cannot recover because he is precluded by the statute of frauds. Kirby’s Digest, § 3656.
It is true that the statute of frauds is not pleaded in this action; there is no room for it, as the action is for broker’s commissions ; but if the action is sought to be maintained on the other theory, the facts as stated by Godbold show the contract to be void. The judgment is reversed, and cause dismissed;
•BaTTrb, J., absent. | [
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Hire, C. J.
In Jackson County there were seven brothers, named Graham, engaged in merchantile and farming business, and all in prosperous condition; and it developed in argument of the case at bar that they were each over six feet tall — fine specimens of Arkansas manhood. Mr. H. R. Remmel, the general manager in the State of one of the large insurance companies, knowing them, and recognizing the advantage to his company of securing a policy on the joint lives of these gentlemen, undertook personally to secure such a policy, and to that end visited them. The result was, an application was signed for a $35,000 policy on the lives of the seven Grahams, and a note for $4,753.70, payable to Mr. Remmel, was executed and delivered to him. Rater, a ten-year distribution plan for $35,000 was sent to the Grahams. It was not accepted, and negotiations were had between Mr. Remmel and some of them looking to the securing of a different policy than the one sent. Mr. Remmel tried to get the one desired, and failed, and tendered a policy according to what he claims was the contract when the note was executed, and, on the refusal 'of the Grahams to accept it, he brought suit on the note.
The testimony of Mr. Remmel is to the effect that an absolute agreement was reached when the application was signed and the note executed, and the policy tendered as in full and complete fulfillment of the contract as called for in the note, which will be set out in the statements of facts by the Reporter. Mr. Remmel was supported in his statements by a letter written to him during the negotiations for the different policy, in which Graham Brothers stated : “Will say we are pleased with contract, and have no objection whatever, but would like to have it changed the five-year distribution plan, as we have changed our minds on taking it on the plan applied for.” They explain this letter by saying that it was dictated by Mr. Remmel himself to their attorney. This is admitted; and they further say it was written merely to facilitate Mr. Remmel in his effort to obtain from his company the policy they desired.
The court excluded evidence offered by the appellants contradictory of Mr. Remmel’s as to the execution of the note. The record reads as follows:
“The defendants thereupon offered to prove by Thomas Graham that the plaintiff requested that they execute the note; that it might be necessary to attach the note to the application to show their good faith, but would not be binding upon them, except that, if the policy when it arrived was satisfactory, and • they accepted it, the note would be binding; otherwise it would be void. This was a condition which went with its execution. The evidence so offered having been ruled out, defendants excepted.”
Several other Grahams were offered on the same point. The court directed a verdict for Mr. Remmel on the note sued upon, judgment was rendered accordingly, and the Grahams have appealed.
The appellee relies upon Findley v. Means, 71 Ark. 289, and the authorities therein cited, to sustain the action of the circuit court in excluding this testimony. The syllabus of that case is as follows: “A deed, note or other instrument of writing delivered, to the grantee or obligee to take effect when certain conditions are performed becomes operative and binding from the time of delivery, though the conditions be not fulfilled.” Thfe authorities cited are Pope v. Latham, 1 Ark. 66; Inglish v. Breneman, 5 Ark. 377; Scott v. State Bank, 9 Ark. 36; Chandler v. Chandler, 21 Ark. 95; Campbell v. Jones, 52 Ark. 493. With the exception of Chandler v. Chandler, all these cases were cases of escrow, where the point decided was that there could be no delivery in escrow to the obligee of a bond, note or other written instrument. Chandler v. Chandler holds that where a bond or other writing is delivered conditionally to the obligee himself, it is operative and binding from the time of the delivery, though the conditions be never performed; and to the same ■effect is the ruling in Findley v. Means. The technical character of an escrow is not mentioned in these two cases. Where conditions subsequent are to be performed in order to render the note or bond operative, and when operative the written instrument is expressive of the entire contract, then it must be delivered to a third person, or the delivery to the obligee in' escrow will be a good delivery, and the instrument cannot be contradicted by parol varying its terms. It is a completed contract, subject to conditions subsequent not in writing. But where the delivery would defeat the real contract between the parties, then it is competent to prove by parol (1) the whole contract, and that the writing was only part of the contract, or (2) to explain the consideration, or (3) to show that it was part of the contract that the writing was delivered, but not to become operative until another part of the contract — condition precedent — was fulfilled. Of-the first class is Kelly v. Carter, 55 Ark. 112, where a deed did not evidence the entire contract, and parol evidence was admitted to show the entire contract. Of the second class is the recent case of St. Louis & N. Ark. Rd. Co. v. Crandell, 75 Ark. 89, where the authorities in this State are cited to show that the consideration is, under certain circumstances, open to parol proof, not to defeat, but to effectuate the real contract; and of the third class is State v. Wallis, 57 Ark. 64, and Ware v. Allen, 128 U. S. 590, which is approved in State v. Wallis. In State v. Wallis, Mr. Justice Hemingway, speaking for the court, said: “Proof that such of the defendants as subscribed the bond did so upon the condition that other persons named in it as sureties would sign it was not incompetent. It was not designed to vary the terms of a written instrument, but to show that there never was a complete execution of such instrument. For this purpose it was competent. Ware v. Allen, 128 U. S. 590.” In Ware v. Allen, the Supreme Court of the United States held: “Parol evidence is admissible, in an action between the parties, to show that a written instrument, executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional, and was not intended to take effect until another event should take place.”
Following Ware v. Allen, the Supreme Court of the United States, in Burke v. Dulaney, 153 U. S. 228, carried the application of the doctrine into a case identical in principle and analogous in fact with the one at bar. Mr. Justice Harran, for the court, said:
“And the evidence offered by the appellant, and excluded by the court, did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the “ stipulated interest in the property in question. In other words, according to the evidence offered and excluded, the written instrument, upon which this suit is based, was not — except in a named contingency — to become a contract or promissory note which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract, entitling the party who' claimed the benefit of it to enforce its stipulations. The exclusion of parol evidence of such an agreement could be justified only upon the ground that the mere possession of a written instrument, in form a promissory note, by the person named in it as payee is conclusive of his right to hold it as the absolute obligation of the maker. While such possession is undoubtedly prima facie — indeed, should be deemed strong — evidence that the instrument came to the hands of the payee as an obligation of the maker, enforcible according to its legal import, it is open to the. latter to prove the circumstances under which possession was acquired, and to show that there never was any complete, final delivery of the writing as the promissory note of the maker, payable at all events and according to its terms. The rule that excludes parol evidence in contradiction of a written agreement presupposes the existence in fact of such agreement at the time suit is brought. But the rule has no application if the writing was not delivered as a present contract.”
After citing many authorities supporting these views, the court concluded:
“For the reasons stated, and without considering the case in other aspects, we are of the opinion that it was error to exclude the evidence offered by the defendant tending to show that the writing sued on was not delivered to or received by' Dulaney as the promissory note of the defendant, binding upon him as a present obligation, enforcible according to its terms, but was delivered to become an obligation of that character when, but not before, the defendant examined and, by working them, tested the mining properties purchased by the plaintiff, and elected to take the stipulated interest in them. According to the evidence so offered and excluded, the writing in question never became, as between Burke and Dulaney, the absolute obligation of the former, but was delivered and accepted only as a memorandum of what Burke was to pay in the event of his electing to become interested in the property, and from the time he so elected, or could be deemed to have so elected, it was to take effect as his promissory note, payable according to its terms. His election within a reasonable time to take such interest was made a condition precedent to his liability to pay the stipulated price. The minds of the parties never met upon any other basis, and a refusal to give effect to their oral agreement would make for them a contract which they did not choose to make for themselves.”
Following these authorities, and approving the reasoning in Burke v. Dulaney, above quoted, the court is of opinion that the circuit court erred in excluding the evidence offered and directing a verdict. The evidence raised an issue of fact determinable by a jury.
The judgment is reversed and cause remanded. | [
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Hire, C. J.,
(after stating the facts.) 1. ^The franchise sought to be enjoyed was granted by the council of Little Rock, August 10, 1902, when the jurisdiction'of the city of Little Rock over the Eighth Ward thereof, where the franchise was to have been enjoyed, would have ceased for all purposes but for the injunction granted for the instance of the city of Little Rock, this appellant company, and other parties to the suit.
One of the grounds relied upon for the injunction was the probability that the other municipality seeking to absorb this territory would grant therein street car franchises conflicting with those theretofore granted by the city of Little Rock. So far as this record shows, the franchise to this company, granted subject to several conditions set out in the statement of facts, was the franchise sought to be protected against encroachment and conflict. This franchise was amended after the injunction, so as to take out the conditions which prevented it from becoming at once operative. The injunction was granted upon this ana other allegations, and unquestionably was intended to preserve the status quo of the two municipalities, so far as the Eighth Ward was concerned, pending the appeal to determine whether or not the proceedings for its annexation to North Little Rock were valid.
Lord Chancellor Eldon' held that where a party obtained an injunction which prevented his adversary from pursuing and enjoying rights, and the injunction was finally dissolved, the party could not take advantage of any rights which he had thus wrongfully prevented his adversary from enjoying. The Lord Chancellor said: “If there be a principle upon which courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought. That proposition is broadly laid down in some of the cases.” In such cases it is reasoned by the great chancellor that the plaintiff, seeking relief by the mere circumstances of filing the bill, would be required to submit to every thing conscience and justice required. That the plaintiff seeking the relief impliedly says that he asks it on the terms of prttting his adversary in exactly the same situation if it be determined in his favor. Pulteney v. Warren, 6 Vesey, Jr., 73.
This principle has found secure lodgment in equity jurisprudence, and is appliéd to varying kinds of cases involving its application. Erequently it is applied when an injunction stays an action, and it becomes barred, or right to execution lapses; and in many cases where an injunction wrongfully prevents the assertion of a right, or causes it to lapse, then the court treats the plaintiff wrongfully causing this effect to be reciprocally bound by the injunction. Mercantile Trust Co. v. St. L. & S. F. Ry. Co., 69 Fed. Rep. 193; Hutsonpeiler v. Storer, 12 Gratt. (Va.) 579; Marshall v. Minter, 43 Miss. 666; Work v. Harper, 66 Am. Dec. 549; Sugg v. Thrasher, 30 Miss. 135.
Chief Justice ScitorfiErd in applying this doctrine in a case in Illinois, said:
“The only function of an injunction is to stay threatened action and suspend the conflicting claims of right of the respective parties where they then are until they can be properly adjudicated. 2 Daniell, Ch. Pr. (5th Ed.) 1639, and note. And so it must necessarily follow that to allow one party to obtain any advantage by acting when the hands of the adverse party are thus tied by the writ or the order for it is an. abuse of legal process which cannot be tolerated.” Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, s. c. 25 N. E. 588.
While the hands of the town of North Little Rock were effectually tied by the injunction sought at the instance of the city of Little Rock and the street car company, then the street car company obtained from its co-plaintiff the franchise in question in territory over which the city of Little Rock would not have had at that time a vestige of jurisdiction except by reason of the injunction preserving the status quo in regard to franchises as well as police and municipal control. The statement of the situation shows more clearly than argument that it is inequitable to allow rights to be thus acquired.
It is argued that these cases proceed upon the ground that the party obtaining the injunction has violated its spirit, or that the restraining party took advantage of something he could not have had before, or that the position of the party enjoined 0 was more favorable before the injunction. Many of the cases do proceed on such propositions, but the underlying principiéis that the injunction acts reciprocally, and binds in spirit the moving party, while binding expressly the other.
While the city of Little Rock could have granted an absolute franchise the day it obtained the injunction, it did not do so, and when it did grant the absolute franchise, the city of North Little Rock was then under injunction from granting such franchise. If it had not been under such injunction, it could have been granted a franchise over these streets, and the city of Little Rock could not have done so. The court is of the opinion that the principles of these cases apply to this case.
2. Counsel for the appellant qpntends that the city has no property interests in the streets; that it is a mere agent of the State, to whom the State has delegated control of the streets, and the State, in the first instance, and the city, in the second instance, is but a trustee for the public. Many authorities are cited on this proposition, and it is summed up in a recent case in the Supreme Court of the United States in this language:
“The statutes show that there was lodged by the Legislature of Ohio in the municipal council of Cleveland comprehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be constructed, operated, extended and consolidated. * * * That, in passing ordinances based upon the grant of power referred to, the municipal council of Cleveland was exercising a portion of the authority of the State, as an agency of the State, cannot in reason be disputed.” Cleveland v. Cleveland City Ry. Co., 194 U. S. 517.
The argument of counsel on this line is fully conceded as established in principle and by authority. But it does not follow from this status of the city that it may by its own act prolong its governmental agency, and grant rights otherwise divested from it by the State. In’ this case the State by appropriate legislation authorized the transfer of the control of the streets in question from one agent to another agent. The holding agent prolonged its holding by this injunction, contrary, as it was afterwards determined, to the act of the Legislature. Can it be said that on account of these governmental functions it is freed of the ordinary rules governing litigants? In Fort Smith v. McKibbin, 41 Ark. 45, the statute of limitations was invoked against the city’s control of an alley of the city of Eort Smith. The doctrine of governmental agency was there presented, but this court held, on a conflict in the authorities, that the weight of authority and the better reason was in favor of applying the statute. In Searcy v. Yarnell, 47 Ark. 269, this court quoted approvingly from Bailey v. Mayor of New York, 3 Hill, 555, as follows: “A municipal corporation, when in the exercise óf franchises and the prosecution of works for its own emolument or advantage, and in which the State in its sovereign capacity has no interest, is answerable as a private corporation, although such works may also be in the nature of ‘great enterprises for the public good,’ and ‘granted exclusively for public purposes belonging to the corporation in its public, political or municipal character.’ Powers granted for private advantages, though the public may also derive benefit therefrom, are to be regarded as exercised by the municipality as a private corporation.” In that case an estoppel was invoked against the'town of -Searcy. In fact, an estoppel may be invoked against the government of the United States, the government of a State, or a municipality. Indiana v. Milk, 11 Fed Rep. 389, and numerous authorities there cited; La Fayette Bridge Co. v. Streator, 105 Fed. Rep. 729; United States v. La Chapelle, 81 Fed. Rep. 152.
In the case of Indiana v. Milk, supra, Judge Gresham said: “Resolute good faith should characterize the conduct of States in their dealings with individuals, and there is no reason, in morals or law, that will exempt them from the doctrine of estoppel.” If the State may be estopped, certainly the agent of the State, who prolongs the power of the State in itself, may be estopped by reason of its action in so prolonging this power.
Passing, however, from the governmental agency of the city to the result of the action of the city in pursuance of this agency, in the recent case, heretofore referred to, of Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, the court said: “That in the courts of Ohio the acceptance of an ordinance of the character of those just referred to is deemed to create a binding contract” is settled. (Citing authorities.) Then the court considered the question as one of general- law, without treating the decisions of Ohio as binding, and reached the same conclusion. A like view is taken of the question in this State. “Now, a grant which has been accepted and acted upon by the grantee is a contract, within the meaning of the Constituí ion of the United States, which forbids laws impairing the obligation of contracts.” Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300. This is the general rule. McQuillin, Mun. Ord. § 238.
The grants in this case were duly accepted, and constituted contracts; and hence it follows, aside from any estoppel of the governmental agent, that the grant in question was a contract right, and subject to all the protection and liability of other contractual rights, and among the latter is the sound equitable rule that such rights can not be acquired in violation of an injunction obtained for the benefit of the contracting parties. All of these reasons would be applicable if a stranger had obtained the franchise; but when it is obtained from one party to the injunction in favor of a co-plaintiff therein, they are doubly applicable. Without pursuing the question further, the. court is of opinion that neither the city of Little Rock nor the street car company can hold rights acquired over the streets of the Eighth Ward during the life of the injunction.
3. An estoppel is sought against the town of North Little Rock on account of its permitting the street car company to partially construct its line over these streets, and expend about $27,000 without protest, or resistance. The city of North Little Rock was enjoined from interfering in any manner with the jurisdiction and control of the city of Little Rock over the Eighth Ward. The stréet car company was acting with open eyes; if it won its injunction suit, its rights were peffect, and necessarily it knew that, if it lost, its rights were builded solely on rights acquired while it tied, the hands of the other municipality from exercising control over these streets. The case does not call for an estoppel on this ground against North Little Rock.
The decree in the court below allowed the street railway company sixty days to dispose of or remove the rails, cross ties and other material placed by it on the streets, and that is as favorable as it can ask on this score.
4. Deciding that no rights can be sustained under the ordinance of 'August 10, 1902, does not dispose of any rights which the street car company may have under the ordinance passed June 25, 1902. It is true that the ordinance of August 10 repealed the 'conditions precedent therein to its vesting at once, and attempted to vest the franchise forthwith; but the view the court takes of that ordinance renders that action entirely nugatory, and leaves in force whatever right the street car company may have had when the jurisdiction of the municipalities over the Eighth Ward would have been changed but for the intervention of the injunction. The appellee seeks to avoid that proposition by invoking the doctrine of relation, and contends that the final act of annexation was carried back to the date the election was ordered, June 15, 1903. That contention overlooks the plain provision of the act under which the proceedings were had. It declares that, upon the declaration of the vote favorable to annexation by the council and entering it upon the record of the council such actions constitute the change of jurisdiction. Those acts raise the new flag over the territory annexed.
The obtaining of the consent of the county court of Pulaski County to the use of the free bridge before the franchise could be enjoyed was clearly a condition precedent .to it vesting, and was. a reasonable and enforcible condition precedent. Joyce on Electric Law, § § 187, 352, 358, and authorities cited in notes.
This and the other conditions mentioned in the ordinances would have to be complied with within a reasonable time. In determining reasonable time the subject-matter and all the circumstances are to be considered, as there can never be a fixed rule on such a subject. In this case the ordinance was passed June 25, 1903, and the election was held July 21, and the result would have at once been declared, and the jurisdiction changed, but for the injunction. The rights of North Little Rock must be determined as of date when it should have acquired jurisdiction. That date was less than one month after the passage of the ordinance. Therefore North Little Rock assumed jurisdiction over the Eighth Ward subject to a valid ordinance granting a franchise to certain streets therein subject to conditions precedent to be performed in a reasonable time from June 25, 1903. The subsequent proceedings did not alter that status, for the jurisdiction, when assumed in. February, 1904, was, so far as these parties were concerned, as of date July 21, 1903, or as soon thereafter as the vote could be declared. The rights acquired after that date should be cut off, and those acquired prior thereto given full force.
The court is of opinion that one month was not reasonable time to allow the street car company to comply with the conditions precedent, and it follows, therefore, that the street car company still has a reasonable time, under the ordinance of Jutie 25, 1903, to comply with the conditions precedent.
The decree of the chancellor cancelling and annulling the ordinance of June 25, 1903, is erroneous, and the same is hereby reversed. The decree cancelling and annulling the ordinance of August 10, 1903, and all other matters therein, except as above stated, is affirmed. | [
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Riddick, J.
This is an appeal from a judgment against a railroad company in favor of the plaintiff for damages for killing his horse. We do not find any error in the admission of evidence or in the instructions, and are of the opinion that the evidence is sufficient to support the judgment. Counsel for appellant contends with much force that the judgment should be reversed because the presiding judge during the trial propounded questions to the witnesses for plaintiff and defendant. The contention is not that these questions were improper, had they been propounded by counsel for plaintiff; but the contention is made thát, by propounding a number of questions, the judge thereby assumed the role of attorney, and in that way indicated to the jury his opinion of the evidence, and prejudiced the rights of the defendant. It is true that a judge, under our law, should neither directly nor indirectly indicate to the jury his opinion of the facts in the case, when the same are in dispute, and when the jury are to determine what the facts are. Our Constitution forbids this, and such conduct on the part of a trial judge would be ground for reversal; but we cannot concur in the contention that it is impossible for a judge to propound questions, when counsel objects, without indicating his opinion of the facts to the jury. In a recent and very able work on the Law of Evidence, the author says :* “One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge’s power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully. This just exercise of his function was never doubted at common law; the judge could even call a new witness of his own motion, and could seek evidence to inform himself judicially; much more could he ask additional questions of a witness already called but imperfectly examined. Fortunately,” he says, “the tradition of the common law has never been' lost; the right of the judge to interrogate as he thinks best has always been preserved in theory. It has, however, been necessary more frequently to maintain and vindicate it and to resist encroachment upon it.” 1 Wigmore on Evidence, § 784. “A circuit judge presiding at á trial,” said the Supreme Court of Indiana, “is not a mere moderator between contending parties; he is a sworn officer, charged with grave public duties. In order to establish justice and maintain truth and prevent wrong, he has a large discretion in the application of rules of practice.” The court held that there was. nothing wrong in the judge “asking the witness any question, the answer to which would likely throw any light upon his testimony.” Huffman v. Cauble, 86 Ind. 591.
It seems to be the general rule, well supported by the decided cases, that the trial judge has the right to propound such questions to witnesses as may be necessary in order to elicit pertinent facts, in order that the truth may be established. Of course, this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts, and thereby prejudice the rights of the parties. Counsel say that it is “impossible for a lawyer worthy of the name” to propound questions to witnesses in a case without indicating an interest in the- result of the trial, and he contends that therefore a judge cannot do so. But a lawyer is usually, in fact, interested in the success of his client. If he were not, he would indeed be hardly worthy of the name. Men who have strong feelings in favor of one side are apt to manifest such feelings by their conduct, but a judge worthy of the name should be interested only in establishing the truth. His questions should be propounded, not to support the case of either litigant, but with the sole desire to elicit and bring out the truth, that justice may prevail. Having, in fact, no feeling for or against either party, it should not be difficult for him to refrain from exhibiting such feeling. It is the primary duty of the parties to bring out their own evidence. It is not usually necessary that the judge should propound many questions to witnesses, and for the judge to take the case out of the hands of counsel, and take the lead in the examination of witnesses might at times be improper and prejudicial. But if would be a reproach to the law if he were required to sit still in either a civil or criminal trial, and see justice defeated through the failure of counsel to ask a witness a pertinent question. Sharp v. State, 51 Ark. 154; South Covington & Cinn. St. Ry. Co. v. Stroh, 57 L. R. A. 875, and note. We have "carefully read the bill of exceptions in this case, and see nothing in the questions propounded by the judge calculated to prejudice the rights of the defendant.
Judgment affirmed. | [
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BaTTeE, J.
In these two cases complaints were filed, containing the same allegations. The allegations in the first are as follows:
“Comes the plaintiff, E. M. Nelson, and complains of the defendant, Armour Packing Company, and for his cause of action says:
“That the defendant, Armour Packing Company, is a corporation organized and existing under the laws of the State of New Jersey; that said defendant, Armour Packing Company, maintains a branch of its business in Kansas City, Kansas, and the plaintiff’s cause of action occurred in Miller County, Arkansas.
“That said branch house or business of the Armour Packing Company in Kansas City is engaged in the preparation and pack ing of the .various articles of food which'it places on the market for sale to whomsoever may wish to purchase; that, among said various articles of food, the defendant, Armour Packing Company, prepares, packs in sealed tin cans, and places on the market for sale to the wholesale and retail trade an article of food commonly known, and so labeled and branded, as ‘Punch Tongue.’ That when said lunch tongue is so prepared and placed in sealed tin cans, it is intended and fixed for immediate use as food on the family tables without further preparation, and the public is invited to purchase same as such in this condition; and the label aforesaid was printed and pasted on the can from which plaintiff was poisoned, as hereinafter alleged, in plain letters the following: ‘Select cooked tongue. This can is soldered on the outside and without the use of acids, therefore allowing no criticism as to the formation of the cans. These tongues are selected, preserved and packed with due reference to their keeping in all climates; guaranteed.’ Whereby said defendant is held in law and fact to warrant and guaranty same to be wholesome food and free from impurities to all consumers.
“That on or about the 21st day of December, 1901, the defendant, through its Kansas City packery, sold to A. J. Offenhauser, of Texarkana, Arkansas, a dealer in family groceries, a case of lunch tongue, and immediately thereafter a can of said lunch tongue was bought of said A. J. Offenhauser by the plaintiff’s family, and was on the same day opened and served for supper on the family table at the home of this plaintiff.
“That the plaintiff ate of this food so prepared by the defendant, and the same was partaken of by him, trusting and believing that the same was wholesome and good, and safe to be eaten, and had been properly prepared by the defendant; but the plaintiff says said food was not good and wholesome and properly prepared, but improperly and negligently prepared in a way not known to the plaintiff, but the same was infected with ptomaine and other poison, and was thereby rendered unwholesome, poisonous, dangerous and unfit to be eaten, and by reason thereof plaintiff was poisoned and greatly injured, and made very sick, and endured thereby great pain and suffering, and was obliged to have, and did have, a physician to attend him during his sickness, and was subjected by reason thereof to great expense for medical attendance and medicine. Plaintiff was very sick, nigh unto death, during the entire night, and continued to be sick for many days, which said sickness and disability were caused by the eating of said poisonous and dangerous food, negligently prepared and put on the market for sale by the defendant, Armour Packing Company.
“That injuries complained of were caused by the negligence of the defendant, its agent or servants, and this plaintiff in no manner whatever contributed to the acts resulting in said injury.
“That for bodily injury and pain and suffering incident thereto, the plaintiff has suffered damages in the sum of one thousand eight hundred dollars.
“Wherefore, premises considered, plaintiff prays judgment for his damages, for cost and general relief.”
The defendant filed a demurrer to the complaint, which the court sustained. The plaintiff rested upon his complaint, and the court rendered judgment in favor of the defendant, and plaintiff appealed.
The demurrer was properly sustained.
In the sale of provisions by one dealer to another in the course of general commercial transactions, the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness; but when articles of human food are sold to the consumer for immediate use, there is an implied warranty or, representation that they are sound and fit for food. Howard v. Emmerson, 110 Mass. 320; Giron v. Stedman, 145 Mass. 439; Benjamin, Sales (7th Ed., Bennett’s), pp. 661, 691J 2 Mechem, Sales, § § 1356, 1357; Tiedeman, Sales, § 191.
Unlike covenants as to the title to land, a warranty upon the sale of personal property does not run with the property. There is no privity of contract between the vendor in one sale and the vendees of the same property in subsequent sales. Each vendee can resort, as a general rule, only to his immediate vendor. Boyd v. Whitfield, 19 Ark. 447; Bordwell v. Collie, 45 N. Y. 494.
In this case there was no privity of contract between appellant and appellee, and no warranty passed with the property from appellee to appellant through his vendor.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by H. L. Lyon and N. C. Lyon, his wife, from a judgment against them in favor of D. W. Bass, foreclosing a trust deed. The first contention on the part of defendant is that the debt secured by the deed has been paid. The evidence tends to show that the plaintiff had two separate accounts against Lyon, one against him and his wife jointly, the other against Lyon alone for advances made to him to carry on a timber and stave business. This last account was secured by a deed of trust executed by H. L. Lyon only. No item charged in either of these accounts is disputed by defendant, and they admit the amount of the debt, but claim that, if the payments had been properly applied, the mortgage debt of Lyon and wife would have been paid. But the payments which defendants claim should have been applied on this mortgage debt of Lyon and wife were made by Lyon with funds which arose out of the sale of land, timber, staves and other property which Lyon had acquired in the stave business, and upon which Bass held a lien to secure advances made by him to Lyon in that business. The evidence, as before stated, shows that this account against Lyon individually was entirely separate from the one held by Bass against Lyon and wife jointly, which is involved in this suit. Plaintiff had advanced to defendant the money required to buy property and carry on this.stave business. When, therefore, the staves produced in that business, and the other property which plaintiff had advanced the money for defendant to purchase, had been sold, and the proceeds turned over to plaintiff, it was entirely proper for plaintiff to credit it on the debts of that business which defendant owed him for such advances. Defendant had executed to plaintiff a mortgage on this property to secure such advances. ■ When property is mortgaged to secure a debt, and afterwards this property is sold, and the proceeds turned over to the mortgagee, the natural presumption is that both parties intend that the payment shall be applied on the mortgage debt, and the mortgagee has the right to apply the payment in that way, even though the mortgage debt be not due. Greer v. Turner, 47 Ark. 17; Caldwell v. Hall, 49 lb. 508; Faisst v. Waldo, 57 lb. 275.
But it is said that certain cattle sold were included in both mortgages, and that therefore the proceeds.arising from their sale were improperly applied to the second mortgage. The evidence as to whether the cattle described in the second mortgage were the same as those in the first is not at all clear, but, conceding that they were the same, we think that, when the debtor made no appropriation of such proceeds, the creditor had the right to apply them to either debt. Hamilton v. Rhodes, 72 Ark. 625.
Without going into a further discussion of the evidence bearing on the different payments, we will say that in our opinion it is sufficient to support the finding of the chancellor that Bass had two separate accounts against Lyon, and that the payments made thereon were properly applied by him.
In conclusion, it is said that the record shows that the decree was rendered in vacation. The decree purports to have been rendered at the July term of the Calhoun Chancery Court, on the 27th day of July, 1903. A record entry of the same day, which immediately precedes the entry of the decree, recites that the parties-were allowed thirty days in which to take depositions, and the certificate to one of the depositions shows that it was taken in August, 1903. So far as the record entry showing that parties were allowed time to take depositions, that cannot overturn the decree entered on the same day, for the parties might afterwards have waived the continuance, and the decree might have been rendered at that term. The fact that the certificate to one of the depositions shows that it was taken in -August — considered in connection with the order allowing time to take depositions, and the recital in the decree that the deposition of this witness was considered by the court — does tend to show that the decree was made in vacation and entered as if made at the preceding term. But the record which the clerk certifies as correct shows that the decree was rendered at the July term, and we do not think that the other matters referred to are sufficient to overturn this certificate of the officer whose duty it is to send up a perfect transcript of the record below.
If this certificate does not state the facts, if the record is not correct, the appellant should have taken steps to have it corrected. Arkadelphia Lbr. Co. v. Asman, 72 Ark. 320. In the present state of the record the judgment must be affirmed. It is so ordered. | [
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Hiel, C. J.
Thompson sued Ed and Vernon Baxter in the . court of a justice of the peace for the sum of $94, and caused an attachment to issue. Baxter, on the day after suit was filed, made a tender of $5, and, upon it being refused, delivered the money to the constable to keep the tender good as a deposit in court. On the trial Thompson recovered $5, and appealed, and recovered judgment in circuit court for the same amount. In both courts there was a finding that the tender was made and kept good, and that Thompson recover costs prior to tlie tender, and the costs subsequent thereto were adjudged against him. Three questions are raised on appeal.
1. That the court erred in rendering judgment for costs against the surety on the attachment bond, the contention being that it. was not conditioned to cover costs. Thompson alone appealed. The surety has not appealed, and Thompson cannot raise this question for him.
2. The next question presented is that the finding of the jury was not supported by the evidence as to the compromise of the debt sued for at $5 having been reached. Baxter’s testimony does sustain it, and that is sufficient, as this court cannot settle conflicting evidence which has.gone before a jury.
3. The only other question presented is one of costs. The appellant contends that tender after suit without tender of accrued costs will not prevent recovery of costs subsequent thereto. This is true, but appellant is not in an attitude to complaiñ of it. He refused the tender because he claimed a larger sum, and made no objection to it at the time on account of the costs not being tendered, which were then a trivial sum. The justice gave judgment for the amount tendered and costs prior to the tender. This is exactly what he was entitled to if his present contention is correct. From this he appealed, and the circuit court gave the same judgment, and', after judgment on motion to retax costs, the insufficiency of the tender was for the first time raised. The money had been paid into court immediately on appellant’s refusal to accept it, and the litigation had progressed thereafter as to whether appellees owed a large sum to appellant for which he was suing or only the $5 which were tendered. Appellant cannot now obtain advantage of a failure to tender the trivial sum-due for costs when it was refused because a much larger sum than the tendered amount was claimed, and for which he prefered and elected to litigate.
The judgment is affirmed. | [
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McCuelocit, J.
This is an appeal from a judgment of conviction of carrying a pistol. Appellant admitted carrying the pistol at the time and place named, but set up a defense that he was on a journey at the time. He complains of the instructions given by .the court defining what constitutes a journey, within the meaning of the exception in the statute. The undisputed testimony establishes the fact that appellant was armed with a pistol at the home of his mother-in-law in the immediate neighborhood of his own home. He was not then on a journey, if it be conceded that his peregrinations of the day constituted a journey, within the meaning of the statute. He had returned from his alleged journey, and stopped at the home of his mother-in-law, where he loitered an hour or more, drunk and disorderly. He cannot, under those circumstances, claim the benefit of the exception in the statute. Holland v. State, 73 Ark. 425. The essential facts constituting appellant’s guilt of the offense charged being undisputed, no error in the instructions could have been prejudicial. Judgment affirmed.
Hill, C. J., absent and not participating. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment against defendants for rent of land.
After hearing the evidence, the court directed a verdict for the plaintiffs, and refused to put this direction to the jury in writing, further than to write out the verdict and tell one of the jurors to sign. Counsel for defendants contend that this direction to return a verdict was an instruction, and that the presiding judge erred in refusing to reduce -it to writing. But this contention cannot be sustained. The object in having the presiding judge to reduce his instructions to writing, when requested by either party, is to avoid any controversy about the language or meaning of the court’s charge to the jury when the case is submitted to the jury. But this provision of the law has no applica tion to a case when the judge is of the opinion that there is nothing to be submitted to the jury, and disposes of the case by directing them to return a verdict for one of the parties for a designated amount. In such a case the form of the instruction or the particular words used by the judge are of no moment, for the act of the jury in returning the verdict is merely formal. The direction to return a certain verdict is in fact a withdrawal of the case from the jury and a decision by the court. The judgment itself shows this, and there is no possibility of a mistake as to the action of the court, and no necessity for reducing the particular words used by the court to writing. In this case the presiding judge prepared the verdict, and recited therein' that it was returned by the direction of the court. Nothing more could be asked.
The reasons which influenced the judge to direct a verdict are not stated in the record, but from the árgument of counsel we infer that the presiding judge was of the opinion either that the notice given by the lessees to the lessors that there had been an overflow was not sufficient, or that it was not given at the time required by the contract. Now, the provision of the contract in reference to notice is that “in the event of a partial overflow of said lands second parties shall notify first parties on the first day of June of such year if they claim damage to the crop thereby.” When we remember that this was a contract between the owners of the plantations and their lessees, it L evident that there was nothing formal about the notice required. It is not even required that the notice should be in writing. The intention was that the lessors should have notice of this overflow and of the claim for a reduction of the rent by the first of June. „ The evidence shows, we think, that they were given notice of that by a letter mailed by lessees on the 7th of April, which plaintiffs must have received a few days afterwards, for the letter was answered.
It is contended with much force that this notice was of no effect because not given on the first of June, as provided in the. contract. But we think that such construction of the contract would be entirely too strict. If the notice was given prior to the first day of June, the parties had notice on that day, which was a substantial compliance with the terms of the con tract. So soon as the overflow came, and it was certain that damage was caused thereby, we think the lessees had the right to give the notice required by the contract. If, after the overflow and notice thereof, the parties could not, or did not, agree on the amount of the' reduction in rent, the contract fixes it by providing that the rent shall then be one-fourth of the cotton and one-third of the corn, hay, and other products of the land for that year.
The contract also provided that in the event of an overflow the lessor should have the use of the gin house and machinery for that year. But ’ neither the fact that the lessees continued to use the gin, nor the fact that they did not cut and gather the Bermuda grass on the place, forfeited their right to the reduction in the rent provided for in case of ctverflow. If the lessees used the gin, they are liable to the lessors for the rental value thereof -for that season; and if they failed to gather any crop they were required by their contract to gather, then they are, by such contract, responsible to the plaintiffs for one-third the value thereof. Whether Bermuda grass was a crop covered by the contract is a question of fact about which we express no opinion.
There was evidence tending to show that there had been a partial overflow and damage to crop of defendants, that plaintiffs had notice thereof, and that defendants were not liable for the $2000 as rents for that year, but for a part of the crops produced and for the use of the gin house a'nd machinery. We are therefore of the opinion that the presiding judge erred in withdrawing the case from the jury.
Judgment reversed, and cause remanded for a new trial. | [
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McCulloch, J.,
(after stating the facts.) The statute (Kirby’s Dig. § 7946) provides that “every telegraph and telephone company doing'business in the State must, under a penalty of five hundred dollars for each and every refusal to do so, transmit over its wires to locations on its lines, for any individual or corporation or other telegraph or telephone company such messages, dispatches or correspondence as may be tendered to it, or to be transmitted to any individual or other telegraph or telephone companies, at the price customarily asked and obtained for the transmission of similar messages, dispatches or correspondence, without discrimination as to charge or promptness.”
The undisputed testimony shows that a message was tendered to appellee’s agent at Texarkana for transmission to Wayne, Ind. Ter., where appellee had established, and was then maintaining, an office, but that such agent negligently and erroneously examined an obsolete monthly tariff book or list of offices of appellee, instead of the current list, and, finding no such office on the list (the office having been recently established), declined to receive and transmit the message for the reason that the company had no office at the point to which the message was directed.
The court declared the law to be: “That, even though the defendant did refuse to transmit the message to Wayne, Ind. Ter., a station and locality on its lines where it had a telegraph office,' and even though it refused to do so after it was notified that the sender claimed to have been in its office at that place, and while its tariff sheet and rate book in the office at Texarkana, Ark., showed that it had an office at said place, still plaintiff cannot recover because defendant’s agents refused to transmit the message solely because an old rate book and tariff sheet, inadvertently examined by them, failed to show that Wayne had a telegraph office, and they honestly believed there was none there, the statute not meaning to provide a penalty unless defendant willfully refused to transmit the'message, knowing there was an office at the place of destination. And this is so even if the agents of defendant were negligent in not knowing or ascertaining that there was a telegraph office at the place to which the message was directed.”
A decision of the case calls for a construction of the statute, whether only a willful refusal by a telegraph company to receive and transmit a message will authorize a recovery of the penalty, or whether the penalty may be recovered for a failure or refusal as a result of negligence to receive or transmit a message.
This court, in Brooks v. Western Union Tel. Co., 56 Ark. 224, in construing this statute as to whether or not it inflicted a penalty for refusing to deliver a message, said, speaking through Chief Justice Cocicrile: “The statute is penal, and its terms cannot be extended beyond their obvious meaning. Where there is a doubt, such an act ought not to be construed to inflict a penalty which the Legislature may not have intended.”
The former statute on this subject (Mansfield’s Dig. § 6419) which was expressly repealed by the statute now under consideration (act of March 31, 1885), prescribed a penalty of $100 for “every neglect or refusal by a telegraph company to receive and to transmit a message.” The omission of the word “neglect” from the new statute is noteworthy in discovering .the legislative intent, and is clearly indicative of an intention not to provide a penalty for mere negligent acts. It is also worthy of consideration that in § 7 of this statute (Kirby’s Dig. § 7943) it is required that messages shall be correctly transmitted without unreasonable delay in the order of their delivery and kept in strict confidence; and section 8 (Kirby’s Dig. § 7944) provides that any officer or agent of the company who willfully violates the provisions of the preceding section is guilty of a misdemeanor, and that the company shall be liable for the damage incurred.
In the case of Frauenthal v. Western Union Tel. Co., 50 Ark. 78, this court held that where a message was received by the telegraph company for transmission from Conway, Ark., to Carthage, Mo., and was transmitted as far as Kansas City, but was lost between that place and Carthage by the negligence of the defendant, there could be no recovery of a penalty under this statute. The court then said: “Under the act of 1885, no penalty is recoverable for a mere negligent omission to transmit or deliver a message. For the redress of such injuries, the party aggrieved is remitted to his remedy for damages.” .
We think that the case at bar is controlled by the decision last above cited. It is clear that the Legislature meant to provide a penalty only for a willful or intentional refusal to transmit a message, not a refusal resulting from negligence on the part of the agent in ascertaining whether or not the company had an office" at the place to which the message was directed. The manifest purpose was to prevent, by penalty, any discrimination against individuals, corporations or competive companies by willful or intentional refusal to receive and transmit without delay, and at the customary price, any message tendered.
The Supreme Court of Indiana, in construing a statute in substantially the same'language and form as our statute, said: “The statutory duty as respects telegraph companies is to transmit messages with impartiality and in good faith, and in the order of time in which they are received, without discrimination. The statutory penalty is incurred when its acts or omissions are characterized by or result from partiality or bad faith, or when it postpones messages out of the order of time in which they are received, or when it discriminates in rates charged or in the manner and conditions of service between its patrons. Each and all of the acts which involve the company in penal consequences proceed from some aggressive violation of statutory duty imposed, and not from a merely negligent omission to act according to the obligation of its contract as a public carrier of messages.” Western Union Tel. Co. v. Swain, 109 Ind. 406.
The finding and judgment of the circuit court is correct, and is therefore affirmed. | [
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Hire, C. J.
The issues in these cases are identical, and they will be treated for the purposes of the opinion as one case.
I. The first question for consideration is the effect to be given to a certified transcript from the office of the Land Commissioner, when offered in evidence to prove a transfer therein shown. The statute, section 3064, Kirby’s Digest, only provides that, when properly certified, it shall be received in evidence of the existence of the records of which the transcript is a copy. It does not provide whether it shall be primary or secondary evidence, and the question here is whether such transcript can be received as original evidence to prove the issuance of a certificate or deed, without first accounting for the deed or certificate. In other words, does this statute make the record of the transaction required by law to be kept in the land office the same grade of evidence as the certificate or deed issuing from the land office as a result of the transaction there recorded ? One view to take of. it is that the law requires a record to be had of the transaction, say a land sale, and as evidence of the consummation of that sale the deed is issued, and it is evidence, but not the only evidence, of the sale, for this record must precede the issuance of the deed, and the deed is based upon the transaction therein recorded. In this view, the record and deed would be original evidence of equal grade, and this statute makes the certified transcript of the record equal to the record itself. This is the view taken, under closely analogous statutes, in Mississippi and Alabama. Boddie v. Pardee, 74 Miss. 13; Wood-Stock Iron Company, v. Roberts, 87 Ala. 436.
In Boynton v. Ashabranner, decided at this term, 75 Ark. 415, this view prevailed. However, the question was not fully considered, as the court was then of opinion, as therein indicated, that Dawson v. Parham, 55 Ark. 286, had settled this question in this way. In the argument of (this case, counsel pointed out the error of the court in misconceiving the scope of Dawson v. Parham. That case did not reach to this point, but to the effect of the certified transcript being of equal dignity to the record in the land office, and did not decide the effect of the record itself (or its copy made pursuant to the statute) as original evidence to prove the transfer, without accounting for the deed or certificate itself. The question arising again in this case and in Covington v. Berry, this day decided, has caused the court to re-examine the ruling in Boynton v. Ashabranner, as well as in the cases now at bar. The other view of the question is that the record in the land office is a public memorandum of the transaction, and that the primary evidence of the transaction is the deed or certificate issued by the Tand Commissioner, and this public memorandum is only admissible evidence after the loss or destruction or inability of the party to produce the original is shown, and then this public record (and by statute certified transcripts thereof) becomes the highest grade of secondary evidence to prove the transaction therein recorded. This subject is fully and exhaustively treated by Wig-more in his recent treatise on the Taw of Evidence, and statutes and decisions from almost every State in the Union are collected in a note following the discussion on the subject. 2 Wigmore on Evidence, 1239, and note pages 1484-1488. | [
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BattuE, J.
“On the 25th. day of September, 1902, one Joseph Garner, a man about 22 years of age [we quote from, appellant’s brief] was at the depot at Biggers, a station in Randolph County, when one of defendant’s engines, nearly out of water, was ready to make a quick run to a water tank about twenty miles north. Joseph tried to persuade Bud Smith and John Burries to ride the engine with him, but they both declined, and warned Garner that it was dangerous, and he might get hurt. Garner replied, ‘By God, I am going to ride it anyway,’ and he asked Perkins, the brakeman, if he could ride, and Perkins told him: ‘No; you might get hurt; we are in a hurry.’ Garner expressed himself as ‘not giving a damn if he did; he was going to ride it,’ and when the engine pulled out, Garner stepped up on the step at the rear end of the tender, and held to the bar near the top. The engine moved off at a rapid rate, and had gone about half a mile when Garner fell from his position, and in falling struck his head on some hard substance, from the effect of which injuries he died the next day, without ever recovering consciousness. J. D. Garner, the father of Joseph, brought this suit to recover damages which he had sustained on account of the death of his son, alleging that ‘the injuries received by the said Garner, of which he died, were due to the negligence of said defendant, its agents and employees, in running the train at such an unusual and dangerous rate of speed that by reason of it Garner was thrown to the ground with great violence and received the injuries of which he died; and that thereby the defendant became liable in damages to plaintiff in the sum of .nineteen hundred and ninty nine dollars.’
“Defendant in its answer denied specifically the allegations in the complaint, and stated that Joseph Garner was a trespasser on defendant’s engine; that he had been warned of the danger, and assumed the risk of the rapid speed of the train, and that his own negligent acts contributed to his injuries; that plaintiff was not the proper party to bring the suit; that there was an administrator of the estate; that plaintiff was not damaged, was not entitled to recover, etc.
“A trial was had before a special judge with a .jury ' Plaintiff failed absolutely to show in any way that he received any pecuniary benefits from his son’s earnings at the time of his death, or that he had any reasonable expectation of doing so in the future. He also showed that there was an administrator of ' the estate of Joseph Garner, deceased.”
The jury brought in a verdict.for plaintiff for $500, and the defendant appealed.
The plaintiff (appellee) had no right to bring or maintain this action, there being a personal representative of the deceased. Kirby’s Digest, § 6290; Davis v. Railway Co., 53 Ark. 117.
The appellee was not entitled to recover in this action, because there was no evidence tending to show that he was pecuniarily damaged by the death of his son, the deceased; that he received any part of his son’s earnings; that the son gave any assistance to the father, contributed money to his support; or that the father had a reasonable expectation of pecuniary benefit from the continued life of the son. Fordyce v. McCants, 51 Ark. 509.
Judgment reversed, and the action is dismissed. | [
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Hire, C. J.
On the 6th of March, 1899, the General Assembly passed an act, commonly called the “Rector Anti-Trust Act.” It was construed by this court in Lancashire Insurance Company v. State, 66 Ark. 466, and is found in sections 1976-1982, Kirby’s Digest.
On the 23d of January, 1905, an act repealing this act and “providing for the punishment of pools, trusts and conspiracies to control prices, and as evidence and prosecution in such cases,” was approved. This is a prosecution instituted by the State under the latter act against the appellant, which is a foreign insurance corporation, for doing an insurance business in the State without complying with the provisions of said act of 1905. The Reporter will set forth the issues framed by the pleadings and the agreed statement of facts. The circuit court held the appellant liable to the penalty of the act, and gave judgment accordingly, and the appellant brings the case here, and it involves the construction of the act.
The defining and controlling part of the act is found in the first section thereof. The body of the first section is a copy of the first section of the Rector act, with certain words and phrases inserted therein. It is here given with the inserted words and phrases placed in brackets, so that the eye may detect the additions to the Rector act:
“Section 1. Any corporation organized under the laws of this or any other State, or country, and transacting or conducting any kind of business in this State, or any partnership or individual, or other association or persons whatsoever, who [are now, or] shall [hereafter] create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or understanding, [whether the same is made in this State •or elsewhere], with any other corporation, partnership, individual, or any other person or association of persons, to regulate or fix [either in this State or elsewhere] the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or tornado, or to maintain said price when so regulated, or fixed, [or who are now], or shall [hereafter] enter into, become a member of, or a party to any pool, agreement, contract, combination, association or confederation, [whether made in this State or elsewhere], to fix or limit, [in this State or elsewhere,] the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by any corporation, partner ship, individual or association of persons aforesaid; shall be deemed and adjudged guilty of conspiracy to defraud and be subject to the penalties as provided by this act.”
Other sections are added to the act not contained in the Rector act, but all of the sections of the Rector act are retained, the only changes in them being that clauses are inserted where necessary to make the other parts conform to the first section. These new sections throw no light on the construction, and are not involved in this case.
These are the questions involved:
1. Does the act prohibit, under the penalty named therein, a foreign insurance corporation from doing business in Arkansas while such corporation is a member of a pool, trust or combination to fix insurance rates anywhere, although such pool, trust, or combination is not created or maintained in Arkansas, and does not affect or fix, or attempt to do so, rates of insurance in Arkansas?- To state the proposition by illustration: Assume that the appellant is a member of a trust — called a rating bureau — created and maintained in New York City to fix insurance rates in New York City and St. Petersburg, but which does not fix or affect rates in Arkansas, is it guilty of a violation of the act if it transacts an insurance business in Arkansas upon complying with all , the statutes of this State except the one at bar?
■ 2. If the act reaches to and makes unlawful the transaction of an insurance business in Arkansas by a foreign insurance corporation while belonging to a trust, pool or combination to fix or affect rates in other places than Arkansas, but not in Arkansas, is the act constitutional, and is it within the power of the State to enact it?
1. The State contends for the affirmative of both propositions above stated, the appellant for the negative. The insurance company contends that the act renders unlawful the doing of business in this State by a foreign corporation while it belongs to a trust or pool made in this State or elsewhere to regulate or fix the rates of insurance on property in this State. It admits that it belongs to a trust, within the definition of the act, but says that such trust is created and maintained without the State to fix prices at places without the State, and- that it does not belong to such trust created or maintained anywhere to fix or affect insur anee rates on property within this State. These different constructions have been pressed upon the court in strong and plausible oral arguments and in able and exhaustive briefs, and the court has laboriously and painstakingly examined, discussed and deliberated upon the arguments presented by counsel.
If the act itself was clearly and properly drawn, and free of obscurity and ambiguity, this case would not, in all probability, be here, or, if perchance it were, the work of the court would have been easily and speedily done, for it is elemental that the act itself furnishes its construction; or, rather, when it is plain there is nothing to construe. The law on that subject is thus stated: “The statute itself furnishes the best means of its own exposition; and if the intent of the act can be clearly ascertained from reading its provisions, and all its parts may be brought in harmony therewith, that intent will prevail, without resorting to other aids for construction.” 2 Lewis’ Sutherland on Stat. Con. § 348. Therefore the first duty of the court is to ascertain, if it can, from the act itself the intent of the law-makers, and when that is found then declare it; and the act is enforced as so declared, if otherwise valid.
The first matter to attract attention is the connection in which the words “in this State or elsewhere” are inserted into the body of the Rector act. The first connection is descriptive of “the pool, trust, agreement, combination, confederation or understanding” (hereafter for brevity’s sake this clause will be called a “trust”), “whether made in this State or elsewhere.” The second connection is with the persons confederating to regulate or fix, “either in this State or elsewhere,” prices, etc. The third connection is with the trust, “whether made in this State or elsewhere,” “to fix or limit in this State or elsewhere” the amount or quantity of production, the rates or premiums of insurance, etc. These terms should qualify the clauses to which they are annexed grammatically and in fact, if possible. When so considered, they indicate that' they refer to the trust made in this State-or elsewhere to regulate prices, either in this State or elsewhere, or to become a member of a trust to fix or limit production (or prices) in this State or elsewhere, and not merely doing business in this State under a trust agreement created in this State or elsewhere to fix prices in this State.
To construe the act as making unlawful alone the doing of business in this State while a member of a trust fixing, prices in this State, though the trust might be made elsewhere to fix prices here, would be rendering unnecessary and meaningless these words “in this State or elsewhere,”' so often used, for the Rector act was construed to be just such an act as this would then be. The natural construction is to make the doing of business in this State while a member of a trust formed anywhere to regulate prices anywhere unlawful. This gives full force to each word and phrase employed, eliminates none, and creates nothing by implication or construction, but gives force and effect to each and, every part of the section, and that is a primary duty in construction. 2 Lewis’ Sutherland, Stat. Const. § § 368, 369. While the foregoing seems the natural construction of the act, yet the plausibility and force with which the other -has been pressed, and the fact that members of this court see in it yet another construction, calls for hesitation and doubt as to the true construction to be placed upon it from the language alone. In such cases it is the duty of the court to turn to the “history of the times” to collect the intention of the Legislature from the occasion or necessity of the-law; “from the mischief felt, and objects and remedy in view.”
To ascertain the legislative intention, the courts must look to public events which are sufficiently notorious to be known to all men of reasonable information; to public documents, executive messages, proclamations and recommendations; to legislative proceedings and journals, but not to individual views, votes or speeches of legislators; to the result of elections and political issues therein determined; to a well-defined and crystallized public sentiment, when so notorious as to be part of the well-known ■events of the day. In short, the courts may, and, when the statute is not clear, must, take cognizance of the trend of public events which make the “history of the times,” in so far as the same touches or furnishes the moving cause for the statute under review. These principles are well established. 2 Lewis’ Sutherland on Stat. Con. § § 462, 470, 471; 1 Elliott, Evidence, § § 53, 59, 65, 67; U. S. v. Union Pac. Ry. Co. 91 U. S. 72; U. S. v. Trans-Missouri Freight Assn. 166 U. S. 290; Redell v. Moores, 63 Neb. 219; State v. Schoonover, 135 Ind. 526; State v. Downs, 148 Ind. 324; Stout v. LaFollette, 64 Ind. 553; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; Swinnerton v. Columbian Ins. Co. 37 N. Y. 188.
Turning then, under the requirement of the law, to the “history of the times,” derived -'from the sources mentioned, these facts throw light on the act:
When the Rector act was before the court in Lancashire Ins. Co. v. State, 66 Ark. 466, the court thus stated the contentions of the respective parties: “The Attorney-General contends that no insurance company, while a member of a trust or combination to-fix rates in any part of the world, can do business here, without becoming liable to a penalty under our statute. The defendant, on the other hand, denies that the language of the statute in question carries the meaning contended for by the Attorney-General, and the question before us has reference, not to the power of IheLegislature, for that is conceded — but to the proper construction and meaning of the statute.” The court then fully discussed the contentions and the act, and reached this conclusion: “Our conclusion is that this statute does not apply to pools or combinations, formed outside of this State, and not intended to affect, and. which do not affect, persons, property, or prices oí insurance in this State. In other words, we are of the opinion that the Legislature by this act did not intend to prohibit or punish acts done or agreements made in foreign countries by corporations doing business here when such acts or agreements have reference only to-persons, property or prices in such foreign countries-”
When the court failed to construe the Rector act as contended for by the Attorney-General, he dismissed all prosecutions which, had been instituted under it, and the act has since then been but an incumbrance on the statute book. The next General Assembly-following this decision,that of 1901, had before it a bill called the-“King bill,” which was generally supposed to embody into law the-views pressed upon the court by the State in the Lancashire case. This bill was defeated in 1901, and again in 1903. In 1904 the-dominant political party in this State, through its party platform, demanded of the next General Assembly the passage of the King Bill, and of the purpose of said bill said:”
“Whereby all foreign corporations shall be prevented from-doing business in this State if they are members-of any trust, pool, combination or conspiracy against trade, whether such trust, pool, combination or conspiracy affects, or is intended to affect, prices or rates in Arkansas or not.” The General Assembly elected in 1904, composed almost entirely of members of the political party whose platform is quoted, with remarkable unanimity and rapidity, passed the King bill, which had been rejected by the two preceding General Assemblies, and in less than a fortnight of its organization it was approved, and it is the statute now at bar. Reaching back to _ the construction sought by the State in the Lancashire case, an act is now before the court supposed to embody that theory, demanded by the dominant party as containing it, and speedily passed by the General Assembly elected on the platform demanding it. These facts render the conclusion irresistible that the General Assembly intended to render unlawful the doing of business in this State by any corporation when such corporation belonged to any trust to" fix prices anywhere, when it passed this act. Whether the moving cause for this demand was wise or foolish, whether the act will promote the general welfare or bring wreck and disaster in its enforcement, are questions with which the courts cannot deal. These questions are addressed to the other departments of the government; and when the intention of the law-makers is discovered, either in the language employed or from the language aided by a search into the intention from the history of events, the duty of the court is plain. When this history is considered in connection with the language used in the act, then the ambiguity, uncertainty and obscurity resulting from the confused terms of the statute are cleared away, and the construction heretofore indicated made certain to be the construction intended, and such construction is conformable to the language employed, and not in violence to any part of it. It being plain that the General Assembly intended by this act to subject to the penalty of it any foreign corporation doing business in this State while a member of a trust formed to fix prices anywhere, it remains to consider the constitutionality of it.
2. In Lancashire Ins. Co. v. State, 66 Ark. 466, the court, in construing the Rector act, said: “As the Legislature has the power to entirely exclude foreign insurance companies from doing business in this State, it can, of course, dictate the terms upon which such companies may do business here. The whole matter rests in the discretion of the Legislature.” This act requires every corporation doing business in this State to annually make affidavit that it does not belong to any trust described in the first section of it to fix prices in this State or elsewhere; provides for prosecutions against them for a failure to make such affidavit and for the right to do business to be forfeited; and in other ways clearly indicates that it shall be unlawful to do business in this State while, belonging to a, trust to fix prices anywhere. It gave sixty days to corporations then doing business to come within its terms, and thereafter it was unlawful to transact any business in the State while maintaining a membership in a trust anywhere to fix prices anywhere. In the language of the Lancashire case, the State has dictated these terms upon which foreign insurance companies can do business in this State. Limiting the decision entirely to the facts before the court, it is held that the State has declared, and possesses the right to declare, that foreign insurance corporations cannot do business in this State while belonging to a pool, trust, combination, conspiracy or confederation to fix or affect insurance rates anywhere.
The judgment is affirmed. | [
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Battle, J.
Joseph Evins sued the Little Rock & Fort Smith Railway Company for damages caused by the use and appropriation of his lands by the defendant for a right of way for its railway. The defendant denied the appropriation and damage. 'Plaintiff recovered judgment against the defendant for $380, and the defendant appealed.
It is contended by appellant that the description of the land in the deed adduced by the appellee.in the trial of this action .as evidence of his title to the land appropriated for right of way was not sufficient to identify the land. It is described in one deed as N. E. fr. quarter of the N. E. fr. quarter, section 22-8-22 W., and in the other, N. E. fr. N. E. quarter of section 22, township 8 N., range 22 W. It was described in both deeds as situated in the county of Johnson, in .this State. It was admitted by the parties that the tract in controversy contained seven and nine-hundredths acres. We understand from this description that the land meant is the northeast fractional quarter of the northeast quarter of section twenty-two, in township eight north, and in range twenty-two west, situated in the county of Johnson, in the State of Arkansas. This description is sufficient. Chesnut v. Harris, 64 Ark. 580; Boles v. McNeil, 66 Ark. 422.
It is contended by the appellant that the evidence admitted to prove damages was incompetent, because it did not show the market value of the land.
The testimony of Joseph Evins in the trial of the action, by question and answer, was in part as follows:
“Q. State what you think is the difference between the value of the tract of land before the railroad was changed and after the change?”
The defendant objected, and the court said, “He can state what he thinks was the market value of the land before- and after taking.”
“A. I think the land for a quarry would be cheap at $250 per acre, the land used; the other part would be damaged at least one-half, north of the railroad; all would be destroyed south of the railroad.”
“Q. The fair market value of that -land before this proposed change and since — what is the difference in- your judgment?”
“A. I think it is worth more today than it was ever before, because the work that has been done on it was a benefit to it; it is in a better condition to-day for a quarry than ever.”
The witness, being asked a question, said: “I ask the court to enlighten me,” and the court asked, “What is the difference between the value of that land before the railroad took this right of way and after the road appropriated the right of way?”
The witness answered: “About half the whole piece of land ; and I think the front land is worth ,$250 per acre; and the other perhaps one-half — $125—south of the proposed new line.”
“Q. Now, Mr. Evins, you have estimated the value of the-land taken in the right of way at $250 per acre. If the balance of the land is damaged, what is the difference between the market value of the whole tract before the railroad was moved and the value of the whole tract since? For instance, you estimate the value of the land taken and the damage, if any, to the balance. What do you think is the market value of the land?
“A. I think the land is worth to me, a fair valuation would be, $800 before they went on it this time, like it was before they went on it, and after they occupied that front, $200 would be a big estimate of the value.
“Q. That would make a difference of $600 damages?
“A. That is as low a valuation as I can put on it.
CROSS-EXAMINATION.
“Q. Now, Mr. Evins, has that kind of land any market value in this State ?
“A. It has a value.
“Q. I am not talking about that. I am talking about the market value — what the general public who desired to purchase that kind of land would pay?
“A. That would be guesswork on my part. That is the only land of that character.
“Q. Do you know of any land of that kind selling in this State per acre ?
“A. I don’t know that I do.
“Q. The values you gave to the jury are just your own personal estimate of it?
“A. That is what I consider it worth.
“Q. You consider it worth that, but you know of no market value for that kind of land?
“A. That land is valuable, but I do not know what it is worth.
“Q. I am talking about the market value of the land'; what would such land as this bring placed upon the market in the ordinary course of trade, a reasonable time given in which to effect a sale; has it a market value?
“A. It certainly has.
“Q. Tell us where any such land can be or has been sold in the market?
“A. I don’t think there is a man living who has got any money that would see it but what would buy it.”
C. A. Holt was asked and answered, in part, as follows:
“Q. Tell what you think its market value is, that is, before the new road was put there?
“A. I think it is worth $800.
“Q. From your knowledge of the market value of that land, what is the difference between the value of that tract of land as a whole, considering the vaue of the land that is in the right of way and the damage to the other, if there is any damage to the other — what is the difference in the fair market value of the land before the railroad appropriated this particular right of way and afterwards?
“A. I placed the market value before at $800. I think $100 would be a poof price for it, that is a difference of $700.
CROSS-EXAMINATION.
“Q. You state the difference in the market value was $700?
“A. Yes, sir.
“Q. Know of any such lands selling in the market of this State ?
“A. Yes, sir.
“Q. Do you know of any land such as that selling in the market of this State ?
“A. This same piece of land sold for $800.
“Q. When.
“A. 1870 some time.
“Q. To whom?
“A. The railroad company.
“Q. Don’t you know there was a house on that land which was torn down and destroyed which entered into the value of that land?
“A. Not of my own knowledge.
“Q. Do you know what the market value per acre of rock quarry land is in the State of Arkansas ? •
' “A. I don’t know, I am not in that business. I suppose if it was worth that twenty-five years ago it is worth that today.”
S. M. Brown: “Q. Tell the jury what your idea is of the fair market value of the two and one-half acres of land embraced in this proposed right of way?
“A. I think a fair valuation of it as a rock quarry would be $250 or $300 per acre.
“Q. As a quarry?
“A. Yes, sir. «
“Q. You are making your own personal estimate of these values ?
“A. Yes, sir.”
This was the sum and substance of all the evidence as to the damages.
On motion of the defendant, the court instructed the jury as follows:
“In estimating the damages for this appropriation, the jury are not bound by figures testified to by any witness, but must take the entire testimony, and from the entire testimony in the case arrive at a just conclusion themselves.”
Evins’s testimony is in confusion, and to some extent contradictory. He testified that the land in' question had a market value, and would readily sell in market. It does not appear that he was so ignorant of the market value of land as to be unable to give an opinion as to the same. Values of lands are not certain, and at best are matters of opinion. His opinion may be worth little, but, taking his testimony as a whole, it may be fairly inferred that his estimate of the land in question was based upon what he knew about the market value of lands generally, one of the modes of asserting the market value of land.
Holt based his estimate upon the sale of the same land to appellant twenty-five years before. Appellant paid $800 for it, and it is worth as much now as then. This is in the nature of an admission as to its value. He did not remember of any house upon it at that time. No evidence to show that there was was adduced. It does not appear that Brown did not know the market value of such land as was in question.
The jury returned a verdict in favor of the appellee for $380. No witness estimated the damages so low. They seem to have followed the instructions given at the request of the appellant, discarded the estimates of witnesses, and fotind one of their own. It certainly can not complain of their following its instructions.
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McCulloch, J.,
(after stating the facts.) It is contended by appellants that they are not liable, for the reason that the bond was not in force when the fire occurred. This is the sole question presented by the appeal.
The statute on the subject which was in force when the bond was executed is found in Sandels & Hill’s Digest (having since been amended), and is as follows:
“Section 4124. All fire, life and accident insurance companies now or hereafter doing business in this State shall, in addition to the duties and requirements now prescribed by law, annually give a bond to the State of Arkansas, with not less than three good qnd sufficient sureties, to be approved by the Auditor of the State, in the sum of twenty thousand dollars, conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond by virtue of any policy issued by any such company, individual or corporation upon the life or person of any citizen of the State or upon any property situated in this State, and such bond shall be annually renewed.”
“Section 4127. Any insurance company failing to comply with the provisions of this act shall not be entitled to transact any business in this State; and any such company or any person acting for such company who shall attempt to transact any business in this State until the provisions of this act shall be complied with shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than twenty nor more than one hundred dollars.”
“Section 4130. When any insurance company shall have complied with all the provisions of this chapter, it shall be the duty of the Auditor of State to issue to said company a certificate to that effect, which shall entitle it to do business in this State,” etc.
The question first presented is, when did the claim arise and accrue, within the meaning of the statute and terms of the bond, so as to create liability on the part of sureties on the bond of the company? Did that contingency occur when the property was destroyed, or when the amount of the loss became payable according to the terms of the policy ?
A consideration of the language of the’ statute leads to the conclusion that the liability of the sureties is fixed when the loss by fire occurs, and not from the date when the amount becomes payable. The happening of that contingency fixes the liability of the principal in the bond upon its policy, and nothing remains to be done but to ascertain and adjust the amount of the loss. The liability is fixed when the loss occurs, though payment does not become due until sixty days later. It follows that the liability of the sureties becomes fixed with that of the principal, and ripens into a mature cause of action when default is made by the principal in the payment according to the terms of the policy. This is the conclusion reached by the United States Circuit of Appeals for the Eighth Circuit, in the case of Union Cent. Life Ins. Co. v. Skipper, 115 Fed. 69, in construing this statute and a bond executed in compliance therewith. Judge Thayer, speaking for the court, said: “We may either assume that the word ‘and’ is used in the statute as it frequently is, in a disjunctive sense, and that the Legislature intended to make the obligors in such bonds as the one sued upon liable for any loss where either the death occurs, or the loss becomes payable by the terms of the policy, during the lifetime of the bond. Or we may assume that the words ‘arising and accruing’ mean the same thing; one word being used as explanatory of the other; the intent being to say that the obligors in such bonds shall be liable to pay all losses that ‘arise or accrue’ by reason of deaths which occur during the period covered by the bond. We incline to the opinion that the latter is the correct interpretation of the statute, and that the time when 'the death occurs fixes the liability on this class of bonds.”
Was the bond in force on March 2, 1900, the date of the fire ? We hold that it was in force on that day.
The bond did not become effective until presented to and approved by the Auditor, and it is undoubtedly the law, as con tended by learned counsel for appellants, that the contract of a surety is to be given no retroactive effect, so as to cover past delinquencies, unless it in express terms provides that it shall have that effect. Throop on Public Officers, § 204; 2 Brandt on Sur. & Guar. § 525; Bartlett v. Wheeler, 195 Ill. 445; Hyatt v. Sewing Mach. Co., 41 Mich. 225; Farrar v. U. S., 5 Peters, 373; Thomas v. Blake, 126 Mass. 320.
But this bond by its express terms provides for the liability of the contracting sureties for all claims arising for a period of one year beginning on the date of the bond, March 1, 1900, and ending on March 1, 1901.
The bond was executed pursuant to the requirement of the statute, and the obligors are presumed to have known the terms of the statute, and to have bound themselves with reference thereto. The statute provides that insurance companies doing busines in the State shall annually give such bond, and that the same shall be annually renewed. The statute contains no provision for a bond for a shorter period than one year, and in conformity with this provision the bond in question, by its express terms, was to run for one year from March 1, 1900, the date of its execution.
Then, if this bond is to be given full effect according to its express terms and the provisions of the statute, when did the year of its life begin to run ? _ Obviously, not from March 16, 1900, for that would carry it beyond the date of expiration expressly named in the face of the bond. Suppose the loss under the policy had occurred on March 2, 1901, could it be seriously contended that the sureties on the bond would be liable?
The liability of these sureties is not affected by the fact that the company had previously given a bond dated May 16, 1899, which ran for one year from that date. Under the statute the Auditor may require a new bond, and there is no reason why the company may not substitute a new bond or supplement the old by an additional bond. It may be that in this case both bonds were liable for the loss. We do not decide that question, but we do hold that these sureties are liable on their bond.
In determining whether contracts of this kind are to be given a retroactive effect, the peculiar language of each instrument is controlling, but authorities are not lacking to sustain the con elusion we have reached that the language of this bond is sufficient to warrant that interpretation.
In McMullen v. Winfield B. & L. Association, 64 Kan. 298, McMullen was secretary of a building and loan association for eleven years, being elected annually for a term running from the first day of January. On January 13, 1885, he was re-elected for the year 1885, and on February 2, 1885, gave bond for his faithful performance of the duties of his office “for the year beginning January 1, 1885, and ending December 31, 1885.” The court held that the language gave the bond a retroactive effect, and that the sureties were liable for default occurring in 1885, prior to the date of the bond. The court said:
“It may be assumed that, in the absence of a provision to the contrary, a bond can only be regarded as prospective and to cover only future transactions; but if the language used is retrospective, and clearly shows an intent to include defaults occurring before the execution of the instrument, the sureties will be held liable. * * * The fact that the election occurred after the first of the year and term is not controlling, but the real question is, what time was intended to be covered by the bond? And that must be determined from its terms. The language is plain, and manifestly the parties contemplated that the bond should be retrospective in its operation, and should indemnify against defaults occurring from the first to the last of the year. When it appears that a bond is intended to be retrospective as well as prospective, such effect must be given to it.” See also State v. Finn, 98 Mo. 532; Hatch v. Attleborough, 97 Mass. 533; Commonwealth v. Adams, 3 Bush (Ky.), 41; United States v. Ellis, 4 Sawyer (U. S.), 591.
In Hatch v. Attleborough, supra, the Supreme Court of Massachusetts held (quoting the syllabus of that case) that “the obligors upon the bond of a town treasurer executed after the beginning of his official term, which, after reciting the period of such term, is on condition that he shall faithfully account for and pay over all moneys by him received, are liable thereon for moneys received by him during such term prior to as well as after the execution and acceptance of the bond.”
Counsel for appellant have cited some authorities tending to sustain the contrary view, that language similar in some re spects to that employed in this bond is not sufficient to justify a retroactive effect to the obligation, but we entertain no doubt that the conclusion we have reached, and the cases herein cited, are supported by sound reason, and are right.
This conclusion does not conflict with the decision of this court in Haley v. Petty, 42 Ark. 392. In that case Petty was sheriff and ex officio collector of the county, but forfeited the office of collector by failure to give bond within the time prescribed by law. He was appointed collector by the Governor on January 31, 1878, and gave bond as such to faithfully perform his duties for the year 1878. The court held that the sureties on his bond were not liable for delinquencies occurring before his appointment and the execution of the bond, for the reason that such delinquencies occurred while the principal was holding a separate and distinct office, that of sheriff and ex-officio collector. There is no analogy between the two cases. There the sureties on the bond as collector could' not be held liable for defaults of the principal done prior to the execution of the, bond while he was holding another office, any more than if the defaults had been previously committed' by another individual holding the same office. Here the insurance company was already doing business in the State, and the sureties signed a bond dated March x, 1900, expressly obligating themselves to stand surety for all claims arising for a period of one year from that date. They are liable under the policy and bond for the loss of appellee’s property, and the circuit court was correct in so holding. Affirmed.
Batti„e, J., absent. | [
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Riddick, J.,
(after stating the facts.) This action was brought by a constable, who had attached cotton, against a mercantile firm to whom, by consent of the parties, he had delivered it for sale, to recover the proceeds of the cotton. The plaintiff in the attachment suit was a laborer who claimed a lien on the cotton. While the action is brought in the name of the constable, it is for the use and benefit of the laborer, and the action is, in effect, a contest between a laborer who claims-a lien on cotton for the price of his labor in producing it and a firm of merchants who claim a lien thereon by virtue of a mortgage for supplies furnished the owner of the crop.
In the first place, we are of the opinion that the act of March 11, 1895, did not change the law, so far as such a laborer’is con cerned. The prior act of July 23, 1868, gave laborers a lien on the production of their labor. The act of 1895 extended this law so as to give laborers who perform work on any object or thing a lien thereon for the price of their labor, whether their labor produced the thing upon which the labor is expended or not. When the work of the laborer does not produce the thing upon which he labors, he takes a lien, but it is subject to prior liens. But when the labor fo.r which a lien is claimed produces the thing upon which a lien is claimed, then no lien can, under the statute', be prior to that. No lien upon a crop can be prior to that which the statute gives the laborer who prepares the ground, plants and produces the crop, for his lien attaches as soon as the crop comes into existence, which is as soon as any lien can attach. The lien of a mortgagee does not attach to a crop until it is produced, and therefore cannot be prior to the lien which the statute gives the laborer who produces it. The lien of the landlord for his rent is by the statute made superior to that of the laborer. But, in order to make this mortgage a superior lien to that of the laborer who produced the crop, it would, under any view of the statute, be necessary to show that it was a prior lien, which, as we have shown, cannot be done. The court, we think, properly held that the-lien of this laborer was superior to that of the mortgagee who furnished the supplies to raise the-crop.
Again, the facts here do not show that the defendant was a bona fide purchaser without notice. One who takes a mortgage on a crop to be thereafter produced must know that it requires labor to produce it, and, under the statute, laborers have liens for their work. He, therefore, takes his mortgage with notice of such liens, and subject thereto, especially when, as in this case, the contract made by the owner of the crop with the laborer, and the commencement of his labor, were prior to the execution of the mortgage.
Of course, if appellant had subsequently bought and paid for this cotton without notice of such lien, it would be protected; but it paid nothing out on the purchase of the cotton. Only two loads were delivered to it before the attachment was levied, and it admits that it credited the price of that on a past due account. This was not sufficient to make defendant a bona fide purchaser of the two loads. The laborer then had a lien for his wages on all the cotton delivered to defendant, subject to the lien of the landlord foi rents, and we think the evidence justified the jury in finding that, under the agreement .with the plaintiff, defendant had the right to retain only that portion of the proceeds of the cotton required to pay the balance due on the rent note, and for picking, after applying the proceeds of the two loads of cotton which defendant received before the attachment. That question was submitted to the jury, and was found against defendant, and we find no error in the instructions that would justify a reversal. While these instructions are not quite so clear as they might have been, we think that those asked by defendant were, under the facts proved, erroneous and misleading, and were properly refused. On the whole case, we think the judgment should be affirmed, and is so ordered. | [
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McCulloch, J.,
(after stating the facts.) The General Assembly passed' an act, approved February 27, 1867, amendatory of the then existing garnishment statute, section 2 of which act is as follows:
“When a judgment before a justice of the peace in any county, together with the interest accrued on the same and the costs, amounts to more than $100, and the plaintiff, or any other person having the right to collect the said judgment, may desire to have the benefit of garnishment thereon, it shall be lawful for such person to file in the office of the clerk of the circuit court a transcript of such judgment, certified by such justice of the peace, and the clerk shall enter the same on the judgment docket in his office, and, at the request of such person so filing the same, shall issue to any county in the State a writ or writs of garnishment thereon.”
This section has been brought forward in subsequent digests of the laws of the State, and is found in Kirby’s Digest, section 3707-
Appellant contends that this section has been repealed, and is no longer in force.
The General Assembly of 1889 enacted a statute the title of which is “An act to provide the. procedure in judicial garnishment,” omitting any provision similar to section two of the act of February 27, 1867, but reenacting section three of that act, providing that a judgment obtained before a justice of the peace in one county may be filled with some justice of the peace in another county, and a writ of garnishment or execution issued thereon. Repeals by implication are not favored. But where the later of two statutes covers the whole subject-matter of the former, and it is evident' that the Legislature intends it as a súbstitute, the prior act will be held to have been repealed threby, although there may be no express words to that effect, and there be in the old act provisions not in the new. Pulaski County v. Downer, 10 Ark. 588; State v. Jennings, 27 Ark. 419; Mears v. Stewart, 31 Ark. 19; Davis v. Holland, 43 Ark. 425; Dozvell v. Tucker, 46 Ark. 438; Wood v. State, 47 Ark. 488; St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349; Inman v. State, 65 Ark. 508; Wilson v. Massie, 70 Ark. 25.
Applying the doctrine established by these decisions, it must be held that section 3707, Kirby’s Digest, has been repealed.
It does not follow, however, that there is no provision in the law for the issuance of writs of garnishment to another county from the circuit court upon a judgment of a justice of the peace filed therein. On the contrary, we hold that under section 3705, of the garnishment statute, the writ can be issued upon such judgment filed in the circuit court; and this view of the law makes the repeal of section 3707 all the more obvious for the reason that the same method of enforcement is provided in the latter statute. Kirby’s Dig., § § 4631-2-3, provides that the certified copy of a judgment for more than $10, exclusive of cost, recovered before a justice of the peace, may be filed in the office of the clerk of the circuit 'court of the county, and entered on the judgment docket of said court; and that “every such judgment, from the time of ■filing the transcript thereof, shall be a lien on the real estate of the defendant in the county, to the same extent as a judgment of the circuit court of the same county, and shall be carried into execution in the same manner and with like effect as the judgments of such circuit courts.” The effect of this provision is to completely transfer the judgment from the inferior to the superior court, and give it the same force and effect and the same remedies for enforcement as if the judgment had been originally rendered by the latter court. Section 10 of the act of 1889 (Kirby’s Dig. § 3705) provides that “writs of garnishment may be issued from the circuit court of one county to any other county of the State,” thus authorizing the issuance of such writs upon all judgments of the circuit court, those rendered by justices of the peace and certified copies of which have been properly filed and docketed in the office of the circuit court, as well as judgments originally rendered by that court.
We do not overlook the decision of this court in Thompson v. Kirkpatrick, 18 Ark. 580, where it was. held that under sections 134, 135, ch. 87 of the Revised"'Statutes of 1838, which are identical in terms with sections 4631-2-3 of Kirby’s Digest, a writ of garnishment could not be issued from the circuit court upon a judgment of a justice of the peace filed in the circuit court. Chief Justice English there said: “The object of this statute was to enable the plaintiff in a justice’s judgment to obtain satisfaction thereof by a sale of the real estate of the debtor, which cannot be done by an execution issuing from the justice. Neither this nor any other statute authorizes the issuance of a garnishment from the clerk’s office upon judgment, nor the determination of such garnishment in the circuit court.” This was tantamount to holding that no remedy was afforded by this statute except for the creation and enforcement of a lien of the judgment rendered by a justice of the peace upon real estate owned by the defendant, and that the judgment still remained upon the docket of the justice as a judgment of his court, with all the statutory methods of enforcement by execution or garnishment intact. The next succeeding section (136) provided that execution might be issued at any time (without exception) by the justice who rendered same. Section 53 of the act of April 29, 1873, “to define the jurisdiction, and regulate the course of proceeding in the courts of justices of peace in civil actions” (Kirby’s Dig. § 4634) wrought a radical change with respect to judgments of justices after the same have been filed and docketed in the office of the clerk. It provides, in effect, that thereafter an execution cannot be issued by the justice. Clearly, the effect of sections 4631-2-3, in connection with this section (4634), is to provide a complete transfer of such judgments from justices to the circuit court, with all the remedies for enforcement thereof given to judgments rendered by the latter court. This change in the law brought about a more harmonious condition, and prevents any conflict from arising by reason of the judgment being in-force in the circuit court for the purpose of enforcement by one method, and in force with the justice who rendere'd it for the purpose of enforcement by other methods. No such conflict can arise now, since it becomes fully and for all purposes the judgment of the circuit court.
This view is also in harmony with sections 10 and 11 of the garnishment statute (Kirby’s Dig. § § 3705-6), which give the plaintiff in a judgment rendered by a justice the choice of two methods of reaching by garnishment a debtor of the defendant residing in another county; he can either filé a transcript of his judgment in the office of the clerk of the circuit court, and sue out a writ of garnishment from that court under section 3705 , or file it before some justice in the county where the garnishee resides, and sue out the garnishment there under section 3706. When the judgment does'not exceed $10, only the latter method •of enforcement against a garnishee in another county is open.
Learned counsel for appellant urge the hardship which this ■construction of the statute entails upon a garnishee — especially a railroad corporation — in being required -to answer in a garnishment proceeding in a distant county; but this should be addressed to the lawmakers, as a reason for a change in the law, so as to ameliorate the alleged hardship. The same reason might be urged against the provision of the statute allowing the issuance •of a writ of garnishment to another county upon a judgment rendered by any court.
The court did not err in overruling the special plea of the appellant, and the judgment is affirmed. | [
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McCueeoch, J.
There is no equity in the complaint, and the same was properly dismissed. Appellant’s contention is that the decree of July 34, 1900, during the same term of court operated as a vacation of the former decree, and that, as no preference was given in that decree, the bank must be permitted to share in the proceeds of sale. Conceding that such was the effect of the last decree, it does not follow that appellant is entitled to the relief asked? It has come into a court of equity asking the exercise of the peculiar powers of that court to grant affirmative relief, and it must “do equity.” In other words, it must stand, not upon the letter of the decree in its favor which was entered through a mistake, but upon the merit or lack of merit in the cause of action upon which the decree was entered.
Was appellant entitled, upon its intervention in the original suit, to a decree declaring a lien in its favor sharing equally with Lorwein in the sale of the land? That is the question presented. Learned counsel for appellant contends that the bank was entitled to so share, under the ruling of this court in Penzel v. Brookmire, 51 Ark. 105, that, in a controversy between the several holders of separate notes secured by the same mortgage, whether the notes be transferred before or after maturity and regardless of the order of maturity, they “stand aequali jure, and consequently are entitled to participate ratably in the fund derived from the security, if there be not-enough to pay all.” The facts are essentially different here,- however, and a different rule must prevail. The three notes now held by appellant were merged in the decree of 1898 in favor of Lorwein against Nugent and Haupman, and the latter, though by payment of the decree he became subrogated, as against the maker and prior indorsers of the notes, to the rights of Borwein, cannot assert those rights against Borwein’s lien for the other two notes, because he is liable to Borwein as indorser for payment of all the notes. So long as the other two notes and the lien on the land for payment thereof remained unsatisfied and his liability to Borwein continued, he is postponed in the assertion of a lien on the land, and cannot claim the right to participate in the proceeds of sale.
A surety or indorser on a note who has paid only a part of the debt for which he is liable, leaving the balánce unpaid, cannot claim, by subrogation, the right to participate in the securities held for the payment of the debt. He must first pay the whole debt. McConnell v. Beattie, 34 Ark. 113; Schoonover v. Allen, 40 Ark. 132; Sheldon on Subrogation, § 127; Columbia Finance Co. v. Kentucky Union Ry. Co., 60 Fed. 794; Magee v. Leggett, 48 Miss. 139; Gannett v. Blodgett, 39 N. H. 150; Child v. New York, etc., Ry. Co., 129 Mass. 170; Bartholomew v. Salina First Nat. Bank, 57 Kan. 594; Receivers of New Jersey Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658. The New Jersey court in the case last cited said: “The right of subrogation cannot be enforced until the whole debt is paid; and until the creditor be wholly satisfied, there ought [to] and can be no interference with his rights or his securities which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim.” ■
Appellant received the notes from Haupman after maturity and charged with notice of the decree rendered upon them. It succeeded only to the rights of Haupman, and can assert no greater rights.
It appears that the land was fairly sold by the commissioner, and the sale was confirmed by the court, and it brought no more than enough to satisfy Borwein’s decree for the amount of the two notes held by him, interest and cost of suit. Therefore appellant shows no right to any of the fund.
Decree affirmed. | [
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McCueeoch, J.
This is an appeal from the judgment of the circuit court rejecting and refusing to confirm a sale of school lands made by the collector. Exceptions to the collector’s report .of sale were filed in the county court by certain citizens, and that court sustained the exceptions, and rejected the sale. On appeal, the circuit court heard the cause upon oral testimony establishing the market value of the lands, and found that it was sold for an inadequate price, and for that reason rejected the sale.
It cannot reasonably be contended that the finding of the court as to the value of the land is not sustained by the evidence, but appellants urge that, the sale having been properly and regu'larly made on petition of a majority of the adult inhabitants of the township, as provided by statute (this fact being admitted), it was the duty of the county court to confirm it, notwithstanding the inadequacy of the price. They invoke the application of the rule that a judicial sale which has been regularly and fairly made will not be set aside for mere inadequacy of price unless the inadequacy be so great as to shock the judicial sense of justice. But a sale of school land by the collector upon petition of the inhabitants of the township is not a judicial sale, though the statute requires that it must be confirmed by the county court. It is purely a statutory proceeding, and the statute alone must be looked to in ascertaining its terms and effect.
The statute provides that the collector, after having advertised, appraised and sold the land, shall “report all sales to the county court, which may reject or confirm the same,” and thac, “if any sale be rejected, the county court may direct the collector to again advertise and offer the land, and may specify the minimum price at which the tract or tracts may be sold, not to be less than two-thirds of the appraised value.” Kirby’s Digest, § 7707.
This court in a recent opinion concerning the power and duty of the county court with reference to such sales, said: “The authority to order the sale being in the male inhabitants, the jurisdiction of the county court is confined to protecting the inhabitants against a sacrifice of the land. The inhabitants decide when the land shall be sold. All that remains for the county court to do is to prevent a sacrifice by the sale of the land below its true value.” Ex parte Young, 74 Ark. 361. In the case at bar, both the county and circuit courts found from the evidence introduced that the land had been sold for an inadequate price, and it became the duty of the court to prevent the sacrifice by rejecting the sale and ordering a new sale either with or without fixing a minimum price. We have no doubt, from the language used in the statute, that it was intended to give the court authority to reject the sale on account of inadequacy of price as well as on account of irregularities or unfairness. In no other way could the court completely protect the interest of the public. The power of the court to either “reject or confirm” the sale is not to be exercised arbitrarily, so as to amount to the prohibition of a sale which the statutes authorize the inhabitants of the township to order. That is what we held in Ex parte Young, supra. The court should investigate the facts as to the regularity of the advertisement, appraisement and sale, the fairness of the sale and adequacy of the price, and then either confirm the sale or reject it and order a new sale. We find that this is precisely what was done by the court below in this case, and, there being sufficient evidence to sustain the finding, the judgment must be affirmed.
Hill, C. J., absent and not participating. | [
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Battrr, J.
James T. Grubb in his lifetime brought an action against C. H. Bacon for damages caused by an assault and battery made upon him by the defendant. The action was commenced on the 16th of November, 1901. The plaintiff died, and the action was revived in the name of W. H. Martin, as special administrator.
The defendant moved the court to quash the summons, setting out the grounds in his motion; and the plaintiff replied, stating facts. The court sustained the motion, and dismissed the action, and the plaintiff appealed.
The motion was heard and sustained upon the following agreed statement of facts:
“The alleged assault for which this action was brought was made on the 6th day of May, 1901, in the city of Hot Springs, Garland County, Arkansas. Upon said date the defendant was a visitor to the city of Hot Springs, and was not present in said city under compulsion of any judicial process, but was here voluntarily.
“Said defendant, C. H. Bacon, is, and was on the said 6th day of May, 1901, a resident of the State of Tennessee.
“That upon a preliminary examination being made and held, in which said alleged assault was investigated, the defendant was held to await the action of the grand jury of Garland County, and was permitted to, and did, give bond in the sum of one thousand dollars for his appearance on the 1st day of t-h'e October, 1901, term of the circuit court of Garland County, next ensuing.
“That afterwards, to wir, on the 19th day of October, 1901, said grand jury returned a bill of indictment charging the said Bacon with assault with intent to kill, committed upon the person of the said J. T. Grubb, and on the --day of -, 1901, an order was made by the circuit court of Garland County permitting the said Bacon to remain upon the bond already given by him until the further order of the court; and the case was set for trial on the 19th day of November, 1901, the same being also a day of said October term of said court.
“That the defendant left his home, in Tennessee, and came to the city of Hot Springs, arriving here on the 15th day of November, 1901 — coming here for the purpose of being present at said tria], and of making his arrangements for said trial— and was served with summons herein on the 16th day of November, 1901, and came here in obedience to his said bail bond, requiring him to be present at said trial, and for the purpose of being tried under said indictment, and that said defendant was in this county for no other purpose than to be present and submit himself to the orders and judgment of this court in said cause.”
It is well settled byr the great weight of authority that a party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence, either as a party or a witness, or while going to and returning therefrom. Murray v. Wilcox (Iowa), 97. N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263; Powers v. Arkadelphia Lumber Company, 42 Cent. Law J. 397, and note; note to Mullen v. Sanborn, 25 R. R. A. 721. In this State a party, in civil actions and criminal prosecutions, can testify as a witness, and may be exempt from service of civil process in both capacities. Judge Elliott, in Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, gives the reason for the exemption as follows: “If citizens of other States are allowed to come into our jurisdiction to attend court as parties or witnesses, and to freely depart from it, the administration of justice will be.best promoted, since a defendant’s personal presence is often essential to enable his counsel to justly conduct his defense. The principle of State comity, too, demands that a citizen of another State who submits to the jurisdiction of our courts, and here wages his forensic contest, should not be compelled to do so under the limitation and obligation of submitting to the jurisdiction of our courts in every case that may be brought against him. While coming and departing, as well as while actually in necessary attendance at court, he should be free from the hazard of being compelled to answer in other actions. It is an evidence of respect for our laws and confidence in our courts that he comes here to litigate, and the laws he respects should give him protection. If he can come only under the penalty of yielding to our jurisdiction in every action that may be brought against him, he is deprived of a substantial right because he is willing to trust our courts and our laws without removing hi§ case to the Federal courts, or refusing to put himself in a position where a personal judgment may be rendered against him. High considerations of public policy require that the law should encourage him to freely enter our forums by granting immunity from process in other civil actions, and not discourage him by burdening him with the obligation to submit to the writs of our courts if he comes within our borders.”
Judge Trent, in Small v. Montgomery (C. C.), 23 Fed. 707, said: “All the United States circuit judges who have passed upon the question of late, as well as dicta by the Supreme Court of the United States in respect thereto, reach this result, viz, that where a party in good faith is brought within the jurisdiction of the State, or detained therein; being a nonresident, either as party to the suit, or as .witness in another suit, he is not subject to service. And the reason — the main reason — is very potential, so far as our country is concerned. There are many States, stretching from Maine to Oregon, and a man who is required to go from one to the other, either as a witness or as a party to a suit, should not be pursued by writ while abroad, instead of being sued at his own residence; otherwise every one, as is stated in many of these opinions, would avoid as far as possible being subjected thousands of miles away to suits of this character.” Atchison v. Morris (C. C.), 11 Fed. 582.
Upon the same principle of justice, good faith, and comity, and to subserve the due administration of justice, it has been held that “a person who has been brought within the jurisdiction of a coupt from another State upon a requisition, as a fugitive from justice, and has been tried for or discharged as to the offense against him, is not subject to arrest on a civil process until a reasonable time and opportunity have been given him to return to the State from which he was taken.” Moletor v. Strinen (Wis.), 44 N. W. 1099, 7 L. R. A. 817, 20 Am. St. Rep. 71; Blair v. Turtle, 1 McCrary, 372, 5 Fed. 394; Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 630; Cannon's Case, 47 Mich. 482, 11 N. W. 280.
The appellee comes within the spirit of the rule which exempts persons from .service of civil process, and is entitled to its benefit. He is a nonresident of this State — a resident of the State of Tennessee — and was bound to attend the Garland Circuit Court, in this State, to avoid the forfeiture of his bond. He was also entitled' to attend as a witness in his own behalf. His attendance was compulsory. While in attendance in obedience to his bond, process in this case was served upon him. The service, on his motion, should be set aside. Murray v. Wilcox (Iowa), 97 N. W. 1087, 101 Am. St. Rep. 263, 64 L. R. A. 534.
Judgment as to the service of process is affirmed, and in other respects is reversed. | [
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Wood. J.
This is an action in ejectment brought, by C. B. and J. W. Jones against W111. N. Carpenter and others for the possession of the east half of the southeast quarter, and the northwest quarter of the southeast quarter of section 27, township 2 south, range 3 west, in Arkansas County, Arkansas.
The abstract of the evidence and the instructions show that the only questions presented and determined by the court below were whether or not Matilda Heigh, through whom both parties claim title, has deeded the land in controversy to John W. Jones, the ancestor of appellees, and, if so, could appellees, upon the deed being lost, prove its execution and contents by parol evidence. The lower court gave the following instructions:
•“1. The plaintiff in this suit, in order to recover the land in controversy, must rely upon the strength of his own title, and not on the weakness of the title of the defendant; and before you can find for the plaintiff in this suit you must find the legal title to said land to have been vested in the plaintiff at the commencement of this suit.
“2. The plaintiff in this suit claims that a conveyance of the lands in controversy from Matilda Heigh to John W. Jones was made; that a deed duly executed was delivered to John W. Jones, and that said deed was not recorded, and that the original was lost. The court instructs you that the best evidence of a title is the original deed of conveyance, and the next best evidence is a certified copy of the record. When the original deed was lost and not put of record, the plaintiff may show by oral testimony that a deed was made, and the title was conveyed to said Jones by Matilda Heigh; and, in determining whether or no such a conveyance was made, you may take into consideration oral evidence that such a deed was made; and in connection with said oral evidence you may consider who claims to be the owner of said land, how long such claim has been set up, whether the said land was held adversely to said claim, if wild and cultivated, who paid the taxes on said land, and whether or not said land has been recognized and known as the Jones land since the time it is claimed said land was conveyed from Matilda Heigh to said Jones. And if you find from all the evidence in this case that the title to said land never passed from Matilda Heigh to John W. Jones, then the plaintiff is not entitled to recover in this suit, and the form of your verdict will be, ‘We, the jury, find for the defendant.’ If you find the title to the land in controversy to be in the plaintiff, the form of your verdict will be, ‘We, the jury, find for the plaintiff.’ ”
The court refused the following instructions, which were asked for the defendants:
“3. The court instructs the jury that, in order to prove a lost deed, its existence must be proved with great clearness; that the signatures by the parties signing it must be proved to have been legal; that the consideration in said deed must be proved; that the lands conveyed in said deed must be proved; that the approximate date of said deed must be proved; that the granting clause in said deed must be proved.
“4. The court instructs the jury that all the facts and details of a lost deed must be so clearly proved that the proof will supply the place of the instrument itself, in order that the defendant may ■ except to any legal defects therein; and unless plaintiff so makes .said proof, you will find for defendant.”
There was no error in the giving or refusing of instructions. The questions at issue in the court below were properly presented. The questions of law involved here are .ruled by the principles announced in Calloway v. Cossart, 45 Ark. 81, and Steward v. Scott, 57 Ark. 153.
Appellants cannot complain here of the failure of the court to give instructions on the burden of proof and credibility of witnesses, when no request was made by them of the court below for such instructions. Had appellants asked such instructions, they would have doubtless been given. No question of that kind was raised in the court below, and can not be raised here for the first time.
We find no prejudicial error in the rulings of the court upon the admissibility of evidence. Upon the question 'of fact there was evidence sufficient here to support the verdict.
The judgment is therefore affirmed. | [
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McCuelocit, J.,
(after stating the facts.) The only question before us for determination is, whether the evidence introduced by the plaintiff was legally sufficient to support a verdict in his favor; and in testing that question we must give the testimony its strongest probative force, and accept that view of the facts which it will warrant most favorable to plaintiff’s cause of action. Catlett v. Railway Co., 57 Ark. 461; Ford v. St. L., I. M. & S. Ry. Co., 66 Ark. 363; Burns v. St. Louis S. W. Ry. Co., ante p. 10.
. Appellant lived at Brinkley, a station on- defendant’s railroad, but was engaged in business at a switch known as the G. & C. Siding, six and one-half miles west of Brinkley, on defendant’s road. Passenger trains did not stop at this switch, and appellant was accustomed to ride out there two or three times a week on freight trains which stopped there. On the occasion in question he boarded a freight train at Brinkley to go the the switch, and also shipped a lot of merchandise to be put off there. Bn route he became sick, and his bowels wanted to move, the call being too urgent to await the arrival at his destination. The caboose was not provided with a closet, and he asked the conductor to slow the train down so that he could get off, attend to the call of nature, and walk the remainder of the distance to the. switch. The conductor declined to do that. Shortly afterwards the train reached the switch, and was brought to a stop, but the caboose was stopped over a trestle 85 feet long and 20 feet above the surface of the ground.
Appellant testified that he did not know that the caboose was over the trestle, and walked out on the rear step, expecting to. get off; that as he walked out on the step he met the conductor going into the caboose, and the latter said to him, “You are in a hurry?” to which appellant replied, “Yes, I am;” that a brakeman on the front platform of the caboose called to him, saying, “Just squat on the steps.” Appellant describes the incident as follows: “This man I was speaking about (the brakeman) said, ‘Just squat down there,’ and I said, T can’t get off on the dump, for they have stopped over a trestle,’ and he said, ‘Squat on the steps’ and I loosed my pants, and had the rail by my left hand, and the train gave a jerk, and I fell to the trestle, and from there to the ground, and that’s all there is to it.” He testified also to material injury resulting from the fall — his collar bone and one rib were broken, and his arm was severely hurt.
Appellant contends that the railroad company was guilty of negligence in failing to provide a closet for the use of passengers, and that he should recover damages on that account. Freight trains are not equipped for the carriage of passengers, and public carriers are not' required to equip thém for that purpose. Arkansas Midland Railway v. Canman, 52 Ark. 517; Krumm v. St. L. I. M. & So. Ry. Co., 71 Ark. 590; Chicago & A. Ry. v. Arnol, 144 Ill. 261.
“A passenger riding in a freight train or a mixed train must be deemed to assume all the inconveniences and risks usually and reasonably incident to transportation or travel on such trains, and is not entitled to insist upon having the same care and attention that he might justly demand upon a regular passenger train.” 4 Elliott on Railroads, § 1629; Hutchinson on Carriers, p. 6x6. 1 Fetter on Carriers of Passengers, pp. 33, 34; Olds v. New York, etc., Ry. Co., 172 Mass. 73. But where the railroad company undertakes the carriage of passengers on freight trains, it owes such passengers the same high degree of care to protect them from injury as if they were on a passenger train. Hutchinson on Carriers, p. 614; 1 Fetter on Carriers of Passengers, p. 585; Erwin v. Railway Co., 94 Mo. App. 289; C. & A. Ry. Co. v. Arnol, supra. Judge Thompson states the rule thus: “We find the courts are agreed upon the proposition that where a railway carrier carries passengers upon its freight trains, it thereby assumes toward them the relation of a carrier to his passenger. And while in such a case it is a reasonable conclusion that the passenger assumes the increased risk incident to the operation and management of such trains, yet, subject to this qualification, the railway company becomes bound in favor of the passenger by all the obligations of a common carrier upon a regular passenger train.” 3 Thompson on Negligence, § 2901. Moreover, if it be held that it was the duty of the company to provide closets, the omission to do so cannot be said to have been the proximate cause of the injury complained of by appellant.
We think, however, that there was evidence from which the jury might have found that the conductor knew of the perilous position of appellant and could have prevented the injury, either by warning him of the danger, or by holding the train at a standstill. If the conductor was aware of his peril, and could, by the exercise of ordinary care, have warned him, and failed to do so, or could, b)' the exercise of such .care, have prevented the sudden movement of the train which threw appellant off, and failed to do so, the company is liable for the injury.
Appellant testified that the conductor saw him go down the steps, and said “You are in a hurry?” Whether the conductor meant that appellant was in a hurry to debark, or to relieve himself from the 'steps of the caboose, does not appear; but the testimony shows that the conductor went into the caboose, and the jury might have found that he knew appellant was in a position of danger on the steps with the caboose on a trestle 20 feet high. They might also have found that the .conductor heard the brakeman direct appellant to “squat down on the steps,” and knew that he was about to relieve his bowels in that position. If so, he should have warned appellant of the danger or exercised some care to prevent the train from suddenly moving. At least, the question of his knowledge of appellant’s position and care exercised to protect him should have been submitted to the jury under proper instructions.
This court has repeatedly held that, notwithstanding the negligence of the injured person in putting himself in a perilous position, whether a passenger or a trespasser on the track, if the direct cause of the injury is the omission of employees of the railroad company, after becoming aware of his peril, to use a proper degree of care to protect him, the company is liable. L. R. & Ft. Smith Ry. Co. v. Pankhurst, 36 Ark. 371; L. R. & Ft. Smith Ry. Co. v. Cavenesse, 48 Ark. 106; St. Louis & S. F. R. Co. v. Townsend, 69 Ark. 380; St. L., I. M. & Sou. Ry. Co. v. Evans, 74 Ark. 407; L. R. Traction & Electric R. Co. v. Kimbro, 75 Ark. 211; K. C. Sou. Ry. Co. v. McGinty, ante p. 356.
The court erred in directing a verdict, and the judgment is reversed, and the cause remanded for a new trial. | [
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McCulloch, J.
Appellee was tried and convicted by the mayor of the incorporated town of DeWitt upon a warrant of arrest charging him with violation of an ordinance of the town providing that “it shall be unlawful and it is hereby declared a public nuisance for any person to appear or be found on any street, alley or on the public square of DeWitt in a state of intoxication or drunkenness.” He appealed to the circuit court of Arkansas County, where the case was tried before a jury upon an agreed statement of facts to the effect that he was drunk on the streets of the town on the day named and as charged in the warrant of arrest. The court held that the ordinance was void, and directed the jury to return a verdict of not guilty, which was done, and the town appealed to this court.
We are not favored with a brief or argument in behalf of appellee in support of the decision of the court, but it is disclosed in the bill of exceptions that the ordinance was adjudged to be void on the grounds that it is in conflict with sections 2550, 2552 and 2553 of Kirby’s Digest. Those sections of the statutes provide that “it shall be the duty of all peace officers to arrest any drunken person whom they may find at large and not in the care of some discreet person, and take him before some magistrate of the county, city or town in which the arrest is made,” who may “order him to be confined until he becomes sober.” The next^ section provides that the magistrate may require of such person “security for his good behavior, and for keeping the peace for a period of not exceeding one year.” Municipal corporations are by statute given the power to prevent by ordinances “injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated within the jurisdiction given to the board of health.” Kirby’s Dig. § 5438. In the case of Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63, this court said that “these statutes endow municipal corporations with power to prevent and abate nuisances, but they do not authorize „the declaration of anything to be a nuisance which is not so in fact.” But the court in that case upheld an ordinance declaring the keeping of a stallion or jack within the limits of the corporation to be a nuisance, and punishable by fine. Kirby’s Digest, § 5461, is as follows: “It is made the duty of the municipal corporation to publish such by-laws and ordinances as shall be necessary to secure such corporations and their inhabitants against injuries by fire, thieves, robbers, burglars and other persons violating the public peace; for the suppression of riots, and gambling, and indecent and disorderly conduct; for the punishment of all lewd and lascivious behavior in the streets and other public places; and they shall have power to make and publish such by-laws and ordinances, not inconsistent with the ' laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.” These statutes undoubtedly authorize the ordinance in question. A municipality may, by ordinance, declare drunkenness in a public place to be either a> nuisance or disorderly conduct, and punish it as such. It is a matter of common knowledge that drunkenness in a public place is offensive to all who^come in contact with the person in that condition. It is a nuisance and disorderly conduct, within the meaning of the statute, and may be declared to be such. Nor is the ordinance in any wise conflicting with the statute authorizing the arrest by a peace officer of the State of a drunken person found in a public place. Brizzolari v. State, 37 Ark. 364.
The judgment is reversed, and remanded for a new trial. | [
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McCulloch, J.
Appellees, Thomas C. Trimble, J. M. McClintock and Eugene Lankford brought this suit against
R. W. Worthen, Oscar Davis, Zeb Ward, Jr., George R. Brown and W. B. Worthen to recover $2,500 alleged, to be owing them by the defendants for services as attorneys at law rendered for the defendants in an action in the Prairie Circuit Court, wherein S. L. Harr was plaintiff and said R. W. Worthen and the Mississippi & Little Rock Railroad Company were defendants.
R. W. Worthen failed to answer, and judgment was rendered by default against him. The cause was dismissed before trial as to W- B. Worthen and George R. Brown.
Appellants, Davis and Ward, answered, denying specifically each allegation of the complaint. A trial by -jury was had upon the issues raised by their answer, which resulted in a verdict in favor of the plaintiffs for $2,000, and defendants appealed to this court.
Appellants asked a peremptory instruction to the jury to return a verdict in their favor, and they now urge that the verdict against them is without testimony to support it. In testing the sufficiency of the evidence we must give it the strongest probative force of which it is susceptible in favor of the verdict of the jury.
The suit in which the services of appellees were performed was against a railroad corporation and R. W. Worthen, its principal stockholder and manager. He employed appellees as attorneys to defend the suit,; and it is not claimed that either of appellants had anything to do with the employment of attorneys, or that any mention was ever made to them, until after the termination of the suit, that they would be expected to pay any part of the fee.
Appellants each owned stock of the face value of $100 in the railroad corporation, but which was of no value at the time of the pendency of the suit in question, as the corporation was then insolvent. They were directors' in the corporation, and this stock was given them by R. W. Worthen, who owned substantially all the stock, to qualify them as directors. They were also trustees of the estate of Zeb Ward, deceased, which estate held a large amount of bonds issued by the railroad company. Appellant Zeb Ward, Jr., and the wife of appellant Davis were two of the five heirs of Zeb Ward, deceased.
Col. Trimble and Mr. Lankford, of appellees, both testified that they were employed by R. W. Worthen in 1893 to defend the suit, and that some time between that time and the trial of the case in 1896 they consulted with Davis in Little Rock concerning the suit; that Davis manifested considerable interest in the suit, and attended the trial. They say that he was sworn as a witness in the case, and claimed the privilege, as a party in interest, of exemption from the rule of the court excluding the witnesses from the court room during the trial. Neither of them testify, however, that he employed them in the suit, or agreed before the trial to pay the fee, or that anything was said about the fee or employment. Col. Trimble testified that some time after the trial he approached Davis about payment of the fee, and the latter declined to pay it, but said that the attorneys ought to have something, and that he (Davis) was going to get together Worthen and others, who were interested, and consult about it.
Mr. Lankford testified that a short while after the trial he called to see appellant Davis in Little Rock about the fee, and he relates the substance of the interview with Davis, as follows: “I remember when I saw Mr. Davis he put me off by saying he would have to see Mr. Worthen; that they had some matters to fix up, and said for me to see Worthen. I told him I needed the money. He said: “We have got to have a little straightening up, the Wards and Worthen; and I don’t know whether we ought to-pay it or he.- Wait and see him.”
It is further shown that, after the trial of the Harr suit, a bill' of exceptions was filed preparatory to appeal to this court, but the appeal was not perfected, and Davis and the other trustees of the Zeb Ward estate paid the fees of the stenographer, something over $200, for services in the trial and in making a transcript of the testimony. Some time during the period mentioned, the precise-date not appearing, the railroad was, in a suit instituted by the-bondholders in the Federal court, placed in the hands of receivers, and Davis and W. B. Worthen were appointed receivers.
This is all the evidence throwing any light upon the connection of appellants with the Harr suit or the employment of appel lees as attorneys. Is there sufficient to warrant a finding that either of the appellants expressly or impliedly undertook to pay any part of the fee due appellees for services ? We think not.
It is admitted that neither of appellants made any contract with appellees, and that appellees had been employed by- Mr. Worthen, the manager of the railroad corporation, before the pendency of the suit was brought to the attention of appellants. It is not contended that they ever did more than to manifest such interests as was consistent with their duties as directors in the railroad corporation, and as trustees of the Zeb Ward estate. They had a right to display that much concern in the suit, without impliedly making themselves personally liable for the fees of the attorneys who had already been employed by one in authority to conduct the defense of the suit for the railroad company.
0 Learned counsel for appellees contend that appellants were interested in the result of the suit, and knew of the services being performed by appellees, and that this fact is sufficient to" bring the case within the rule that where an attorney performs services for another with his consent, and there is no agreement for compensation, the law will imply a contract to pay what the service is reasonably worth. This is a familiar principle, and has been repeatedly applied by this court. Ford v. Ward, 26 Ark. 360; Hogg v. Faster, 56 Ark. 382; Lewis v. Lewis, 75 Ark. 191.
It does not, however, always follow that because one receives the benefit, directly or indirectly, of the services of another, the law implies a contract to pay therefor. Roselius v. Delachaise, 5 La. Ann. 481; Rives v. Patty, 20 So. (Miss.) 862. Each case must stand upon its own peculiar facts.
But the facts of this case lack the essentials for an application of this principle, for the reason that appellants were not parties to the suit, and appellees were employed by another. If appellants had by their course of conduct induced appellees to render the service, or if they had been parties to the suit, and remained silent and accepted the services of appellees, even though. employed by another, the law would imply an agreement on their part to pay for the service. But, inasmuch as they had already been employed to defend the suit, appellants had the right to assume that a display of interest in the suit on their part would not be taken as an implied agreement to pay the fee; and, on the other hand, appellees, after having been previously employed by Worthen, the manager of the railroad, to defend the suit brought against him and the railroad, had no right to assume from such display of interest by appellants that they would pay the fee. Appellants were acting in a representative capacity as directors of the railroad corporation, and had the right, and it became their duty, to manifest a degree of interest in the suit without incurring personal liability for the fee. No intimation was given them during the pendency of the suit that they would be called upon to pay any part-of the fees, and nothing was said or done, so far as appears from the testimony, to. call for a disclaimer of any willingness to become responsible for the fee. We see nothing whatever in their conduct from which an agreement to pay for the services of the attorneys can be implied. It is not contended that appellants are bound by the statements or assurances made by Davis to appellee after the trial concerning payment of the fee. There was no consideration for a contract made at that time after the performance of the service for payment of the fee.
Giving to the evidence its fullest probative force in favor of the cause of action of appellees, it fails entirely to establish any contract, either express or implied, on the part of appellants to employ appellees, or to pay them for services performed in the suit named. It proves neither a contract nor facts or circumstances from which one can be implied.
The verdict not being sustained by sufficient evidence, the judgment must be reversed and remanded for a new trial. It is so ordered. | [
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Riddick, J.
This is an appeal from a judgment against the defendant for damages for killing a cow belonging to plaintiff. The cow was struck and killed by a passenger train on the 19th day of April, 1902. The train was passing at the rate of forty miles an hour through the town of Tuckerman early in the morning of that day, and the cow came from behind an ice house .about twenty or thirty feet from the track. The engineer testified that he did not and could not see the cow until it cam.e from behind the ice house going towards the track, and that it was then too late to do anything to avoid striking it. He did not sound any stock alarm, and there was evidence tending to show that no bell was rung for the crossing. It seems clear from the •engineer’s testimony that it was too late after he saw the cow to do anything towards checking the speed of the train, and he says that he did not have time to even give the stock alarm. But he stated that he did not know whether the cow was walking •or running, nor does he state how far the train was below the •crossing at the time he first saw the cow. As the cow was twenty or thirty feet from the track at the time she came from behind the ice house, with a ditch between her and the track, it ■would seem that, unless she was running very fast, he. could have sounded the stock alarm, as that can be done in an instant. He states that he did not have time to do this, but that statement was in the nature of an opinion. As he did not go into particulars, and show how near the train was to thp cow, or whether the cow was walking or running, we think the facts are not definitely enough shown for us to say as a matter of law that the jury had no right to disbelieve his statement that he did not have time enough to sound a stock alarm. A higher degree of care is required in running a train at such high rate of speed when passing through a town than when going through an open country. The engineer, passing through this town, should have been on the alert, prepared for instant action, and whether by so doing he might have sounded the stock alarm was, we think, properly left to the jury under the facts proved.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) 1. The record brought here by certiorari on motion of the Attornéy General shows that an appeal was taken by appellant from a judgment of conviction before the magistrate. The circuit court therefore had jurisdiction.
2. The circuit court did not arbitrarily overrule appellant’s motion for change of venue, but examined three of the witnesses signing the supporting affidavit, and found that they were not informed as to the conditions of the minds of the inhabitants concerning the matter, except about the city of Batesville. This alone was sufficient to justify the court in refusing the motion for change of venue. The court gave, as an additional reason for refusing the change, noncompliance by the appellant with its rules. This was no legal reason for refusing a motion for change of venue where the statute had been complied with, and, had this •been the only reason for the court’s ruling, it would have been error. But, having examined the witnesses and ascertained the facts as found in the court’s order overruling the motion, which finding is sustained by the evidence, the court’s ruling in refusing the motion cannot be considered arbitrary, and therefore erroneous.
3. The court permitted the State’s witness, Hall, to testify that the appellant had, on the day previous to the trial, assaulted him and used abusive language toward him. The appellant’s testimony shows that the assault on and abusive language to Hall was because of what Hall had sworn before concerning appellant’s connection with the crime charged. Hall was to testify, and did testify, the next day. T.he testimony tended to show the animus of appellant toward the prosecuting witness, Hall, on account of the testimony he had previously given, and which he might be expected to give again on the morrow. It tended to show a disposition on the part of appellant to browbeat or intimidate the witness, Hall, on account of his testimony, and in that sense might be regarded as an effort on the part of appellant to .suppress testimony against him.
4. Appellant urges that it was error for the court to permit witnesses to testify to conversations with Hall in the absence of appellant, in which he made statements damaging to appellant, but appellant failed to reserve exceptions to the ruling of the court in admitting this testimoay, and the objection made here for the first time cannot avail.
5. The testimony of J. W. Six that he examined the charge of incest against W. J. Hall, and committed him to jail, without producing the commitment or record, or accounting for same if erroneous, was not prejudicial, for the witness, W. J. Hall, had already testified, without objection, that he had been committed to jail on a charge of incest, and appellant himself testified that witness Hall had*been in jail on that charge.
6. The fact that W. J. Hall, whom appellant is alleged to have intended to assist in escaping from'jail, had been tried and acquitted was irrelevant to the charge against appellant, but we do not consider it prejudicial. However, if it was relevant and prejudicial, appellant saved only a general exception to it, failing to point out the specific reason for its rejection. This was not sufficient. Vaughan v. State, 58 Ark, 353.
7. The offense is complete under the statute when any person shall have conveyed into the jail or place of confinement anything proper or useful to aid any prisoner in his escape with the intent to facilitate the escape of any prisoner, whether such escape be effected or attempted or not. The acquiescence or co-operation of the prisoner, which appellant contends is necessary, does not seem to be contemplated by the act. The express language is to the contrary.
8. The bill of exceptions contains the following: “Be it remembered that upon the trial of the above-entitled cause J. C. Yancey, attorney for the State, made the following improper and prejudicial remarks: ‘Bob Maxey knew that dead men tell no lies,’ and saying that ‘Maxey, the defendant, intended to kill Hall on his escape,’ and saying ‘they [meaning the defendant’s .attorneys] ask you to believe that Morgan would be guilty of such a. scheme as this, and you must believe that Morgan would stoop to instigate a scheme of this kind, or that Bob Maxey is guilty,’ to which remarks the defendant at the time excepted, and asked the court to exclude the same from the jury, which was by the court overruled, to which ruling of the court defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.”
The above record shows that the circuit court regarded the remarks of the attorney as “improper and prejudicial,” but, notwithstanding this, he overruled the motion for a new trial, setting up such remarks as the fifteenth ground in such motion. This record presents the somewhat anomalous condition of the circuit judge expressing an opinion as to the effect of the remarks objected to, but failing to give the appellant the benefit of his opinion by granting his motion for a new trial. As the learned trial judge, notwithstanding his declaration that the remarks of the attorney set out above were “improper and prejudicial,” refused the appellant’s motion for a new trial, the question is presented to us as to whether the remarks were really “improper and prejudicial,” the declaration of the circuit judge to the contrary notwithstanding. The witness, Hall, had testified that the appellant had hit him on the head, and knocked him down, and that from the effect of such blow he was in bad condition, and suffering from nervousness at the time of giving his testimony. There was nothing beyond this to indicate the character of the assault that was made by the appellant on the witness, Hall, and this was hardly sufficient to justify the attorney in reaching the conclusion that it was the intention of the appellant, by this assault, to kill the witness, Hall, in order to get rid of his testimony, as indicated by the language which the attorney used. Still, the facts upon which he predicated his opinion were before the jury, and, as sensible men, we must assume that they gave the opinion of the attorney as to these facts no more or greater consideration than the facts themselves justified. In this view we do not see how the remarks concerning the assault could have been prejudicial. Likewise, as to what was said as to Sheriff Morgan. The facts were all before the jury, upon which the attorney was expressing his opinion. It was no more than an opinion which he was expressing. The learned counsel for appellant say “that, the proof on the part of the State showed conclusively that the sheriff was a party to the scheme to induce the defendant to violate the law by committing the act for which he was tried in this case.” This being the opinion of counsel for appellant as to the conduct of Sheriff Morgan in connection with the transaction, it was certainly legitimate argument for counsel for the State to express the opinion that what the sheriff did in connection with the matter must be attributed to innocent and proper motives, and, if so, the appellant was guilty. We do not find the remarks complained of prejudicial to appellant.
Having considered all the assignments of error in the order presented in appellant’s brief, and finding no reversible error, the judgment is affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an action to recover the amount due on a note given for rent of land. The defendant admits the execution of the note, and states that,', though it purports to be for rent, it was in fact executed for a part of the purchase price of the land, and that he is ready now, .and has always been ready and willing, to pay it if plaintiff will ■execute a deed to the land. He contends that, as equity abhors. forfeitures, he has still the right to pay the note and the remainder ■of the price and take the land. The law on this point, so far as :it applies to this case, is very clearly stated by Prof. Pomeroy .as follows: “It is well settled that when the parties have so .stipulated as to make the time of payment of the essence of the •contract, within the view of equity as well as of the law, a court ■of equity can not relieve a vendee who has made default. With ■respect to this rule there is no doubt; the only difficulty is in -determining when time has thus been made essential. It is also -equally certain that, when the contract is made to depend upon a •condition precedent, — in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee 'has paid certain sums at certain specified times, — then also a •court of equity will not relieve the vendee against the forfeiture ■incurred by a breach of such condition precedent.” 1 Pom. lEquity, § 455; Quertermous v. Hatfield, 54 Ark. 16.
Now, in this contract the parties expressly stipulated that time was of the essence of the contract. The right of the defendant to purchase the land depended under the contract upon the prompt payment of the five rent notes as they fell due. Until he had paid those notes, he had under his contract no right to purchase. If he had paid those notes promptly, the last of which was due on the 1st of November, 1901, he had under the contract the option to purchase the land at any time between that date and the first of January following. That is to say, if he had paid the rent notes, he would then have had two months in which to exercise his option to purchase. But he did not pay the last note. His excuse for this failure is that the defendant failed to tender him a deed. Now, an examination of the contract will show that plaintiff was not required to execute the deed to defendant until all the rent notes and the further sum of eight dollars had been paid. The failure of the defendant to tender a deed was no legal excuse for the failure to pay the note, for the payment of all the rent notes was a condition precedent upon which the right of purchase depended. The pleadings show that defendant made an offer to pay this note in his answer, but that was long after the maturity of the note, and after the time when the option to purchase would have expired, even had the note been paid. The contract may be a harsh one, but it contravenes no rule of public policy. The parties made it, and the courts cannot alter it. Cheney v. Libby, 134 U. S. 68.
On the whole case, we are of the opinion thát the judgment of the chancellor is right, and it is therefore affirmed. | [
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Hill, C. J.
Mr. H. L. Remmel was a general agent of the appellant life insurance company, being district manager for the State of Arkansas. Mrs. George was a soliciting agent of Mr. Remmel’s. The company accepted no notes for premiums, but Mr. Remmel authorized his solicitors to take notes for. premiums, and directed them, when the party was not strong financially, to divide the annual premium into quarterly payments. When Mr. Remmel approved the notes taken by the solicitors, and the application was accepted by the company, and the policy written, he would pay the first note and deliver the policy. The company required all premiums to be paid in cash; and if Mr. Remmel took a note he paid the company, and the note was his individual property. He transacted ninety per cent, of his business in notes and the company was aware of his method of business.
George M. Farr was a letter carrier in the city of Little Rock, and Mrs. George solicited him to take life insurance with the company she was working for. ’ She succeeded in getting him to apply for a $2,000 policy, and his application was accepted, the policy written and delivered. He paid no cash, but he and his wife executed four promissory notes, in usual form of negotiable notes, to the order qf Mrs. George, due three, six, nine and twelve months from date, respectively. The quarterly premiums were due in advance, and the effect of these notes was to carry the payments over a period of one year, instead of nine months. The agreement when the notes were executed and the subsequent conduct of Farr are subjects of sharp conflict in the evidence. Farr paid none of the notes, and died before the fourth note became due, and his widow, who has remarried, brought suit on the policy, and recovered in the circuit court, and the compan3r has appealed.
The evidence adduced on the part of Mrs. Farr (now Mrs. Abbey) was in substance:
■ That there was an understanding with Mrs. George that there was to be no forfeiture of the policy till the fourth note fell due, and she was preparing to pay the notes at the end of the year. That when the first one came due they were to pay it, and if not that Mrs. George would stand good for it, and that if a stipulation had been put in the notes that the policy would forfeit when any note was not paid, she would not have signed them. That after Farr’s death Mrs. George told her to pay Mr. Remmel the money, that the policy was as good as ever, and that she (Mrs. George) had an interest of $40 in the premium. The notes were never returned to her or to Farr.
The testimony on behalf of the company was in substance:
That Farr was told that the policy would forfeit on non-payment of any one of the notes; that at his request, and on his promises to repay the amounts, Mrs. George got Mr. Remmel to pay each of the two first notes, and that Farr afterwards declined' to pay or continue the policy, and said he. would take cheaper insurance. That Mrs. George indorsed the first and second notes to -Mr. Reinmel, but did not indorse the last two. That the last notes were never accepted by Remmel, but merely retained by him with the understanding that as each note was paid he would accept the next one. After Farr’s death Mr. Remmel gave the last two notes to a clerk to return to Mrs. Farr, and the clerk lost them. The evidence is undisputed that Mrs. George was the agent of Mr. Remmel, and had no express authority to accept notes finally; only to take them subject to his approval and acceptance. Mr. Remmel wrote Farr several letters demanding payment of each of the first notes, explaining that he had paid them to the company, thereby giving and continuing life to the policy; and he threatened suit upon them, and finally offered to grant further indulgence if he would get a surety.
Mrs. George had no right to waive cash payment and accept notes therefor. She was a mere soliciting agent under the general agent, and she could not bind the company by accepting notes in lieu of cash for the first or any subsequent premium. Nor could she bind the company by any agreement that default in payment of premiums would not forfeit the policy. American Ins. Co. v. Hampton, 54 Ark. 78; Burlington Ins. Co. v. Kennerly, 60 Ark. 532; German-American Ins. Co. v. Humphrey, 62 Ark. 348; Fidelity Mutual Ins. Co. v. Bussell, 75 Ark. 25, 86 S. W. 815; Iowa Life Ins. Co. v. Lewis, 187 U. S. 336.
Mr. Remmel, the general agent, was clothed with authority to transact generally the company’s business in this State, and to collect the premiums, and was permitted by the company to accept notes to himself in lieu of cash to the company, the company looking to him instead of the policy holder for the cash in such cases. This general power gave him authority to bind the company by accepting notes in lieu of cash; and, whether he paid the company or not, when he. accepted a note and waived cash payments, the company was bound by his act, for it was within the apparent scope of his agency. See Miller v. Life Ins. Co. 12 Wall. (U. S.) 285, and long line of decisions following and approving it collected in 7 Rose’s Notes on U. S. Reports, pp. 546-549. In American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562, this court approved the doctrine above stated, and said it was in accordance with “the consensus of modern authority.”
In Insurance Company v. McCain, 96 U. S. 84, the Supreme Court of the U. S. said:
“The law is equally plain that special instructions limiting the authority of a general agent, whose power would otherwise be co-extensive with the business entrusted to him, must be communicated to the party with whom he deals, or the principal will be bound to the same extent as though such special instructions were not given. Were the law otherwise, the door would be open to the commission of gross frauds. Good faith requires that the principal shall be held by the acts of one whom he has publicly clothed with apparent authority to bind him. Story on Agency, § § 126, 127, and cases there cited.”
The court sent the case to the jury under instructions correctly embodying the principles above stated. The right to a recovery was limited to finding from the evidence that Mr. Remmel accepted the notes and instructing that there could be no recovery on any agreement or understanding with Mrs. George to this effect; that the jury must find that Mr. Remmel accepted the notes in lieu of cash payment, including the third note, before the beneficiary could recover. The jury was correctly instructed, and has found that Remmel accepted all of the notes. The question of difficulty before the court is whether there is legally sufficient evidence to sustain this finding. There is positive testimony from Mr. Remmel and Mrs. George that only the first two were accepted, but Mrs. George’s testimony is contradicted, either directly or by necessary implication, on all material matters by ■Mrs. Abbey.
Against this positive testimony of Mr. Remmel and Mrs. George are these facts: Mr. Remmel took and retained all four notes, and promptly paid the company for the first two as they fell due. They were negotiable and not due, and did not belong to him unless he had accepted them; and yet he retained all of them long after Farr had defaulted on the first two, and after he had repeatedly threatened suit on them. The taking of four notes, instead of one, indicates that credit was to be extended for the first year, and not merely the first quarter, and the absence of a clause in the notes forfeiting the policy in case of default gives color to this theory. If Farr gave the notes with that understanding with Mrs. George, their retention by Remmel would indicate an approval of that agreement of his agent. Farr put out these four absolute obligations, good in the hands of an innocent purchaser, and there was no consideration for any of them except the first when they were taken, under Mr. RemmeFs theory, and yet after three defaults they are still retained, and the fourth, not yet due, also retained. These and other facts in evidence are sufficient to support the finding that the notes were .accepted by Mr. Remmel when the policy was delivered.
The judgment is affirmed. | [
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Riddick, J.
The defendant, George Cogburn, was indicted by the grand jury of Montgomery County for murder in the first degree, on account of the killing of Jim West. On the trial the evidence tended to show that Cogburn and West had previously had a fight, and that there was a bad state of feeling between them. West said afterwards that Cogburn had hit him with a rock, and some of the witnesses stated that West had threatened to get even with him, saying that he intended to “peck his head with the same rock.” Still others testified that he had threatened to kill him.
With this state of feeling between them, they attended a picnic at Raney Hill, in that county, on the 25th day of July, 1903. George Cogburn, the defendant, and one of his cousins, had a lemonade stand at the picnic, and several of his brothers were at the picnic. Cogburn and his brothers were probably anticipating trouble from West, for they had with them at the lemonade stand two Winchester rifles. West and one Perrin came up to the stand, Perrin having a Colt’s 44 pistol in his hand, and some of the witnesses say that West had a pistol also. Cogburn and his brother, being, perhaps, apprehensive that West and Perrin were about to assault them, "fired upon them with the Winchester rifles, killing both of them almost instantly. Several witnesses for the State testified positively that, at the time of the shooting, neither West nor Perrin was making any hostile demonstration toward the defendant or his brother. On the other hand, several witnesses testified for the defendant that Perrin and West approached the lemonade stand in a threatening manner. That, as they approached, Andy Cogburn, a brother of George, commanded the peace, to which Perrin and West replied, “Damn your peace!” That Perrin made a demonstration as if he was about to shoot Andy Cogburn, when the defendant said, “Hold on there !” That Perrin then turned and fired a Colt’s 44 revolver at defendant, who returned the fire with his rifle, and that, about this time, West also fired at .defendant with a pistol, and that defendant then turned and shot him. Other shots were fired by a brother of the defendant. In other words, the testimony of a number of witnesses for the State tended to show that defendant was guilty of murder; while, on the other hand, the testimony of other witnesses, most of whom were related to the defendant, tended to show that he shot in self-defense. The jury found the defendant guilty of murder in the second degree, and assessed his punishment at five years in the penitentiary.
On the trial the court gave the jury very full instructions-in reference to the law of self-defense and the other points involved in the case, and we see no error in these instructions. Among them was the following, which is a copy of the statute:
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified' or excused in committing the homicide.” Kirby’s Dig. § 1765. This section of the statute, it will be seen, is a rule of law to-be applied when the killing has been proved, and there is nothing shown to justify or excuse said act. In such a case it may well be presumed that there was no justification, or the defendant would have shown it.
In commenting on this instruction, the attorney for the State said:
“The court tells you, under this instruction, which I read to you, that, the killing being proved, the burden of proving circumstances of mitigation and justification devolves on the accused. Under this law, after we introduced Jim West, we could have rested our case, and the burden was upon them to establish justification; and if they fail to satisfy you by a preponderance of evidence that the killing was justifiable, then you should convict him.” To which the defendant objected, and the court said: “While it is true that if, upon the whole case, they had a reasonable doubt, they must acquit, yet as to matters of mitigation he would be required to furnish a preponderance of the evidence.” Now, the argument of the prosecuting attorney, as shown in the record, was not in accordance with the law; for, while it is true, as our statute declares, that when the killing is proved the burden of showing circumstances that mitigate or excuse the crime devolves upon the accused, where there is nothing in the evidence on the part of the State that tends to mitigate, excuse or justify the killing, still the burden on the whole case is on the State; and when evidence is introduced, either on the part of the State or the defendant, which tends to justify or excuse the act of the defendant, then if such evidence, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant, the jury must acquit. This is settled in this State by the statute which declares that “when there is a reasonable doubt of the defendant’s guilt upon the testimony in the whole case, he is entitled to an acquittal.”' Kirby’s Dig. § 2387.
But if this statement of the prosecuting attorney were correct — -that when the killing is proved the defendant must show by a preponderance of the evidence that the killing was justifiable — the jury would have to reject his defense whenever it was not supported by a preponderance of the evidence. This would limit the doctrine of a reasonable doubt to the fact of the killing, and when that was established beyond a reasonable doubt it would put the burden on the defendant of establishing justification by a preponderance of the evidence, and if he failed .to do so the jury would be required to convict him, even though the evidence adduced by him was sufficient to raise a reasonable doubt as to his guilt. But it cannot be said that the defendant must make out his defense by a preponderance of the evidence, and also that he is entitled to an acquittal if on the whole case the jury have a reasonable, doubt of his guilt, for the two propositions are to some extent inconsistent. Testimony not sufficient to establish a fact by a preponderance of the testimony may be sufficient to raise a reasonable doubt as to the existence of the fact. To tell the jur3r that they must convict unless the fact of self-defense is established by a preponderance of the testimony, and also that they must acquit if they have a reasonable doubt as to whether the defendant acted in self-defense, is telling them to follow two rules which may lead to very different results.
The statute, it will be noticed, says nothing about preponderance of evidence. It says that, the killing being shown, the burden is on the defendant to show facts that justify or excuse his homicide. When, however, he introduces his proof, the question, says Mr-; Wharton, arises: “Is it sufficient for him if he raises a reasonable doubt as to the defense he advances? Or must he establish this defense by a preponderance of proof, in order to entitle him to an acquittal?” He answers the question by saying that when the defense traverses some essential ingredient of the indictment, such as malice or premeditation, it is sufficient if the proof raises a reasonable doubt. If the defendant undertakes to show that the act was done in necessary self-defense, this tends to rebut the allegation of malice; and if the jury have a reasonable doubt on that point, they should acquit, for that is a reasonable doubt as to whether an essential charge in the indictment is true or not. It is otherwise when the defense does not traverse any essential averment of the indictment; for instance, when former conviction or acquittal of the same offense is set up. Wharton’s Crim. Neg. § § 331-334.
. Our statute, as before stated, has answered the question for this State in the same way by declaring that when there is a reasonable doubt on the whole case the jury must acquit;, thus showing that the defendant is not required to make out his case by a preponderance of the evidence. The statement of the law made by the prosecuting attorney was clearly wrong; and when objection was made to it, the court should have stopped him, and told the jury to disregard that statement. Tanks v. State, 71 Ark. 459. But the court did not do so, and, in effect, told the jury that while, if they had a reasonable doubt on the whole case, they should acquit, yet that as to matters of mitigation the defendant must furnish a preponderance of the evidence. We have already shown that this statement of the law is contradictory, and is not correct. As defendant did fufnish the evidence of several witnesses tending to show that the killing was in self-defense, he had the right to have the jury told that it was not necessary for his acquittal that the evidence on this point should preponderate in his favor, but that, if it only raised a reasonable doubt of his guilt on the whole case, he was entitled to an acquittal. The court so stated the law to the jury in his general instructions, but permitted the prosecuting attorney to argue to the contrary before the jury. This ruling of the court upon objection to the argument was, we think, erroneous and prejudicial to the defendant, for which the judgment must be reversed, and a new trial ordered.
It is so ordered. | [
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McCulloch, J.
The appellant, Henry Bradshaw, was tried and convicted under an indictment charging him with the unlawful sale, without license, of certain liquor.
No objection has been made, either here or below, to the form of the' indictment, and the proof was directed to a sale by appellant of a compound or preparation called “Uno,” containing alcohol. It was agreed at the trial below that appellant had sold this preparation as a' beverage, without license; “that it has the general appearance of beer; foams, sparkles, and has the color and taste of beer; that a person could not contain enough of it to intoxicate; and that it is used in lieu of the stronger beverages, and almost universally sold in prohibition districts.” It was shown by the testimony of other witnesses not to be intoxicating, but to be a “mild, pleasant, and .agreeable soft drink, and one in which there is no harm, and from the use of which no intoxication or other deleterious effects can follow.”
An analysis of the liquor proved the following to be contained therein:
Alcohol ..................................1.84
Proteids ........1.........................50
Extractive matters..........................3.50
Sugar ...................................2.50
The court refused to declare the law, as asked by appellant, that before he could be convicted it must appear that the liquor sold was intoxicating, but declared the law to be that it is unlaw ful to sell, without license, any compound or preparation, as a beverage, which contains alcohol.
We are asked by learned counsel for appellant to hold that it is not unlawful to sell, as a beverage, a compound or preparation containing alcohol, unless the same be intoxicating. The statute under which appellant was indicted and convicted has been otherwise construed by the decisions of this court, and we adhere to the construction heretofore given. Bond v. State, 56 Ark. 444; Crawford v. State, 69 Ark. 360.
In the case last cited the court said that “it is obvious that the liquid sold by the appellant must be a compound of .one or more of the liquors under the ban- of the law with other ingredients, or contain the elements necessary to constitute an intoxicating liquid in such form as it may be used as a beverage.”
It follows from this that the sale without license of any compound containing the liquors enumerated is unlawful, whether such compound be intoxicating or not. If it contains any of the liquors enumerated, a sale thereof as a beverage is unlawful. The statute prohibits the sale, without license, of any of the liquors named, and the sale as a beverage of any compound or preparation containing them, whether it be intoxicating or not, and all intoxicating liquors of any kind.
In the case of Bond v. State, supra, this court sustained a conviction for sale of a non-intoxicating" compound containing substantially the same proportion of alcohol as in the liquor which appellant sold.
Affirmed. | [
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Him,, C. J.
The parties to this suit are husband and wife; they have been married thirty-two years, and are the parents of nine children, and in their old age have fallen into litigation with each other over lots 4, 5 and 6 in block 142, in the city of Little Rock. Lot 4 was purchased in 1887 by Mrs. O’Hair from her mother, contrary to the wishes of Mr. O’Hair. It was heavily incumbered, and the equity not of great value. Part of lot 5, was purchased by Mrs. O’Hair, or rather she made a small payment on the purchase price, while Mr. O’Hair was in Colorado for his health, and without his knowledge. The other parts of the lot were purchased subsequently. The titles were taken in Mrs. O’Hair’s name, and the evidence shows that the mortgages were reduced, and the purchase price paid, by moneys derived from Mr. O’Hair, Mrs. O’PIair, their children, and the rents from the property. Lot 6 was purchased by Mr. O’Hair, paid for by him, and the title taken in his wife’s name. He was then in embarrassed circumstances, and testifies that the title was put in her name to protect her and the family from anything which might happen to him, and to secure a home for themselves and their children.
Mr. O’Hair is seeking to impress a trust upon lots 4 and 5 in his favor for the payments made for their purchase, which he claims were practically all made by him, and upon lot 6 on account ’ of an understanding with his wife that it was to be held for their' mutual benefit.
Passing the question of the sufficiency of the evidence to establish a trust, even if the transaction was between strangers (see Tillar v. Henry, 75 Ark. 446), there is no trust in this case. Judge Eaicin thus expressed the whole situation as-presented by this record:
“This is only a claim for money advanced to buy a piece of land for the wife and improve it. It was a good thing for the husband to do, and may be supposed to have been done from a desire to protect her against want. The law will not raise any implied promise on her part to repay it. It will be presumed to-be a gift.” Ward v. Estate of Ward, 36 Ark. 586.
The principles controlling this case may be found in Miller v. Freeman, 40 Ark. 67; Robinson v. Robinson, 45 Ark. 481; Bogy v. Roberts, 48 Ark. 17; White v. White, 52 Ark. 188; Rhea v. Bagley, 63 Ark. 374; Culberhouse v. Culberhouse, 68 Ark. 405; Grayson v. Bowlin, 70 Ark. 145; and many more on the same line. The decree is affirmed.
Battue, J., absent. | [
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Hirr, C. J.
The appellee, Jones, purchased two horses and harness of one Strong for $180, and, to secure payment of the purchase money, executed a mortgage to Strong on the horses and harness and also one log wagon. Strong was indebted to Hancock, who sued him, and caused attachment to issue, and ran a garnishment on Jones. The result of this proceeding was the sustaining of the attachment, and a judgment against Jones in favor of Hancock for the debt of $180, which he owed Strong for the horses. Hancock caused execution to issue, and the horses, harness and wagon were levied on. Jones filed a schedule of his personal property, and claimed this property as exempt. The circuit court held it exempt, and the sheriff, representing the rights of Hancock, the judgment plaintiff, prosecuted this appeal.
There are two lines of decisions on the effect of a garnishment: one holding that it amounts-to a compulsory assignment of the debt, and carries with it the liens securing the debt; the other holding that it does not operate as an assignment, but as an impounding of the debt for the garnisher’s benefit. The cases on this subject are collected in a note under section 192, Rood on Garnishment. This court, in Smith v. Butler, 72 Ark. 350, held that the garnishment, when carried into judgment, operated to transfer to the garnisher all the rights of the judgment defendant, and give him the rights and remedies possessed by him, including a lien to secure the indebtedness. Therefore it follows that Hancock became the owner of the debt of Jones and the mortgage securing it, and became possessed of the same rights which Strong, the mortgagee, possessed.
When Hancock levied on the property in question, he waived the mortgage which he then owned by operation of law. No one else could levy on the property, because mortgaged chattels are not subject to execution. Jennings v. McIlroy, 42 Ark. 239. The mortgagee, however, can waive his mortgage rights, and levying an execution upon the property is inconsistent with the mortgage, and a waiver of it. Cox v. Harris, 64 Ark. 213. It follows that the levy was proper, and the property subject to the e execution.
The next question is whether Jones could claim the property as exempt. It is provided by article IX, section 1, Constitution 1874, and section 4966, Kirby’s Digest, that exemptions cannot be claimed in property in the hands of the vendee against the debt for its purchase. It is contended' that Hancock, as an involuntary assignee of Strong, is not clothed with Strong’s rights in this regard, but these cases settle that question against the appellant: Creanor v. Creanor, 36 Ark. 91; Morris v. Ham, 47 Ark. 293; Smith v. Butler, 72 Ark. 350. The log wagon was properly held to be exempt, as there was no debt for .the purchase money due against it, and no mortgage was sought to be enforced against it in this action; in fact, a position inconsistent with the mortgage, so far as Hancock’s rights were concerned, was taken. The court erred in holding the horses and harness exempt from seizure under the execution, as it was levied to enforce a debt for purchase money while the property was in the hands of the purchaser.
Reversed and remanded, with directions to enter judgment in conformity herewith. | [
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Riddick, J.,
(after stating the facts.) This is an action by the plaintiff to recover damages received while riding on one of the defendant’s through freight trains. The rules and regulations of the company did not allow the conductors of such trains to carry passengers. The plaintiff in this case was an employee of another railroad company, but, being an acquaintance of the conductor who had charge of this train, he was permitted by him to ride in the caboose attached to it. The plaintiff testified that he did not know that it was against the rules of the company to carry passengers on such trains, but, leaving out the testimony of the witness for the defendant on this point, the question arises whether the undisputed facts do not show that he either had notice, or, what is the same thing, that he had notice of facts sufficient to put him upon inquiry, and that if he had made any inquiry he could easily have ascertained the fact that the employees of this train' had no right to accept him as a passenger. Now, plaintiff did not find this train at the passenger depot. He boarded it in the yards of the company, near the stock pen. It had no passenger coach attached, and there was nothing about it to indicate that it was intended for the carriage of passengers Plaintiff himself- shows that, though he had time and opportunity to inquire and-ascertain whether passengers were allowed to be carried on this train, he did not do so.
When we consider that plaintiff was 53 years old, had worked for railroads about fifteen years, was then at work at Texarkana for the Cotton Belt Railway Company, while his family lived at Malvern, a town on defendant’s railway, between which place and Texarkana several passenger trains were run each day, one of which trains was due to leave Texarkana only a few hours after plaintiff left on the freight, and by which plaintiff could have reached his home as soon or sooner than he could have reached it by the freight train, even had there been no accident — when we consider that plaintiff took this freight, on which an acquaintance was conductor, when he could have taken a passenger train and made better speed, and that up to the time of the accident he had neither paid, nor offered to pay, nor been asked to pay any fare — it seems not unreasonable to believe, as counsel for defendant contends, that he chose this train in preference to the passenger because he had grounds to hope that, through the courtesy of his friend, the conductor, he would be given free transportation. But we need not discuss that feature, for it is quite immaterial. For, conceding that plaintiff acted in good faith in getting on this train, it is clear that he acted carelessly. One should not get on the caboose of a through freight train, standing away from the passenger depot, in the yards of the company near a stock pen, with the intention to travel thereon as a passenger, without making some inquiry as to whether the train is intended for passengers. If, without inquiring, he does get on such a train not intended for passengers, and is carried safely to his destination, he gains that much at the expense of the company. On the other hand, if an accident happens, and he is injured, there is no reason or justice in requiring the company to pay for his injuries, unless they have been wantonly or willfully inflicted. “When,” said Chief Justice Cockrile, “there, is a division of the freight and passenger business of a railroad, the common presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption.” Hobbs v. Texas Pacific Ry. Co., 49 Ark. 360.
The facts in this case do not rebut this presumption, but show conclusively that the circumstances under which plaintiff boarded this' train were sufficient to give him notice that this train was not intended for the carriage of. passengers. Whether in fact he believed it was intended for passengers is a matter of. no moment; for, although members of the train crew were present, he made ho inquiry, and cannot hold the company responsible for his ignorance. The law in such a case treats.him as knowing those things which he could and should have ascertained by inquiry. This question has been fully discussed by a recent decision of the Court of Appeals to which we refer. Purple v. Union Pacific R. Co., 114 Fed. Rep. 123.
Had plaintiff been a boy or person of immature years, there would be more reason to support the judgment; but the facts in this case show that plaintiff, and not the company, was to blame for his presence on this train. He was injured by a collision which the evidence shows was the result of carelessness, but was not the result of wanton or wilful negligence. On the whole case, we are convinced that it would be unjust to compel the company to pay damages for the injury to plaintiff which was caused by his getting on a train not intended for passengers, in violation of the rules of the company.
Judgment will, therefore, be reversed, and the action dismissed. It is so ordered. | [
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McCuuuoch, J.
No exceptions were saved below on the introduction of testimony, and none to the rulings of the court in giving or refusing instructions. The only question presented by counsel here is whether or not the plaintiff was the procuring cause of the sale, so as to entitle him to commission.
It is not disputed that plaintiff was a real estate agent, that defendant listed her property with him for sale at the stipulated price of $2,250, and that he at once opened up the first negotiations with one Crawford, who finally became the purchaser.
Appellee testified that, as soon as appellant placed the property in his hand, he offered it to Crawford, and showed it to him, and that Crawford was pleased with it, but said he would not buy for a short while. That the next day he informed appellant of these facts, and she then told him that she had decided to put the price up to $2,400^ but finally agreed that he might sell to Crawford for $2,250, net to her, Crawford to pay the commission; that he communicated this price to Crawford, with a statement that his commission would be $115, and Crawford replied that he was still not quite ready to purchase a house, but would decide about it in a few days. Some days later, while the negotiations were still pending between appellee and Crawford, appellant sold the property to Crawford for $2,400, less the commission, and refused to pay appellee a commission.
We think it is quite clear that appellee was the procuring cause of the sale under his employment for that purpose, and is entitled to the commission, though the sale was made and consummated by the owner. Scott v. Patterson, 53 Ark. 49.
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Hill, C. J.
This case presents the same questions as to the liability of the appellant which are presented in St. Louis, Iron Mountain & Southern Ry. Co. v. Robert Hitt, post p. 227. This case was tried first in Nevada County, and that case in Clark County, and brought here on separate .records, but have been argued together. They arose from the same occurrence. The facts will be found stated in the Robert Hitt case. In this case the court gave on behalf of the appellee the following instruction:
“5. You are instructed that mere proof that the plaintiff looked and listened as they started to drive upon the track, and that they did not look again, does not alone establish the contributory negligence. You should take into consideration all the facts and circumstances in evidence; and if from these you believe that the plaintiff acted as a reasonable, prudent man, then he would not be deemed to have been guilty of contributory negligence.”
In St. Louis. & S. F. Rd. Co. v. Crabtree, 69 Ark. 138, the court said: “If he is struck and injured by a train at the crossing, which he might have seen had he continued on his guard, it would not be sufficient on a trial for the injury for the judge to say generally that it is the duty of one-about to cross a railroad to look and listen for trains, but he should go further and explain that this means that a traveler should continue to use his eyes and ears until the track and danger are passed.”
In Railway Company v. Cullen, 54 Ark. 431, Chief Justice Coclcrill for the court, said: “A failure to look and listen is therefore evidence of negligence bn his-part; and if the injury is the consequent result, and his want of precaution is unexplained by circumstances which might mislead an ordinarily prudent man or throw him off his guard, he cannot have reparation for the injury, because his own want of care is the author of his misfortune.”
In Martin v. Little Rock & Ft. S. Ry. Co., 62 Ark. 156, the court said: “We do not hold that in every case where a traveler fails to look and listen, and is injured by a train while crossing a railway track, the case should be taken from the jury. It is only when it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence.” Applying these principles to the instruction in question, the instruction tells the jury that failure to continue to look and listen does not alone establish contributory negligence. It is held in the Crabtree case that the court must tell the jury that continuing to use the senses is an essential part of the duty of looking and listening, and in the Cullen case that failure to look and listen is evidence of negligence. Therefore the instruction conflicts with these cases. But, as explained in the Martin case, the failure to look and listen is not always negligence. There may be circumstances as there instanced or where there is an invitation by the railroad, express or implied, which might relieve a prudent person from this duty. But all those matters are exculpatory, and the duty to continue to look and listen should be definitely put upon the plaintiff; and if there is sufficient evidence of exculpatory circumstances, then the whole question should go to the jury, and no part of it be determined by the court. This instruction acquits the appellee of negligence in failing to continue to look and listen till danger is past, instead of charging him with such negligence and then leaving it to the jury to determine whether the facts and circumstances in evidence are sufficient to relieve a reasonably prudent person of this essential precaution for his own safety.
It is insisted that if this instruction is erroneous it is cured by other instructions given on behalf of the appellant. None of the other instructions reach to this exact point, while they do state the law, in the .main, correctly on the duty of looking and listening; and if they were construed as correctly covering this important point of the case, then they would be in conflict with this instruction, and leave the jury at large which to follow. In such case the rule that reading the instructions together in order to see if the issues are presented correctly cannot apply. Fletcher v. Eagle, 74 Ark. 585; St. Louis & N. Ark. Rd. Co. v. Midkiff, 75 Ark. 263.
For the error in giving the 5th instruction the judgment is reversed, and the case remanded for a new trial. | [
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McCurroch, J.
Appellees, Dungan & See, recovered judgment in the circuit court, on appeal from a justice of the peace, against Duke White for the sum of $114, and subsequently filed allegations and interrogations, and caused a writ of granishment to be issued and served on appellant, Aaron Frank, requiring him to answer in what sums he was indebted to said White, etc. Appellant answered the garnishment on the return day of the writ, stating that he had become indebted to said White in the sum of $42 for salary from the date of service of the writ of garnishment until the return day thereof, but that White had, during said period, become indebted to him (appellant) in a sum in excess of $42 for money collected by White, owing to appellant for laundry work, and that appellant was therefore not indebted to White on or after the service of the writ in any sum. Appellees filed their denial of the truth of appellant’s answer, and upon the issue thus made a trial was had before a jury, which resulted in a verdict and judgment for the plaintiffs. Appellant contends, first, that the circuit court was without jurisdiction to render the judgment in favor of appellees against White, and that the judgment, being void, could not support the garnishment proceedings against appellant.
The judgment and proceedings in the suit against White are not brought up in the record of this case, but at the trial below it was agreed that the judgment in favor of appellees against White for $114 was rendered by the circuit court on appeal from a justice of the peace in an action to recover “the sum of $106.46 for the unlawful conversion of money belonging to said plaintiffs, converting the same to his own use.”
The Constitution of .this State confers civil jurisdiction upon justices of the peace concurrent with the circuit court in matters of contract, where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest, and in all matters of damage to personal property, where the amount in controversy does not exceed the sum of one hundred dollars. Const. 1874, art. 7, § 40.
It has been held by this court that the last-named provision of the Constitution means all injuries which one may sustain in respect to his ownership of personal property, and that a justice of the peace has jurisdiction in all matters of damage resulting from the loss, conversion or destruction of personal property, as well as injury to it. Stanley v. Bracht, 42 Ark. 210; St. Louis, I. M. & S. Ry. Co. v. Biggs, 47 Ark. 59; Park v. Webb, 48 Ark. 293.
It is not shown in this record the manner by which White came into possession of the funds of appellees, whether rightfully or wrongfully; but in either event a contract to return would be implied, and upon this implied contract the plaintiff could elect to sue, instead of suing for the conversion. Bowman v. Browning, 17 Ark. 599; Hudson v. Gilliland, 25 Ark. 100; Chamblee v. McKenzie, 31 Ark. 155; 21 Enc. Pl. & Pr. p. 1022, and cases cited.
There are authorities holding that where the property has not been converted into money, the plaintiff cannot waive the tort, and sue upon an implied contract, his only remedy being trover; but even in those cases there is found a distinction where “a contract may exist and at the same time a duty is superimposed or arises out of the circumstances surrounding or attending-the transaction, the violation of which duty would constitute a tort.” “In such cases,” it is said, “the tort may be waived, and assumpsit be maintained, for the reason that the relation of the parties out of which the duty violated grew had its inception in contract. These relations are usually those of trust and confidence, such as those of agent and principal, attorney and client, or bailee and bailor.” Tuttle v. Campbell, 74 Mich. 652.
So, in the case at bar there may have been an express agree- ■ ment to return the money belonging to appellees, or there may have been a relation, arising out of the manner in which the defendant came into possession of the money, from which an agreement to return it was implied, and in either event appellees could waive the tortious conversion, and sue upon the contract. The kind of remedy adopted is not shown, further than as stated in the bill of exceptions that it was an action “for the unlawful conversion of money belonging to said plaintiffs,” and, for aught that appears to the contrary in this record, an express contract to return the money, or facts from which the law would imply a contract to return it, may have been alleged and proved. We must indulge a presumption in favor of the jurisdiction of the court until the contrary appears.
Cases may be found in which it is held that jurisdiction cannot be enlarged by suing upon an implied contract, and waiving the tortious conversion of personal property, other than money; but we need not pass upon that question, inasmuch as the property converted was money belonging to plaintiffs, and, as we have stated, a contract to return may have been alleged and proved. We will not, therefore, disturb the judgment on this ground.
. It is urged by counsel for appellant that the verdict is without evidence to sustain it, and also that the court erred in its instruction. We think that both these contentions are well taken, and that the judgment must be reversed on both grounds. It appears that the defendant, White, was employed by appellant at a salary of $14 per week as driver of a laundry wagon. His duties were to deliver laundry and collect the accounts due appellant from his' customers for laundry work. The total amount of the weekly accounts or laundry tickets against customers in his territory were charged to him when the packages of laundry were put in his possession for delivery to customers. He made settlement at the end of the week, in which he deducted from his collections the amount of his salary and paid the balance to appellant. The uncontradicted evidence shows that, at the time and after the service of the writ of garnishment in this case, the defendant White had collected and failed to pay over to appellant amounts in excess of his salary, and was, therefore, indebted to appellant. Under those circumstances appellant could not be required to pay over upon garnishment .salary which he had agreed to pay White. He was not indebted to White, and had no funds in his hands belonging to White.
The only testimony relied upon by appellees to sustain a verdict was alleged contradictory statements made by appellant and Nelson Frank, a witness introduced by him, at a former trial. We do not, however, find those contradictions to be material, and neither of the alleged contradictory 'statements shows any indebtedness of appellant to White. There is no proof in the case that appellant was indebted to White at or after the service of the writ, and proof of contradictory statements does not render him liable for any part of appellee’s judgment against White. The burden was upon them to prove that appellant was indfebted to White, and that burden is not successfully borne by merely proving contradictory or unsatisfactory statements made by appellant and his agents as to his transactions with White.
The court instructed the jury that if the “charges made against the defendant White by the garnishee Frank were only conditional liabilities, which in fact did not mature, and not bona fide liabilities, then they were not such charges as could be claimed against the plaintiffs.” This was erroneous. There was no evidence to support it, and, besides, the jury might have understood from it that appellant could not be allowed to deduct from White’s salary laundry accounts against customers which he had failed to collect, and for which he was liable to appellant, merely because the accounts might be subsequently paid by the customers.
The judgment is reversed, and the cause remanded for a new trial. | [
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Hire, C. J.
In 1888 appellant, Merritt, was appointed by the probate court guardian of Lena Crane, a minor, now Lena Wallace, the appellee herein. In 1889 the guardian received from life insurance policies $4,990. January 13, 1890, he filed his first annual settlement, showing a balance on hand of $4,555.49. To this settlement was appended a petition of the guardian for an order to loan $4,000 of the ward’s money, and at the April term, 1891, the court made an order directing the guardian to loan said sum on real estate security. There was no proceeding in the guardianship after the April term, 1891, until the January term, 1901, when a petition was filed by Mrs. Wallace, praying that her guardian be required to make a final settlement. On April 5, 1901, the guardian filed his second and final account charging himself with $1,281.26. The appellee filed numerous exceptions to the account, and made out an account as she contended should be made, in which the guardian was charged with interest on the funds in his hands, and other matters differently stated. The probate court sustained some of the exceptions, and charged the guardian with interest since the ward’s majority, and rendered judgment against him for $1,861.25. The guardian appealed to circuit court, and the issues were tried anew before the circuit judge. The only evidence was the affidavit of the guardian (treated as a deposition by consent) on the question of interest, and the deposition of Mrs. Wallace. The latter was practically a repetition of her exceptions to the account and statement of the account as it should be. The appellant has failed to bring into his abstract the evidence, and therefore the presumption is that the evidence sustained the' finding by the circuit judge. Shorter University v. Franklin, 75 Ark. 571, and authorities there cited.
Aside from this presumption, however, the guardian did not introduce evidence to sustain his account, where challenged, and he would fail on that score. Mr. Woerner says: “The ouns probandi rests upon the executor or' administrator to establish the validity of any item of credit in the account which is challenged, and for want of sufficient prima facie proof such credit will be rejected.” 2 Woerner, Administration, § 540. See also Schouler on Dom. Rel. § 372.
The circuit judge went through the accounts painstakingly, rejected some credits and allowed others excepted to, and there is no ground to set aside his finding as to the amount due on the account. The principal question in the case is charging the guardian interest on the funds in his hands. The guardian testified: “I gave the statutory notice, and-received from H. H. Halley an application to borrow said funds; that in my opinion as such guardian the security offered by said Halley was grossly inadequate; that as such guardian I received no other application for the loan of said fund.”
The trial court said: “He was entitled to a reasonable time to make investments or report his failure to do so to the court. Some authorities say three months is all that could' be called reasonable; some say six months; and in others even a year is hinted at as not too long under peculiar circumstances. It is extremely liberal to the defendant here to allow him the time from April term, 1891, when the order to lend was made, until the 1st of July, 1893, in which to take decisive action.” The court charged him with 6 per cent, interest from the latter date, amounting to $2,061.10.
Section 3804, Kirby’s Digest, requires guardians to loan idle money of their wards, under the direction of the court. Section 3805 provides: “If any guardian fg.il to loan the money of his ward on hand, as aforesaid, under the provisions of this act, he shall be accountable for the interest thereon.” The general rule is that the guardian must exercise reasonable skill and diligence to loan the money; and if he fail to do so, he is liable therefor at legal rate of interest; and if the ward can show it could have been loaned at a higher rate, he is chargeable with what he could have obtained. Rodgers, Domestic Relations, § 869; 2 Woerner, Administration, § 511; Price v. Peterson, 38 Ark. 494.
The guardian rejected one application on account of the insufficiency of the security, and says he had no further applications.
Section 3808, Kirby’s Digest, contemplates, when money of the ward cannot be safely loaned, to have it invested in United States bonds.
The guardian utterly fails to show reasonable diligence to secure a safe loan, and, had he exercised such diligence and failed, then he should have reported it to the court, to the end that the money be invested in bonds. Instead of doing that, he made no report for ten years, and only then when cited into court.
The appellant has no cause of complaint against the judgment, and it is affirmed. | [
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Wood, J.,
(after stating the facts.) It is unnecessary to discuss the evidence at length. The appellant was guilty of con- tributary negligence, according to the undisputed facts, and it was the plain duty of the court to declare as matter of law that appellant had no cause of action. On the question of contributory negligence, this was the testimony of appellant himself, as abstracted by his counsel:
“He started from the depot to go to a pair of scales to weigh a load of hay, and he was on what is called the 'passing track/ and, remembering that a freight train was at the tank just northeast of the depot, about 100 yards, and hearing it start from the tank, when it got just southwest of the depot a few feet, a point where all the switches branch out, he looked back, and thought he saw the engine heading for the 'passing track’, which it was customary for trains of that kind to do. He then stepped across the usual traveled way between the two tracks, and, to be sure he was out of the way, he stepped over in the center of the main track, and immediately the engine struck him, when he was just about at the southern or western edge of College Street, on a line with the western line of College Street. After he stepped on the main track he walked at least thirty yards or ninety feet, before he was struck.”
This leaves nothing for the jury. According to familiar rules often announced by this court, appellant did not make that use of his senses for his own protection which the law exacts before he can recover for the negligence of the company that concurred in his injury. St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549; Little Rock & Fort Smith Ry. Co. v. Blewitt, 65 Ark. 235; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134.
Appellant’s great familiarity with the tracks and trains where he was injured, and the ever imminence of peril, where there was so much passing and switching, should have kept his senses alert, and have caused him to walk between the railroad tracks where according to the witnesses, it was “nice and smooth,” and free from all danger. The law wisely and justly holds the company liable for its own acts of negligence which result in injury to another. But there would be no reason or justice in holding it responsible for the mistakes of another which it did not cause, and could not prevent, and but for which there would have been no injury, notwithstanding its own negligence. Railway Company v. Cullen, 54 Ark. 431; Railway Company v. Ross, 56 Ark. 271; Railway Company v. Tippett, 56 Ark. 4571 Catlett v. Railway Company, 57 Ark. 461. See also Missouri Pac. Ry. Co. v. Moseley, 57 Fed. 921, and other cases cited in appellee’s brief.
There is no proof whatever that would warrant the conclusion that appellee wantonly, maliciously or intentionally injured appellant, or was guilty of such negligence, after discovering appellant’s peril, as to make an inference of this kind justifiable. Mo. Pac. Ry. v. Moseley, 57 Fed. 921. On the contrary, appellant alleges in his complaint that “they were .running the train at such an unusual speed that it could not be stopped after seeing him,” and the evidence on the part of the engineer and fireman was affirmative and positive that they “did not see him on the main line, and never knew he was there until' after the accident, thus distinguishing the case in this respect from the recent cases of St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372, and St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478.
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Riddick, J.
This is an appeal from judgment against plaintiff in an action of unlawful detainer brought by him against the •defendant.
On the trial the presiding judge instructed the jury, in sub.stance, that, unless a written notice to vacate was given to defendant three days before the execution of the writ of possession evicting him from the premises, the eviction was unlawful, and that, unless such notice was proved, the finding must be for the defendant. The counsel for plaintiff duly excepted to this instruction, and now contend that the judge erred in giving it, for the reason that it was alleged in the complaint that notice was given, and there was no denial in the answer. But it does not appear that the attention of the trial judge was ever called to the fact that the answer did not raise the issue of whether there was notice or not. The testimony for the plaintiff tended to show that written notice to vacate was given, while the defendant testified to the contrary. No objection was made to this testimony, and the trial judge was no doubt led to believe that the parties regarded the question of notice as an issue in the case, and therefore gave an instruction in regard to it. Only a general obj ection was made to this instruction.. It is too late now to put in the Special objection that no such issue was raised, and the answer must be treated as amended so as to conform to the proof. Nicklace v. Dickerson, 65 Ark. 422.
The court also told the. jury in his instruction that the plaintiff “claimed that the land was rented to Smith for the year 1900, but that the contract was conditional,” and that if that was so he must show a compliance with the conditions. But the record shows that plaintiff did not daim to have rented the land to Smith for the year 1900. He positively denied that he had rented Smith the land for that year. He testified that he only agreed to rent, it in the event that he did not sell it, which he was trying to do. As he did sell the land, the contingency on which, according to-his testimony, he agreed to rent it, did not happen, and according to plaintiff’s statement he did not rent it. This instruction of the court touched the pivotal point in the case; and, as it misrepresented the contention of the plaintiff on that point, and was contrary to his testimony, it was misleading and prejudicial. We-think the court erred in giving it over the objection of plaintiff.
The only other point necessary to notice relates to the measure of damages. When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages, whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater- than the price he agreed' to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place. Grosvenor Hotel Co. v. Hamilton. (1894) 2 Queen’s Bench Div. 836; Snow v. Pulitzer, 142 N. Y. 263; Sutherland on Damages (2 Ed.), § 865.
But counsel contend that this expense is limited to one removal, and that if, after the tenant is settled on another place, he takes a notion to make a second move,‘he cannot recover for the expense of the second removal. This, in the absence of special circumstances, is no doubt true. But a tenant evicted in January, as this one was, may be compelled to seek a temporary abode for his family to shelter them until he can .find a suitable farm to rent. When he is compelled by the eviction to seek first a temporary shelter and then to make another removal, we are not able to say, as a matter of law, that he can not recover the entire cost, for these two moves might be so closely connected as to be in effect one, and directly caused by the eviction.
The evidence does not show how long defendant remained at the Pardew place before the second removal, but it leaves the impression that this was only a temporary stopping place. The language of the instruction of the court on the measure of damages, by which the jury were told that in assessing the damages they might “take into consideration the rental value of the land, the trouble and expense of removing, expense of renting a house rendered necessary by such removal, and all other damages flowing from the dispossession,” is to a certain extent objectionable, for it appears to assume that the renting of the Pardew house was made necessary by the eviction. But the court no doubt intended to leave to the jury the question of whether the renting of this house was made necessary by removal, and the defect in the instruction, being one of form only, should have been raised by a special objection.
Another objection to this instruction is that it tells the jury that they may consider the rental value of the land. But, as there is nothing to show that the rental value of the land from which defendant was evicted was greater than the amount he had agreed to pay for it, there was no room for any damages in that respect, and the jury should have been so told.
On the whole case, we are of the opinion that for the reasons stated the judgment should be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Hill, C. J.
Rolfe was engaged in cutting and shipping logs, and had a quantity of them at Widener and Proctor stations on appellant’s line of railroad. Darnall wanted to purchase them delivered on board the cars at these stations, and Rolfe was not willing to enter into the contract until he had assurances that he could get the cars for the shipments. Ward, representing Darnall, went to see the traffic manager of the appellant at Little Rock about the matter, and explained the situation, and he told Ward to make the contract, and the cars would be furnished. Rolfe saw the agent at Forrest City, and he arranged a meeting between Rolfe and the general manager of-the road, who was coming over the line in a special car. Rolfe saw the manager, showed him the logs, and explained the situation to him, told him he would have got out the logs before if he had had cars, and about the. expenses incident to loading them with teams. The general manager promised he would get the cars, and Rolfe proceeded to get out the logs for shipment to Darnall. Very shortly after the conversation with the general manager in August, he received three cars at Proctor, and then did not receive any more cars till October, when he commenced receiving them again, and received 27 cars from October 11 to some time in January, when his logs were finally shipped. He kept teams for loading at Proctor during the interval from August to October, and was daily making demands of the various agents and officers of the road, from the agent at Edmondson, where orders for Proctor were taken, to the principal officers of the company. Rolfe sued for damages to the logs by reason of depreciation while loading them for shipment, and for expenses of his teams at Proctor from August to October, alleging that it was necessary to keep them there in order to load the logs when the cars arrived. The uncontroverted evidence placed the damages for depreciation at $264, and the jury gave him that sum and $200 special damages on account of the expenses of his teams.
1. The first point made is that a demurrer to the complaint should have been sustained. The allegation of the complaint assailed by the demurrer is: “The plaintiff had a great number of times demanded of defendant, through its agents at Eorrest City and at Widener, and at Edmondson for Proctor, and at other times by letters addressed to the defendant’s principal offices at Little Rock, that cars be placed on the side tracks at said stations of Proctor and Widener, that plaintiff might load said logs.” The objection is that there was no allegation that these agents had authority to furnish cars, and that it is not stated to what principal offices the letters were addressed. The allegation that he demanded of the agent at Widener for that place shows demand of the proper authority. 1 Elliott on Railroads, § 363. The allegation is that Edmondson was the place to demand for Proctor, there being no agent at Proctor, is sufficient, and apprised the company of the agent upon whom demand was made; and if he was not the agent in control of Proctor, that was a fact peculiarly _ within the company’s knowledge. The demurrer was properly overruled.
2. The appellant asked that the amended complaint be made more specific by setting out, (x) to which of defendant’s agents or servants plaintiff tendered the timber, (2) from which of said agents or servants he requested cars and the exact times and places of said requests, (3) the exact number of times he requested cars from defendant’s agent at Eorrest City, and (4) the dates of the letters and the offices of defendant to -which said letters were addressed. The complaint alleged that the plaintiff placed for shipment at the stations named certain quantities of logs, “and that he offered and tendered for shipment said, timber.” This allegation shows with reasonable certainty that the’ tender was to the respective station agents. The allegation is that the tender and demands were made in August, and the company certainly could ascertain from these small stations whether such was a fact. This is not analogous to the duty to furnish names or numbers of trains causing injury, for there are so many trains operated by different crews that it is only fair to definitely designate the train in order that the company may properly learn the facts. The allegation about demand of the principal officers at Tittle Rock was unnecessary, and, of course, an unnecessary allegation should not be made more definite and certain.
3. Objection is made that incompetent evidence was introduced in the statements of Mr. Wood.and Mr. Holden, who were described as general manager and general traffic manager, respectively, without proof of their official positions. The station agent at Forrest City brought about a meeting between Mr. Wood and Rolfe, and Mr. Wood took Rolfe into his special car, and carried him to Memphis, and Rolfe understood from his relations to the company, the statement of the agent, and his actions that he was general manager, or “president of the concern.” Mr. Ward found Mr. Holden in the general offices of the company at Tittle Rock, and secured an audience with him there on the subject of securing cars if he entered into the contract to purchase the logs. “He was recommended to witness as the general traffic manager. He was in the office doing business.” The testimony was not incompetent.
4. The elements of damage are assailed. The depreciation in the logs during the time of the negligent failure to ship them is too plain for discussion. See Sutherland on Damages (3d F,d.) § 37. The damage arising from expenses of keeping the- teams rests on a different proposition. These constitute special damages, were sued for as such, and specially found as such by the jury. For a breach of an implied contract of carriage, or the breach of any contract, before special damages are recoverable, the facts and circumstances leading to the special damages must be made known to the party to be charged, in order that he may properly avoid them. When thus made known, and the natural consequences flow from the special circumstances brought home to the contracting party, he is liable for the special damages. This rule, and its application to implied contracts of carriage and delivery, may be found discussed in Vicksburg & M. Rd. Co. v. Ragsdale, 46 Miss. 458; Ligon v. Ry. 3 Tex. Ct. of Appeals, Civil Cases, 1; Western Union Tel. Co. v. Hall, 124 U. S. 444; Crutcher v. C. O. & G. Rd. Co., 74 Ark. 358; Hutchinson on Carriers, § 776. Applying the principles to the facts, the uncontroverted evidence shows that the general traffic manager had notice of the intended contract between Rolfe and his vendee, and that it was dependent on securing the cars, and that he told the parties to make the contract, and the cars would be furnished. Rolfe personally showed the logs to. the general manager of the road, and explained the method and expense of loading them, and was assured that he would receive the cars, and did receive three cars shortly thereafter. He had a right to rely upon these assurances for a reasonable time, and keep his teams on expense, expecting the fulfillment of the duty to furnish the cars. The evidence shows he was very assiduous in his efforts to get the cars in the time of this delay. The jury gave him much less than his evidence showed his expenses were, and the court is of opinion that there is sufficient evidence of notice to the company of the special circumstances to render it responsible for special damages in keeping the teams for a reasonable time.
The judgment is affirmed. | [
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Wood, J.
Appellee is in possession of certain tracts of land in Chicot County, Arkansas, under deeds from the State Land Commissioner based upon a forfeiture of the land for the non-payment of taxes. Her deeds are dated December 24, 1891, and July 23, 1897, respectively. She has made valuable •improvements, and has been in the adverse possession of the lands since the deeds were executed.
Appellant brought ejectment against appellee for the lands in controversy, claiming title by deed of the State Land Commissioner dated July 14, 1902, based upon an alleged Real Estate Bank foreclosure.
First. As early as March 5, 1838, our Legislature passed an act requiring the Auditor to execute deeds to purchasers of lands forfeited to the State for the non-payment of taxes, and prescribing that such deeds “shall convey to the purchaser all the right, title, interest and claim of the State thereto”; also that the deeds “shall vest in the grantee, his heirs or assigns, a good and valid title, both in law and- equity, and shall be received in all courts of this State as evidence of good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law to be done to make good and valid sale were done both by the collector and the Auditor.” Rev. Statutes, c. 128, § § 133, 134.
In Steadman v. Planters’ Bank, 7 Ark. 427, this court, passing upon this statute, said: “Our statutes have changed the rule of law that it is incumbent upon the purchaser of lands sold for taxes to show that the sale was regular, and that the prerequisites to the sale existed and were strictly complied with. The • Auditor’s deed, executed in accordance with the provisions of the statute, vests in the purchaser all the right, title, interest and estate of the former owner in and to such lands and also all right, title, interest and claim of, the State thereto, and is declared to be evidence in all courts of this State of a good and valid title in such grantee, his heirs, and assigns, and that all things required by law to .make a good and valid sale were done both by the collector and Auditor.” In Merrick v. Hutt, 15 Ark. 331, this court, speaking of this statute, said: • “A more comprehensive provision could hardly be found, and it might seem, at first view, to make the tax title derived from the Auditor valid against all objection. But that was not the design. The evil to be remedied was that the entire burden of proof was cast on the purchaser to show that every requisite of the law had been complied with, and the deed of the officer was not even prima facie evidence of the facts therein stated. * * * The intention and scope of the statute was to change this rule, so far as to cast the onus probandi upon the assailant of the tax title by making the deed prima facie evidence of title in the purchaser, subject to be overthrown by proof of non-compliance with the substantial requisites of the law.” In Patrick v. Davis, 15 Ark. 363-6, it is said: “In the same category may be included that capital provision of the' statute, according to the legislation of several of the States, which, when the deed is regular upon its face, reverses the onus probandi, and subjects the tax title, when thus-sustained, to be overthrown only by proof of a nonconformity in the proceedings to- some one of the substantial prerequisites to the sale.” In Biscoe v. Coulter, 18 Ark. 423, it is held “that the Auditor’s deed for land forfeited for the non-payment of taxes and sold under the statute is to be treated in the courts-as prima facie evidence that all things required by law to be done to make a good and valid sale were done by the collector and Auditor; and it is incumbent upon the party assailing the title of the purchaser to show affirmatively a non-compliance with some substantial requisite of the law;” citing cases just quoted in 15 Ark.
When the office of Commissioner of Immigration and State Lands was created (Acts 1868, p. 62; Sched. Const. 1868, § 3), and the control and disposition of forfeited lands was was given to the Land Commissioner (sec. 9, act 1868), ipso facto the laws applicable to the deed of the Auditor for these lands became applicable to the deed of the Land Commissioner. Helena v. Hornor, 58 Ark. 151. And section 4 of the act of December 13, 1875 (erroneously digested as section 4 of the act of March 10, 1879, in Kirby’s Digest, § 4807), continues in substance and legal effect the act of March 5, 1838, with reference to deeds to forfeited lands. That section provides that all deeds issued by the State Land Commissioner to forfeited land “shall convey to the purchaser, his heirs and assigns, all the right, title and interest of the State to said land, and that such deed shall be received as evidence in any court in the State.” It will be observed that, under the statutes, deeds to forfeited lands are not required to contain recitals showing that the requisite steps have been taken to give the State title. “It is sufficient to give prima facie evidence of title in the purchaser if the deed names the purchaser, describes the property sold, states a consideration, and contains apt words conveying all the right, title and interest of the State.” Merrick v. Hutt, 15 Ark. 331; Walker v. Taylor, 43 Ark. 543; Thornton v. Smith, 36 Ark. 508. In Scott v. Mills, 49 Ark. 266, Judge Battee speaking for the court, said: “The statute having provided that the title to the land forfeited shall vest in the State upon the performance of certain acts by the clerk, it is clear that the object of the Commissioner’s deed is to convey that title to the purchaser from the State, and that the deed was intended to be prima facie evidence of that title. Such has been the policy of the State, as a general rule, in respect to tax deeds long prior to and at all times since the enactment of the statutes under which appellant’s deed was executed. It was in pursuance of this favorite policy that the deed of the Commissioner of State Lands to lands forfeited for taxes was made prima facie evidence of title in the purchaser to the lands conveyed. As of all such legislation, the object is to relieve the grantee and those holding under him from making proof until evidence is introduced showing or tending to show that the deed conveyed no title. It was not, therefore, necessary for appellants to have proved that all things necessary to vest title in the State were done. Their deed was prima facie evidence of that fact.”
“Generally, when an official act has been done which can only be lawful and valid by the doing of certain preliminary acts, it will be presumed that these preliminary acts have also been done.” 1 Greenleaf, Ev. pp. 38, 135. But the almost universal rule, in the absence of an express statute to the contrary, was to treat the acts of officers in connection with tax deeds as an exception to the general rule. Thus, one claiming under such a deed was required to show affirmatively that every step necessary to establish the regularity of the proceedings had been taken. Tax deeds, in the absence of a statute, did not furnish prima facie proof that all the requirements of the law had been complied with. 3 Elliott on Ev. § 2053, and many authorities cited in notes; Hogins v. Brashears, 13 Ark. 242. Now, as I have shown, our lawmakers, almost from the beginning of our history as a State, changed this prevailing doctrine with reference to tax deeds, and, in concrete form, applied to the deeds of the Auditor, and, later, of the State Land Commissioner, the rule applicable to official acts in general, making the deeds of these officers to forfeited lands ■ prima facie evidence that all preliminary steps, necessary to title, had been taken. I have quoted liberally from our decisions, showing the significance of the rule, that it has been consistently followed, and that the policy,- whether wise, or otherwise, has become firmly imbedded in our real estate law, and is a settled rule of property, upon which many titles are based. Appellee invokes the rule to protect her possession and all other rights under her deed In this defense alone she is secure, unless appellant, having the burden of proof, has shown that some one of the prerequisites to title in appellee was omitted.
Second. Appellant, having a land commissioner’s deed to the lands as Real Estate Bank lands, assails appellee’s title, contending that at the time of the alleged forfeiture to the State the lands belonged to the State as Real Estate Bank lands, and were not subject to forfeiture and sale for taxes. To support his contention, he shows that the lands passed into the hands of the receiver of the Real Estate Bank by foreclosure proceedings, and from that time, to-wit, October 23, 1867, to the date of appellant’s deed, June 14, 1902, the record of deeds of Chicot County do not show that there had been recorded in the recorder’s office of such county any deed of conveyance to any person for the land in suit from the receiver of the Real Estate Bank or any of his successors. But this evidence falls far short of showing that the lands were not sold. Purchasers of land often fail to place their deeds of record. If any presumption of non-sale follows such a failure to find a deed on record showing a sale, then such a presumption, at most, is but a weak and disputable one of fact. The finding such a deed of record was not an essential in the proceedings by which the lands were forfeited, and title was vested in the State. Appellee might rest here, and upon conflicting presumptions alone she would prevail, because her deeds are prior in time, and the presumptions attending them are of equal dignity and cogency with those of appellant’s deed, and it is incumbent upon appellant to overcome her title.
But if evidence of an affirmative character were required of appellee, “to make assurance doubly sure,” certain facts in the record would fully warrant the finding of the lower court ir. her favor.
(1.) The act of 1867, exempting lands of the Real Estate Bank from taxation while in the hands of the receiver, required such receiver “upon sale by him of any of such lands, to furnish the assessor of the county in which the same are situated with the correct list thereof for assessment in the name of the purchaser.’ Section 3, act of February 6, 1867. The lands in suit were listed for taxation as early at 1873. This tends strongly to show’ that the lands were sold by the receiver after be acquired them by foreclosure of the vendor’s lien in 1867.
(2.) In a proceeding by the State in the chancery court of Pulaski County to wind up the affairs of the Real Estate Bank, the receiver was directed to make a list of all the landá in his hands or subject to his control as receiver, to the end that the same might be offered for sale preliminary to closing the trusts. He accordingly made such list, and on the 26th day of October, 1880, he, as receiver of the court, was directed to offer the same at public sale on the 8th day of January, 1881. In making his report of the sale conducted by him as receiver, Worthen included therein this statement: “Your receiver found before the sale that the following land had been disposed of by his predecessor, but no mention of the fact has been made in or upon the records, arid he, being fully convinced that the bank had disposed of its interest, by exhibition to him of the original deeds from the receiver in some instances, and conclusive evidence in all cases, did. under instructions from your Honorable Court, omit the same from sale.” Then follows a list of thirteen tracts, in which is included the land in controversy here. On the 17th of January, 1881, the sale and the report thereof were in all things confirmed by the Pulaski Chancery Court. After that, the estate of the Real Estate Bank having been fully administered, the receiver was directed to “turn over to the Commissioner of State Lands all the' accounts, books of said Real Estate Bank now in his possession, and the mortgages given to the said bank now in his possession, and all papers and assets in his posses-ion, pertaining to his receivership, and take a receipt for same.” While this finding by the receiver and confirmation by the court may' not be • conclusive of the facts found, and binding .upon the State or her grantees as an adjudication, yet it is evidence of a high probative character, it was received and acted upon by the lower court without objection, and tends to strengthen the presumption that the land was sold.
Third. Thus far we all agree, and I have voiced the opinion of the court. I shall now express my own’ views of another phase of the case, in which Judge Riddicic concurs.
The deed of the State Land Commissioner, under the express terms of the statute, and in express words, conveyed “all the right, title, and interest of the State to said lands.” In my opinion, after the execution of the deed to the appellee by the duly authorized and only agent of the State for conveying title to her lands, this same agent could not convey to another pur chaser the same lands without first canceling the first purchaser’s deed, which could only be done upon proper grounds-laid in a proper proceeding therefor, in a court of chancery. It is the duty of the Land Commissioner, before executing deeds to the State’s lands, to investigate the sources of her title. He is presumed to do so, and when he executes his deed he conveys “all the right, title and interest” that the State has, provided he has made no mistake, and no fraud has been perpetrated by the purchaser. And if a mistake has been made, as the State is not bound by the mistake of her agents, she may take advantage of it, and cancel and set aside the deed made by her agent. But there is no authority for her to sell this right, or transfer, hy her deed to another, the right to cancel the oustanding deed of another purchaser. The State can do no wrong, and her agents have no power, for her, and in her name, to speculate in lawsuits to the injury of her citizens. If she has sold her lands for too much or too little, or her agents have made a mistake as to the lands sold, or as to her title, she may correct the mistake of her officers. But she has no power, with or without consideration, to transfer this right to another. Section 759 of Kirby’s Digest provides: “Where by law the Commissioner of State Lands is required to execute any deed of conveyance or patent for any lands sold, or granted by the State, such deed of conveyance or patent, when executed by such Commissioner under his official seal, shall convey all the right and title of the State in and to said lands to the purchaser, and may he recorded in the office of the recorder of the proper county, and the original, or a duly certified copy of the same taken from the record thereof, shall have the same effect as evidence as if such deed or patent had been acknowledged and recorded under the existing laws of this State.” Act of December 31, Í850. This statute settles this controversy in favor of appellee. It is in harmony with section 4807, supra, under which appellant claims the deed was executed. Neither of these statutes makes any exceptions or places any limitations upon the interest conveyed. And the Land Commissioner and the courts can make none. The words ,rall the right', title and interest of the State” say what they mean, and mean what they say. They are plain words.
Appellant invokes the following statute: “No tax title shall be valid or binding against the equitable or legal interest of this State in or to any real estate whatever; but such tax titles are and shall be void, so far as the same shall conflict with the interest of the State, and shall be treated and considered as null and void in all courts.” Kirby’s Digest, § 4914. It is obvious, from what I have said, that such statute has no application here. It had no reference whatever to titles conveyed by the State Band Commissioner, or, if so, it is only the interest of the State in the land that can be affected by it. The State has parted with all her interest in this land. At least, she is not here attempting to assert any interest.
The judgment is affirmed.
Battue, J., not participating. | [
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Wood, J.,
(after stating the facts.) Two questions are presented:
First, is J. I. Alley, the appellant, liable on the contract made by Glitsch, his law partner, without his knowledge or consent ?
Second, can the Bowen-Merrill Company bring this suit and maintain it in this State, it being an Ohio corporation, withóut filing here its articles of incorporation and appointing an agent ?
1. Upon the first question the trial court declared the law as follows over defendant’s objection, which was declaration No. 4:
“In a partnership for the practice of law the act of one partner in the scope of business of said firm is the act of all, and every responsibility incident to other partnerships in general attaches to legal partnerships, as well as corresponding rights.”
Upon this point the defendant asked the following declarations, which were refused:
“ (1). That a firm of lawyers is a non-trading partnership, and one member of the firm cannot bind the other without express authority from the other.”
“(2). It is necessary in this case for the plaintiff to prove that Henry Glitsch had the right to contract for books in the firm name.”
“(3). It is the duty of persons or firms doing business with a non-trading partnership to know if one member is authorized to bind the other on contracts and commercial paper.” .
“(5). That a firm of lawyers is a non-trading partnership, and that one partner cannot bind the other, either on commercial paper or on contracts, although the proceeds were used in the business, without express authority from.the other partner.”
The court correctly declared the law that the act of one partner in a firm of lawyers in the scope of its business is the act of all.
It is generally held that non-trading firms have no power to borrow money and sign negotiable paper, and that one member of such firm has no power to bind the other members by signing the firm name to such paper. Worster v. Forbush, 171 Mass. 423; Smith v. Sloan, 37 Wis. 285; 22 Am. & Eng. Enc. Law, p. 154, note (Lawyers). This is because such transactions are not generally within the legitimate scope of the business of such firms. There is no reason why such firms should not be bound by the acts of their members within the scope of their business. This would be true even in the case of negotiable pager, where it was shown that such paper was executed within the scope of the firm’s business. 1 Bates, Part. § 343. Mr. Bates, after an exhaustive review'of the authorities on the powers and liabilities of non-trading partnerships, says: “Each partnership must stand largely on the nature of its peculiar business, and no rule of universal application is possible.” This is the correct doctrine, and there is no reason why a firm of lawyers should not be bound by the act of one of its members in buying such law books as may be reasonably necessary for carrying on the business. Such an act is certainly within the scope of the business of such a partnership. It is impossible to practice law successfully in these times without some law books. As Mr. Bates says: “It is difficult to conceive of a partnership which does not require some purchases to be made in the usual course of its business.” In non-trading firms this is certainly necessary. He instances the case of lawyers purchasing their law books. Miller v. Hines, 15 Ga. 197. See also Crosthwait v. Ross, 1 Humph. 23. The purchase of law books reasonably necessary in the business is a responsibilty and liability incident to a partnership for the -practice of law. And when lawyers come together for that business, they are presumed to repose in one another the trust and confidence necessary to attend to the duty of purchasing law books for the firm, and to clothe each with authority to bind the other.
2. “The institution and prosecution of an action is not doing business within the meaning of the act February 16, 1899, and other statutes upon the subject.” Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525; Railway Company v. Fire Association, 55 Ark. 174.
Affirm. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment convicting the defendant of an assault with intent to kill one Al. Smith. While the evidence does not fully satisfy us that either of the defendants intended to kill Smith, the assault made by Hinson was very persistent, and, had no one interfered, might have resulted in the death of Smith. As to Hinson, therefore, we think the evidence is sufficient to sustain the judgment. The evidence against Scott, while it shows an assault, does not to our minds show an intent' to kill. Before noticing that point further, we call attention to the argument' of the appellants that improper evidence was admitted against them. One Garrett, who testified for the defendants, and whose daughter was the wife of Scott, was askéd on his cross-examination by the attorney for the State “if he did not state to one Duke a day or two after the difficulty, while he (Garrett) was on his way to Round Pond, that he (Garrett) knew that there was going to be a difficulty between Scott and Smith when they met, and that he went down there where they were to see it well done.” The defendants objected to the asking of this question, but the court overruled the objection, and the witness responded that he had made no such statement to Duke or to any one else. Afterwards the attorney for the State was, over the objections of the defendants, permitted to ask Duke whether Garrett had made such statement to him. The answer of the witness was, “Yes, sir; he told me that he knew there was going to be a row next morning, and that he went down there to see it out.” Now, the witness Garrett was not asked whether or not the defendants, or either of them, had told him that they intended to have a difficulty with Smith or make him settle for his conduct of the previous night. He was not asked to state whether he knew there was go.ing to be a difficulty between the defendants and Smith before it happened, or if he had any reason to believe that there would be trouble between them previous to the difficulty. If these questions had been asked, and had been answered in the negative, then, to refresh his memory, or to impeach him, the witness might have been asked if he had not made contrary-statements to Duke. But, without having asked the witness anything of his own previous knowledge of the difficulty, the attorney for the State propounded to the witness the question as to whether he had not previously stated to Duke after the fight that “he knew there was going to be a row next morning, and went down there to .see it out.” As the witness answered this question in the negative, no prejudice would have resulted, had not the court permitted the State by its attorney to prove by Duke that the witness had stated to him after the difficulty that he knew it was going to take place, and went down to see it out. Now, as Garrett was not asked, and did not testify, whether he knew, previous to the difficulty, that the assault was going to be made, it was entirely immaterial what he said to Duke on the subject, for the answer did not tend either to corroborate or contradict his previous testimony, for the reason that he had not testified on that point. This testimony of the witness Duke contradicted Garrett about an immaterial matter, and should not have been permitted.
That the admission of this improper testimony was probably prejudicial is shown by the argument of the prosecuting attorney, for he contended in his argument before the jury that this testimony of Duke contradicted Garrett on a material point, and showed that he was unworthy of belief. It may have also aroused in the minds of the jury a suspicion that the assault upon Smith was premeditated, and caused them to find the defendants guilty of a higher grade of crime than they would otherwise have done. Proper exceptions were saved both to the admission of this evidence and to the argument of prosecuting attorney based upon it. We are of the opinion that the evidence was incompetent, and that for that reason the argument also was improper and prejudicial.
In conclusion, we will say that, though there may be evidence sufficient to support the judgment of an assault with intent to kill against the defendants, we f'eel very doubtful on that point, especially as to the defendant Scott. But, while we have doubt as to whether the defendants intended to kill Smith or not, we think it is clear that they were not justified in making the assault upon him. The evidence makes it very clear that both of these defendants were guilty of an aggravated assault, and one of them may have been guilty of a higher crime. On the whole case, we are of the opinion that the judgment must be reversed and a new trial ordered unless the Attorney General should prefer to have the judgment sustained against them for one of the lower grades of crime included in the indictment. Unless he files a motion to that effect within one week, the judgment will be reversed, and a new trial ordered. | [
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Hirr, C. J.
When the matter of granting liquor license in Pulaski County for the year 1905 came before the county court, the court decided to grant license in the county upon this condition or reservation, which was incorporated in the license issued to all applicants who were found qualified, towit: “Conditioned that this license is issued, by the consent and agreement of the licensee, upon the condition that if the licensee shall permit gambling upon the premises, or if gambling occurs upon the same through his connivance or agency, or if he is guilty of a breach of the Sunday law, or the law against keeping disorderly houses, the county court may at any time revoke this .license, this license being issued upon the express condition, and with that reservation.”
Sarlo agreed to the terms, accepted the license, and conducted a saloon thereunder. He violated the Sunday law against keeping open saloon, and was fined therefor. The prosecuting attorney filed information before the county court, reciting these facts and praying revocation of his license. He was cited to answer, and on a hearing the license was revoked, and he appealed to the circuit court, where the case was tried on an agreed statement of facts developing the facts as set forth herein. The circuit court revoked the license, and Sarlo brings the case here.
The authorities are practically uniform in holding that a liquor license is a mere privilege, revocable at the will of the State. It is not a contract between the State and the licensee, and no property rights inhere in it. Constitutional limitations against impairing obligations, retroactive laws, etc., cannot be invoked in support of rights under it. It is not a vested right for any definite period; in fact, is not a vested right at all, but is a mere permission temporarily to do what otherwise would be a violation of the criminal laws. Metropolitan Board v. Barrie, 34 N. Y. 667; Sprayberry v. Atlanta, 87 Ga. 120; Schwuchow v. Chicago, 68 Ill. 444; Moore v. Indianapolis, 120 Ind. 483; Columbus v. Cutcomp, 17 N. W. Rep. 47; Martin v. State, 23 Neb. 371; Black on Intoxicating Liquors, § § 127, 129.
The power of the State over liquor licenses is complete. It is part of the internal police of the State, in which the power of the State is sovereign. The State may repeal the statute authorizing the license; revoke, annul or modify the license; create conditions, limitations and regulations subsequent to its issue burdening its exercise; and may delegate these powers to agencies of the State, as municipal corporations, county courts, boards of excise commissioners, etc. 17 Am. & Eng. Enc. (2d Ed.), pp. 262, 263; Metropolitan Board v. Barrie, 34 N. Y. 667; Schwuchow v. Chicago, 68 Ill. 444; Sprayberry v. Atlanta, 87 Ga. 120; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Black on Intox. Liq. § 127.
In this State the issuance of liquor licenses is committed to the county court, subject to a veto upon such issuance when the vote at the last biennial election in the county, township or ward is against it. Kirby’s Dig. § 5120. The grant or refusal of license, where it is voted to be lawful to issue it, is exclusively and finally determined by. the county court. The county court may license all qualified persons applying therefor, or may license none. It cannot be controlled in determining a policy of license or no license. When a policy of license is adopted, then the court must treat all alike who possess the legal qualifications. It cannot license favored classes or persons, and refuse others possessing similar qualifications. Ex parte Whittington, 34 Ark. 394; Ex parte Levy, 43 Ark. 42; Ex parte Clark, 69 Ark. 435.
Possessing this power derived from the State, which clearly has the power to insert conditions in the license like the one under consideration, or authorize one of its agencies to do so, the question remains, does the power above' outlined in the county-court include the power to grant licenses subject to a condition that the laws regulating the liquor traffic shall be obeyed by the licensees under penalty of revocation ?
The- Supreme Court of Louisiana recently said :
“We do not criticise the proposition pressed upon our attention that, where the power is delegated to a municipal corporation to forbid the sale of intoxicating liquors, it may grant the privilege of selling on terms and conditions it chooses to impose, and that then it has the power claimed for it to impose the additional condition that a license shall be subject to recall on violation of any statute or ordinance relating to the liquor traffic; that the municipality could then, as it were, exercise a sort of resolutory condition.” Shreveport v. Draiss, 111 La. Rep. 511.
The State of Illinois conferred on municipalities the power to license, regulate, restrain and suppress the liquor traffic. The Supreme Court of that State said: “The Legislature, then, having conferred such power, it was for the common council to determine whether they would wholly suppress the sale of intoxicating liquors, or grant the privilege on such terms and conditions as they might choose. And the power was ample, under this grant, to impose as a condition that when a license is granted it should be liable to revocation on the violation of the ordinances regulating the traffic, or, having absolute control over the whole subject of granting licenses, they may impose any other condition calculated to protect the community, preserve order, and to suppress vice.” Schwuchow v. Chicago, 68 Ill. 444.
In Georgia a similar case arose, and the court said:
“Under the charter the mayor and general council have power to grant licenses for the sale of liquors, or to prohibit the sale altogether by refusal to issue licenses. If they have power to prohibit the sale altogether by refusal to issue license therefor, they certainly have the right to issue license under such restrictions, conditions and limitations as may seem proper to them.” Sprayberry v. Atlanta, 87 Ga. 120.
The power of issuing liquor licenses was vested in the commissioners of the District of Columbia, and they made a rule denying license to keepers of provision stores. One of the applicants contested, and claimed that this was legislative power, with which the commissioners were not vested; that the commissioners must pass on the applications individually, and not exclude a class who otherwise possessed the legal qualifications to obtain license. The court said: “If they are invested with such discretion, may they not, by rule made in advance, say that in a given instance they will not issue a license if it is apparent that there is some good reason for making such rule? If it is an arbitrary rule made without cause or reason for it, and is simply oppressive, it would be beyond the power of the commissioners, and this court might so declare.” U. S. v. Com., 6 Mackey, (17 D. C.), 409.
Another phase of the case is presented in the consent of Sarlo to the condition. A case, similar in many respects, arose in Iowa, and the court said.:
“In this case the plaintiff took his license from the city with the distinct provision written upon it that a violation of any of the ordinances of the city by the party holding this license shall work a forfeiture of the same. It was somewhat in the nature of a reservation, evidently intended as a safeguard against allowing improper persons to hold license, and the plaintiff took it with a full understanding of the consequences, attendant upon a violation of the ordinances of the city. Having entered into the stipulation, so to speak, with the city, he cannot be heard to complain that, while engaged in prosecuting the very business permitted by the license, he violated an ordinance of the city, and the very terms of the license itself, and that therefore his license was revoked.” Hurbur v. Baugh, 43 Ia. 514.
In Pennsylvania the court authorized to issue licenses imposed a condition upon a saloonkeeper that he was not to sell beer in kettles, on acount of the too great demand in the neighborhood for that form of drinking. He agreed to the condition, which was entirely beyond any statutory requirements. He violated the terms of his agreement. The court held that it was within the discretion of the licensing power to impose this condition, which was manifestly promotive of the peace and sobriety of that particular locality, and the failure to observe it worked a revocation of the license. Gerstlauer’s License, 5 Penn. Dist. Rep. 97.
In Schwuchow v. Chicago, 68 Ill. 444, and Sprayberry v. Atlanta, 87 Ga. 120, importance was attached to the fact that the licensees had accepted the terms imposed by the municipalities, and took their licenses, as did Sarlo, with them written in the face thereof.
The power of the county courts is not so broad and extensive as the power conferred on municipalities and excise boards in the cases reviewed, and it is not clothed with superintending power over "the liquor traffic. Its power over it is derived solely from the power to refuse license at all’ and to determine the character of the applicants applying therefor. In the cases reviewed the power to impose conditions requiring obedience to the laws and other conditions promotive of the public good is derived from the power to refuse license, in that way prohibiting the business. The county court does possess this power of refusing license, and should, in determining the question of whether license should be granted, take into consideration the character of the applicants, particularly their character as to observance of the laws regulating their business. In the exercise of these duties the county court of Pulaski County adopted a policy of no license to any one except on condition of an obedience to the laws regulating saloons, and a forfeiture of the license on a failure to obey these laws. The court is of opinion that it was within the power of the county court to adopt a requirement of obedience to the laws as a condition of granting any license; and when the licensees voluntarily assumed these conditions, instead of refusing the license or availing themselves of their legal remedies to contest this power and the manner of its exercise, they cannot complain of a revocation of the license produced by their violation of the law contrary to their agreement and the terms of the license.
The judgment is affirmed.
Battle, J., concurs in the judgment; not the opinion. | [
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McCulloch, J.
This is a suit by appellant, Dowell, to recover of appellee, Schisler, commissions on the sale of a sawmill plant and other property. The sale was made direct by Schisler to the Culver Lumber Company, but Dowell asserts that he procured the purchaser, and thereby earned a commission. No objections were made to the giving or refusal of instructions, except to the giving of two upon request of the defendant; but the objection was made in gross to both instructions, and, as the objection to one was waived by omitting the same frpm the motion for new trial, and no objection to it is urged here, we cannot consider the other. An objection in gross to several instructions cannot be considered unless all the instructions embodied in such objections are bad. Wells v. Parker, ante p. 41; Young v. Stevenson, 73 Ark. 480, and cases cited.
Nothing remains for us to consider but the sufficiency of the testimony, giving it the strongest force'which the jury were warranted in giving it. No useful purpose is to be served by discussing the testimony in detail here. We think it is sufficient to sustain the verdict, and the judgment must be affirmed.
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Riddick, J.,
(after stating the facts.) This is an action by Wynne, a surety, against Johnson and Davidson, the two principals in the note paid by the surety. It is admitted that the surety paid the note, and, so far as the defendant Davidson is concerned, the evidence shows no defense whatever. But there was evidence tending to show that one Powell purchased the interest of . Johnson in the saloon business of Johnson and Davidson and that it was agreed between himself and Johnson and Wynne that Powell should assume the debt of Johnson to Wynne, and that Johnson should be released from further liability to Wynne for that debt. There was at least some evidence tending to show that this trade was consummated, and that Johnson was released, and that, with Wynne’s knowledge and consent, an indorsement to that effect was made on the note which Wynne had paid. The defendant Johnson set up this agreement for a release as a bar to the action of Wynne. Counsel for Wynne contend that the trade between Powell and Johnson was never consummated, and that J ohnson was never released, and that if it was consummated it was afterwards rescinded. They say further that, after the negotiations of Powell for the purchase of an interest in the saloon were broken off, Davidson, acting for Johnson, agreed with Powell to rescind the contract of purchase and release, and thereupon repaid to Powell the money he had paid Johnson on his purchase, and, acting for himself and Johnson, sold the saloon business to' a third party, and- took the purchase money notes in the name of Johnson and Davidson, and deposited them in the bank to the credit of Johnson and Davidson; that so much of the notes as was collected was placed to their credit and drawn out by them; and that this conduct of Johnson was a ratification of the acts of Davidson in rescinding the contract of purchase with Powell, and in selling the business to another party for the benefit of himself and Johnson. If Johnson did these acts with knowledge of the attempted rescission made by Davidson with Powell, and knowing the fact that Davidson was selling the saloon business as the property, not of Davidson and Powell, but as the property of himself and Johnson, this contention would be sound. But a ratification presupposes a knowledge of the act ratified, and before the acts of Johnson referred to can be treated as a ratification of the rescission made for him by Davidson with Powell it must be shown that he had some notice of such acts of Davidson, and that with this knowledge he accepted the fruits of the rescission, or acted in a way that showed that he approved of the acts of his agent.
Counsel for plaintiff, by the instruction asked by him, which is set out in the statement of facts, and which the court gave, seems to admit that there was evidence tending to show that Johnson had sold his interest in the saloon business to Powell, and that in consideration thereof Wynne had released his claim against Johnson for money paid as surety, but he contends that, if this was so, and if Davidson afterwards sold the saloon, and took notes payable to himself and Johnson, and Johnson after-wards urged the collection of those notes, or consented that the proceeds should be applied to the debt of Johnson and Davidson, he was then liable to Wynne in this action. But this contention does not seem to us to be sound. We must keep in mind that, if the sale by Johnson of his interest in the saloon business to Powell was actually consummated, and if, in consideration thereof, Wynne released his claim against Johnson for money paid, that sale and release could not, in the absence of fraud, be set aside without the consent of Johnson. It is true that if Davidson, acting for Johnson, agreed with Powell, to rescind it, and ■Johnson afterwards ratified this act of Davidson’s, the rescission would be in effect the act of Johnson, and would bind him. But, as we have before stated, in order to show a ratification by Johnson, it must be shown by evidence, either direct or circumstantial, that Johnson had notice of the act done -by his agent. And right on this point is where the instruction given by the court at the request of counsebfor plaintiff seems to us to be defective, for it makes Johnson liable to Wynne in this action if he urged the collection of the notes taken by Davidson in the name of Johnson and Davidson, in payment of the saloon business, or if Johnson consented that any of the proceeds of said notes should be paid on the debts of. Johnson and Davidson, regardless of whether at that time Johnson had notice of Davidson’s attempted rescission of the contract of sale and release made by Johnson with Powell'-and Wynne or not. Now, if Johnson had been released from this claim of Wynne, then, in the absence of any knowledge by him of the attempted rescission made by Davidson with Powell, it cannot be said as a matter of law that the mere fact that he urged the collection of the notes given to Davidson in the name of Johnson and Davidson amounted to a ratification of the rescission. It is a well-known fact that the partnership name often remains the same after the personnel .of the firm has changed. The new firm may carry on business under the old name. If Johnson had no notice of the fact that Powell had attempted to rescind his contract of purchase, he might have urged the collection of the debts, not because the money was coming to him, but to aid the new firm which had assumed the debts of the old firm, and in whose success he was interested to that extent. It can not therefore be said, as a matter of law, that such action on his part amounted to a rescission, though it might be potent evidence tending to show such rescission. If, after having sold his saloon business to Powell, Johnson treated the proceeds of that business as his own, this would no doubt be evidence, probably very strong evidence, that the sale to Powell had not been consummated; or, if consummated, that it had been rescinded; but the instruction complained of did not submit that question to the jury, but told them, as a matter of law, that if Johnson urged the collection of notes given for the saloon business, they should find for the plaintiff. The latter clause of this instruction was, in view of the facts, specially objectionable. It, in effect, told the jury to find for the plaintiff if any of the proceeds of the sale of the saloon business was with Johnson’s consent paid on the debts of Johnson and Davidson. Now, as before stated, the evidence shows that Powell agreed to take Johnson’s place and assume his part of the debts. When the saloon business was sold, it was entirely proper that the proceeds should go to the payment of the creditors of that business, and the fact that Johnson consented that this should be done did not set aside a release made by Wynne, or give Wynne the right to sue him, for the payment of the debt was a part of the contract of release.
The questions in this case are, first, did Wynne, in consideration of a sale by Johnson of his interest in the saloon business to Powell, release Johnson from the debt which he now claims against him. Second, if there was such a sale and release, did Johnson ratify the subsequent agreement of the other parties thereto with Davidson that it be set aside ? The evidence, we think, tends to show that he did; but that was a question for the jury, which in our opinion was riot properly submitted.
For the reasons stated the judgment is reversed, and the cause remanded for a new trial. | [
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Riddicic, J.,
(after stating the facts.) In this case the heirs of Ben Johnson seek to set aside and declare void a foreclosure decree rendered against Ben Johnson and wife while they were non-residents of the State, and to compel the defendant to account for the rents and profits arising from the land purchased under the foreclosure sale. ° The service upon the defendants in the foreclosure decree was by publication, and the contention of the plaintiffs is that the forclosure decree was void on account of want of jurisdiction over the persons of the defendants. One. objection urged on the hearing was that proof of publication was not made in the mannér required by the statute, but counsel now concedes that this question has been decided against him by a recent decision of this court, where it was held that when a warning order has been duly published, the failure to make proof of such publication in the manner required by statute is an irregularity that does not affect the jurisdiction of the court, and cannot be considered in a collateral proceeding. Clay v. Bilby, 72 Ark. 101.
The only remaining contention is that the judgment against the non-residents was void because the clerk did not indorse the warning order upon the complaint as the statute requires. But this also was an irregularity that did not injure the defendants or affect the jurisdiction of the court. Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252; Clay v. Bilby, 72 Ark. 101.
On the whole case, we are of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Wood, J.,
(after stating the facts.) The burden was upon appellant to show that he was the owner of the land in controversy by accretion. Nix v. Pfeifer, 73 Ark. 201; Wallace v. Driver, 61 Ark. 429.
The question as to whether or not the land in suit was an accretion to appellant’s land was submitted to the jury upon a correct instruction asked by appellant; and as the verdict was general, and no special findings of fact were made by the jury or asked by appellant, we must take it that the verdict was against him on the question of accretion.
The only question therefore for us is, was the evidence legally sufficient to support the verdict? It was. True, the witness Brademyer was permitted to give his conclusion or opinion as to how the land in question was formed. But this was without objection from appellant, and he cannot complain here of that. The witness testified to his long familiarity with the river, and to his knowledge from observation and experience of caving banks and the making of islands and bars. He thus qualified himself, in a sense, as an expert in such matters, if expert testimony were demanded. But we see nothing about the formation of an accretion calling for the exercise of “peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to understand it or testify about it intelligently. As was said by us in Railway Company v. Thomason, 59 Ark. 140: “Such questions are open to all men of ordinary information.” ,
The witness detailed facts which he observed, and upon which he based his conclusion; and if the appellant objected to his stating his conclusions, he should have made known his objection specifically on this point to the trial court, to get the benefit of a ruling on it here. Certainly, much of the testimony of this witness was competent.
Doubtless, the jury concluded that it was possible for even a ñsherman to tell the truth; and, however much we might differ with the jury in this particular case, yet it was their peculiar province, not ours, to pass upon the credibility of the witnesses and the weight to be given their testimony. Hot Springs Rd. Co. v. McMillan, ante p. 88; 2 Crawford’s Digest, pp. 905-6.
This settles the controversy in favor of appellee, and we need not pass upon the question of limitations.
Affirmed. | [
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Wood, J.
The act of 1885, upon which this suit is based, is a copy of the Laws of Texas, Extra Session 1882, ch. 26, p. 35. The Supreme Court of the United States in Gulf, C. & S. P. Ry. Co. v. Hefley, 158 U. S. 98, held the Texas statute was in conflict with the Interstate Commerce Act of February, 1887, as amended by act of March, 1889. That court said: “The State statute and the national law operate upon the same subject-matter, and prescribe different rules concerning it. The national law is unquestionably one within the competency of Congress to enact under the power given to regulate commerce between the States. The State statute must therefore give way.”
The court shows how the State and national law conflict. It is only necessary to refer to that opinion as controlling this case. When this court passed upon the act of 1885 in Little Rock & Ft. Smith Ry. Co. v. Hannaford, 49 Ark. 291, and sustained it as a proper exercise of the police power, Congress had not passed the act of March 2, 1889, amending the interstate commerce law of February, 1887, hi the particulars named therein, and the decision of the Supreme Court of the United States construing .the effect of the two statutes had not been rendered.
The decision of the Supreme Court of the United States, supra, construing the two statutes is conclusive of the question here presented.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) No question was raised in the court below as to the manner in which the levy was proved, nor as to the proof of the satisfaction of the execution directed and delivered to the constable, Dorsey, from whom ‘appellant claims. Appellee virtually concedes that appellant would not be precluded from setting up his rights as a purchaser at the execution sale by the constable by any faihtre of the constable to make proper return of the execution showing what had been done under it. It clearly appears that the constable levied on the property in controversy prior to the levy that was made by the appellee, and, under the decision of this court in Derrick v. Cole, 60 Ark. 397, secured the prior lien, and it is also reasonably clear from the evidence that appellant purchased at the sale made by the constable under this levy. Appellant’s claim to the property in controversy is, therefore, prior and superior to the claim of appellee.
The judgment is therefore reversed, and the cause is remanded for new trial. | [
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McCuuuoch, J.,
(after stating the facts.) Appellant challenged the sufficiency of the evidence to support a verdict for plaintiffs by a request to the court for a peremptory instruction in its favor. ■ •
The plaintiffs introduced several witnesses who testified that a short while before the building was discovered to be on fire (the precise time, according to these witnesses, varies from ten to twenty minutes) they saw the engine pass near the building. This is denied by the engineer and brakeman, who testified that they did not go down the track as far as the compress building; that day; but the preponderance of the evidence seems to be against them, and the jury, in returning a verdict in favor of the paintiffs, necessarily found that the engine did pass the building, and, there being a substantial conflict in the testimony, we are concluded on this point by the verdict.
The building is shown to have been about 34 feet from the track on which the engine is said to have passed, and no other means appears by which the fire could have been comrhunicated. The fire occurred on Monday, and no person had been seen in the building since the preceding Saturday, when the man in charge securely fastened it.
In order for the railroad company to be held liable for the damage, the fire must have been communicated by sparks from' the engine, and the escape of the sparks must have resulted from negligence on the part of the company or its servants, either in the construction or operation of the engine.
This court held that, from proof that an engine passed near inflammable material immediately before the discovery of fire, there being no evidence to explain its origin, the jury may infer that the fire originated from sparks from the engine. Railway Company v. Dodd, 59 Ark. 317. In that case the court said: “The cotton was liable to take fire from these trains, and communicate it to the depot. One of them passed ten or fifteen minutes before it was destroyed. The cotton caught fire, and the depot was consumed by it. These were facts from which the jury might have inferred that the fire originated in sparks from the engine of the train which had just passed, there being no evidence to explain its origin upon any other theory. All these facts tended to show that the property of appellees was destroyed through the negligence of appellant, and are sufficient to sustain the verdict of the jury in this court.” This enunciation is in line with many adjudged cases on the subject. Burke v. L. & N. Ry. Co., 7 Heisk. (Tenn.) 451; Karsen v. M. & St. P. Ry. Co., 29 Minn. 12; Woodson v. M. & St. P. Ry. Co., 21 Minn. 60; Hagan v. Railroad Company, 86 Mich. 615; Johnson v. Railway Company, 77 Iowa, 667; Barron v. Eldredge, 100 Mass. 455; Smith v. London & Southwestern R. Co., L. R. 6 C. P. 14; 3 Elliott on Railroads, § 1243.
When it is proved that the fire originated from an engine of the defendant railroad company, a prima facie case is made for the plaintiff, and it then devolves upon the railway company to exonerate itself from the charge of negligence. Little Rock & F. S. Railroad Company v. Payne, 33 Ark. 818; Tilley v. S. L. & S. F. Ry. Co. 49 Ark. 535; 3 Elliott on Railroads, § 1244.
The jury having found, upon legally sufficient evidence, that the fire' was communicated by sparks escaping from the engine, the next inquiry presented, is, whether appellant overcame the presumption of negligence arising therefrom.
The engineer and yard watchman and the regular fireman, who was off duty the day of the fire, testified that they examined the engine immediately after the fire, and found the spark arrester in good condition. Three days later the engine was examined at Newport by an expert from the shops of appellant at Baring Cross, who testified that the spark arrester was of the most approved pattern in use, and was then in good condition. Mr. Luttrell, the superintendent of locomotives of appellant company, testified that the kind of spark arrester on the engine in question was the most approved in practical use, and that, “if it was in good condition at the time, the parts all tight in their places, screwed up as the}'- belong, and no holes or apertures that were not made in them,” sparks or cinders of sufficient size to ignite anything could not, in his opinion, escape. He said: “I do not think it possible for sparks from an engine equipped like this to set fire to hay from a spark falling 35 or 40 feet.” The engineer testified, also, to the effect that an engine equipped with that kind of spark arreste”!- would not, unless there was some defect 01-break in it, throw sparks large enough to set fire to anything. There was no testimony on the part of appellant as to the manner in which the engine was being operated when it passed the building, as the witnesses introduced denied that they passed down by the compress at all.
So the case stands thus: From the fact that the engine passed near the building a few minutes before the fire, and that its origin cannot be accounted for upon any other theory, a conclusion is warranted that it was communicated from the engine; and it is shown by said agents of appellant that a spark arrester of approved pattern, in good condition, such as is in common use, will not emit sparks of sufficient size to ignite inflammables. Against this the witness introduced by appellant testified, without contradiction by direct testimony, that the engine was provided with a spark arrester of the most approved kind in use. Therefore, when it was established that fire had been communicater from the engine, and there was testimony tending to show that an engine equipped with proper appliances and operated with due care would not emit sparks of sufficient size to ignite inflammable material, the jury were warranted in finding either that the engine was not so properly equipped, or that it was not operated with due care, and that appellant had not rebutted the presumption of negligence raised against it. Upon this state of the proof it cannot be said that the verdict of the jury was without evidence sufficient to support it.
The Supreme Court of Iowa in the case of Johnson v. Railway Company, supra, similar to this, said: “Counsel for defendant maintain that there is an utter failure of proof that the defendant’s engines, said to have set out the fire, were negligently handled or were not in good repair and condition. In reply to this position, it need only be said that one of defendant’s witnesses, a locomotive engineer who was in charge of one of the engines from which it was claimed the fire escaped, testified that an engine in good repair could not throw fire a distance from the track to the place the fire caught in the grass.' As has been said, the fires could have originated from no other source. The jury were authorized to infer from this evidence that the engines were not in good repair.”
In Hagan v. Railroad Company, supra, a case similar to this, where the origin of the fire was unexplained except by the proximity of the engine, and the railroad operatives had testified that the engine was properly equipped and skilfully operated, and that such an engine, when so operated, could not throw sparks, the court held that there was sufficient evidence to go to the jury, saying: “Testimony cannot be said to be undisputed when inconsistent with some other fact or circumstance, either established or regarding which testimony has been admitted. The court very properly declined to take the case from the jury or to pass upon the conclusiveness of the testimony offered by the defendant.”
The Supreme Court of Minnesota in the case of Karsen v. M. & St. P. R. Co., supra, which was quite similar to this on the facts, said: “A verdict cannot be said to be unsupported by the evidence, when, taking the entire evidence together, it will fairly and reasonably warrant the conclusion arrived at. Neither is a jury necessarily bound to accept as conclusive the statement of a witness that an engine was in good order, or carefully and skilfully operated,' although there is no direct evidence contradicting the statement. They have a right to consider all the facts and circumstances in evidence bearing upon the condition or mode of operating the engine and upon the accuracy of witnesses.” See also Solum v. Great Northern Ry. Co., 63 Minn. 233; Burud v. Great Northern Ry. Co. 62 Minn. 243.
Error is assigned by counsel in the giving of several instructions by the court, but we find no error in them. It is especially urged that the court erred in giving the seventh instruction asked by plaintiffs, wherein the jury were told that they were not bound to accept as conclusive the statement of witnesses that the engine was in good order and carefully operated, although there might be no direct evidence to contradict them, but that they should consider all the circumstances and evidence bearing upon the condition of the engine and mode of operating it and the circumstances under which the fire took place. We think this instruction correctly stated the law, and follows the language used in some of the decisions we have cited herein.
Complaint is also especially urged against the oral instruction of the court, on the ground that it holds the railroad company to the absolute duty of providing the most approved appliances for preventing the escape of fire, instead of holding them merely to the duty of exercising ordinary and reasonable care and diligence in providing the best known appliances in practical use. We do not think that the instruction is open to that objection. The instructions, taken as a whole, correctly state the law to the jury that the company had discharged its duty if it “had exercised reasonable care in providing its engines with the most approved appliances and contrivances in general use by railroads throughout the country for. the prevention of the escape of sparks, and said appliances and contrivances were in good condition.”
The judgment is affirmed.
Battle, J., dissents. | [
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Riddick, J.,
(after stating the facts.) This is an action by plaintiff to recover possession of certain land which he had leased to defendants. The decision of the case turns on the construction of the following clause in the contract: “It is, however, agreed and understood between the parties that the said K. W. Williams shall.have the option, after the expiration of one yéar, to take back the lands that have been cleared and placed in cultivation by the said Bunch & McKenzie, but in doing so he shall pay to the said Bunch & McKenzie the sum of $3.50 per acre per annum for each acre they may have so cleared as aforesaid until the expiration of the five years.” The provisions of this contract are not altogether clear, but after consideration of the same we are of the opinion that the. payment of the defendants for the clearing was a condition precedent to the right of the plaintiff to take back the land under this contract before the expiration of the five years. It is true that the evidence here shows that this land had not, at the time this suit was brought, been fully cleared as required by the contract, for there were at that time trees still standing on the land under two and one-half feet in diameter. But defendants, having put the land in cultivation during the first year, were not required by the contract to have it.fully cleared during that year. Defendants had during the first year expended over $500 in improving this land, and it would be a harsh construction of the contract to hold that, as the land was not then fully cleared, plaintiffs could take it back and pay nothing for the work and-labor expended by defendants. The time during which these trees were all to be taken from the land was not limited to the first year, and, if defendants had been permitted to retain the use of the land for the full term of five years to pay for the clearing, it would not have injured plaintiff if the trees had been taken from the land before the expiration of the term of the lease. But counsel for plaintiff admit that defendants were entitled to some compensation for the work and labor expended on the clearing, but contend that this compensation was not to be paid before plaintiff re-entered the land, but afterwards. I feel some doubt about that point myself, but after consideration thereof the court has concluded that the contract required that a payment or tender of the amount due defendants for the clearing, whatever it was, should have been made before commencing the action to recover the land.
It follows, therefore, that in our opinion the suit, being brought before any payment or tender was made, was premature. The judgment will therefore be reversed, and the case remanded for further proceedings. | [
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Hirr, C. J.
These three cases present but one question, and it is practically the same in each case. The prosecuting attorney, in his closing argument, said:
“That, in considering the testimony of the defendant, the jury .should take into consideration his interest in the result; should consider whether his statement was made in good faith, or merely to avoid conviction; that he (the prosecuting attorney) would not believe any man on oath who would deliberately violate the law by running a blind tiger; that, if he would violate the law in that respect, he would not hesitate to swear a lie to get out of it.”
His closing argument in another of the cases contained this statement:
“A blind tiger man will swear a lie any time. This man, John F. Reese, is not worthy of belief. Any man that will run a blind tiger will swear a lie to beat the law.”
On objection made by the defendant, the court declined to interfere with the argument, and, preserving proper exceptions, the cases are brought here for review.
These statements of the prosecuting attorney are nothing but the expressions of his individual opinion, stated in over-forcible terms. The statements do not fall within that class of statements where the attorney makes a witness of himself in his argument, and states facts without the record. These cases may be found discussed in German-American Ins. Co. v. Harper, 70 Ark. 305; Fort v. State, 74 Ark. 210; English v. Anderson, 73 Ark. 577.
An attorney undoubtedly has a right, if his taste and judgment calls for it, to express his individual opinion freely in discussing the facts in evidence, so long as he couches his remarks in language befitting his high profession and the place of its utterance — a temple of justice.
In this case the prosecuting attorney was at perfect liberty to express his opinion freely as to all matters in evidence attacking the credibility of the defendant as a witness, provided he framed his argument in proper language and manner. This addressed itself to him in the first place; to the trial judge in the second place; and lastly to this court, not to pass on its propriety, taste or elegance, but merely to pass on whether the circuit judge abused his discretion in permitting it, and whether it worked a prejudice to the defendant not warranted by the law or facts of the case. Without approving the language used in expressing his opinion of the testimony of the defendant, the court is of opinion that there is no reversible error in it. The court hopes that attorneys, especially those representing the State of Arkansas, who act in a quasi judicial role, will couch their expressions of opinion in language less intemperate and denunciatory, and that the circuit judges will require it of them. Instances may arise of excesses in this line calling for reversal, but this case is not such an instance.
The judgments are affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by the defendant from a judgment rendered against' her in an ac tion of ejectment for the recovery of six and one-half acres of land. There had been prior a action for the same land, which was commenced on the 22nd of August, 1898, and in which a nonsuit was taken in March, 1900. Afterwards the present action was begun on the 25th of August, 1900. In the first action plaintiff relied on a conveyance from Brinkley to McMurray, and one from the heir of McMurray to plaintiff. After the commencement of the first action plaintiff procured deeds from the heirs of Brinkley to himself. In the second action he does not refer to the conveyance from Brinkley to McMurray, but relies on the conveyance from the heirs of Brinkley to himself. Defendant pleaded the statute of limitations, and her counsel contend that the two suits above referred to were based on different causes of action, and that the statute of limitations did not stop running until the commencement of the last action. The mere fact that plaintiff did not properly set out his chain of title in one or the other of these suits would, we think, on this point be immaterial if he was in fact the owner of, and seeking to sustain, the same title in each action. But the contention of defendant is sound if plaintiff in the second action is seeking to maintain a title acquired subsequent to the cómriiencement óf the first action, for such title gave plaintiff a new cause of action, and the fact that plaintiff brought a former action against defendant did not stop the statute from running against plaintiff on a cause of action acquired after the commencement of such suit. That is to say, if plaintiff held the title to this land, or any part of it, at the time of the commencement of the first action to recover the land, the statute of limitations stopped, as to the land he then owned, on the bringing of such action; but if he acquired title to it, or to part of it, subsequent to that time, then as to that part he had no right of action at the time the first suit was brought, and the statute did not stop running against his right to recover until he acquired title and began the new action. It takes a right on the part of plaintiff and a violation of that right on the part of defendant to make a cause of action; and, until plaintiff acquired title to the land, the possession of the defendant did him no injury, and gave him fió right of action against her. Plaintiff did not set out or read in evidence the deed from Brinkley to McMurray or from McMurray to him. and we are not able to pass on those deeds. But, as the chain of title set out by plaintiff and the evidence tend to show that the title to at least a portion of the land was acquired by plaintiff subsequent to the commencement of the first action, we are of the opinion that the court erred in holding generally that the statute of limitations stopped running on the commencement of the first action. Union Pacific Ry. v. Wyler, 158 U. S. 285; Sicard v. Davis, 6 Peters, 124; Whalen v. Gordon, 95 Fed. Rep. 305.
The objection to the introduction of the transcript of the record of the State Land Office should have been sustained, in the absence of a showing that the original patent was lost or could not be produced. Carpenter v. Dressler, ante, p. 400.
As to the question whether the land was sufficiently described in the various deeds submitted by plaintiff, it is not material to notice the description of the land contained in the deed from the United States to the State, for the reason that the title to the swamp land of the State does not depend alone upon .that deed, but upon the grant contained in the statute of 1850. The fact that the State afterwards conveyed this land to Brinkley as swamp land makes out, we think, at least a prima facie showing of title in him. The deed of the State describes the land as the east half of the southeast quarter, giving section, range and township', which is sufficiently certain.
The deed from Folbre, by which Folbre, as commissioner to enforce a decree for the payment of levee taxes, sold and conveyed the land to plaintiff, described the land as “E. pt. S. E. 24 Sec. 30, 5 N., 4 E., containing 63 acres,” and the tax deed from' the clerk of St. Francis County, conveying land to Reeves, under which deed plaintiff also claimed, described it as the east part of southeast quarter of section 30, 5 N., 4 E., containing 60 30-100. These descriptions might possibly be construed to describe a tract in the shape of a parallelogram taken from the east side of the quarter section described, but the evidence shows that it was not the intention to sell a tract in that shape. Under former decisions of this court these descriptions are not sufficiently certain to pass title in a proceeding to collect taxes, and these deeds are void, and the exceptions to them should have been sustained. Rhodes v. Covington, 69 Ark. 357; Texarkana Water Co. v. State, 62 Ark. 188; Schattler v. Cassinelli, 56 Ark. 172.
We have not overlooked the fact that this is not an ordinary tax sale, but a sale under the order of a court. This court has held in a recent casé of this kind that? a mistake in the name of the owner of the land did not invalidate the proceedings (Ballard v. Hunter, 74 Ark. 174) ; because the published description of the land is notice to the owner, even though another person be designated as owner; but if the land is not correctly described, the owner has no notice. The court acquires jurisdiction by the filing of the complaint and publication of the notice describing the land; and if the land* is not described so that the owner may know that his land is being proceeded against, the court acquires no jurisdiction to sell it. For this reason we think that when there is no personal service, but notice is given by publication only, as here, and when, as in this case, the name of the owner of the land is not correctly stated, the description of the land must be reasonably, sufficient to identify it. The land here is only six and a half acres, in the shape of a triangle, and we are of the opinion that its description as the “east part of S. E. J4 of Sec. 30, 5 N., 4 E., containing 60 30-100 acres” was well calculated to mislead an owner whose name did not appear in connection with the description.
For the reasons stated the judgment is reversed, and the cause remanded for a new trial, with leave for either party to amend pleadings. | [
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Wood, J.,
(after stating the facts.) The court did not err in overruling appellant’s motion to have appellee produce his books. It was not a matter that appellee had the right to insist upon at that stage of the proceedings. It was too late to call upon appellee to enter upon a more specific itemization of account at the time. The appellant had not moved to make more specific, and had not demurred to the complaint when the issues were being made up. Nor had he given appellee notice, before the trial was entered upon, to produce his books of account. He should have taken some or all of these steps if he expected to insist, as matter of right, upon the production of appellee’s books. The books were not essential to the maintenance of appellee’s cause of action; and, if appellant desired them for any purpose, it should have called for them before. It was at least within the sound discretion of the court, under the circumstances, to refuse appellant’s request made at that juncture of the trial. Appellant might very properly have had some of the items in the account made more specific, had it demanded it earlier, and might have had appellee produce his books, if it had advised him before that they were material or essential in its defense.
Second. The statute of frauds is urged as a defense here. But the allegations of the complaint show a suit upon an original undertaking on the part of appellant to pay appellee for goods and merchandise furnished appellant’s hands and employees, at the request of appellant, and upon contract made by and between appellant and appellee.
There is evidence sufficient here to sustain the verdict, both as to the contract and the amount recovered under it.
Affirmed. | [
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Riddick, J.
This is an action by a son and a daughter against their mother to cancel a deed executed by them conveying to her two lots in the city of Texarkana and the improvements thereon, on the ground that the conveyance was procured through fraud. The facts are that one A. B. McNutt purchased the two lots mentioned, paying $200 cash and agreeing to pay a balance of $600 in installments of $25 each. His wife, Mrs. Margaret A. McNutt, the defendant in this action, claims that she paid all of the purchase money except the $200 paid by her husband in cash. By the consent of herself and her husband, their vendor executed a deed conveying the lots to their two children, who are the plaintiffs in this case. After these children became of age and were married, they executed a deed conveying these lots to the defendant, their mother. The deed recites that it was executed “for and in consideration of the sum of $5 and other good and valuable considerations paid by Margaret A. McNutt.” But the plaintiffs and also the wife of one of the plaintiffs testify that the defendant procured the execution of the deed by telling her son and daughter that she desired to sell the property to Mrs. Preston, who, she said, was willing to pay $1,500 for it, but that Mrs. Preston would not purchase from the plaintiffs, but insisted upon having a conveyance from defendant. The defendant then proposed that plaintiffs convey the property to her, promising that she 'would convey it to Mrs. Preston and divide the purchase price between the plaintiffs. They say that they made the conveyance, but that the defendant refused to carry out her part of the contract, and still retains the property, in fraud of their rights.
The defendant answered the complaint, and denied that she had procured the property as alleged in the complaint. But she states that, she having paid a large part of the purchase money, the plaintiffs, her children, when they became of age, as a matter of justice, executed the deed conveying the lots to her for love ■and affection, in order that she might have a home, and that she is the owner thereof, both in law and equity.
The chancellor found the issues in favor of the plaintiffs, and the question presented by the appeal from his judgment is mainly a question of fact. But this is an effort to have a court of equity impose a trust ex maleficio upon real property, and to change the beneficial title to such property by parol evidence from the defendants to plaintiffs. In order to justify a court in granting such relief, the fraud alleged should be clearly established. A mere preponderance of the evidence is not sufficient to obtain such relief. McGuigan v. Gaines, 71 Ark. 614; Ammonette v. Black, 73 Ark. 310; Tillar v. Henry, 75 Ark. 446. Now, the plaintiffs do testify positively that their mother obtained the property in the manner alleged, but there are undisputed facts in the case which cast a suspicion upon the justness of their claim. -This deed that they say was procured by fraud was executed on the nth of June, 1900. As Mrs. Preston lived in Texarkana, near where they lived, they must have discovered the fraud of their mother only a short time afterward, but it was nearly three years afterward before they brought this action to set the deed aside. There is nothing to show that the daughter ever asked her mother to perform her part of the contract or pay her for the lots. The son, A. B. McNutt, testified that he did ask his mother two or three times to sell the lots and pay him his part of the proceeds, but she denies that he did so. The testimony and his own letters read in evidence show that he was poor, and had to borrow money from his parents. In several of these letters he asks them for financial assistance, but in none of them does he mention the fact that his mother owed him anything for this land. On the contrary, in several of these letters he refers to the lots as her property, and offers to rent one of them from her if she will put up a small house on it. These letters written by plaintiff A. B. McNutt commence only a month or two after the deed was executed by plaintiffs to their mother, and continue at intervals for a year or two. If this mother had perpetrated such a gross fraud upon him in reference to this deed, it is remarkably strange that, though he several times refers to this property in his letters as his mother’s property, he never refers to or hints at the fraud which he now testifies that she committed in reference thereto. These letters, it seems to us, completely overthrow the testimony of this plaintiff in reference to the acts of his mother, for it is inconceivable that she should have committed such a fraud, and that he should never have mentioned it in letters which refer to the property.
The parties who testify to this fraud are all interested parties, and one of them the wife of a plaintiff, and for that reason of doubtful competency as a witness. But it is unnecessary to discuss that point, for it seems to us that, considering all the evidence, it does not make out a case clear enough to justify the court in granting the relief asked and in changing the title to this land.
On the whole case, we are of the opinion that the chancellor erred in his decree in favor of plaintiffs. The judgment will therefore be reversed, and the cause remanded with an order to dismiss the complaint for want of equity, at the costs of the plaintiffs. It is so ordered. | [
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Riddick, J.
This is an appeal from the judgment of the Ouachita Circuit Court convicting the defendant, Tom Byrd, of murder in the second degree for killing one Mr. Burnsides in Calhoun County, the venue having been changed to the former ' county before trial.
The evidence shows that on the 4th day of September, 1904, at the town of Woodbury, the defendant, Tom Byrd, became intoxicated from drinking whisky. While in this condition, he met Burnsides on the street. Burnsides was a man of fifty-nine years old, weighed about 115 pounds, and was very weak, even for .a man of his age, while the defendant was twenty-eight years old, weighed about 170 pounds, and was a strong man physically. Byrd was cursing at the time he met Burnsides, and one of the witnesses testified that Burnsides requested him “to have respect for the ladies, if not for the men.” Whereupon Byrd caught Burnsides by the collar, and said to him, “You God damned old son of a bitch, you told a lie on me, and caused me to pay out $27, and I am going to kill you.” Burnsides asked him not to strike-him, but the defendant struck him, and then threw him to the ground, and sat down astride him, and commenced to beat and pound him in the face with his hands and fists, occasionally catching him by the neck or shoulders, and then raising his head from the ground, and pounding it back against the ground. Some moments intervened before any one attempted to interfere and stop the furious and brutal attack of the defendant upon the helpless old man. When they did attempt to separate them, Byrd frustrated their attempt by putting his hand in his pocket as if he was about to draw a pistol and threatening to kill any one who should interfere. After he had pounded Burnsides into unconsciousness some one went to him and told him he had killed the old man, and induced him to desist and leave. Byrd went home. When he reached home, he met his wife, and told her that he had killed Burnsides. Soon after that he left his home, and was a fugitive from justice for several days, when he surrendered to the officers. His victim was also taken home where he lingered from Sunday afternoon, the time of the assault, until early on the morning of the following Wednesday, and then died without having gained consciousness. The only excuse for the .assault that caused his death, presented at the trial, was that the defendant was insane. But the testimony on this point shows, in our opinion, nothing more than that the defendant occasionally drank intoxicating liquors to excess, and that when he did so-he was more than ordinarily violent and unreasonable, even for a drunken man. When in this condition, he sometimes threatened to kill himself, and acted in a fitful, unreasonable way, as drunken men often do. Several of the witnesses who detailed these acts of the defendant were then asked by his counsel whether they considered him insane or not, but the presiding judge refused to permit these questions-to be answered. In this ruling we think the judge erred, for such testimony has. often been held to be competent by this- court. Green v. State, 64 Ark. 523; Shaeffer v. State, 61 Ark. 241.
But, if we assume that these witnesses would' have answered that the defendant was insane, this testimony would have shown nothing more than that the use of intoxicating liquors had a very bad effect on the defendant, and that they produced in him a species of temporary insanity; but this kind of insanity is ordinarily no excuse for crime.
“The law,” says Mr. Bishop, “deems it wrong for a man to cloud his mind or excite it to evil by the use of intoxicating drinks; and one who does this, then, moved by the liquor while too drunk to know what he is about, performs what is ordinarily criminal, subjects himself to punishment; for the wrongful intent to drink coalesces with the wrongful act done while drunk, and makes the offense complete.” He goes on to say that there is an exception to this rule where a necessary ingredient in the offense charged is a specific intent, and the intoxication is to such an extent as to render the defendant incapable of forming such an intent. In other words, when it is necessary to show a specific intent to make out the crime, anything that rebuts the fact that there was such an intent is competent evidence to be considered. If the man was too drunk to form such an intent, that may be considered. Bishop’s New Crim. Law, § § 398-400.
In this case the fact that the defendant was intoxicated at the time he assaulted Burnsides may have raised in the minds of the jury a reasonable doubt as to whether there was a specific intent to kill, and led them to reduce the crime to murder in the second degree. But no specific intent to kill is necessary to constitute the crime of murder in the second degree, under our statute, and the law is that “the intention to drink may fully supply the place of malice aforethoughtso that, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder the same as if he was sober. 1 Bishop, New Crim. Law, § 401.
Now, in this case defendant was not at the time of the killing laboring under delirium tremens or other form of more or less fixed insanity caused by continued intoxication. The insanity that he was laboring under, if any, was the immediate result of the intoxicating liquor he drank on the day of the homicide. In other words, he was simply drunk from the effects of liquor which he had voluntarily taken. While in that condition, he met this infirm old man, towards whom it seems that he entertained some grudge on account of a suspicion that the old man had instigated a prosecution against him, and, with passions inflamed and excited by the drink he had taken, he assaulted him and beat him into unconsciousness without any provocation whatever. It is no doubt true that if he had been sober this deed would not have been done. While his passions were inflamed by drink, his subsequent conduct shows that defendant was not so drunk that he did not know what he was doing. The fact that a few minutes afterward he told his wife what he had done, and made preparations to escape, and did elude the officers for several days, shows that he at once appreciated the gravity of the crime he had committed. But, if we concede that he was insane, it was not delirium tremens, but only his ordinary condition when drunk. He voluntarily drank the whisky, and became drunk. The books are full of cases holding that such insanity, which is only another word for drunkenness, is no excuse for crime. Casat v. State, 40 Ark. 511; People v. Garbutt, 17 Mich. 9.
The statement' of the prosecuting attorney in his closing argument that “the case is so cruel and barbarous that it is without a parallel in the history of crime” was only the expression of his opinion as to the gravity of the crime as shown by the evidence, and the ruling of the court that it was proper furnishes no ground for reversal.
On the whole case we find no reason to overturn the judgment of the circuit court, and i't is therefore affirmed. | [
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McCukkoch, J.
This suit was brought in equity by appellants, H. Wells and Fannie A. Gray, as executrix of the last will of Chas. S. Gray, deceased, against appellees, Geo. W. Chase and Estella E. Chase, alleging that appellees had, on December 4, 1889, sold and conveyed to said H. Wells and C. S. Gray an undivided one-tenth interest in the Red Cloud Mining Claim and the Mt. Ida Mining Claim, and had thereafter acquired title to said claims from the United States, which said subsequent acquisitions, appellants say, inured to the benefit <jf Wells and Gray under said deed executed to thqm by appellees. The prayer of the complaint is that the title to one-tenth interest in said claims be decreed to appellants.
The Red Cloud Mining Company, a-corporation, which had acquired title to said claims under conveyance from appellees, was made a party defendant, and filed its answer, claiming to be an innocent purchaser without notice of appellant’s rights. Appellees answered, admitting the execution of their said deed, but alleging that said Wells and Gray had failed to pay their proportionate part of the cost of the annual assessment work on said mining claims, and had thereby forfeited their rights therein, and that appellees and their co-owners had subsesequently abandoned said mining claims as lode claims, and relocated the same as placer claims, and obtained patents therefor.
It is shown that the mining claims in controversy had been located as lode claims, and were held by appellees and others at the time of the conveyance of the one-tenth interest therein to Wells and Gray. Subsequently the claims were found not to be in fact lode claims, and were abandoned and forfeited as such, and appellees and other parties located the same as placer mining claims.
It is urged in behalf of appellants that the title subsequently acquired by appellees in the placer mining claims inured to their benefit by operation of Kirby’s Digest, § 734, which is as follows :
“If any person shall convey any real estate by deed purporting to convey the same in fee simple absolute, or añy less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterward acquire the same, the legal or equitable estate afterward acquired shall immediately pass .to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance.”
The deed in question is somewhat peculiar in its terms. • It recites that the grantors “have sold and released and quitclaimed” to the grantees, Wells and Gray, an undivided one-tenth interest in “the following mining and mineral lands and claims,” describing the claims in controversy, and others. The habendum clause contains a stipulation that the grantors will “forever defend the title aforesaid against all parties who hold under or through” the said grantors. The effect of the deed was to convey to the grantees whatever title the grantors then had to the undivided one-tenth interest, and to warrant against any prior conveyances or incumbrances made or suffered by the grantors; but it did not purport to convey any title except what the grantors then had. They then had title to a lode claim, which was subsequently abandoned and forfeited. This is all that passed by the deed, and another title subsequently acquired did not pass. As said by this court in Blanks v. Craig, 72 Ark. 80: “The statute only affects interests in land which the grantor has conveyed or which his deed purports to convey. It does not affect interests afterwards acquired by the grantor which he has not previously conveyed or attempted to convey.” Where one has title or interest in. land which he conveys by deed, and the deed purports to convey no more, another title or interest subsequently acquired by him does not pass to his grantee under the deed.
Appellant Wells testified that he paid G. W. Chase part of the expense of assessment work, and that Chase was indebted to him, and promised to pay the remainder of the expense. It is urged by counsel for appellants that Chase wrongfully allowed the forfeiture of the interest of Wells and Gray, and cannot take advantage of it to acquire another title to the claim. No such issue is raised by the pleadings; but if we treat the issue as properly raised, the burden is upon appellants to prove, at least by a preponderance of the testimony, the bad faith and misconduct of Chase; and as the latter denies that he was indebted to Wells or ever promised to pay for the assessment work, or that Wells ever sent him any money for that purpose, we cannot say that there was a preponderance in appellants’ favor. There was no testimony except that of Wells and Chase, and they positively contradict each other on every material matter. We are not justified by the record in overturning the finding of the chancellor, and his decree must be affirmed. It is so ordered.
BatteE, J., absent. | [
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McCulloch, J.,
(after stating the facts.) 1. Counsel for appellant assign as error the ruling of the court in permitting Mrs. Payne, witness for appellee, to testify as to conversation with the railroad agent at South McAlester. She testified that she had no knowledge of an indorsement made on the bill of lading by agent reducing, in case of loss, the value of the articles down to $5 per hundredweight; denied that she received reduced freight rate on the shipment; and stated that the agent said to her:. “We are responsible for your goods or any damage to your goods.” Counsel also contend that the court erred in its instruction to the effect that the indorsement on the bill of lading reducing the value of the articles down to $5 was not bindingoon appellee if she contracted to pay the highest rate for freight, and had no knowledge of the indorsement. We need not determine whether the evidence was competent, or the instruction in question proper, as there was no prejudice to appellant in either ruling. Appellant did not plead the release, and, as the same was not in issue, no harm resulted in permitting appellee to prove that she did not agree to the release, nor in instructing the jury that she was not bound by the indorsement. Nor is any release sufficiently proved. The bill of lading shows on its face an . indorsement of the abbreviation, “Reí. Val. $3 Cwt.” Nothing appears on the bill of lading nor in the testimony to explain what the terms imply, though counsel argue that they imply an agreement to reduce the value of the property, in case of loss or damage, down to $5 per hundredweight. The court cannot assume that they mean any such thing. The bill of lading contains a clause providing that, “in case of loss or damage sustained by any property herein receipted for, whereby any liability or responsibility may be incurred, the amount of loss or damage shall he computed at the value or cost of the articles herein mentioned at the place and time of shipment.” In the face of this provision no ambiguous stipulation limiting liability can be allowed to prevail against it.
2. It has been several times held by this court, and the rule is undoubtedly supported by substantially all the authorities, that, “in the absence of evidence locating the damage to goods in transit over several connecting lines, a prima facie presumption arises that the last carrier is the negligent one.” St. Louis S. W. Ry. Co. v. Birdwell, 72 Ark. 502; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112, 83 S. W. 333.
In this case there is evidence that the damage occurred while the property was at a station maintained jointly by both carriers, and the presumption still arises, until the contrary is shown by evidence, that the damage occurred after the delivery to appellant as the last carrier. Appellant seeks to overcome this presumption by proving a prevailing custom that, notwithstanding the fact that the freight is discharged at a station in charge of a joint agent of the two companies, and is then negligently exposed to injury, it is not considered as delivered to the last carrier until a record showing a delivery to the last carrier is made by the joint agent upon the books. We cannot approve any such doctrine. The two carriers were both liable for the negligence of their common ’ agent; and, as against the person whose property was damaged thereby, the responsibility cannot be shifted by showing that the common agent had not performed some act, such as executing receipt or the like, necessary to constitute a delivery as between the two principals. ■ The rule is correctly announced in Hutchinson on Carriers, § 169, that “where they (connecting carriers) jointly employ a common agent in the prosecution of a joint enterprise as carriers, they become jointly liable for his defaults.” See also 1 Elliott, Railroads, § 1447.
The undisputed testimony in this case shows that the piano and machine arrived at Howe Junction during the night, and were allowed to remain on the open platform exposed to the rain until nine or ten o’clock the succeeeding morning. Plaintiff’s witness testified that she saw it there about ten o’clock on the platform in the rain, and called the attention of the station agent to it. The agent testified that his attention was called to the exposed condition of the piano by Mrs. Payne as late as 9 o’clock next morning, and that it had been rained on. He is not certain whether it was then raining. This makes out a clear case of negligence, for which the appellant is liable.
Affirmed. | [
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Riddick, J.,
(after stating the facts.) This is a suit in equity by certain creditors of the estate of Samuel Dickens to be subrogated to the rights of the sureties on the bond of the administrator of that estate in a mortgage executed by the administrator to them to indemnify and protect them from liability on such bond. The complaint .also set up that certain conveyances made by the administrator to his children were fraudulent, and asked that they be set aside. The chancellor found against the plaintiffs on both issues, and in the brief and argument in this court counsel for plaintiff do not ask us to review the finding of the chancellor as to the conveyances made by the adminstrator to his children many years ago. But they insist that under the facts they are entitled to be subrogated to the rights of the sureties in the mortgage executed to them by the administrator.
Now, there seems to be a distinction between those conveyances made by a principal to a surety both for the purpose of protecting him and to secure the payment of the debt and those executed merely to indemnify the sureties against liability. If the conveyances are made to the surety for the purpose of securing the payment of the debt, the creditor has an interest therein which the surety cannot destroy. But if the conveyance to the surety is only to indemnify him, then such security does not, in the first instance, attach to the debt, and whatever equity may arise in favor of the creditor with regard to the security arises afterwards, and in consequence of the insolvency of the parties principally liable for the debt. Until this equity arises, the surety has a right in equity as well as at law to release the security. Even after such insolvency the mortgagee may surrender the security, if he does it in good faith, and before any claim is made upon him for it. The application of it for the benefit of third persons can only be accomplished by the interposition of a court of equity, and in case the mortgagee still claims the security, or when he has conveyed it under circumstances tending to show bad faith or collusion betwen him and the mortgagor. Jones v. Quinnipiack Bank, 29 Conn. 25; Daniel v. Hunt, 77 Ala. 567; Fertig v. Henne, 197 Pa. 560; Pool v. Dosier, 59 Miss. 258; Steward v. Welch, 84 Me. 308; Jones, Mort. (6th Ed.) § 387; Harris, Subrogation, 591 594.
But in this case the mortgage was executed in 1875 to the six sureties on the bond of Jacoway. At the time the mortgage was executed, J. M. Cole, one of the sureties named therein as a grantor, had been dead three years, and neither he or his heirs took any legal interest by virtue of the mortgage. Brown, another one of the sureties, died in 1876. Afterwards, in 1882, the four remaining sureties executed a release to Jacoway, in order that he might sell the land. The facts show that this release was executed in good faith, and that afterwards the land mortgaged ¡massed into the hands of parties who paid a valuable consideration therefor, and came through mesne conveyances into the possession of the defendants, Brooks, Neely & Company, who are bona fide holders for value. The only surety who took any interest by such mortgage that did not join in the execution of the release was Brown, who had been dead six years before the release was executed. But plaintiffs can secure no rights through him in this proceeding for the reason that none of his heirs or legal representatives were made parties to this action. Bond v. Montgomery, 56 Ark. 563; Harris v. Watson, lb. 574.
The release of the other sureties was executed in 1882, and it was twenty years afterwards before it was questioned, and before the creditors brought this action to be subrogated to the rights of their sureties. Even if the cerditors originally had the right to enforce this mortgage for the payment of these debts, we think that it is too late to do so now, twenty years after the execution of such release. The recent case of Wallace v. Swepston, 74 Ark. 520, is conclusive on that point, on the doctrine of laches, and we refer to the opinion in that case for a full discussion of the question.
Finding no error on the points presented, the judgment is affirmed. u | [
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McCurroch, J.
This case has been before the court on a former appeal, and is reported in 72 Ark. 427. After it was remanded the defendant was put on trial in the Hempstead Circuit Court and convicted of voluntary manslaughter, his punishment fixed at two years in the penitentiary, and he again appealed to this court.
Numerous exceptions were saved to rulings of the court in the trial below, but we are not favored with an argument on behalf of the defendant pressing them upon our attention. Most of these exceptions relate to rulings of the court in' giving certain instructions asked by the State, and in refusing others asked by the defendant. Upon consideration of all the instructions given and refused, we are of the opinion that no error, was committed in this respect.
Defendant introduced several witnesses who testified that the deceased had the reputation of being a quarrelsome and dangerous man. His counsel then proposed to ask each of these witnesses whether, from the reputation of the deceased, he was a person who would likely carry into execution a threat seriously made; but the court refused to permit the question to be asked. The question was not competent, as the statement sought was entirely a matter of opinion of the witnesses. We know of no principle upon which this could be admissible. In homicide cases the character of the deceased is, under some circumstances, admissible, but evidence of his disposition or inclination to do right or wrong is always rejected. Underhill on Crim. Ev. § 325.
Opinion filed November 11, 1905.
The testimony adduced on the trial was sufficient to warrant the verdict.
We find no error, and the judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) The punishment for larceny and for receiving stolen goods is the same. Kirby’s Digest, § § 1826 and 1830. It was therefore immaterial to appellant as to the offense for which he was convicted and sentenced, provided the proof sustained the verdict as to either offense. The presumption will be, on a general verdict, that the verdict was responsive to the proof; and if appellant desired to avail himself of a lack of proof to support one of the counts in the indictment, he should have moved to have the jury designate the offense for which they convicted before they were allowed to separate. The question under consideration was thus ruled in State v. Carter, 18 S. E. (N. C.) 577, and Nelson v. State, 52 Wis. 534.
While the evidence of 'appellant’s guilt is not satisfactory to us, it is sufficient to support the verdict.
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McCurroch, J.
The conclusion of the chancellor was erroneous, and finds no support in the record. The evidence is undisputed that C. C. Clayton took possession of the land unde'r his verbal purchase from Tillar & Stanley, and neither he nor his heirs can dispute the title, while the .purchase money remains unpaid. Johnson v. Douglass, 60 Ark. 39.
The burden is upon the appellees to prove payment of the purchase price, and they introduced no proof at all tending to establish payment. On the contrary, the undisputed testimony of both Stanley and Tillar shows that nothing was ever paid on the purchase price.
The statute of limitations does not run against a vendor in favor of a vendee holding under a contract for sale and purchase; nor does it run where the original possession of the holder seeking to plead the statute was in privity with the rightful owner, until there be “an open and explicit disavowal and disclaimer of holding under that title and assertion of title brought home to the other party.” Williams v. Young, 71 Ark. 164; Whittington v. Flint, 43 Ark. 504; Ringo v. Woodruff, 43 Ark. 495; Coleman v. Hill, 44 Ark. 452; Duke v. State, 56 Ark. 485.
It being shown that the original possession of Clayton was subordinate to the rights of his vendor, the law presumes that it continued in subordination thereto untill some hostile act is shown, and that notice thereof was brought home to the vendor. No act of hostility is shown in this case either by C. C. Clayton or his heirs after his death, and the plea of adverse possession is not sustained by the proof.
Counsel for appellees contend that appellant is not entitled to the relief sought for the additional reason that he failed to tender a deed with his complaint. This would have been a good defense if it had been pleaded; but appellees failed to plead the omission, and based their defense on other grounds inconsistent with that plea. It is too late now for them to object here for the first time that no deed was tendered.
Computing interest upon the purchase price agreed upon in the original sale to C. C. Clayton from the date of that sale would make that amount to more than the notes executed by L. A. Clayton; but appellant elected to sell to T. A. Clayton for the reduced amount, and that reduction inures to the benefit of the other heirs of C. C. Clayton. Appellant asks for a foreclosure for the amount of the L. A. Clayton notes and interest, and he is entitled to decree therefor, but must execute and tender in court a deed in proper form conveying the land to appellees as widow and heirs of C. C. Clayton according to their respective rights as such.
The decree is therefor reversed, and the cause remanded, with directions to enter a decree of foreclosure in favor of appellant in accordance with this opinion.
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Hibtj C. J.
This was ah action for killing a cow by appellant railroad company. The appellant admitted the killing of the cow by the train, and assumed the burden of proof that it was not negligently killed. The testimony of the engineer and fireman sustained the allegation that it was unavoidable, and the case- is brought here on the sole ground that the jury arbitrarily discarded their testimony in finding for the appellee. The engineer’s testimony was weakened on cross-examination, and contradictions with a previous statement shown. The fireman’s testimony, while fully sustaining the allegation that it was an unavoidable accident, did not in all respects accord with the engineer’s version of the matter. The appellee introduced evidence tending to prove the cow could have been seen much further than the testimony of the engineer and fireman showed it could have been. It is true, this testimony was directed to the vision along the track in the day time, but, assuming the engine was equipped with a proper headlight, it was contradictory to the testimony of the engineer and fireman as to the distance of unobstructed vision at night.
The court is of opinion that this is not a case where the refusal to believe the engineer and fireman is arbitrary and without cause, but it presented a conflict in the testimony rendering the submission of the issue of fact proper, and- the finding of the jury final.
The judgment is affirmed. | [
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Hill, C. J.
In 1895 Bettie Jones owned an undivided half interest, and her nephew and. niece, Willie and Ola Jones, owned the other half, of a tract of land containing about 330 acres, lying partly in Hempstead County and partly in Howard County. They inherited the land. Bettie Jones was then and is now an insane person, and confined in the State Asylum. Ola Jones was born August 3, 1875, and Willie Jones was born July 15, 1882. On the 19th day of August, 1895, the then guardian of Bettie Jones filed a partition suit in the Hempstead Circuit Court against Ola Jones and Willie Jones, alleging the latter to be a minor, and set forth the respective interests of the parties, and prayed a partition of the land, and, in the event it was not found susceptible of partition, a sale thereof, and a division of the proceeds. Constructive service was had against the defendants therein, and decree rendered, finding the respective interests of the parties, and' ordering partition, and appointing commissioners to make partition. The commissioners made partition, and reported their proceedings, partitioning all the land except a 48-acre tract which was afterwards sold to appellee J. D. Reed. The report was confirmed. Before discussing the principal contention, which is over the 48-acre tract, the other questions presented attacking the whole proceeding will he disposed of.
It is contended that under § 6064, Kirby’s Digest, providing that an action for the distribution of the estate of a deceased person, or its partition among his heirs, etc., must be brought in the county where his personal representative qualified, as there was an administration of the estate of the ancestor in Howard County, the suit should have been brought there, and the Hemp-stead Court was without jurisdiction. The section just preceding this (6063) provides that an action to settle the estate of a deceased person must be brought in the county in which the personal representative qualified. These sections were taken from the Civil Code, which was adopted when the Constitution of 1868 was in force, and under it the probate jurisdiction was exercised in the circuit courts, and there were no separate probate courts. These sections, therefore, were intended to bring into the forum where the administration was pending actions settling, distributing, and partitioning estates. Under the changed jurisdiction, the excellent reasons for the enactment of these statutes ceases, and, if given force, must not be extended. The evidence shows that the administration on the estate of the ancestor was wound up and the administrator discharged before the partition suit was brought, and the reason, even under the former law, for applying this statute would not be applicable, and a fortiori it is not applicable under the present system. Section 6060, Kirby’s Digest, provides that actions to partition lands shall be brought where the land, or some part of it, is situated. The Hempstead Circuit Court had jurisdiction of the partition suit.
The next objection is to the insufficiency of the description of the land partitioned. The tracts (other than the 48-acre tract) are described obscurely, to say the least of it; but the parties have sold their interests in them, and the purchaser is in possession, and is not made a party to this suit. Whatever difficulties there may have been in locating the tracts from the description is removed by putting the purchaser into possession. The question is not open here.
That leaves only for consideration the 48-acre tract. The commissioners, in their report partitioning the land, after reporting that the parties had no other property, suggested that a certain tract 'described therein, and containing 48 acres, be set aside and sold to defray the expenses of the proceedings, which they understood would be about $150. They reported that they had an offer of $150 for this tract, which they considered a fair price. The court confirmed their proceedings in setting aside the various tracts, and approved their suggestion, and ordered this tract sold to Reed for $150, to pay costs and expenses, including an attorney’s fee of $75 for the attorneys for the plaintiff in the suit. The commissioners then sold the tract to Reed for said sum, and executed him a deed therefor in December, 1895; and he went into possession and placed improvements on the lands, and has held it since. At the April term, 1896, of the Hempstead Circuit Court, their deed was presented to the court, and an order was made in the case reciting that the commissioners produced to the court their deed to J. D. Reed for the land, and described it, and concluded, “which it in all things approved and confirmed by the court.” While this related to the deed, yet it identified the prior transaction wherein the sale to Reed at this price was ordered, and must be treated as a confirmation of the sale. It is irregular and improper, because formal confirmation should always be entered of record, yet the court has said that it was not necessary that confirmation appear by a formal order to that effect, if it can be gathered from the whole record. Ousler v. Robinson, 72 Ark. 339, 80 S. W. 227. Taking the whole record, the sale must be treated as confirmed. This precludes Ola Murphy from maintaining this action to set aside the sale on the ground of the want of jurisdiction to render the judgment ordering this land sold to pay costs and attorney’s fees. The court had jurisdiction of the parties, .and the other parts of the decree were valid, and the exceptions to the application of the five-year statutes of limitations on the jpart of purchasers at judicial sales do not apply. She was of full age when the decree was rendered, and this action was .brought more than, five years thereafter.
While proceedings based on void judgments cannot be validated, yet it is competent to curtail actions to set them aside by shorter statutes of limitations than the general statutes. Freeman on Void Judicial Sales, § § 58, 58a.
This court has held that the five-year statute does not apply to judicial sales unless they are confirmed, because there is no sale until that act. Lumpkins v. Johnson, 61 Ark. 80, 32 S. W. 65; Morrow v. James, 69 Ark. 539, 64 S. W. 269. When confirmed, and the court has jurisdiction over the parties, the five-year statute runs in favor of the purchaser at such sale against the parties thereto, although the sale is void. It is a statute of repose, and if valid the purchaser needs no limitation to ripen his title, and the manifest purpose of the Legislature was to apply it to void sales within the limitations mentioned.
The lower court allowed Willie Jones to redeem on account of his minority, but refused to allow Bettie Jones, the insane-person, to maintain the action.’ On the theory of a redemption-from the sale, that decree may be right, but the case goes farther.. Was the sale of the 48 acres void? If so, then the insane party- and the minors both ought to be permitted to recover the land,, not redeem it, subject only to Reed’s right to betterments under-section 2754, Kirby’s Digest.
At common law there was no right in a tenant in common- or other tenant to obtain in partition proceedings a sale of the-property. The courts had no jurisdiction to order a sale, but partition could be had as of right, even if partition was ruinous, and inconvenient to and undesired by all the other parties. Freeman on Cotenancy & Partition, § § 536, 539. To obviate hard' cases the various States have passed statutes permitting sales when partition would be prejudicial to the rights of the parties., Kirby’s Digest, §' 5785, provides that, when commissioners, report that partition cannot be made without great prejudice, the court may, if satisfied that such report is true, order the-land sold to the highest bidder at public auction. Such sales are made on terms prescribed by the court, and have to be reported', to and confirmed by the court, and deed is then ordered made. Sections 5786, 5792. The proceeds, after deducting costs and' expenses, are distributed according to the respective interests.. Section 5793. These statutes confer the only jurisdiction which the court has to order the sale of real estate in partition proceedings, as it is not an inherent right of the parties to have it, and-no jurisdiction existed to order it prior to these statutes, and hence the jurisdiction must be exercised conformably to the the statutes. In this case the tract in question was not sold because the land was incapable of partition without great prejudice, but, on the contrary, for the sole purpose, appearing on the face of the record, of paying the costs of the proceedings and the fees of the plaintiffs’ attorneys, taxed as part of the costs. The utmost that can be said of the attorneys’ fees are that they were part of the costs; and as to whether the court has, in amicable suits, any right to tax them as costs is a question that the courts are divided upon, but all agree that in adversary proceedings they cannot be so taxed. 21 Am. & Eng. Enc. Law, (2d Ed.), 1177, 1178. Costs are debts, and do not constitute liens, other than general judgment liens, when they enter into a judgment. They are not enforceable by sale of property, other than other debts are enforceable by execution after proper proceedings. The statutes prescribe methods to collect debts from minors and insane persons, but as to any person they are no more than other debts, and exemption and homestead and bankruptcy proceedings may avoid their collection. The officers have full protection from performing any service until their fees are paid in advance. It is clear that in partition suits the land cannot be sold to pay costs, and the only question of moment is the effect, on collateral attack, of the judgment ordering it done. In Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S. W. 1044, in referring in an order of probate court selling lands to pay costs of administration, the court said: “But where its judgment shows affirmatively on the face that the court was proceeding in a matter over which it had no jurisdiction, or acting beyond its jurisdictional limits, such judgment is void. * * * The confirmation cures all irregularities in the sale or the order therefor, but not jurisdictional defects. The order of sale here shows affirmatively that it was made to pay expenses of administration, and not debts of the decedent, and is therefore void.” The analogy between the cases is strong. In Falls v. Wright, 55 Ark. 562, 18 S. W. 1044, 29 Am. St. Rep. 74, dower was assigned in lands of an estate not presented to the court in the petition for assignment of dower, and the action of the commissioners was confirmed. This court held, so far as the land outside the petition was concerned, that it was aside from the issue, confirmation did not cure it, and the sale was void. The court approved this definition of jurisdiction: “First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; third, the point decided must be, in substance and effect, within the issue.” The sale for costs is not an issuable fact in partition suits, and, when the court entertains it, it is going beyond its jurisdictional limits. In a case in Indiana the court ascertained an amount as attorney's fees, and decreed it a lien on the lands, and sale was had thereunder. It was held the sale was void, as courts have no power to adjudicate matters not in issue, and which could not be brought in issue. Hutts v. Martin, 134 Ind. 587, 33 N. E. 676.
It is insisted that the guardian of Bettie Jones had authority to bring the suit, and his action within the limits of his express authority would bind her. This is true, and his action bound her in everything which the partition suit could validly accomplish — a partition of the lands, and, where it is found incapable of partition without great prejudice, then a sale. These are the only issuable matters to be presented. On them she is bound. Beyond them she is not. The Indiana. court in the case supra said: “Litigants do not place themselves for all purposes under the control of the court, and it is only the interests involved in the particular suit that can be affected by the adjudication. Over other matters the court has no jurisdiction, and any decree or judgment relating to them is void.”
The court, in finding the amount for Willie Jones to pay for improvements, seemed to have allowed for improvements made in 1895. Reed's deed, while dated December 9, 1895, was not approved and the sale was not confirmed till April 6, 1896. As the commissioners procured its approval and presented it to the court, it is evident that it was not intended to deliver the deed till it was approved by the court, and he had no- color of title until the deed was delivered to him. He had color of title after the deed was approved and delivered to him, and he' is entitled to improvements as prescribed by the betterment act.
The decree as to Ola Murphy (nee Jones.) is affirmed, because she is barred. As to Willie Jones it is reversed as to the amount he is chargeable with, and as to Bettie Jones is reversed. The cause is remanded, with directions to enter judgment in favor of Bettie and Willie Jones for their respective interests, subject to proper allowance for betterments. | [
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McCulloch, J.,
(after stating the 'facts.) Appellee and Smith both testify to the same effect that under the purchase appellee should have 40 acres of land, and that the deed should have described it. As against Smith, appellee’s right to a ref of mation of the deed is clearly established; the only question in dispute being whether Mrs. Thalheimer under her subsequent purchase took without notice.
Smith testifies that when he agreed with Thalheimer (who made the trade as agent of his wife) for the sale, he informed the latter of his previous sale of 40 acres to appellee, and that he proposed to sell the remainder. At the time of appellee’s purchase, there was open and in cultivation on the place about 15 acres, all but about two acres being on the 23-acre tract (fractional southwest quarter of northwest quarter). The remaining two acres of open land were in the same inclosure, but on the southeast quarter of said northwest quarter. Appellee at the time of his purchase occupied the land as Smith’s tenant, and immediately after his purchase he moved the east line of his fence so as to enlarge his inclosure and include about eight acres of the southeast quarter of the northwest quarter. He cleared several acres of this addition to his inclosure, and was occupying the whole when Mrs. Thalheimer purchased. She purchased without any actual notice of appellee’s occupancy, and appellee did not place his deed of record until after the sale to Mrs. Thalheimer. But she was informed by Smith that he had previously sold 40 acres to appellee, and, when she purchased, appellee was in actual, open and visible possession of eight acres of the land- which Smith conveyed to her. Such possession was equivalent to actual notice of the title, rights or equities of the occupant. Hamilton v. Fowlkes, 16 Ark. 340; Jowers v. Phelps, 33 Ark. 465; Sisk v. Almon, 34 Ark. 391; Bird v. Jones, 37 Ark. 195; Rockafellow v. Oliver, 41 Ark. 169; Atkinson v. Ward, 47 Ark. 533; Watson v. Murray, 54 Ark. 499; Kendall v. Davis, 55 Ark. 318; Strauss v. White, 66 Ark. 167. Mrs. Thalheimer purchased, therefore, with notice of appellee’s equities, and the reformation can be enforced against her. .
Appellee claims in his complaint 40 acres off the west end of the south half of the northwest quarter, and the court so decreed by reforming the deed so as to embrace 17 acres off the west side of the southeast quarter of the northwest quarter, in addition to the fractional southwest quarter of the northwest quarter; but the testimony of appellee and Smith both shows that according to agreement he was to have 40 acres in the southwest corner of the quarter section, and the decree should have been for a reformation according to that agreement. However, appellants contested the right of appellee to any reformation at all, and raise no question as to this variance, so we will not disturb the decree on that account.
Decree affirmed. | [
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Hilt, C. J.
L. A. Stainback and P. W. Crawford, Jr., were partners, doing a wholesale and retail business in builders’ material and like lines of wares, in the city of Little Rock, under the firm name of Stainback, Crawford & Company. They agreed to dissolve, and, being unable to agree on a disposition and settlement of the business, united in a suit to have a receiver appointed and the partnership wound up' in the chancery court. The receiver was duly appointed, and was directed to sell the personal property described in the inventory of assets in bulk at public auction for cash to the highest bidder. The receiver made the inventory, assisted by the partners, who examined it after it was completed. The inventory did not contain five notes which had been given to the firm, and which had been negotiated to the firm’s bank upon the firm’s indorsement; and did not contain certain • material bought of Sickels & Company to complete a contract of the firm for the inside furnishing of the Majestic Hotel at Hot Springs. The receiver had no knowledge or information in regard to these matters.
Stainback’s brother was the bookkeeper of the firm, and he (Stainback, the partner) was thoroughly familiar with all the details of the business. Just how familiar Crawford was with the details is not clear, but it is clear that he did not possess the intimate familiarity of Stainback, and that these matters were wholly in Stainback’s charge. Crawford’s father bid upon the assets of the firm at the sale $35,900, and he relied entirely upon the inventory as furnishing a complete list of the assets. Other bidders did the same, and the court’s order called for the sale to be according to this inventory, which had been filed in court. J. P. Stainback, the bookkeeper, bought the assets at the sale for $36,000. He bought for a corporation then formed in which his brother, L. A. Stainback, owned a majority of the stock. Crawford filed a petition, praying that the notes and said material (and other matters not presented on this appeal) be charged as assets of the firm. The chancery court held that the notes passed to the purchaser subject to the lien of the bank, and that their payment should be out of the firm assets, and that the material bought of Sickels & Company passed to the purchaser, and its cost was a firm debt. Crawford appeals from this finding.
Whether Stainback performed his full duty to his partner in disclosing the existence of these notes and material and not listing them in the inventory is a matter upon which the evidence conflicts; and the court is of opinion that he did not do so; and furthermore is of the opinion that the assets passing to the purchaser were only those listed. Stainback is in no position to claim that the notes passed when he was in charge of that department of the business, and did not list them, and he wrote to Sickels & Company to have the shipping of the material antedated so as to apparently precede the sale, when in fact it was shipped subsequently. The evidence shows that the purchaser at the sale was to take the contracts as they were, and to furnish the material to finish them.
The decree is reversed, and the cause remanded with directions to enter a decree in conformity herewith.
Riddick and McCuuloch, JJ., non-participating. | [
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Riddick, J.,
(after stating the facts.) This is an- action by a bank against a number of defendants, who were sureties on a promissory note of one Maxey executed by him to the bank for a loan of $2,000. The defendants, for answer set up that the note had been paid by one W. E. Davis, who was not a party to the note. It is admitted that Davis did pay to Yancey, Reeder & Casey, a firm of attorneys, an amount equal to the balance due on this note, and that they gave him a receipt for the same in full as attorneys for the bank. It is also admitted that, after deducting a fee for making the collection, these attorneys paid the balance of the money to the bank, which credited the net amount paid to it on the note. The net amount paid the bank left a balance unpaid on the note equal to the amount retained by the attorneys for a fee, and the decision in this case is narrowed down to the question as to whether the attorneys represented the bank in making the collection from Davis, so that a payment to them was in law a payment to the bank, or whether, if they did not represent the bank, the circumstances are such as to estop the bank from denying that they did represent it, or to show that the bank ratified the act of the attorneys in making the settlement with Davis. The evidence showed that Maxey, the principal in the note, had failed in business, and was a bankrupt at the time the note became due. Though Maxey had failed, the sureties on the note were solvent, and made it perfectly good. But the bank, at the request of Maxey, filed the note with the referee in bankruptcy, in order that it might receive its proportion of the bankrupt’s estate, and to protect the sureties to that extent. A small amount was paid on the note from the assets of the estate, but a considerable sum remained due for which the sureties were liable to the bank. While matters stood in this condition, Yancey and one Adams, manager of the White River Grocery Company, a creditor of Maxey, had a meeting at Penter’s Bluff with Maxey and two of the sureties on the note of Maxey to the bank. Maxey divulged facts which tended to show that one Davis was a secret partner in the mercantile business carried on by Maxey, and that Davis was liable for debts contracted in the course of that business. Now, the bank was not interested in this matter, for the sureties on its note made it perfectly good. And while the evidence shows that the firm of Yancey, Reeder & Casey, of -which Yancey was a member, was retained by the bank generally, they had no authority to undertake collection of claims held by the bank unless they were especially requested to do -so. They had never been requested to collect this note, further than to have it allowed by the referee as a claim against the estate of Maxey in bankruptcy. At the time of this meeting at Penter’s Bluff, the note was' in the possession of the bank, and Yancey had no authority from the bank to collect it or to take steps for that purpose. He did not go to Penter’s Bluff at the instance or request of the bank, or to represent it, but as the attorney for Adams, the manager of the White River Grocery Company, and as the attorney for other creditors of Maxey whose claims he held for collection. These debts were unpaid, and Yancey was interested in getting information that would show that Davis, a man of means, was liable for the payment of them. The two sureties present were interested; for, if the amount due the bank " from Maxey could be collected from Davis, they would be relieved from liability to pay it. The outcome of this meeting was an understanding that Yancey should go ahead and get up the evidence against Davis, and, if possible, compel him to pay these debts, including the debt due the bank. It is unnecessary for us to consider whether this understanding, taken in connection with the subsequent action of Yancey in collecting these debts from Davis, and to that extent relieving the sureties of this debt, was sufficient to make them liable for a fee for Yancey’s services. We may assume that these two sureties had no thought of such a thing; that, knowing that Yancey represented a number of creditors who had claims against Maxey, and supposing that he also represented the claims of the bank, they expected that he would look to these parties, and not to them, for his fee. Whether this was so or not is immaterial here, for, as before stated, the evidence shows that the bank had not authorized Yancey to collect this debt as their attorney or agent. He did subsequently collect money to the amount of these debts from Davis, and gave him a receipt in full against them, signing thereto the name of his firm as attorneys for all the creditors represented, including the bank. The receipt that these attorneys gave tends to show that they were assuming to act for the bank in making the collection, but they say that the receipt was given in that form to identify the different debts for which the money was paid,.and to satisfy Davis. However that may be, the receipt is no evidence against the bank until it is shown that the attorneys were attorneys for the bank, and this, as before stated, is not shown. A payment by Davis to these attorneys was not, under the facts of this case, a payment to. the bank, and did not affect the debt due the bank.
It is contended with much force that the bank ratified the act of the attorneys by afterwards receiving the money. We are not able to agree with this contention.' No express ratification is claimed, and to amount to an implied ratification the act of the bank must be done with the full knowledge of the facts, and must be inconsistent with any other reasonable hypothesis than that of approval of the acts of the attorneys who assumed to act as its agent. But there is nothing to show that, at the time the bank accepted this payment, it had notice that these attorneys had assumed to act for it, and had given Davis a receipt in full for this debt. The attorneys testified that they did not act for the bank, but for the sureties; and as the bank had not authorized them to collect the note, the mere payment by them to the bank of money collected from Davis did not notify the bank that they had assumed to act as its agents and had made a full settlement-of the debt with Davis.
If the bank was seeking to hold Davis liable for the balance due on the note, it is doubtful if it could retain the money secured by the attorneys from him by executing this receipt ill full, and at the same time reject the settlement. But Davis was not a party to this note, and the bank has never asserted that he was liable for it. This is not an action against Davis, but against the parties to this note, with whom no settlement was made, and who have paid nothing on the note. If, after discovering that a receipt in full had been executed by these attorneys to Davis for this debt, the bank had refused to retain the money and returned it to him, this might have resulted in injury to the sureties, and in the end the bank might have been compelled to shoulder the loss, if any had resulted from the return of the money. Davis was not asking for a return of the money; and as a return of it to him might result in injury to the sureties or the bank, the only safe course for the bank to pursue was to hold the money. Under these circumstances, the failure of the bank to return the money is not inconsistent with a denial on its part of the right of these attorneys to collect the money for the bank, or their right to give a receipt in full against the note. As the bank could not return the money without risk of injury to itself or the sureties, its retention thereof was not in law a ratification of the act of the attorneys. Martin v. Hickman, 64 Ark. 217; Brown v. Wright, 58 Ark. 20; Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96; Thatcher v. Pray, 113 Mass. 291; 1 Clark & Skyles, Agency, page 327.
It follows from what we have said that instruction No. 1, and other instructions given at the request of the defendants, in which the court told the jury in substance that if the bank retained the money paid to it by Yancey, Reeder & Casey after notice that these attornejrs had.assumed to act for the bank in the settlement made with Davis it would be a ratification of the acts of the attorneys in making the settlement, were, in our opinion, erroneous and misleading. For, while this instruction, abstractly considered, may be correct in stating that a principal cannot ratify a part of the transaction and reject another part, yet, under the facts here, it is misleading. As the act of the bank in receiving this money from the attorneys who had collected it from Davis did not mislead or injure the defendants in any way, but, on the contrary, was a direct advantage to them, to the extent of such payment, we see no grounds of estoppel.
On the whole case, we are of the opinion that the facts in evidence made out a clear case in favor of the bank, except as to $34.80, the amount paid by the bank to the attorneys out of the $384 collected through the bankruptcy proceedings. The evidence shows that these attorneys were requested to look after this matter in the bankrupt court by the cashier of the bank. He did it at the suggestion of Maxey to protect the sureties on Maxey’s note. The collection of the $384 in this way resulted in a benefit to the sureties, to that extent; but, as they did not authorize this step 'to be taken for them, they cannot be charged with the expense of the collection. The bank authorized it, and a payment of that amount to the attorneys was a payment to the bank. But, as we have said, the collection from Davis was not authorized by the bank, and it is responsible only for the part of that collection that came to its hands. • For the reasons stated, the case is reversed, and the cause remanded for a new trial. | [
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Battle, J.
On the 25th day of June, 1900, M. D. Shelby and C. C. Burrow entered into a written contract in the words and figures following:
“Morrilton, Ark., June 25, 1900.
“This contract, entered into this 25th day of June, by and between M. D. Shelby and C. C. Burrow & Co., of Eittle Rock, witnesseth: ’ "
“That C. C. Burrow & ,Co. have this day bought of M. D. Shelby one hundred round bales at seven and forty-hundredths (7.40) cents per pound, to be delivered at Morrilton on or before the 15th day of December 1900. Cotton to be gathered in good condition off of the farm of M. D. Shelby in bottom.
“M. D. Si-ielby,
“C. C. Burrow & Co., (Heagan).”
J. M. Heagan, by the express authority of Burrow, made this contract in his name. In this way the cotton was purchased for the Moose Gin Company. At the time the contract was entered into, no principal was disclosed to Shelby by Burrow, or Heagan acting for him. Shelby thought and believed he was selling, and intended to sell, the cotton to Burrow for his use and benefit. He would not have sold to Moose Gin Company, because he believed it was insolvent. Shelby failed to deliver the cotton, and refused to perform the contract. Burrow brought this action to recover damages sustained by the nonperformance. The question is, can he maintain the action? Shelby insists that he made no contract with Moose Gin Company, or for its benefit, and, Burrow having purchased the cotton for it, the sale is void.
In this case Burrow was the agent of Moose Gin Company, and Heagan acted as his agent, with the express consent of his principal. Heagan was the subagent of Burrow. The cotton was purchased by Burrow in his own name, without disclosing his principal. Shelby believed that he was purchasing for his own benefit. This did not render the contract invalid. An agent can make a valid contract with a third person in his own name, without disclosing his principal. Such contract is binding upon the agent in his individual capacity, and either party to it can enforce it against the other, independently of the undisclosed principal. “In such case the agent is, in contemplation of the .law, the real contracting party, to whom the promises of the other were made, and who is entitled to enforce them.” He can sue upon the contract, and can, unless the principal intervenes, “recover the full measure of damages for' its breach, in the same manner ás though the action had been brought by the principal.” Mechem on Agency, § § 755, .763; Clark & Skyles on Law of Agency, pages .1331, 1341.
The fact that the contract was made by a subagent does not alter the case. The subagent acted for the agent with the consent of the principal, and his acts as such were valid and binding.
The statutes in. this State make no change in the law allowing an agent to sue on a contract made in his own name. 1 Kirby’s Digest, § 6002; 2 Clark & Skyles on the Law of Agency, | § 615; Considerant v. Brisbane, 22 N. Y. 389.
This case is unlike Boston Ice Co. v. Potter, 123 Mass. 28, cited by appellant. In that case Potter had had a contract with] plaintiff Ice Company, and had terminated it, and made another! with the Citizens Ice Company. The Citizens Ice Company! sold out its business to the plaintiff company, which continued! to supply ice to' the defendant without informing him of the change. On an action on account for ice actually delivered and used, the court held that no recovery could be had, saying:
“A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into.”
In that case the defendant made no contract with the plaintiff as principal or agent. In this case he selected and determined with whom he would contract, and made a contract which is binding on both parties, and can be enforced by either party against the other. Hamet v. Letcher, 37 Ohio St. 356, another case cited by appellant, is unlike this. In that case one Rohner represented to Hamet that he was the agent of Letcher & Company, a firm who were buying hogs, and as such agent bought a lot of hogs from Hamet, paying him part of the purchase price. Hamet delivered the hogs to him, and he sold them to Letcher & Company, as his own, they paying him full value for them. Letcher & Company were ignorant of the fraud by which they were obtained. Hamet sued Letcher & Company for their value, and recovered. In that case there was no sale of the hogs. They were not sold to Rohner, nor to Letcher & Company, because Rohner was not their agent; and they were still the property of the plaintiff.
We hold that the contract of Burrow and Shelby is valid,' and that Burrow can lawfully sue and recover thereon.
Judgment affirmed. | [
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McCueeoch, J.,
(after stating the facts.) 1. During a former trial of appellant for the offense, and after the jury had been impaneled and sworn and the testimony introduced, appellant and the prosecuting witness, Fannie Bruton, procured a license, and were duly married in open court, and the court thereupon suspended the trial, discharged the jury, and continued the case. In the last trial, in which the judgment of conviction was rendered from which he now appeals, he interposed a plea of former acquittal, and introduced in support of the plea the record of the former suspended trial.
Section 2044, Kirby’s Digest, is as follows: “If any man against whom a prosecution has begun, either before a justice of the peace or by indictment by a grand jury, for the crime of seduction, shall marry the female alleged to have been seduced, such prosecution shall not then be terminated, but shall be suspended; provided,- that if at any time thereafter the accused shall willfully, and without such cause as now constitutes a legal cause for divorce, desert and abandon such female, then at. such time such prosecution shall be continued and proceed as though no marriage had taken place between such female and the accused.”
Learned counsel for appellant contend that the above-quoted statute is unconstitutional, in that the suspension provided for serves to deprive the defendant under indictment of a speedy trial; and that, even if the statute is held to be valid, so as to suspend a prosecution at all, it does not apply after jeopardy has attached. They say that to apply it after jeopardy has attached would be to put the defendant in jeopardy twice for the same offense, which is forbidden by the Constitution. It is argued that if the statute is valid, the marriage of the defendant and the female alleged to have been seduced would ipso facto deprive the court of jurisdiction to proceed .further, even though the marriage was without reference to the prosecution, and the defendant was demanding a speedy trial, notwithstanding the marriage. We are not confronted with such a state of facts here. The statute can be held to be void in so far as it denies an accused person a speedy trial where he demands it, notwithstanding the marriage, and yet be held valid and enforcible in a case where no demand for trial is made.
In Stewart v. State, 13 Ark. 720, this court quoted, with approval, the following language of the Supreme Court of Mississippi in the case of Nixon v. State, 2 S. & M. 507: “By a speedy trial is there intended a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays manufactured by the ministers of justice.” And this court in the same case said: “We think the spirit of the law is that, for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on record in the attitude of demanding a trial, or at least of resisting postponements.” The statute in question, providing for a suspension of the prosecution upon the intermarriage of the parties, was designed for the benefit alike of the person accused of the offense and of society; and, as a protection to society against an insincere show of repentance on the part of the accused, it further provides that if he shall thereafter willfully desert the female whom he has, by the marriage, rescued from the disgrace brought upon her by his criminal act, the prosecution may be renewed. He is not bound to marry the female, nor to invoke the benefit of the statute, if he does so before the termination of the prosecution; but if he does so; he cannot thereafter complain because of a suspension of the prosecution on that account when he has never demanded a speedier conclusion of it.
Nor can it be said that the suspension of the trial before, verdict on account of the marriage and subsequent trial anew after the desertion is putting the accused twice in jeopardy of his liberty. If the trial be suspended by the act of the accused himself,'or for his benefit, or at his own request, no jeopardy has attached by reason of that trial. Mr. Bishop, in speaking of this constitutional guaranty, says: “This guaranty of immunity from a second prosecution is, in its nature, a restraint on the courts, not on the party. It would be absurd to promise a man protection from his own act, but reasonable to make the like proniise as to the act of another.” x Bishop, Crim. Law. § 1043.
In Atkins v. State, 16 Ark. 568, Chief Justice English, speaking for. the court, said: “Lord Coke seems to have been of the opinion that a jury charged in a capital case could not be discharged without giving a verdict, even though with the consent of the prisoner and Attorney General. 1 Inst. 22 Jb; 3 Inst, x 10. But the doctrine was fully discussed in the case of the KMochs, Foster, 16, and the law settled to be that where the jury is discharged by the consent and for the benefit of the prisoner, he cannot avail himself of such discharge as ground to be released from further prosecution.”
This court held in Whitmore v. State, 43 Ark. 271, that jeopardy attached from the time that the jury was impaneled and sworn, and that the discharge of a juror without the consent of the accused, except for death or illness of a juror or other overruling necessity, operates as an acquittal; but the court said that, “while there is no right of challenge for cause after the jury is sworn, the court might, upon the demand of the prisoner, have stopped the trial and called another jury, without its having the legal effect of an acquittal.” Citing Stewart v. State, 15 Ohio St. 155. And the court further said that “if the jury is discharged without an obvious necessity, and without the defendant’s consent, express or implied, he cannot be again placed upon trial for the same offense.” The effect of the statute is to provide grounds for suspension of the trial at any time before verdict, and there is no jeopardy unless the suspension be ordered without the consent of the accused, either express or implied. .
The special plea of former acquittal was properly overruled.
2. In the hearing of appellant’s plea of former acquittal, the State was permitted, over his objection, to prove by oral testimony that he had in the former trial consented to the suspension of the trial and discharge of the jury. This is assigned as error. The record of the former trial, which was introduced by appellant in support of his plea, recites that he and the prosecuting witness procured a marriage license, and were married in open court, the presiding judge performing the marriage ceremony, and “whereupon the jury in this case was by the court discharged, and this cause continued until next term.” The record does not show that appellant objected to the srtspension .of the trial, and, the same being for his benefit, his consent will be implied. Hence, the record, standing alone, was insufficient to sustain the appellant’s plea of former jeopardy, and it was unnecessary for the State to prove by parol an express consent. The testimony was, therefore, immaterial and not prejudicial, as it did not tend to impeach or contradict the record.
3. It is contended by counsel that the court erred in its instruction as to the necessity for corroboration of the testimony of the female seduced, and in refusing to give the instruction on that subject asked by appellant. The court instructed the jury on this point as follows: “You are instructed that you cannot convict the defendant upon the uncorroborated testimony of the prosecuting witness, and the corroboration must be upon every material fact testified to by her necessary to constitute the offense charged; and if you find that her testimony is uncorroborated upon any material fact necessary to constitute the offense, you will acquit the defendant.” We find no valid objection to this instruction. It is equivalent to an instruction that there must be corroboration as to the promise of marriage, its falsity, and that the defendant obtained carnal intercourse with the female by virtue of such false promise.
Other rulings- of the court are assigned as error, all of which we have considered, but are not deemed of sufficient importance to discuss in this opinion. None of them are sufficient to warrant a reversal of the case.
The instructions of the court upon the whole correctly and fully declared the law applicable to the case. The evidence was sufficient to sustain the charge made against the defendant in th<s indictment. It shows that he falsely promised to marry the prosecuting witness, Fannie Bruton, and by virtue of that promise seduced her. She bore a child as the result of the illicit intercourse, and afterwards, during his trial for the offense, he married her, but soon afterwards commenced a course of conduct towards her which necessarily rendered the relations between them intolerable to her, and caused her to consent to a separation.
We find no error in the proceedings, and the judgment is affirmed.
Hire, C. J., absent and not participating. | [
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Riddick, J.,
(after stating the facts.) The plaintiff was employed by the defendant for the years 1897, 1898 and 1899 to have supervision of salesmen selling ranges manufactured by defendant. He sued for commissions due him for the years 1897 and 1898, but it appeared that during the year 1899 plaintiff had overdrawn his account, and that, if the account for 1899 be considered, and plaintiff charged with the amounts advanced to him by defendant during that year, it will materially reduce the amount due from defendant to plaintiff. While the services performed by plaintiff for defendant were continuous during the years named, they were performed under separate contracts; but it is clear, we think, that the amounts due by plaintiff to defendant on the account of 1899 Can be used as a setoff against the sums, due from defendant to him on the accounts for the years 1897 and 1898. When the accounts for all these years are considered, it seems quite clear that the judgment in this case is excessive, for, if every item claimed by plaintiff is allowed, when the accounts for 1899 are considered, the judgment is still much too large.
Again, the contract under .which plaintiff performed the services for defendant stipulated that he should not permit any man under his supervision to overdraw the monthly allowance due him for his work; and that in the event of such overdraft the same should be charged to the account of the plaintiff. Now, the evidence showed that the men under the supervision of plaintiff retained from time to time various sums collected by them in excess of the amounts due them for their work, and it became a material question in the case as to whether these sums should, under the contract, be charged to plaintiff, and the loss be borne by him, if the sums were never refunded by such salesmen. On this point, we think the court correctly stated the law in his ■first instruction, in which he said that if those sums were appropriated by the salesmen to their own use without the permission, knowledge or consent of the plaintiff before such sums reached his hands, such retention did not constitute an overdraft within the meaning of the contract. But he refused to give the fifth Instruction asked by defendant, in which the converse of that proposition was stated, to the effect that, if plaintiff did permit salesmen to retain out of the moneys paid them on account of sales more than their monthly allowance, then, under the terms of the contract, he was chargeable with such amounts as overdrafts. The refusal to give this instruction, we think, was error prejudicial to the defendant, because, under the facts of this case, It was a question for the jury to determine whether the plaintiff consented to the retention of such amounts by the salesmen under his supervision. If he did consent to the retention by salesmen of sums in excess of their monthly allowance, he was in effect permitting them to overdraw their accounts, and he became liable for such sums under his contract.
For the reasons stated, the judgment will be reversed, and the cause remanded for a new trial, with leave for either party to amend his pleadings so as to include accounts of 1899. It is so ordered. | [
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Hill, C. J.
This was an action by a landowner and his tenant for the destruction of the tenant’s crop by cattle destroying it, owing to the railroad company failing to rebuild, replace and maintain fences pursuant to a contract between the railroad and the landowner. The contract sued upon was in a deed to a right of way over the land in which this is part: “Said railway company to reconstruct fences when same are on right of way, and to provide necessary road crossings and stock guards.” There is no allegation and no evidence to impeach the above-quoted clause as being the correct written evidence of the contract.
The court gave three instructions, which will be set out by the Reporter, together with the substance of the pleadings. The first instruction is erroneous in that it authorizes a recovery for a tort when the complaint counted alone upon a contract. The second instruction is erroneous in that it states that if the jury find from the evidence that in accepting the deed the railroad company agreed to fence its right of way, and in consequence of its failure the crop was left exposed to the inroads of stock, etc., the company was liable; whereas the deed alone evidenced the contract, and it was to construct fences when the same are on the right of way, which may be a very different matter from fencing the right-of-way.
The third instruction, is, like the first, based on the theory that the action is one of tort for breaking or throwing down the fences. The railroad company had a right, in the construction of the road, to break and throw down the fences, and agreed to recon- ' struct them when they were on the right of way. The plaintiff's action must be, under the complaint and evidence, confined to a breach of the stipulation in the deed, and it cannot be made broader than the parties made it; nor can a tort arise from the railroad breaking the fences, for this contract clearly contemplates such to be done, and required their reconstruction. For a failure to comply with its terms the company is liable, and to its terms the action must be limited.
Reversed and remanded for new trial. | [
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Battik, J.
Yell County was entitled to the condemnation of a portion of the lands of Brooks, Neely & Company for a certain public highway over the same. The land was condemned for that purpose, and the damages caused thereby were assessed, and a county warrant was issued to them therefor, and was received and collected by them. They cannot now contest the right of the county to the land so condemned. The warrant was issued in payment of such damages, and they were not entitled to hold it to satisfy damages that might thereafter be assessed in another proceeding to condemn other lands of theirs for the same highway. Having received and collected it, they accepted it for the purpose for which it was issued, and are estopped from claiming the land appropriated for the highway; and cannot, without the consent of the county, restore their rights by the return of the money received on the warrant.
Judgment affirmed. | [
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McCurroch, J.
The testimony was conflicting on the issue as to the alleged fraud on the part of Ward in writing the application for a policy of $10,000 and the note for the premium on that amount, instead of $2,000; but the jury found, upon instructions to which there was no objection, in favor of appellee, and we must treat that issue as settled. The testimony is sufficient to have sustained a verdict either way on that issue.
Appellant asked an instruction, which the court refused, telling the jury that “if the defendant requested the. witness Ward to sign his name to note sued on, he became the agent of defendant in signing the note; and if he did* not follow defendant’s instructions, then the plaintiff, if he took the note before maturity and for a valuable consideration, is not responsible for the act of the agent.” The refusal of the court to give the instruction is now urged as grounds for reversal. The proof did not warrant the giving of this instruction. Ward was acting under authority from and control of appellant. It is shown that the company does not accept notes for premiums, but that the taking of notes by a special agent is done for the general agent, and that in so-doing he acts for his superior, the general agent.
Ward testified on that point as follows:
.“Q; Does Mr. Remmel take up all those notes taken by special agents?
“A. Yes, sir; we are not allowed to handle any paper whatever.
“Q. Then, while this note is taken in your name, it is really for Mr. Remmel?
“A. Yes, sir, and indorsed right over to him.
“Q. You did that because you were authorized by him to do so and turn it in to the general agent?
“A. Yes, sir.”
This shows that Ward in taking the .note was the agent of appellant, who is responsible for his acts in regard thereto. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Insurance Company v. Brodie, 52 Ark. 11.
We do not mean to say that a person may not act as the agent of both parties to a transaction for some purposes, where there is no conflict of interest; but that rulé cannot be applied to the facts here, where Ward was the agent of appellant in taking the note.
We find no error, and the judgment is affirmed. | [
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Battue, J.
On the 29th day of January, 1903, Lee Morris commenced an action aginst the St. Louis & Southwestern Railway Company to recover the damages he had suffered by reason of a ditch made by the defendant. He alleged in his complaint that the defendant had made, and was at that time maintaining, and had maintained, a ditch by means of which it collected in one channel a large amount of water, diverted it from its natural drainage, and discharged it in a mass upon certain lands of the plaintiff, which otherwise would have flowed in other-directions; that his crops on these lands in the years 1900, 1901 and 1902 were materially injured by the increased flow of water caused by the ditch.
The defendant answered, and denied these allegations, and pleaded the statute of limitations of three years in bar of the action.
The issues in the case were tried by a jury. Evidence was adduced in the trial tending to prove the following facts: Prior to the year 1900, and more than three years before the commencement of this action, the defendant constructed a ditch, about one mile and a quarter or a mile and a half in length, along the east side of its railway, in Lonoke County. The lower end of it was near the land of plaintiff, and was obstructed by a ridge. Lateral ditches leading into and connected with it were dug by other parties without the knowledge or consent of the defendant. hese ditches collected a large amount of surface water, diverted 't from its natural drainage, and precipitated it upon the land of he plaintiff, and damaged his cotton crops growing thereon, his occurred in the years 1900 and 1901 and 1902. In each of hese years thirty five or forty acres of plaintiff’s land were over flowed. This land was planted in cotton, which was injured by the water thrown on it about one half. Other lands adjoining, and of the same quality, produced in the same years three-fourths of a bale for each acre. In this time the average price of cotton in the seed, was two and a half cents a pound, and from 1800 to 2000 pounds of seed cotton made a bale. The cost of the production and gathering is not shown by the evidence.
During the progress of the trial witnesses who were not shown to be experts were allowed to testify, over the objections of the defendant, that plaintiff’s land could have been drained and the overflow of it prevented by extending the ditch, made by the defendant, through a certain ridge.
The court instructed the jury, over defendant’s objections, as follows: “You are instructed that if you find from the evi-
dence that the plaintiff sustained any damage to his crops by reason of water being thrown on said land from a ditch constructed by the defendant railroad company, not into a channel, or live stream sufficient to carry off same, then the measure of his damages would be the difference between what the land would have otherwise produced and what it did actually produce.” And refused to instruct them, at the request of the defendant, as follows:
“If the land of plaintiff has sustained damage by reason of a ditch dug by defendant, his cause of action accrued when the ditch was dug; and if it appears from the evidence that the ditches were dug more than three years before the filing of this suit, the' jury will find for the defendant as to any damage to the land of plaintiff.
“The jury are instructed that, although they may find from the evidence that the defendant, in the construction of its road, .excavated a ditch on its own right of way along the east side of its track, through which water at certain seasons of the year is discharged and carried upon the lands of the plaintiff, the defendant is not liable for damages on account of any water that may be brought into such ditch and discharged upon the land of plaintiff by artificial ditches extending into said railroad ditch and made without consent of defendant.
“The defendant is only liable to the plaintiff for such damages as may ensue from its own acts or the acts of its agents, and if the jury should further believe that the water from the adjoinin lands have been conducted into such railroad ditch by artificial ditches made without the consent of the defendant, thereby increasing the flow of water through said ditch upon plaintiff’s land, the defendant is not liable to the plaintiff for damages caused by water artificially brought into its ditch from adjoining lands without its consent, and the burden of showing that the railroad consented to such ditches being put into its right of way, and ditches hereon, rests upon plaintiff; and without evidence on that issue you will find for defendant.”
The plaintiff recovered a verdict and judgment for $430, and the defendant appealed.
It is first insisted by appellant that this action is barred by the statute of limitations, because it was not brought within three years after the ditch was completed. Does it come within the rule which provides that actions for injuries caused by nuisances of permanent character shall be brought within three years after the construction of the nuisance? In St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, the rule is stated as follows: “Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction óf the nuisance. * * * But when such structure is permanent in its character, and'its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries' as there are successive injuries- In such case the statute of limitations begins to run from the happening of the injury complained of.”
St. Louis, I. M. & S. Ry. Co. v. Biggs, supra, was an action to recover damages sustained in 1885 on account of the destruction of plaintiff’s levees, fences, and crops by an overflow alleged to have resulted from .the negligent construction arid maintenance of a railway embankment through the Red River bottom in 1873, without sufficient openings to permit the passage of water. The defendant pleaded the statute of limitation of three years in bar of the action. The railroad embankment was constructed in 1873. The Red River “bottoms,” including .the plaintiff’s land, which was situated therein, was overflowed in 1876 and 1885. By reason of insufficient openings in the railway embankment, the water in cases of unusual overflow was impeded, and rose higher, and -remained longer upon plaintiff’s land than it had formerly done. In 1885 plaintiff’s crops were destroyed, and her levee broken by water dammed by the embankment upon her land. This court held that that case could be brought within three years after the happening of the injury. That case, to some extent, explained the rule as laid down by the court.
Railway Company v. Yarborough, 56 Ark. 612, was an action similar to St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, and was against the same defendant. Floods came, and, because the openings in the railway embankment were not sufficient to permit their passage, overflowed the plaintiff’s land, and destroyed his crops. This court said: “The damage which the plaintiff sued to recover was not original in the sense that it necessarily resulted from'the erection of the railway embankment. But after that structure was completed the injury complained of was still entirely uncertain and contingent, and such as might never happen. In this respect the case is similar to that of the St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240; and, according to the rule there laid down, the statute of limitation did not begin to run until the crops were destroyed.”
Railway Co. v. Cook, 57 Ark. 387, was an action for injuries to land “alleged to have resulted from the negligent manner in. which the defendant changed the structure of its roadbed. It was alleged that the defendant originally constructed its road with sufficient openings, but that in the fall of 1889 it made a change, substituting a solid embankment for a trestle, and thereby encroached upon the channel of Cache River and adjacent sloughs, so as to obstruct the flow of water through them, and cause it to flow back on plaintiff’s land; that during the following winter his land was by this means overflowed, and the planting of a crop that year prevented; and that the market value of the land was destroyed by reason of the liability to overflow.” According to the contention of the plaintiff in that case all the damage sustained by the plaintiff was the result of an original wrong, was original, and was recoverable in one action. But this court did not sustain that contention. The court said: “The aim of the law is to compensate the actual loss caused by the injury, and the damage should be so measured as to accomplish this end. * * * To determine what the loss is, it is necessary to first ascertain the scope of the injury, for nothing can be accounted in the loss that does not arise from the injury. If all damages that may ever result from the nuisance are in law the result of its construction as an original wrong, then everything that is a damage, in legal comtemplation, whether for past or prospective losses, is recoverable in one action; but if the wrong be continuing, and the injuries successive, the damage done by each successive injury may be recovered in successive suits, and the injury to be compensated in the original suit is only the damage that has happened.”
After saying that “the rule for determining whether a wrong results from an original or continuing wrong was formulated” in St. Louis, I. M. & S. Ry. Co. v. Biggs, supra, and stating the rule as there laid down, it further said: “Upon the facts of that case * * * it was held to come within the latter class, and a recovery was allowed for damage caused by overflowing a crop when it would have been barred by limitation if it had been occasioned by the original wrong. Upon the authority of that case, we hold that successive injuries from the wrong complained of in this would not be attributable to the original, but to a continuing, wrong, and that the damage recoverable would be only what had happened when the action was brought.” According to the doctrine in the Cook case the statute of limitation commenced running when the damage in that case was done.
In St. Louis, I. M. & S. Ry. Co. v. Stephens, 72 Ark. 127, the court followed the rule as laid down and construed, in St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, and Railway Co. v. Yarborough, 56 Ark. 612; the facts in the cases being similar.
Wood-on Limitations (3 Ed., § 180), says: “But while this is the rule as to nuisances of a transient rather than of a permanent character, yet, when the original nuisance is of a permanent character, so that the damage inflicted thereby is of a permanent character, and goes to the destruction of the estate thereby, or will be likely to continue for an indefinite period, and during its existence deprive the landowner of any beneñeial use of that portion of his estate, a recovery not only may but must be had for the entire damage in one action, as the damage is deemed to be original; and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the statute of limitations begins to run from the time of its erection against the owner of the estate or estates affected thereby.”
According to the cases and authority cited, in cases where the nuisance is not necessarily injurious, but may or may not be so, and if it proves to be injurious, the injury continues for a while, inflicts damage, and then entirely ceases, the statute of limitations begins to run from the time the damage is done, and not before; and there may be as many successive recoveries as there are successive injuries, and the statute of limitation runs from the time each of such injuries occurs. Under a different rule the injured owner might not be able to obtain adequate compensation.
In the case before us the ditch was of uncertain duration. It was obstructed at the lower end by a ridge, and, unless kept open by human labor, would fill up by the soil, leaves of trees, vegetation growing therein, and other things washed and deposited therein by rains and other causes. Like the embank•ments of 'railroads, with insufficient openings, in the valley of ■ a river, the injurious effects it may produce depénded upon the ■ seasons, the rains, and the floods, and when they ceased it ceased to inflict injury. So the statute of limitation runs against actions for damages caused thereby from the time the injury was done, and not' from the' time when the ditch was completed.
It appears that only a part of the surface water which caused the damage complained of came from the land drained by the appellant’s ditch, but that other water was conveyed into the ditch by lateral ditches dug by other parties, and that they contributed to appellee’s injury. Witnesses testify that the appellant in no way aided- in the construction of the lateral ditches, or had anything to do with them. It does not appear that they were connected with the appellant’s ditch with its knowledge or consent. Appellant insists.that it was done without its knowledge or authority, and that the evidence so shows. If this be true, the appellant, if liable at all, would be liable for its proportion of the damages caused by the overflow produced by the ditches. Sloggy v. Dilworth, 38 Minn. 179, s. c. 8 American State Reports, 656; Sellick v. Hall, 47 Conn. 269, 273.
The court instructed the jury that, if they found from the evidence that plaintiff sustained any damage to his crops by reason of water thrown on his land from a ditch constructed by appellant, “the measure of his damages would be the difference between what the land would have otherwise produced and what it did actually produce.” This instruction is defective in failing to instruct the jury to allow or deduct the difference between the cost of production and gathering and baling of a full crop of cotton and the crop actually produced. The cost of gathering and baling was certainly less, and the cost of production might have been less, but that does not appear. It also failed to instruct the jury to make any reduction on account of the increased overflow caused by the lateral ditches, although they found that they were connected with the railroad ditch without the knowledge, consent or sanction of the appellant, and notwithstanding the appellant asked for an instruction upon that point. The court erred in giving the instructions as it did.
The opinion of the witnesses, who were not experts, as to how appellee’s land could have been drained and the overflow of it prevented was inadmissible. They should have stated what was necessary to show that fact, if they knew, and left the jury to judge for themselves, unless it could not have been sufficiently shown without the opinion. “For if it was practicable for them to detail to the jury the facts within their knowledge as fully and perfectly as they had observed them, then the jury should have been left free to draw their own conclusions, and their •opinions were inadmissible.” Railway Co. v. Yarborough, 56 Ark. 612, 617.
For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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Battue, J.
Appellee, St. Louis, Iron Mountain & Southern Railway Company, moves the court to dismiss the appeal herein because it was not taken within the time prescribed by law.
The judgment appealed from was rendered on the 15th day of April, 1902. The appeal in this case was taken on the 6th day of June, 1903, more than one year after the rendition of the judgment. The plaintiff, against whom the judgment sought to be reviewed was rendered, died on the 17th day of October, 1902. This did not extend the time of appeal for revivor beyond the year. The statute absolutely provides: “An appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant or of unsound mind at the time of its rendition, in which cases, an appeal or writ of 'error may be granted to such parties or their legal representative within six months after the removal of their disabilities or death.” Kirby’s Dig. § 1199. The appeal must be taken within one year, unless the party applying therefor was an infant or of unsound mind at the time of the rendition of the judgment, order or decree. Only two exceptions are made, and the applicant for the appeal in this case does not come within either of them. No authority is given the court to extend the time.
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Battle J.
A. Haas & Son, on April 13, 1903, commenced an action against the Louisiana & Arkansas Railway .Company to recover the sum of one hundred and thirty dollars, alleging that their .traveling salesman, J. E. Whitesides, delivered to the defendant at Alberta, La., a certain telescope or ‘grip,’ containing trousers of the value of $130, to be transported to Sibley, La., and delivered to the plaintiffs; and that the defendant had failed to carry and deliver the same as it agreed to do, and that it was wholly lost to the plaintiffs.
The defendant answered, and denied that-the telescope or ‘grip’ had been delivered to it for transportation, or that it had ever received the same.
The facts in the case are, substantially, as follows: On the 23d of June, 1902, J. E. Whitesides, who was at that time in the employment of A. Haas & Son in the capacity of traveling salesman, went in defendant’s train from Minden to Alberta, La., taking with him his samples in two trunks and a telescope, which were checked to Alberta and put off there. Whitesides, finding that no sales could be made by him at Alberta, did not open his samples there, but, after seeing them put off, allowed them to lie by the track until the next train going to Sibley arrived. When this train arrived, he had his baggage, or a part thereof, put on it by one of the train crew and another person. Whitesides did not check his baggage, because he did not have time to do so. Afterwards in going through the baggage car he found that his telescope or “grip” had not been put on the train. At the first telegraph station he sent a telegram to O; W. Todd, who at this time was manager of the Bienville Lumber Company’s store, at Alberta, La., and defendant’s agent at the same place. White-sides and Todd differ as to the contents of the telegram. White-sides testified that he instructed Todd to send telescope on the train, and Todd, that he thought he instructed him to give the telescope to the porter on the train. On the receipt of the telegram Todd found the telescope on the outside of the store door, one hundred feet from the railway track. He put it on the inside of the store, where baggage for the railroad is kept. After-wards he delivered it to the porter on the train, to be delivered to Whitesides at Sibley. . Plaintiff never received the telescope.
The court instructed the jury over the objections of the plaintiff in part as follows:
“No. 2. If the jury believe from a preponderance of the testimony in this case that the goods in question were left on the platform or store gallery of the Bienville Lumber Company, at Alberta, La., and that O. W. Todd, upon receipt of the telegram from plaintiff’s agent, delivered said goods to the porter on the carrier’s train as a friendly act for the accommodation of the said plaintiff’s agent, the jury must find that said Todd in so doing was acting as the agent for the plaintiffs, and that such act would not render defendant company liable for the loss of the goods.”
The jury returned a verdict in favor of the defendant, and the plaintiff appealed.
The court erred in giving the instructions as stated. Todd had no authority to deliver the telescope of the plaintiff to the porter on defendant’s train, unless he was authorized to do so by the plaintiff or defendant. Plaintiff’s agent, who sent the telegram, says he did not give him such authority, and there is no evidence that the defendant did so. Todd was the agent of the defendant at Alberta. He took charge of the telescope for shipment. It then became the duty of the defendant, in the absence of special instructions of plaintiff relieving it of this duty, to carry it to its destination in a reasonable time. Failing to deliver the property, it became liable to the plaintiff for the value of it.
Reversed and remanded for a new trial. | [
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BatteE, J.
Henry Carter sued Grayson-McLeod Lumber Company for damages arising from personal injuries. He alleged, in his complaint, substantially as follows: “That defendant owns and operates a line of railway in connection with its sawmill at Gurdon. That plaintiff is a common laborer, and was in 1892 in defendant’s employ, engaged in removing a railway trestle; that he was ordered to go upon a trestle by defendant’s superintendent, who assured him that it was safe; that in obedience to said order, being unaware of the danger, he went upon the trestle, and wdiile there at work it fell, and he was thrown to the ground, his hip broken, body and head seriously injured, from which he suffered great physical pain and mental distress, continuing for months, and was permanently injured, and made a cripple for life. He charges defendant with negligence, (1) in requiring him to go upon said trestle while it was being torn down, knowing that it was liable to fall, and that it was dangerous to be on it at the time, place and under the circumstances; (2) in being unmindful of his safety in having the stringers of said trestle pulled down while he was upon it; and (3) in failing to use such care in the removal of the trestle as would subject the laborers thereon to the least possible danger. That before said injury he was a stout, active, healthy man, but since he is permanently disabled and incapable of earning a living. He prayed judgment for $5,000 damages.”
Defendant in its answer specifically denied each and every act of negligence as charged in the complaint, and alleged that plaintiff was engaged in an extra hazardous line of duty, that of dismantling the bridges on its logging road; that whatever dánger attended that work was as apparent to plaintiff as it was to defendant; and that, if there was any special danger, the defendant was not aware of it prior to the collapse and fall of the bridge. It alleged that plaintiff’s injury grew out of the risks assumed by him, and which were incident to the dangerous character of the work in which he was engaged; that plaintiff was guilty of contributory negligence in exposing himself upon an apparently dangerous bridge.
The evidence adduced in the trial of this action tended to prove the following facts: At the time plaintiff was injured, as alleged in his complaint, he had been working upon defendant’s “logging road” for some time. He was working with a crew, taking up the track of the road, wrecking or dismantling a trestle or bridge, taking from it the rails, bolts and spikes, and such ties and stringers as were good and might be serviceable elsewhere. The bridge was 640 feet in length, 23 feet high, and contained 40 “bents,” each being 16 feet long. In obedience to the directions of defendant’s superintendent, plaintiff and others were upon the bridge, pulling spikes that had been overlooked. While he was. so employed, oxen were hitched to the “far end of the trestle” (from where he was at work) pulling off some stringers. The whole-bridge fell, and plaintiff was injured.'
Among other instructions, the court gave the following to the jury, over the objections of the defendant:
“1. The law requires the - master to provide a safe place for the servant to do the work required of him; and, if it is a work of extra hazard, to warn him of the danger, and to direct the performance of the work in such a way and with such care as will not subject the servant to a risk that a reasonably prudent man would not knowingly assume. So, if you believe from the evidence that the defendant failed in any particular to discharge this duty to the plaintiff, you must find for the plaintiff, unless the proof shows that, after being aware of the danger or by the exercise of ordinary care he might have known of it, the plaintiff failed to use reasonable care for his own safety.
“2. The plaintiff was not required to inspect the trestle to see if it was safe to go upon it; he was only required to use ordinary care. The law made it the duty of the defendant to see that it was safe; and the plaintiff had a right to rely upon the care, superior knowledge and judgment of his employer, and to act upon the assumption that the defendant would not expose him to unnecessary risk, and that it had [taken] and would take all proper precaution to guard him against danger.
“3. Although you may believe from the evidence that the plaintiff knew, or by the exercise of ordinary care might have known, the condition of the trestle in every particular, and the effort that was being made to pull it down, tliis alone will not preclude a recovery.’ Before the plaintiff can be charged with having assumed the risk, it must be proved that he not only knew these facts, but that he fully appreciated the danger. So, if you believe from the evidence that a person of plaintiff’s experience and intelligence, under all of the circumstances, might reasonably have supposed that he could safely perform the work he was ordered to perform by the use of proper caution, he is not guilty of contributory negligence, unless the proof shows that he failed to use proper care for his own safety, after being aware of the danger, and you should find for the plaintiff.”
Other instructions were given. The jury returned a verdict against the defendant for $1,500. It appealed.
The instructions copied above are inapplicable to this case. In this case the appellee was engaged in tearing down a bridge, and in continually changing his place of work, and sometimes in making it more insecure. There was no-duty to furnish him a safe place in which to work, since his employment made it his duty to tear down and to change and destroy his places for work, and to make them safe or unsafe as his work rendered them; and was such as to place it out of the power of his employer to perform such duty. He assumed, the hazards of this employment. Gulf, C. & S. F. Ry. Co. v. Jackson, 65 Fed. Rep. 48; Finalyson v. Utica Mining & Milling Co., 67 Fed. Rep. 507, 510.
It is true that the court, at the instance of appellant, instructed the jury as follows: “The doctrine that the master or employer must furnish its servant or employee with a safe place in which to work does not apply to a case where the servant or employee is engaged, with knowledge of the dangers, to do work obviously and inherently hazardous, such as wrecking or repairing structures. In such cases the servant or employee takes upon himself the extra hazardous risk of the employment; and if he is injured, he cannot recover, unless the master or employer is guilty of some act of negligence, or, with knowledge of some special danger unknown to the servant, sends him into the dangerous position.”
This did not explain the instructions given over the objections of the appellant, but is in irreconcilable conflict with them.
In the third instruction given over the objection of the defendant the court told the jury: “Although you may believe from the evidence that the plaintiff knew, or by the exercise of ordinary care might have known, the condition of the trestle in every particular, and the effort that was being made to pull it down, this alone will not preclude a recovery. Before the plaintiff can be charged with having assumed the risk, it must be proved that he not only knew .these facts, but that he fully appreciated the danger.” This is not correct. The burden was not upon the defendant to prove that the plaintiff fully appreciated the danger. There was no evidence that it knew, or ought to have known, that he did not appreciate the danger to which he was exposed, and there was no duty to instruct; and, of course, there was no liability for his failure to appreciate a danger, when there was no duty to instruct. See Southwestern Telephone Co. v. Woughter, 56 Ark. 210, 211; Railway Company v. Torrey, 58 Ark. 228; Ford v. Bodcaw Lumber Co., 73 Ark. 49.
The instructions given over the objections of the appellant were calculated to mislead the jury, and were prejudicial.
Reverse and remand for a new trial. | [
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Wood, J.
Appellant filed suit against appellee to quiet his title, to the land in controversy and cancel certain deeds alleged to be clouds thereon. The answer denies appellant’s title, and sets up title in appellee from two separate and distinct sources; pleads the two years statute of limitations, and laches and stale claim.
Appellant alleged title from the State of Arkansas by swamp land patent to Robert B. Southard, one of his alleged grantors. To prove the patent, he offered in evidence an exemplification from the records- of the State Land Commissioner. No showing was made as to loss of the original patent, and exception was taken to the introduction of this testimony.
From what we have said to-day in the companion case of Carpenter v. Dressler, ante, p. 400, submitted with this, following the decision of this court in Steward v. Scott, 57 Ark. 158; and Driver v. Evans, 47 Ark. 300, the appellant did not show title in himself through mesne conveyances from the Government. After- exceptions were filed to the exemplification of the records of the State Land Commissioner to prove patent in Southard, the first grantor, appellant made no offer to produce the patent or show its loss, and did not ask for a postponement to be allowed to do so, evidently relying upon such exemplification as competent and proper evidence. This was not the primary, and therefore best, evidence, and could not, according to the rule announced, be substituted for it without first showing the loss, or accounting for the absence of the best evidence. Appellant' therefore fails to prove title in himself. This was necessary before he could remove cloud. He must first show that he has title to quiet. St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383. This "alone is sufficient to affirm the decree of the lower court. But we are also of the opinion that the plea of the two years statute under tax deed is sustained by the proof. It appears that on the 13th day of June, 1892, the land in controversy was sold at tax sale for the nonpayment of the taxes of 1891, and the clerk of the county court of Arkansas County issued on this sale (the land not having been redeemed) to appellee’s grantor, William Chesshire, a clerk’s tax deed therefor, dated July 11, 1894. On the 25th day of March, 1895, Chesshire conveyed the land ,in question to appellee, John Y. Smith. In March, 1897, appellee inclosed the entire tract of land with a substantial fence, and has held open and adverse possession thereof ever since. This suit was filed in the clerk’s office of Arkansas County June 7, 1900, and therefore appellee had held open, continuous, adverse possession of said land for more than three years prior thereto.
It is unnecessary to set out in detail the testimony upon which our conclusion is reached. The testimony shows that as early as February, 1897, appellee’s grantor, Chesshire, fenced from three to six acres for the purpose of penning cattle, and that late in the spring of that year the entire tract was fenced with a threé-wire fence. The wire was galvanized, and the posts set 16 feet apart. The fence was shown to be the best in that neighborhood. The land was fenced for the purpose of preserving it for hay cutting, and it was used for that purpose some in 1898 and 1899, and in 1900 was leased. It was shown that the fence was broken down in. places, but this was repaired, and there is no evidence to warrant the conclusion that possession of the land was ever abandoned after it was taken in the manner indicated. On the contrary, the preponderance of the evidence clearly shows that the land was looked after, and the possession maintained, open, continuous and adverse till the bringing of this suit. Two years of such possession under his tax deed was sufficient to give appellee title. Section 5061, Kirby’s Digest; Helena v. Hornor, 58 Ark. 151; Cooper v. Lee, 59 Ark. 460; Woolfork v. Buckner, 67 Ark. 411; Crill v. Hudson, 71 Ark. 390; Boynton v. Ashabranner, 75 Ark. 514.
But it is contended that an agreement between appellant and appellee at the trial that the taxes had been paid since 1875 by Hopkins, the original grantor, and his grantees, precludes the appellee from setting up the two years statute. The agreement was tantamount to saying that the taxes had been paid by appellee or his grantors, and hence there should have been no forfeiture and sale of the land for taxes, and that the tax title was therefore void. But we fail to see how this could have prevented appellee or his grantors from acquiring such title for the purpose of quieting and strengthening such title as they had or claimed. Nor do we understand how appellee could be estopped from setting up adverse possession, if he chose, under this void tax title. If he or his grantors paid the taxes, then surely it was no fault of his that the lands were improperly forfeited and sold for taxes, and he had the perfect right to acquire such outstanding void title, and to claim all the benefits that could be obtained under it. The agreement negatives the idea that appellee’s grantors permitted the land to forfeit in order to acquire title thereby. That the tax title was void makes no difference. See Gates v. Kelsey, 57 Ark. 523, and Finley v. Hogan, supra.
It is unnecessary to consider the question of laches.
The decree is affirmed. | [
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McCulloch, J.,
(after stating the facts.) 1. The court erred in instructing the jury that if plaintiff “removed his property or any part of it from the building before the fire, except in the usual course of selling goods, this would be a fraud on defendant,” and would discharge the defendant from liability under the policy. This is not the law. There is no stipulation in the policy preventing the insured from reducing the amount of his stock of goods in any manner that he saw fit. The only stipulation in this regard found in the policy is that the company “shall not be liable beyond three-fourths of the actual cash value of personal property at the time any loss or damage occurs.”
2. The court also- instructed the jury that if “the loss occurred either through the negligence of the plaintiff or was'the' result of his own wrong,” the defendant would not be liable. This was erroneous. The policy contains no stipulation exempting the company from liability where the loss occurred through the negligence of the insured, nor does the law create or imply such an exemption. There is a provision in the policy that the •company should not be liable for loss caused “by neglect of the insured to use all reasonable means to save and preserve the property at or after a fire, or when the property is endangered by fire in neighboring premises.” This part of the contract only requires the insured to exercise care in saving and preserving the property at or after the fire, and prevents a recovery for loss of so much of the property as could have been saved by the insured with the exercise ol due care and the use of reasonable means. German-American Ins. Co. v. Brown, 75 Ark. 251.
The law is well settled that the insurer is liable, even though the negligent act of the insured or his servants be the proximate cause of the damage through the fire. Kerr on Insurance, p. 358; 2 May on'Insurance, § 408; Ostrander on Insurance, § 192; Johnson v. Berkshire Mut. Ins. Co., 4 Allen (Mass.), 388; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35; Phenix Ins. Co. v. Sullivan, 39 Kan. 449; Columbia Ins. Co. v. Lawrence, 10 Pet. 507; Mickey v. Burlington Insurance Co., 35 Iowa, 174.
The law on this subject is stated by a learned text writer as follows: “Mere carelessness and negligence, however great in degree, of the insured, or his tenants or servants, not amounting to fraud, though the direct cause of the fire, are covered by the policy. Indeed, one of the principal objects of insurance against fire is to guard against the negligence of servants and others;, and, therefore, while it may be said generally that no one can recover compensation for an injury which is the result of his own negligence or want of care, the contract of insurance is excepted out of the general rule. Nor does it make any difference whether the negligence is that of the insured himself or of others.” 2 May on Insurance, § 408.
The instruction complained of was highly prejudicial h> appellant, as the jury may have found, from the testimony tending to show that the door of the store was found open, coal oil spilled on the floor and a hole in the oil can, that there was negligence on the part of appellant or his agents.
3. Appellant complains at the giving of several instructions, on motion of appellee, and of one given on the court’s own motion, after the jury had deliberated for a time and returned into' court without a verdict, concerning the duty of appellant to keep his books of account in an iron safe or to preserve them in some other safe place. There is no condition or agreement in the policy, nor elsewhere, imposing such duty, so far as the record shows; therefore the instructions on this subject were abstract.
Reversed and remanded for a new trial. | [
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McCulloch, J.,
(after stating the facts.) The question to-be first considered is whether or not the case can now be revived.
The statute provides that where either of the parties to a pending action dies, the cause may, on motion of any party interested, he revived in the name of a special administrator, if there is no general administrator. Kirby’s Dig. § § 6298-6300. It is further provided that “an order to revive an action in the name of the representatives or successor of a plaintiff may be made forthwith, but shall not- be made without the consent of the defendant after the expiration of one year from the time the order might have been first made.” Kirby’s Dig. § 6314. And that “when it appears to the court by affidavit that either party to an action has been dead * * * for a period so long that the action cannot be revived in the names of - his representatives or successors without the consent of both pai'ties, it shall order the action to be stricken from the docket.” Kirby’s Dig. § 6315. This statute applies to cases pending in this court on appeal, as well as to cases pending in trial courts. State Fair Association v. Townsend, 69 Ark. 215.
The statute is mandatory in its terms, and the revivor, to be effective, must be applied for within the time pointed out. An action, after the death of either of the parties, can proceed no further until it has been properly revived; and the object of the statute is to fix. a time within which those interested in the suit may have it revived, and, if not revived within the time prescribed, to require an abatement. When the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative; and if there be no general administrator or executor, the revivor shall be in the name of a special administrator appointed by the court in which the action is pending. The order to revive may be made forthwith — as soon as the court in which the action is pending convenes after the death of the plaintiff, and must be made within one year after that time, except by consent of parties. The limitation of time in the statute applies equally where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator.
Appellant Anglin died on April 5, 1904, and more than one year has elapsed since the order to revive might have first been made, and it cannot be now made.
The motion to dismiss the appeal and strike the case from the docket of this court is sustained, leaving the decree appealed from in full force. It is so ordered. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment convicting the defendant of murder in the first degree. The defendant is a negro, and the person whom he killed was a negro. The evidence of his guilt is amply sufficient to-sustain the judgment, but we are of the opinion that the court erred in giving the 18th instruction set out in the statement of facts. We see nothing in the evidence that justified such an instruction.. It is not shown that any one besides the defendant and his wife and the deceased, Dary, was present at the time the killing took place. His wife was not a competent witness, and he could not put her on the stand. The law did not require that the defendant should testify, though he did take the stand and testified fully in regard to the circumstances that led to the death of Lary. Whether this testimony was true was a matter for the jury, and not the court. If this instruction referred to the failure of defendant to show the facts in reference to the previous assault which defendant testified that he had heard was made by Dary upon defendant’s wife, it was improper, for this assault happened two weeks before the killing, and was- no justification therefor, and the failure of the defendant to prove the facts in reference thereto was no evidence of his guilt. If it was competent for defendant to prove the circumstances of such assault, it does not appear that the facts and circumstances in reference thereto were so peculiarly within his knowledge, or that they were of such nature, as to justify this instruction to' the effect that where evidence which would rebut or explain “facts and circumstances of a grave and suspicious nature and peculiarly within defendant’s knowledge and right, and he makes no effort to produce the same, the jury may properly take such fact into consideration in determining defendant’s guilt or innocence.” There was nothing about this reputed assault that justified the court in referring to it as of a grave and suspicious nature, while, as we have stated, the defendant testified fully in reference to the facts of the homicide. The effect of this instruction was aggravated by the argument of the prosecuting attorney, in which he called attention to the failure of the defendant' to prove the report of the attempted assault of Dary upon his wife, which proof had been excluded by the court.
Again, the court gave section 1765 of Kirby’s Digest, to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law, but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that the jury might understand that, though the burden of proving acts of mitigation may devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt. Cogburn v. State, ante p. no. But, so far as the record here shows, the court did not refer tó thé question of reasonable doubt in any portion of his charge. The only reference to that question found in the record is in an instruction asked- by defendant which was refused, and properly so, because it did not state the law correctly. While the failure to give an instruction on that point was not of itself a reversible error, for the reason that the defendant did not ask any proper instruction on that point, still the failure to give such an instruction emphasizes the error in giving instruction 18, to' which we have referred. On the whole case, for the reasons stated, we are of the opinion that there was error in the charge of the court, and for that reason the judgment must be reversed, and a new trial granted. It is so ordered. | [
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McCueeoch, J.
Appellee, a boy 9 years of age, by his next friend, brought this suit against appellant to recover damages for personal injuries received in alighting from appellant’s street car. The testimony introduced on the part of the appellee tended to establish the fact that he and his brother were passengers on the street car, and gave a signal to the motorman to stop the car at a regular stopping place; that the car was brought to a stop, but appellee was delayed in getting off by other passengers ahead, and, before he could alight, the motorman started the car; that' ■» as soon as the car started he told the motorman that he wanted to get off, and the motorman told him that he would have to jump off, which he did, and was thrown down and hurt.
The testimony introduced by appellant tended to show that appellee alighted from the car when it stopped, but undertook to jump on the rear end of the car as it passed, to steal a ride, and that while so doing he was thrown down and hurt. The motorman testified that he did not tell the boy to jump, that he had no recollection of seeing either of the boys on the car during that trip, and did not know of the. accident until he had reached the end of his run and returned. The jury accepted the version offered by appellee, and returned a verdict in his favor.
Appellee and his brother were asked by appellant’s counsel whether or not they were in the habit of jumping on passing cars to steal rides, to which they both answered in the negative, and appellant then offered testimony to contradict them, showing that they were in the habit of jumping on cars, and that the brother had done so on the day of the accident, and was driven from a car by the manager. The court refused to permit the introduction of this testimony, and error is assigned in that particular. This testimony was properly excluded, as the issue involved in the trial was as to whether the injury was caused by negligence of appellant’s servants, or was the result of the plaintiff’s own negligence. The testimony was sharply in conflict on this question, and the habit of appellee in jumping on cars upon other occasions had no legitimate bearing on this issue. Appellee and his brother could not, as' witnesses, be contradicted on immaterial collateral matters.
No error is found in the instructions of the court, the evidence is sufficient to sustain the verdict, and the judgment is affirmed.
Hire, C. J., absent and not participating. | [
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McCuuuoch, J.,
(after stating the facts.) In actions for trespass upon land it devolves upon the plaintiff, before he can maintain the action, to show either title or possession. Mere color of title is not sufficient. The plaintiff in the' trial below introduced a chain of title deeds conveying the lands in question, running back to a deed from one John A. Cole in 1881. These deeds constituted color of title, but do not show a perfect chain of title. He also introduced a deed, dated February 7, 1872, from John A. Cole, as clerk of White County, to John A. Cole (whether the grantor and grantee are the same individual does not appear), conveying part of the lands (295.97 acres) pursuant to sale for taxes. The validity of the tax sale and appellee’s title thereunder is attacked by appellant, but we need not determine the question of its validity, inasmuch as the proof does not show the amount of timber cut from each tract; and as the verdict of the jury fixes the gross value of the timber cut from all -the land, the case must be reversed unless the plaintiff has shown his right to recover for the timber cut from the other tracts. The burden was upon appellee to prove his title or possession.
It is not claimed that he had actual possession, the lands being wild and unoccupied, but he sought to establish title to and possession of all the lands by showing compliance with the act of March 18, 1899, in paying taxes.
This court, construing that statute in the case of Towson v. Denson, 74 Ark. 302,, held that the payment of taxes on wild and unimproved land under color of title constitutes possession for each successive year in which payment is made, provided, however, that such payments be continued for at least seven years in succession, and not less than three after the passage of the statute.
The only testimony on the point was that of J. H. Greer, a brother and agent of the plaintiff, who said that he had “paid taxes on all these lands since 1891.” He did not say what years he paid, nor give the dates of payments. This was sufficient to warrant the jury in finding that he paid the taxes continuously since 1891, and made the payments within the times required by law for paying taxes; but it does not authorize a finding that three payments were made before the date of the trespass and after March 18, 1899, so as to bring the case within the terms of the statute. The trespass commenced in June, 1901, and, in or-order to have made three tax payments before that time, he must have paid for the years 1898, 1899 and 1900. Now, the jury could have found from this testimony that the plaintiff paid the taxes for the year 1900 on or before April 10, 1901, and for the year 1899 on or before April 10, 1900, but there was nothing on which to base a finding that he paid for the year 1898 after March 18, 1899. The taxes of that year were payable at any time from the first Monday in January to April 10, 1899, and, for aught that appears in proof, the same may have been paid before March 18, 1899. The burden was upon plaintiff to show, if such was a fact, that he made this payment after March 18, 1899, for that was essential in order to show compliance with the terms of the statute. This being true, the evidence is insufficient to sustain the verdict as to title or possession of the plaintiff, and the same must be set aside, and a new trial granted.
■ It is urged by counsel for appellee that the allegation of tax payments by the plaintiff is not denied in the. answer, and was not an issue in the trial below; but we think he is mistaken. It is true that the defendant’s answer does not specifically deny the payment of taxes by the plaintiff, but it does deny that the plaintiff was the owner or has had possession of the land. If a more specific denial was to be required, it should have been pointed out by motion'at the proper time. In actions for trespass upon real estate, it is not necessary for the plaintiff in his complaint to deraign title. It is only necessary for him to allege that he is the owner or in possession. All other allegations of ownership of a more specific character may be treated as a surplusage, and the defendant need not deny them. The title and possession of defendant was, we think, denied with sufficient certainty to put the same in issue; and as the testimony failed to establish either, the judgment must be reversed, and the cause remanded for a new® trial.
Battue, J., absent. | [
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McCurroch, J.,
(after stating the facts.) 1. Counsel for appellants contend, first, that the chancellor erred in treating this as a suit to redeem. The complaint contains all the allegations essential to that relief, and no other, though the prayer is only that the tax sale be canceled, and the land decreed to belong to the plaintiff.
Under a prayer for general relief, the court may grant any relief that the facts stated and proved will warrant, although it may be inconsistent with the special relief prayed. Kelly’s Heirs v. McGuire, 15 Ark. 555; Shields v. Trammell, 19 Ark. 62; Dews v. Cornish, 20 Ark. 332; Chaffe v. Oliver, 39 Ark. 531. If the complaint states, and the proof establishes, facts sufficient to constitute a cause of action, relief should not be denied because the plaintiff is mistaken in the relief asked. Ashley v. Little Rock, 56 Ark. 391.
Moreover, the defendants in their answer treated the complaint as seeking a redemption, and tendered an issue as to the right to redeem. The proof was, without objection, all directed to that issue, and the prayer of the complaint must- be treated as amended to conform to that issue. Davis v. Goodman, 62 Ark. 262. The appellants cannot take advantage here, for the first time, of a defect in the prayer for relief.
2. It is next contended that the tax sale, which was the basis of the State’s donation deed to Warren C. Irby, was void, and that on that account the alleged title of appellee failed.
The burden was upon appellee to prove that he was the owner of the lands at the time of the tax sale to Waterman, and to sustain his claim of title he introduced the donation deed and copy of the certificate of improvement. This made a prima facie case, and cast upon appellants the burden of showing that the tax forfeiture was invalid. Thornton v. St. L. Refrigerator & Wooden Gutter Co., 69 Ark. 424. The statute in force at the time of the donation in question provided that the donation deed and certificate of improvements “shall be evidence in all the courts of a good and valid title in the donee, his heirs and assigns, and shall be evidence that the lands had been regularly forfeited by the original owner, that the State had properly donated its right thereto, and such evidence shall be received by the courts.” Act Dec. 23, 1840.
Appellants, to sustain their attack upon the donation deed, introduced in evidence the records of the levying court and the record of tax sales for the years 1865 and 1866, which tended to show that the lands were sold for taxes and cost in excess of the amount lawfully assessed. There is no proof, however, in the record that the State’s title was based on forfeitures for either of those years, and the prima facie case made out by the donation deed is not overcome. There may have been a valid forfeiture subsequent to those years, and, in giving force to the statute, we must presume that there was until the contrary be shown.
The right of appellee to redeem the land must also be sustained upon another ground, about which there is no dispute in the pleadings. His ancestor, who held under the donation deed, paid taxes on the lands for a number of years, and, having a lien therefor, it constituted such an interest in the lands as entitled him to redeem. Smith v. Thornton, 74 Ark. 572. The writer hereof does not approve the doctrine just stated. He expressed his dissent therefrom in the case just cited; but the question must now be treated as settled by the decision in that case, and it is conclusive of the case at bar.
3. The chancellor erred in decreeing a sale of the lands for the amount found to be due appellants by appellee to accomplish the redemption. The right to redeem from tax sales is one conferred by statute upon the terms therein named, i. e. the payment of all taxes and cash value of improvements. Kirby’s Digest, § § 7095, 7115. When the amount is ascertained, it must be paid before' the redemption is accomplished. The court should not order the lands sold in aid of the effort to redeem.' If the claimant asserts the right to redeem, he must pay the proper amount when ascertained.
Nor should the court have fixed any time within which appellee should redeem. The statute fixes the time,-and appellee may still redeem by paying the amount fixed by the court.
The decree is affirmed, in so far as it declares the right of appellee to redeem and fixes the amount to be paid in redemption, but is reversed as to the order for sale of the lands. | [
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RAYMOND R. ABRAMSON, Judge.
| following a bench trial, appellant Robert Lee Thomas, Jr., was found guilty of possession of a firearm by certain persons and theft by receiving property valued at less than $2500 but more than $500. Thomas was sentenced as a habitual offender to concurrent terms of 360 months’ imprisonment for possession of a firearm by certain persons and 120 months’ imprisonment for theft by receiving. On appeal, he argues that the trial court erred in denying (1) his motion to dismiss the theft-by-receiving charge, in which he argued that the State presented insufficient evidence that he knew or should have known the firearm was stolen, and (2) his motion to suppress evidence obtained from his car. We find no error in |2the circuit court’s denial of Thomas’s motion to suppress and therefore affirm his felon-in-possession conviction, but we reverse and dismiss the theft-by-receiving conviction.
On the evening of January 24, 2009, Thomas was pulled over in a traffic stop after he was observed driving erratically. He was placed under arrest for driving on a suspended driver’s license, and after a stolen firearm was found in his vehicle, he was also charged with possession of a firearm by certain persons and theft by receiving.
At trial on May 7, 2010, Corporal Michael Maxheimer of the Bryant Police Department testified that he received a call from dispatch and began following appellant at around 6:26 p.m. on January 24, 2009. He observed appellant driving erratically and initiated a traffic stop on Interstate 30 westbound in Benton after appellant drove off of the shoulder of the road. Thomas did not have identification with him, and Corporal Maxheimer learned from the Arkansas Crime Information Center that Thomas had a suspended driver’s license. Corporal Max-heimer testified that while he was talking to Thomas, Thomas was trying to walk back to the driver’s side of his car and into traffic, appeared unsteady on his feet, and had a white powdery substance on his nostrils.
Sergeant Jimmy Long arrived and directed Maxheimer to take Thomas into custody for driving on a suspended license and put him in the back of the police car. Maxheimer testified that he followed Bryant Police Department policy by first calling a wrecker to have the vehicle impounded and then conducting an inventory of its contents. Under the driver’s seat of the vehicle Thomas had been driving was an automatic firearm. It was in plain view, |spartially sticking out from under the seat. Maxheimer completed the police department’s auto-storage report, which listed “assorted CD’s” and “assorted tools in trunk.”
Sergeant Long testified that when he arrived on the scene, Corporal Maxheimer was concerned because Thomas was not staying at the back of the car. Sergeant Long spoke to Thomas and found him to be disoriented; he then told Corporal Maxheimer to take Thomas into custody. Long testified that he too noticed the white powdery substance on Thomas’s nose; he also smelled burnt marijuana. Long recalled Corporal Dale Donham of the Arkansas State Police arriving shortly after he did and being the first one to notice the gun. Corporal Donham testified that, before Maxheimer and Long had conducted the inventory of the vehicle, he shined his flash light into the front seat and saw the butt of a gun under the driver’s seat.
Following Donham’s testimony, the court heard arguments regarding appellant’s motion to suppress and denied the motion. The court based its decision on both the fact that the gun was in plain view and that it would have inevitably been discovered in the inventory:
I’m going to deny your motion [to suppress evidence] for two reasons. First, that there was testimony by both’ officers that the butt of the gun was partially preceding [sic] from under the seat and it could be seen....
Secondly, if — I think it’s pretty obvious this defendant wasn’t going to go anywhere, and I think it is proper to do an inventory search, and it would have been discovered during that, regardless.
So, however the search was denoted, whether it be inventory or a search incident to arrest, I agree [that] the search incident to arrest probably would not fly in this case because he was in custody and the officers were not in danger, but it was going to be discovered one way or the other, either as a result of being in plain sight or as a result of the inventory.
[¿Also testifying was the owner of the gun, who stated that his home in Sherwood was burglarized on May 18 or June 18, 2008. Seventeen handguns were taken, and one of them was the gun recovered from Thomas’s vehicle. Most of the firearms had already been recovered. The victim testified that the burglar had been apprehended, and it was not Thomas.
At the close of the State’s case, Thomas moved for dismissal of the theft-by-receiving charge on the ground that there was no evidence that he knew or should have known that the gun was stolen. He argued that six to seven months did not qualify as “recently stolen” within the meaning of the statute. The court denied his motion and found him guilty of both charges. This timely appeal followed.
I. Sufficiency of the Evidence
Thomas contends that the trial court committed reversible error when it denied his motion to dismiss the theft-by-receiving charge. He argues now, as he did below, that the State failed to introduce evidence that he knew or should have known that the firearm was stolen. A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Cora v. State, 2009 Ark. App. 431, at 3, 319 S.W.3d 281, 283. We will affirm a trial court’s denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. When a defendant challenges the sufficiency of the | r,evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Gamble v. State, 351 Ark. 541, 545-46, 95 S.W.3d 755, 758 (2003). Our supreme court has set out the standard of review for cases involving circumstantial evidence as follows:
Circumstantial evidence may constitute substantial evidence to support a conviction.... The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. The question of whether the circumstantial evidence excludes every hypothesis consistent -with innocence is for the jury to decide. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict.
Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001) (citations omitted).
A person commits theft by receiving when he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. Ark.Code Ann. § 5-36-106(a) (Repl.2006). “The unexplained possession or control by the person of recently stolen property” will “give rise to a presumption that a person knows or believes that property was stolen.” Ark.Code Ann. § 5-36-106(c)(l). The proper test of recency is whether the time lapse between the theft and the accused’s possession of the property is sufficiently short, given the circumstances of the case, to preclude the possibility of a transfer of the stolen property from the thief to an innocent party. E.g., State v. Langdon, 110 S.W.3d 807, 814 (Mo.2003); State v. Anderson, 738 S.W.2d 200 (Tenn.Crim.App. 1987). See also Annotation, “What constitutes ‘recently’ stolen property within rule inferring guilt from unexplained possession of such property,” 89 A.L.R.3d 1202 (1979). The purpose of the recency requirement with respect to the inference of guilt is to insure that the party found in possession of the stolen property is aware of the stolen ñatee of the goods in his possession. Anderson, 738 S.W.2d at 202. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. Id.
Here, the owner of the stolen firearm testified that it had been taken from his home on either May 18, 2008, or June 18, 2008 — making the time between the gun being stolen and Thomas’s arrest a little more than seven or eight months. There was no evidence regarding how the gun came to be in Thomas’s possession. Thomas argues that the theft in this case was not recent enough to give rise to a presumption that he knew the property was stolen and no other evidence points to any reason he should have known that it was stolen — for example, the serial number remained intact. At issue is whether the gun can be considered “recently stolen” so that the statutory presumption arises to support a finding of guilt beyond suspicion or conjecture. We hold that under the facts of this particular case, the presumption is inapplicable.
In Williams v. State, 93 Ark. App. 353, 219 S.W.3d 676 (2005), this court held that the evidence was sufficient to allow the jury to find that the defendant knew or had reason to believe that the gun was stolen because he was in unexplained possession of a gun that had been discovered missing four months earlier. In that case, the defendant first ignored an 17officer who approached him at a service station, then told officers to leave him alone. The officers discovered that the defendant was concealing a gun in his hand. The court concluded that a lapse of four months, considered along with the affirmative effort at concealment, was not long enough to hold as a matter of law that it could not be considered recent.
On the other hand, in Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003), this court held that the statutory presumption for recently stolen property was not applicable where the trailer at issue had been reported stolen nearly fourteen months before it was found in the defendant’s possession.
Our supreme court has explained that factors other than the passage of time are relevant to determining whether an item was recently stolen:
The nature of the property alleged to have been stolen, the actions of the defendant and the nature of his claim thereto, if he subsequently makes an assertion of title, and all the circumstances surrounding the particular case, should be taken into consideration in determining whether the possession of the property was at the time after it was recently stolen, or whether it was so remote that it should not be considered that it was recently stolen.
Wiley v. State, 92 Ark. 586, 591, 124 S.W. 249, 251 (1909). We acknowledge that Thomas was a felon who could not legally possess a gun. That fact, however, has no bearing on whether he was in possession of “recently stolen” property — a fact necessary in this case to support a finding of guilt on the separate charge of theft by receiving. Having knowledge or good reason to believe that the property in the defendant’s possession is stolen is an essential element of theft by receiving. See Reeves v. Mabry, 480 F.Supp. 529 (W.D.Ark.1979); Eaton v. State, 98 Ark. App. 39, 249 S.W.3d 812 (2007). The requisite intent is presumed only when the defendant is in the unexplained possession of recently stolen property — a term not | ^defined by our statute. We hold that, given the circumstances of this case, a little more than seven or eight months is too long, without more, to raise the statutory presumption applicable to recently stolen property. Therefore, we reverse and dismiss appellant’s conviction for theft by receiving. We do not intend to draw a bright line regarding what can be considered recently stolen for purposes of the theft-by-receiving statute; such matters should be resolved on a case-by-case basis.
II. Motion to Suppress
Thomas also contends that the trial court erred in denying his motion to suppress the gun found in his car. When a trial court’s denial of a motion to suppress is challenged, the reviewing court makes an independent examination of the issue based on the totality of the circumstances and views the evidence in the light most favorable to the State. Benson v. State, 842 Ark. 684, 687, 30 S.W.3d 731, 733 (2000). We reverse only if the decision to deny the motion to suppress was clearly against the preponderance of the evidence. Id.
On appeal, Thomas does not challenge the legality of the traffic stop. Rather, he contends that the warrantless search of his ear violated his Fourth Amendment rights and that the inventory search was a “guise.” Thomas points out that the police report indicates that the gun was discovered “[wjhile conducting a search incident to an arrest and inventory.” He argues that the officer actually considered the search as one incident to arrest, and therefore the case should be analyzed under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), which addresses the search-incident-to-arrest exception to the warrant requirement. Appellant fails, however, to address the second ground the circuit court cited for denying the motion to |nsuppress — that the gun would have inevitably been discovered during an inventory search. Our supreme court has held that, where the circuit court bases its decision on two independent grounds and appellant challenges only one ground on appeal, the appellate court will affirm without addressing either basis of the circuit court’s decision. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002) (citing Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989)). Therefore, we affirm appellant’s conviction for being a felon in possession of a firearm without addressing the merits of his argument concerning the denial of the motion to suppress evidence.
Affirmed in part; reversed and dismissed in part.
PITTMAN, GLADWIN, ROBBINS, and MARTIN, JJ., agree.
WYNNE, GRUBER, HOOFMAN, and BROWN, JJ., dissent.
. In his brief, appellant refers to his motion for directed verdict. As his trial counsel correctly noted, because this was a bench trial, the motion was in fact a motion to dismiss. See Ark. R.Crim. P. 33.1 (2011).
. The length of time was actually a little over seven or eight months.
. The dissent concludes that appellant was not an innocent party because of his rather extensive criminal history. In this context, however, innocence means that the receiving party has no knowledge or reason to believe the property is stolen, and is not a reference to his or her criminal past. | [
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LARRY D. VAUGHT, Chief Judge.
11Appellant Kristi Grove challenges the order of the Garland County Circuit Court awarding custody of her two children to their father, appellee Jeffrey Grove, and giving her supervised visitation based on the court’s findings that a material change in circumstances occurred and that the change of custody was in the children’s best interests. Kristi argues on appeal that (1) the trial court abused its discretion when it relied on expert witness testimony about Parental Alienation Syndrome (PAS) because it does not meet the Dauberb test for the admissibility of scientific evidence, and (2) the trial court’s custody and visitation rulings are clearly erroneous. We affirm.
The parties have two children, AG and RG, who at the time of the hearing were eleven and seven, respectively. The parties’ divorce decree was entered on August 10, 2004, at which time Kristi had custody of the children and Jeffrey had visitation.
lain June 2006, Jeffrey filed a petition for contempt and for modification of visitation, alleging that Kristi was in violation of the parties’ custody agreement due in large part to her efforts to alienate the children from him. He later filed a motion for a mental evaluation of the parties and their children. In January 2007, the trial court ordered a family psychological evaluation by Dr. Paul Deyoub. In a May 8, 2007 report, Dr. Deyoub concluded that Kristi and her parents were poisoning the children against their father with unsubstantiated abuse allegations in an effort to alienate them from him. In November 2007, the parties agreed to a consent order wherein Kristi and Jeffrey shared joint custody of the children with Kristi having primary physical custody and Jeffrey hav ing visitation. The order included detailed information concerning Jeffrey’s visitation rights and provisions that Kristi give Jeffrey all school, medical, and caregiver information; both parties participate in family counseling; both parties not criticize or allow others to criticize the other party in the presence of the children; and Kristi participate in a “Children in the Middle” program.
On February 24, 2009, Kristi filed a petition for change of custody. She alleged that a material change in circumstances had occurred since the 2007 consent order was entered and that it was in the children’s best interests that she have sole custody. Jeffrey counterclaimed for a change of custody, alleging that Kristi failed and refused to comply with the 2007 consent order regarding visitation and counseling and that she continued to alienate the children from a meaningful relationship with him. As part of his counterclaim, Jeffrey requested that the parties and the children submit to another evaluation with Dr. Deyoub, which the trial court granted.
| sDr. Deyoub authored a second report dated September 25, 2009. In his twenty-four-page report, Dr. Deyoub concluded, as he did in 2007, that Kristi and her parents had continued to coach the children to make false allegations of abuse against Jeffrey in an effort to alienate them from him. He opined that Kristi should not have sole custody. Instead, Dr. Deyoub concluded that Jeffrey should have primary custody of the children with Kristi having visitation rights.
Thereafter, Kristi requested, at her expense, that the parties submit to a psychological evaluation with an expert of her choosing. The trial court granted the request, and Dr. Warren Seiler Jr. was selected. In his December 11, 2009 twenty-six-page report, Dr. Seiler also concluded that the children had been “regularly pressured and brainwashed [by Kristi and her parents] into becoming convinced that their father is a villain and a man to be feared.” Dr. Seiler stated that he was concerned about the future well-being of the children in Kristi’s primary custody. He concluded that full custody of the children should be given to Jeffrey and that Kristi be given supervised visitation.
Hearings were held on December 18, 2009, February 10, 2010, and April 27, 2010, and many witnesses testified. On May 27, 2010, the trial court issued a letter opinion placing custody of the children with Jeffrey, ordering Kristi to pay child support and maintain insurance on the children, and awarding temporary supervised visitation to Kristi, to be followed by unsupervised 14visitation. The order outlining the trial court’s findings was entered September 1, 2010, and stated:
1. A significant and material change of circumstances has occurred so that it is in the best interest of the children that legal and physical custody of the minor children ... should be placed with the Plaintiff, Jeffrey Grove.
2. Such significant change of circumstances includes, but is not limited to, the following:
a) Defendant has failed to comply with the parties’ Joint Custody Agreement;
b) Defendant has failed to follow the visitation schedule and initially interfered with visitation with the Plaintiff;
c) Defendant has failed and refused to cooperate in counseling as ordered by the Court;
d) Defendant has alienated the minor children from a meaningful relationship with their father;
e) Defendant has embarked on a course of conduct designed to end or substantially limit the contact of the children with the Plaintiff; and
f) Defendant has intentionally perpetrated or acquiesced in false accusations against the Plaintiff and has allowed such statements to be made in the presence of the minor children.
Kristi timely appealed from this order.
On appeal, Kristi argues that the trial court abused its discretion in relying on expert witness testimony about PAS because it does not meet the Daubert test for the admissibility of scientific evidence. Our case law clearly states that we review the admission of expert testimony under an abuse-of-discretion standard. Dye v. Anderson Tully Co., 2011 Ark. App. 503, at 9, 885 S.W.3d 342, 348. In discussing our standard of review for evidentiary rulings, we have said that trial courts have broad discretion and that a ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Id. at 9-10, 385 S.W.3d at 348-49.
Kristi argues that the testimony of Drs. Deyoub and Seiler, about the discredited psychological theory of PAS, should have been excluded as unreliable scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). She contends that PAS is premised on a verifi-ably false assumption, is not supported by empirical evidence, and has been rejected by the scientific community.
We, however, are unable to address this argument because it is not preserved for appeal. At no time below did counsel for Kristi object to the PAS evidence. No motions were filed seeking to exclude the PAS evidence. Counsel did not object to the admission of the reports or testimony of Drs. Deyoub or Seiler that contained the PAS evidence. Objections to evidence must be made at the time the evidence is introduced. Oates v. Oates, 2010 Ark. App. 346, at 4, 2010 WL 1609411 (citing Edwards v. Stills, 335 Ark. 470, 503-04, 984 S.W.2d 366, 383 (1998) (to preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs)). Therefore, we must affirm on this point.
Next, in two separate points on appeal, Kristi argues that the trial court clearly erred in awarding Jeffrey full custody of the children while awarding her only supervised visitation. She argues there was a lack of evidence of a material change in circumstances; specifically, she contends that there was no evidence that she failed to follow the court’s visitation schedule, that she failed to cooperate in counseling, or that she alienated the children from Jeffrey. She also argues that the change of custody was not in the children’s best interest, claiming that there is an abundance of evidence in the record that she is the better caregiver. She points to evidence that she has been the children’s primary caretaker; she has been heavily involved in the boys’ school and extracur ricular activities; she has a good, stable job with steady income; she pays for the children’s private school; and she properly feeds, bathes, and clothes the children. In | (¡contrast, according to Kristi, the record demonstrates that Jeffrey does not regularly attend the children’s school and extracurricular functions, he struggles to earn a living, he has failed to pay child support and has written her “hot checks,” he has a problem with drinking alcohol, he has been in numerous romantic relationships since their divorce, and he is argumentative and combative.
Our standard of review in child-custody cases is well established. We consider the evidence de novo, but will not reverse unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Tribble v. Tribble, 2011 Ark. App. 407, at 9, 384 S.W.3d 574, 579. Findings are clearly against the preponderance of the evidence when we are left with an irrefutable and express belief that a mistake has occurred. Id. at 9, 384 S.W.3d at 579. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id., 384 S.W.3d at 579. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id., 384 S.W.3d at 579. Child-custody cases are unique because there are no other cases in which the superior position of the trial court to assess witness credibility carries as much weight. Id., 384 S.W.3d at 579. The primary consideration in child-custody cases is the welfare and best interests of the children, all other considerations are secondary. Id., 384 S.W.3d at 579.
In order to make changes to custody or visitation, the moving party must first demonstrate a material change in circumstances. Maley v. Cauley, 2010 Ark. App. 850, at 5, 378 S.W.3d 808, 811. The primary consideration is always the best interest of the child. Maley, 2010 Ark. App. 850, at 5, 378 S.W.3d at 811. Important factors to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id., 378 S.W.3d at 811. Visitation is left to the sound discretion of the trial court. Id., 378 S.W.3d at 811.
Giving due deference to the superi- or position of the trial court to weigh the credibility of the witnesses, we cannot say that its findings were clearly against the preponderance of the evidence. The trial court found that Kristi failed to comply with the parties’ custody-and-visitation agreement, she failed to cooperate in counseling as ordered, she alienated the children from a meaningful relationship with Jeffrey, sought to end or substantially limit the contact between Jeffrey and the children, and she intentionally perpetrated or acquiesced in false accusations against Jeffrey and allowed such statements to be made in the presence of the children. The record supports these findings.
Jeffrey testified that Kristi had not complied with the prior custody order. He offered more details about this to Dr. Deyoub, who reported that since the 2007 consent order was entered, Kristi had consistently frustrated Jeffrey’s visitation. Jeffrey told Dr. Deyoub that for seven months he did not receive regular phone visitation as ordered; he had only one Thanksgiving holiday with his children in the past six years; he was not permitted to participate in the children’s Halloween activities; Kristi cancelled a weekend visitation stating that the kids were ill, but she provided no doctor’s excuse and did not reschedule the visitation; and Kristi | ^cancelled counseling sessions (Ms. Gladden, the counselor, confirmed that Kristi had cancelled at least one of Jeffrey’s sessions with the children).
In addition, the trial court found that Kristi was alienating the children from Jeffrey and was seeking to end their contact with him. The evidence supporting this finding was overwhelming. First, it was Kristi, who already had primary custody of the children, who initiated this current action seeking to acquire sole custody with the intent to eliminate Jeffrey’s visitation.
Second, as stated above, both Drs. Dey-oub and Seiler recommended that Kristi not have primary custody, that primary custody be changed to Jeffrey, and that Kristi be given supervised visitation initially. Both doctors testified that Kristi and her parents had engaged in a course of conduct to alienate Jeffrey from the children by trying to convince or pressure them into thinking that Jeffrey is an evil father/person. According to the evidence, this was accomplished by Kristi and her parents either coaching or pressuring the children to lie about their father for fear of loss of affection by their mother and grandparents. In this case, there were many false allegations of abuse made by the children. The doctors testified that there was no evidence to support any of the children’s allegations. Both doctors testified that their counseling sessions with the family revealed that the children have serious issues with lying and that they lied about the allegations against Jeffrey. Dr. Seiler stated that the children lied with impunity, “They lie |flwhen faced with an absolute fact that it could not be correct.” While Kristi testified at trial that she did not believe the various allegations of abuse made by the children, she reported them to Drs. Deyoub and Seiler as truth. Dr. Deyoub characterized Kristi’s behavior as “sick” and opined that it was psychologically damaging to the children. The effect on the children did not go unnoticed. Jeffrey testified that the children acted differently and distant toward him. Kristi acknowledged that AG suffered from significant anxiety and that he worried often. Kristi’s boyfriend, Mr. Bishop, testified that there was fear and anxiousness during visitation exchanges.
In Swadley v. Krugler, our court held that the mother’s continuous and unfounded sexual-abuse allegations against the father provided sufficient evidence of a material change in circumstances. 67 Ark. App. 297, 308, 999 S.W.2d 209, 213 (1999). In Sharp v. Keeler, we held that the mother’s continued efforts to alienate the father from the child constituted a material change in circumstances. 99 Ark.App. 42, 55, 256 S.W.3d 528, 537 (2007). In this case, the testimony of Kristi’s efforts to alienate her children from their father and the effect her behavior had on her children supports the trial court’s findings that a material change in circumstances had occurred and the change in custody was in the children’s best interests. Hudgens v. Martin, 2009 Ark. App. 462, at 2-3, 2009 WL 1553631 (holding that the mother’s barrage of unfounded abuse allegations against her child’s father constituted a change in circumstances and that it was in the best interests of the child that the father have primary custody). Therefore, we cannot say that the trial court clearly erred in placing the custody of the children with Jeffrey and giving Kristi supervised visitation.
Affirmed.
GLADWIN and MARTIN, JJ., agree.
. Jeffrey also requested, and the trial court granted the request, that an attorney ad litem be appointed for the benefit of the children.
. Those witnesses included Dr. Deyoub (forensic psychologist), Dr. Seiler (adolescent and adult psychiatrist), Kathy Gladden (counselor), Jimmy Forsythe (children’s school principal), Ward Menzies (children’s teacher/coach), Lawrence Bishop (Kristi's boyfriend), John Plyler Jr. (RG's baseball coach), Julia Mathews (Jeffrey’s ex-wife), Kevin Smead (pastor of Kristi, her children, and her parents), Grady Richard Nutt (Kristi’s father), Carol Ann Nutt (Kristi's mother), Kristi, Carol Grove (Jeffrey’s mother), Beverly Bejarano (counselor), Donna Trumbo (Jeffrey's girlfriend), and Jeffrey.
. The record includes unsubstantiated allegations that Jeffrey is an alcoholic, that Jeffrey locked the children in his girlfriend's closet for thirty minutes, that Jeffrey spanked RG so many times that his rectum bled, that Jeffrey punched AG in the nose causing it to bleed, that Jeffrey locked the children outside his girlfriend’s home and made them sleep all night outside in the cold, and that Jeffrey was exposing the children to pornography and other sexual behavior. | [
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Hughes, J.
This is an action in ejectment by appellant, claiming lands described in her complaint as heir at law_of-Márk A. Dooley. The lands were also claimed by Mary E. Dooley, as the adopted heir of said Mark^A.~~Doolev. and her right to the land depends upon the validity of the proceedingst for her adoption in the Phillips county probate court. ,
The act of February 25, 1885, under which these proceedings were had, provides :
“Sec. 1. That any person desirous of adopting any child may file his petition therefor in the probate court,, in the county where such child resides.
“Sec. 2. Such petition shall specify, first, the name of such petitioner; second, the name of such child, its . age, whether it has any property, and, if so, how much; third, whether such child has father or mother living* and if so, where they reside. Such petition shall be verified by the oath or affirmation of such petitioner.”
The judgment or order of adoption of the probate court is as follows: “Comes M. A. Dooley, and files and presents his petition, duly verified by oath, praying for the adoption of Mary E. Parsons, a child seven years of age, and it appearing that said petition specifies, as required by law, the name of the petitioner, the name and age of said child, and that said child has no property and no parents living, and the court, deeming it for the best interests of the child, grants the prayer of ■the petition, and enters an order of adoption.” It then proceeds: “And it appearing from the evidence introduced and being within the recollection and knowledge of the judge (who was then, as now, judge of the court) that judgment was duly made on the first day of the February term, 1890, being February 17, 1890, but erroneously omitted from the record, on motion of the .guardian of the child (Dooley’s administrator and Sarah Morris being present and resisting this motion), ordered by the court that said judgment be entered of record as' ■of the day.and date now for then.”
This order wfis based on the following petition by Dooley to said court:
‘ ‘ Phillips Probate Court: Your petitioner, Mark A. Dooley, would most respectfully represent that he is desirous of adopting as his heir Mary Ellen Parsons, who is an orphan, seven years of age ; that she has no father nor mother living, nor property of any kind ; that he prays the court to make an order permitting him to adopt •said child. Mark A. Dooley. Sworn to before me this 17th day of February, 1890. J. C. Rembert, County Clerk.” Indorsed: “Filed this day, April 11th, 1890. J. C. Rembert, County Clerk.” .
It will be observed that neither the order nor the petition states that Mary E. Parsons was a resident of Phillips county at the time when the petition was filed and the order of adoption was made.
The circuit court, which tried the cause, was asked to make the following declaration of law: “Unless a record of a judgment of adoption by a probate court, under the act of 1885 of this State, shows that the minor sought to be adopted by said judgment was at that time a resident of the county for which said probate court was held, it is void, and parol evidence-to establish that fact is not admissible in an action wherein such judgment is collaterally attacked”—which was refused ; and the court made the following declaration of law: “Where the record of a court of superior jurisdiction, proceeding in the exercise of a jurisdiction specially conferred by statute, in a summary manner, not according to the course of common law proceedings, fails to show on its face a fact essential to its jurisdiction, no presumption will be indulged in favor of the judgment of the court in such proceedings as to jurisdiction ; but, in a collateral attack upon such judgment, proof aliunde is admissible to establish such jurisdictional fact when such proof does not contradict the record, and when the statute conferring such jurisdiction does not expressly require such fact to appear upon the face of the record, and where the record of a judgment of adoption of a child as an heir, under act approved February 25, 1885, rendered by a probate court, fails to state the place of residence of such child, this fact may, in a collateral attack upon such judgment, be established by proof dehors the record, to sustain such judgment, when such proof does not contradict the record.” Exceptions were saved to the court’s action in each instance, and the case comes here upon appeal.
The proceeding to adopt a child as an heir was unknown to the common law, and in this State exists only as a special statutory proceeding. Prior to the passage of the act of February 25, 1885, authorizing such proceedings (Acts of 1885, p. 32), the probate courts possessed no such powers, and could exercise no such jurisdiction, as it conferred. The jurisdiction was conferred by a special statute. Mr. Black, in his work on Judgments, says: “It is well settled that a judgment in a summary proceeding must show upon its face everything that is necessary to sustain the jurisdiction of the court rendering it.” Sec. 280. The rule seems to be, especially in this State, as settled by this court in Hindman v. O'Connor, 54 Ark. 643, that “where the jurisdiction is conferred on a court by special statute, and which is to be exercised in a special, and often summary, manner, the judgment can only be supported by a record which shows jurisdiction, and no presumptions as to its jurisdiction will be indulged.” Harvey v. Tyler, 2 Wall. 328; Galpin v. Page, 18 Wall. 371; Gibney v. Crawford, 51 Ark. 35; Hindman v. O'Connor, 54 Ark. 643; Black on Judgments, sec. 279; Freeman on Judgments, sec. 123; 12 Am. & Fng. Enc. of Law, 276 et seq.
But it is contended that only those facts which the statute requires to be set out in the petition need to be made to appear in the record; but we hold, on the contrary, that in a proceeding of this kind, under a special statute, and not according to the course of the common law, the court in which the proceeding is had, quoad hoc, must be considered as an inferior court, and that, unless all jurisdictional facts appear in the record itself, the judgment in the proceeding will be void upon collateral attack. In Henning v. Planters' Ins. Co. 28 Fed. 440, the court said: -“Nor can the want of such averment or showing be supplied by proof aliunde the record, offered at the trial of the subsequent suit, predicated on the alleged judgment. The defects of the record cannot be so pieced or patched up by parol.” “Juris (fictional facts cannot rest in parol, to be proved in one case and, perhaps, disproved in another.” Judge Cooley, in Montgomery v. Merrill, 36 Mich. 97. There is nothing in Railway Co. v. Lindsay, 55 Ark. 281, that militates against this doctrine. There it is held that the judgment of the justice of the peace could be supported by parol, as, on appeal to the circuit court, the cause was to be tried de novo; and the statement filed in lieu of the complaint was amendable in the circuit court, as well as in the magistrate’s court, and would be treated as amended to conform to the evidence, which had been heard without objection.
•The Court of Appeals of Virginia, upon a full review of the recent'decisions, in Pulaski County v. Stewart, 28 Grat. 879, determined that there might be extracted from them ‘‘the following general legal propositions of universal application:
“1. Where a court of general jurisdiction acts within the scope of its general powers, its judgments will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached.
‘‘2. So also when a court of general jurisdiction has conferred upon it special powers by special statute, and such special powers are exercised judicially, that is, according to the course of the common law and proceedings in chancery, such judgment cannot be impeached collaterally.
“ 3. But where a court of general jurisdiction has conferred upon it special and summary powers, wholly derived from statutes, and which do not belong to it as a court of general .jurisdiction, and when such powers are not exercised according to the course of the common law, its action being ministerial only and not judicial, in such case its decision must be regardéd and treated like those of courts of limited and special jurisdiction, and no such presumption of jurisdiction will attend the judgment of the court. But in such cases the facts essential to the exercise of the special jurisdiction must appear upon the face of the record.”
The record in the Phillips circuit court wholly fails to show that Mary E. Parsons, at the time the order for her adoption as heir at law of Mark A. Dooley was made, was a resident of the county of Phillips; and therefore said order of said court is void for the want of jurisdiction.
The judgment is reversed. | [
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Battle, J.
In Pillow V. King, lately pending in this court, John Farmer executed a bond to stay proceedings on the decree appealed from in that case. He was afterwards released, on his application, from further liability, an<J S. C. Wilson executed another bond, in the sum of $3500, for the same purpose, which was filed with and approved by the clerk of this court. The condition and effect of the bond was as provided by section 1295 of Mansfield’s Digest.
The decree which was appealed from in Pillow v. King was affirmed by this court, and King brought this action on the bond of Wilson to recover the damag'es he suffered during the pendency of the appeal by reason of being deprived of the use of the lands and other property, to the possession of which he was entitled under the decree affirmed, which he' alleges exceeded the amount of the bond sued on. The defendant answered and alleged as follows :
First. That King was incompetent to sue, “because he was civilly dead, having been found guilty * * of murder in the first degree and been sentenced to death in Shelby county, Tenn.”
- Second. That, at the time he signed the bond, it was agreed with Mrs. Pillow, the appellant in Pillow v. King, that certain notes should be delivered to him (the defendant) for indemnity, before the bond was filed, of which he informed the clerk of this court; and that the notes had never been delivered.
Third. That, if liable at all, he was only liable for such damages or rents as accrued subsequently to the 6th of April, 1891, the day on which his bond was filed, Farmer being liable for the damages and rents which accrued while his bond was in force.
The uncontroverted allegations of the pleadings, and the evidence adduced at the trial of this action, tended to prove that the rents which accruéd during the pendency of the appeal in Pillow v. King exceeded $3500. There is no contention that King ever received them from any source. No evidence was adduced or offered to show that the clerk of this court ever received notice of the agreement mentioned in the second ground of defense before the filing and approval of the bond sued on.
The jury returned a verdict in favor of the plaintiff for $3500, and judgment was rendered accordingly.
First. The conviction and sentence of King in the State of Tennessee did and does not affect his right to sue and recover in this State. Story on the Conflict of Laws (8th ed.), secs. 619-625.
Second. The second defense was wholly unsustained by the evidence, there being no evidence that the clerk of this court had notice, before the bond was filed, of the agreement of Wilson and Mrs. Pillow as to the conditions upon which it was to take effect. The bond showed the purposes for which it was executed, and impliedly authorized the filing of the same. For the purpose of securing its approval and acceptance by the clerk, there was indorsed upon or appended to it an affidavit of Wilson to the effect that he was worth, over and above all his liabilities and exemptions from executions, the sum of $3500, the amount of the bond.
Third. In order to stay the proceedings on a judgment or decree, during an appeal therefrom to this court, the statute requires the appellant to file a bond, executed by one or more sufficient sureties, to the effect, among other things, that the appellant shall pay “all rents or damages to property during the pendency of the appeal, of which the appellee is kept out of possession by reason of the appeal.” The effect of the bond is to secure the payment of the value of the use of the property for the time the appellee was deprived of the possession, and the damages to it during the same time, in the event the judgment or decree is affirmed. The object is to protect the appellee. The statute provides that if a supersedeas bond is filed, and the court “ shall consider the sureties insufficient, or the bond substantially defective, in securing the rights of the appellee, the court or judge,” on motion and notice, “shall issue an order discharging the supersedeas, unless a good bond, with sufficient sureties, be forthwith executed.” The object of this proceeding is to supply the deficiency of the bond on file, and to do so the new bond is required to bind the sureties thereon for the payment of “all rents or damages to property during the pendency of the appeal.” When filed, it relates back, and covers all rents and damages which accrued before and after it was filed, and during the pendency of the appeal. Dugger v. Wright, 51 Ark. 232; Bentley v. Harris, 2 Grat. 357.
The defendant was liable for all the rents of, and damages to, the property recovered by the plaintiff in Pillow v. King, which accrued during the entire time of the pendency of the appeal therein.
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Carleton Harris, Chief Justice.
This is an appeal from an order of the Benton Probate Court, wherein the court sustained a demurrer filed by appellee, Amna Y. Moody, to a petition filed by appellants, Howard P. Holt, and Damon Runyan Memorial Fund for Cancer Research, Inc., seeking to reopen administration of the estate of Robert Edward Keith. Appellants were given ten days to plead further, but elected to stand on the original pleading. The facts, as shown by the pleadings, stipulation, and responses to Requests for Admission of Facts, are as follows:
Robert Edward Keith died in Benton County on August 31, 1955. On September 8th of the same year, Amna Y. Moody, a niece of the deceased, filed a petition for appointment as administratrix in the Probate Court of Benton County, alleging that Robert Edward Keith died intestate on the heretofore mentioned date. The petition for appointment does not list any real estate belonging to the estate, and under “personal property,” a figure inserted has been scratched out and the words written in longhand, “joint acct.”; underneath, “legal cause of action of presently undetermined value.” On the same date, an order was entered by the Probate Court naming Mrs. Moody administratrix. The order does not reflect the requirement of a bond, nor does any bond or inventory appear in the record. Subsequently, it developed that Mr. Keith, while a resident of Yakima, Washington, had executed a will, in which he devised all of his property to his wife, and further provided:
“But if my said wife shall not survive me, I give and bequeath to Howard P. Holt, of Yakima, the sum of Two Hundred Dollars ($200.00), in appreciation of his services as my said wife’s physician for several years last past; and I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, or mixed, of whatever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my death to Damon Eunyan Memorial Fund for Cancer Research, Inc., with offices at 1507 Broadway, New York 18, New York.”
Mr. Keith’s wife did not survive him, and appellants are thereby claiming to be the sole beneficiaries of the estate.
On September 13, 1955, counsel for appellee directed a letter to Donald C. Keith, who had been named executor of Eobert Keith’s will, requesting that the will he forwarded, asking that the deceased’s bank account in Yakima be changed to the administration account, and suggesting that the bank mail Mrs. Moody a signature card in order that she might transfer the account to the administration. In response to this letter, Donald Keith advised that the sum of $2,320 had been placed in the hands of one Ealph W. Scott by the deceased for safekeeping, rather than placing it in the bank. On October 14th, appellee’s counsel directed a letter to Mr. Keith, as follows:
“The Court has directed that the Administratrix collect all of the assets of the above estate and make an Inventory to file here in the Probate Court. I am enclosing authenticated copy of Letters of Administration which I would appreciate if you would hand to Mr. Scott. This, of course, is an official request by the Administratrix that he remit the cash in his hands to Amna V. Moody, Administratrix, as set out in the Letters of Administration.”
Subsequently, in compliance with this request, a draft for $2,320 was sent to Mrs. Moody via counsel. On June 20, 1957. Mrs. Moody filed a petition for probate of the will, and set out in the petition that Donald C. Keith, named executor in the instrument, had asked that a formal waiver of appointment be sent to him, since he resided in Yakima, and felt unable to administer the estate. Here, the record becomes quite confusing. No waiver by Keith is shown, nor is there any order admitting; the will to probate at that time. According to a stipulation entered into on February 16, 1960:
“Proof of execution of said will was made, signed, executed and sworn to by Lloyd A. Porter, Della Styhl and A. V. Styhl, the attesting witnesses to said will, all in the form and manner provided by Arkansas law, and said will and the proofs of execution thereof were filed for probate in the office of the County and Probate Clerk of Benton County, Arkansas, on January 17, 1957, and said will was admitted to probate as the Last Will and Testament of the said Robert E. Keith, deceased, by an order of the Probate Court of Benton County, Arkansas, made and entered on the 20th day of June, 1957, but said will and the proofs of execution thereof have become lost or destroyed and have never been recorded as the Last Will and Testament of the said Robert E. Keith, as provided by law and said order, and said will should be restored and recorded in the will records of Benton County, Arkansas, as and for the Last Will and Testament of said deceased.
3. Under the terms and provisions of said will Donald C. Keith of Yakima, Washington, was appointed executor of said will, to serve without bond, and the said Donald C. Keith is above the age of 21 years and in all other respects qualified to serve as executor of said will and he should be appointed as such without being required to file any bond.”
This appointment of Keith apparently only became effective in February, 1960, since the docket sheet does not reflect that he was originally appointed; rather, the docket shows that on June 20, 1957, the will was “probated ’ ’ and an administratrix with the will annexed was appointed. While no name is given, the reference undoubtedly was to appellee. Further notation reads: “letters to issue upon filing and approval of bond.” According to the record, no bond was filed, nor letters of administration issued to Mrs. Moody as administratrix with the will annexed.
On November 13, 1958, Mrs. Moody filed her accounting as administratrix of the estate from September 8, 1955, until November 8, 1958, pertinent portions of such appearing as follows:
“$500.00 received from judgment against Farmers Produce Company on account of death of Robert Edward Keith.
(note)
Robert Edward Keith during his lifetime contracted with this accountant to live with her and that she, his niece, would look after him and take care of him. In return, Robert Edward Keith made, as consideration for this transaction, a gift or transfer of his property to this accountant. Said property consisting wholly of money in the sum of $3,920.00. This agreement occurred prior to the death of Robert Edward Keith, and, at the time of his death, he was residing with this accountant. This accountant has therefore held, as her own, the money contracted for as consideration for her contract with the deceased, her uncle, and has not charged herself with it.
This accountant has paid all the known debts of the deceased filed as claims with her from the money contracted with her by the deceased, and has divided the above $500.00 with the other heirs of deceased. At the time of the death of Robert Edward Keith there was $2,320.00 in Yakima, Washington, of the property involved in the contract between the parties. Said money having been transferred to Amna Moody and paid to her which she has held as her own under the agreement between her and her uncle. Said money, therefore not being charged in this accounting. The deceased left a will, executed some years ago, which was filed, but is not probated, to completion, letters not issued, bond not executed.
Total charges to accountant......$500.00
Accountant is entitled to credit for money paid and assets delivered to distributees, as follows:
. . . $500.00 paid to Ruby Pennington, Yerna Quinlan and Cliee Daily. $166.66 paid to each of the above.
Total ............................................................$500.00”
The court continued the settlement for publication and hearing, and on February 19,1959, found that the settlement should be approved and the administratrix discharged. Thereafter, on July 27th, appellants filed their “Petition to Reopen Administration and for Probate of Will,” and alleged, inter alia-.
“On or about November 13, 1958, the said Amna Y. Moody, purporting to act as the personal representative of this estate, filed herein a purported accounting, which accounting shows on its face that the said Robert Edward Keith died testate, but the said Amna Y. Moody wrongfully, unlawfully, and fraudulently stated in said accounting that said will had not been admitted to probate. No notice as to the filing of said purported accounting or as to the time or place of any hearing thereon was ever given to the petitioners, and, in fact, no notices whatever have ever been given to or served upon the petitioners herein.
5. No bond was ever filed herein by the said Amna V. Moody, as administratrix of this estate, and, by reason thereof, the order purportedly appointing her as administratrix of this estate was void and of no force or effect and all other orders purportedly entered herein were and are void and of no force or effect.
6. No inventory was ever filed by the said Amna V. Moody, and no notice to creditors or notice as to the probate of said will was ever published.
7. The said Amna V. Moody wrongfully, unlawfully, and fraudulently led the petitioners herien to believe that said will had been duly recorded and that the terms and provisions thereof would be carried out and performed, and that on due time the petitioners ¿erein would receive their respective bequests under said will. ’ ’
Before discussing the issue raised by the pleadings, we deem it well to pass on appellee’s contention that the case should be affirmed because of appellants’ failure to properly abstract the record. It is true that the abstract is not in proper form, and is somewhat difficult to follow. However, the abstract does contain all pertinent information, and is sufficient to acquaint the members o£ this Court with the .issue involved. Of course, if appellee considered the appellants’ abstract to be defective, she could have, at her option, submitted a supplemental abstract with her own brief. See Rule 9, subsection (e), Procedural Rules of the Supreme Court.
We are of the opinion that, the court erred in sustaining the demurrer, i. e., we feel the allegations of the petition to reopen the administration are sufficient to require the taking of proof. Several questions' are raised. It is noted that the settlement was filed under authority granted Mrs. Moody by the original letters of adminis tration. Appellants question the legality of her appointment. If the will was admitted to probate in June, 1957, it would seem that the appointment of Mrs. Moody thereunder would be in lieu of the original appointment. The record reflects that the will was admitted to probate, but that Mrs. Moody did not qualify for letters testamentary. There is nothing in the transcript to show why she did not qualify. It is possible this failure occurred because Mr. Donald Keith did not send the waiver, and Mrs. Moody was unwilling for someone else to administer the estate. Of course, the will being admitted, and no attack having been made upon this instrument, its provisions were due prima facie to be observed. We do not know the meaning of the statement, “the deceased left a will, executed some years ago, which was filed but is not probated, to completion.”
Appellants allege that they received no notice of the filing of the accounting or any hearing thereon, and under the provisions of the Probate Code, they were clearly entitled to same. Actually, Mrs. Moody, under the circumstance of claiming all of the proceeds under a contract, should not have served as administratrix. A personal representative should not serve if his personal interests conflict with his official duties. C. J. S., Yol. 33, § 90(e), p. 1036. An administrator or administratrix acts in a fiduciary capacity. § 62-2030, Ark. Stats. (1959 Supp.). Under chapter 28 of the Probate Code, entitled “Accounting,” § 62-2801 (Supp.), provides inter alia, that self dealing is a breach of duty, and a personal representative shall be liable and chargeable in his accounts from any loss resulting therefrom. Black’s Law Dictionary, 4th Edition, p. 1525, states that self dealing “basically relates to transactions wherein a trustee, acting for himself and also as ‘trustee,’ a relation which demands strict fidelity to others, seeks to consummate a deal wherein self interest is opposed to duty.” Certainly, here the personal interests of the administratrix conflicted with the interests of those claiming under the will. Of course, Donald Keith has now been named execu tor, but this appointment comes at a time when, if the settlement is permitted to stand, there are no assets to administer. During the period in controversy, the duties of the personal representative were handled exclusively by appellee.
The court sustained the demurrer because it held itself to be without jurisdiction to determine the issue of ownership, i. e., as argued by appellee, the Probate Court has no jurisdiction to determine title to contested property. This is not a contest of title to property — this is purely a matter of determining whether the estate should be reopened and the settlement set aside. Under the pleadings, stipulation, and response to Requests for Admissions, at least $2,320 of the $3,920 was money belonging to the estate. This amount, as reflected by the letters heretofore quoted, was turned over to Mrs. Moody as administratrix of the estate of Robert E. Keith. It remained assets of the estate until proper claims were filed and allowed by the administratrix, and approved by the court. The transcript does not reflect that any claims were filed against the estate; more specifically, it does not reflect that Mrs. Moody ever filed a claim. Section 62-2607 (Supp.) provides:
“A personal representative may establish a claim he may have against the estate by filing the same with the court, and the court, upon a hearing after such notice as it shall direct, if satisfied as to the validity of the claim, shall enter an order alloAving it.”
Actually, the record does not reflect whether Mrs. Moody is claiming under a written or oral contract, when the contract was made, Avhere it was made, or what is meant by “a gift or transfer of his property to this accountant.” Of course, in seeking to reopen the estate, appellants have pursued the only remedy which is afforded them, for Section 62-2902(d) provides:
‘ ‘ The order of final distribution shall be a conclusive determination of the persons who are the successors in interest to that part of the estate of the decedent passing through the hands of the personal representative and of the extent and character of their interests therein, subject only to the right of appeal and the right to reopen the order.”
Any suit in Chancery by appellants would therefore be met with the argument that the matter had already been determined by the Probate Court. Under the provisions of Section 62-2912, an order of discharge entered under Section 62-2902(b), shall be final “except, upon a petition being filed within three years of the entry thereof, it may be set aside for fraud in the settlement of the account of the personal representative.”
¥e think clearly the court should have heard evidence, for if the allegations are correct, it would not appear that the settlement should stand. The Probate Court would indeed be impotent, if a personal representative could, merely by asserting that she was the sole owner of property turned over to an estate, take from the court jurisdiction to determine what property belongs to such estate.
For the reasons herein set out, the order of the Probate Court sustaining the demurrer is reversed, and the cause remanded with directions to overrule the demurrer and proceed in a manner not inconsistent with this opinion.
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