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Smith, J.
Appellee owns a quarter section of land, of which about fifty acres are in cultivation, and through' which Freo Creek, a stream having well defined banks, runs. Appellant owns a large body of timber land south of and adjacent to appellee’s tract, and on April 1, 1924, appellant entered into a contract with one P. C. Cottrell to cut and remove the merchantable timber from 840 acres of its land for an agreed price per thousand feet. The contract required Cottrell to cut the trees so that no stumps would be left higher than 18 inches from the ground and to cut the logs to lengths specified by appellant’s foreman. Appellant reserved the right to terminate the contract at any time upon five days’ notice to Cottrell.
The banks of the creek were heavily timbered, and, in ■cutting these trees, tops and portions of the trees fell into the creek at various places and dammed it up, so that appellee’s land was overflowed and damaged. Appellee testified that, while the cutting was in progress, he called the attention of appellant’s woods foreman to the fact that the preek was being obstructed, but the foreman stated that this was unavoidable, if the trees were all cut.
Appellee sued for and recovered judgment for damages to compensate the injury thus occasioned, and this appeal has been prosecuted from that judgment.
In the case of Taylor v. Steadman, 143 Ark. 486, 220 S. W. 821, it was said that:
“It is too well settled for controversy that the owner of the lands abutting on a stream is entitled to have the flow of waters in the stream to follow its natural and accustomed course without obstruction, and that any act which causes a diversion of such natural flow of water and inflicts injury creates a right of action. In other words, a landowner who sustains injury by reason of the diversion- of a natural watercourse is entitled to recover damages against the one who caused it.”
Appellant does not question this statement of the law, but contends that the overflow of appellee’s land was not caused by felling trees, but, if so, that it was not responsible therefor, for the reason that such action was the act of an independent contractor.
Instructions numbered 1 and 2, given at the request of appellee and over the objection and exception of appellant, present the theory upon which appellee recovered damages. These instructions read as follows:
“1. The court instructs the jury that it was the duty of the defendant to so cut and fell its trees as not to (unreasonably) obstruct the (natural) flow of the waters in Freo Creek; and, if you believe from a preponderance of the evidence in this case that the defendant compány caused to or cut or allowed trees and tops of trees which fell into the creek running through plaintiff’s farm, which obstructed the flow of the water of said creek, and that the overflow or volume of water running over plaintiff’s land in times of overflow or heavy rains was thereby increased, and that the plaintiff’s property has been damaged on account of said increased overflow, then your verdict should be for the plaintiff for such a sum as you believe from the evidence he has been damaged, -although the actual work of cutting the trees was done by an independent contractor, if the obstruction was the necessary or probable consequence of the work.
‘ ‘ 2. The court instructs the jury that, although you may believe from the evidence the damages or injuries in this case was done or caused to be done by independent contractors employed -by the defendant, still the defend•ant would be liable for any damages done the plaintiff, if, as a natural or probable consequence of the work they were employed to do, trees and tops of trees fell into the creek draining plaintiff’s farm, and that he was damaged thereby, although the negligence of the contractor may have increased the injury and enhanced the damages.”
Without reviewing the conflicting’ testimony, it may be said that the testimony offered on behalf of appellee is legally sufficient to support the finding that appellee’s lands were damaged by reason of cutting the trees so that portions thereof fell into the creek and obstructed the natural flow of the water therein.
The principal'question of fact in the case is whether the contract was one the proper performance of which would necessarily or probably result in obstructing the creek. The testimony on this subject is conflicting, but that on the part of appellee is to the effect that the attention of appellant’s woods foreman was called.to the flact that the creek was being obstructed, and that this continued after the foreman had been so advised, and that the foreman had said all the trees along the creek bank could not be cut without portions of some of them falling into the creek. Having found the fact so to be, the jury was warranted in returning a verdict against appellant, although the work was done by an independent contractor.
The test of liability for the acts of an independent contractor was announced in the case of St. Louis, I. M. & So. Ry. Co. v. Yonley, 53 Ark. 503, 14 S. W. 800, 9 L. R. A. 604, where it was said: “The right of recovery depends upon the inherent character of the act done — whether it naturally endangered the property of appellee, if carefully performed.”
The instructions quoted required the finding that the obstruction was a necessary or probable consequence of the work which the contractor was to perform under his contract, and the testimony is sufficient, as we have said, to support the finding that it was the necessary or probable consequence of the work called for by the contract.
No error was committed in modifying and in refusing to modify instruction numbered 1 as requested by appellant. This request was that the words “unreason ably” and “natural,” inclosed in the parentheses in instruction numbered 1 set out above, be inserted. The court refused to insert the word “unreasonably,” but did insert the word “natural,” and the instruction as given contained the word “natural,” but did not contain the word £ £unreasonably. ’ ’
The doctrine of the case of Taylor v. Steadman, supra, from which we have quoted, is that one may not obstruct the natural flow of water in á defined stream to another’s damage without being liable for that damage, and the measure of the liability would be the extent to which the flow of the stream was obstructed and the damage occasioned thereby.
It is earnestly insisted that instruction numbered 2 is erroneous in that it makes appellant liable for the increase of the damage occasioned by the negligence of an independent contractor, and that in no event should appellant be held liable for any greater damage than would have resulted, had the independent contractor not been negligent in the performance of his contract.
As we interpret the instructions, they told the jury that appellant would not be liable at all. unless the work contracted for was of such a character as that the natural or probable consequence of its performance would inflict injury; but, if this were true, appellant was liable for all damages inflicted, although the amount of the damage was increased by the negligence of the independent contractor.
The law was so declared in the case of White River Ry. Co. v. Batesville & W. Telephone Co., 81 Ark. 195, 98 S. W. 721, where it was said:
“The appellant, of course, was not liable for any injury caused ¡solely by the negligence of its independent subcontractor or his employees, or for any increased damages which their negligence might have occasioned. But it was liable for injuries which must have resulted from the prosecution of the work, although the negligence of the independent subcontractor may have increased the injury and enhanced the damages. ’ ’
The court gave all the instructions requested by appellant, except one for a directed verdict in its favor, and instructions numbered 4 and 5, which last-mentioned instructions read as follows:
“4. You are instructed that the burden is on the plaintiff to prove by. a fair preponderance of the evidence that the damage to plaintiff’s farm and lands, if any, was caused by the lacts of. defendant’s servants and employees in negligently and carelessly causing trees and the tops of trees to fall into Freo Creek below said farm and lands and to obstruct and divert the natural flow of said creek, and, if you find from the evidence that the damage to plaintiff’s .farm and lands, if any, resulted from some other cause or causes, you will find for the defendant.
“5. An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. And, even though you may find from the evidence that the natural flow of Freo Creek was obstructed by the felling of trees and' the tops of trees in it below plaintiff’s farm, causing said creek-to overflow its banks and wash and otherwise damage plaintiff’s farm and lands, you will find for the defendant, unless you further find from a fair preponderance of the evidence that the work of cutting and felling said trees and obstructing the natural flow of water in said creek was not done by >an independent contractor.”
Instruction numbered 4 was properly refused because it required the jury to find, before returning a verdict for appellee, that the damage was occasioned “by the acts of defendant’s servants and employees,” and to return a verdict for defendant if the damage resulted from some other cause or causes.
Appellant’s principal defense is that the damage, if any, was done by an independent contractor under a contract the proper performance of which would have' occasioned no damage, yet instruction numbered 4 required the finding that the damage “was caused by acts of defendant’s servants and employees,” thus eliminating liability iif the damage was caused by an independent contractor.
As we have said, it was appellee’s theory that appellant was liable, although the damage was caused by an independent contractor, but instruction numbered 4 ignores that theory and requires the finding that the damage was done by a servant or an employee. The instruction was properly refused for this reason.
Instruction numbered 5 is somewhat obscure, but it appears to convey the same ideia as was expressed in instruction numbered 4, and fails to take account of the conditions under which one may be held liable for the acts of an independent contractor as is herein stated.
There appears to be no error in the record; and, as the testimony is legally sufficient to support the judgment, it must be affirmed, and it is so ordered. | [
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Smith, J.
Appellant filed a complaint on January 26, 1922, containing the following allegations: Plaintiff is a domestic corporation, and is engaged in the manufacture of cottonseed oil, and is the successor of the United Oil Mills, and is the owner, by proper transfer and assignment, of all the property of the United Oil Mills, including the cause of action herein sued on.
That on October 22, 1919, J. A. Thomas delivered to the Louisiana & Northwest Railroad at Magnolia,, Arkansas, a carload of seed, the property of the United Oil Mills, consigned to that company at Hope, Arkansas. The seed at that time were sound and were worth $2,116. To complete the delivery of the shipment it was necessary for the L. & N. W. Railroad to transport the car of seed on its line to Stamps, Arkansas, where the shipment was delivered to the St. Louis Southwestern Railroad Company, a connecting carrier and by the last named carrier delivery was made to the consignee. At the time of said shipment both railroads were under the control of and were being operated by J. C. Davis, the Director General of Railroads. The distance between Magnolia and Hope is approximately fifty miles, and the delivery of the seed should have been made within about forty-eight hours after the receipt thereof, but, through the negligence of the carriers, delivery was not made until November 4, 1919. That, on account of this unreasonable and negligent delay and as a direct result thereof, the seed became heated and spoiled, and were worthless at the time of delivery.
Upon these allegations there was a prayer for judgment against both railroads and the Director General of Railroads, the suit having been brought against them ah.
. The defendants filed a motion to require the plaintiff to state how and in what manner and by what instruments the claim of the United Oil Mills was transferred and assigned to the plaintiff, and that plaintiff be required to set out, as a part of its complaint, the originals or copies of the conveyances, bills of sale or assignments under which it claims to own the cause of action sued on.
In response to this motion plaintiff filed, on August 22, 1923, an assignment reciting that, for a dollar and other good and valuable considerations, the United Oil Mills “does hereby transfer, assign, set over and deliver unto the Temple Cotton Oil Company * * * a certain claim and demand (then follows a particular description of the consignment),” and plaintiff requested that its assignor be made a party plaintiff.
Upon this amendment to the complaint being filed, the defendants severally demurred to the amended complaint upon the ground that it appeared that the cause of action accrued to the United Oil Mills more than three years prior to the date when the plaintiff offered to make its assignor a party plaintiff, and that “on account of the United Oil Mills being barred by limitations it cannot now be joined as a party plaintiff in this suit, and that plaintiff, Temple Cotton Oil Company, cannot maintain this suit without joining United Oil Mills, as a party plaintiff, and that the complaint as amended fails to state a cause of action against this defendant.”
On September 11, 1923, the court sustained the demurrers, and allowed the plaintiff thirty days in which to amend, to which ruling plaintiff duly excepted. The amended complaint was not filed within thirty days, but, at the succeeding February, 1924, term of the court, plaintiff filed an amended and substituted complaint, alleging the facts hereinbefore recited, and alleging further that the agent of the L. & N. W. Railroad Company, acting also for the Director General of Railroads, entered into a contract with the United Oil Mills, which contract was in the usual form of a bill of lading by the terms of which it was agreed that said shipment shouldi be efficiently and expeditiously transported “ * * * from Magnolia to Hope.” The amended complaint further alleged that on the —— day of ——, 1921, all the property of the United Oil Mills was foreclosed by an order of the Federal court for the Western District of Arkansas, and, under this decree, “ all the title and interest of the United Oil Mills in and to all of the property which it owned in the State of Arkansas, including choses in action, and including this claim, was sold to the Temple Cotton Oil Company. That said foreclosure and sale was for the purpose of reorganization of the United Oil Mills, and that the Temple Cotton Oil Company is, in truth .and in fact, the successor to and the continuation of the United Oil Mills; that, in order to protect the name of the United Oil Mills and preserve it, the charter of the United Oil Mills was not surrendered, and that, although said corporation exists, it is no longer active. That on the-day of ——, 19——, the proper officers of the United Oil Mills, in order to perfect and complete the claims of the plaintiff in and to the cause of action herein, executed an assignment, which has been heretofore filed in this cause, specifically assigning this cause of action to the Temple Cotton Oil Company, and that, as .such assignee and successor of the United Oil Mills, this plaintiff brings this suit.
“That this cause of action is founded upon a written contract for the delivery of property, to-wit: a bill of lading, and is an action ex contractu. That the United Oil Mills is not a necessary party, but that, in order to prevent delay, the United Oil Mills is joined as a party defendant by the plaintiff herein. That said bill of lading and contract is not now in the- possession of the plaintiff, by reason of the fact that it was necessary for the plaintiff to deliver same to the agent of the defendants before it could receive said shipment of seed, and that for said reason said contract cannot be attached as an exhibit to this complaint.’’
After further allegations of damage to the seed, there was a prayer for judgment.
On February 11, 1924, the defendants filed a motion to strike the amended and substituted complaint from the files, for the reason that it was not filed within the time allowed by the court. This motion was sustained on the day it was filed and presented, and the court ordered the amended and substituted complaint stricken from the files, to which action the plaintiff duly excepted.
On the day following this order of the court, an affidavit was filed on behalf of the plaintiff, in which the loss of the original papers in the case was assigned as the reason for the delay in filing the amended and substituted complaint, and the court was asked to vacate the order striking the amended and substituted complaint from the files. The court refused to vacate this order, and dismissed the complaint, and the plaintiff has appealed.
The first question which naturally arises is whether the court erred in striking the amended and substituted complaint from the files as not having been filed within the time limited.
As has been said, the court sustained demurrers to the original amended complaint. This action did not constitute a final order from which 'an appeal could have been’ prosecuted, as plaintiff did not stand on the sufficiency of the complaint. Had it done so, the court would no doubt have dismissed the complaint, from which action an appeal could have been prosecuted, But the court sustained the demurrer, allowing thirty days in which to file an 'amended complaint at that time. This thirty-day order was not made for 'the purpose of granting plaintiff the right to amend its complaint, as the statute provides that “if the court sustains the demurrer, the plaintiff may amend, with or without costs, as the court may order.” Section 1191, C. & M. Digest. Dickinson v. Hamby, 96 Ark. 163. But the order was made limiting the time within which the amendment might be filed for the purpose of expediting the hearing, and a reasonable time was allowed for that purpose; at least we cannot say that any abuse of the court’s discretion in this respect was shown.
At the time the court heard and disposed of the motion to strike, no excuse for the delay was offered. It is- true that, on the day after this order was made, an affidavit was filed which might or might not have been adjudged sufficient to excuse this delay; but this affidavit was not filed until after the court had ruled on the motion to strike and had sustained it. If the plaintiff wished to offer any excuse for the delay in filing the amended complaint, the excuse itself .should have been submitted to the court before the motion was finally passed on. Under these circumstances we are unwilling to say that the court abused the discretion which it must necessarily exercise to dispatch the business before it. Cumbie v. St. L. I. M. & S. R. Co., 105 Ark. 406.
It follows therefore that the amended and substituted complaint, the allegations of which are set out 'above, is not properly before us for review, and we can consider only the sufficiency of the first complaint and the amendment thereto filed before the demurrer was sustained
The amendment to the original complaint sets up an assignment of the cause of action sued on to the plaintiff by the United Oil Mills, and offers to make the assignor a party But this amendment was not filed, and this offer to make the assignor a party plaintiff was not made until August 23, 1923, and, as appeared from the face of the pleadings, this was more than three years after the cause of action had accrued.
It may be conceded, as contended by appellant, that it had the right to sue either ex contractu, counting upon the nonperformance of the contract to ship without delay, or to sue in form ex delicto, counting upon the violation of a public duty (St. L. & N. A. R. R. Co. v. Wilson, 85 Ark. 257), but the action in either form was barred when the offer to make the assignor a party plaintiff was made.
Plaintiff contends that this action is, in effect and in fact, a suit on the bill of lading, which was an agreement in writing that might be assigned, and which was assigned, and that the provisions of § 1090, C. & M. Digest, that, if the assignment of a thing in action is not authorized by statute, the assignor must be a party, as plaintiff or defendant, dc not apply.
The complaint before us does not so allege. Indeed, the amended and substituted complaint itself, if it were before us, alleges that the bill of lading was surrendered to the carriers upon the delivery of the seed.
We are required, pursuant to the provisions .of the Code, to construe pleadings liberally 'and to read into them, especially when considered upon demurrer, any allegations which, by fair intendment, they may be said to contain. But this rule of interpretation does not require us to read info a pleading an allegation which is entirely absent, 'and which, if present, would contravene the known course of business which would ordinarily have been followed by the parties in the matter out of which this litigation arose, that is, by surrendering the bill of landing to the carrier upon delivery of the car.
The complaint is one for damages, and it is nothing more, whether we interpret the cause of .action as a-suit for the breach of the contract of carriage, or for the violation of a public duty. The assignor' — 'the person to whom the cause of action accrued — would, in either event, be a necessary party, and, this being true, § 1090, C. & M. Digest, applies.
The offer to make the United Oil Mills a party came too late. The case of National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, is conclusive of this question. We there said that the refusal of the court to permit a new party to be brought in was not error where the cause of action as to him was barred.
We conclude therefore that the court properly sustained the demurrer to the complaint, and the judgment is affirmed.
Hart, J., dissents. | [
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Humphreys, J.
This case involves a controversy between Greene County and the city of Paragould as to the true location of the north boundary line of said city between certain points.
On the first Tuesday in April, 1906, an election was held in said city upon the annexation of certain adjoining territory, at which a majority voted for annexation. The petition for annexation, which was the basis for the election, described a portion of the north boundary line as being in the center of Eight Mile Creek. Based upon the returns of the election, the mayor, recorder, and aldermen of said city filed a petition at some time in 1906, in the county court, to make the' center of said creek a part of the north boundary line and to make the bridge across the creek on the Gainesville road a boundary line bridge. After the county court had adjourned to October, 1906, a vacation order was entered in the judgment record, showing that the court had considered the petition and annexed certain territory on-the north to the center of North End Avenue, paralleling the Eight Mile Creek, but seven hundred feet south thereof. The petition of the city officials was presented to the county court at the October term, 1906. There appears in the ordinance book of the city a copy of the order of the county court refusing to fix the north boundary line in accordance with the petition, but establishing same as being in the center of North End Avenue. The digest of the ordinances of said city was made by authority of the city council, which designated the north boundary line of said city as being in the center of Eight Mile Creek. From 1916 until 1921 the city recognized the middle of said creek, between certain points, as the north boundary line of said city, by working the streets to the creek, by maintaining one-half the bridge, and by taxing the property to the creek for city purposes. On August 15, 1921, the city officials obtained an entry to be made in the judgment record book of the county, a nunc pro tunc order of a purported judgment rendered at the October term, 1906, of the county court, fixing the north boundary line of said city in the center of North End Avenue. On the first day of June, 1923, M. P. Huddleston, a resident owner of and taxpayer on real estate in and out of said city, obtained, in an ex parte proceedings in the county court, a mmc pro tunc order of a purported judgment rendered at the October term, 1906, of said court, fixing the boundary line as being in the eenter of Eight Mile Creek.
The city of Paragould took an appeal to the circuit court from the order of the county court entering the nunc pro tuno judgment on June 1,1923, and also brought said nunc pro tunc order up to the circuit court on writ of certiorari for the purpose of quashing same. The county and others also brought the nunc pro hum order of August 15, 1921, up to the circuit court for the purpose of quashing same. The three cases were consolidated and treated as one case in the circuit court, and submitted upon oral and documentary evidence, which resulted in a finding that the nunc pro tunc order of August 15, 1921, was entered through mistake, and, for that reason, was void; that the nunc pro tunc order entered on June 1, 1923, was erroneous, and should be corrected so as to make the center of North End Avenue the north boundary line of said city in that vicinity. Judgment was entered in accordance with the findings, from which an appeal and cross-appeal have been prosecuted to this court by the respective parties, in so far as the judgment was adverse to each.
Appellant’s first contention for a reversal of the judgment is that the city of Parag'ould was not entitled to appeal from the ex parte nunc pro tunc order of date June 1, 1923, to the circuit court. It is argued that the city was not a party to the proceeding, and for that reason it was necessary to file a motion to vacate the order, and, if denied, to appeal from the order of denial. The answer to this method of proceeding is that the city was necessarily a party to an annexation order defining its boundary lines for the purpose of an appeal.
Appellant’s next contention for a reversal of the judgment is that the county court could not have made an order in 1906 embracing a portion only of the territory described in the petition for annexation. If the county court was compelled to follow the description in the petition, and in fact did not do so, then, according to the contention of appellant, the order was void, and no territory was annexed at all. The effect of the contention of appellant would be to deprive it of a remedy by mmc pro tunc order, for the court could not enter a different judgment by nunc pro tunc order from that originally rendered by it. Both appellant and appellee admit, in their briefs, that the county court had the power to enter a nunc pro tunc order in accordance with whatever judgment was rendered in 1906 relative to the boundary lines of the city of Paragould.
Appellant’s next contention for a reversal of the judgment is that the city was estopped by the conduct of its officials in recognizing the center of Eight Mile Creek as the north boundary line by working the streets to the creek, and by paying one-half of the expense for maintaining the bridge across the creek, and by collecting taxes on the lands immediately south of said creek. The answer to this contention is that a governmental agency cannot be estopped by the unauthorized acts of its officers.
Appellant’s next and last contention for a reversal of the judgment is that the evidence is not sufficient to support the finding of the court to the effect that at the October term, 1906, the county court adjudged that the north boundary line of the city was in the center of North End Avenue. The real question presented to the circuit court on appeal was what order the county court actually made as to the whereabouts of the north corporate line of the city in 1906. The court found that it was the center line of North End Avenue. The appeal to this court from the judgment of the circuit court can only be reviewed for error, and will not be tried de novo. Suffice it to say that there is substantial evidence in the record to the effect that the county court rendered a judgment in 1906 fixing the north boundary line more than 700 feet south of the center of Eight Mile Creek. There is both documentary and oral ■ evidence in the record tending to 'show this fact. ■
No error appearing, the judgment is ■affirmed. - | [
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Smith, J.
This case does not differ in any material respect from the case of Barnes v. Jeffus, 173 Ark. 102, 291 S. W. 990. The instant case is therefore controlled by the former one.
In this ease, as in that, the owner of the fee title to certain land sold the timber standing thereon, and granted a fixed time for its removal. In the instant case the timber deed gave the grantee the right to a mill-site on said land for the purpose of cutting said timber into lumber and for sawing other timber, if desired, with the right to all roads necessary for the purposes of the deed.
In the former case a fixed time- was given the' grantee to cut and manufacture the timber, with the right to construct roads, and the further “right to maintain logging camps while engaged in removing the timber, and to use sufficient of said lands outside of inclosed and. cultivated fields for site for mill and lumber yard.”
The instant case was submitted on an agreed statement of facts, from which it appears that the timber deed was duly recorded, and the grantee erected, in connection with the sawmill placed on the land, nine houses, each 8 feet wide, 16 feet long and 8 feet high, which were built upon rocks and blocks laid upon the ground. The grantor knew the houses were being built and their intended use, but there was no agreement that “said houses were to be built or that same should be removed at any time, or that they should become a part of the real estate.” The houses were built soon after the execution of the deed, and were used by the mill employees for living quarters, except one building which was used for a commissary and another which was used for a barn. The grantee began removing certain of these buildings, when the grantor brought this suit to enjoin him from doing so, and, upon the final hearing, the relief prayed was granted, and the grantee was enjoined from removing any of the buildings erected in connection with the operation of the sawmill.
In the opinion in the case of Barnes v. Jeffus, supra, it was said:
“Appellees (the grantors) knew that the-houses had been erected by appellant (the grantee) in the putting up and use of the sawmill for the manufacture of the timber, and consented thereto, having granted the right for the use of the land as a millsite upon the sale of the timber, but insisted that the dwellings became fixtures to which they were entitled upon removal of the mill.”
It appears from the statement just quoted, as well as from the general statement of the facts, that there was no express grant of authority to remove the buildings, but this authority was derived from the grant of the right of the use-of the land for a millsite. So here the grantee was under no obligation to erect any buildings, but he had the right to do so as an incident to the operation of his sawmill, and, as was said in the case cited, “the small dwellings were of temporary construction, the kind necessarily and usually built on such millsites for the use of the employees in the operation of 'the mill,” and, as was also said in the case cited, “these small dwelling-houses were put upon blocks that were setting on boards on the ground, and could be removed without reducing them to raw material, and without injury to the land;” and, as was also said in the case cited, “these houses were necessary for use of the employees in the construction and operation of the mill for the manufacture of the timber, and constructed with the consent of the owner of the land, and the intention on the part 'of the mill owner to remove them, with the machinery, when the timber had been manufactured, and fall within the classification of trade fixtures, which the lessee or tenant had the right to remove.”
Under these facts it was there said that: “There was no intention on the part of the mill owner, in constructing the houses, and nothing in the method of construction and materials used indicated an intention to make a permanent accession to the land or irremovable fixtures, and they did not become such, but remained personal property.”
Upon the authority of the case so extensively quoted from the decree will be reversed, and the injunction dissolved. | [
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Hart, J.,
(after stating the facts). It is the settled doctrine of this court that, whether any particular transaction of the kind involved in this suit amounts to a mortgage, or to a sale with a contract to repurchase, must, to a large extent, depend upon its own facts and circumstances. The question turns upon the real intention of the parties as shown upon the face of the deed or as disclosed by extrinsic evidence. In all cases parol evidence may be introduced to show that a deed absolute on its face was intended as a mortgage; but the evidence must be clear, satisfactory and convincing. Matthews v. Stevens, 163 Ark. 157, and cases cited. In this connection it may be stated that the declarations of the grantor as to Ms interest in the land are admissible against all who claim under him. Jefferson v. Souter, 150 Ark. 55.
Tested by these well settled principles of law, we do not think that the chancellor erred in holding that appellants had not established their case by clear, satisfactory and convincing evidence. The testimony is in direct and irreconcilable conflict.
Counsel for appellants point out that, while Gray-son is corroborated by the testimony of his brother, by virtue of their relationship both are interested parties. The same thing is true of the testimony of Walter Bolden. He is directly interested in the result of the lawsuit, and the record shows that he was the moving party in bringing the suit. It is true that his testimony is corroborated by two or three witnesses, who said that Grayson had told them he had promised to convey the land back to Missouri Bolden and her children when the mortgage indebtedness was paid off. One of these witnesses, however, placed his conversation with Grayson in this respect at a time one or two years before he gave his testimony in his direct examination; but, in his cross-examination, he stated that the conversation had been had three or four years ago. Now this testimony was given in May, 1923, and the deed in question was executed in May, 1921. Thus it will be seen that, in his cross-examination, he laid the time of the conversation with Grayson at a period of time a year or more before the deed in question was executed.
On the other hand, several witnesses for appellee testified that Missouri Bolden had told them that she had conveyed the land to Grayson. She did not die until January 15, 1923, and there was some oil excitement in the neighborhood during the fall of 1922, and leases began to be of some value during that fall. Notwithstanding this fact, Missouri Bolden did not make any claim to the land during her lifetime. The record shows that she was in bad health at the time she executed the deed in question, and that the land had no value at that time for oil and gas leases. The land was of small value for agri culture, and it is fairly inferable, from all the facts and circumstances, that Grayson intended to let Missouri Bolden live on the land as long as she would pay the taxes and a small rental for it. The deed was not executed to him until the 27th day of May, 1921, and he agreed to let her stay there that year in consideration that she would pay the taxes on the land. He testified further that he agreed to let her stay there during the year 1922 at a rent of $40, and that she paid the rent in the fall of 1922. His testimony in this respect is not contradicted.
The result of our views is that the finding of fact made by the chancellor is not against the preponderance of the evidence, and the decree will be affirmed. | [
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Humphreys, J.
Appellee instituted -this action against appellant in the circuit court of Boone County to recover $1,000 upon a policy of accident insurance issued by appellant to' her husband, Bean Y. Smith, by the terms of which appellant agreed to pay appellee said sum in case her husband should die from accidental means during the life of the policy. It was alleged in the complaint that, on the 22d day of December, 1922, during the life of the policy, the insured sustained, by accidental means, a sprain to his ankle, which resulted in his death on the 5th day of February, 1923; that the beneficiary had duly performed all the conditions of the policy and was entitled to recover the face value thereof, together with interest, penalty, and attorney’s fees.
Appellant filed an answer admitting the issuance of the policy, but denying liability thereon for the alleged reasons, first, that- the insured did not die on account of the sprain to his ankle caused by accidental means, and second, that appellee failed to comply with a provision in the policy that appellant be given immediate notice in case of the accidental death of the insured.
The cause was submitted to a jury upon the pleadings, testimony introduced by the parties, and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee in the total sum of $1,335, from which is this appeal.
The policy contained the following clauses with reference to notice of the accident and death of the insured:
“Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing’ such injury. In case of accidental death immediate notice thereof must be given to the company. The failure to give the notice within the time shall not invalidate the policy, provided it be shown that it wa.s not reasonably possible to give such notice, and if notice be given as soon as is reasonably possible to give it.”
The testimony introduced by appellee tended to «how that-the insured died as the result of an accidental injury to his ankle, and that introduced by appellant tended to show that his death resulted from an inflammation around the left kidney.
The undisputed testimony revealed that the insured died on the 5tJi day of February, 1923, after having sprained his ankle on December 22, 1922; that he was buried on the 6th day of February, 1923; that, immediately after the funeral, appellee, on account of her distress and run-down condition, due to ill health and waiting on her husband, went to her mother’s home in the country, where she remained until February 12, at which time she returned to her home, and notified appellant of her husband’s death.
The court sent the cause to the jury upon instructions which in effect told them that, in order to recover on the policy, the burden was upon appellee to prove by a preponderance of the evidence that the death of the insured resulted from the sprain to his ankle, and that notice of his death was given to appellant as soon thereafter as was reasonably possible under the circumstances in the case.
Appellant contends that, under the terms of the policy, immediate written notice of the death of the insured was a necessary prerequisite to the recovery on the policy. We think not, for the policy itself, in another clause, provided that' the requirement for immediate notice is sufficient “if notice be given as soon as is reasonably possible to give it. ” We think the jury was warranted in finding that appellee gave the notice as soon as she could have reasonably done so, under the circumstances in the case. Appellant condemns instruction No. 4, given by the court, however, because, in enumerating the circumstances which the jury might consider in determining whether she gave the death notice in time, he mentioned her bereavement. Of course, her bereavement could not excuse her from complying with the terms of the policy, but we think the word “bereavement” did not nreiudice appellant. The iurv.was warranted, from the short time that elapsed before the death notice was p-iven. the visit to her mother for a few days immediately affe-*’ the funeral, and her general condition of health, in finding that she gave the notice as soon as she could reasonably have done so. Had appellant thought the use of the word “bereavement” would prejudice him he should have called the attention of the court thereto by a specific objection to the word and not by a general objection to the whole instruction.
Appellant’s next and last contention for a reversal of the judgment is that the court erred in refusing to give instruction Nos. 2 and 3 requested by it. These instructions were the converse of the instructions given by the court. They did not present a different theory from that expressed in the instruction which the court gave, but simply changed the form of the instructions. The instructions requested were also erroneous in that they told the jury that, if they should find that some disease, or something other than the injury, contributed to the the death of the insured, they must find for appellant. If the accidental injury was the primary or approximate cause of the death of the insured, it made no difference whether other things contributed to his death. Fidelity & Casualty Co. v. Meyer, 106 Ark. 91; French v. Fidelity & Casualty Co. of N. Y., 17 L. R. A. (N. S.) 1011; Cary v. Preferred Accident Ins. Co., 5 L. R. A. (N. S.) (Wis.) 926.
Appellant’s requested instruction No. 2 was also erroneous because it told the jury that appellee could not recover unless she notified appellant of the accidental injury within twenty days after it occurred. Appellee was the beneficiary in the policy under the “death clause” and not under the “loss of time clause.” Her only duty was to give notice of the death of her husband, resulting from accidental means. In construing this kind of a clause in an accident policy, this court said, in the case of Maloney v. Maryland Casualty Co., 113 Ark. 174, “she (referring to the beneficiary) could not know whether she had a claim until after' her husband’s death; and she was not required to give notice of the accident on account of which her claim arose before she knew whether or not it would come into existence.”
No error appearing, the judgment is affirmed. | [
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Wood, J.
This is an action by J. T. Buss áncl C. L. Buss, under the name of Buss Market, against David Galloway, Jr., and Walter E. Woodward, trading under the firm name of Galloway & Woodward Company, to cancel a certain contract. The plaintiff set up the contract, alleged that it was obtained through fraud and-misrepresentation, and alleged that he had paid the sum of $63 on the contract. He prayed that the contract -be canceled and that he have judgment for the -amount which he had plaid thereon-. The defendants admitted the contract, but denied that it was obtained through fraudulent misrepresentation, and denied all the other material allegations of the complaint. They set up, by way of cross-complaint, the contract, and. prayed that they have judgment for the balance due thereunder, and that the same be declared a lien upon the Liipman machine, and, if the judgment be not paid, that the same be sold to satisfy the judgment.
The testimony o<f C. L. Buss is substantially as follows : C. L. Buss and J. T. Buss operate a meat market in the city of Little Bock. G. L. Buss is a silent partner in the firm, and was also secretary o-f a retail grocers ’ and butchers ’ association. • This association maintained an office, where O. L. Buss stayed and put in his time looking after the affairs of the association, which association paid him a salary. This office was separate and distinct from his business, which was carried on at a different place by his brother, J. T. Buss. A Frigidaire electrical refrigerating machine was installed in the office of the witness for the purpose of demonstrating, by the W. P. Galloway Company, of Little Bock, Arkansas, which company was the distributing agent of the Frigidaire Company for this territory. The Buss Market had decided to install at its place of business a Frigidaire machine. -C. L. Buss called the Galloway Company, and requested it to send its representative to his office. A couple of days thereafter Marshall Purvis -and David Galloway, Jr., came to his office. Purvis had formerly been the representative of the W. P. Galloway Company as salesman of the Frigi dair© machine. He it was that 'arranged with C. L. Buss for the installation of the Frigidaire machine in Buss’ office. Purvis, it appears, had left the W. P. Galloway Company, and was engaged in .selling Lipman refrigerating machines for the Galloway & Woodward Company. C. L. Buss had not been inf ormed that Purvis had quit the employ of the W. P. Galloway Company. When Purvis and David Galloway, Jr., came to his office they informed C. L. Buss that his brother, J. T. Buss, had refused to buy a refrigerating machine unless he, C. L. Buss, signed the contract. C. L. Buss, previous to that time, had been trying to persuade his brother to put in a refrigerating machine, so, when Purvis and David Galloway, Jr., who he supposed were representing the Frigidaire people, informed him that his brother was willing to buy if he would sign the 'contract, he replied, “Why, you bet your life, I will sign it.” He took them over to the machine which had been installed at his office for demonstration purposes, and showed them points that he had found in it which he did not know before. They were ready to sign the contract, and asked C. L. Buss to sign, and he told them thiat he preferred for his brother to sign, and they replied, “He will not do so unless you sign it.” Thereupon C. L. Buss signed the contract, and told them that he preferred for the Buss Market to give the check because he, C. L. Buss, was the silent «partner, but he stated that he would give the check if. his brother was not at the market. He signed the contract, and they went down to the Buss Market for the check, and, while one of them was down there waiting for the check, Marshall Purvis came back and «said to 0. L. Buss, “Now, listen: you were under the impression you were buying a Frigidaire, weren’t you?” and Buss said, “You bet I was.”Purvis said, “I am representing the Lipman Company.” C. L. Buss replied, in substance, that he didn’t want the Lipman at all, and he and Purvis and David Galloway, Jr., began to argue about the comparative merits of the Lipman and the Frigidaire, C. L. Buss insisting that he preferred the Frigidaire and Purvis and Galloway insist ing that he take the Lipman. He finally told them he would wait and see if the Frigidaire was satisfactory, and, if not, he would- take the Li-pman. Purvis said, “They have got a Frigidaire on demonstration in the office- here — we will put one -on demonstration in your brother’s -place in the -store -down there.” After further conversation as to the respective merits of the two machines and the prices thereof, C. L. Buss finally consented that the Lipman Company put one in at the market, saying, ‘ ‘ You -can put it in for demonstration, but it is the understanding that I am not going to buy it. ’ ’ At that time Buss had signed the contract, but had not signed -the notes, and informed them that he was not going to sign the notes and that he would not purchase the Lipman unless it was a better machine at the same price. A few day-s thereafter 'Mr. W. P. Galloway went to O. L. Bu-s-s’ office and said to him, “Buss, I understand you thought you were buying a Frigidaire?” and Buss -said, “I -sure did.” Mr. Galloway said, “I regret that; I do not appreciate any salesman of -ours -attempting to get business that way,” and further said, “We are going to discharge him for that.” C. L. Buss replied, “I hate to have that happen, but that’s his business; he knew that I thought I was buying a Frigidaire. ” C. L. Buss made no deal with anybody except Purvis. He went down to the Galloway & Woodward Company land looked at -a Lipman machine. They told him all about it. He told them that somebody was an awful liar about the Lipman, and the only way to show was by demonstration. When the Lipman machine came, they sent C. L. Buss the freight bill, and he refused to pay it. They wanted bi<m to furnish the plumber, but he refused to do that, on the theory that it was not his -duty to furnish a plumber when they were putting- in the machine for demonstration, when the Frigidaire -Company had put in its machine for demonstration without -any expense. Buss concludes his testimony on examination in chief by saying there was not to be any sale until after thirty days and the machine proved to be just what witness wanted, then they would malte the sale. Witness thought Purvis was the Frigidaire man, because he came to witness ’ office and arranged for the demonstration of the Frigidaire there. On cross-examination the witness stated that the first signature on the contract was his and the other was his brother’s. Witness did not look at any part of the contract, nor read it when he signed it. There was no effort made to keep him from reading it, but witness was in a hurry to •go down and get the check before his brother left the market. The only way witness was misled about the contract was that he thought he was dealing with a Frigidaire man. The notes were not to be signed until after the machine was demonstrated, and Purvis stated that witness Avas under no obligation until he signed the notes, and that he would not have to sign the notes until the machine had run thirty days. Witness then told him he could put the machine in on demonstration. The machine was put down'at the market, but had never been installed. Witness h,ad no interest in the siale of the Frigidaire machine. When the Galloway & Woodward Company told Avitness they expected him to pay for the installation of the Lipman, he decided that it Avas a fraud all the way through, and refused to do so.
The testimony of J. T. Buss substantially corroborated the testimony of C. L. Buss.
David GalloAvay, Jr., testified that he was the Galloway & Woodward Company. The contract Avas'turned in by his representative, Purvis. It was accepted !by the witness, and forwarded to the company he represented. When the Lipman machine came, Avitness paid the freight on the shipment. The contract was never canceled by the plaintiffs. After the machine had been delivered, Buss called witness over the ’phone and said he Avanted to cancel the contract. The morning C. L. Buss signed the contract he was in Avitness’ office, laughing over the whole thing as if it were a joke. He said he didn’t know AAffiat the Frigidaire people would say, as he kept one of their machines on display in his office, land thought they Avould get mad. Witness stated that neither of the plaintiffs said anything to witness- about putting a machine on display. The -amount due under the contract was $630, and the -plaintiffs had paid $63. Purvi-s was witness’ salesman on commission. .All contracts he entered into for the sale of the Lipman machine were subject to witness’ approval. Purvis was not discharged from witness’ employ, but left about two weeks -after this machine arrived. Witness knew of mo agreement that Purvis had with the plaintiffs to cancel the contract. The contract was not binding until it was approved by the witness. Purvis had no authority to cancel the contract, and said nothing to witness about it. Witness did not tell Russ that Purvis ’ authority was limited -by the contract. Witness paid Purvis $70.50, his commission on the sale. Witness talked with Russ at his office 'same time after tho contract had been made — probably two or three weeks afterwards. Russ complained that Purvis had led him to believe he was buying a Prigidaire. Witness told Russ that witness did not approve -of that, and did not believe in misrepresenting anything.
Woodward testified that the first he knew of the transaction was when Purvis brought the order into the office. The next day O. L. Russ came to the office and talked with ‘Terry and the Galloways. About two days later he came back, and said he wished to cancel the order because a lot of things had been told him that were not true. Witness and Mr. Galloway, 'Sr., went to see C. L. Russ, and Galloway -said he wanted to talk with C. L. Russ’ brother also, but C. L. Russ replied, “That is not necessary.” In this conversation he said he thought he had bought a Prigidaire, -and that Purvis had misrepresented things to him, hut he made the -statement also that he was glad he had bought a L-ipmlan. Witness then told Russ that they would-put in the machine-on thirty days’ trial, and, if it did not do what they said it would, they would take it back and give him his money back. Russ seemed very well pleased,, and .shook hands with them, and 'they left. Witness testified that, after the machine came and was delivered at the Russ Mjarket, they asked J. T. Russ about the location. A controversy then arose about the plumbers’ work for installation. The contract provided that the plaintiffs would pay for the plumbing. They did not agree to put the machine in on demonstration,-but the agreement was to go on through with the contract and to refund the money if the machine did not make good.
Terry testified, in substance, that he was employed by the defendants as refrigerating engineer. C. L. Russ came to his desk one morning, wanting to know something about the construction and cost of operating á Lip-man machine. Witness explained to him the relative merits of the Lipman and the Frigidaire, and Russ went away apparently satisfied, and .said nothing about canceling the contract. After the machine was delivered at the Russ Market he selected the place for the installation of the machine, but a controversy arose about the cost of installing same, and Russ said he would call witness next morning, but did not do so.
David Galloway, Jr., recalled, further testified that he went with Purvis to C. L. Russ’ office to sell him a Lip-man machine. Witness noticed that he had a Frigidaire in there. Purvis showed witness some adjustments on the Frigidaire. Russ did not sign the contract while they were there. After they left, witness remarked.to Purvis that Russ had the impression that he (Purvis) was representing the Frigidaire, and witness told Purvis that lie should not make a contract under such conditions. Witness waited in the car, and Purvis went 'back in and talked with Russ. When Purvis came back to' the car he said that he had explained to Russ that he was not buying a Frigidaire. When they afterwards went to the Russ Market, Purvis told Mr. J. T. Russ that his brother thought he was buying a Frigidaire, and, when he found out he was not, he said, “Oh, my God, what will W. P. Galloway Company say?” J. T. Russ took it in a laughing way, went in, signed the contract, and gave a check for $63. The contract was then turned in and accepted and mailed back to Russ. It was three or four days after the contract was signed that witness wrote Russ, sending him a copy of the contract. Witness never heard anything aibont the machine being put in for demonstration, but witness’ firm did guarantee them. Witness stated that he-was not present when the contract was signed, but had the impression that C. L. Russ thought at first, that witness and Purvis were representing the Frigidaire.
-0. L. Russ testified, in rebuttal, that he did not sign the contract after it was explained that they were selling Lipmans instead of Frigidaires. The contract was complete when brought to witness, except for his signature. They told witness, after that, that they were selling Lip-mans. They decided to put in the-Lipman machine on demonstration, and witness was asked. to pay for the installation, which he declined to do. Witness did not remember whether he received a copy of the original contract or not. He did not pay any attention to it after he had canceled it and they had agreed to put in the Lip-man on demonstration. It did not make any difference to witness how they handled it. After they had refused to pay for the installation, witness told them 'they -could not put it in at all. Witness had not, at that time, given any order for the Frigidaire, but did afterwards buy a Frigidaire, which the Frigidaire people agreed to put in on a-turn-key .job, just as they had already stated.
J-. T. Russ, on being recalled, denied that he had promised to have the plumbing done for the installation of the Lipmian. He stated that he asked their engineer who would puit it in, and he said that they did not do it. Then he told the engineer that he would call him the next morning.
The contract was in evidence. We deem it unnecessary to set it forth in detail. It is a contract signed by Russ Market, purchaser, by O'. L. Russ, J. T. Russ, and by M. Purvis as salesman, with the notation, “'Contract accepted,” signed by Galloway & Woodward Company, by................................................. By the terms of the contract the defendants proposed to furnish the Russ Market, at Little Rock, Arkansas, f. o. b. Beloit, Wisconsin, a Lip-man refrigerating machine. The machine was to be installed by the seller, and the water and electrical connections were to be installed by the purchaser. The contract contained certain guaranties on the part of the seller and certain promises on the part of the purchaser. The contract was not to be valid or binding on either party until accepted by the seller. The contract specified the terms upon which the payments were to be made, and, in much detail, set forth the agreements of the respective parties for the sale and purchase of the Lipman machine.
The trial court made a general finding in favor of the plaintiff against the defendants, and rendered a decree canceling the contract and for the plaintiffs in the sum of $63, from which is this appeal.
1. We have set forth above the substance -of the testimony, and it appears that the negotiations resulting in the written contract, which the appellee by this action seeks to cancel, were conducted on the part -of the appellant by its agent, M. Purvis, whose name is signed to the contract as salesman. The testimony of Purvis is not in the record, -and no explanation of his failure to testify is given by appellant.
C. L. Russ, who first signed the contract for the appellees, testified unequivocally that, when he signed the contract, he thought Purvis was the -agent of the Frigidaire, and he thought that he was purchasing a Frigidaire machine. He explained why he thought Purvis represented the Frigidaire people by saying that he had been representing that company, and -on Saturday he called the Frigidaire Company and told it to send its representative to see him, that he was' ready to buy, and, on Monday thereafter, Purvis and another man came to see him, and represented that they had seen his brother, who had refused to buy a machine unless he ('C. L. Russ) would sign the contract. He had been trying to persuade his brother to buy a refrigerating machine, and therefore, when the salesman called on him and gave him this information, they talked over the Frigidaire machine in his presence, and induced him to sign the contract by stating that his brother would not sign it unless he signed it. He further stated thiat he did not know at the time he signed the contract that Purvis was no longer representing the Frigidaire Company.
David Galloway, Jr., who went with Purvis to see C. L. Russ, testified that he was present when they were discussing refrigerating machines. He does not testify that he or Purvis represented to C. L. Russ that they were attempting to sell him a Lipman instead of a Frigidaire. He corroborates Russ ’ testimony to the effect that Purvis showed Russ certain adjustments on the Frigidaire which had been installed in Russ’ office; and, while David Galloway, Jr., testified that Russ did not sign the contract while the three of them were talking about refrigerating machines, nevertheless he .states that, after they had left, he (Galloway) remarked to Purvis that Russ had the impression that Purvis was representing the Frigidaire, and 'that he should not make a contract under such conditions; thiat Purvis thereupon went back and tallced with Russ, and returned with the contract, and stated that he had explained to Russ that he was not buying a Frigidaire. But this statement as to what Pnrvis told him when he returned to the car was mere hearsay, and leaves the testimony of C. L. Russ undisputed that, when he signed the contract, he thought he was purchasing a Frigidaire machine and that Purvis was representing that company.
The testimony of David Galloway, Jr., corroborates the testimony of C. L. Russ to the effect that, while witness and Russ and Purvis were talking about the purchase of a refrigerating machine, C. L. Russ was left under the- impression that Purvis was representing the Frigidaire Company, and not the Lipman Company. He. was not present when Purvis went back, as he says, to correct that impression, and therefore he could not know whether Purvis did correct that impression or not. Therefore, according to the only competent testimony on this issue, it must be taken as proved that, at the time C. L. Russ signed the contract under review, he was under the impression that Purvis represented the Frigi daire Company and was selling him a Frigidaire machine, and that Purvis and David Galloway, Jr., knew that C. L. Russ was under that impression. Although C. L. Russ was one of the appellees,' his testimony explaining why he did not read the contract before signing same is perfectly reasonable and consistent. He had a Frigidaire on demonstration in his office, was familiar with it, and wishe’d to purchase same, and thought he was doing so, as Purvis had been representing the Frigidaire Company, and did not inform him that he was no longer representing'that company, but, on the contrary, left him under the impression that he was still representing the Frigidaire Company. The explanation of why. he did not read the contract under the circumstances is clear, convincing and decisive.
The case, under the facts, comes squarely within the doctrine announced by the authorities generally, and by our own court, that, where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties to a contract, the same may be reformed or canceled to conform to the intention of the parties, where there is an agreement; or rescinded or canceled in toto' where there has been no meeting of thé minds. See Welch v. Welch, 132 Ark. 227, 234, 200 S. W. 139, and cases there cited. The rule is well expressed by.Mr. Black, in his work on Rescission and Cancellation, vol. 1, page 366, § 130, as follows:
“Where one of the parties to a contract is laboring under a material mistake as to a matter of fact, and the other party is aware of the mistake, and seeks to take advantage of it, knowing that the enforcement of the contract as made will result in an unwarrantable advantage to himself, with corresponding loss to the other party, his conduct is so unconscionable as to jusr tify the interference of a court of equity to rescind the contract or prevent its enforcement.” See cases cited in nóte; also C. H. Younger & Co. v. Springer, 113 Minn. 382, 129 N. W. 773, syl. No. 2.
In 13 O. J., at page 374, §§ 257, 258, it is said: “If a mistake on the part of one of the parties to. an agreement is caxisod by the other, it may entitle him to avoid the contract. One is not permitted to accept a promise which he knows that the other party understands in a different sense from that.in which he understands it. In such ¡a case there is no agreement.” See oases cited in note.
Learned counsel for appellants invoke the doctrine which has always been, and still is, adhered to by this court, that one who signs a contract, after opportunity to examine it, cannot be heard to say that he .did not know what it contained. See Colonial & U. S. Mortgage Co. v. Jeter, 71 Ark. 185, 71 S. W. 945; Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S. W. 880; Stone v. Special School Dist., 119 Ark. 553, 178 S. W. 399; 6 R. C. L. 624. But in these cases there was no circumstance tending to show that the signature of one of the parties to the contract was procured through fraud, or trickery, or inequitable conduct upon the part of the other party to the contract. These cases are clearly differentiated from the case at bar by the facts, because here there were circumstances of fraud, trickery, or inequitable conduct on the part of one of the parties to the contract which caused the other party to sign the same under a mistake of fact, without reading the contract. Purvis and David Galloway, Jr., both knew that C. L. Russ thought that he was negotiating with them for the purchase of a Frigidaire machine. Under the circumstances it was incumbent on them to tell him, before he signed the contract, that he was mistaken. Candor and fair dealing demanded this much at their hands. Here the testimony of C. L. Russ convincingly proves that there was inequitable conduct on the part of Purvis, which amounted to fraud, if the appellants are allowed to reap the benefits of the written contract. Russ’ testimony clearly shows circumstances which excuse his failure to read the contract before signing it. Therefore the contract must fall. The trial court did not err in so holding.
2. The above issue involves the crux of this lawsuit. It was not necessary for the appellees to tender to the appellants the Lipman machine as a condition precedent to their right to maintain this action. The appellees were asserting no right or title to that machine under the written contract; they contended, and the preponderance of the evidence showed, that they made no claim whatever to the Lipman machine. 0. L. Russ and J. T. Russ contend that the Lipman machine was delivered at the Russ Market, not under the written contract, but under an oral agreement, to be installed for the purpose of demonstration, and that the appellants were to pay for the installation, which the appellants refused to do, and that the appellees thereupon notified the appellants that they would not accept the Lipman machine, and were informed by appellants that they thought they could hold the appellees under the written contract. Under these circumstances the appellees were» not required to tender to appellants the Lipman machine before the appellees could maintain their action for rescission and cancellation of the written contract. A tender is not required where it is evident that it will not be accepted. Dickinson v. Atkins, 132 Ark. 84-94, 200 S. W. 817, and cases there cited. See also Black on Rescission and Cancellation, vol. 2, § 625.
3. The trial court, under its general finding, must, have found against the appellants on the issues of fact upon which they bottom their contention that appellees have waived their right to cancellation, and are estopped by their conduct from maintaining the action.
After a careful consideration of the record we cannot say that the finding of the trial court on these issues is clearly against the preponderance of the evidence. The decree of the trial court is therefore correct, and it is affirmed. | [
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Humphreys, J.
Appellant instituted this suit in the chancery court of Mississippi County, Chicksawba District, against appellees to recover $1,613.50 lost by him on account of the alleged wrongful withdrawal and 'appropriation of funds to that amount by one of the appellees, S. J. Matthews, from his coappellee, Leachville Farm and Development Company, in which Matthews was a stockholder.
S. J, Matthews filed a separate answer denying the material allegations in the 'bill, and alleging that, prior to the institution of the suit, his coappellee had settled all of its debts, including appellant’s claim against it, and it surrendered its charter.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismassal of the bill for the want of equity, from which is this appeal.
The facts are in substance as follows: S. J. Matthews and nine associates organized the Leachville Farm and Development Company, in the month of October, 1919, for the purpose of purchasing, developing and selling real estate, with a capital stock of $32,000, consisting of 1,820 shares of the par value of $25 each. Each stockholder subscribed for 128 shares of stock, and made a cash payment thereon of $500 each, making a total payment of cash on stock to the corporation of $5,000. Most of this money was used in making the first payment on a 360.5-acre tract of land which the corporation purchased for $32,625. It made a cash payment of $3,638 and assumed an indebtedness thereon of $28,987 to Virgil MacKay, who had a deed of trust upon the land to secure such sum. The corporation divided the land into small tracts and sold them on deferred payments, giving’ the purchaser bonds for title. Sixty acres along the Blytheville-Manila-Leachville hard road was divided into tracts of approximately six acres each, numbered from one to ten inclusive and sold to the stockholders for $80 an acre upon deferred payments. S. J. Matthews purchased lot 2, and afterwards sold his equity therein to appellant for $913.50, and, by and with the consent of the corporation, assigned his contract of bond for title to him. Appellant assumed and agreed to pay the deferred payments to the corporation, and paid it $80 in 1920 and the same amount in 19'21. Practically all the other purchasers made default in the payment of the second installment, and, on that account, the corporation was unable to pay the mortgage upon the land to MacKay without requiring the stockholders to pay the ■balance due upon their stock. The corporation decided to raise enough from the stockholders to refund the purchasers of the several tracts the payments they had made thereon, and, upon the surrender of their bonds for title, to deed the whole track back to MacKjay in settlement of his mortgage, amounting to $28,980 and interest, if it could effect such an arrangement with the purchasers and MacKay. This arrangement was effected, and a sufficient sum was procured from the stockholders to refund the purchasers the amounts they had paid. Each purchaser, including appellant, accepted the amount he had paid to the corporation and surrendered his bond for title, whereupon the corporation conveyed the entire traqt to MacKay in full settlement of his debt. It then paid what few debts it owed, and surrendered its charter.
Afterwards appellant rented from MacKay the six-acre tract which he had purchased from Matthews. During the time appellant occupied the six-acre tract as purchaser he placed several hundred dollars in improvements thereon.
Appellant contends for a reversal of tlie decree upon the theory that the corporation did not force its stockholders to pay tlie 'balance due upon their stock and use the money to pay the mortgage indebtedness to MacKay so it could have carried out its contract with appellant and others. The argument is made that the method adopted for winding up the affairs of the corporation amounted to a withdrawal of the assets of the corporation by Matthews and the other stockholders, thus causing him to lose the amounts he paid Matthews and expended in improvements upon the property. In other words, he contends that he is entitled to recover his losses by subrogation to the rights of the corporation to collect the balance due it from Matthews upon his stock subscription. After settlement by the corporation with its creditors it had a right to surrender its charter, by and with the consent of its stockholders, and, when the stockholders decided to dissolve the corporation and discontinue business, it had no claim against the stockholders to which any one could be subrogated. Appellant clearly lost his rights to specifically enforce his contract by surrendering his bond for title for a consideration. In so doing he clearly estopped himself from recovering any damages from the corporation or its stockholders on account of unpaid subscriptions growing out of th© transaction. He did not allege or attempt to prove that any fraud was practiced upon him, either by the corporation or Matthews.
No error appearing, the decree is affirmed. | [
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Hart, J.
The Louisville Silo & Tank Company brought this suit against John it. Crawford to recover on a promissory note for $1,OQO. By consent of the parties, the cause was heard before the circuit court sitting as a jury.
The court made the following findings of fact and declarations of law:
“This action is instituted by the plaintiff against the defendant to recover the sum of one thousand dollars on the promissory note offered in evidence. The defendant answered denying the right of the plaintiff to maintain this action because of the failure of the plaintiff to domesticate itself by compliance with the act of 1907. The plaintiff admitted such failure to comply with the laws of the State, Acts of 1907, but denied it was doing business within the purview of the act of 1907.
“The undisputed evidence shows that Earl Rhodes, agent for the plaintiff, solicited and obtained a written order from the defendant, which, together with other orders, was transmitted to the plaintiff company- and sales confirmed, and the granaries shipped in a car to Stuttgart, freight bill made to Barle Rhodes, Stuttgart, Ark., and car received and freight paid by Rhodes, and the granary in controversy was delivered to the defendant either from the car or platform of the common carrier, the railroad company. The shipment originated in the State of Ohio. These transactions occurred in 1918. In July, 1920, the president and - another representative of the plaintiff company called upon defendant, and, after some negotiations, reached an agreement by which an allowance was made defendant, and a note executed for the sum. of $1,000. The defendant had stored his rice crop there in 1919, and continued to store some rice there in 1920,1921 and 1922. Certain repairs were made, or attempted to be made, on the granary at the time the president of the company procured the note sued on. The court finds the fact to be that plaintiff was not doing business in the State at the time of the sale or delivery of the granary; that the transaction was one of commerce between citizens of different .States, and therefore the act of 1907 has no application. That the renewal note waived all defenses pleaded and relied upon by the defendant as to any bréach of warranty .and misrepresentations claimed to have been made in the sale of the granary, and it therefore follows that plaintiff is entitled to judgment for the .amount of the note, together with interest, as provided therein.”
The findings of facts made by the court are borne out by the evidence in the record, and, in addition thereto, it may be stated that, while the granaries were all shipped in the same car, each one was marked in the name of the purchaser.
The. defendant has appealed from a judgment against him in favor of the plaintiff.
The sole reliance for a reversal of the judgment is that the circuit court erred in holding that the sale was a transaction in interstate commerce, and beyond the regulatory power of the State.
Upon this question this court must be governed by the decisions of the Supreme Court of the United 'States. The contention of counsel for the defendant has been 'decided adversely to him in Rogers v. Arkansas, 227 U. S. 401. There, as here, the corporation had no permanent place of business in the State of Arkansas, and its agents solicited orders, to be approved by the home office outside of the State. Vehicles to fill, the orders, tagged with the names of the purchasers, were shipped in carload lots from their place of manufacture without the' State to a point in the State near where they were to be delivered. The vehicles were consigned to the com pany. They were delivered by the agents of the selling ■ company to the purchasers whose names appeared upon the tags attached to the vehicles. The court held that this was merely a matter of detail in the manner in which the business was conducted, and did not affect its character as interstate commerce.
In the instant case the order for the granary was signed by the defendant, subject to the approval of the plaintiff at its home office outside of the State. The granary, with others, each marked with the name of the purchaser, was shipped in the same car, and they all were consigned to the agent of the plaintiff. The granary was delivered to the defendant by the agent of the plaintiff. So it will be seen that the facts are in all essential respects the same as those in the Rogers case, and constitute a transaction in interstate commerce.
Our later cases on the subject sustain this view of the law.
In Hogan v. Intertype Corporation, 136 Ark. 52, a foreign corporation shipped into the State, to its own order, a type-setting machine which Hogan had agreed to purchase if a man would set it up and demonstrate that the machine would do the work represented. It will be noted in that case that the sale'was not completed until the demonstration was made to the satisfaction of the prospective purchaser. Therefore the transaction was held to be an intrastate one.
In Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, an order for books was accepted by a foreign corporation at its home office and the books delivered there to a transportation company for shipment to the purchaser in this State. The sale was complete in the foreign State, subject to the seller’s right to retake under the contract in case the purchaser failed to pay for the books in accordance with the condition -upon which they were purchased. The sale and purchase in this case was therefore held to be wholly a transaction in interstate commerce.
It follows from our own decisions, as well as those of the Supreme Court of the United States, that the facts as they appear in the record show the transaction in this case to be one in interstate commerce.
Therefore the judgment will be affirmed. | [
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Hart, C. J.,
(after stating the facts). The record shows that the complaint of E. M. and C. 0. Tate against J. M. Gould for an accounting and 'division of the profits arising from their purchase and sale of Arkansas road bonds was dismissed in the chancery court because the evidence showed that all the parties were guilty of such illegal conduct in the course of the various transactions that they were not entitled to relief in a court of eqidty. At the outset it may be proper to state the principles of law which govern transactions of this character.
In the case of Security Mutual Life Ins. Co. v. Little, 119 Ark. 498, 178 S. W. 418, L. R. A. 1917A, 475, it was held that courts will not aid any party to a contract which-is void as against public policy, either to enforce its provisions on the one hand or to permit the recovery of money paid in the performance of its conditions on the other. In that case it was held that certain contracts of insurance were void as against public policy because the beneficiary had no insurable interest in the parties whose lives Avere insured. Earlier cases of the court, recognizing- the same principle of laAV as applied to A^arying facts, were cited and revieAved.
In Mitchell v. Fish, 97 Ark. 444, 134 S. W. 940, 36 L. R. A. (N. S.) 838, it Avas held that, although a contract of partnership between a man and a woman was. tainted Avith illegality or immorality, yet if the contract has been executed by the A'oluntary acts of the parties and a division of profits agreed upon, the courts will enforce the settlement. In that case there Avas a relation of concubinage between the parties, and the court said that, although the partnership between them may have been illegally formed on account of the consideration for it being- the living together of the parties illegally as husband and wife, yet, where the contract had been completely executed and a division of the profits had been agreed upon, such a division of profits formed a new contract which the partner entitled to a share of such profits might enforce in the courts.
A leading case on the subject is that of McMullen v. Hoffman, 174 U. S. 639, 19 S. Ct. 839, 43 L. ed. 1117. In that case it was held that the contract was illegal, not only as tending to lessen competition at a public letting of a contract by the city of Portland, Oregon, but also because the parties had committed a fraud in combining their interests and concealing the same, and in submitting the different bids as if they were bona fide. It was expressly held that, in such a case, the court will not lend its assistance towards carrying out the terms of an illegal contract, nor mil it enforce any alleged rights directly springing from such a contract. In that case the court recognized that there might be honest cooperation between public contractors, although it might prevent their rivalry and thus lessen competition. This was on the ground that joint adventures are allowed where the risk as well as the profit is joint and openly assumed. The reason is that, in such cases, the public may obtain the benefit of the joint responsibility, and the whole transaction is disclosed, and the public agent can weigh the merits of the bid and estimate the motives of the bidder.' In discussing the question the court said:
“We must therefore come back to the proposition that, to permit a recovery in this case is, in substance, to enforce an illegal contract, and one which is illegal because it is ¡against public policy to permit it to stand. The court refuses to enforce such a contract, and it permits defendant to set up' its illegality, not out of any. regard for the defendant who sets it up, but only on account of the public'interest. It has been often stated in similar cases that the defense is a very dishonest one, and it lies ill in the mouth of the defendant to allege it, and it is only ¡allowed for public considerations and in order the better to secure the public against dishonest transactions. To refuse to grant either party to an illegal contract judicial aid. for the enforcement of his alleged rights under it tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that, when they enter into contracts of this nature, they place themselves outside the protection of the law, so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law. ’ ’
In the application of these well-settled principles of law to the facts in the case at bar, we are of the opinion that the chancery court properly held that the complaint of ]R. M. and C. 0 Tate against J. M. Gould for an accounting and division of the profits arising from their dealings in Arkansas road bonds should be dismissed for want of equity.
The record shows that J. M. Gould and it. M. and C. 0. Tate entered into a joint adventure for the purpose of dealing in Arkansas road bonds. The testimony is very voluminous, and enters into the details of the various transactions between the parties in the course of their dealings, which extended over a period of several years. No useful purpose will be served by setting out the testimony in full or discussing it in detail. The record plainly shows that it was the intention of the parties to use illegal means to induce the commissioners to sell them the bonds of various road districts. In one instance it is shown that they agreed with a rival bond broker that, if he would not enter into competitive bidding- with them for the bonds of a certain road district, they would share the profits with him. This fact was concealed from the commissioners of the road district. In other cases it was shown that money was paid to persons supposed to have influence over the road commissioners to induce them to sell the bonds of the road district to the parties to this suit. In still other instances it is inferable that money was furnished to those directly interested in selling the bonds to induce them to sell the bonds to the parties to this suit. These various acts were known to the plaintiffs as well as to the defendants to this action. Consequently it presents such a state of facts as bring the various transaction -with regard to the road bonds within the principles of law above stated. It was in contemplation of the parties that the transactions should be carried on by illegal as well as legal means, and distinct illegality runs through the whole course of their dealings and taints the whole joint adventure from beginning to end. Hence the chancery court properly held that the parties were not entitled to an accounting with respect to the alleged profits or to enforce their contract in any wise whatever in a court of equity.
It will be observed that the record presents an essentially different state of facts from that shown in Mitchell v. Fish, 97 Ark. 444, 134 S. W. 940, 36 L. R. A. (N. S.) 838. In that case the parties to the illegal transaction had fully performed their contract and had agreed upon the amount of profits due each one of the parties. Nothing remained to be done except for one of the parties to pay over to the other his share of the profits. The court-said that, under the circumstances, a new contract had been entered into -which wms collateral to and not contaminated by the original contract. In the case at bar the very object, of the suit is to secure an accounting between the parties, and the facts bring the case squarely within the principles of law above announced, which do not allow recovery where the contract sought to be enforced is void on account of being against public, policy. Hence we are of the opinion that the transaction out of which the profits are alleged to have been derived in the present case was illegal and entered into for improper-purposes, and a court of equity will leave the parties as it finds them.
Counsel for J. M. Gould seek to uphold the judgment in his favor against R. M. Tate, for the amount of the notes sued on, on the ground that this transaction was not tainted with the illegality of their dealings in road bonds. No rule of evidence is violated by admitting oral proof of the consideration for a promissory note for the purpose of showing want or failure of consideration, or . illegality of consideration. Little v. Arkansas National Bank, 105 Ark. 281, 152 S. W. 281.
Counsel for appellees rely principally on the testimony of J. M. Gould, which is as follows-:
“Q. Do you or did you know for what purpose that money was borrowed on the two notes which you indorsed? A. No sir, I did not know that. Q. It was not in connection with your and Mr. Tate’s business? A. No sir; Bob and Charley (Tate) told me they were in the oil business in Louisiana, and that they wanted that for that purpose. Not a dollar of it went into our business. They Avere pressed for money in Louisiana, and I indorsed their notes for them. My indorsement Avas purely an accommodation. ”
In this connection we call attention to the testimony of R. W. Gould, a son of J. M. Gould, who was a Avitness for his father. After testifying that his father and the Tates had entered into a contract whereby they settled the various road bond issues they Avere to participate in, he said that he remembered that, some time prior to this, R. M. Tate told his father that, if he Avould indorse some paper for him and help him pull out of a bad mess, he would waive all participation in any contract in Avhich he was interested. Again, in his testimony, he speaks of times when his father Avent fully into the matter of undelivered road bonds AAdth the Tates in Avhich they were interested, 'and on account of which his father had indorsed Tate’s notes in a large sum.
According to the testimony of R. M. Tate, these indorsements of his notes by J. M. Gould, were to be met out of the profits Avhich should arise in the various bond transactions; The various contracts with the road districts for the purchase of their bonds were taken in the name of Gould because he was better known in the bond market, and it was contemplated between the parties that Gould should reimburse himself out of the profits Avhich should come into his hands from the purchase and sale of these Amrious road bonds.
According to the testimony of Gould, a settlement was had 'between the parties at the time of the purchase and sale of the bonds of each road district. This was denied by E. M. Tate. According to his testimony, Gould then told them that no profits Avere derived from a group of road districts in Southwest Arkansas, and that, long afterwards, he discovered that Gould had made $20,000 out of the purchase and sale of bonds in this group of road districts. Gould denied the statement that he made money out of this group of districts.
Be that as it may, it is fairly inferable from the evidence in the case that Gould indorsed the notes of the Tates because they Avere associated together in the purchase and sale of Arkansas road and other improvement district bonds, and it was contemplated that he should be reimbursed or paid for signing these notes out of any proceeds arising from the sale of the bonds in Avhich the parties were jointly interested which might come into his hands. This is shown by the testimony of E. "W. Gould as well as by that of E. M. Tate. E. W. Gould testified that E. M. Tate had told his father that, if he Avould indorse some paper and help him pull out of a bad mess, he would waive participation in any contract in which he was interested. This testimony could have reference to the indorsement of no other notes than the ones sued on, for it does not appear that Gould indorsed any other notes of Tates. Thus, it Avill be seen that his indorsement of the notes \ATas a matter growing out of their joint adventure in dealing in Arkansas road and other improvement district bonds. It does not matter A\7hat. the Tates used the money for. That was not the question. ¥e are only concerned with the question of whether or not his indorsement of the notes was a part of their joint adventure in dealing in Arkansas improvement district bonds, and, for the reasons above given, we are convinced that it grew out of and was a part of such transactions. In this vie\v of the matter it does not make any difference that Gould brought suit at law. An illegal contract can no more be enforced at law than in equity. This will be seen by reference to the case of Mutual Life Ins. Co. v. Little, 119 Ark. 498, 178 S. W. 418, L. R. A. 1917A 475, and the cases cited in it.
It is true that the other two cases cited in this opinion arose in the chancery court, but this was because an accounting was sought between the parties which gave jurisdiction. to a court of equity. The principles announced apply with as much force in a court of law as in a court of equity. The principle equally applies that, where a contract is illegal or void as contrary to public policy, a law court as well as an equity court will leave the parties as it finds them.
The result of our views is that the chancery court erred in allowing J. M. Gould to recover against E. M. Tate for the amount of the notes sued on, and, for that error, the decree will be reversed, and the cause remanded, with directions to the chancery court to dismiss the complaint of J. M. Gould against E. M. Tate and C. 0. Tate. In all other respects the decree of the chancery court will lie affirmed. It is so ordered. | [
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Wood, J.
This action was begun by the appellants as trustees of the Methodist Episcopal Church South at Smackover, Union County, Arkansas, against the appellees to recover the possession of the east half of lot 1, block 47, of said town. Appellants alleged that, on the 21st of October, 1899, the lot mentioned was conveyed by warranty deed from E. L. Murph and wife to J. W. Young and P. V. McDonald, the then trustees of the church; that the trustees immediately entered into possession and held continuous possession until the month of September, 1922, when the appellees took possession, without right, of subdivision lots 3, 4, 5 and 6 of lot 1, block 47, above mentioned, and were claiming to be the owners and entitled to the possession thereof. Appellants prayed for possession and for damages for wrongful detention.
The appellees answered and denied all the allegations of the complaint, and alleged that there was a mistake in the description of the land conveyed in the said deed from Murph and wife to the trustees mentioned; that the church, through its trustees, purchased from Murph and wife only the east half of subdivision lots 1 and 2 of lot 1, block 47, and that it was the mutual intent of the parties that the deed should cover only those lots. The appellees further alleged that, in 1909, Murph and wife conveyed to Dekalb McDonald, by warranty deed, the east half of subdivision lots 3, 4, 5 and 6 in lot 1, block 47, which deed was duly filed for record; that Murph and wife had sold to McDonald the lots mentioned in 1905, and that he went into possession of the lots in that year, although the deed was not obtained until 1909; that he and his successors had been in the actual, open, notorious and adverse possession thereof and paid taxes thereon since the year 1905. Appellees alleged the transfer by McDonald to the other appellees and asked for a confirmation of the title in the appellees.
Three separate actions were begun in the circuit court, and the causes, on motion of the appellees, were transferred to the chancery court, where the same were consolidated for hearing. The appellees, by stipulation, admitted that the deed was executed by Murph and wife to the trustees of the church, as alleged in the complaint. The court heard the cause upon the pleadings, documentary evidence, and the testimony of witnesses taken ore tenus before the court, which testimony was after-wards reduced to writing, duly authenticated, and brought into the record. The court found generally in favor of the appellees, and entered a decree in their favor, from which decree is this appeal.
We find it unnecessary to discuss the issue as to whether there was a mutual mistake between Murph and wife and the trustees of the church, by which Murph and wife conveyed the EVz of lot 1, block 47, in the town of Smackover, Arkansas, instead of the Eli of subdivision lots 1 and 2 in the east half of lot 1, block 47,, as contended; by the appellees. For, conceding without deciding that there was no mutual mistake in this deed, nevertheless we find that the appellees have acquired title to the lots in controversy by the seven years ’ statute of limitation. The testimony of the appellees on the issue of the statute of limitation is substantially as follows :
D. McDonald testified-that he purchased the lots in controversy from Murph in 1907. He fenced the property before Murph and wife executed the deed. Murph at the time was living in Smackover, and witness got the lots from him, and about that time Murph moved to Junction City, and told witness he would make the deed, and he did make the same after he got to Junction City. The deed was executed August 23,1909, and duly recorded on July 15, 1910. Witness built his house, on some of the lots, and the other he fenced and used as a pasture. The fence didn’t include all of lots 3 and 4. He supposed there were 25 or 30 feet between his fence and the EVz of lots 1 and 2. Witness had always claimed the property as his own, and used the same as a pasture. At the time he fenced the property he didn’t know who the trustees of the -church -at Smackover were. They raised no objection to- witness’ fencing the property, and laid no claim to the property prior to the institution of the suit. At the time the deed was executed in 1909 the lots were worth approximately $2.50 or $3 each. At the time of the institution of this suit the lots had increased in value, on account of the discovery of oil in the vicinity of Smackover, till their reasonable value was $300 each. The first fence witness built around the property remained there until the oil boom. The first fence was a plank fence, and when it rotted down it was replaced by one of woven wire. When -the boom came, witness tore the fence away and opened up all streets and alleys he had fenced.
Tax receipts were in evidence showing that D. McDonald had paid the taxes on the E% of lots 3 and 4, and on 5 and 6 of lot 1, block 47, from 1909 to 1922, inclusive.
There is a sharp conflict in the testimony of the witnesses as to the boundaries of appellees’ inclosure under his deed from Murph. The appellants contend, and the testimony of E. H. and Gr. M. Cannon was positively to the effect, that D. McDonald’s fence was on the line between lots 4 and 5, and therefore only inclosed lots 5 and 6 of the lands embraced in his deed from M;urph, leaving lots 3 and 4 embraced in the deed uninclosed, with no improvements on them. On the other hand, the testimony of the witnesses for the appellees tended to prove that D. McDonald’s fence inclosed all of subdivision lot 4 and a portion of subdivision lot 3 of lot 1, block 47, town of Smackover. The lots were 25x75 feet, and the church building occupied the center of subdivision lots 1 and 2 of lot 1, block 47. The building was 39x40 feet. The church had never placed an inclosure around the E% of lot 1, block 47, and the space covered by the church building is the only visible manifestation of adverse occupancy. There is no testimony tending to prove that the church had ever inclosed subdivision lots 3 and 4 and lots 5 and 6 of lot 1, block 47, town of Smack-over. Such being the facts in the case, the law applicable to these facts clearly places the title to the lots in controversy in the appellees by limitation.
As to lots 5 and 6 of the land in controversy, the testimony is undisputed that they had been inclosed by D. McDonald since 1907, and that he had been in the actual, open, continuous, and adverse possession of these lots since that time. If it be conceded that Murph had no legal title to the lots in controversy at the time he conveyed the same to McDonald, nevertheless his deed embraced lots 5 and 6 and subdivision lots 3 and 4 of lot 1, block 47, in the town of Smackover. McDonald went into possession of lots 5 and 6, as the undisputed proof shows, by inclosing the same as a pasture, and his actual pos session of lots 5 and 6 would give Mm constructive possession of subdivision lots 3 and 4, as they, too, were included in Ms deed from Murph. See Fletcher v. Joseph, 105 Ark. 646; Johnson v. Elder, 92 Ark. 30; Snow v. State, 85 Ark. 203; Van Etten v. Daugherty, 83 Ark. 534. See also Morehead v. Dyer, 134 Ark. 548; Hargis v. Lawrence, 135 Ark. 321; Carter v. Stewart, 149 Ark. 189.
Conceding that the church had legal title to the lands in controversy at the time Murph executed his deed to McDonald, and that, as such owner, it had actual possession of subdivision lots 1 and 2, on which the church was built, and constructive possession as the owner of all of lot 1, block 47, town of Smackover, nevertheless the deed from Murph to McDonald and the actual possession by him thereunder of lots 5 and 6 was an actual invasion and possession adverse-to the rig’hts of the church, and carried with it, under the rule stated, constructive possession to lots 3 and 4. Ringo v. Woodruff, 43 Ark. 469; Woolfolk v. Buckner, 60 Ark. 163; Haggart v. Raney, 73 Ark. 344; Hardy, v. Investment Guaranty Co., Ltd., 81 Ark. 141.
The case of Hargis v. Lawrence, supra, upon which the appellants rely, under the facts as we view them, does not support their contention, but is rather an authority against them. There Hargis was claiming two small tracts under a deed to an entire tract of land of which these smaller tracts were a part. Those who claimed the small tracts had entered into possession of a part of those tracts, and thus had constructive possession of all of the -small tracts, whereas Hargis had never taken actual possession of either of the small tracts nor any part of the entire tract which included them, and did not hold adversely to the claimants of same. We held that his deed to the whole tract and the payment of taxes thereon would not avail him and give him title as against those who were in actual -adverse possession of the small tracts. Here McDonald, as the facts show, had entered and was holding adverse possession of lots 5 and 6 under Ms deed, and, by thus taking the actual possession and holding adversely to the church, be bad also-constructive possession of lots 3 and 4, because they were likewise included in bis deed, and, under tbe doctrine of tbe above cases, including Hargis v. Lawrence, be acquired title by adverse possession not only to lots 5 and 6, but also to subdivision lots 3 and 4, in lot 1, block 47, town of Smackover. If McDonald bad not taken possession of any part of tbe land described in Ms deed from Murph, His position would be analogous to that of Hargis in the above ease.
Tbe decree of tbe court is in all things correct, and it is therefore affirmed. | [
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McCulloch, C. J.
The appellee, Mrs. Almyra O. Brown, was, on February 9, 1921, the owner of a farm in Washington County, containing 285 acres, which is the subject-matter of this controversy, and on that day she conveyed it to Thomas E. Baldwin, the sum of $7,000 being recited in the deed as the consideration for the conveyance. This consideration was in fact paid by the delivery to Mrs. Brown by Baldwin of seven so-called gold bonds of the 'Southwestern Oil & Livestock Association, of Fort Worth, Texas, an unincorporated concern doing business as a common-law trust. The b'onds were- each of the denomination of $1,000, bearing interest at eight per centum per annum, payable annually. Baldwin conveyed the land to Josephine Bradley, wife of F. L. Bradley, by deed dated February 12, 1921, but which was not filed for record until February 28, 1921; and on the last-mentioned date Mrs. Bradley mortgaged the land to Mrs. Lucy Wilson to secure a loan of money in the sum of $1,200. This mortgage was filed on the same date. On that date (February 28, 1921) Mrs. Brown instituted this action in the chancery court of Washington County against Baldwin to-cancel the conveyance on account of alleged misrepresentations concerning the value -of the -bonds which were delivered as the consideration for the conveyance. S. K. Leskey was joined as defendant in the suit, on an allegation that he claimed a lien on the land, but it does not appear that Leskey was ever served with process, and he has passed out of the -suit. Appellee filed a lis pendens under the statute -on the day that the suit was instituted. At that time appellant was not apprised of the conveyance from Baldwin to Mrs. Bradley, nor of the mortgage executed by Mrs. Bradley to Mrs. Wilson. Subsequently appellee amended her complaint and joined as defendants Mrs. Bradley. and Mrs. Wilson, alleging that neither of them were innocent purchasers for value, and also bringing in, as parties defendant, F. L. Bradley and George A. Hurst, alleging that they participated in the fraudulent misrepresentations by aiding Baldwin in inducing appellee to convey her land for the consideration named. Mrs. Wilson filed an answer, denying that she had knowledge of the fraud alleged to have been perpetrated on appellee, and she asked that appellants, Baldwin, Bradley and Hurst, be made parties, and that, if the court canceled her mortgage, she have judgment over against appellants for the amount of her debt.
The cause was heard by the court upon the pleadings and exhibits and the depositions -of numerous witnesses, whose names were set forth in the decree, and the court found in favor of appellee upon the charge of fraudulent misrepresentations, and canceled her deed to Baldwin and the deed from Baldwin to Mrs. Bradley, but found that Mrs. Wilson was an innocent mortgagee, and the decree vested title to the land in appellee, subject to Mrs. Wilson’s lien as mortgagee. The court also rendered a decree in favor of appellee for the recovery from Baldwin, Bradley and Hurst of the amount of Mrs. Wilson’s mortgage debt, with interest.
Baldwin, Bradley, Mrs. Bradley and Hurst prayed .an appeal, which was granted by the chancery court, and appellee also prayed an appeal from the decree in favor of Mrs. Wilson. This decree was rendered on November 23, 1922, and none of the appeals were perfected within ninety days, as required by statute, but on May 7,1923, Baldwin, Bradley, Hurst and Mrs. Bradley filed an authenticated copy of the record with this court and prayed an appeal, which was granted by the clerk of this court. Appellee obtained a cross-appeal on November 11, 1923.
There is a conflict in every phase of the testimony, and w.e are unable to determine where the preponderance lies, for the reason that the deposition of one of the witnesses, J. C. Barthell by name, is omitted from the’transcript. The record entry of the decree recites the name of this witness as one of the deponents in the trial of the case, but his deposition is not in the record. The clerk certifies that the record is complete, but,' there being a conflict between the recital of the decree and the certificate of the clerk, the former must prevail. Weaver-Dowdy Co. v. Brewer, 129 Ark. 193; Massey v. Kissire, 119 Ark. 222. The absence from the transcript of part of the testimony in the case raises the presumption that the decree was correct. It is therefore unnecessary, to discuss the testimony in further detail.
.It is insisted by appellant that some of the testimony of the witnesses was incompetent, but we must indulge the presumption that the court only gave consideration to such testimony as was competent and relevant. Niagara Fire Ins. Co. v. Boon, 76 Ark. 153.
It is .also contended that the personal decree in favor of appellee for recovery of the amount of Mrs. Wilson’s mortgage debt is erroneous on its face, for the reasons, (1) that appellee’s complaint contained no prayer for such relief, and (2) that appellee had no right of action for such recovery until she was compelled to pay the debt.
It is true that the complaint contained no specific prayer for such relief, but it contained a prayer for general relief, in addition to the specific prayer for cancellation of all the deeds, including the mortgage to Mrs. Wilson.
The rule established by decisions of this court is that the statement of facts, and not the prayer for relief, constitutes the cause of action, and that the court may grant any relief that the pleaded facts warrant under a prayer for general relief, or without any prayer at all. Kelly’s Heirs v. McGuire, 15 Ark. 555; Chaffee v. Oliver, 39 Ark. 531; Sannoner v. Jacobson & Co., 47 Ark. 31; Ashley v. Little Rock, 56 Ark. 391; Waterman v. Irby, 76 Ark. 551. An exception to this rule is that “the court will not suffer the defendant to be taken by surprise and permit the plaintiff to take a decree that is not responsive to the issues and which is not justified by a full development of the case by the testimony.” Mason v. Gates, 90 Ark. 241. This case falls within the rule and not within the exception. Appellants were made parties at the request of Mrs. Wilson to answer for alleged fraud in inducing her to accept a mortgage on the land. They were also made parties by appellee, and the question of their conduct in obtaining the deed from appellee and in obtaining the loan from Mrs. Wilson were issues directly raised by the pleadings. For that reason there could have been no surprise in granting relief on the general prayer. In fact, a personal decree for recovery of the amount of the incumbrance wrongfully placed on the land was the only available relief against appellant Hurst, for he was not an actual party to the conveyance and was not a proper party to this litigation for any other purpose.
. The right of action was not prematurely sustained, even though appellee had not paid the mortgage debt, for the recovery of this amount was a part of appellee’s damage in having her land wrongfully incumbered by the mortgage to Mrs. Wilson. She could not obtain a cancellation of the mortgage for the reason that Mrs. Wilson was an innocent party, but she was entitled to the only available reparation, which was to allow her to recover the amount necessary to redeem from the mortgage — otherwise she is without relief.
Appellee 'did not perfect her original appeal from the decree in favor of Mrs. Wilson within ninety days after the rendition of the decree, as required by statute (Crawford & Moses’ Digest, § 2135); in fact, she did not perfect the original appeal at all. If the transcript had been filed by any of the appellants within the prescribed time, this would have been sufficient to perfect all of the appeals which had been granted by the court below, but no transcript was filed by any of the appellants within the prescribed time. The present appellants — Baldwin, Bradley, Hurst and Mrs. Bradley— abandoned their original appeal, and, within six months, took a new appeal as provided by statute, Crawford & Moses’ Digest, § 2140. The granting of this appeal to the appellants did not have the effect of perfecting the original appeal granted to the appellee by the lower court. The statute (Crawford & Moses’ Digest, § 2166) provides that a cross-appeal may be granted to an appellee against an appellant 'or any co-appellee at any time before the trial of the cause in the Supreme Court. Appellee was not entitled to a cross-appeal against Mrs. Wilson, for the reason that the latter was not an appellant in the case, nor a co-appellee. The controversy between appellee and Mrs. Wilson 'Concerning the foreclosure of the latter’s mortgage was distinct from the controversy between appellee and the appellants, therefore appellee was not entitled to a cross-appeal. Shapard v. Nixon, 122 Ark. 530; Meyers v. Linebarger, 144 Ark. 389. It has been the practice here, in instances where a cross-appeal was improperly granted within the period of six months allowed by statute for obtaining original appeals, to treat the cross-appeal as an original appeal, but, in the present instance, the cross-appeal was not granted until after the expiration of six months from the date of the rendition of the judgment. Therefore it was too late to operate as an original appeal.
Opinion delivered April 21, 1924.
It follows from what we have said that the cross-appeal of appellee must be dismissed and that the decree of the chancery court against appellants must be affirmed. It is so ordered. | [
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Smith, J.,
(after stating- the facts). In addition to the testimony stated above, two witnesses for appellant testified that they saw appellant in a Dodge roadster in and near Garland City at about midnight and at a later hour, in company with Green and Ernest Richardson, a brother of Orvil Richardson, and it was also shown that the casings had been recently removed from the rims found at Mrs. Kyle’s house, and that the casings sold Orvil Richardson fitted these rims perfectly. "We think this testimony legally sufficient to support the conviction.
The question asked appellant, on his cross-examination, touching the use which he proposed to make of the building- which he had erected at Garland City, should probably not have been asked, but we do not think it constitutes prejudicial error calling for the reversal of the judgment. The question was asked appellant on his cross-examination, and the court told the jury the answer could be considered only as affecting the credibility of the -witness, and, when he answered the question, he denied that he was about to open up the place for the sale of intoxicating- liquors.
A witness may be interrogated on his cross-examination touching his recent and present residence, occupation and association, for the purpose of enabling the jury to pass upon his credibility as a witness. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. The court, in permitting the question to be asked, remarked that the answer could be considered for this purpose only, and, when the question was answered, the witness, denied he was about to engage in a violation of the law.
Trial judges must be intrusted with some discretion in examinations of this character, 'and we reverse only where an abuse of this discretion is shown. Care should be used- in the exercise of this discretion to see that the prosecuting attorney does not, by insinuation, ask questions which are not intended to show the present or recent association or occupation of the witness, but, as we have said, we think no abuse of this discretion appears.
According to the testimony of Green and Orvil Richardson, they were not accomplices, and, if they were not, their testimony did not .require corroboration, but, even though they were, we think there was sufficient testimony corroborating them to sustain the conviction. The court gave, at appellant’s request, an instruction defining accomplices. We think the court might very well have given instruction No. 10 as requested, but that no error was committed in the modification made, in view of the oral instruction set out above. The jury might have found that neither Green nor Richardson was an accomplice, or that Richardson was not an accomplice, even though Green was, and, if Richardson was not an accomplice, his testimony would not require corroboration, even though that of Green did. We think that the oral instruction makes it clear that a conviction could not be had upon the uncorroborated testimony of a witness found to be an accomplice, but that the corroboration would be required only as to the testimony of the witness found to be an accomplice.
No error was committed in the refus'al to give instruction numbered 7, set out above. We have held it was not improper to give such an instruction where a conviction was asked solely upon circumstantial evidence. Hazel v. State, 174 Ark. 1078, 298 S. W. 357. But the prosecution in this c-ase did not rely wholly upon circumstantial evidence.
We have held, however, that it is not improper to refuse to give such an instruction, even in Cases where conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof resting on the State to establish the guilt of the accused beyond a reasonable doubt, and where reasonable doubt was properly defined. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Bost v. State, 140 Ark. 254, 215 S. W. 615; Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23.
Certain other errors are assigned which we think do not require discussion.
As no prejudicial error' appears, the judgment of the court below must be affirmed, and it is so ordered. | [
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McCulloch, C. J.
This is an action instituted by appellant against appellee to recover the possession of three mules and an automobile conveyed by mortgage executed by appellee to appellant. Before the conmeneement of the action, appellant furnished-a verified statement of the account claimed to be due under the mortgage, but, at the trial of the case, appellee challenged the sufficiency of the account by a motion to dismiss the action, which said motion the court sustained.
The only question presented on this appeal is whether or not the verified account was in form sufficient to constitute compliance with the statute, which provides, as a prerequisite to the foreclosure of a chattel mortgage, that the “mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due.” Crawford & Moses’ Digest, § 7403. The debit side of the account is fully itemized, and there is no contention in that particular that that part of the account falls short of the statutory requirement. The credit side of the account furnished is as follows:
Date Items Int. Credit
Nov. 16:20.................. By cash........................ $4.87........................$ 90.90
Nov. 17........................ By cash..........._........... 1.00........................ 18.72
Nov. 17........................ By cash........................ 3.25........................ 59.64
Apr. 21........................ By cash........................ 5.80........................ 299.18
July 2-21..................... By cash............................................................... 179.36
Oct. 31-22............................................................................................................ 141.92
Int. on payment to June 1-21......................................... 14.92
Jan. 1, 1923, Bal.....................................................................................$1,153.53
The contention of counsel for appellee, in support of the court’s ruling, is that the credit side of the account is insufficient, for the reason that it is not shown by testimony in the case whether the first three items were paid by the delivery of cotton or whether they were actually paid in cash, and there was evidence introduced tending to show that the -other items of credit listed were not in cash, but were accounts for ties manufactured by several persons and delivered to. appellant for appellee on his account.
We are of the opinion that the account, on its face, constitutes sufficient compliance with the statute, and its effect as a compliance with the statute is not changed by the fact that it may have contained inaccuracies, such as those mentioned above. It has been decided by this court that the statute is mandatory, and that the purpose of it is to give notice to the mortgagor of the amount claimed, and to give him an opportunity to satisfy the account without being subjected to the expense and annoyance of a lawsuit. Lawhon v. Crow, 92 Ark. 313. The account, however, is not required to be furnished as evidence in the ease, and it is not essential that it come up to the -fixed rules of evidence to establish the validity of the account, and it is sufficient if it affords reasonable information to the mortgagor as to the state of his account. The statute requires that the account be itemized. This does not mean that an action is defeated simply because the account contains inaccuracies. If the account is made in good faith and affords reasonable information, it is sufficient. The statute contemplates more than a mere statement of a lump sum, but here we have a statement which purports to give the items. Nor is the efficacy of the account affected by the fact that one or more of the items of daily credit are composed of a collection of credits for ties or other articles furnished as a credit on the account. The credit entered was sufficient to reasonably apprise the mortgagor of the amount with which he was credited on that day and to put him upon inquiry as to the correctness of the account, and give him an opportunity to ascertain its correctness, and to pay such balance as he conceded to be correct.
The court erred in dismissing the action, and the judgment is therefore reversed, and the cause remanded with directions to reinstate the action and for further proceedings. | [
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Smith, J.
The appellant bank sued to recover on a note executed by appellee Birmingham to the order of the Lafayette County Bank, which was by that bank indorsed to appellant as collateral to. a loan made the Lafayette County Bank.
The testimony shows that J. D. Hanson was largely indebted to the Lafayette County Bank, and desired to borrow more money, so he applied to appellee to execute the note sued on, promising appellee at the time that other signers would be secured before the note was used. But, without securing other signers, Hanson delivered the note'to the Lafayette County Bank and had the proceeds thereof credited to his account.
The Lafayette County Bank borrowed varying sums of money from appellant, which were secured by collateral. notes deposited with appellant, and the note of appellee was so used. The note wás for the sum of $2,500, was dated March 25, 1920, bore interest at the rate of ten per cent., and was payable .November 1, 1920. This note was indorsed and delivered' by the Lafayette County Bank in the spring of 1920 to appellant bank, and was thereafter continuously held by' appellant bank, along with other collateral, to secure the indebtedness of the Lafayette County Bank to appellant bank. The note was indorsed as follows:
“Lafajmtte County Bank, Buckner, Arkansas. John M. Bolger, cashier.
“(50c stamps). Pay to the order of any bank, banker, banking or trust company. (All prior indorsements guaranteed).
“State National Bank. 81-75 Texarkana, Ark. 81-75. W. B. Oglesby, cashier.”
A line was drawn through the date, October 4, 1920.
It was testified that appellant bank indorsed the note on October 4, 1920, as shown above, and forwarded the note, for collection for its account, to the Lafayette County Bank, along with other notes maturing about that time, and, when a collection was not reported, an officer of. appellant bank went to the Lafayette County Bank and took possession of the collateral, and the note sued on has since.continuously been in the possession of appellant bank as collateral.
The Lafayette County Bank closed its doors about December 17, 1920, at which, time it was indebted to appellant bank in tbe sum of $39,000, and appellant bank held notes payable to the Lafayette County Bank for $70,000 as collateral to this indebtedness. These collateral notes had been received from time to time, and, as has been stated, the note sued on was one of them.
The State Bank Commissioner took over the Lafayette County Bank, pursuant to law, and wound up its affairs under the orders of the chancery court of that county, and, after doing so, a dividend of only eight per cent, was paid depositors.
Among other things done by the Bank Commissioner was to make a settlement of the accounts between the two banks, whereby appellant bank released all the direct obligations of the Lafayette' County Bank to it, and took in satisfaction thereof certain of the collateral notes which it held. The note in suit was one of the notes assigned to appellant bank by the Bank Commissioner, and appellant bank brought this suit on it as the absolute owner.
Appellee made two defenses. The first was that the note was with out. consideration, and that appellant bank had not taken it as an innocent purchaser. The second defense was that the note had been paid.
In support of the first defense, it is insisted that the note was taken by the Lafayette County Bank in violation of § 684, C. ■& M. Digest, which reads in part as follows: “Any bank organized under the laws of this State shall be permitted to receive money on deposit, and to pay interest thereon; * * * to lend money on chattel and personal security, or on real estate secured by deeds of trust * * It is insisted that it appears from the face of the note itself that it was taken in violation of this section, in that no one had signed the note as indorser, and no collateral therefor had been taken.
In answer to this contention it may be said that the section of the statute quoted was passed for the protection of depositors of the bank making a loan, and not to absolve from liability one who obtained a loan in violation of its provisions, and there is therefore nothing in this. section which, of itself, would prevent one from acquiring such a' note as an innocent purchaser within the meaning of the Negotiable Instruments Act. City National Bank v. DeBaum, ante p. 18.
Considering further the defense that appellant bank did not acquire the note as an innocent purchaser, foi value, before maturity, wre have to say that we find ho testimony in the record sufficient to raise a question for the jury as to the good faith of appellant bank in acquiring the note as collateral. Appellant bank had no notice that Hanson had negotiated the note to the Lafayette County Bank without authority, and its status as an innocent purchaser is not affected by the fact that it acquired the note as collateral merely. Newell Contracting Co. v. McConnell, 156 Ark. 556, and cases there cited.
In further support of the defense that appellant did not acquire the note as an innocent purchaser, it is insisted that it was not shown that the cashier of the Lafayette County Bank had ever indorsed the note to appellant bank, or that he had the authority to do so.
In reply to this contention, it may be said that the pleadings do not tender this issue. The note as exhibited to the complaint purported to have been indorsed by the cashier of the Lafayette County Bank, and no testimony was offered that he had not in fact done so, or was without authority to do so. On the contrary, the undisputed testimony shows that appellant bank received the note in the usual course of business, and made a loan of money on the faith of this security. Moreover, appellant bank acquired the title to this note by the assignment to it from the Bank Commissioner in consideration of its release of all direct claim against the Lafayette County Bank.
We conclude therefore that the issue whether appellant bank was an innocent purchaser was improperly submitted to the jury.
Upon the issue of payment, the following testimony was offered: After the Lafayette County Bank closed its doors, Hanson was given checks on that bank by depositors amounting to-$6,700. At this time it was not known that only so small a dividend as eight per cent, would he paid to the depositors, and there was testimony that these checks were delivered to Yance in satisfaction of the note in suit. Yance was the representative of appellant bank, who acted for it in the liquidation of its claims against the Lafayette County Bank. In addition to this testimony, Hanson was permitted to testify that these checks had been so delivered. He was asked how he knew, and he answered: “A. Well, so far as that’s concerned, I know it like I know a great many other things that I don’t see happen.” He was asked what he meant by that, and answered: “By hearsay.” A motion was made to exclude this testimony, but the court declined to do so.
This testimony was incompetent, and must be treated as prejudicial, as it does not affirmatively appear not to have been. The jury may have treated ‘this testimony as corroborative of other testimony that the checks had been so used, and this was a sharply controverted fact. Yance denied that he agreed to accept the checks in satisfaction of the note sued on, or that he had received them at all, and the testimony of the receiver of the Lafayette County Bank is to the effect that the checks were indorsed and delivered to him-by Hanson’s bookkeeper, and that he (the receiver) credited these checks on a note of Hanson payable to the Lafayette County Bank.
There was a verdict in appellee’s favor, and a judgment accordingly, which must be reversed .on account of the admission of this incompetent testimony.
It is also insisted that the judgment of the court below should be affirmed because it affirmatively appears that the bill of exceptions does not contain all the testimony. The basis of this contention is that counsel for appellee offered in evidence the record of the chancery court showing the settlement of the indebtedness of the Lafayette County Bank which was due appellant bank.
The bill of exceptions recites that this record was offered in evidence, and thereafter follows the direction: “Here copy record,” and the record was not copied.
We think this omission was supplied, however, by the recitals immediately following. Counsel for appellee said: “I would like to introduce a copy of that assignment, unless they want the record. This is a copy furnished me by Mr. Tidwell” (the receiver) “showing the matters that were assigned to the State National Bank” (appellant) — “a Bank Commissioner’s deed and the assignment.” No objection was made, whereupon the Bank Commissioner’s deed and assignment, referred to, was introduced in evidence, and it is then copied in full into the bill of exceptions. This instrument was evidently treated as supplying the place of the record itself and answering the first call in the bill of exceptions.
Before admitting this copy of the assignment, the court made the following inquiries: “ Is it admitted that it is a copy? Does that report include this particular note? Mr: Stevens (counsel for appellee): Yes sir. Court: Does the note show it was turned over by the Commissioner? Mr. Searcy (counsel for appellant) i Yes sir, and this report does, too.' Court: Well, do you object to it, Mr. Searcy? Mr. Searcy: No sir.”
The deed and assignment shows the order of the court in regard to the note sued on, that order being as herein previpusly stated, that appellant bank took title to certain collateral (the-note in suit 'being included) in satisfaction of the direct obligations of the Lafayette County Bank to it.
There appears therefore to be no basis for the presumption that testimony might have been offered, but not shown in the bill of exceptions, which authorized the verdict returned and which rendered harmless the erroneous admission of the hearsay testimony set out above.
For the error indicated the judgment of the court below will be reversed, and the cause remanded with directions to submit to the jury the question only whether there was a payment of the note by the delivery of the checks by Hanson, unless some substantial testi-' mony is offered to support the allegátions of the answer that appellant was not an innocent purchaser. | [
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McHaney, J.
Appellant has correctly stated the case as follows:
“Leander E. Haire, while employed by appellant, was accidentally killed by a boiler explosion at Smackover. The probate court of Union County appointed an admin istrator of his estate, and approved a contract with attorneys to prosecute an action against appellant for the negligent killing. Thereafter, on petition of the father of the deceased, the administrator was discharged, and the father brought the action. Appellant moved in the probate court-to vacate the order discharging the administrator, on the ground that it had an interest in having a personal representative who could give an acquittance on settlement or make claims of all beneficiaries res judicata. The probate court denied the motion, and the circuit court on appeal affirmed that decision. This is an appeal from that judgment.”
It is difficult to perceive what right appellant has to complain of the action of the probate court in discharging the administrator it had theretofore appointed, or of the action of the circuit court in affirming the judgment of the probate court in refusing to set aside its order dis charging the administrator and his bondsmen. It does not claim to be a creditor of the estate of the deceased, nor does it admit that it is a debtor of said estate. If it admitted that it was indebted to said estate on account of the injury and death of the 'said intestate, and did not know to whom to make payment of the amount due it, it might be in a different situation. The administrator is not complaining of the order of the court discharging him, and neither -are the 'attorneys with whom the administrator entered into a contract to prosecute a suit against appellant for damages for the injury and death of said intestate, which was approved by the court. It is true that the father has brought an action agiainst appellant to recover for >such damages. If he is not the proper person to maintain the action, all questions pertaining thereto may be raised in the trial of that case. All questions sought to be raised by this appeal may be properly raised on the trial of the case wherein J. T. Ilaire has broug-ht suit against appellant for damages, but they Cannot be raised here. It did not have such an interest in the appointment of an administrator, being neither a debtor nor a creditor, as justified the court in making-it a party to the controversy. The courts will not set aside judgments at the instance of one who is neither a proper nor a necessary party to the controversy and has no interest in the judgment. But, since it was so made a party, and appealed to the circuit court, the action of the circuit court in affirming the judgment of the probate court is affirmed. | [
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Smith, J.
A. J. Vestal resides in Arkadelphia, and is engaged in the real estate business there. Upon the coming in of the Busey oil well at El Dorado, which was the discovery well, he extended his operations to that field, and acquired oil leases lying south, east and west of that well. He learned that an oil lease could be obtained on a forty-acre tract of land lying north of the Busey well, and he was anxious to purchase this lease, but he did not have available tlie funds to do so. He took up the question of the purchase of this lease with certain of his acquaintances in Arkadelphia, and they became interested in the proposition and authorized Vestal to buy it. Pending these negotiations, this lease was sold, but Vestal learned that a lease on another forty-acre tract, also lying north of the Busey well, could be purchased, and Vestal’s associates authorized him to buy it. It was not known just what this lease would cost. Vestal stated that he wanted to have the controlling interest, and would reserve that interest for himself, but that his associates might pay in such sums as they pleased, and that the lease would he purchased as cheaply as possible, and each person paying in money should have such proportionate part of the lease as the sum of money he paid in bore to the total cost of the lease. Dr. Moore advanced Vestal $1,500, and so did H. H. Heard, and other parties advanced different sums of money, making a total of $8,500.
Vestal took an assignment of the lease to the forty acres in his own name as trustee. The lease recited a consideration of a dollar paid and other good and valuable considerations, and it is certain that, at the time the assignment of the lease to Vestal was taken, all of his associates, except Heard, thought the lease had cost $12,000.
After the lease had been assigned to Vestal he advised his associates that he had only paid $8,000 for the lease, and that he had $500 to return to them proportionately, less the expense he had incurred, and in the letter communicating this information he offered to continue to execute his trust on the basis of ten per cent, of such profit as might be realized out of the transaction. This offer was rejected, and Moore and his other associates, except Heard, demanded the return of their money on the ground that Vestal had deceived them as to the cost of the lease. Vestal offered to assume the transaction individually, provided his associates would accept his note for the amounts they had paid into the venture. Moore and the others who were demanding the return of their money declined to accept Vestal’s note, and demanded cash, which Vestal admitted he was unable to pay. But, before Vestal made the disclosure to his associates that the lease had not cost $12,000, he suggested that some one else take the title as trustee, and it was agreed that the lease should be assigned to Moore, and this was done. It appears that the lease was assigned to Moore about sixty days before Vestal’s disclosure was made concerning the cost of the lease.
There is some conflict in the testimony as to the purpose of this assignment, and Vestal testified that he suggested the assignment because he had no beneficial interest in the transaction, and he contends that, when this assignment was made, his associates were given, not only what they thought they had bought, a two-thirds .interest, but a larger interest, to-wit, the whole interest, and that they were therefore not damaged by his false representations in regard to the cost of the lease.
The testimony of Moore and his associates is to the effect that, shortly after the lease was assigned to Vestal, the fact had been developed, through drillings for oil 'by other parties north of the Busey well and the failure?to find oil in that direction, that the lease had lost much of its value, and this fact was known to all parties when the lease was assigned to Moore; but it was not known even then that it had not cost $12,000, and the testimony of Moore and his associates is to the effect that, as soon as they were apprised of the deception which had been practiced upon them, they demanded the return of their money, and that Vestal offered to take over the lease for his own individual account by giving his note for the various sums which the investors had paid in, but they were unwilling to accept his note, as they regarded it as of no value.
After the assignment of the lease to Moore, the testimony shows that he attempted to sell it, and that he assigned ten acres thereof to induce a driller to drill a well, which came in as a dry well. On behalf of Vestal it is insisted that this conduct shows a ratification; but the testimony on behalf of Moore and Ms associates is that this was done with the consent of all parties in interest and for the purpose of making the best of a bad bargain.
The controversy between the parties culminated in this litigation, which was brought by the respective investors to compel Vestal to account for his misrepresentations. These suits were consolidated, and the court granted the relief as prayed. Heard declined to join in these suits, as he stated that Vestal had told him, before he paid in his money, that the lease had only cost $8,000, and that he knew what he was getting when he paid in his money. But, as we have said, this information was not possessed by any of the plaintiffs when their money was paid in.
The court found the facts as alleged in the complaints, and, in effect, found that the parties had entered upon a joint purchase whereby they were to buy an oil lease for $12,000, of which the defendant Vestal was to own and pay for one-third, and that each investor’s interest in the lease was determined by the proportion which his payment bore to the total cost, after Vestal was charged with the cost of a third interest which he represented he had bought for himself.
The court further found that “the title of the lease was to be taken in the name of one of the joint owners for the benefit of all the parties, and in proportion to the amount of money each agreed to pay, and the court finds that all of the parties paid in what they agreed to, except the defendant, Vestal, and that he represented that he was putting in one-third of the purchase price, and the court further finds that, after the lease was purchased and during the time when it had its highest value, the defendant continued to claim one-third interest, and that the lease only cost $8,000, and the defendant spent $60 for expenses, and has $440 left, and that the total amount paid out for the lease and expense was $8,060, and that Vestal ought to have paid in $2,'686.66, and owes to the plaintiffs $2,565.73, for which they are entitled to a judgment against him, to be distributed as follows.”
Hpon this finding the court rendered judgment against Vestal in favor of each investor for his proportionate part of the $2,686.66 which Vestal should have paid in, and ordered that the sum so adjudged should be declared a lien on the equitable interest of Vestal in the thirty acres undisposed of.
We think the testimony warranted the finding of fact made; indeed, it is an undisputed fact that Vestal misrepresented the cost of the lease to all his associates except Heard, and that they went into the venture on the assumption that Vestal had bought and paid for a one-third interest in the lease for himself.
The testimony is conflicting on the subject of ratification, but we think the finding of the court on that issue is not clearly against the preponderance of the evidence, and that the lease was assigned to Moore, not in ratification of the transaction, but for the purpose only of substituting trustees, and that Moore took the.title as trustee for the same persons, and for the same interest, for which Vestal had been trustee. In other words, there was a mere substitution of trustees, and no change of beneficial interest. And we are also of the opinion that the efforts of Moore to sell the lease and his action in assigning ten acres of it was not a ratification of the purchase of the whole interest for the plaintiffs in the suits, as the preponderance of the testimony shows that Moore was acting with the consent and on behalf of all the original investors, including Vestal, in what he did in that behalf.
Appellant Vestal insists that the decree is erroneous for the reason that the investors got what they bought, got even more than they thought they had bought, and that they are in no position to complain that they were damaged.
It is easy to surmise that Vestal would have assumed a very different attitude had oil been found on this lease. At any rate, we see no injustice in requiring him to account for his trusteeship on the basis on which he induced the investors to intrust him with the investment of their money. He represented that he had bought a third interest for himself, and that the lease had cost-$12,000. On this basis, he should have paid in $4,000, but the decree of the court only required him to do what he represented to his associates he had done, that is, to pay a third of what the lease actually cost, for it was on the strength of this misrepresentation that he induced his associates to invest their money. Vestal had no right to speculate on the possibilities of this lease at the expense of his associates, and without risk to himself.
The undisputed evidence shows that Vestal agreed to take an interest in the lease and pay proportionately for his interest, just as his representations induced the others to do, and the interest he had agreed to take was one-third of the whole, and n.ow that the venture has resulted in a loss, there is no injustice in requiring him to share this loss in the proportion he would have shared if he had not deceived his associates, and by his misrepresentations induced them to invest their money.
We think the testimony does not show a ratification of the purchase by the investors, and there is no error in compelling Vestal to execute the representations made by him to his associates, on the faith of which they entered into the enterprise.
The decree of the court below is therefore affirmed. | [
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Humphreys, J.
This is an appeal from a decree of the chancery court of Clay County confirming the report of a board of surveyors appointed by the court to determine where the United States Government established a corner between sections 4, 5, 8 and 9, in township 21 north, range 4 east, in Clay County, Arkansas.
Exceptions were filed to the report, and, by consent of the parties, the transcript of the case of H. H. Johnson v. R. R. Black, in the circuit court for the Western District of Clay County, was filed as evidence tending to show that the original government corner was more than one hundred yards from the corner established by the board of surveyors. The board of surveyors was appointed by the court under the following written agreement between the parties to this suit:
“This agreement, made and entered into this the 14th day of March, 1921, by and between the parties who are signers hereof, -for the purpose of determining as to where the government established a corner between sections four and five, eight and nine, in township 21 north, range 4 east, (Hay County, Arkansas.
“Whereas, the location of said section corner is now in doubt by some of the interested parties, this agreement is for the purpose of establishing the said section corner to the satisfaction of all parties concerned. Now we, the undersigned landowners and parties affected by the establishment of said- section corner and lines running thereto, do hereby agree to abide by the decision of three competent surveyors in the establishment of said section corner, and agree to adjust our fences accordingly.”
The board of surveyors reported that they .were unable to discover any marks on the ground by which they could locate the government corner described in the field notes of the original survey, and that they located the corner by proportionate distances from known corners, according to the methods prescribed by the Gren eral Land Office for locating lost corners.
Appellant contends for .a reversal of the decree confirming the report of the board of surveyors, upon the ground that the surveyors and trial court misinterpreted the agreement of the parties relative to the location of the government corner in question. Appellant construes the agreement to mean that the surveyors should locate the original government corner 'by any competent evidence available. The surveyors and trial court construed it to mean that the original government corner should be located from the description of said corner contained in the field notes, and, if the markings of the corner had disappeared, then to locate the corner by survey in accordance with the government rules for surveying.
We think the construction placed upon the agreement by appellant is correct, and that the surveyors should have heard any available, competent testimony in an effort to find the original corner, before resorting to a survey to locate same. Of course, if the original comer cannot be definitely located by circumstantial or positive testimony which is competent, then the surveyors would be authorized, under the agreement, to locate and establish the corner by survey, in accordance with government rules for locating a lost corner... While the agreement was in the nature of an arbitration, the report or award was not binding upon the parties because the surveyors made a mistake. They proceeded under a misunderstanding of the contract, and under an erroneous impression as to their duty.
The decree is reversed, with directions tó sustain the exceptions to the report of the surveyors and for further proceedings not inconsistent with this opinion. | [
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Mehaeey, J.
The plaintiff, appellee here, brought suit against the appellant in the Sebastian Circuit Court, alleging that, on or about tbe 24th day of June, 1924, appellees delivered to appellant’s station agent at Abbott, Arkansas, two carloads of Irish potatoes to be shipped in interstate commerce to Holman Produce Compairy, St. Louis, Missouri. That, at the time they were delivered for shipment, they were in good, sound and first-ela.ss condition and quality, but, when delivered at St. Louis, they were decayed and had to be sold at a loss, and that tbe damage occurred by reason of delay in transit.
Defendant answered, denying- the material allegations of the complaint.
S. L. Robinson, one of the partners of Robinson & Company, testified that, in June, 1924, he inspected the two cars of potatoes in question at Abbott, Arkansas. Did not look at all of them. This was while they were being loaded. Mr. Fulgium had grown the potatoes, and Robinson said that they had bought them from him. That he was not present when the hills of lading were issued. The potatoes were loaded in stock-cars, the kind of cars that plaintiffs usually ship in. They were good potatoes, and, if transported in the usual method and manner to St. Louis, they should have arrived there in good condition. Did not know where they were to be shipped when inspection was made. That he knows nothing about their condition in St. Louis. Witness had full authority to represent Robinson & Company. After the inspection witness left, and they afterwards bought the potatoes by telephone. He gave Mr. Fulgium no instructions. They told the agent that the potatoes would have to go by Hulbert. That was the usual and customary route for shipping potatoes from that point.
J. Gr. Fulgium testified, in substance, that he lived at Abbott, Arkansas; was a grower of potatoes, and loaded the two cars in question. That they were shund and in good condition, and thinks that there was nothing about the potatoes that would prevent them being shipped to St. Louis if properly handled. That he had the bill of lading issued, and signed it. Does not know what time of day on the 24th they finished loading-, and does not know what time the potatoes left Abbott. Had shipped potatoes to St. Louis before, and they were shipped by way of Hulbert and the Frisco over the Rock Island. Sold the potatoes over the telephone and was directed by Mr. Robinson to ship them out. June 24th is about the time they wind up the summer crop of potatoes. That he does not know the people to whom the potatoes were 'shipped. Just directed to ship them to Holman Produce Company at St. Louis. The potatoes were taken to the station in sacks. They were plowed up that day and sacked in the field. The sacks were lianled to the station in wagons, twenty to thirty sacks in each load. Witness thinks they had one car loaded and another one started when Mr. Robinson left. Had shipped potatoes in stock-cars before. They are not exposed to the sun to amount to anything, and would not be while standing in the railroad yards, as there would be other cars by the side of them. 'Most of the time it takes three days and sometimes it takes four to go to Chicago. Has seen potatoes in Chicago that came through all right over the Rock Island. Potatoes will keep three or four days without damage. They were all right when loaded on the 24th and ought to have been all right on the 28th. That is not too long to keep them in the cars.
Lem Robinson, recalled, testified that potatoes in the condition these were should remain in good condition for three or four days. But they will not remain in good condition if permitted to stand in the heat without moving.
Sid L. Robinson testified, in substance, that he had had experience in shipping fruit and produce, and kept up with the approximate running time of various trains from one place to another. The customary time used in carrying a shipment of potatoes from Abbott, Arkansas* to St. Louis, Mo., over the Rock Island by -way of Hulbert and the Frisco, is thirty-six hours. Cars arrived at St. Louis Saturday morning. That he saw the cars there Sunday morning. The wholesale markets are open at twelve o’clock at night and close by early morning — • something like seven or eight o ’clock. This was carload stuff, to be handled on the wholesale market. If the cars arrived at St. Louis at seven or eight or ten o’clock Saturday morning it would be too late for the Saturday market. Potatoes in good condition were worth around $2.50 to $2.75 to $3 per hundredweight Saturday morning. That he examined the potatoes, and they showed they had been out too long’ and shrunk a good deal, and there wore a few spots on the sacks where rotten potatoes had wet the sacks. He testified that lie did not authorize any carrier or agent to hold these cars for orders. They were sold to Holman Produce Company, and were rejected on account of their condition. That he went to St. Louis and sold them to the Holman Produce Company. Made the best disposition possible. The potatoes in their damaged condition were worth about $1.90. Loss on one car was $232.78, on the other $234.37. It was necessary to sort the potatoes. Mr. Keys sold these potatoes to the same man he had-shipped them to. That was done after he had had his loss, and it had to be done to get them accepted. The difference between the price at which he bought them and what he paid represented the damage. -If the .potatoes had not been damaged, one car would have been worth $623.26, and he got for that car $486.40. The other car would have been worth $614.92, and in its damaged condition its fair market was $480.70'.
He also testified that he does not know how long it takes to get a car from Abbott, Arkansas, to Booneville. Does not know what time the train ran nor what time the cars were loaded. Bill of lading was dated the 24th, but the cars could have gone out -on the 25th and not been damaged. He -opened some of the -sacks at St. Louis. Thinks it was Monday when he first saw them, and they were still in the cars. That they had sold the potatoes to Holman Produce Company as good potatoes, and agreed -on the price by wire. May have sent a wire. The Holman Produce Company refused to accept the draft. He could have taken the potatoes without paying the draft, but he did not do so. That they were trying to dispose of the potatoes to the best advantage. They were damaged some between Saturday and Sunday, and the longer they would stay the worse they would get. It is usual to ship potatoes in cattle-cars, and potatoes shipped in cattle cars ought to ke'ep three or four days. Ought to keep four days if you keep them moving. Shipped these potatoes on the theory that they would be in St. Louis on the second morning after they were shipped. Never authorized anybody to hold car-s for orders. The carrier is supposed to make delivery or notify the shipper. 'Was not notified by the railroad company. Went to, St. Louis after, receiving- a wire from Holman or Keys. Does not know wliat condition the potatoes were in on their arrival in ¡St. Louis. Did not see them Saturday, and did not know when they left Abbott. Knows they were damaged from decay Monday morning, and knows that if cars are left on the track and not moving they will decay.
H. Gr. Snyder, general agent of the Frisco Railroad, testified about the movement of the cars, and several witnesses testified for the defendant as to the movement of the cars, but it is unnecessary to set out their testimony.
Appellant’s first contention is that there was not sufficient evidence to justify the court in submitting the case to the jury, and that the court should have given a peremptory instruction for the appellant. We do not agree with the appellant in this contention. We think there was sufficient evidence of negligence to require the submission of the case to the jury.. These shipments, however, were interstate shipments, and the plaintiff alleged in this complaint that the damages resulted from delay in transit.
This court said in a recent case, decided on May 16,1927, in speaking of the provisions of the bill of lading: “Where the plaintiff brings suit under the proviso and alleges negligence on the part of the carrier in transit, the burden of proof is upon him to prove negligence alleged.” St. Louis-San Francisco Ry. Co. v. Rouw Co., 174 Ark. 1, 294 S. W. 414.
This court said in another recent opinion: “This is an interstate shipment, and the law, as declared by the Supreme Court of the United States, must govern.” St. Louis-San Francisco Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 359.
In each of the above cases the case of Barrett, Pres. of Adams Express Co., v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. ed. 857, decided by the United States Supreme Court April 13, 1925, was discussd and relied on as controlling in suits involving interstate shipments. The United States Supreme Court, in discussing the act of Congress, among other things said:
“It will he noted that both the Cummins Amendment and the bill of lading provision make a double classification of claims, to-wit, (1) those for loss due to decay or damage while being loaded or unloaded or damaged in transit, which we will call transit claims; and (2), those for loss otherwise sustained, which we will call non-transit claims. The Cummins Amendment permitted the carrier to require, as a condition precedent to recovery, the filing of a non-transit claim within four months, and in such cases, to require suit to be instituted within two years. In the case of transit claims it forbade the carrier to require the filing of a claim as a condition precedent to recovery, but authorized a requirement that suit be instituted within two years. ” * * * It must bo assumed that Congress intended to make the classification on a reasonable basis, having regard to considerations deemed sufficient to justify exceptions to the rule. The element of carelessness or negligence is important.” Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. ed. 857.
The Supreme Court in the above case also called attention to the proviso, which is as follows: “Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. * * * We hold that the second clause must be read as above indicated, that carelessness or negligence is an element in each case of loss, damage or injury included therein, and that, in such cases, carriers are not permitted to require notice of claim or filing of claim as a condition precedent to recovery.”
So in this case there was no notice required. Plaintiff in this case does not rely on any damage or injury due to delay or damage while being loaded or unloaded, but he relies solely on damage in transit by carelessness or negligence.
Under the act of Congress regulating interstate shipments in the cases that require notice, the giving of the notice is a condition precedent to recovery. 'But in those cases the plaintiff, having given notice, does not have to prove any negligence or fault on the part of the carrier. The carrier is an insurer. But in this case, as it is alleged that the damage was caused by the delay in transit, no notice is required, but the right of recovery depends upon negligence.
As we have already said, we think the evidence sufficient on the question of negligence to entitle plaintiff to have the question of negligence submitted to the jury, and for that reason appellant’s peremptory instruction was not proper. But, since this action is based on negligence, and the burden is upon the plaintiff to prove negligence, it follows that plaintiff’s instruction number 'one was erroneous. That instruction reads as follows:
“You are instructed that the initial carrier of freight in interstate commerce is an insurer of the goods, wares or merchandise delivered to, and accepted by, such carrier for shipment, and as such insurer is liable to the shipper for all damage or decay occurring to such goods, wares or merchandise while being transported by such carrier, except such damage or decay as results from the fault of the shipper, the inherent nature of the goods shipped, an act of God, or the public enemy. ’ ’
This instruction would permit a recovery without any negligence. And, since we hold that the action is based on negligence, and negligence must be proved, we -think that, instead of giving' that instruction, the court should have instructed the jury that the plaintiff would have to show that the injury or damage was the result of the negligence of the carrier.
We deem it unnecessary to set out the other instructions because, from the view we fake of this case, it is one based entirely on negligence of the carrier. We are governed by the construction of the act of Congress by the United States Supreme Court, and that court holds that, in cases like the one at bar. no notice is required. but that the plaintiff must prove negligence in order to recover.
The appellant also contends that the court erred in permitting- plaintiff to introduce evidence of market value. It was within the discretion of the court to permit this testimony, and permit the complaint to he amended so as to in chide an allegation as to the decline in the market. If defendant was taken by surprise and unable at the time to meet this new evidence as to damage, it would have had a right to have a postponement of the trial until it could be prepared to meet it, hut this it did not ask and it cannot now complain of the introduction of this testimony. Before one can complain of the introduction of testimony on the ground that it was without opportunity to take testimony or prepare its defense on that issue, one must ask the court for a postponement for that purpose.
It is unnecessary to discuss the other questions argued in briefs of counsel, and, for the errors above mentioned, the case will be reversed and remanded for a new trial. | [
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Hart, J.,
(after stating the facts). We think the decision of the circuit court was wrong. There is no showing in the record that appellees claimed the prop erty adversely to the rights of appellant, or that the latter waived his. right to retake the property, under his contract, for failure to pay the purchase money. The contract in each case was in writing, and in express terms stated that the title to the propérty should remain in the seller until it was paid for. The fact that the original purchaser sold the engines did not give the second purchaser any greater rights than the original purchaser possessed, in the absence of notice to the seller, or of facts equivalent to notice, that the second purchaser claimed the property adversely to the rights of the seller. In conditional sales of personal property, where the title is retained by the vendor until the purchase price is paid, the vendee acquires an interest that he can sell or mortgage without the consent of the vendor, but the vendor’s right to recover the property, if the purchase price of the property is not paid, is not prejudiced by such sale or mortgage. Clinton v. Ross, 108 Ark. 442, and Estes v. Lamb & Co., 149 Ark. 369.
In the latter case it was also held that the giving of promissory notes for the debt is no payment, unless, by agreement of the parties, the note's are taken in payment of the debt.
In Triplett v. Mansur & Tebbetts Implement Co., 68 Ark. 230, it was held that, where goods are sold on condition that the title shall remain in the vendor until the purchase notes are paid, the execution of renewal notes for the debt is not a payment, unless, by agreement of the parties, the notes are taken as such. Thus it will be seen that the mere fact that the seller failed to demand possession of the property when the notes given for its purchase price became due, and the fact that a renewal note was taken for the balance of the purchase price of one of the engines, do not constitute a forfeiture of his rights under the original contract. The seller made demand of the purchaser and his vendee of the balance of the purchase mice of the engines, and, in default thereof, demanded that they should be returned to it. The purchaser and his vendee failed and refused to make the payment of the balance of the purchase price or to return the engines to the seller. Hence he had a right, under his contract, to bring a replevin suit for the engines.
But it is contended that appellant is barred of this right by the statute of limitations of three years. We do not think there is anything to bar a recovery by appellant. As we have already seen, the original purchaser had a right to sell the property, and the fact that he did so did not divest the seller of any of his rights. The same may be said of the fact that a renewal note was given for the balance of the purchase price of one of the engines. There is nothing else in the record which would start the running of the statute of limitations. It is not shown that appellant knew that the vendee of the original purchaser was claiming the property adversely to its rights, or that it was in possession of any facts that would lead to :such knowledge. .
It is true that the property was moved from one county to another, but both counties were in the same section of the State, and it is not even shown that appellant knew that the property had been moved from one locality to another. Even if such had been the case, it would not tend to show that the person removing the property was holding it adversely to appellant.
In Nattin v. Riley, 54 Ark. 30, it was held that, under a contract for the conditional sale of property, the omission of the purchaser to pay the purchase price when due does not operate as a forfeiture of his rights under the contract, in the absence of a demand on the part of the seller of payment, or of the property for nonpayment of the purchase price. It was further held that, on such demand, even after the purchase money was overdue, the purchaser would have the right to pay the purchase price and retain the property which he received under the contract. To the same effect see Sunny South Lumber Co. v. Neimeyer Lumber Co., 63 Ark. 268.
This holding was in recognition of the principle that the rights of the parties remained the same after the purchase price became due as they were before that time, in. the absence of a showing that the seller demanded the property on his part, or the purchaser ¡claimed adversely to the rights of the seller, and that the latter had knowledge of such claim or of such facts as would lead to knowledge, if inquiry was made. 'Therefore we are of the opinion that there is nothing upon which to base a finding that appellant was barred of recovery by the statute of limitations, or that appellant had waived his rights to treat the sale as a conditional one.
. It follows that the judgment will be reversed, and the cause remanded for a new trial. | [
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Wood, J.
On the 21st of September, 1922, in Washington County, Arkansas, Louisa Webb executed what purported to be her last will and testament. By this will she gave and bequeathed to her two grandchildren, Wilma Aline Webb and Thelma Lorene Webb, $150 each; and to her two daughters, Mrs. Effie Gforee and Mrs. Lillian High, she bequeathed all of the remainder of her property, real and personal, wherever located. The testatrix died on the 27th of November, 1922. The will was duly probated and admitted to record by order of the probate court on December 4, 1922. On March 5, 1923, J. S. Sharp was duly appointed guardian for Wilma and Thelma Webb, minors. As such guardian, Sharp petitioned the probate court for an appeal from its order probating the will. In his petition he alleged, among other things, that the will was probated in common form without notice to affiant or his wards, and without appointing a -guardian ad litem to' represent them; that the testatrix, Louisa "Webb, at the time of the execution of the alleged will, did not have sufficient mental capacity to make a will, and also that William High, the husband of Lillian High, one of the principal legatees, exercised an undue influence over the testatrix and thereby caused her to give the major portion of her estate to his wife and her sister, Mrs. Effie Groree. He prayed for an appeal from the order of the probate court probating the will to the circuit court. His petition was duly verified, and the petition was granted and the cause appealed to the circuit court.
The cause was heard de novo in the circuit court before a jury, upon the evidence adduced upon the issues raised by the allegations of the petition. The proponents offered in evidence the record of the will and the probation thereof in the probate court. They also introduced witnesses who testified that they had witnessed the execution of the will by the testatrix; that they were ■ present as witnesses at the request of William High, who told them that Mrs. Webb desired them to be present and witness her will; that the instrument was read and explained to Mrs. Webb by Judge Berry, who prepared the same, and that the same was signed by her in ¡ . tlieir presence. •
Judge Berry testified that he was told by Mrs. High and Mrs. Groree, a week or more before the will- was executed, that their mother wanted him to dome out' and write her will. High also talked to him about it the day before the will was signed. Witness' prepared the will and read and explained it to Mrs. Webb, and she said it was all right. She signed it in witness’ presence. She stated that she could not write her- name very well with a pen, and asked if she could-sign it with a pencil. Witness told her that,she could sign-it with a'pencil, and he j would trace it with ink. She signed the instrument with a pencil, and witness traced her signature with ink, and showed it to her after it was done. ,
Testimony was adduced on behalf of the con- 1 festánts-on-the issues as to whether Mrs, Wébb had süf- • ficient mental capacity to’ make the will, and also as to whether any undue influence had been brought to bear upon her by Lillian High to induce her to make the will. Testimony was also adduced on these issues by the proponents in rebuttal.
On its own motion the court instructed the jury in instruction No. 1, defining the issues, and told the jury that the burden was on the proponents, Mrs. High and Mrs. G-oree, to prove that the will was executed in the manner and form required by law. The proponents duly excepted to that part of the instruction which placed the burden on them to show that the will was duly executed.
The second instruction given by the court was as follows: “I give you in charge § 10494 of Crawford & Moses’ Digest, which I here read to you: ‘Section 10494. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
“ ‘First. It must be subscribed by the testator at the end of the will, or by some person for him, at his request.
“ ‘Second. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.
“ ‘Third. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament.
“ ‘Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
“ ‘Fifth. Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of *at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses to such will; but no will without such subscribing witnesses shall be pleaded in bar of a will subscribed in due form as prescribed in ■this act.’ ”
Instruction No. 3, given by the court, was as follows :
“You are to determine from all the facts and circumstances in evidence whether a compliance with these requirements has been shown by a preponderance of the evidence. ’ ’
The proponents objected and excepted to the giving of the above instructions. There were several other instructions given, to which there were no- exceptions, and which it is unnecessary to set out. The jury returned a verdict finding that the instrument offered as the last will and testament of Louisa Webb is not her last will and testament. The court rendered a judgment in accordance with the verdict, from which is this appeal.
On the issue as to whether the testatrix had sufficient mental capacity to execute her will and as to whether any undue influence was exercised by William High to cause her to execute the instrument as she did, the court correctly instructed the jury in conformity with the law as announced by this court in many decisions. McCulloch v. Campbell, 49 Ark. 369; Milton v. Jeffers, 154 Ark. 516. It could serve no useful purpose- to set out and discuss the testimony in detail relevant to these issues. Suffice it to say there was sufficient testimony to sustain the verdict.
Instruction No. 2 declares the statutory requirements of the modes in general for the execution of wills. The appellants offered a general objection to the giving of this instruction. The instruction was in five paragraphs. The undisputed evidence showed that the instrument had been subscribed by the testatrix and that it was made by her in the presence of the attesting witnesses. Therefore there was no issue to submit to the jury on the first and second paragraphs of the instruction. There was likewise no contention that the entire body of the will was written by the testatrix,’ and there fore there was no issue to be submitted to the jury under the fifth paragraph. There was an issue on the third and fourth paragraphs, and the court correctly submitted these issue's in its instructions Nos. 4 and 6. But the court erred in telling the jury, in its instruction No.-3, that they were to determine, from all the facts and circumstances in evidence, whether the requirements of the statute as set forth in its instruction No. 2 had been shown by a preponderance of the evidence. The appellants duly excepted to the giving'of this instruction, and the effect of it was to allow the jury to determine from the evidence whether the requirements in the first, second, and fifth paragraphs of instruction No. 2 had been complied with when, under the evidence, there was no issue of that kind to be submitted to the jury. The instruction, in this form, authorized the jury to speculate concerning matters about which there was no dispute. Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309-315.
The court therefore erred in submitting to the.jury issues that were not warranted by the testimony, and this error was necessarily prejudicial to the appellants, for it is impossible to determine upon what issue the verdict was based. Milton v. Jeffers, supra. For the error in giving instructions Nos. 2 and 3 the judgment is reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
'This .suit was .commenced in the magistrate’s court by appellee against appellant to recover the value of a suit of clothes charged to appellant by direction of appellant’s son-in-law, Cecil Varne, who made the purchase.
Appellant denied that he authorized the purchase of the suit, and pleaded the statute of frauds. Upon the trial of the cause in the magistrate’s court and in the circuit court, where the case was carried on appeal, judgment was rendered against appellant in favor of appellee for $31. An appeal has been duly prosecuted to this court from the circuit court’s judgment. .
Appellee brought the suit upon the theory that he could establish authority of Cecil Varne to buy the suit on account of appellant, by the statement of Cecil Varne when he made the purchase; or, if not, that he could recover on the subsequent oral agreement of appellant to pay the account. Appellee was allowed, over the objection land exception of' appellant, to testify that Cecil Varne told him that appellant said for him to buy the suit and he, appellant, would pay for it when he returned from Camden. He lalso testified that, after .sending-several -statements- of account to appellant, to which he received no response, he called -on appellant, and was told by him that he had brought a suit ag-ainst the railroad company for killing his son-in-law (Vlarne), and if lie collected anything from the company he would pay him, and if he failed to collect anything, he would pay him anyway.
Appellant testified that he gave his son-in-law mo authority to fouy the suit of clothes on his account, and that he did not ¡afterwards agree to pay for it.
• The court sent the case to the jury upon appellant’s theory under the following instructions:
Instruction A given ¡by the court:
“If you find from a preponderance olf the evidence that the defendant authorized his son-in-law to purchase the goods in controversy from the plaintiff and to have them charged to the defendant, or if you find from a preponderance of the evidence that the defendant did not authorize his son-in-law to purchase the goods from the plaintiff and have them charged to him, 'but you further find that, after he had purchased them and had them charged to him, the defendant was informed that he had, and he ratified his act in purchasing and. having them charged to him, then you are told the plaintiff is entitled to recover.”
Instruction B given by the court:
“You are further instructed that, if you find from the evidence the defendant did not authorize his son-in-law to purchase the goods from the plaintiff and have them charged tó him, and never ratified his act in doing so, then you will find for the defendant.”
These instructions were erroneous and prejudicial, for agency cannot be established by declarations and acts of an agent at the time or subsequent to the transaction. Latham v. First National Bank, 92 Ark. 315, 122 S. W. 992; Arkmo Lumber Company v. Cantrell, 159 Ark. 445, 252 S. W. 901; DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6. And a subsequent promise by a third person to pay the pre-existing debt of another must be in writing and signed in order to bind the obligor, unless the promise is made for a new consideration. Zimmerman v. Holt, 102 Ark. 407, 144 S. W. 222.
Under appellee’s own evidence it was the duty of the trial court to instruct a verdict for appellant.
On account of the error indicated the judgment is reversed, and appellee’s complaint is dismissed. | [
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Hart, J.,
(after stating the facts). It is first contended by counsel for the defendant that the evidence is not sufficient to support the verdict.
The relative rights of pedestrians and motor vehicles in a public street are equal, and each is obliged to act with due regard to the movements of the other. Neither is called upon to anticipate negligence of the other. Johnnie Hamm was twelve years of age, and was possessed of the mental and bodily vigor usual to boys of his age at the time he was injured. He had a right to walk along the street, observing such care as children of like age are accustomed to use, while the defendants had the right to drive their automobile along the street, observing such watchfulness for footmen as the circumstances seemed to require. According to the evidence for the plaintiff, Johnnie Hamm was walking along the beaten path on one side of the street, when the automobile of the defendant approached' him, without any signal being given, and struck him with such force as to knock him down and to cause one of the wheels to pass over his body. The jury might have inferred from the evidence for the plaintiff that the driver of the automobile had a clear view ahead of him, that he knew that his car was approaching the boy without making any noise scarcely, and that the boy was oblivious of his approach.'
Under the circumstances as proved by the plaintiff, the circuit court properly held that the question of negligence on the part of the defendants and contributory negligence on the part of the plaintiff were for the jury. Therefore we are of the opinion that, under the principles of law decided by this court in similar cases, the evidence was legally sufficient to support the verdict. Millsaps v. Brogdon, 97 Ark. 469; Minor v. Mapes, 102 Ark. 351; Carter v. Brown, 136 Ark. 23; and Brashears v. Arnett, 144 Ark. 196.
Counsel for the defendants also assign as error the action of the court in giving instructions Nos. 5, 6, 7, 8 and 12. The bill of exception recites the following: “The court then, at the request of the plaintiff, gave to the jury, over the objections of the defendants, the following instructions.” Then follow twelve instructions given by the court.
We have repeatedly held that exceptions to a trial court’s ruling in giving or refusing instructions must be separately made at the time, and that exceptions in gross are not sufficient to bring up the instructions for review, unless the instructions objected to are all incorrect. L. J. Smith Construction Co. v. Tate, 151 Ark. 278, and Dubisson v. McMullin, 163 Ark. 186.
We need not set out all of th¿ instructions referred to, because it is not claimed by counsel for the defendants that all of them are incorrect. In fact, some of them are admitted to be correct instructions. •
It is next insisted that the court erred in refusing to give an instruction asked for by the defendants as fól lows: “The sidewalk, in towns and cities, is the part of the street set apart for pedestrians, though they are not required, under the law, to walk on them.” No possible prejudice could have resulted to the defendants from the failure of the court to give this instruction. Moreover, the same idea was included in the instructions given ¡by the court.
Counsel for the defendants failed to bring forward in their motion for a new trial alleged errors of the trial court in refusing to give other instructions asked by them. Therefore such exceptions to the ruling of the court will be treated as abandoned, under our rules of practice. Myers v. Andre, 161 Ark. 393.
It follows that the judgment must be affirmed. | [
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McCulloch, C. J.
The road improvement district involved.in this appeal was created by an act of the General Assembly at the extraordinary session held in February, 1920 (act No. 240, special session, Feb. 1920), and the statute creating the district contained a provision that it should not become effective “ until the same has been approved by a majority of the qualified electors residing within the district, voting at a special election to be called by the chancery judge of the Second Chancery District of the State of Arkansas.” There was also a provision in the same section of the statute in regard to giving notice and holding the election. An election, called by the chancellor of the district, was held, but it was premature, as decided by this court in litiga tion concerning the validity of the election. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507. Another election was held, pursuant to the above provision, on December 31, 1923, and the returns showed that a . majority of the qualified electors voted in favor of the district.
Appellant is the owner of property in the district, and instituted this action in the chancery court to restrain the commissioners from further proceedings, on the ground that there had been no compliance with a section of the general highway statute (Acts Special Session, Oct. 1923, p. 11),, which provides, in substance, that, in- all road districts created by special statute since the year 1915, where no construction work has been done or contract let or bonds issued, there shall be a reference to a vote of the owners, in number or in value, of lands in the district, but contains an exemption from the operation of the statute, as follows:
“This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or -an election to ascertain their will, or to those districts dvhere actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding, before the passage of this act.”
The question presented in this -case is, whether or not the election provided for in the act creating the district here involved comes within the exemption specified in the general highway bill.
It will be observed that the act of 1920 creating the DermotNCollins Road Improvement District provides for an election by “the qualified electors residing within the district,” whereas the general highway bill exempts from its operation ‘ ‘ improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will.” One statute provides for an election by the qualified electors, and the other exempts only districts where the will of the property owners is to he ascertained.
In the case of Rayder v. Highway District, 161 Ark. 269, which is relied on by counsel for appellee, we held that, where the statute creating the district provided for an election by the resident property owners, it came within the exemption of the general highway bill. In Bost v. Road Improvement District, 163 Ark. 607, also relied on by counsel for appellee, the statute creating the district provided for an election by the owners of property in the district, upon petition of a certain number of owners of property, but there was no petition and no election, and we held that this came within the exemption contained in the general highway bill. Neither of those cases, however, reached to the question presented in the present case, for here we have a case where the statute creating the district makes no provision for an election, by property owners. On the contrary, it provides for an election by the qualified electors of the district. It seems to us that, by no process of reasoning, can we stretch this language to necessarily embrace property owners or to limit it to property owners.. "We said in Rayder v. Highway District, supra, that the general highway bill did not undertake to specify the details of the election, but we did not mean .to hold that an election merely by qualified electors of the district would take the place of the election provided for in the general highway bill.
In framing the highway bill the lawmakers were dealing with the subject of local improvements to be constructed at the expense of the owners of adjoining property, and, while they had the power to place any condition upon the operation of the statute that they saw fit, it is not conceivable that, in providing for a referendum, they meant to leave it to the vote of qualified electors and not to the owners of property. Qualified electors are not necessarily owners of real property, and such owners are not necessarily qualified electors, hence the lawmakers, in passing the statute and specify ing the exemptions in its terms, must have had in mind this distinction. Hodges v. Board of Improvements, 117 Ark. 266.
The statute creating the district not being within the exemption specified in the general highway bill, it was necessary, before proceeding further, to hold an election pursuant to the terms of the general highway bill.
It is also contended that the election was valid under a statute enacted at the extraordinary session and approved October 20, 1923, as follows:
“Section 1. Wherever an election has been held during the year 1923 in pursuance of any statute in this State for the purpose of determining whether a road improvement district should be put into operation, and the majority of those voting at the election have voted in favor of the district, such district is hereby created and declared valid and effectual, and to have all the powers and be subject to all the liabilities of a district created under the law by which the district was created. ’ ’
The language of this statute necessarily implies retroactive effect and not prospective operation. It cannot be construed to ratify an election to be held thereafter, and it was only intended to validate districts where elections had been theretofore held during the year 1923.
There having been no election as provided by statute, it follows that the chancery court erred in refusing to grant the relief asked for by appellant.
■ Eeversed, and remanded with directions to overrule I he demurrer to the complaint. | [
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Smith, J.
Appellees, who were plaintiffs helow, brought suit in ejectment against appellant to recover possession of a certain lot in the city of Little B-ock. For their cause of action they -alleged that Hattie Battle, who was lawfully seized as owner of the fee-simple title to said lot, died testate on the ...........day of February, 1918, and by her last will and testament devised the lot to them as trustees for Mount Pleasant Baptist Church, subject to the life estate of her husband, Aaron Battle, who died on the.....:............day of........................................, 1924. A copy of the will was made an exhibit to the complaint. It was further alleged that Hattie Battle obtained title to the lot by warranty deed from Mrs. F. M. Fulk, dated February 14, 1911, and that defendant occupied the lot September 22, 1923, under a deed from the life tenant, Aaron Battle, and has unlawfully retained possession since the death of the said life tenant.
After a demurrer had been sustained to the original complaint an amended complaint was filed, in which the title from the United States* through mesne conveyances to Mrs. Fulk, was deraigned.
Appellant filed an answer, in which he denied that Hattie Battle had at any time been seized of the fee • title, or that she acquired the same by deed from Mrs. Fulk.
Appellant admitted his entry under a deed from Aaron Battle, but denied that his grantor had only a life estate. He alleged the fact to be that, on the................. day of....................................................., 19............, in a cause then pending in the chancery court, in which Aaron Battle and the trustees of the church were opposing parties, it was adjudged that the trustees were not the owners of the property, 'but that the title was in Aaron Battle, and thereafter appellant, for a valuable consideration, purchased the lot from Aaron Battle, and the same was conveyed to him by a warranty deed. At the time of this conveyance no appeal had been prayed or granted to the Supreme Court from the decree of the chancery court, and there was no record that the trustees of the church contemplated an appeal.
After the deeds mentioned and the decree of the chancery court had been offered in evidence, the clerk of the chancery court was called, and produced a record of that court, and was asked to read therefrom the decree of the chancery court on the mandate of the Supreme Court reversing the decree of the chancery court above referred to, wherein it had been adjudged that Aaron Battle was the fee owner of the lot in question. Objection was made to the introduction of this decree, upon the ground that it was void for the reason that, at the time of the submission of the appeal in the Supreme Court and the decision of the cause by the Supreme Court, the said Aaron Battle was dead, and the cause was never at any time revived against his heirs-at-law. The court overruled the objection to the introduction of the last mentioned decree of the chancery court, for the reason that it did not appear from the record in' that cause that Aaron Battle was dead.
The decision of this court referred to is found reported under the style of Dillard v. Battle, 166 Ark, 241, 266 S. W. 80. It was there recited that Aaron Battle sought to have a resulting trust declared in the lot which lie had purchased but which, through fraud or mistake, - had been conveyed to his wife alone. The chancery court had granted the relief prayed after finding that Aaron Battle was the surviving tenant of an estate by the entirety, but that decree was reversed by this court, for the reason that, in the opinion of the court, the testimony did not support the finding that Aaron Battle had furnished the money to purchase the lot, and that no mistake was made or fraud committed when the deed from Mrs. Fulk was taken in the sole name of Hattie Battle, and the cause was remanded with directions to dismiss the complaint of Aaron Battle for want of equity.
Appellant does not claim to have been an innocent purchaser, if, indeed, he could have been, as it was shown that, before purchasing from Aaron Battle, he required an indemnifying bond from him, for the reason that the time within which an appeal might be prosecuted had not then expired.
The appeal should not have been submitted, nor should the cause have been decided by this court until there had been a revivor against the heirs of Aaron Battle, if he were not then alive. But there was no suggestion of this fact, nor does the fact appear from the record in that case, although one of the attorneys who represented appellant in the trial from which this appeal comes was the attorney for Battle on the former appeal, nor was the death of Battle suggested or made to appear upon the rendition of the decree of the chancery court on the mandate from this court. The court below was correct therefore in refusing to permit appellant to collaterally attack the decree of the chancery court on the mandate. •
In the case of St. Louis-San Francisco Ry. Co. v. Wardell-Whitton Road Imp. Dist., 157 Ark. 557, 249 S. W. 17, it was said: “It is well settled in this State that a judgment may only be attacked collaterally where, by the record, it is shown that there is a want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant” (Citing cases).
The objection made to the jurisdiction of the Supreme Court on the former appeal is that Aaron Battle was dead at the time of the decision in that cause and of the rendition of the decree on the mandate in the chancery court; but, as we have said, that fact did not appear from the record, and was not suggested either in this court or in the chancery court, and the decree of the chancery- court is now impervious to the collateral attack here made upon it.
No other defense to the action of the plaintiffs being alleged or shown, the court properly directed a verdict in their favor, and the judgment pronounced on this verdict will therefore be affirmed. | [
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Humphreys, J.
This appeal involves the sole question of when a newly organized domestic manufacturing or mercantile corporation must file the first annual certificate of its financial condition under §§ 1715 and 1726 of Crawford & Moses’ Digest, which are as follows:
“'Section 1715. The president and secretary of every corporation organized under the provisions of this act shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first day of January or of July next preceding the time of making such certificate, in the following particulars, viz.: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts; the name and number of shares of each stockholder; which certificates shall be deposited on or before the fifteenth day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose.
“Section 1726. If the president or secretary of any such corporation shall neglect, fail or refuse to comply with the provisions of § 1715, and to perform the duties required of them respectively, the person or persons so neglecting,, failing or refusing shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of any such neglect or refusal, and shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not to.exceed five hundred dollars, and each and every day such person or persons shall so neglect to comply with the provisions of said §1735, or fail or refuse to perform said duties, shall constitute a separate offense.”
Appellants were respectively the president and secretary of the Arkansas Brick & Lumber Company, a domestic corporation, organized on the fifth day of February, 1920. The president and secretary had not filed the first annual statement of the corporation until June 11, 1921.
Appellees were four creditors of said corporation, who brought separate suits upon their claim against appellant in the circuit court of Craighead County, Jonesboro District, seeking to hold them personally responsible for failure to file a certificate of the financial condition of said corporation, either between July 1 and August 15, 1920, or between January 1 and February 15, 1921. Said corporation was adjudged a bankrupt on August 1, 1921, prior to the institution of this suit. The undisputed testimony shows that the indebtedness sued upon in each of the four consolidated cases was incurred between February 15, 1921, and June 11, 1921.
The trial court construed the statutes aforesaid as requiring the defunct corporation to have filed its first certificate showing its financial condition not later than February 15, 1921, and that appellants were in default and liable personally for having failed to comply with the requirements of the statute.
Appellants contend that, under a strict construction of the statutes, they were not required to file a certificate showing the financial condition of said corporation until the first period fixed by the statute after the expiration of the corporation’s fiscal year. They base this contention upon the use of the word “annually” in the statutes, arguing that the intent of the Legislature was that the certificate should embrace a full year’s business of a corporation as of either January 1 or July 1. It is pointed out that this corporation was not organized until February 5, 1920, and that the certificate could not have been filed as of July 1, 1920, or January 1, 1921, embracing a full year’s business, because upon either date the corporation had not been in existence for a full year. The construction placed upon the statutes by appellants would permit corporations to actually engage in business for a much greater period than a year before filing its first certificate containing a statement of its financial condition. In this particular instance it is contended that, under the statutes, the president and secretary had until August 15,1921, to file the first statement of said corporation, or more than a year and one-half after it was organized for the transaction of business.
Appellants are mistaken in their premise that these statutes are penal in whole, and for that reason should be strictly construed. In so far as the statutes relate to civil liability they are remedial in character, and should be liberally construed. McDonald v. Mueller, 123 Ark. 226; Taylor v. Dexter, 126 Ark. 122. Irrespective, however, of whether a strict or liberal rule of construction is applied, we think the intent of the Legislature, as gleaned from the language of the statutes, was to require the officers of a corporation to file a certificate showing its financial condition either on July 1 or January 1 during each year of its existence, and not later than February 15 or August 15, as the case may be. We think the word “annually” used in the statutes relates to the time at which the certificate may or must be filed. It may be filed either on January 1 or July 1, but must be filed not later than February 15 or August 15, as the case may be, during the calendar year of the existence of the corporation. The word “annually” as used in the statute was construed in the case of Continental Bank of Memphis v. Bradford, 107 Fed. 188, to mean that the certificate showing the financial condition of the corporation must be filed by the president and secretary yearly, or once a year. We think this construction correct.
No error appearing, the judgments are affirmed. | [
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McCulloch, C. J.
Appellant, a business corporation, domiciled and doing business in the city of Memphis, Tennessee, instituted this action against appellees, Arthur Mann and J.. W. Roane, copartners conducting farming operations in Arkansas under the firm name of Mann & Company, and appellee Mary Lee Mann, the wife of Arthur Mann, to recover a balance of $4,777.84, alleged to be unpaid on a promissory note executed by appellees to appellant, dated April 14,1919, and payable November 1 thereafter, for the sum of $10,000. The note, a copy of which is exhibited with the complaint, was signed by appellees Mann and Roane and was signed on the back by Mrs. Mann under the following indorsement: “I hereby bind my separate estate for payment of this note. Demand and notice of protest waived.” Appellees filed an answer denying the execution of the note, but this plea was abandoned at the trial, and appellees relied, so far as concerned the makers of the note, solely on a counterclaim for damages alleged to have been sustained by reason of wrongful failure of appellant to sell cotton shipped by appellees to appellant for sale as broker. It was alleged in the counterclaim that, at the time of the execution of the note, appellant held as broker a number of bales of cotton of the crop of the year 1918, owned and shipped by Mann & Company, and that the crop of the year 1919 was also shipped, and that appellant refused to comply with the express directions of the owners to sell the cotton, thereby losing the benefit of the advanced prices, to the damage and injury of appellees in the sum of $9,000. The prayer of the cross-complaint was for the recovery from the appellant of said sum.
Mrs. Mann pleaded as additional defense that she was an accommodation indorser and .that there was a failure of demand and notice which discharged her from liability. .
At the conclusion of the trial of the cause the jury returned a verdict in the following form: “We, the jury, find for the defendants, Mann & Co. and Mrs. Mann. We, the jury, find for the defendants, Sledge & Norfleet, ou cross-suit.”
In the motion' for a new trial there are numerous assignments of error with regard to the charge of the court and the rulings on the admissibility of testimony, but all. of those assignments are abandoned here, and we are not asked to consider them.
So far as concerns the liability of appellees Mann and Roane, counsel for appellant rely, as grounds for reversal, solely on the contention that, under the verdict of the jury, there should have been a judgment rendered in favor of appellant against those two appellees for the amount of the unpaid balance on the note. Counsel contend that the effect of the verdict necessarily implied a rejection of the counterclaim of appellees, and that, inasmuch as liability on the note was not disputed other than the counterclaim which extinguished it, judgment should have been rendered by the court on the verdict in favor of appellant. We cannot agree with counsel that such was the necessary effect of the verdict, for that interpretation of its language would render it inconsistent and contradictory. There is a direct and affirmative finding against appellant for recovery of the amount, which necessarily implies a finding that the liability had been extinguished, and this can only mean that it was done by the application of damages which appellees suffered by reason of the failure of appellant to sell the cotton as directed. In other words, the language of the verdict, when each part is construed in harmony with the other part, means that the jury awarded damages on the counterclaim of appellees for a sum equal to the unpaid balance on the note, and no more. This is the reasonable interpretation to place on the language of the verdict, and it is our duty to harmonize the different parts of a verdict if -it can be done reasonably consistent with the language used. If objection was to be made to the form of the verdict, or if it was desired to make the language more explicit, the objection should have been properly made at the time the verdict was rendered and before the discharge of the jury. It is too late now to make objection to the mere form of the verdict when its substance and effect can be fairlv and definitely interpreted from 'the-language used. Johnson v. Barbour, 28 Ark. 188; Hanf v. Ford, 37 Ark. 544. The evidence is sufficient to sustain the verdict as thus interpreted, as the jury might have found from the evidence that the claim of appellees for damages was excessive, but that they were entitled to recover an amount of damages equal to the unpaid- balance on the note so as to extinguish the liability on the latter.
It appears from the testimony that, at the time of the execution of the note, appellant had on hand some of the cotton of appellees from the preceding year, 1918, and that the crop of 1919 was also shipped to appellant to handle as a broker. Appellees introduced testimony to the effect that Mr. Mann, one of thé appellees, gave positive instructions to appellant to sell the cotton and not hold it. This was contradicted by the testimony introduced by officers and agents of appellant corporation, who testified that no such directions were ever given; and that they exercised their best judgment in handling and selling the cotton. Sales were made from time to time, but all of the cotton was not finally disposed of until some time during the year 1921. There is also a conflict in the testimony as to the grade of the cotton, but all of these conflicts were settled by the verdict of the jury in favor of appellees.
The undisputed proof shows that cotton constantly declined after the spring of 1920. At the time the bulk of the cotton of the crop of 1919 was shipped to appellant the price was very high, and appellees claimed and testified that their cotton was of good grade, and that they gave specific directions to appellant to sell it. The cotton was not sold at once, but, as before stated, some of it was kept on hand for about a year while the price was declining. The evidence is undisputed that the cotton market was dull all of this time, and, as before stated, that the price was constantly declining, but, if appellant failed and refused to comply with the directions of appellees to sell, as the jury must have found by their verdict, it' did so at appellants’ own peril. The cotton was shipped to appellant, not in pledge for the security of debt, but as broker, and it was its duty to make sales in accordance with the express directions of the owners, and, in the absence of express directions, to exercise reasonable and ordinary care to make sales to the best advantage. Even if the cotton was shipped in pledge for the security of debt, appellant would be liable for any negligence in failing to handle and sell the cotton advantageously. In either event the evidence was sufficient to warrant the finding of the jury.
It is difficult to determine here upon what basis the jury figured out the damages in precisely the amount of the liability on the note, but we cannot say that it was impossible for the jury to have reached that result in their computation of damages. There is testimony as to the price of cotton from time to time, but there was no inflexible rule by which the jury must have fixed the damages with.unerring accuracy, and it was to some extent a question of judgment as to how much the damages amounted to for delay in disposing of the cotton while the price was constantly declining. We are unable to say that the verdict fixing the amount of damages is without testimony to support it.
It is unnecessary to discuss the additional defense made by Mrs. Mann, for the finding of the jury that liability on the note had been extinguished by the claim of damages made by the other appellees necessarily inured to the benefit of Mrs. Mann. If liability on the note had thus been extinguished, it is unimportant whether or not Mrs. Mann was 'originally liable on her indorsement.
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Smith, J.
This suit was brought by Ziff Lodge No. 119 of the Order of Masons, by E. Anderson, worshipful master, against Rufus Reed, and for cause of action it was alleged that the plaintiff was the owner of a tract of land described as follows: “Fifty feet on the northeast corner of a certain parcel of land known as the Brownfield property, and two hundred and ten feet running west on Maple Street from Main- Street, thence around said parcel of land,” and that title thereto was acquired under a contract for its purchase dated April 18, 1923, with one T. J. Walker, who later executed a deed thereto when the balance of the purchase money specified in said contract had been paid. It was further alleged that the plaintiff had purchased this land from one T. J. Walker, and that, pursuant to the contract of purchase, plaintiff had taken possession and had moved the Masonic building or lodge hall thereon, and had later received a deed thereto from Walker; that the defendant, Reed, was interfering with the plaintiff’s possession and was attempting to inclose the building under a fence, and had forbidden plaintiff from entering the building or going upon the land on which it stood.
There was a prayer that defendant be enjoined from interfering with the plaintiff’s possession and use of said land.
Upon filing this complaint a temporary injunction was issued by the chancellor, restraining defendant from interfering with plaintiff’s possession.
A demurrer was filed to the complaint upon the grounds that the plaintiff did not have legal capacity to sue; that there was a defect of parties plaintiff; and that the complaint did not state a cause of action. The demurrer was overruled, and defendant, reserving the questions raised thereby, filed an answer, alleging that the description of the land sued for was so indefinite that it was void for its uncertainty.
It was further alleged in the answer that, on November 27, 1923, T. J. and S. F. Walker executed a warranty deed to defendant, conveying an acre of land, which was there properly described, but from the acre so described a strip of land was reserved under the following description: “less a strip of land off the north side of said tract 50 feet north and south by 210 feet east and west, said land having been sold by grantors to the Masonic Lodge.”
The deed from Walker to defendant was executed just a year to a day before the execution of the deed from Walker to the lodge, and the answer alleged that the lodge building was not on the land reserved from the grant in the deed to the defendant, and that plaintiffs were in possession of a portion of the acre to which they had no title whatever. There was a prayer that the injunction be dissolved, and that defendant have judgment for damages. An amended answer and cross-complaint was later filed, in which it was alleged that plaintiff’s deed was a cloud on defendant’s title, and should be canceled, as the deed to defendant from Walker did not convey all the land he had purchased, and that the same should be reformed so as to describe and convey all the acre except the north fifty feet.
The cause was transferred from the chancery court to the circuit court, and retransferred from the circuit court to the chancery court over defendant’s objection.
It appears that Walker had title to a tract of land approximately one acre in area, each of its four sides being .210 feet in length, and it was referred to by all the witnesses as the acre lot. This lot fronts Main Street in the town of Dermott, and, at a time not made certain, but prior to the execution of any of the contracts or deeds herein referred to, the town laid off a street designated as Maple Street, • which ran across the north end of the acre lot and at a right angle with Main Street.
It is the insistence of defendant that the strip of land -attempted to be reserved from the land g'ranted in the deed to him from Walker practically coincides with Maple Street, whereas the lodge moved its building on a part of the acre lot south of that street. Defendant therefore alleged, and now insists, that, if the deed from Walker to the lodge and the reservation from the grant in his deed' from Walker are not void for uncertainty, the strip of land conveyed to the lodge is the- north fifty feet of the lot, whereas the lodge building is south of this fifty-foot strip of land.
The court found, on the final submission of the cause, that plaintiff was the owner of the strip of land in controversy, and the temporary injunction was made permanent, and defendant was perpetually enjoined from interfering with the plaintiff’s possession.
It is earnestly insisted that the demurrer to the complaint should have been sustained, for the reason that the title to the lot in controversy was not in the lodge or its worshipful master, but was in the name of E. Anderson and three other persons as trustees for the lodge; that the land described could not be identified by the description employed; and that the contract of sale and the deed executed pursuant thereto were both void because of the defective description.
The complaint alleged that the lodge was in possession of the land in controversy, and that the suit was brought by the worshipful master of the lodge to protect this possession, and the demurrer as to the defect of parties was based upon the ground that the worshipful master did not allege title in himself.
The suit was brought as one to protect the possession, and does not -allege by what authority the worshipful master of the lodge sues to protect it. These defective allegations -as to the right of the worshipful master to the possession for the use of the lodge should have been reached by a motion to make more specific, and not by a demurrer. Sanders v. Carpenter, 102 Ark. 187, 143 S. W. 1091. There was no motion to make the complaint specific by alleging the authority under which the suit was brought, nor was there any motion to bring in new parties. The defect of parties was not apparent from the face of the complaint.
It is true the complaint alleged the right to the possession of a strip so indefinitely described that it could not be identified by the description employed; but the complaint alleged the right of possession and the possession of a building on a lot only one acre in area, and this allegation was at least a sufficient description of the house itself. We conclude therefore that the demurrer was properly overruled.
We are also of the opinion that no error was committed in retransferring the cause from the circuit to the chancery court. The plaintiff alleged that it was in possession of the property, and each party asked relief of an equitable nature against the other.
The testimony in the case established the following facts: In 1920 Walker entered into a verbal contract with defendant Reed to sell him the acre lot for the snm of $800, deed to be made when that sum had been paid, and Reed, after paying $225 of this amount, discontinued his payments. Walker testified that Reed advised him that he had bought another lot and would not complete his payments.
Walker made the contract herein referred to to sell the lodge a strip of land fifty feet across the lot, the contract being dated April 18,1923, for the sum of $200, and a cash payment of $50 was made at the time, and Walker staked off the land which he thus contracted to sell, it being parallel to and south of Maple Street. Reed brought suit to enjoin this sale, and alleged his prior purchase, and obtained a temporary injunction. Walker filed an answer to this suit, in which he alleged that Reed had, by his failure to make the deferred payments, forfeited his rights under his verbal contract of purchase, but Walker made a tender of a deed in his answer to Reed, which he offered to deliver upon the payment of the balance due under the contract. This offer was not accepted by Reed, and the injunction was dissolved and the suit dismissed on May 19, 1923.
In the meantime Walker had been sued by his wife for divorce and alimony, and he paid $195 for her claim against the lot. Reed thereupon made another contract with Walker, which Reed called a compromise -of the first suit, but which Walker testified was an entirely new trade. When this trade was made the lodge building had been moved on to the lot, where it now stands. Reed testified that, under the new trade or compromise settlement, he was to get title to all the lot except the north fifty feet, and that the original price of $800 was to be paid in the following manner: He was to have credit for the $225 previously paid; he was also to have credit for the $200 paid by the lodge and the $195 which Walker had paid as alimony, which would leave a balance of $175 'due, and that he paid this in cash and received a deed to the entire acre “less a.strip of land off the north side of said tract 50 feet north and south by 210 feet east and west, said land having been sold by the grantors to the Masonic Lodge.”
It is Reed’s contention that, as his deed is prior in time to the one of the lodge, he takes title to the entire acre, which is accurately described in the deed to him, and that the reservation of the fifty-foot- strip is void because it was not sufficiently described, and further that, if the reservation is not void, the strip reserved is the north fifty feet of the lot, most of which lies in' Maple Street, and not the fifty feet south of Maple Street, on which the building is located.
Walker, however, gives an entirely different version of the second contract with Reed. He says that Reed knew he had contracted to sell the lodge the fifty feet south of Maple Street, and not the north fifty feet of the lot, as the Masons were then in possession- of the land which they had bought and the corners of their lot were marked by stakes, a fact well known to Reed, and that the true description of the land reserved in his grant to Reed was the north fifty feet of the lot south of Maple Street, and that he agreed to accept $175 additional from Reed in payment for a deed to the remainder of the acre.
If Reed’s testimony is accepted as to the terms of the new trade, the balance due would have been $180, and not $175, as Reed testified; but the court evidently did not accept as true the statement of Reed. The court evidently credited the testimony of Walker, and not that of Reed, and, if Walker’s testimony is true, he only intended to sell the acre less the fifty-foot strip south of Maple Street.
We repeat, in this connection, the statement that the Masons were in possession of a portion of the acre when the deed to Reed was delivered, and this possession was equivalent to actual notice to Reed of the title, rights or equities of the occupants. Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591.
The facts in the case cited were that Smith owned the northwest quarter of a section of land, and agreed to sell Lockert forty acres off the west end of the south half. Smith undertook to convey the land, but, by mistake, described it as the southwest quarter of the northwest quarter, which description embraced only twenty-three acres, as the quarter quarter described was fractional, and, after the execution of this deed, Thalheimer ■bought the remainder of the quarter section. Lockert entered into the possession under the deed which described only twenty-three acres, and later brought suit to reform his deed. Thalheimer had purchased without actual notice of Lockert’s occupancy, and Lockert did not place his deed of record until after the sale to Thalheimer, but Thalheimer had been informed by Smith that he had previously sold forty acres to Lockert, who was in the actual possession of eight acres of the land. It was held on the appeal to this court that “such possession was equivalent to actual notice of the title, rights or equities of the occupant,” and that, as Thalheimer had purchased with notice of these equities, Lockert was entitled to have his deed reformed.
So here, Reed’s second contract with Walker was made after the lodge had taken and was in actual possession of a portion of the land, and had moved its building thereon, and Reed was therefore charged with notice of the lodge’s interest in the land, and that interest, as established by the testimony, -was to a strip of land adjacent to and south of Maple Street.
When the testimony was taken it appeared that Walker had made the deed to the trustees of the lodge, and that this deed described the strip of land for which the lodge contends. But, while the testimony established the fact that the legal title to the lot was in the trustees, and that they were not parties plaintiff, it also appeared that Anderson, the worshipful master of the lodge, who brought the suit, was one of the trustees, and that the other trustees testified as witnesses in the case and otherwise participated in its prosecution, There was no motion, after these facts were developed by the testimony, to have the trustees made parties.
■ In the case of Missouri Pacific R. Co. v. Block, 142 Ark. 127, 218 S. W. 682, Block, in his individual name, sued to recover damages sustained in the shipment of a carload of hogs. The complaint had alleged title in Block, a fact which was denied by the answer. In the cross-examination of Block, the fact was developed that the hogs were owned by himself and one Mitchell, a partner, and a motion was thereafter made to dismiss the suit because Mitchell was not .joined as a party. It was there said:
“Mitchell was present at the trial of the case, and was introduced as a witness by appellee; in fact, the right to recover was established by Mitchell’s testimony. His presence at the trial constitutes an approval of the prosecution of the action in the name of his partner alone, and he is estopped to dispute appellee’s right to maintain the action. This estoppel would prevent 'appellant from being subjected to another suit for the same right of action, and there is no prejudice in the court’s refusal to dismiss the action or to require Mitchell to be made a party. Appellant did not move the court to make Mitchell a party, which doubtless would have been done if asked.”
So here, there was no motion to make the trustees parties, and by their active participation in the trial of this cause they estopped themselves from disputing the right of their co-trustee, suing as the worshipful master or presiding officer of the beneficiary lodge, to maintain the suit.
Upon a consideration of the whole case it appears that equity has been administered, and the decree is therefore affirmed. | [
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McCulloch, C. J.
The two appellees, Jess King and Fred King, each instituted a separate action against appellant to recover the value of cattle which escaped from the pens at Bald Knoh, where the cattle had been placed for shipment, and also to recover damages for delay in the shipment of the. remainder of the cattle.
It was alleged that, on account of the insecurity of the pens, the cattle escaped, and that one of the appellees, Jess King, lost five of his cattle, and that Fred King lost four. It was also alleged that there was a delay of more than twenty-four hours in the transportation of the remainder of the cattle, and that each of the appellees sustained loss on account of the shrinkage in weig'ht and consequent loss in value. Negligence of appellant is alleged in furnishing insecure cattle pens. The allegations of negligence were denied by appellant, and there was also a plea that the delay was caused by a strike of appellant’s employees, and-that the bills of lading issued to appellees exempted the carrier from loss or damage resulting from delays caused by strikes of employees. The two cases were consolidated, and the trial resulted in a verdict in favor of Jess King for $100, and in favor of Fred King for $40.
The evidence adduced by appellees tended to show that the cattle which were lost were of the value of twenty to twenty-five dollars per head, and that the loss of Jess King-for shrinkage in weight amounted to the sum of $115.89, and that the loss of appellee Fred King amounted to $49.65. The case was submitted to the jury on the question of liability, both for the alleged negligence in furnishing an insecure cattle pen and for the alleged negligent delay in transportation. It is impossible to determine upon which phase of the case the verdict of the jury was based, as the verdict might have been upon either phase of the case, so far as the amount is concerned. The recovery by Jess King was for $100, which might have been solely on account of the loss of five head of cattle -at twenty dollars per head, or the verdict'might have been for that much of the claim for shrinkage in weight. It is evident that the jury based its verdict in favor of Fred King on the shrinkage in weight of the cattle, hut the amount recovered was not for the full amount which the evidence showed he lost. The fact that the verdict is for a less amount than the evidence warranted, and may appear to be inconsistent on that account, does not call for a reversal, for the appellees are not complaining. Sledge & Norfleet Co. v. Mann, 166 Ark. 358. The situation, however, calls for a consideration of each of the phases of liability asserted by appellees, and, if there is any error on either branch of the case, a reversal must result.
It is contended by counsel for appellant that there is no liability for the escape of the cattle because the bill of lading contained a stipulation that the shipper should assume the risk of feeding, watering and otherwise caring for the cattle while in the yards, cars or pens, and load the same at his own expense and risk. The answer to this contention is that the loss on account of the escape of the cattle occurred before the bill of lading was issued, and therefore the exemption from liability does not apply. St. L. S. F. Ry. Co. v. Pearce, 82 Ark. 353; St. L. I. M. & S. Ry. Co. v. Jones, 93 Ark. 537.
It is next contended that appellant is not liable as a carrier for the reason that the cattle had not been accepted for immediate shipment and that its liability would only be as a depository or bailee. It is sufficient, for the purpose of the case, to answer this contention by saying that the court did not submit the issue to the jury upon the liability of appellant as a public carrier, so far as concerns the escape of the cattle, but the instruction merely submitted the question of negligence in furnishing insecure pens and thus permitting the cattle to escape. In other words, the court submitted the question of ordinary care, and not the question of liability of appellant as a public carrier.
There was evidence sufficient to warrant a finding that appellant was negligent in furnishing an insecure place for the shippers to use in turning in the cattle for immediate shipment. The evidence shows that the fastening on the gate was insecure, and that appellants agent was notified of the insecure fastening and requested to furnish a lock with which to fasten the gate.
On the other branch of the case the only contention made is that, under the undisputed evidence, the stipulation of exemption from liability on account of strikes furnished a complete defense. That question was submitted .to the jury on proper instructions, and we do nofi think that the evidence shows that the delay was caused on account of a strike, at least it cannot be said that the undisputed evidence is to that effect.- There was a delay of twenty-four hours at Bald Knolb, the point of shipment. There was a train due -about nine o’clock in the morning of August 19, which might have carried the carloads of cattle shipped by appellees, but the cars were not, in fact, taken out until about the same hour on the morning of August 20. This delay is not explained, except by the general statement of one of appellant’s witnesses that there was a strike of employees which interfered with schedules. There was no testimony introduced tending, directly, to show that the delay in this instance was caused by a strike. It was not sufficient merely to show that there was a disarrangement of schedules, but, in order to take advantage of this exemption, -it devolved upon appellant to show that the particular delay was caused by a strike.
Our conclusion is that there was evidence to sustain liability on either branch of the case, and that the issues were properly submitted to the jury. Affirmed. | [
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McCulloch, C. J.
This appeal involves a contest of the last will and testament of Mrs. Maeda C. Reynolds, who was a resident of the city of Hot Springs, and died on April 10, 1923. The instrument in controversy was executed on February 24, 1923, and, being without attesting witnesses, it was offered for probate as a holographic will. Evidence was introduced tending to show that the entire body of the will and the signature thereto were written in the proper handwriting of the testatrix, as required by statute ('Crawford & Moses ’ Digest, § 10494, par. 5), and the verdict of the jury was in favor of upholding the will.
The instrument was written on the printed stationery of a certain hotel in Hot Springs, of which the coiitestee, Al A. Reynolds, was the manager, and where he and the testatrix resided at the time of the execution of the will and at the time of her death. The instrument is in the form of a letter addressed by the testatrix to the eontestee, her husband, and the printed heading on the stationery contained the name of the city, and following a blank space the figures 192. In the space between the name of the city and the figures mentioned above there was written ‘ ‘ Feb. 24, ’ ’ and the figure'. “ 3 ” was added in writing to the printed1 figures. The whole instrument is as follows:
“Hot Springs, Ark., Feb. 24, 1923.
“Mr. Al. A. Reynolds.
“Dear Husband: I realize that my condition is serious, and I want this letter .to be my last will and testament.
“I give and devise to my mother the following articles :
“My diamond and platinum bar pin.
“My diamond twin ring and one thousand dollars cash.
“To Dr. A. L. Sneed one thousand dollars in cash.
“To my aunt, Mrs. Ada K. Morrin, I give one thousand dollars in cash and mole and Kolinsky furs.
“I want you, my husband, to have everything else that I own at my death.
“I want you to be the executor of this, my will.
“Your loving wife,
“Maeda C. Reynolds."
Dr. Sneed, mentioned in the will, was the stepfather of the testatrix, and Mrs. Morrin was her aunt — her mother’s sister. Appellant, the mother of the testatrix, is the sole contestant.
It appears from the testimony that the contestee and the testatrix had been married about sixteen years. They had no children, and1 lived together in apartments at the hotel, of which the contestee was manager. Mrs. Reynolds became afflicted with cancer in the right breast, and in July, 1922, there was a serious operation performed by the removal of the right breast and adjacent glands. Physicians testified that the cancerous condition was very extensive, and that, after the operation, there was left an ulcerous wound, which continued up to the time of her death. A specialist from St. Louis examined Mrs. Reynolds at her room in Hot Springs on February 22, 1923, which was two d'ays before the execution of the will, for the purpose of determining whether or not she could be carried to St. Louis for another operation. The physician testified that he found Mrs. Reynolds much emaciated, and unable to walk; that the abdomen was tense, the liver enlarged, and lower extremities swollen below the knees, and that she was not in any condition to be removed to St. Louis for treatment, and that he considered her mental condition at that time such that she was not capable- of executing a will.
It is disclosed in the testimony that, the dav before the execution of the will, a lady friend of Mrs. Reynolds stated to her that she would only live a short time, and, on the morning on which the will was executed, Mrs. Reynolds spoke of this to her husband, and expressed a desire to make a will, and the will was then written in his presence. Appellee telephoned for another employee of the hotel, named Reynolds (not related to contestee), and he came up to the room, and the will was written in the presence of both of the men. According to the undisputed testimony, that of appellee himself and the other-witness, Reynolds, the entire body of the will and signature -were written by the testatrix, but she conferred with appellee during the preparation of the will, and called for suggestions from him. Both of these witnesses testified that, after witness Reynolds came into the room, Mrs. Reynolds asked contestee how to start the instrument, and he told her just to address it in the form of a letter to him and then write down the bequests she wished to make. They testified that Mrs. Reynolds slated first that she wanted1 her mother to have the ring and pin mentioned in the will and one thousand dollars in money, and that appellee replied “All right, just write that down.” She called over the other bequests that she wanted to make in the same way and received the same reply from her husband, to write it down the way that she wanted it.
There is a conflict in the testimony as to the physical and mental condition of Mrs. Reynolds at the time of the execution of the will. Numerous witnesses, including physicians who attended Mrs. Reynolds, testified that her mental condition was good up to the time of her death. It is conceded that her physical condition was poor on account of the serious operation and the result thereof, but witnesses introduced by the contestee testified that Mrs. Reynolds was up most of the time during the day, and was able to sit at the table and write. The evidence adduced on the part of appellant tended to show that Mrs. Reynolds’ physical condition was such that it was impossible for her to sit up or to do any writing at the time of the execution of the will. These conflicts in the testimonv were, of course, settled bv the verdict of the jurv, and there are no express statutory requirements with reference to a will of this character, except that it is essential that such an instrument shall be “established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting of each testator or testatrix. ’ ’
It is first insisted that the will is not valid for the reason that it is essential to the validity of such a will that it be dated, and that the date of this instrument is not entirely in the handwriting of the testatrix, being partly printed and partly written. It is provided by statute in some of the States that a holographic will must be written, dated and signed by the testator or testatrix, and in those States the decisions are that the dating of the will is essential; but our statute contains no such requirement with respect to the dating of a will, and the prevailing rule is that, in the absence of such a statutory requirement, a will, either one that is attested' or one that is holographic in form, need not be dated. This subject is fully discussed in the note to the ease of Dye v. Shutan. L. R. A. 1916E, 498. The rule there stated in the note is that, “while it is the custom to date mils, in the absence of a statute it is not necessary that the will should bear a date.” The question has not heretofore been presented to this'court, but we are clearly of the opinion that, under our statute, the prevailing rule should be applied, and that the absence of date is immaterial, even as to a holographic will. This being true, the entire date line may be discarded so as to leave the will withopt a date, and that does not affect the validity of the will. Ah imperfect dating is no dating at all, and, as it is not an essential part of the will, it may be disregarded, and tlie will be upheld,' if the body of the- will and the signature be proved,' in the manner required by statute, to be in .the handwriting of the testator or testatrix. We have often held that the form óf such a will is unimportant if there is compliance with the statutory requirement with regard to the body of the will and the signature being in the handwriting of the testatrix, and we have expressly held that an instrument in the form of a letter addressed to one or more'beneficiaries is sufficient compliance with the statute. Arendt v. Arendt, 80 Ark. 204; Mason v. Bowen, 122 Ark. 407; Murphy v. Murphy, 144 Ark. 429; Borchers v. Borchers, 145 Ark. 426; Musgrove v. Holt, 153 Ark. 356; Cartwright v. Cartwright, 158 Ark. 278.
It is next contended that the court erred in admitting the testimony of the eontestee, Reynolds, and also that of Mrs. Morrin, another one of the beneficiaries under the will. The contention is that they are incompetent as witnesses because of their interest in the result of the controversy, and that they should be excluded under the statute which provides that, if a subscribing witness to the execution of a will wherein a beneficial devise or legacy or interest is made to the witness, and ihe will cannot be proved without the testimony of such witness, the devise or legacy to that witness is void, and that such person shall be a competent witness and'may be compelled to testify respecting the execution of the will “in like manner as if no devise or bequest had been made to him.” Crawford & Moses’ Digest, 10529. This court has decided the question contrary to the contention of appellant, and we have held that this statute only applied to beneficiaries under the will who are attesting witnesses. Strickland v. Smith, 131 Ark. 350. There was no error in permitting* the witnesses to testify.
It is also contended that' the court erred in permitting a witness to testify concerning the declarations of the testatrix of her knowledge as to the result under the law if she should die without a will. This declaration was to the effect that her husband would get nothing*. The issue in the case was that of mental capacity or incapacity of the testatrix, and it was competent to prove her own declarations for the purpose of establishing her mental condition. Mason v. Bowen, supra.
Objection Is made to the testimony of two of the witnesses, 'Stanley Lee and E. N. Roth, on the ground that they showbd familiarity only with the signature of the testatrix and were therefore not competent to testify concerning the handwriting in the body of the will. There was no objection made to the testimony at the time it was offered. On the contrary, appellant’s counsel cross-examined the witnesses to a considerable extent for the-purpose of testing the accuracy of their knowledge concerning the handwriting of the testatrix. It is too late to object here for the first time to the competency of the witnesses, and we do not- understand that such is the objection made here now, but the contention is that the testimony was without probative force because of the lack of familiarity of the witnesses with the handwriting of the testatrix. The weight of the testimony was a question for the jury if the witnesses showed by their testimony sufficient familiarity with the handwriting of the testatrix to justify the court in permitting them to testify on the subject. Those witnesses testified that they had become familiar with the handwriting of Mrs. Reynolds in handling her checks on the bank. They testified that they had handled numerous checks and were particularly familiar with her signature, but their testimony was sufficient to warrant the belief that they were familiar with her handwriting other than her signature, and it was therefore proper for the court to- permit them to testify and let the jury determine what weight was to be given to the testimony.
The case was submitted to the jury on the issue of mental capacity of the testatrix. Appellant alleged undue influence, but the court refused to submit that issue, on the ground that there was no evidence in the record to justify, it.' We think the court was correct in its con-elusion, for we are unable to discover any testimony legally sufficient to justify a finding- of undue influence. This court has decided that, in testing the validity of a will, the influence which the law condemns as undue “is not the legitimate influence which springs from natural affection, but the malign influence which springs from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” McCulloch v. Campbell, 49 Ark. 367; Miller v. Carr, 94 Ark. 176; Milton v. Jeffers, 154 Ark. 516. All that is shown in the effort to establish undue influence is the relationship between the contestee and the testatrix as husband and wife, and the fact that he was present at the time of the execution of the will, and,' at her request, made suggestions concerning the form of the instrument. Nothing more was proved than that, and the same witnesses who testified to those facts testified that the testatrix acted freely, of her own accord, in framing the testament, and that she was of sound mind at the time. ■To permit the jury, under the facts established in the present case, to find that there was undue influence, would be to uphold a verdict upon a mere conjecture, or a bare inference of undue influence, from the fact alone that the chief beneficiary of the will was the husband o f the testatrix and that he was present in conference with the testatrix at the time of the execution of the will. If that be sufficient, it would be next to impossible for one of the spouses to mate bequests to the other without laying the transaction open to more than a mere suspicion of undue influence, and to permit a trial’ jury to infer from the relationship alone that there might have been undue influence. In order to submit that, as well as any other issue to the jury, there must be substantial evidence which would warrant the jury in drawing a reasonable inference that the will was executed under 'that “malign influence which springs from fear, coercion, or any other cause which deprives the testator of his free agency in •the disposition of his property.”
There are numerous other assignments of error with respect to the instructions given and refused.
The first instruction given by the court at the instance of the contestee is as follows:
“1. This is an action by Al A. Beynolds and others to establish a certain paper writing, introduced and read in evidence, as the last will and testament .of Meada C. Beynolds, deceased. If you believe from a fair preponderance of the evidence that the entire°body of the will, together with the signature of Meada C. Beynolds, was written by her in her own proper handwriting, and that this fact has been proven to your satisfaction by the unimpeachable evidence of at least three disinterested witnesses, then it would be your duty to find in favor of the will.”
It is contended that this instruction was erroneous in ignoring the issue of mental incapacity. There was no specific objection made to the instruction, and we are of the opinion that a general objection was insufficient to raise the question that it' ignored the issue of mental incapacity, which was fully submitted in other instructions. This instruction manifestly was intended to relate only to the issue in the' case as to the execution of the instrument, and, if it was thought that it excluded the other issue in the case, attention should have been called to the omission by a specific objection.
Instruction No. 7, which was requested by appellant and refused by the court, reads as follows:
‘ ‘ The court instructs the jury that, before the instrument offered as the will of Meada O. Reynolds can be established, it must be proved by at least three disinterested-witnesses that both the entire body of the will and the signature thereto is in the handwriting of Meada C. Reynolds, and the proof of these three witnesses as to the handwriting of both the body of the will and the signature must be sufficient to convince you that she -actually wrote the will, independent of the evidence of any witnesses to the effect that they saw her write the will-”
This instruction was erroneous in telling the jury’ that, as a matter of law, the testimony of three disinterested' witnesses as to the handwriting of the testatrix must be sufficient, independent of any other evidence, as to the handwriting of the will. The statute, as we have already seen, requires that a holographic will “may be established by the unimpeachable evidence of at leas' three disinterested witnesses to the handwriting of each testator or testairix,” but this statutory provision does not exclude other testimony in corroboration. Before such a will can be sustained it must be proved by the “unimpeachable evidence of at least three disinterested witnesses to the handwriting*,” and the testimony, together with all other testimony in the case, must he sufficient to satisfy the jury, but the court had no right to exclude other testimony which might aid the jury in reaching a conclusion as to whether or not the witnesses were unimpeachable and whether or not their testimony was sufficient to establish the will. This particular question has not heretofore been presented, but our decision in the case of Murphy v. Murphy, supra, sufficiently indicates what the law is on this subject, likewise the opinion of the court in Arendt v. Arendt, supra. In both of those cases we held that the language of the statute meant an unimpeachable witness to be one whom the jury found to have spoken truthfully and whose conclusion they found to be correct, though there was other evidence tending to contradict him. We see nothing in the statute which forbids the corroboration of witnesses to the’ handwriting in order to support their testimony to the effect that the handwriting is that of the testator or testatrix.
After considering all the assignments of error in the-record, we are of the opinion that none of them are well founded, and that the case was properly sent to the jury upon correct instructions and upon legally sufficient evidence. The judgment is therefore affirmed. | [
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Wood, J.
Separate actions were instituted in the chancery court of Poinsett County by the commissioners of Water District No. 1 and Sewer District No. 2 of the town of Lepanto against W. B. Ballard and others, appellees, for the collection of alleged delinquent improvement district taxes, penalty and costs, and praying that liens be declared on the real property in the district and that same be subject to the payment of the delinquent taxes and penalties. The lands alleged to be delinquent were described and the amount of the assessments thereon set forth in a list which was attached as an exhibit to the complaint. There was an answer in each of the actions by property owners of the district, denying all the material allegations of the complaints, and raising the only issue involved here, to-wit, that the lands upon which the benefits were assessed and upon which liens are sought were not benefited and could not be benefited by the improvements because they were not connected with the present improvements, and it was not contemplated that they would be connected, and that the assessments sought to be collected bv this action were therefore void.
The causes were, by consent, consolidated and heard by the chancellor. The court heard the consolidated cause upon the pleadings, exhibits, depositions of witnesses, stipulation of counsel, and the maps of the improvement districts, from all of which the court found as follows:
That a certain tract of land belonging to the Union &• Planters'’ Bank & Trust Company, lying east of Little River and east of J. R. Hirschman’s. 4th Addition, containing about forty-two acres, and part of another tract lying east of Little River and west of the town of Lepanto, containing twenty acres, received no benefit whatever from the construction of the water and sewer improvements, and canceled the assessments on these tracts. The court further found that certain lots belonging to the Union & Planters’ Bank and Trust Company in J. R. Hirschman’s 4th Addition and certain lots and blocks in J. R. Hirschman’s 3rd Addition, and also certain lots and blocks belonging to J. R. Hirschman and Wilna Hirschman in J. R. Hirschman’s 4th Addition to the town of Lepanto, all of which are -described in the decree, had received no benefit from the sewer improvement district, and canceled and set aside the assessment for such sewer improvement district. But the court further found that this same property had received benefits from the water improvement 'district, land that the assessment for the water improvement district should be sustained. The court entered a decree according to its findings, permanently enjoining the collection of the assessments on the acreage property for both the water and sewer improvements and enjoining the collection of the assessments on the other property, that is, the property consisting of the lots and blocks in the town of Lepanto, for the sewer improvement, but declaring a lien and ordering the assessments paid on the lots and blocks in the town of Lepanto for the water improvement. This appeal by the districts and their 'Commissioners challenges the court’s decree canceling the assessments and denying the collection on the acreage property for both the water and sewer improvements, and also the decree canceling the assessments and enjoining the col lection thereof on the town lots for the sewer improvements, and the appeal by the appellees challenges the decree declaring a lien on the town lots for the amount of the assessment thereon for the water improvement, and awarding the collection of the assessment for such improvement.
Every question at issue on these appeals is ruled by the opinion of this court in the case of Carney v. Walbe, ante p. 746. In the above case, among other things, we ■said:
“Where the property owner delays until after the period of time prescribed by statute for a direct attach on the action of the council establishing the district, and the assessment of benefits to the real property situated therein, a suit by the property owner to review the proceedings of a common council establishing the district or the board of assessors in assessing the benefits to the real property within the district is a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous.” .
In this case we reviewed former cases, especially the cases of House v. Road Improvement District, 158 Ark. 350, 357, 251 S. W. 12, and Blytheville v. Baker, 171 Ark. 602, 286 S. W. 945. The effect of our holding in these cases is that, on .collateral attack, what is' meant by a “demonstrable mistake” is such a mistake as can be shown only on the face of the record of the proceedings creating the district or assessing the benefits. Extraneous testimony, such as that of engineers and others, tending to prove that certain portions of the territory embraced in the district could not and would not be benefited by the improvements contemplated, is not relevant and competent on collateral attack. Such testimony is only competent and relevant where a direct attack is made by property -owners affected on the proceedings creating the districts and laying the assessments of benefits. The opportunity given property owners under the law to make such direct attack is due process; if they let this opportunity pass, they have no right to call in question the regularity of the proceedings either in creating the districts or laying the assessment of benefits, except where it can be demonstrated by an examination of the record itself creating the districts and laying the assessments that a mistake has been made. Such is the effect of our"decisions as shown by the review thereof and the conclusion reached in the case of Carney v. Walbe, supra. See also Stiewel v. Fencing District No. 6 of Johnson County, 71 Ark. 17, 70 S. W. 308, 71 S. W. 247; Board of Improvement v. Offenhauser, 84 Ark. 257, 105 S. W. 265; 25 R. C. L. 592; Hibben v. Smith, 191 U. S. 310, 24 S. Ct. 88, 48 L. ed. 195.
It would be supererogation to pursue the matter further.
The cross-actions by the defendants, in the case at bar are collateral attacks upon the assessments Which are sought to be collected by the original complaints herein. It is conceded that all the proceedings were regular under which these districts were created and the benefits assessed, but it is contended by the property owners who are resisting the collection of assessments that these assessments were void because their property was not benefited. If the testimony of the engineers were competent to prove such fact on this, collateral attack, we would agree with the learned chancellor that such testimony in this case is sufficient to prove that the property here involved is hot benefited. But we have examined the maps and plats showing the territory embraced in the districts and the topography thereof, with reference to the town of Lepanto, and it is impossible, to conclude from the face of the record of the proceedings creating the districts and assessing the benefits that the lands on which’the assessments are soug’ht to be collected are not benefited by the improvements. Certainly the fact that Little River runs'through the town and separates certain portions of the lands embraced in the districts, and that certain of these lands are shown to be acreage or farming territory, is not sufficient to show a demonstrable mistake in the assessment of benefits on the property'in controversy. There is nothing on the face of the record of the proceedings creating the districts and making the assessments from which the court will take judicial notice that there was a demonstrable mistake in making the assessments. As we have already seen, in this collateral attack on the assessments the testimony of engineers is not competent, under our decisions, for the purpose of demonstrating that a mistake was made in the proceedings creating the districts and making the assessments. The time for that has passed.
It follows that the decree of the court annulling the assessment on the acreage property for both water and sewer improvement is erroneous, and the same is reversed, and remanded with directions to dismiss the cross-complaints and to grant the prayer of the original complaint for the collection of the delinquent assessments on the acreage as well as on the town lots and for both-the water and sewer improvements. It follows also that so much of the decree as awards the collection of the assessments on the town lots for the water improvement is correct, and it is therefore affirmed. | [
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Humphreys, J.
Appellant brought suit against appellees in the chancery court of Chicot County to cancel a note and mortgage he executed to Virgil R. Coss Mortgage Company on the 17th day of November, 1920, and by it assigned to the New Milford Security Company, upon the ground that the contract provided for a greater rate of interest than 10 per cent, per annum, which rendered it usurious and void under the laws of Arkansas, both as to principal and interest. It was alleged in the bill that appellant procured the loan from the Virgil R. Coss Mortgage Company, an Oklahoma corporation, residing at Muskogee, Oklahoma, through its agent, American Farm Mortgage Company, a partnership composed of H. D. Price and Guy V. Busenburg, which had its office at Pine Bluff, Arkansas; that the loan was for $1,300 on its face, payable in ten years, bearing interest' at the rate of 7 per cent, per annum from date until paid, and it was agreed in the written application for the loan that $300 of the amount should be deducted as a commission to the American Farm Mortgage Company for procuring the loan, and that, pursuant to the contract, the cash bonus was deducted from the $1,300, which rendered the contract usurious. The mortgage in'which the note was described was made an exhibit to the bill. The mortgage and note were executed in Arkansas, and made payable at the office of Virgil R. Coss Mortgage Company in Muskogee, Oklahoma. The mortgage also contained the following paragraph:
‘‘ It is agreed that the rate of interest herein reserved and charged shall not in any event exceed the maximum legal rate permitted by the laws of Arkansas. If interest in excess of the maximum legal rate has been charged, it is through an error in computation, and it is agreed, that any excess collected above the maximum legal rate shall be credited, upon any amount, either principal or interest, remaining unpaid when such overcharge is discovered.’’
The American Farm Mortgage Company filed a demurrer to the bill, which was sustained by the court.
The other appellees filed separate answers to the bill, denying each material allegation therein.
The cause was submitted upon the pleadings and testimony adduced, which resulted in a finding that there was no usury in the transaction, and a decree dismissing appellant’s bill for the want of equity, from which finding and decree an appeal has been duly prosecuted to this court.
This is a companion case with that of Virgil R. Coss Mortgage Company v. Marcus and Malvina Jordan, appealed to this court from the chancery court of Drew County, involving the same issues. Much of the testimony was taken at the same time to be used and treated as testimony in each case. Learned counsel for appellant has summarized the facts disclosed by the testimony, which we adopt in the main, with some necessary additions, as a statement of the facts by the court. It is as follows:
“About twenty-five years ago, H. D. Price, who had for a number of years been engaged in the farm loan business, moved from Oklahoma City to Wilburton, Oklahoma, and opened up a bank. This placed him so far out of touch With his Eastern investors that he turned over, or was instrumental in turning over, his loans to the Virgil R. Coss Mortgage Company. From Wilbur-ton, H. D. Price went to Keota, where, in addition to the banking business, he was at all times a farm loan man. When Price and Coss first became acquainted, they were competitors in Oklahoma City; afterwards Coss moved to Muskogee, where he is now operating the Virgil R. Coss Mortgage Company. For a number of years H. D. Price lived at Stigler, Oklahoma, where Price and Busenburg and a Mr. Zebold operated a farm loan brokerage under the name of the American Farm Mortgage Com pany. About eight years ago, Mr. Price disposed of his business at Stigler and Keota, Oklahoma, and moved to Pine Bluff, Arkansas, where he and Guy Y. Busenburg formed a partnership under the name of American Farm Mortgage Company. Mr. Zebold, who had formerly been with Price and Busenburg at Stigler, moved to Muskogee and became associated with the Yirgil R. Coss Mortgage Company as vice president. For several years prior to this time the Coss Mortgage Company had been handling loans for the American Farm Mortgage Company. Mr. Coss states that it was generally understood that if, upon the investigation of the Arkansas territory, he found it a desirable place to make loans, he would handle their business. At that time the Virgil R. Coss Mortgage Company had never done business in Arkansas, but, shortly after the American Farm Mortgage Company was organized at Pine Bluff, it entered the State of Arkansas as a foreign corporation, for the sole purpose of handling loans secured by the American Farm Mortgage Company, and named H. D. Price as its agent for service of summons.
“The American Farm Mortgage Company advertised in the papers and by circular letters that it had money to loan on long time paper at a low rate of interest, but confined its business, almost exclusively, to colored people. When it received an application for a loan from a prospective customer, H. D. Price, the field man of the American Farm Mortgage Company, would go and inspect the property, and, if he found it desirable security for the amount applied' for, he took the mortgages and notes, and then and there, in the name and on the blank forms of the Yirgil R. Coss Mortgage Company, and, in some instances, as in the Dupree case, secured a power of attorney from the borrower, designating the American Farm Mortgage Company agent to secure a loan for him, and forwarded same with the application, the mortgages and notes, direct to the Yirgil R. Coss Mortgage Company, always at the time fixing the rate of interest and the length of the loan, and never at any time going into the open market, unless the loan was turned down by the Virgil R. Coss Mortgage Company.
“The blank mortgages, the principal notes and the commission notes all were prepared and furnished by the Virgil R. Coss Mortgage Company, which kept them on hand, and used them in preparing the papers. "When the loan application, with notes and mortgages, were sent to the Virgil R. Coss Mortgage Company, the American Farm Mortgage Company proceeded to inspect the land, to have the title to the land perfected, always had same approved by the attorney for the American Farm Mortgage Company and the Virgil R. Coss Mortgage Company. If it was a big loan, Coss and Price made a joint inspection. When the title was perfected, the money was sent by the Virgil R. Coss Mortgage Company to the American Farm Mortgage Company, and was disbursed in paying off other mortgages, in perfecting the title and paying for the recording of the papers from the borrower to Coss, and the balance, if any, was turned over by the American Farm Mortgage Company to the borrower. In some cases a first mortgage and a second mortgage were taken, and all the notes secured by the same given to the Virgil R. Coss Mortgage Company, and the second in the name of the American Farm Mortgage Company, and the notes secured by each mortgage were given to Coss Mortgage Company and the American Farm Mortgage Company, respectively. In other instances, only one mortgage and one set of notes were taken, and that in the name of Virgil R. Coss Mortgage Company, the commission being deducted at the time the money was disbursed. The work of securing the loan, of perfecting the title, of disbursing the money and recording the lender’s paper, was all attended to by the American Farm Mortgage Company. The Virgil R. Coss Mortgage Company advanced the money, found a market for the loan, and attended to all other features of the business at the Oklahoma office, each doing about one-half of the work. The commission was then divided between the two companies on a fifty-fifty basis. When payment ■became due, either on the commission or the principal notes, collections were made by the American Farm Mortgage Company on instructions of the Virgil B. Coss Mortgage Company to the borrower, regardless of how the loan was made, whether two mortgages, one mortgage in the name of Coss and one in the name of American Farm Mortgage Company, or both to Coss, or whether one mortgage only to Coss and a cash commission paid. If the borrower failed to pay taxes, they were paid by the American Farm Mortgage Company. If the borrower was delinquent on any payment necessary to the protection of the lender, he was ofttimes notified by both companies, and always notified by both companies to make payment through the American Farm Mortgage Company.
“If the borrower failed to meet his payments, and a loss was .sustained thereby, the Virgil B. Coss Mortgage Company charged back to the American Farm Mortgage Company its proportion of the loss, thus equally sharing the profits when there was a profit, and equally sharing the loss when there was a loss.
“In addition to the connection in Pine Bluff with American Farm Mortgage Company, the Virgil B. Coss Mortgage Company now has a partnership in Fort Smith, Arkansas, and their business is handled in the same way and on the same basis.”
The testimony also disclosed that appellant agreed, in his written application for the loan, to pay the American Farm Mortgage Company $300' as a commission for procuring the loan, to be deducted from the amount borrowed; that appellant executed his note and mortgage for $1,300, payable in ten years, at the rate of 7 per cent, per annum from date until paid; that ten coupon notes for $91 each were executed to cover the ten annual interest payments maturing each year; that, pursuant to the agreement in the application, a $300 cash bonus was deducted from the loan and equally divided between the Virgil B. Coss Mortgage Company and the American Farm Mortgage Company; that the American Farm Mortgage Company also deducted from the $1,000 balance $201.63 as expenses, several items of which were not properly chargeable to appellant, only paying appellant in actual cash $798.37 out of the $1,300 loan.
The initial question arising on this appeal for determination is whether or not the American Farm Mortgage Company acted as agent for the Virgil E. Coss Mortgage Company in negotiating the loan, or whether said mortgage company was the exclusive agent of appellant. While the application for the loan constituted the American Farm Mortgage Company the agent of appellant, the services rendered by that partnership to the Virgil E. Coss Mortgage Company in this and other transactions convinces us that said partnership was really representing the Virgil E. Coss Mortgage Company, and not. appellant. The American Farm Mortgage Company inspected the property, approved the loan, prepared the note and mortgage on blanks furnished by the Virgil'E. Coss Mortgage Company, paid over the money to appellant, after deducting the expenses and commission, which commission was divided between the two companies, collected the interest on this and other loans, and looked after the payment of taxes on the mortgaged property. The relationship between the two companies, as reflected by the evidence, constituted an agency in the law. Banks v. Flint, 54 Ark. 40; Ellis v. Terrell, 109 Ark. 69; Tompkins v. Vaught, 138 Ark. 262; McHenry v. Vaught, 150 Ark. 612.
The next question to be determined is whether the contract is usurious. Appellant received in actual cash only $1,000, for which he executed a note to the Virgil E. Coss Mortgage Company in the sum of $1,300, payable in ten years, with ten coupon notes attached in the sum of $91 each, to cover the interest for a period of ten years. In order to repay the loan under the contract he would have to' pay $2,291, or $291 more than enough to repay the $1,000 actually received with interest thereon at the rate of 10 per cent, per annum, the highest rate allowable, for ten years. This is the method of calcula tion approved in the case of Ellis v. Terrell, 109 Ark. 69, the test announced in that case being whether the borrower would have to pay more than 10 per cent, per annum on the money actually received under the contract, if fully executed. The contract is therefore usurious and void under the Arkansas law, unless saved by the clause in the mortgage to the effect that no usury was intended. This clause only related to errors in computation or calculation. No contention is made that the excess charge above the maximum legal rate of interest was the result of errors in computation or calculation. On the contrary, the testimony reveals that appellees intended to charge 7 per cent, per annum and deduct a $300 cash bonus. A clause of this kind cannot prevent the taint of usury attaching to a contract, where there was no mistake of fact, but simply a mistake as to the legal effect thereof. Castleberry v. Weil, 142 Ark. 627.
The next question arising for determination is whether the contract is an Arkansas or an Oklahoma contract. At the time the contract was made appellant was a resident of Arkansas, and the Virgil R. Coss Mortgage Company was a resident of Oklahoma. While it had qualified to do business in this State as a foreign corporation, it still retained its domicile in Oklahoma. The mortgage and note contained a provision making the debt and interest payable at the home office of the Virgil R. Coss Mortgage Company in Muskogee, Oklahoma. There is no direct evidence in the record tending to show why this paragraph was inserted in the contract. No one has testified that it was inserted in order to evade the usury laws of Arkansas, and, if such an inference is drawn, it must be drawn from the circumstances alone that the Virgil R. Coss Mortgage Company denied that the American Farm Mortgage Company was its agent, and its further claim that it was the purchaser of the note and mortgage in the open market. The inference could be as readily drawn that the contract was made performable in Oklahoma because it was the bona fide residence of the Virgil R. Coss Mortgage Company. In order to indulge the inference that the parties intended to contract with reference to the laws of Arkansas, the evidence should be of sufficient weight to overcome two presumptions to the contrary, the. first being that the parties intended to contract with reference to the place of performance, and the second that the parties intended to contract with reference to the law that would uphold,rather than one that would invalidate, their contract. It is the law that parties residing in different States may, in good faith, contract with reference to the law of either State, but would not be permitted to do so for the purpose of avoiding the force of the usury law in either one of the States. Whitlock v. Cohn, 77 Ark. 83; Wilson-Ward Co. v. Walker, 125 Ark. 404. We do not think the evidence in the case sufficient to overcome the presumption that the parties contracted, in good faith, with reference to the laws of Oklahoma, where the contract is valid, and where the penalty for contracting for more than 10 per cent, interest per annum works a forfeiture of the interest only.
No error appearing, the decree is affirmed.
McCulloch, C. J.
I agree to the conclusion reached in this case and to all of the opinion except the following sentence: “ It is the law that parties residing in different States may in good faith contract with reference to the laws of either State, but would not be permitted to do so for the purpose of avoiding the force of the usury law in either one of the States.” The authorities cited to sustain this statement of the law (Whitlock v. Cohn, 72 Ark. 83, and Wilson-Ward Co. v. Walker, 125 Ark. 404) do not, in fact, sustain it. In Whitlock v. Cohn, the court said:
“Where the intention of the parties is not otherwise more directly and definitely expressed in the contract, nor can be otherwise inferred, the place of payment will determine the law with reference to which parties have contracted; but parties will not be presumed to have contracted with, reference to a law which will have the effect of annulling their contract for illegality in its very making, where another intention can be gathered, unless it be found that they were seeking in some way to avoid the force of the law, as in case of usury, for instance. The contract of the parties would be valid on its face under the laws of Arkansas, but not under the laws of Illinois. The presumption is against the contention that the parties contracted with reference to the laws of Illinois. ’ ’
This is far from .stating the rule''deduced from it by the majority in this case that, where the parties reside in different States, their right to contract with reference to the laws of either State and the presumption that they have done so, is subject to the qualification that it must be done in good faith. The authorities on this question are thoroughly reviewed in the annotations in the case of Green v. Northwestern Trust Co., 128 Minn. 30, L. R. A. 1916D, p. 739, and the Alabama case of United States Saving & Loan Co. v. Beckley, 62 L. R. A. 33. The rule deducible from all the authorities, as shown by the case notes referred to, is that, where a contract for the payment of money is executed in one State and is to be performed in another, the presumption is that the parties contracted with reference to the laws of the State where the contract would be valid and enforceable, unless it be shown that the form of the contract was adopted in bad faith to evade the usury law. Where, however, the parties reside in different States, they have the absolute right to contract with reference to the laws of either one of those States in which the contract is valid, and it does not constitute an evasion of the law merely because they make the election in order to take advantage of the laws where the contract is not usurious. It is only where parties residing- in different States undertake to make a contract referable to the laws of still another State that the question of good faith or evasion can arise. If the contract is a lawful one, the presence of a bad motive will not invalidate it, and when parties residing in different States contract with reference to the laws of either, as they have a legal right to do, they necessarily do so for the purpose of gaining some advantage by the election, and, if that is to defeat their contract, it is equivalent to denying them the right to make the election.
Where the question of usury is involved, if the facts are undisputed, it became a question of law for the court, and, as before stated, when the parties reside in different States, they are presumed to contract with reference to the laws of the State which will uphold the contract, and it is the duty of the trial court to declare, as a matter of law, that the contract is not usurious. The contract under these circumstances cannot be’ defeated merely by showing- that the motive was to escape the usury law of one State and to get the advantage of the less onerous one in the other.
In the principal case cited in L. R. A. 1916D, p. 743, the court said:
“The parties cannot arbitrarily assign their contract to a particular State. * * * Effect can be given to the presumed intention that the law of a particular State shall be the governing law only when such State has a vital connection with the transaction; or where elements of the contract, important in determining the governing law, have their situs in such State.”
In that case, where the parties resided in different States, the court declared as a matter of law that the contract was valid under the presumed intention to contract with reference to the laws of the State which upheld the contract. .
In the case of Mortgage Co. v. Jefferson, 69 Miss. 770, the borrower resided in Memphis and the lender resided in New York, and the parties undertook to contract with reference to the laws of Mississippi, but the court held that this was an evasion, and, in doing so, said:
“The presumption of law is always in favor of the legality of purpose and motive of contracting parties; and, where a contract is made in one State, to be executed in another, and, under the laws of one would be illegal and under those of the other legal, it is reasonable to presume that the parties intended their contract to be controlled by the laws of the State in which it would be valid, and so the courts will, in furtherance of a presumed lawful intention, assign it to that State of which its validity will be upheld. * * * This is not a case for the application of the rule of favoring a lawful purpose by presumption, but it is one in which the parties, manifestly and purposely providing for usury, have sought to cloak the transaction and evade the laws against usury by which their contract is controlled by stipulating that, if litigation shall arise, the laws of another State may be invoked as a shield to the usurer. The laws of this State and access to its courts cannot be thus made the subject of contract.”
Let us suppose that in this case the agent for the lender had been called as a witness and asked what his purpose was in making the contract payable in Oklahoma, the place of the lender’s domicile, and he frankly replied that he understood the law to be that he had the right to contract with reference to the laws of either State and that he chose the laws of Oklahoma because it was less onerous with respect to usury. According to the qualification stated by the opinion of the majority, this would make the contract void, and yet that is really the only reason the parties could have had in choosing the laws of Oklahoma as controlling. It is also the reason why the law presumes that they intended to contract with reference to the laws of that State. It is, I think, incongruous to say that the motive and reason for making the election defeats the contract which would otherwise be lawful.
Justice Smith concurs in views here expressed. | [
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Humphreys, J.
Appellee filed suit against appellant in the chancery court of Craighead County, Western District, upon three promissory notes.
An answer and cross-complaint thereto, presenting equitable defenses and counterclaims, were filed by appellants, to which appellee filed a reply, whereupon the case was transferred to the chancery court of said county.
The cause was heard by the chancery court upon the pleadings and testimony adduced, which resulted in a decree against appellants upon notes, including interest, for $3,748.34, with interest thereon at the rate of 10 per cent, per annum from the date of the decree, from which is this appeal.
In order to decide the controlling questions presented by this appeal, it is only necessary to set out a summary of the evidence, and in doing so we will follow, in part, the statement of the facts prepared by appellant.
The Farmers ’ Supply Company was a corporation of Manila, Arkansas, whose stockholders were Joe Horner, Jake Nice, C. W. Tipton, Joe Benson and E. W. Pierce. On the 25th day of May, 1921, the Farmers’ Supply Company was duly adjudged a bankrupt in the United States District Court for Jonesboro Division of the Western District of Arkansas.. Appellants purchased its assets, including its notes and accounts.
Prior to the bankruptcy of this concern, it had been buying considerable merchandise from Jonesboro Grocer Company,, appellee herein. In 1920, Jonesboro Grocer Company began to exact promissory notes from Farmers ’ Supply Company for its prior purchases of merchandise, requiring that additional security be given on the promissory notes bv having certain individual stockholders of the corporation sign the notes as such securities, along with the corporation itself. The first of these notes was executed June 1. 1970. in the principal sum of $1,452.95. due November 16, 1920; the second on March 3, 1921, in the principal sum of $453.23, due June 3, 1921; the third on April 15, 1921, in the principal sum of $1,026.70, due' on November 15, 1921; each of the said notes bearing-interest at the rate of 10 per cent, per annum from date. The notes were signed by appellants.
The Farmers ’ Supply Company had accounts against various farmers in the neighborhood for goods furnished them. To secure payment of these accounts, this concern had received, as collateral from the debtors, certain bales of cotton in which the debtors had equities. "Warehouse receipts covering the cotton were issued to the debtors and by them delivered to the Fhrmers’ Supply Company.
Some time prior to March 29, 1921, the Farmers’ Supply Company delivered to Jonesboro Grocer Company this cotton and the warehouse receipts covering-same, but not the accounts of the debtors, as collateral for the account then owing by it to Jonesboro Grocer Company. Jonesboro Grocer Company acknowledged receipt of the warehouse receipts covering- the cotton. On these receipts the names of the owners of the cotton were noted. As stated, this took place before the bankruptcy proceedings. The bales of cotton in controversy numbered twenty-nine.
According to the testimony introduced by appel- . lants, in May, 1921, before the institution of the bankruptcy proceeding’s above referred to, Farmérs’ Supply Company, then owing Jonesboro Grocer Company the three notes as set out above, as well as the open account in addition thereto, C. W. Tipton, president of the Farmers ’'Supply Company; instructed Ashley Sale, manager of the Jonesboro Grocer Company, that, upon sale of the cotton by the pledgee of the cotton posted as collateral with it, the proceeds thereof should be applied on the indebtedness due pledgee by Farmers’ Supply Company, as evidenced by the three promissory notes referred to. to which Sale agreed; that this instruction was later reiterated by Tipton and Eice, Eice being- another stockholder in Farmers’ Supply Company, while the cotton was still held as collateral by Jonesboro Grocer Company. According to the testimony introduced by appellee, Sale refused to grant the request.
After the bankruptcy proceedings had been instituted, Jonesboro Grocer Company sold the cotton which had been posted with it as collateral, at private sale, under the advice and consent of the trustee in bankruptcy. The cotton was never advertised for sale. The total sale price of the cotton, sold under the circumstances as stated, was $1,173.30, representing $.0'58 per pound, net, and was a fair market value for the cotton at the time it 'was sold. This entire sum was credited on the open account of Farmers’ Supply Company, none of it being credited on the indebtedness evidenced by the promissory notes.
Farmers’ Supply Company accounted to the owners of the cotton from which it had originally received same, at 12 cents per pound-for their equities in same. This is declared to have been a fair market price for the cotton.
The first question arising for determination on this appeal is whether C. W. Tipton, president of the Farmers’ Supply Company, had a right to demand that the warehouse cotton receipts, which had been pledged by it to appellee as collateral security for an open account, should be sold and applied on payments of notes which he and other stockholders of the Farmers’ Supply Company had theretofore executed 'to appellee. There is a dispute in the testimony as to whether the warehouse cotton receipts were originally pledged to secure the open account, but the chancellor found that they were, and appellants themselves proceed in their argument upon the theory that the finding is supported by the weight of the evidence. Appellants could not, as a matter of right, demand that the cotton receipts be changed as security from the open account to the notes. The transfer of said receipts as security for the open account constituted an appropriation in advance of the proceeds thereof, when sold, to the payment of the open account, under the law of the application of payments, and it would require the consent of both parties to the transaction to change the appropriation. Greer v. Turner, 47 Ark. 17; Caldwell v. Hall, 49 Ark. 508; Atkinson v. Cox, 54 Ark. 446; Faisst v. Waldo, 57 Ark. 270; Bonham v. Johnson, 98 Ark. 459; Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473. It is contended, however, by appellants that appellee consented to change the appropriation of the proceeds from the cotton receipts, when sold, from a payment upon the open account to a payment upon the notes. The testimony is in sharp conflict upon this point, and, after a careful reading thereof, we are of opinion that the finding of the chancellor to’ the effect that appellee never agreed to such a change is supported by the weight of the evidence.
Other questions are raised and argued by appellants as grounds for a reversal of the decree, viz., that they were the owners of the equity in the cotton, after paying the open account, by virtue of having purchased the notes and accounts of the Farmers’ Supply Company at the bankruptcy sale, and, by way of subrogation, to the rights of the original owners of the cotton; that the sale of the cotton was void because privately made and without notice to appellants, etc. It is unnecessary to decide these questions, because, according to the undisputed testimony, the cotton was not of sufficient value at the time it was sold to satisfy the open account for which it had been pledged. Treating, but not deciding, the sale as void, and appellee as a tort-feasor for selling same, the measure of damages in a suit against appellee for an accounting would have been the market value of the cotton at the time of the conversion. Hamburg Bank v. George, 92 Ark. 472. The weight of the evidence was to the effect that the cotton was sold at the best price obtainable upon the market. No surplus remained, as the proceeds were insufficient to pay the open account.
No error appearing, the decree is affirmed. | [
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Kirby, J.
'The court erred, as insisted by appellant, in instructing the jury that the burden of proof was upon him to show the genuineness of the signature of the maker of the note.
The statute provides: “Where a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.” Section 4114, C. & M. Digest.
It is true this court has- held that the genuineness of a writing may be contested without the filing of such affidavit denying its genuineness (St. L. I. M. S. Ry. v. Smith, 82 Ark. 105, 100 S. W. 884; Hall v. Rea, 85 Ark. 269, 107 S. W. 1176; Staggers v. White, 121 Ark. 328, 181 S. W. 139); but the instrument, unless the said affidavit is filed, or a verified answer denying its genuineness, may be read as prima facie evidence of its recitals. Staggers v. White, supra; Hughes v. Gardner, 144 Ark. 282, 222 S. W. 43.
The court said in the last mentioned case:
“In other words, a failure upon the part of the defendant to comply with the statute raised the inference or presumption of law that the' writing on which he is sued and purporting to he signed by him is genuine, and, having failed to file the affidavit provided by. the statute, the burden is cast on him to show that it is pot genuine. ’ ’
The court erred in instructing the .jury otherwise that the burden of proof was upon the plaintiff to show that the signature of defendant on the- note sued on was genuine, and in refusing to give appellant’s requested instruction No. 1.
The testimony of witnesses tending' to show that Shaw, the joint maker of the note, was a forg-er and had left the jurisdiction of the court, and also that he had forged the names of other and different persons to notes entirely distinct from and unrelated to the matter at issue, was incompetent, and the court erred in permitting its introduction. State National Bank v. Lark, 124 Ark. 432, 204 S. W. 101.
For the errors designated the judgment is reversed, and the cause remanded for a new trial. | [
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McCulloch, C. J.
This appeal involves a contest over the Democratic nomination for the office of sheriff: of Grant County, appellant and appellee and another person being the rival candidates. Appellee was returned as the successful candidate, and a certificate of nomination was awarded to him. Appellant instituted the contest, alleging fraud in the issuance of poll-tax receipts and in counting the returns of the votes cast, and he filed with his complaint the supporting affidavit of twelve persons, purporting to be reputable citizens of the county and members of the Democratic Party. Appellee filed a special plea, challenging the jurisdiction of the court on the ground that the supporting affidavit was not made by ten persons qualified under the statute, in that some of them were not members of the Democratic Party. The case was heard by the court on oral testimony concerning the political status of the persons signing the affidavits, and, after hearing the evidence, the court sustained the motion and dismissed appellant’s complaint.
There were twelve persons who signed the affidavit, and there was evidence tending to show that four of them were not members of the Democratic Party, but, on the contrary, were members of the Republican P'arty. While there was some testimony to the effect that these men, or some of them, were at times permitted to vote in the Democratic primary, there was evidence tending to show that they had openly declared themselves to be Republicans and affiliated with that party, some of them having voted for the Republican candidates at the pre-‘ ceding election, and others having attended Republican conventions and served on committees in the organization. of that party. The evidence was legally sufficient to warrant the finding by the court that each of these four men were Republicans and not Democrats. There was another one of the persons whose political status was challenged as a Democrat — a man named Jeff coat — and it was claimed that he was a Socialist, and not a Democrat. The testimony against him is manifestly weaker in degree than that against the others, and we need not discuss the question whether or not the evidence is sufficient to show that he is not a Democrat.
We have concluded that the evidence is sufficient to warrant a finding that the four persons alleged to be Republicans were, in fact, members of that party, and, since the elimination of their names reduces the number of the affiants to eight, which is below the statutory number required, it is unnecessary to determine whether any more of the affiants were lacking in qualifications.
The statute (Crawford & Moses’ Digest, § 3772) provides, in substance, that the complaint in a contest for a nomination “shall be supported by the affidavit of at least ten reputable citizens, and shall be filed within ten days of the certification complained of.” We decided in Simmons v. Terral, 145 Ark. 585, that the word “citizens ’ ’ as used in the statute is synonymous with the word “electors,” and in Ferguson v. Montgomery, 148 Ark. 83, we held that the language used in the section of the statute referred to clearly implies that the affiants must be members of the same political party with the contestant.
In Logan v. Russell, 136 Ark. 217, it was held that the filing of the supporting affidavits within ten days, as required by statute, was essential in order to give the court jurisdiction to entertain the contest.
At the trial of the case there was introduced in evidence a copy of the rules of the Democratic Party, and it appears therefrom that § 2 of the rules provides that membership in the party “shall consist of all eligible and legally qualified white electors, both male and female, who have openly declared their allegiance to the principles and policies of the Democratic Party, as-set forth in the platform of the last preceding Democratic National and 'State convention, who have supported the Democratic nominees in the last preceding elections, and who are in sympathy with the success of the Democratic Party in the next succeeding' election.” This is a very broad definition, and we think the court was warranted in finding that the four persons named as being Republicans were such, in fact, and that they were not Democrats within the qualifications prescribed by the rules of the party.
It will be observed that, in order to become qualified to vote in a Democratic primary, a person must not only be a qualified elector and shall have supported the Democratic nominees in the last preceding election, but must also be one who has openly declared his allegiance to the principles and polices of the Democratic Party, and must be in sympathy with the success of the party at the next succeeding election.
We decided in Ferguson v. Montgomery, supra, and in Crawford v. Harmon, 149 Ark. 343, that the rules of the party are controlling in determining the political status of one who claims the right to vote, or to sign the supporting affidavits in a contest.
There being sufficient evidence to support the finding of the court, there is no error in the proceedings, and the judgment must be affirmed. | [
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Humphreys, J.
This suit was brought to the April term, 1921, of the chancery court of Fulton County, by C. C. Kay, Frank P. Kay, Ottie Kay Herndon and Katie Kay Schisler, against C. E. Kay, Freddie Kay Palmer, Minnie Kay, Mary A. Kay Hassell, Jim Kay, Tee Kay and Jack Kay. As originally brought, it was a suit in partition, alleging that the plaintiffs owned a one-seventh interest each in certain lands in said county owned by their brother, ft. K. Kay, at the time of his death on the 9th day of March, 1908, and that the defendants owned the other three-sevenths interest therein. After the filing of the bill, Katy Kay Schisler withdrew from the suit, leaving three plaintiffs, and C. E. Kay and Freddie Kay Palmer filed a disclaimer of any interest in the property, leaving six defendants. When ft. K. Kay died, he left surviving him, as his only heirs, seven brothers and sisters. One of them was L. P. Kay, who died in November, 1920, leaving, as his only heirs at law, Minnie Kay, his wife, Jim Kay, Mary Kay Herndon, Tee Kay and Jack Kay, his children. Upon the completion of the pleadings the only parties to the suit were three brothers and sisters of It. K. IUiy, deceased, who were plaintiffs, and the widow and children of L. P. Kay, deceased, a brother of R. K. Kay, who were defendants. The pleadings as finally made up presented the following issues:
First, whether the land was owned in common by the parties plaintiff and defendant, or in fee by the children of L. P. Kay, subject to their mother’s dower interest therein.
Second, whether there should be an accounting of rents and profits by defendants to plaintiffs, and, if so, how much.
Third, whether a deed to the laud executed on the first day of October, 1912, by C. C. Kay, Frank Kay and others to L, P. Kay, should be canceled on account of the minority of C. C. Kay and of alleged misrepresentations made to Frank P. Kay by L. P. Kay.
Fourth, whether appellants were precluded by a former adjudication of the cause from bringing this suit.
The cause was submitted to the court upon the issues joined and the testimony introduced by the parties responsive thereto, which resulted in a finding against Frank P. Kay because of the insufficiency of the evidence to support his allegation of misrepresentation in the procurement of the deed; and against C. C. Kay and Ottie Kay Herndon because barred by a former suit, and a consequent dismissal of plaintiff’s bill.
An appeal has been duly prosecuted to this court from the findings and decree.
After a careful reading of the abstract of the testimony we are convinced that the findings of the trial court are correct.
(1) . Frank P. Kay was twenty-four years old when he and others made a deed to the land to L. P. Kay. Frank P. Kay and his wife signed and acknowledged the deed before a notary public after the others had done so, and, with this opportunity to see and inspect the deed, must be held to have known what he was signing. According to the testimony of Minnie P. Kay, Frank P. Kay knew of the existence of the deed more than two years before the institution of this suit. She testified that, when the first suit was brought, Frank P. Kay told her that he had shamed C. C. Kay for bringing the suit to cancel the deed. Frank P. Kay testified that L. P. Kay represented to him that the property was about to be sold under a mortgage, and that his purpose in signing the instrument on October 1, 1912, presented to him by L. P. Kay, was to save the property. This representation was a fact, if made, and not a misrepresentation, for a foreclosure proceeding upon the mortgage had been instituted and was pending at the time Frank P. Kay signed the deed in question.
(2) . A suit involving the same issues as the instant case was instituted in the chancery court of Ful ton County by C. O. Kay, Ottie Kay Herndon, and Katy Kay .Scbisler, against L. P. Kay and Minnie Kay, Ms wife. Frank P. Kay was not a party to that suit and, of course, was not bound by the adjudication therein, but the other parties in the instant suit, being parties in that suit, were bound by the decree rendered therein. The following decree was rendered in the former suit:
“On this day, this cause being reached upon call of the docket, the parties appearing in person and by their attorneys, and the same is dismissed at the cost of the defendants.” Following the above judgment record entry is a notation showing that L. P. Kay paid the costs three days later.
It is necessarily implied that the cause was dismissed by and with the consent of L. P. Kay, as it was dismissed at his cost. The effect of this dismissal was an adjust7 ment of the merits of the controversy, and is a bar to another action between the parties thereto upon the issues joined therein. Doan v. Bush, 130 Ark. 566.
No error appearing, the decree is affirmed. | [
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Kirby, J.
Lenora Tanner, sister of Henry Simpson, the insured, brought this suit against the appellant insurance company to recover $500 alleged to be due her on the life insurance policy issued to her brother in which she was named as beneficiary. She recovered judgment for the amount of the policy, penalty and attorney’s fees', from which this appeal is prosecuted.
The company denied liability, alleging that the policy was issued without a medical examination and on the faith of the truth of certain representations as to the health of the insured, which were warranties, and false, avoiding the policy, and also that there was no liability under its terms because it was not delivered to the insured during his lifetime while he was in good health.
The policy was dated February 27, 1926, and Simpson died June 25, 1926. Appellee'made the application for the insurance for her brother, designating herself as beneficiary, land signing the name of her brother as applicant, by her.
The application contains the following question and answer:
“No. 3. I have not at this time, nor have I’had during the past two years, any disease or ailment of the brain, nervous system, blood vessel, lungs, stomach, liver, kidneys, gall bladder, intestinas (bowels), heart or limbs except as follows: Stomach trouble, September, 1925. ’ ’
It was also stated that the applicant had not had during the two years immediately before, “diabetes, rheuma tism, scrofula, cancer, pellagra, malaria, typhoid fever, syphilis or gonorrhea, pneumonia, asthma, spitting' of blood, tuberculosis, colitis, diarrhea, peritonitis, appendicitis, hemorrhoids, hernia, paralysis, general debility, influenza, or any other contagious or infectious disease.” That each answer was unqualifiedly true; that all answers were complete, and agreed that the policy should not be in force and effect until and unless delivered to the applicant while he was alive and in good health.
The agent who took the application stated that, when the applicant, in answering question No. 3, said “Stomach trouble, September, 1925,” he asked “Is he all right now?” and she replied, “Ye® sir.” This was not denied by the appellee.
The testimony showed that the insured had been away in Illinois; that he had been in continued poor health from September, 1925, to the time of his death, and was not in g’ood health when the policy was turned over to his sister, who stated that he was only in fair health then. To the question, “There -wasn’t anything wrong with your brother aside from that stated in the application, when the policj^ was delivered?” she replied, “No.”
The proof of death submitted by her showed that the cause of death was “acute pneumonic phthisis,” the contributory ailment “chronic dyspepsia.” The physician also stated that he had treated insured for chronic dyspepsia January 18, 1926, and acute pneumonic phthisis April 5, 1926.
The policy of insurance showed the application signed, “Henry Simpson, b3)r Lenora Tanner, applicant”; that they knew his insurability would be determined by the answers made, no medical examination being required; that all the answers or statements had been read to applicant and stated “that each of such is unqualifiedly true — I therefore warrant that each answer and statement reflects an existing fact, and that the company ma3^ rely upon them to such extent. And further, for nryself and all beneficiaries under the policy which may be issued upon this application, I agree that, in the event any such answer may be discovered to be erroneous or false, or in the event any such statement be discovered to be erroneous or false, even though such be deemed immaterial by me or the beneficiary, then, in either event, this policy shall stand canceled as of the date of issuance, and this reg'ardless of the date of discovery of such breach.
“I further warrant that the statements and answers above set forth are complete, and that I have made no statement or answer touching upon any of the above questions or statements, to any agent of the company, except as set forth above, and I hereby bind myself and beneficiary to the truthfulness of this warranty, and further, I agree that the policy to be issued on this application shall not be in force or effect until and unless it be delivered to me while I am in good health and alive. * * * I understand and agree that provisions of this application and the policy to be issued thereon can only be waived or modified by indorsement written thereon by the president or secretary of thé company.”
There was other testimony relative to the falsity of the answers to the question whether applicant had ever applied for insurance without getting a policy.
Each of the parties asked for an instructed verdict, without asking for any other instructions, and the court directed a verdict for the appellee, and from the judg-' ment thereon this appeal comes.
This court has uniformly held, since deciding St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C 1639, that, where each party asks for a peremptory instruction directing a verdict in his favor, without requesting any other instructions, it is tantamount to an' agreement that the question at issue may be decided by the court, and the court’s decision has the same effect as the verdict of a jury would have had, and will not be disturbed or set aside on appeal if there is any substantial evidence to support it. See also Hall v. Barrel, 136 Ark. 329, 206 S. W. 435; National Benevolent Society v. Barker, 155 Ark. 506, 244 S. W. 720; Head v. Winship (Ark.), 297 S. W. 841.
The evidence is virtually undisputed that the insured had suffered from chronic dyspepsia from September, 1925, before the policy of insurance was issued in February, 1926; that he had been treated for this ailment in January before the issuance of it, as stated by the physician, who certified to the proof of death; that he was suffering from it when the application for insurance was made, and was not in good health on account of it when the policy was delivered, as stated by the beneficiary, and was frail, thin and emaciated, vomiting his food and spitting up blood from the time he returned from Illinois in January, and unable to do any substantial work to the time of his death.
The physician stated that acute pneumonic phthisis is an acute type of tuberculosis that malíes rapid destruction of the lung tissues, usually terminating in death in between three and four months.
Another physician, Dr. Benefield, stated that acute gastritis and chronic ■ dyspepsia are an indication of tuberculosis, and are sometimes a sure and the only symptoms of that disease.
The warranties as to the health and physical condition of the insured, both at the time of the application for the insurance, and certainly at the time of the delivery of the policy, were false, relieving the insurance company from any liability under the policy on that account, in accordance with its terms. The testimony is not sufficient to support the verdict, and the court erred in not instructing a verdict in its behalf.
Neither was there any estoppel of the company or waiver of' its right to rely upon the truth of the warranties, because of the statement to its agent that he had seen the insured about six weeks after the policy was issued and told the secretary of the company of the insured’s apparent bad health. No premiums were due or accepted on this policy thereafter. This constituted no knowledge of existing facts at the time of the issu anee and delivery of the policy which would have invalidated the contract from, its inception, and it cannot be said that the policy of insurance was issued and delivered with full knowledge of all the facts affecting its validity, or constituted known grounds of invalidity amounting to waiver of the conditions in the contract inconsistent with such facts.
For the errors designated the judgment is reversed, and the cause dismissed. | [
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T. C. McRae, Special Chief Justice.
The case of Arlitt v. Hill, No. 9014, has been consolidated with the case of Brickhouse v. Hill, No. 9011, and in this opinion reference will only be made to the consolidated case by the title of Brickhouse v. Hill.
The appellant, in his capacity as mayor, was proceeding, by virtue of an ordinance of the city council, to issue bonds to fund the debt of the city of Little Rock, under the Constitutional Amendment No. 11, which was submitted by the General Assembly to the electors of the State for approval or rejection at the general election held in October, 1924. Upon the application and petition of the appellee, the chancery court of Pulaski County restrained the appellant from issuing bonds under .said amendment, holding that it had not been approved by the said electors, and the case is before this court on .appeal.
So the question involved is: "Was amendment No. 11 adopted?
Indirectly, there is involved the same question as to the amendments numbered 10 and 12, proposed by the same General Assembly, and submitted to the electors at the same general election. The votes “For” and “Against” these amendments were as follows:
For Amendment No. 10......................................... 52,151
Against Amendment No. 10....................... 40,955
For Amendment No. 11................................................ 57,854
Against Amendment No. 11...,................................ 35,449
For Amendment No. 12....................... 56,910
Against Amendment No. 12.................................... 34,174
Total vote for Governor.................:............125,760
It will be noticed that neither of the said amendments received the vote of a majority of the electors who voted at said election for Governor, and, under § 22 of article 19 of the Constitution of 1874, as construed by this court in previous decisions, would have failed of adoption if there had been no change in the Constitution as to the number of votes necessary. But each of them received a majority of the votes cast thereon, and, under the Constitution as it now is, and as it was when said Amendments 10, 11 and 12 were .submitted and voted upon, they were each adopted at the general election in October 1924. The Amendment No. 11 received a majority of 22,405 of the votes cast thereon.
The several opinions of this court referred to by counsel, some in criticism and some by way of approval, were in cases construing § 22 of article 19 of the original Constitution, before the Initiative and Referendum Amendment No. 7. For the determination of the question in the pending ease it is not necessary to overrule any of the cases that have been referred to, except Hildreth v. Taylor, 117 Ark. 474.
'The opinion in that ease is largely based upon the premises that Amendment No. 7 was taken from a similar amendment adopted in the year 1902 in the State of Oregon, and that, while there was no judicial construction in Oregon of their amendment, still there was a construction by the people that it did not fix the number of votes on constitutional amendments, as an amendment was adopted in 1906 expressly providing that a majority voting .at the election should adopt. This statement follows the familiar rule that, where a law is taken from the laws of another State, it is presumed to be taken with the previous construction given that law in that State. This rule, of course, is .sound, and the application here is important.
However, the opinion of our court in that case was erroneous in the statement of the situation in Oregon. The I. and E. Amendment there adopted in 1902, of which our Number Seven is a substantial copy, was before the Supreme Court of Oregon in the year 1908, in Farrell v. Port of Columbia, 93 Pac. 254, and the court there said that, under the amendment, a majority voting on the question on an initiative amendment decided the election. Prior to the I. and E. Amendment in Oregon, amendments to the Constitution could only be submitted by the General Assembly, and the form was this: A designated majority in the General Assembly proposed the amendment; it then laid over until the next General Assembly, and, if a designated majority of that General Assembly also favored it, it was submitted to the voters at the next election, and, if a majority voting on the question approved, the amendment was adopted. (Section 17, art. 1, original Constitution of Oregon.)
This section was expressly amended in 1906, so that only one General Assembly was required to submit a proposed amendment, and the people then voted on it, and a majority voting on the question adopted it. The I. and E. Amendment did not attempt to change the rule of the old Constitution for submission of amendments by the General Assembly, but expressed the added method of submission by initiative petition. The rule for the majority vote was the same under both methods of submission.
It is submitted that the error in the opinion in Hildreth v. Taylor, in the assumption of the construction put upon the I. and it. Amendment in Oregon, was of controlling force in interpreting the language of our Amendment Number Seven.
The other cases may be briefly summarized as follows :
In Arkansas Tax Commission v. Moore, 103 Ark. 48, it was only decided that the amendment was self-executing, and that the existence of an emergency was a legislative question and not a judicial question.
State v. Donaghey, 106 Ark. 56, held that Amendment Number Seven repealed the provisions of the original amendment section, in the feature that the time for the advertising was reduced from six months to four months. There was no occasion to decide, and it was not decided, whether or not the time for advertising amendments submitted to the Legislature was changed.
Ferrell v. Keel, 105 Ark. 380, merely decided that the style of bills, “Be it enacted,” etc., was not necessary on bills passed by the General Assembly.
•Whittemore v. Terral, 140 Ark. 493, held that a referendum did not lie to the action' of the General Assembly in adopting an amendment to the Federal Constitution.
Mitchell v. Hopper, 153 Ark. 525, held that the veto power of the Governor did not extend to a resolution of the General Assembly submitting a constitutional amendment.
The act of the Legislature for 1911, providing details for carrying out the purposes of Amendment Number Seven, used the term “measure” in many places in referring to constitutional amendments. The term “measure” is defined in the Century Dictionary as “anything devised or done with the view of the accomplishment of a purpose.”
In the case of The New Jerusalem Proposition, 26 Okla. 548, Pac. 823, the Supreme Court of Oklahoma, in passing upon an I. and R. Amendment, held that the term “measure” included a constitutional amendment.
STARE DECISIS.
This court is of the opinion that the decision in Hildreth v. Taylor is wrong, and that more good than harm would result from changing it at this time. And it is overruled, so far as it is in conflict with this decision. This then makes the law as if Hildreth v. Taylor had never been decided as it was.
In Whittington v. Flint, 43 Ark. 513, the court said: “A rule of decision once deliberately adopted and declared ought not to be disturbed ‘by the same court, except for very cogent reasons and upon a clear manifestation of error.’ But there are cases which ‘ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ ”
The court then overruled five prior decisions. In Collier v. Davis, 47 Ark. 367, in overruling a prior case, the court said: “It is always a misfortune for a court to change front on a question which may affect property rights acquired since the rule was announced. And it is sometimes doubtful whether more mischief will be produced by adhering to an error, or by retracing it. The case has stood for more than five years, although it was never satisfactory to the profession. It is, however, indefensible in principle, and it was decided against the clear weight of authority.”
In the Supreme Court of the United States there have been several cases overruling prior decisions on questions involving the Constitution. The Legal Tender Cases, 12 Wall. 457, 554 570, involved a decision of this kind. Justice Strong of the court said:
“Even in cases involving only private rights, if convinced we have made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort, both in this country and in England, to overrule decisions previously made. We agree this should not be done inconsiderately, but, in a case of such far-reaching consequence as the present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide and to affirm both the judgments.”
In the case of the Propeller Genessee Chief v. Fitzhugh, 12 How. 443, 459, Justice Taney said: “But the decision referred to has no relation to rights of property. It was a question of jurisdiction only, and the judgment we now give can disturb no rights of property, nor interfere with any contracts heretofore made. The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it.”
In Pollock v. Farmers’ Loan & Trust Company, 157 U. S. 429, 575, the court said: “It is the decision in the case of the Thomas Jefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen; and the subject did not therefore receive that deliberate consideration which, at this time, would have been given to it by the eminent men who presided here when that case was decided. For the decision was made in 1825, when the commerce on the rivers of the West and on the lakes was in its infancy, and of little importance, and but little regarded compared with that of the present day. However,' the nature of the question concerning the extent of the admiralty jurisdiction, which have arisen in this court, were not calculated to call its attention particularly to the one we are now considering.
“Manifestly, as this court is clothed with the power, and intrusted with the duty, to maintain the fundamental law of the 'Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.”
This special court is profoundly impressed with the suggestion that it should not, without the most careful consideration, overrule any decision of the able and learned regular court. And so, with the valuable aid of such members of the bar of the State as have accepted our invitation to brief and argue this case, we have striven to get all the light possible that we might reach a correct conclusion. We would not overrule the regular court in the case of Hildreth v. Taylor if we did not feel that it had announced an erroneous and dangerous construction of our Constitution. Such mistakes should never be perpetuated. That there should be no further delay in fixing the correct constitutional rule for determining the majority necessary to adopt an amendment, is shown by the conditions with which the State is confronted, and which no doubt caused the General Assembly to propose, and the people, to adopt, the three amendments involved in this case. And we deem it not improper to briefly refer to these conditions. The Judges of the Supreme Court are overworked and underpaid. The docket of that court is eight months behind. Belief is offered by Amendment No. 10.
The credit,- honor, prosperity and growth of the counties, cities and towns that are in debt, and the saving from debt of those that are not so involved, depend largely upon Amendment No. 11. The limit of sixty days for each General Assembly, so far as the regular session is concerned, and the want of a limit upon local legislation, have practically made it impossible to get the benefit of the judgment of the members of the General Assembly upon public questions. This situation can be changed by Amendment No. 12.
Shall the indefensible rule in the case of Hildreth v. Taylor continue these deplorable conditions?
So, in view of the authorities we have cited, and these conditions, it appears that the court should now depart from the propriety of the doctrine of stare decisis. And attention to 7 R. C. L., at page 1008, where there is an excellent sum-up of the holdings of the courts on the question, is called:
“If judges were all able, conscientious and infallible; if judicial decisions were never made except upon mature deliberation, and always based upon a perfect view of the legal principles relevant to the question in hand, and if changing circumstances and conditions did not so often render necessary the abandonment of legal principles which were quite unexceptionable when enunciated, the maxim stare decisis would admit of few exceptions. But the strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate ’ to legal reason and justice, and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error. A departure from the rules of stare decisis can be justified only upon substantial grounds, and neither justice nor wisdom requires a court to go from one doubtful rule to another. Nor is it a sufficient reason for overturning a rule of law, well .settled and apparently salutary in operation, merely because the reason given- for. its original adoption are not altogether satisfactory, and strict logical reasoning might have led the court originally to have adopted a different rule. If, however, a decision or series of decisions are clearly incorrect, either through a mistaken conception of the law, or through a misapplication of the law to the facts, and no injurious results would follow from their overthrow, and especially if they were injurious or unjust in their opera tion, it is the duty of the court to overrule such cases. Hasty or crude decisions should be examined without fear and reversed without reluctance. While it is true that long acquiescence in an erroneous decision, so that it has become a rule of property or practice, may raise it to the dignity of law, yet it must not be understood that a previous line of decisions affecting even property rights can in no case be overthrown.' Where the error of a previous decision is recognized, but the rules therein announced have become rules of property, the question whether or not the rule of stare decisis should be adhered to becomes a simple choice between relative evils. The rule should be adhered to unless it appears that the evil resulting from the principle established must be productive of greater mischief to the community than can possibly ensue from disregarding the previous adjudications upon the subject. In questions of practice, a close adherence by a court to its own decisions, even though it may at times have erred or decided differently from settled adjudications upon the subject, is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. In such cases, the importance of the rule generally depends upon the certainty, and not upon the intrinsic merit. But where the decision goes to the merit of the controversy, where the whole right of parties is dependent upon and is governed by it, in such ease, if the court should, from any cause, have erred, it is not only proper, but it is an obligatory duty upon them, a duty imperiously demanded by litigants whose rights are before them for adjudication, to reexamine the opinion so pronounced, and, if found to be erroneous, to recede from it. In the matter of constitutional provisions it has been held that, while courts recognize to the fullest extent the necessity for the stability, consistency, and a firm adherence to the doctrine of stare decisis in passing upon and construing any provisions of the organic law, yet if an error has been committed, and becomes plain and palpable, they will not decline to correct it, even though it may have been reasserted and acquiesced in for many years.”
When used in relation to the submission of a question to an election under our republican system of government, the words used should be given their legal significance, rather than the ordinary and actual significance.
The Supreme Court of this State, in State v. Smith, 40 Ark. 432, said: “It is the duty of every court, when satisfied of the intention of the Legislature, clearly expressed in a constitutional enactment, to give effect to that intention and not to defeat it by adhering too rigidly to the mere letter of the statute or to technical rules of construction. And any construction should be disregarded that would lead to absurd consequences.”
The following statement of the rule is taken from Lewis’ Sutherland’s Statutory Construction, vol. II: “A statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency, and the words are susceptible to another construction, which would carry out the manifest intention.’’
Finally, this court holds that this question is set completely at rest by the provisions of the amendment proposed as number thirteen, and adopted in the year 1920 as a substitute for Amendment Number Seven, presumably to remove all doubt about the meaning of Amendment Number Seven, and, in language about which there can be no doubt, the vote on the question is made the test of measures proposed by the General Assembly, as well as those initiated by the people. Thirteen was adopted by a very large majority of those voting on the amendment.
Here are some of the provisions of this substituted amendment: “The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to pro pose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly.”
“Definition: The word ‘measure’ as used herein includes any 'bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.”
“Majority: Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon such measure, and not otherwise, and shall not be required to receive a majority of the electors voting at such election.”
“This section should not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General Assembly, except a proposed constitutional amendment or amendments as provided in this Constitution.”
It is insisted that, under Amendment Number Seven, only a majority of the votes cast upon any initiated amendment is necessary to adopt, but that, to adopt an amendment proposed and submitted by the General Assembly, there must be a majority of all the electors voting at such election. For the settlement of this case it is not necessary'for us to decide that question. The amendment voted upon in 1920 as number thirteen was by initiated petition, and received the votes necessary to adopt it. Thirteen and not seven, should govern the majority that would decide whether or not the Amendments ten, eleven and twelve were adopted. Thirteen requires only a majority of the votes cast upon the amendment. Each of the three amendments received such a majority, and was adopted.
The court is of the opinion that the submission of an amendment in 1922 substantially like that of number thirteen, and which received less than a majority of the votes cast unon it, did not have the effect of repealing thirteen, and that it remains a part of the Constitution just as if there had been no submission and vote on a similar amendment in 1922.
It is insisted that the words “as herein provided” in the third paragraph quoted from the amendment proposed as thirteen, have the effect to limit the requirements for adoption therein prescribed, which is “a majority of the votes cast upon such measure,” to amendments initiated by the people, and that thirteen does not a'pply to amendments proposed and submitted by the General Assembly.
This is contrary to reason and practice in legislation and not supported by the authorities.
If such had been the intention, instead of the words used, the words “this section” or “this article” would have been substituted.
The Amendment Number Thirteen must be construed as though introduced into the place of § 22, article 19, of the original Constitution, and the legal significance of the words “as herein provided” is as if the words “■as provided by the Constitution” were substituted for them.
In the case of McKibbon v. Lester, 9 Ohio State 627, the court said, “the words ‘under the restrictions and limitations herein provided’ must be taken to refer to the restrictions and limitations provided in the original act, as it stands after all the amendments made thereto are introduced into their proper places therein.”
The decree of the chancellor enjoining the appellant, the mayor of Little Rock, from issuing bonds under the Amendment No. 11 is reversed and the case dismissed. | [
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McCulloch, C. J.
The General Assembly, at the’ extraordinary session in February, 1920, passed a special statute creating the New Hope Koad Improvement District, in White County, but, before any construction was begun, and after the preliminary expenses were incurred, the General Assembly of 1921 passed a statute repealing the statute creating the district, but providing for the payment of all claims against the district for expenses incurred. Section 2 of the repealing act, supra, provides that all claims must be presented to the commissioners of the district “duly verified as is required in actions on account, and, if not presented within six months from this date, they shall be forever barred.” This section further provides that, on the expiration of the period prescribed for presenting claims, it shall be the duty of the commissioners to levy a tax on real property in the district sufficient to pay the indebtedness, and that, if the assessments of benefits had been made and confirmed, the tax shall be based upon such assessments, but, if there had been no confirmation of the assessments, the tax shall be upon the “assessed value of the property for State and county taxation as it appeared upon the county assessment.”
Appellants are owners of property in the district, and they instituted this suit against the tax collector to restrain him from collecting the tax extended on the taxbooks for the payment of the claims .allowed by the commissioners. The right to collect the tax was challenged on numerous grounds, but the chancery court decided against the contention of appellants, and dismissed their complaint for want of equity.
The first contention is that the claims against the district, which were all small amounts, except the claim of the engineer of the district, were not presented to the commissioners as required by statute, and were there fore barred. The commissioners named in the statute were W. H. Abington, C. B. Smith, and W. T. Daniels. Daniels resigned, • and the county court appointed Otho Martin in his place. -'After the enactment of the repealing statute, Smith did not meet with the board, and the only meetings were held by Abington -and Martin. The proof shows that Dr. Abington, the chairman of the board, repeatedly notified Smith, who failed to attend. It is the contention of counsel for appellants that it was necessary, under the statute, for claimants to present their respective claims to all of the members of the board, and that presentation to one of them, even though he was chairman or secretary of the board, would not be sufficient compliance. This contention is, we think, unsound. The language of the statute is that “ claims against said district must be presented to the commissioners thereof,” and counsel liken this to a contract made by a school board or other legal board where it is necessary that all the members be present, or be notified to be present, or at a regular meeting of which all have notice. There is, we think, no .analogy between the two questions, because the right of the’ claimants to recover is not based upon any contractual relation between the claimants and the district arising at the time of the presentation of the claims, but it is based upon a liability arising under previous contracts, and the validity of those contracts is not drawn in question here. All that the claimants were required to do was to present their claims to the board of commissioners — nothing more — and, when that was done, no further action on the part of the claimants was required, except to bring suit within ninety days, if the claims be rejected. If there was any irregularity in the allowance of the claims on account of the failure of one of the members of the board to attend, this does not defeat the right of the claimants to recover where the claims are not shown to be unfounded. There is no attempt in the present case to show that the claims are not based upon subsisting liability of the district for which the statute provided payment.
It is further contended that the clerk is about to extend the taxes on assessments of benefits which have never been confirmed, in defiance of the statut'e, which expressly provides that, if the assessments have not been confirmed, the tax shall be based on the value of real property in the district as assessed for taxation for State and county purposes. The record, as abstracted, is not clear on this point. -It is not shown what basis has been adopted for the extension of taxes, and, in order for appellants to obtain relief, they must show that a method of assessment has been adopted which is not authorized. Of course, the tax must be extended on the basis set forth in the statute, and, if a wrong basis has been adopted, the property owners have the right to an injunction, but this would not defeat the right to levy the tax, which should be levied on one of the bases specified in the statute. In the present condition of the record, however, we cannot discover that the wrong basis was adopted, the burden being upon appellants to establish that fact before they are entitled to relief.
An attack is made on the validity of the original statute under which the claims were incurred, on the ground that the statute authorized lateral roads to be selected by the commissioners and improved. The provision of the statute authorizing the selection of laterals is- carefully guarded by a further provision that, when roads were selected for laterals, plans and specifications should be made and estimates of costs filed with the county court, and subject to the approval of the county court, and that the court should lay out the roads thus selected. Under our decisions in numerous cases, this was not an invasion of the jurisdiction of the county court so as to invalidate the statute.
Our conclusion upon the whole case is that the chancery court was correct in denying injunctive relief to appellants, and the decree is in all things affirmed. | [
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Per Curiam.
T. R. Jacobs seeks by certiorari to review the proceeding in the circuit court of Desha County whereby he was suspended from the office of county judge of said county upon the filing of several indictments against him, charging him with misfeasance and malfeasance in office.
The body of the order of suspension reads as follows:
“Now on the 23rd day of August, 1927, there were filed in this court certain indictments returned by the' grand jury of Desha County, charging the said T. R. Jacobs with the crimes of making excessive allowances against said county after the revenues of said county had become exhausted, a malfeasance in office, and charging also two offenses constituting- misfeasance in office; and it appearing to the court that the said T. R. Jacobs is now the duly elected, qualified and acting county and probate judge within and for said county. It is therefore considered, ordered and adjudged by the court that the said T. E. Jacobs be and he is hereby suspended from said office of county and probate judge of Desha County, and enjoined and prohibited from performing any of the acts and duties incumbent on him as such county and probate judge, pending the trial of such charges.”
Certified copies of the indictments were ¡also filed by Jacobs with his petition, and are a part of the record in the proceeding. They show on their face that Jacobs was indicted for misdemeanors, and that the charges relate to matters which are alleged to have occurred during a. former term of T. E. Jacobs, as county judge of Desha County, Arkansas. The order of suspension was made under § 10335 of Crawford & Moses’ Digest, which reads as follows:
“Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to ¡a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant. ’ ’
Section 10336 provides that, upon the conviction of any such officer for any such offense, a part of the sentence of the circuit court having jurisdiction shall be to remove such officer from office.
We have no decision of our own court construing the precise question raised by this proceeding. Other states, however, have similar statutes, and there is a decided conflict in the cases as to whether such statutes provide for the removal of public officers for misconduct during a previous term. The conflicting decisions are annotated in a case-note to 17 A. L. E., beginning at page 279. The annotator says that the cases, numerically considered, are nearly evenly divided. Those favoring the construction that an officer may be removed for offenses committed during ia previous term say that this holding best carries out the object and purpose of such statutes. It is pointed out that the object of such statutes is to rid the community of a corrupt, incapable or unworthy official. It is also pointed out that his acts during his previous term quite as effectually stamp him as such an officer as those of that term he may be serving. It is said that reelection does not condone the offense, because his misconduct during some previous term may not have been discovered prior to the election. It is said that the commission of any of the prohibited acts during a previous term equally stamps him as an improper person to be intrusted with the duties of a particular office as those committed during the present term of such office.
On the other hand, it is said that the courts should never remove a public officer for nets done prior to his present term of office. It is pointed out that to hold otherwise would be to deprive the people of their right to elect their officers. It is said that, when the people have elected a man to office, it must be assumed that they do this with knowledge of his life and character, and that they disregarded or forgave his faults of misconduct, if he had been guilty of any. Otherwise, it has been said, the courts would be enabled, by reason of' faults or misconduct of an officer during a former term, to practically overrule the will of the people. Hence it is said that it was the intention of the lawmakers in framing such statutes that the inquiry should be limited to acts done during the existing term of office.
We are of the opinion that the latter view is most in accordance with the provisions of our own Constitution and with the language of the statute in question. Such statutes are penal in their nature, and, under familiar rules of construction, are to be strictly construéd as to their effect. /
Article 7, § 27, of our Constitution provides that the circuit court shall have jurisdiction, upon indietmént, to remove any county or township officer from office for incompetence, corruptness, gross immorality, illegal conduct, malfeasance, misfeasance or nonfeasance in office. There is no prohibition in this section or in other parts of the Constitution from reelecting such officer. His removal operates by way of punishment, and the evident purpose of the section is to rid the people of officers who are guilty during their term of office of the matters enumerated in the section of the Constitution just referred to. It was .deemed best for the public interest that an officer guilty of any of the offenses set out in the section during his term of office should not continue to .serve the people after he was convicted of such an offense. The statute under consideration provides for a temporary suspension of the officer during- the time an indictment is pending against him, and, we think, means that the indictment must be for acts committed during his existing term of office. Under our Constitution and laws, each term of office is an entity, separate and distinct from all other terms of the same office.
We are of the opinion that the better view is that the .specific object of the Legislature in passing the statute in question was to suspend the officer, if indicted for misconduct during his existing term of office, and, as a part of his punishment, to remove him if convicted of that offense. The purpose of the statute was not to punish the officer for wrongdoing outside of his present term, but to punish him for wrongdoing during his existing term. In other words, the object of the statute was to protect the people from unworthy officers while they were serving as such officers. By this construction, past conduct could always be disregarded or past offenses condoned, and^ existing offenses could be punished, and officers indicted for present wrongdoing can be suspended from office during- the pendency of such indictment.
The result of our views is that the judgment of the circuit court suspending Jacobs from the office of county judge should be quashed. It is so ordered. | [
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Smith, J.
This is a suit brought by Morris Schiff and Louis Schiff, copartners, doing business in the city of New York under the firm name of M. Schiff & Bro., against the Heinemann Dry Goods Company, a domestic corporation engaged in the dry goods business at Jonesboro, on a judgment which the plaintiff alleged it had recovered in the municipal city court of New York, borough of Manhattan, ‘Third District, against the defendant. The cause was submitted to the jury, and there was a verdict and judgment for the plaintiff, from which the defendant has appealed.
It is first insisted, for the reversal of the judgment of the court below, that the court erred in admitting in evidence the transcript of the judgment and the pleadings on which the action was based, it being insisted that the document which purports to be a judgment is a mere finding of the court, which might be sufficient to authorize the entry of a judgment, but which is not a judgment.
In answer to this contention it is said that no such issue was raised by the pleadings. The allegation of the answer is that “it (the defendant) denies that judgment was entered by said court in favor of the plaintiff for the sum of $435, or any other sum.”
Had the question of the sufficiency of the judgment in form been raised in the court below, this objection might have been met by a showing of its sufficiency, as that the judgment had not in fact been correctly copied, or otherwise amending the transcript to show that it was in fact sufficient. At any rate, the question cannot be raised here for the first time, and we think the allegation of the answer set out above did not raise this specific issue in the court below.
The complaint appears to have conformed to the requirements stated in the case of McCarthy v. Troll, 90 Ark. 199, where the court said: “To maintain an action on a judgment against a plea of nul tiel record, a certified copy of the judgment is not sufficient, but all the pleadings and proceedings on which the judgment is founded, and to which, as matter or record, it necessarily refers, must be produced.”
The suit in the New York Municipal Court, as appears from the pleadings in that case, was on an account for $390, for which judgment was prayed, together with interest from the 6th day of December, 1920. The judgment for the plaintiff was for $415.80, which presumptively included the interest, and, in addition, there were three items of costs .aggregating $19.
Objection was made to the introduction. of the authenticated transcript for the reason that the document purporting to be a judgment recites liability in favor of a partnership, whereas the pleadings showed an action by the individual members of a partnership. This assignment of error is answered by saying that the complaint in the original ease, after reciting the names of the plaintiff, alleges that“ they are a copartnership doing-business under the firm name and style of M. Schiff & Bro.”
The introduction of the transcript was also objected to upon the ground that the purported judgment was signed by John Hoyer, Judge Municipal Court, whereas the authentication is signed by William J. A. Caffrey, Judge Municipal Court.
The practice and procedure of these courts was prescribed by chapter 279 of the Session Laws of New York for the year 1915. This act provides for twenty-four divisions of this court, with a judge for each division, and further provides that the judges shall rotate in holding- the courts in these divisions, so that no judge sits in one division exclusively.
Hoyer appears to have rendered the judgment of the municipal court as the judge then presiding. At the time of the authentication of the transcript, as required by the act of Congress, Caffrey was then presiding as the judge of this division, according to the certificate of the clerk of that division, and this is sufficient.
The introduction of the transcript was also further objected to upon the ground that the municipal courts of the city of New York are not courts of record and do not come within the act of Congress for the authentication of judicial records and proceedings — that these courts cor respond to our justice of the peace courts, and the proof of the judgment should have been made accordingly.
Section 1 of § 279 of the 1915 Session Laws of New York, being “An act in relation to the municipal court of the city of New York, * * expressly declares that it shall be a court of record, and § 8 thereof provides that the justices thereof may provide rules regulating the manner of keeping the records and papers thereof. Section 11 of the act provides what the seal of the court shall contain; and § 13 confers authority to punish for civil and criminal contempts; and § 143 prescribes the duties of each of the clerks of the courts.
These courts were held to be courts of record by the Supreme Court of New York, appellate term, First Department, in the case of Duringshoff v. O. B. Coates & Co., 157 N. Y. Supp. 230.
Appellant further contends, for the reversal of the judgment, that it was in effect obtained by fraud; that proper service was not had, and its appearance in the New York court was entered without authority
Summons was served on the president of the appellant corporation while he was in New York city on business, and it is conceded that this service was insufficient to confer jurisdiction of the cause on the municipal court of that city, but it is insisted that the appearance of the defendant was entered by its attorney in that court.' In support of this contention the deposition, of Henry Levis, an attorney of that city, was offered in evidence. The purport of this deposition was that Ben Levis was the purchasing agent of appellant in New York, and had made the purchase out of which the litigation arose. After the controversy arose, Ben Levis employed Henry Levis, his brother, who was an attorney practicing in the municipal court of New York, to represent appellant, and the deposition of Henry Levis exhibited the correspondence he had with appellant by which he was authorized to enter the appearance of appellant, and that, pursuant to this authority, he entered appellant’s appearance, and had secured a number of continuances of the cause.
The objection to the admission of this deposition is that the correspondence between appellant and Henry Levis is privileged as a communication between an attorney and his client. We think, however, this testimony was competent. The serious charge was made against the attorney that he had entered the appearance without authority, 'and it was no violation of the privilege for the attorney to testify that he did enter appellant’s appearance, and was authorized to do so, and, in support of that statement, to exhibit letters conferring that authority. Vol. 2 Enc. Ev., Attorney & Client, p. 147; Eckman v. Meyers & Trall, 12 N. W. 347.
It is finally objected that the court erred in giving an instruction numbered 3, which reads as follows: “ You are instructed that if you find the defendant authorized Ben Levis to employ Henry Levis to do what things might be necessary in connection with the suit filed, and, pursuant to that authority, Ben Levis did employ Henry Levis as attorney, the Heinemann Dry Goods Company was bound by his action pursuant to such employment. ’ ’
We presume the purpose of this 'instruction was to tell the jury that the attorney had the authority to enter the defendant’s appearance in court if this act was within the scope of his employment. At any rate, only a general objection was made to the instruction, and the objection now urged to it is that there is no testimony tending to show that Ben Levis had any authority to act for appellant in the employment of counsel.
The president of the appellant company, upon whom the service was had, admitted that he delivered the summons to Ben Levis, who was and is its purchasing agent at New York city, and that he asked Ben Levis what to do about it, and Ben Levis told him he would .straighten the matter out..
We think the testimony of Henry Levis, in connection with the correspondence which occurred between him and appellant, is legally sufficient to prevent this instruction from being held objectionable as abstract, and that this testimony is legally sufficient to support a finding that Henry Levis fiad, in fact, been employed fiy defendant as its attorney, and fiad tfie authority to enter its appearance.
No error appearing, the judgment is affirmed. | [
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Wood, J.
This action was instituted in the chancery court of Jackson County, Arkansas, by the ¡átate Bank of Poplar Bluff and J. W. Ivy, as trustee (hereafter called the appellees'), against the Arkansas Bank & Trust Company and W. It. O’Neal and Clarissa O’Neal. The Arkansas Bank & Trust 'Company will be hereafter called appellant. Appellees alleged that W. R. O’Neal and Clarissa O’Neal, his wife, on or about the 3rd of October, 1919, executed their promissory note to the Farmers’ Savings Bank of Butler County, Missouri, in the sum of $5,000, and a deed of trust to John Ivy, meaning J. W. Ivy, trustee, to secure said note on the following lands in Jackson County, Arkansas, to-wit: “All of lot 8 in block 21 of the city of Newport, Arkansas,” which deed of trust was duly recorded in said county; that the Farmers’ Savings Bank assigned the said indebtedness and the security to appellee State Bank of Poplar Bluff; that the grantors in the deed of trust at the time wrote to the Farmers’ Savings Bank, the beneficiary, that the land embraced in the deed of trust fronted ninety feet on Walnut Street running back to an alley 142 feet in the city of Newport; that the description set forth as lot 8 in the deed of trust contained said frontage; that after-wards it was discovered that lot 8 is only 35 feet on Walnut Street, fifteen feet thereof having been conveyed to the trustees of the Christian Church, and that the other fifty feet intended to be embraced in said deed is lot 9 of said block 21; that the Farmers ’ Savings Bank relied upon the representations as to the size of the lot and the land to be embraced in the deed of trust, and the grantors intended that same should be .embraced in said deed of .trust, and it was therefore a mutual mistake of the parties ; that the deed of trust was not drawn so as • to embrace the lots intended to be conveyed as above set fortlt. Appellees alleged that, to cure the defect in the original deed of trust, as above set forth, the O’Neals afterwards executed a deed of .trust to the Farmers ’ Savings Bank dated October 3,1919, which was duly recorded, intending thereby to carry out the original conveyance, and that this deed of trust inured to the benefit of the appellees.
Appellees further alleged that the appellant brought a suit against the O’Neals and the Farmers’ Savings Bank, and, as ancillary thereto, caused a writ of attach-, ment to be issued and levied upon all of said lots; that the transfer and sale of the indebtedness and the security therefor to the appellee, State Bank of Poplar Bluff, was long prior to the institution of the suit by the appellant against the Farmers’ Savings Bank and the O’Neals; that the O’Neals, in consideration of the dismissal of the suit and the attachment above set forth, executed to the appellant a mortgage or deed of trust on the property intended to be embraced in the deed of trust securing the indebtedness which had been transferred to the appellee; that, notwithstanding the above agreement to dismiss the attachment proceedings, the appellant'is still seeking some right under said attachment. Appellees alleged that, by reason of the acceptance by the appellants of the deed of trust or mortgage before mentioned, the appellant had abandoned its action, and the attachment against the property described was thereby discharged; that the indebtedness of the O’Neals to the Farmers’ Savings Bank of Missouri, which had been transferred to the appellee, was past due and unpaid; that it ¿mounted to $5,987.52. Appellees prayed that the deed of trust given to secure such indebtedness be reformed toi carry out the intention of the parties thereto, and that appellees have judgment in the sum above mentioned, and that the deed of trust as reformed be’foreclosed to satisfy such judgment, and that the appellant be pretermitted until appellees ’ judgment should be satisfied.
Appellant, in its answer, challenged the right' of the appellees to have the deed of trust reformed as alleged and to have the same declared a first lien on lots 8 and 9 of block 21 of the city of Newport, and alleged that, prior to the institution of -this suit, it had instituted an action in the chancery court of Jackson County against the O’Neals on an indebtedness due the appellant,- in which-action it had an attachment issued and levied on lot 9 and also on lot 8, block 21, described in appellees’ complaint. It was also alleged that appellant had a superior lien on the property described in appellees’ complaint by virtue of a certain deed of trust executed by W. B. 0 ’Neal and Clarissa 0 ’Neal on May 31,1921, conveying the above property to a trustee for the benefit of the appellant.
The cause was heard upon the pleadings and exhibits and the depositions of the witnesses. W. B. O’Neal tesr titled that he and his wife, Clarissa O’Neal, executed a deed of trust on October 3,1919, to the Farmers’ Savings Bank of Butler County, Missouri, to secure an indebtedness of $5,000, which he borrowed from that bank. Witness told M]r. Chapman, the cashier of the bank, that he had two lots in Newport, and gave him the deed to draw up the papers and mortgage. It was witness’ intention to embrace both lots as security for that debt. The State Bank of Poplar Bluff, appellee, after it had taken the mortgage over from the Farmers’ Savings Bank, discovered that lot 9 had been omitted from the mortgage. Witness got appellee to take over the debt and mortgage from the Farmers’ Savings Bank. The cashier of the appellee didn’t notice for some time that the mortgage didn’t include lot 9, and witness said that he thought the mortgage covered both lots. It was the intention of witness and his wife to include the business lots on Walnut Street in the city of Newport, 100 feet front on Walnut Street, less what witness had sold to the Christian Church. Witness had before that sold fifteen feet off of his lot next to the church. The appellee didn’t discover the error until the appellant brought suit against witness. Then they came down and brought the deed of trust they had bought from the Farmers’ Savings Bank and asked, “How is this, that we haven’t got a deed of trust to both lots down there in Newport?” Witness told them be was no lawyer, and had nothing to do with the drawing of the deed of trust, and: that it was witness ’ understanding that they had a deed of trust on both lots down there. These were lots that witness had bought from Mrs. Creighton, and witness gave the deed.to the cashier of the Farmers’ Savings Bank to draw up the papers, and witness attached a copy of that deed as an exhibit. Witness had given no other security to appellee to secure the indebtedness covered by the $5,000 note which was transferred to the appellee. Witness did give a mortgage to the Farmers’ Savings Bank covering the bakery, machinery and fixtures, to secure this same note that witness gave the deed of trust on the property in Newport to secure.
Witness further testified that he and his wife were sued by the appellant in the chancery court of Jackson County, recently, and that action was compromised out of court. Witness and his wife both executed a mortgage to the appellant to secure a debt he owed appellant. The appellant agreed, if witness would give a mortgage on the two lots and the house, they would stop the suit, and witness executed the mortgage, which appellant now holds, with that understanding.
The cashier of the Farmers’ Savings Bank, appellee, testified that it was agreed between him and the O’Neals that O’Neal was to give a deed of trust on some business property in Newport to secure a promissory note of $5,000 executed to the Farmers’ Savings Bank. Witness didn’t know the property personally, but O’Neal stated that the deed of trust was to cover the entire piece of business property except the part that he had sold to the church. Witness was shown the deed of trust, and stated that he didn’t know who drew it. He didn’t know why it didn’t include all the property, as it was his understanding that the appellee was to get all the business ■property of O’Neal which'he had recently acquired in Newport, except that part sold to the church. Witness didn’t recall any of the circumstances in' regard' to the preparation and execution of the note and deed of trust: He handled the transaction of the assignment of the note and deed of trust from the Farmers’ Savings Bank to the appellee through Mr. Hayes, cashier of the appellee.
P. C. Hayes, cashier of the appellee at the time, testified that O’Neal came to him asking for a line of credit, and stated that he owed the Farmers’ Savings Bank $5,000 secured by a business lot in the town of Newport, Arkansas. He stated that he paid $5,000 for the lot, but had since sold off fifteen feet to a church. Witness asked O’Neal what was the size of the lot, and he stated that it was 100 feet less fifteen feet. Witness asked Mr. Chapman, cashier of the Farmers’ Savings Bank, about the security, and he said that it was a business lot in the town of Newport. Witness discovered that a part of lot 9 was omitted from the deed of trust in October, 1920. He asked Mr. O’Neal again about it, and he reiterated that the deed of trust included one 100-foot lot. Witness let it go for a while, until he saw the complaint of appellant. The appellee had other security — a chattel mortgage covering the fixtures, machinery and equipment of the bakery shop — which was given prior to the purchase of the $5,000 note. When witness took over the note from the Farmers’ Savings Bank, he had in mind that it was secured by a 100-foot lot. If witness had known that it only included a fifty-foot lot, he would not have bought the paper. O’Neal made the statement that the lot was 100 feet when he came to the appellee as its customer in November, 1919.
John E. Williams testified that he was the cashier of the appellant, and was familiar with the action brought by the appellant in the chancery court of Jackson County against O’Neal and others on an indebtedness to the appellant, which suit was instituted in the summer of 1920. Later O’Neal executed a deed of trust to the appellant to secure the payment of this indebtedness. At the time this deed of trust was executed the appellant had no knowledge of a deed of trust executed by O’Neal and wife on November 27, 1920, correcting a former deed of trust under which the appellee claims. There was no record at that time of this deed of trust of November 27, 1920; that was not filed for record until June 1,1921. At the time O’Neal gave the deed of trust to the appellant, there was no agreement made that the suit then pending in the Jackson Chancery Court by appellant against the O’Neals would be dismissed. The consideration for the deed of trust executed by the O’Neals to the appellant was the original indebtedness due by the O’Neals to the appellant, and was given in consideration that the time for payment of this indebtedness should be extended.
Chas. D. Henry testified that he was the president of the appellant, and was familiar with the action brought by the appellant in the Jackson Chancery Court against O’Neal and others, in which the property of O’Neal was attached, and appellant later obtained a deed of trust from O’Neal to secure the payment of his indebtedness to appellant on the agreement of appellant to extend the time of payment for such indebtedness. There was no agreement between the appellant and O’Neal to dismiss the action, except as to O’Neal’s home. Appellant didn’t agree to dismiss the action with -regard -to the lots on Walnut Street and claimed by the appellee. At the time appellant obtained the deed of trust from O’Neal under which it now claims, it had no knowledge of the deed of trust now set up by the State Bank of Poplar Bluff as a correction, of the deed of trust which this action was brought to reform. There was an agreement to the effect that the deed of trust from O’Neal and wife on the 27th of November, 1920, executed to the appellee, Farmers’ Savings Bank, to correct the description of the property in the original deed of trust from O’Neal and wife to the Farmers’ Savings Bank, was filed for record in the office of the recorder on June 1, 1921.
The trial court found that the O’Neals executed to the Farmers’ Savings Bank of Butler County, Missouri; their promissory note in the sum of $5,000, October 3, 1919, and that, to secure the payment of same, they executed their deed of trust to all -of lot 8, block 21, city of Newport, Arkansas,' and that it was the understanding and agreement between the parties at the time that the deed of trust should cover a frontage of ninety feet on Walnut Street, in block 21 of the city of Newport, which would have included all of lot 9 and 35 feet of lot 8 in said block; that thereafter, on the 27th -day of November, 1920, the O’Neals executed and delivered to the Farmers’ Savings Bank of Butler County, Missouri, their deed of trust correcting such description and embracing lot 9, block 21, aforesaid, but that same last named deed of trust was not properly executed and acknowledged by Clarissa O’Neal; that thereafter the O’Neals executed and delivered to the appellant their deed of trust dated May 31, properly executed and acknowledged by Clarissa O’Neal, whereby her dower interest in lot 9 was conveyed to the appellant; that, prior to the institution of this action, the note and deed of trust held by the Farmers’ Savings Bank were transferred and assigned to the appellee.
Upon these findings the court entered a decree in favor of the appellees against the O’Neals for the amount of the note with interest in the sum of $6,767.50, and decreed that the deed of trust of October 3, 1919, be reformed so as to embrace lot 9 and all of lot 8 except a strip 15 feet wide off the east side thereof, block 21, and declared the same to be a first lien on the property as above described, subject to the dower rights of Mrs. Clarissa O’Neal in lot 9, and directed that the property be sold and the proceeds held subject to the further order of the court. From that decree is this appeal by the appellant, and the appellee cross-appeals here from that part of the decree denying the appellee right to the dower interest of Mrs. Clarissa O’Neal in lot 9.
1. While there are some discrepancies in the testimony of the witnesses who testified for the appellee as to whether the deed of trust of October 31, 1919, should be reformed so as to embrace lot 9 and all of lot 8, block 21, city of Newport, Arkansas, except a strip fifteen feet wide off the east side of lot 8, as contended by the appellee, yet these discrepancies are unimportant, as they do not relate to the essentials which the appellee was required to prove in order to entitle it to reformation. These essentials are, that it was understood and agreed by the O’Neals and the Farmers’ Savings Bank at the time the deed of trust was executed, and as a consideration therefor on the part of the O’Neals, that the property as last above described was to be embraced in the deed of trust to secure the $5,000 indebtedness to the Farmers’ Savings Bank. The testimony of O’Neal, who conducted the negotiations for himself and wife, and the testimony of Chapman, who conducted the negotiations for the Farmers’ Savings Bank, was clear and unequivocal to the effect that it was their understanding that the property as above described was to be included. O’Neal states that he told Chapman that his business property in Newport was to be included; that he and his wife intended to secure the debt to the Farmers’ Savings Bank by a mortgage on all the Walnut Street property except fifteen feet off of lot 8, which he had sold to the Christian Church. Chapman’s testimony was to the effect that it was their understanding that the bank was to have a deed of trust on all of O’Neal’s business property which he had recently acquired.
So we conclude that the testimony is clear, unequivocal and convincing that it was the intention of the parties to the deed of trust to embrace the property as sam'e is described above in the decree reforming the deed. Such was the manifest intention of the parties to the instrument, and the O’Neals afterwards undertook to effectuate their intention by executing an instrument on November 27, 1920, designated a deed of trust, in which the Farmers’ Savings Bank was the beneficiary, describing the property as they intended it should be in the original deed of trust of October 3, 1919. The evidence is clear, unequivocal and decisive that the parties to the original deed of trust intended to include the property described in the court’s decree reforming that instrument, and that the failure to so describe the property was the result of a mutual mistake. The proof meets the requirements of the law in such cases. Eureka Stone Co. v. Roach, 120 Ark. 326; Tri-State Construction Co. v. Watts, 152 Ark. 110.
2. The appellant contends, however, that the appellee was not entitled to have the deed of trust reformed because, before the appellee instituted this action for that purpose, the appellant had acquired a specific lien on the property by an attachment which had been issued in the action in chancery and levied on lot 9, and, by a deed of trust executed by the O’Neals to appellant, embracing the same property, that the lien thus acquired by the appellant is superior to the lien of the appellee because of negligence on the part of the appellee in not having his deed reformed before the alleged rights 'of the appellant accrued. The appellant would be correct in its contention if it had perfected its inchoate attachment .lien. See Hawkins v. Files, 51 Ark. 417. But the specific inchoate lien obtained by the attachment was not followed up and perfected by a judgment or decree in that action in favor of the appellant against the O’Neals. Merrick & Fenno v. Hutt, 15 Ark. 333; Lamb v. Belden, 16 Ark. 541; Frellson v. Green, 19 Ark. 378. Instead of doing this, appellant accepted the deed of trust executed May 31 and acknowledged Jlune 1, 1921, and recorded June 11, 1921. This action on the part of the appellant was tantamount to the abandonment of its inchoate attachment lien; and the appellee had its corrected deed of trust put of record on June 1, the day appellant’s deed of trust was acknowledged, and ten days before appellant’s deed of trust was recorded. It thus appears that, in the race of diligence between these creditors, the lien of the deed of trust under which the appellee claims was prior in point of time to the deed of trust under which the appellant claims. The appellee’s equities therefore under its corrected deed of trust are paramount to those of the appellant, and the trial court did not err in so holding.
3. The appellees contend on cross-appeal that the trial court erred in not foreclosing- the deed of trust on the dower and homestead rights of Mrs. Clarissa O’Neal, but appellees do not present any testimony to sustain sncli contention. Tbe trial court found that tbe deed of trust of November 27,1920, executed by the O’Neals, was not properly acknowledged by M,rs. O’Neal, and bottoms its decree as to dower and homestead on such finding. Appellee does not abstract tbe testimony on tbis issue, nor do we find any testimony on tbis issue abstracted by tbe appellant. Therefore, in tbe absence of any testimony to tbe contrary, it must be presumed that tbe court’s decree is correct on tbe issue raised by tbe cross-appeal.
We find no error in tbe decree of tbe court, and it is therefore in all things affirmed. | [
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Smith, J.
The question presented on this appeal is, whether the petition of property owners contained the signatures of a majority in value of the landowners as required by § 5652, C. & M. Digest, for the establishment of a proposed improvement district.
A number of questions, are discussed in the briefs, but it. is conceded on both sides that the necessary majority was secured, if all the property-standing in the name of Paul E. Grabiel at the time the petition was passed upon by the city council is counted for the improvement, and, as we think it should be counted, we discuss no other question.
Grabiel owned certain lots in the proposed improvement district at the time he signed the second or majority petition, and, after the petition was filed with the city council, lie bought additional lots having a total assessed valuation of $3,380. He received a deed to these additional lots on July 12, 1927, which duly appeared of record when on July 22, 1927, the city council ascertained and declared that the petitioning property owners had the necessary majority.
It was held by the chancellor that all the property owned by Grabiel at the time the petition was acted upon by the council, as evidenced by. deeds to him then of record, should be counted for the district, and this finding gave the petitioners the necessary majority, and, upon the appeal from that decree, counsel for appellants say: “There is one name (Grabiel) that appellants contend should have been deducted by the chancellor, and this is, in our opinion, the main and only issue in this appeal.”
Section 5652, G. & M. Digest, provides that, within three months after the publication of the ordinance passed, upon the petition of ten or more property owners, pursuant to § 5649, 0. & M. Digest, in which the boundaries of the proposed improvement district are designated, a second petition shall be filed for the creation of the improvement district. Section 5652, supra, requires that this second petition shall designate the nature of the improvement to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district, and requires the city clerk or town recorder to give notice advising the prop erty owners within the district that, on a day therein named, the council will hear the petition and determine whether those signing the petition constitute a majority in value of such owners of real property. In the determination of this fact the statute provides that “the council and the chancery court shall be guided by the record of deeds in the office of the recorder of the county, and shall not consider any unrecorded instrument.”
It thus appears that the statute has prescribed the evidence which shall be considered and be determinative of the right of petitioners to sign for the proposed improvement and the extent to which the signatures shall be counted, this being the assessed valuation of the property owned by the petitioners — all of it — within the limits of the proposed district to which their title is evidenced by a recorded deed at the time the petition is passed upon by the council.
This statute was construed in the cases of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, and Walton v. Commissioners of Light Imp. Dist. No. 1 of Benton, 144 Ark. 249, 222 S. W. 1056.
In the last cited case it was said that a presumption of ownership is to be indulged in favor of persons in possession of or who pay. taxes on lands to which they have no title of record, as it had been previously held in the case of Malvern v. Nunn, supra, that such persons might have title by descent cast, or under a will, and, if so, were eligible to sign, and in the Walton case, supra, it was insisted that this presumption was conclusive, but we held that it was only prima facie and might be overcome by evidence to the contrary. It was there shown that there were no deeds of record under which certain petitioners might claim title under wills or by descent cast, and the names of such persons were excluded and not counted. It was there stated that many landowners negligently fail to have their deeds recorded, and that this was probably true in that case, but, even so, those persons and their heirs and devisees were excluded by the statute from being counted as qualified signers. The test of the right to sign was there restated in a quotation from the case of Malvern v. Nunn, supra, as follows: “Deeds of record in the recorder’s office in the county at the time the council passes on the question is the criterion, in so far as the property represented by instruments subject to record is concerned.”
It will be remembered that Grabiel was the owner of property in the propoised district at the time he signed the petition and at the time the petition was filed with the council, and it was not required by the statute that he make a list of the property' owned by him in the dis trict. The question presented is, therefore, to what extent shall the assessed valuations on property owned by G-rabiel be counted for the improvement ? The answer to this question, under the cases cited, is, all the lands in that district to which he had a deed of record in the office of the recorder of the county at the time the council passed upon the petition.
The decree of the chancellor accords with this view, and it is therefore affirmed. | [
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Hart, J.
John Moore prosecutes this appeal to reverse a judgment of conviction against him for the crime of manslaughter.
The case was tried before a jury, which returned a verdict finding the defendant guilty of voluntary manslaughter and fixing his punishment at two years in the State Penitentiary.
In determining the legal sufficiency of the evidence to support the verdict, it must be considered in the light most favorable to the State. Annie Curry, a sister-in-law of the defendant, was the principal witness for the State. According to her testimony, the defendant, his wife, the witness, and another woman were walking along, when they saw Jimmie Jones and Zan Brown approaching them. "When the parties were about to meet, the defendant stepped in front of his wife and said, “Jim Jones has mistreated me long enough.” Just as he finished these words, he shot Jimmie Jones. The latter wheeled and sank down beside a telephone post. The defendant then shot Jones again. After the shooting was over, the defendant remarked that he ought to have killed them all. He was referring to his wife and to the witness. Jimmie Jones did not at any time reach for a gun or knife, or anything of the kind. He did not make any effort whatever to do anything to the defendant. Iñ a few minutes Jones died. There was a bullet-hole in his head and one in his back. All of the parties were colored people, and the killing occurred in Hempstead County, Arkansas. The defendant was a witness for himself, and testified that he shot and killed the deceased because he feared that the deceased was going to kill him. Without further comment, it need only be said that the evidence for the State fully justified the verdict • of the jury.
No brief has been filed in behalf of the defendant. We have carefully examined the instructions given by the court, and, without setting them out, deem it sufficient to say that they fully and fairly cover the respective theories of the State and of the defendant, as developed by the evidence.
Another assignment of error in the motion for a new trial of the defendant is that the court erred in refusing to allow him to testify that he had run the deceased away from his home a number of times, and had told him to let his wife alone.
The court, at the time, expressly stated that the defendant would be allowed to prove any threats made against him by the deceased. He was allowed to testify that he told his wife to make the deceased stay away from there, and that she reported to him that she did tell Jimmie Jones what her husband had said, and that she had told her husband that Jones had replied: “Well, you tell your husband he is a man just like I am; if he don’t like it, he can see me.” The defendant was also allowed to testify that Sam Reynolds had told him that Jimmie Jones had told Reynolds that the defendant was sore at him for going with his wife, and that he (Jones) was going to kill the defendant. The defendant was also allowed to prove the threats by Sam Reynolds, and the further fact that Reynolds had communicated the threats to the defendant.
The court, at all times throughout the trial, stated that the defendant would be allowed to prove previous threats by the deceased. This testimony was admitted for the purpose of shedding light upon the issue as to who was the aggressor. These threats were admitted by the court to show that the defendant had reasonable grounds to apprehend that the attack which he testified was made upon him by the deceased was intended by him to be a deadly one.
The additional testimony that the defendant had ordered the deceased to stay away from his house, if admissible at all, would only be competent to show that the act and conduct of the deceased towards the wife of the defendant had 'Created an irresistible passion of anger in the defendant towards the deceased, which resulted in the killing. The cause from which the passion springs, whether of anger or fear, could only reduce the grade of homicide from murder to manslaughter. Collins v. State, 102 Ark. 180.
As we have already seen, the jury found the defendant guilty of voluntary manslaughter and imposed upon him the lowest punishment for that crime. Hence, if the testimony was admissible for the purpose indicated, the verdict of the jury eliminated any prejudice, that might have resulted to the defendant from the exclusion of the testimony.
Another assignment of error in the motion for a new trial is that the court erred in not allowing Annie Curry to state that she had seen Jimmie Jones at the defendant’s house a number of times.
What we have stated above also applies to this assignment of error. In addition to this, the witness was permitted to answer that Jimmie Jones had visited at the home of the defendant.
We find no reversible error in the record, and the judgment will be affirmed. | [
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McCulloch, C. J.
Appellant was convicted in the municipal court of the city of Fort Smith on the charge of violating a section of an ordinance of the city imposing an occupation tax. The section reads as follows:
“Item 10. Advertising: Distributors of circulars and samples or other advertising matter, $25 per annum, $10 per month, $1 per day.”
Another section of the ordinance imposes a fine for violation by carrying on business without payment of the tax.
The case was tried in the circuit court, on appeal, and resulted in appellant’s conviction. The ease was tried on the testimony of appellant himself, which is conceded to be true, and the only question presented is whether or not, under the facts as stated by appellant himself, he was carrying on the occupation or business mentioned in the section of the ordinance referred to above.
It is conceded that appellant did not pay the tax. It appears from the testimony of appellant that he was employed by a concern in Indianapolis, Indiana, known as the Real Silk Hosiery Mills; that he was superintendent of salesmen in Fort Smith, and maintained an office there, and had salesmen working under him, who took orders for silk hosiery, and the articles were shipped out from the factory at Indianapolis. Appellant testi fied that the hosiery thus sold was guaranteed by the manufacturer to give satisfaction in wear, and that the company found by experience that the use of strong soap would cut the fiber of the silk, and that a certain kind of soap, put up in the form of Hakes by a certain manufacturer of soaps, was the best to use in washing the hosiery. He testified that his employer furnished him, for distribution, samples of this soap, which were put up in paper cartons or boxes 3% x 2y2 x 1% in size, and contained on the outside of each package a statement of the name of the manufacturer and a particular description of the soap, together with a recommendation by appellant’s employer that, “after careful tests, we found this soap to be the very best for washing silk hosiery. ’ ’ The package also contained printed directions for the method of using the soap. Appellant testified that these samples were placed in the hands of salesmen under him, with directions to give them away to purchasers and prospective customers in Fort Smith. He stated that he received no compensation for giving away the samples of soap, and that it was merely an incident to the sale of hosiery.
The contention is that appellant’s business — that part of it which consisted of distributing sample packages of soap — does not come within the terms of the ordinance, and that, according to the uncontroverted evidence, appellant is not guilty of a violation of the ordinance. We do not agree with this contention. The ordinance taxes the occupation of distributing “circulars and samples or other advertising matter.” It is true that appellant received no compensation directly for distributing these samples and the accompanying advertising matter, and that such distribution was indirectly incident to his business, but he was nevertheless distributing the samples for advertising purposes, for he states that the samples were distributed to purchasers of hosiery and prospective customers for the purpose of inducing them to purchase and use the soap. It is not essential that appellant should have received compensation for this particular work, nor is it important that it Was an indirect - incident to his business. Nor is it essential that the distribution should have been without limit. If the distribution was for advertising purposes, it comes within the ordinance, and the undisputed evidence is, as before stated, that the distribution was to advertise the soap for proper use in cleansing silk hosiery and to induce the purchasers of such hosiery to purchase and use that particular brand of soap.
Judgment affirmed. | [
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Smith, J.
Appellee sued for damages to compensate the mental pain and anguish suffered by him on account of the alleged negligent-failure of the appellant telegraph company, hereinafter referred to as the company, to deliver to him a telegram advising him of the illness of his wife,,it being alleged that this negligence was the proximate cause of his failure to be present during the last illness of his wife. He recovered judgment, and the company has appealed.
There was an amended complaint in which it was alleged that the company had received for transmission three messages, and that there was a negligent failure to deliver each of them.
Appellee was employed as a laborer by Kimball & King, who were engaged in drilling an oil well two or three miles from Smaekover, and, during this employment, he boarded at a boarding house kept by a man named Bandy, who had altogether about a hundred boarders.
Appellee’s home was in Okolona, Arkansas, where he left his wife in good health when he went to Smack-over to secure employment. His wife became ill, and grew rapidly worse, and the attending physician announced to the family that Ms patient would die, and her husband should be notified at once. At the request of the family, Dr. Alford, the attending physician, delivered to the company’s agent at Okolona the following message: “Okolona, Dec. 7, 1922. Mr. Ed Pope, c/o ‘Bandy,’ Smaekover, Ark. Come home at once; your wife is very sick. Dr. J. E. Alford.”
The message was carried to the company’s agent by a boy named Chester Killingsworth, Avho was unable to furnish a more definite address, and the agent and the doctor had a conversation over the telephone in regard to this message.
The customary charge was paid bv the doctor, and there is a conflict in the testimony between the doctor and the agent as to what was said by the agent concerning the sufficiency of the address. The agent testified that he called the doctor on the telephone and advised him that the address was insufficient, and that the message would probably not be delivered unless a more definite address was given, and that, when the doctor stated that he could not furnish a more definite address, he (the agent of the company) wrote on the message before sending it that it was “Accepted sender’s risk account insufficient address.” The doctor’s testimony is in conflict with this statement.
This message was received for transmission at 11:25 a. m. December 7, and was promptly transmitted to Smackover. The company’s agent at the last-named place testified that he saw, when he read the message, that the address was indefinite, so he made two copies of it. He gave one copy to the delivery boy and took the other himself. He detailed the inquiry he made to find the addressee of the telegram, and it is contended by the company that the agent made even greater efforts to deliver the message than ordinary diligence would have required him to make. The agent at Smackover testified that, when he failed to locate the addressee, he mailed the telegram, placing the address on the letter given ■ in the telegram. The letter 'containing the telegram was not delivered, but was returned to the agent at Smackover, who introduced it in evidence. It is contended by the company that the postmark on the envelope shows that the letter was mailed December 7. The agent at Smackover admitted that he did not send a service telegram to the Okolona office until December 9, advising that the message had not been delivered.
The undisputed testimony shows that, on account of the discovery of oil, Smackover grew in a few months from a little village of about a hundred population to a busy bustling city of twenty-five to thirty thousand, and that, on account of the enormous traffic incident to this growth and the development of the oil fields, the streets in the city and the roads in the country had been ren dered almost impassable, yet it was also shown that “Bandy,” with whom appellee boarded, came to Smack-over daily, and was in that city on December 7, 8 and 9, and on each day went to the postoffice and received mail, and the letter said to have been addressed in his care was not delivered to him by the postmaster. It is contended by appellee that the envelope offered in evidence by the company’s agent at Smackover shows an erasure before the figure 7, under the abbreviation “Dec.,” and .that the letter was not in fact mailed until December 27, which was the day after the institution of this suit,
Jesse Pope, a sixteen-year-old son of appellee, testified' that he had been at work with his father at Smaek: over, and that he left there on the 8th to return home, where he arrived on the 9th. His home was about a mile and a half from Okolona, and, upon arriving there, he found his mother desperately ill, and, knowing that the telegram to his father from the doctor had not been delivered, he proceeded to send another, and this one was sent between eleven and twelve a. m. on December 9. This witness testified that he did not know any one in Smackover who knew his father in whose care the message could be sent, but he told the agent at Okolona that his father was working for Kimball & King, who were drilling an oil well about two miles from Smackover, and he offered to pay any expense incident to the delivery of the message up to $20, but the agent told him there would be no charge except that for sending the message, and this the witness paid.
This message sent by'appellee’s son was never delivered, and, as has been said, it is alleged there' was actionable negligence in the failure to deliver this message.
. In regard to this message the company asked, but the court refused to give, an instruction numbered 15, which reads as follows: “If you find that the plaintiff, Ed Pope, left Smackover, Arkansas, for his home on the 9th of December, 1922, taking a railroad train that left there, and arrived at his residence at or near Okolona. Arkansas, by jitney from Gfurdon, Arkansas, as expeditiously as he could have arrived there if the message of December 9, 1922, signed by Jesse Pope, had been delivered to him on that day, then your verdict should be for the defendant, as to said message sent by Jesse Pope on December 9, 1922.”
In our opinion it was error to refuse this instruction, for the reason that the jury might have found that the delivery of this message, without actionable 'delay in so doing, would not have brought appellee to the bedside of his wife until after her death, and but little, if any, earlier than he did in fact arrive. He left Smackover at 3:15 on the afternoon of the 9th, and, upon arriving at Gurdon by train, which is 52'miles from Smackover, he learned that some member of his family was sick. He then hired an automobile, and arrived at his home near Okolona between four and five a. mv only then to learn that his wife had died at nine p. m. on the night of December 9, and, if appellee could not and would not have arrived home earlier had there been no actionable negligence in delivering this telegram, then the failure to deliver without such delay was not.the proximate cause of his suffering, and the instruction should have been given.
The testimony shows that the friends and members of appellee’s family awaited anxiously his arrival home the night of the 7th and during the 8th, and that a friend proposed to go after him in an automobile, but this was not done after it was learned that the telegram had been sent.
This testimony was objected to. But we think it was competent as tending to show that appellee could and would have been advised of his wife’s illness and brought to her bedside before her death had the agent at Smack-over advised the agent at Okolona of the nondelivery of the message. Western Union Tel. Co. v. Bickerstaff, 100 Ark. 1.
It was shown that the message was accepted for free delivery only within half a mile of the company’s office in Smackover, and that the addressee lived more than two miles from the office. The validity of this regulation has been several times recognized by this court. West. Union Tel. Co. v. Littlefield, 110 Ark. 602; West. Union Tel. Co. v. Archer, 96 Ark. 213.
But the company’s rules, which were offered in evidence, and which show that a radius of half a mile constituted the free delivery area, also show that the receiving agent was required to notify the sending office of the nondelivery of a message, and, if the services of a special messenger were required, that the sending* office should be notified of that fact, together with the cost of such delivery, and, if a satisfactory reply was not received from the sending office, a copy of the telegram should be mailed to the addressee under the address given in the message.
As we have said, it is settled that the company is not required to make delivery beyond the free delivery limit unless the cost of doing so is paid, but it is the company’s duty to use reasonable diligence within this free delivery limit to make the delivery. West. Union Tel. Co. v. Evans, 108 Ark. 39; King v. Western Union Tel. Co., 89 Ark. 402; Ark. & La. Ry. Co. v. Stroude, 82 Ark. 117; Postal Tel. & Cable Co. v. Kelley, 103 Ark. 442; West. Union Tel. Co. v. McMullin, 98 Ark. 347.
The service message from Smackover to the agent at Okolona, advising that the message had not been delivered, was not sent until December 9, and the testimony is not undisputed that the telegram was mailed to the addressee on the 7th. Both these things could have been done within the free delivery limit.
We are of the opinion therefore that the court did not err in refusing to direct a verdict in favor of the company, for the reason that a jury might find that the exercise of reasonable diligence in an effort to deliver the telegram would have required the agent at Smack-over both to send a service message more promptly than was done, advising that the message had not been delivered, and to have mailed a copy of the telegram to the addressee on the 7th, as the agent testified he did do. There was also some testimony tending to show that, by a reasonably diligent inquiry within the free delivery radius, a delivery of the message without this limit might have been made.
The company pleaded contributory negligence of the sender in failing to give a more definite address, and insists that a verdict should have been directed in its favor on that account. But the insufficient address of appellee would not avail the company as a defense unless the failure to deliver the telegram to appellee was caused by such defect, or unless such mistake contributed to the failure to deliver. This was a proper question for the jury. Ark. & La. Ry. Co. v. Stroude, 82 Ark. 117; West. Union Tel. Co. v. Lewis, 89 Ark. 375.
The message sent; by appellee’s son read as follows: “Okolona, 12-9-Í922. To Ed Pope, c/o Kimball & King, Contractors, Smackover, Ark. Come at once; mother dying. Jesse Pope.”
It is insisted that this address was so insufficient as to constitute contributory negligence. But, as we said in regard to the first message, this was a question for the jury.
The other telegram referred to above was sent by the postmaster at Okolona, who was a friend of appellee, to Howard East, the assistant cashier of a bank in Smack-over. This message was sent about 8 or 9 a. m. on December 9, and was delivered to the addressee there named. Of course the company was not liable for any failure on the part of East to deliver a message to appellee, as the telegram to East requested him to do, and it would be without value as evidence but for the fact that the message related to the same subject-matter as the other telegrams. This last-mentioned telegram contained a full and sufficient address, and the addressee bad a well-known place of business only about a hundred yards distance from the telegraph office: yet it was not delivered for six or seven hours, and this testimony has some probative value to show .that no special effort had been made to deliver the other messages.
For the error in the refusal to give the instruction set out above the judgment ■ of the court must be reversed, and it is so ordered. | [
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Kirby, J.
This appeal comes from a judgment for appellee against the surety company on the contractor’s bond for the price of crushed stone furnished the con tractors and used by them in tbe construction of the improvement in Paving and Guttering District No. 4 in .the city of Batesville.
Suit was brought by appellee against the Kearney ■Construction Company, the commissioners of the. improvement district and the appellant company, surety on the contractor’s bond, for the price of crushed, stone alleged to have been purchased from appellée for use in the construction of the improvement, in the sum of $1,187.50, as stated on account in Exhibit A to the complaint, as follows:
'EXHIBIT A.
“Pfeiffer Stone Co. in account with Kearney Construction Company.
“For materials sold to Kearney Construction Company during the months of October, November and December, 1925, and used in the construction of Paving and Guttering District No. 4, Batesville, Arkansas.
“To balance due for purchase price of stone:
3,229 cubic crushed stone at 30c...........................:..............$ 322.90
Removing 1,082 cubic yards mixed dirt and stone and being a part of purchase price of said stone above mentioned, at 80c per cubic yard 865.60
Total '...................................................!............................................................$1,187.50
This stone is alleged to have been furnished under a contract of purchase attached to the complaint as Exhibit B.
It was alleged that the contractors had abandoned the work, and failed or refused to pay appellee for said materials furnished; that same were -furnished under the written contract; that, “under said contract, all amounts sued for herein are a part of the purchase price of said materials so furnished and for which defendants and each of them are liable”; that the surety company, as bondsman, was liable to the payment of the full amount claimed; that the commissioners of the district have in their hands moneys, credits and effects belonging to the contractors for portions of the improvement entirely completed and in use by the public, in the sum of $2,000, upon which plaintiff was entitled to a lien; and that the contractors are insolvent, and, unless the amount owing plaintiff was impounded in the hands of the commissioners, it would suffer irreparable loss; that it was entitled to have writs of garnishment issued to said commissioners on said funds impounded in their hands, and that it had no adequate remedy at law.
Appellant filed a general demurrer to the complaint, and also demurred to the jurisdiction of the court, and, without waiving its demurrer, answered, admitting the execution of the bond and denying any indebtedness due from the contractors to the appellee and any liability on its part under the terms of the bond for the payment of any of the alleged indebtedness.
The commissioners also demurred to the complaint and the jurisdiction of the court, and, ’ reserving the demurrer, answered, denying that the district was indebted to the contractors in any sum. whatever and that they had in their hands any moneys, credits or effects belonging to said contractors.
J. A. Pfeiffer, the general manager of appellee company, the only witness who testified, stated that he made the contract with the Kearney Construction Company, Exhibit B to the complaiift, and furnished the stone used in the paving in the district in Batesville, and that the amount claimed, $1,187.50, was still due therefor, with interest; that' the stone company • first thought about moving the dirt and furnishing the crushed stone for 75c a yard, but the contractors finally agreed to move the dirt and sprawls from the locality, and pay 10c a yard for the stone crushed; that they failed to move 1,082 cubic yards of dirt and sprawls, which would cost 80c a yard to move, and to pay 10c a yard on 3,229 cubic yards of crushed stone; that the other element of the purchase price of the stone, being the removal of the dirt and sprawls they failed to remove, at a cost of 80c per yard. Said appellee was willing to let the defendants remove the dirt and sprawls and allow a credit of $856.60 therefor on the account.
The contract provides: “It is agreed that the stone to be used for crushing’ shall be removed by lessee from the north end of the quarry upon what is known as the ‘F’ ledge, and which has been pointed out to lessee, and to dispose of all sprawls, .dirt and refuse from said ledge so as not to hinder further quarrying operations of lessors.”
The bond was conditioned that the construction company keep and'perform each and all covenants and undertakings of said contract, “and shall pay for all labor and material employed and used for the purpose of carrying out the said contract,” and was made expressly for the use and benefit of all persons who performed labor or furnished labor and materials under the contract, giving them a right to sue thereon.
The court found that there was due the stone company, as shown by the account sued on, $1,187.50, as the purchase price of the stone furnished by it and used in the construction of the improvement in said district, and that it was entitled to a lien therefor in the said sum, and, under the terms of the bond, the surety company was liable to the payment thereof, and entered a decree accordingly, from which this appeal is prosecuted.
• It is insisted that the court had no jurisdiction of the cause, and that it erred in holding the bonding company liable for the estimated cost of the removal of the mixed dirt and stone, which, it is claimed, was not covered by the bond, and also that the lOe per yard for the crushed stone was, in effect, pay for the use of machinery leased to the contractors, for payment of which the sureties on the bond were not liable.
Treating appellant’s demurrer to the jurisdiction as a motion to. transfer the cause to a law court, it waived its right to such transfer by not insisting upon a ruling' thereon before the final determination of the case. Arkansas Construction Co. v. Pidgeon-Thomas Iron Co., 172 Ark. 721, 291 S. W. 57, 28 L. R. 445; Newell Contracting Co. v. McConnell, 156 Ark. 558, 246 S. W. 854; Hayes v. Bishop, 141 Ark. 155, 216 S. W. 298; Goodrum v. Mer chants’ & Planters’ Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511.
The plaintiff sought 'by proper allegations of the complaint to subject the money alleged to be due the contractors from the paving district for the .portion of the improvement completed to the payment of its claim for materials furnished and used in making the improvement iby equitable garnishment, which would have given the court jurisdiction to hear and determine the question. Arnold v. Oliver, 152 Ark. 47, 237 S. W. 425; Sims v. Hammons, 152 Ark. 616, 239 S. W. 19; Murray v. Rapley, 30 Ark. 120.
The undisputed testimony shows that the amount of crushed stone as charged for was furnished and used in the construction of the improvement by the contractors, and, in the opinion of the majority, the cost of removing the dirt and sprawls in procuring the stone agreed to be done by the contractors was necessarily a part of the purchase price of the stone actually furnished and used in the improvement for the balance due, upon which appellant, as surety on the bond, was liable to the payment, and no error was committed by the trial court in so holding.
The decree is affirmed. | [
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McCulloch, C. J.
This is an appeal by the State from a judgment of the court sustaining appellee’s demurrer to an indictment which, omitting the caption and formal parts, read's as follows:
“The said Preston Craig, in the district, county and State aforesaid, on the 4th day of May, A. D. 1923, unlawfully, wilfully, feloniously and maliciously did cause the life of L. A. Young to be put in immediate danger and peril by causing a certain locomotive engine to run and be thrown off the track of the Missouri Pacific Railway Company, in the yards of said railway company at Hoxie, Arkansas, into the turntable pit in said yards, and by said means put the life of the Said L. A. Young in immediate peril, as aforesaid, against the peace and dignity of the State of Arkansas.”
The charge is preferred under the following sections of the statute:
“Section 8594. Placing obstruction on track. Every person who shall wilfully and maliciously place an obstruction, by stones, logs, or any other thing, on the track of a railroad, or shall tear up or remove, or burn or destroy, any part of any railroad or the works thereof, with intent to obstruct the passage of a car or cars thereon, or to throw them off the track, shall, upon conviction, be imprisoned in the penitentiary for a period not exceeding twenty years. ’ ’ Crawford & Moses ’ Digest.
“Section 8595. Imperiling life — Penalty. Every person who shall, by any of the unlawful acts enumerated in the preceding section, cause the life of any person to be put in immediate peril, or shall cause any engine or car to be actually thrown off the track of any part of a railroad or the works thereof, shall, upon conviction, be punished by imprisonment in the penitentiary not more than twenty years.” Ib.
The Attorney General concedes that the charge is really based on the last phrase of § 8595, reading, “or shall cause any engine or car to be actually thrown off the track of any part of a railroad or the works thereof,” and it is contended that the language of the indictment is sufficient to state an offense under that part of the statute.
It will be observed that § 8594 creates an offense in placing obstructions on the track of a railroad, or removing or destroying any part of a railroad “or the works thereof, with intent to obstruct the passage of a ear or cars thereon, or to throw them off the track.” The language of the next section relates back, in creating the offense, to the acts enumerated in the preceding section, and it does not constitute an offense under that section either to cause the life of any person to be put in immediate peril, or “to cause any engine or car to be actually thrown off the track, ’ ’ except by one or more of the acts enumerated in § 8594. Any other interpretation of the language of § 8595 would make it a felony for a person, even by a mere act of negligence, to cause an engine to be thrown from the track. Such was manifestly not the design of the framers of this statute. Now, it will be observed from perusal of the language of the indictment that it merely charges that the accused caused a locomotive engine to be thrown from the track, “and by said means put the life of the said L. A. Young in immediate peril,” and it does not charge, either directly or inferentially, the doing of any of the acts enumerated in § 8594.
This is a statutory offense, and, conceding that it would be sufficient to charge an offense in the language of the statute, such is not the case here, for the language of the statute is not used either formally or in substance. In other words, the acts enumerated in § 8594 must be taken as the basis of any offense under this statute, and the failure to charge the doing of one or more of these things falls short of charging a public offense.
Our conclusion therefore is that the ruling of the court was correct, and the judgment is affirmed. | [
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McCulloch, C. J.
The appellant is charged with the crime of seduction, committed by having sexual inter*, course.with a certain unmarried female, under a false or feigned express promise of marriage.
The girl alleged to have been seduced testified that she and appellant lived in the same neighborhood in Sharp County, and began keeping company in January, 1923; that they became engaged to be married, and that thereafter appellant induced her to yield to him in sexual intercourse on account of said promise of marriage.. She testified that she made preparations for the wedding as the agreed date for it approached, ibut that appellant married another girl in August of the same year. She testified that, on one occasion while . she and -appellant were engaged, they went to the city of Batesville together, where she purchased a silk dress to be used as a wedding dress. The girl testified that she gave birth to a child, and that appellant was its father.
Other witnesses were introduced by the State, members of the girl’s family, and friends, who testified that appellant kept company with the girl from January until he married another girl in August of the same year; that he visited the girl nearly every' Sunday and frequently during the week days, and that they were frequently together at the home of her mother and at the home of her sister. Some of those witnesses testified about the trip made by appellant and the girl to Bates-ville, and about her purchase of the dress on that occasion.
Allen Smith, a witness 'introduced by the 'State, testified that he had a conversation with appellant, in which the latter stated that he was “fighting the marriage contract,” but that he did not deny being the father of the child.
Appellant testified in his own behalf, and said that he had sexual intercourse with the girl the third timé he called to see' her, and that he frequently had intercourse with her from time to time up to the time he mar ried, but that he had never become engaged to the girl or promised to marry her. He stated that the only promise he made to tlie girl was that, when she expressed fear that she might “get canght up,” he promised to use certain precautions to prevent conception.
It is insisted that the evidence is not sufficient to sustain the verdict, in that there is no corroboration in regard to the alleged promise of marriage. We are of the opinion, however, that the circumstances are such as to afford corroboration of the testimony of the prosecuting witness.
It is insisted that the court erred in permitting the prosecuting witness to state that she made preparations for the wedding, by malting up a wedding dress and other clothing especially-for that purpose. .We have decided that, in a case of this kind, it is not competent to prove by other witnesses acts or declarations of the prosecuting witness made in the absence of the accused. Woodard v. State, 143 Ark. 404. That rule does not, however, apply to the testimony of the prosecuting witness herself, for the weight of her testimony all depends upon her own credibility, and, after testifying regarding the promise of marriage and the acts of intercourse, the weight of the testimony is not augmented by her own statement as to what she had done in preparation fox the marriage. It is different, however, when an attempt is made to support her testimony by her own acts or declarations in the absence of the accused, and such testimony is incompetent. Other witnesses were questioned and testified concerning the trip made by appellant with the accused to Batesville, and her purchase of the dress, but the court excluded the testimony of witnesses as to the statements of the girl in the absence of the accused. It was competent, however, for those witnesses to testify to the fact that appellant accompanied the girl to Bates-ville, and that she purchased the dress and brought it home with her, in company with appellant. This circumstance was not without some force in corroborating the testimony of the girl, for it shows a certain degree of intimacy between the parties, which, to some extent, warrants the inference that they were engaged to be married.
We find no error in the record, and the judgment is therefore affirmed. | [
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Humphreys, J.,
(after stating the facts). In making a statement of the case we did not attempt to set out the pleadings at length, or the substance of the testimony of each witness introduced, or the decree in extenso. Had we done so, it would have unduly lengthened the statement. We confined ourselves to la statement of the issues joined, our conclusion of facts, after a careful reading and analysis of the testimoiry, and the substance of the decree.
The issues joined did not involve the solvency or insolvency of either the Model Window Glass Company or the Magnolia Window Glass Company, nor did the evidence adduced raise that issue. The case was not tried upon the theory that the Model Window Glass Company was solvent in so far as having ample property to pay its commercial debts and to sustain the value of its capital stock. Its capital stock was $75,000, and the value of its plant ivas sufficient to obtain $135,000 insurance before it was destroyed by fire. It had been rebuilt, and was practically new at the time of this transaction, and it may be reasonably inferred from the testimony of C. P. Zenor, Sr., that he expended ia large amount of the insurance money in the reconstruction of the plant. It had $6,761 of unpledged assets, and only owed about $16,000 when absorbed by the Magnolia Window Glass Company, in addition to the amount it owed the City National Bank, which was amply secured by glass 'and accounts receivable. In fact there was a margin of $10,000 or $15,000 between the glass pledged and the debt it was. pledged to secure. With a little backing from Scoggin and Hill, the real estate and plant of the Model Window Glass Company was taken over on August 7, 1924, by the Magnolia Window Glass Company, that had no money of its own, and operated at a nice profit until the testimony was being taken in this case. We arrive at that conclusion from Scoggin’s statement that the Magnolia Window Glass Company had sold $130,000 worth of glass, including what he and Hill had redeemed from the pledge to the bank, and had on hand glass worth $50,000, material worth $4,000 and accounts receivable of the value of $6,005, and only owed $2,100 to Hill, $600 to himself and $35,000 to the Merchants’ National Bank, leaving a margin of $22,305, to say nothing of the value of the real estate and the plant.
The court’s decree dissolving the corporations and appointing a receiver to wind up their affairs on the ground that they were insolvent was outside and beyond the issues joined or raised by the testimony. It was also erroneous 'because an individual creditor of a stockholder has no right to bring a suit to dissolve a corporation and wind up its affairs upon the ground of insolvency. That is a right conferred by our statutes on creditors and stockholders of a corporation. Sections 1820 and 1821, CraAvford & Moses’ Digest. None of the creditors or stockholders of either corporation are parties plaintiff to this suit; the only parties plaintiff to this suit are creditors of C. P. Zen or, Sr. Creditors of stockholders in a corporation do not stand in the shoes of a stockholder until they obtain a judgment against the stockholder, and levy upon Ms stock and buy it in at the sale. Then, and not until then, would they have a right, under §§ 1820' and 1821, to proceed to dissolve and wind up the affairs of an insolvent corporation. It is urged by appellees that §§ 4873 and 4874 of Crawford & Moses’ Digest are authority for maintaining this suit as a creditors’ bill. We do not think other persons mentioned in § 4873 embraced individual creditors of a stockholder in a corporation, but, if it does, we think appellees are estopped by transactions they had with Scoggin and Hill from maintaining a suit to set aside the sale of the real estate and plant of the Model Window Glass Company to the Magnolia Window Glass Company.
Again, appellees are clearly estopped from complaining of the sale of the real estate and plant of the Model Window Glass Company to the Magnolia Window Glass Company. They had record notice in August, 1925, of the incorporation of the Magnolia Window Glass Company and the conveyance to it by the Model Window Glass Company of its real estate and plant for a nominal consideration of $10. The City National Bank thereafter, and prior to the institution of this suit, accepted the personal indorsement of J. S. Hill and A. H. Scoggin, two of the incorporators of the Magnolia Window Glass Company, on an indebtedness of over $33,000 which the Model Window Glass Company owed it, and released glass valued at $35,000 to $38,0*00, so that the Magnolia Window Glass Company would have glass to sell in the ordinary course of trade. The glass was moved back to the plant of the Model Window Glass Company, which had been taken over by the Magnolia Window Glass Company. J. B. McDonough collected a claim against the Model Window Glass Company on an acceptance signed by A. H. Scoggin and J. S. Hill, two of the incorporators of the Magnolia Window Glass Company. Scoggin and Hill tried to g'et him to take the acceptance of the Magnolia Window Glass Company in payment of the debt, and he refused to do so. We think the record notice and these transactions were sufficient to put appellees upon notice that the real estate and plant of the Model Window Glass Company was being taken over by the Magnolia Window Glass Company, and they are estopped, after securing these debts by obtaining the personal indorsement of A. H. Scoggin and J. S. Hill in furtherance of the transaction, to complain about the transfer of the real estate and plant. Both the City National Bank and McDonough must have known that Scoggin and Hill did not pay $37,500 into the treasury of the Magnolia Window Glass Company, and that Miller did not pg.y a like amount into the treasury of the corporation, else they would have insisted upon a payment of their debts in cash rather than obtain security for same by the indorsement of Scoggin and Hill. By inquiry they could readily have ascertained the real consideration agreed to be paid bv Scoggin and Hill for the transfer of the real estate and plant of the Model Window Glass Company to the Magnolia Window Glass Company.
We do not think the City National Bank is estopped to collect its claim -against C. P. Zenor,’Sr., because it allowed the maker of the notes, Zenor Bottling Company, through the solicitation of C. P. Zenor, Sr., to move its machinery out of the State after the fire. C. P. Zenor, Sr., moved it out of the State, and it certainly does not lie in his mouth to say that the favor it granted to his corporation had the effect of releasing him from making hist indorsement to the hank good. The most that appellees were entitled to, under the allegations of the complaint and the testimony introduced in support thereof, was to follow the stock of C. P. Zenor, Sr., into the Magnolia Window Glass Company, and to subject it to the payment of their claims, provided that it was a voluntary gift to Miller, or provided it is held by Miller in trust for C. P. Zenor, -Sr. The testimony has convinced us that the stock was issued to Miller without consideration and for the purpose of enabling the Magnolia Window Glass Company to get insurance on the plant; that Miller was not a bona fide purchaser thereof for a valuable consideration. The carelessness with which his note was handled indicates that its execution was' a matter of form only, and that it was issued, if issued at all, as a subterfuge to cover up Zenor’s property and stock and prevent his creditors from reaching it. Scoggin and Hill claim and insist that they held $31,500 of Miller’s stock as collateral to secure them against any loss they might sustain by reason of indorsing the notéis of the Model Window Glass Company to the City National Bank, and any loss they might sustain by reason of other indorsements made in the operation of the Magnolia Window Glass Company. The testimony reflects that.they have received ample property to protect them against loss on account of all their indorsements, except to the Merchants’ National Bank for $35,000, and that the glass on hand is more than sufficient to pay the debt the Magnolia Window Glass Company owes the Merchants’ National Bank.
The assignment of $31,500 of the Miller stock in the Magnolia Window Class. Company was properly canceled by the court. The Zenor Bottle Company is not entitled to any judgment against the City National Bank on its cross-complaint. The City National Bank made an effort to renew the old insurance policies as they expired, and was unable to do so. The record reflects that it was impossible to get insurance on property in which C. P. Zenor, Sr., Was interested.
On account of the errors indicated, the decree is reversed, in so far as it sets aside the sale of the real estate and plant of the Model Window Glalss Company to the-Magnolia Window Class Company and dissolved them and appointed a receiver to wind up their affairs; and affirmed in so far as it sets aside the assignment of $31,500 of the stock carried in Miller’s name for the Magnolia Window Class Company, and impressed same with a lien to isiecure appellees’ judgments.
The case is therefore remanded, with directions to the chancery court to order the stock sold, amounting to $31,500, carried in Miller’s name in the Magnolia Window Class Company, free from any claim of Sooggin and Hill, to satisfy appellees’ judgments. | [
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Wood, J.
This is an action by A. C. Bead against Nina B. Beard, Sarah Dodge Brandebury and O. L. Beard, to recover the sum of $2,437.50 alleged to be due him as agreed compensation for procuring a purchaser for a large body of lands, embracing about 2,840 acres, in Hempstead County, Arkansas. The plaintiff alleged that, after incurring expense in advertising and showing the lands, he received an offer from H. T. Brown, which he submitted to the defendants on February 11, 1922, and they accepted the offer, and at the same time stipulated to pay the plaintiff as commission for procuring the purchaser the amount above mentioned; that Brown was ready, willing and able to purchase the land, for the sum of $48,750, and offered that amount, which the defendants accepted, and entered into an agreement with Brown for the sale of the property for said sum, and thereafter failed and neglected to convey the lands to the purchaser in accordance with agreement. Plaintiff alleged that the defendants were nonresidents and the owners of the lands which he described in his complaint, and prayed for judgment in the sum of $2,437.50.
An attachment was issued at the instance of the plaintiff, and levied upon the lands described, and a Us. penclens notice given.
The defendants, in their answer, admitted that.they agreed, about September 27, 1921, to allow A. C. Read to sell certain of their lands, situated in Hempstead County, and that he procured one H. T. Brown as a prospective purchaser. They admitted that they offered and agreed to sell the lands, according to their contract with the plaintiff on September 27, 1921, but denied that they agreed to pay the plaintiff a commission of $2,437.50 or any other sum for the sale of defendants’ lands to H. T. Brown or any other purchaser, until said sale was consummated and the money actually paid on the purchase price of the lands. They denied that the plaintiff procured Brown as a purchaser for the land at the sum of $48,750, and denied that Brown was ready, willing and able to purchase and pay that sum for the lands. They denied generally that plaintiff ever procured any purchaser for their lands who was ready, willing and able to purchase the same at any time, and denied that they were indebted to the plaintiff in any sum. They alleged that they entered into a contract with the plaintiff on September 27, 1921, under which plaintiff undertook to handle the defendants’ lands, which contract is as follows:
“To A. C. Read Real Estate Co.:
“For and in consideration of one dollar, the receipt of which is hereby acknowledged, I hereby appoint you exclusive agent to make sale of the real property herein described as
“About 3,000 acres located in Hempstead County, Arkansas, in sections 18, 8, 19, 20, 30, 29, 31, 32, containing about 3,000 acres, more or less, all for the price of not less than $20 per acre, upon the following terms-: one-third cash, balance secured by mortgage thereon for equal payments 1-2-3 years at 7 per cent.; and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf. In case the above described property is sold or disposed of within the time specified, I agree to make the purchaser -a good and sufficient warranty deed- to the same, and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale five per cent, commission on the above price, and twenty per cent, of all of the consideration for which said property is sold over and above price specified, and, in case said property is sold within said time, either through you, myself or any other person, then in that case I promise to pay you five per cent, on the whole amount for which said property may be sold. This contract to continue until January 1, 192'2, and thereafter until terminated by me, giving unto you as agent ten days ’ notice in writing.”
The defendants allege that they were at all times ready and willing to comply with the above contract with Read; that they furnished to plaintiff a complete abstract of title to be turned over to any prospective purchaser; that, by the terms of the contract, they agreed to pay plaintiff five per cent, commission on any sale, which amount plaintiff was to retain from the proceeds of such sale. They alleged that no proceeds had arisen from any sale of defendants’ land in Hempstead County by the plaintiff or by any other person. They prayed that plaintiff take nothing by reason of his action.
A. O. Read testified, and introduced in evidence the contract -on which he bottoms his action, which is the same as that set forth in the answer. Witness constituted the A. C. Read Realty Company. He showed the land to Brown, 'and Brown made a proposition which witness accepted under authority from the owners, and the owners and Brown entered into a contract on February 4,1922, by which the defendánts agreed to sell and Brown to purchase the lands which defendants had listed with witness for sale. Witness introduced the contract, by the terms of which the defendants agreed to sell the lands and certain personal property for the sum of $48,750, $5,000 to be paid in cash upon delivery of the contract, and the balance at the times and on the terms mentioned therein. It was agreed that, should Brown or his assigns fail to make the payments as provided, he would surrender the premises and execute a quitclaim deed transferring the property back to the sellers. It was agreed that Brown should have possession of the premises, and that he would cut no merchantable timber therefrom prior to January 1,1924. It was stipulated that, at the time of the delivery of the contract, or within a reasonable time thereafter, the defendants should furnish to 'Brown an abstract of title to the lands. Prior to the delivery of the deed Brown was to insure certain buildings for the benefit of the defendants, and farm the premises in a workmanlike manner, and pay all taxes and assessments against the same. Brown was to.take immediate possession and keep the labor on the place during the year 1922. When Brown made the payments and carried out the agreement specified, the sellers were to execute to him a deed. The contract contained the following provision: ‘ ‘ This contract and the said notes shall be delivered and the first money paid to the parties of the first part, or their duly authorized representatives, at the office of the A. C. Read Realty Company, Little Rock, Arkansas, and all subsequent payments hereon shall be made to the parties of the first part, or their duly authorized representatives, at such place as may be from time to time designated by them in writing. ’ ’
The plaintiff testified that his commission would have been five per cent, on $48,750, which the defendants refused to pay. On cross-examination he stated there had never been any proceeds from the sale, but it was not his fault or the fault of the purchaser. The sellers didn’t object to furnishing a warranty deed, but they didn’t furnish an abstract of title, as they contracted to do, and that was the reason the contract fell down. Witness and his agent, Porterfield, who conducted the negotiations up to the time that defendants and Brown entered into the contract, thought that the title to the lands was all right, but Brown’s attorney didn’t think it was a merchantable title. Witness used every effort he could to get the attorneys representing the sellers and the buyers together on the contract. The defendants offered to introduce a letter written by Bead on March 3, 1922, to Mrs. O. L. Beard, which was to show that. Bead and his agent, Porterfield, thought that the title to the lands was good. The court excluded the letter, to which the defendants excepted.
The contract between Brown and the sellers provided that Brown was to pay the $5,000 to witness upon delivery of the contract. Brown never paid the $5,000 in cash. Brown saw the contract before the $5,000 was paid. Witness didn’t think that he loaned Brown or his attorney one of the two contracts to look over — didn’t remember — and didn’t think that Brown had one of them at that time. Brown probably had one of the contracts to read, and gave it back to witness in an hour or two after he received it. They had been working on the abstract for several days. Mrs. Beard brought the contracts back, and they were finally executed by Brown in witness’ office. Mrs. Beard was there, and Brown refused to go through the deal on account of some defect in the title, and didn’t pay the $5,000 as the contract provided. Witness wrote to O. L. Beard, at Cincinnati, on the 17th of February, 1922, in which letter he stated, among- other things, that he would take one of Brown’s notes for $1,437.50, indorsed by the defendants without recourse, and that, if the notes were not paid, the plaintiff agreed not to hold the notes as a claim against the property. It was understood then between the plaintiff and the defendants that the plaintiff was to get five per cent, as his commission. The only contention ever made by the defendants was that plaintiff was not entitled to any commission because there had been no proceeds. Mrs. Beard, who handled all the negotiations for the other heirs, was in witness’ office on February 15, when Brown signed and acknowledged the contract, and she agreed for witness to have a five per cent, commission on the total purchase price. The letter of February 17, in which witness agreed to take Brown’s note for $1,400, referred to the balance of witness’ commission, and was dividing Brown’s first $3,000 note into two notes, one for $1,562.50 and the other for $1,437.50. Witness never received any commission on the deal. Mrs. Beard put Brown in possession of the land after the contract was signed, and he stayed there for something like a month.
John Newman, the attorney representing Brown in the negotiations between Brown and the defendants, also represented witness in this action. Witness understood that he approved the title to this land for a loan from the Federal Land Bank, and the loan was made upon his opinion.
Mrs. Nina Beard testified for the defendants. She didn’t consider .that Mr. Bead had made a sale of the lands. He got Brown there, and she entered into a contract with him in writing on February 4, which had been introduced in evidence. The contract provided that, at the time the contract was delivered to Brown, he was to pay $5,000; that was never paid. She allowed Brown to go into possession of the farm, after they had made the preliminary agreement which witness made with Brown the first time she was down there on this business. This was before the contract was signed with Brown. She never gave A. C. Bead or any member of his firm authority to change the contract by deliver ing it to Brown without his paying the $5,000 as provided therein. It was given to Read with the idea that he Was to hold it in trust until the money was paid. The contract provides that the commission was to be paid from the proceeds of the sale of the property. It also provides that the sellers were to make the purchaser a warranty deed to the property. They did not refuse to make the deed. They furnished the purchaser a complete abstract of title, so far as witness knew. Just before the contract in evidence was signed by the prospective buyer, Mr. Porterfield, who had this tract of land for sale during the lifetime of witness’ father, assured witness that the title was good — that he knew it very well. Porterfield represented A. C. Read in the negotiations. Witness was asked if she signed that contract relying on what Porterfield said that the title was good, and the court refused to permit the witness to answer the question, to which ruling the defendants duly excepted. Witness stated that defendants had never brought suit against Brown to enforce the contract of sale with him. She wrote to Read to keep whatever securities he had there for awhile until they could determine what to do. In regard to the division of the first $3,000 note referred to in the letter of February 17 from Read to Beard, and introduced in evidence, witness stated that Read was to take that note. She was to have nothing whatever to do with it. She was anxious to get home, and they told her if she would sign the contract they would take good care of her and see that everything was done to get the notes and the money. She signed the contract only with the idea that the contract was not complete or would not be in force until this delivery — or until after the abstract was delivered. It was not to bind witness in any way until then, and witness put the papers in Porterfield’s and Read’s hands with the understanding that they were to take care of her the same as a lawyer. They told her she didn’t need a lawyer. She was to have nothing whatever to do with taking this note transaction as a part of the com mission. Witness was to furnish the abstract, and she did so. She left some of them there then. She didn’t have them all, but didn’t know it when she got there. The rest of them were in the Federal Loan Bank. She left a part of the abstracts and the contract there for them to close the matter up and accept the $5,000, and she sent the rest of the abstracts later.
At the close of the testimony the plaintiff asked the court to instruct the jury to return a verdict in his favor in the sum of $2,437.50, which the court did. The defendants duly excepted to this ruling of the court. The defendants presented prayers for instructions numbered one to eleven, which the court refused, to which ruling the defendants duly excepted. Judgment was entered in favor of the plaintiff in the sum of $2,437.50, from which judgment is this appeal.
The appellants contend that the appellee is not entitled to any compensation under the contract of September 27, 1921, between him and the Brandebury estate, because there was no completed sale; that the third paragraph of the contract shows that there was to be a completed sale, with a payment of $5,000 cash as a condition precedent to the payment of commission; that the commission could only be paid out of the proceeds arising from the sale. We cannot concur in this view of the contract. Construing the contract as a whole, it occurs to us that it was a contract by which Bead, the appellee, agreed to make a sale of the property upon the terms therein mentioned, and, for his services in making the sale at the price named, he was to receive a commission of 5 per cent, and 20 per cent, of any consideration above the price specified, and that he was to receive 5 per cent, of the whole amount for which the property was sold, until the agency was terminated by ten days ’ notice from the seller, whether the sale was made by appellee or by any other person. The language of the contract, when taken as a whole, is nothing more nor less than a contract by which the appellee agreed to furnish a purchaser, ready, willing and able to pay for the lands described the price named therein, or a greater price, and upon the terms of payment therein mentioned. The contract, as we construe it, comes clearly within the doctrine announced by this court in Pinkerton v. Hudson, 87 Ark. 506; Womack v. Perkins, 132 Ark. 378; and many other cases of this court, holding that “where a real estate broker contracts to produce a purchaser who shall actually buy, he has performed his contract by the production of one financially able and with whom the owner actually makes an enforceable contract of sale. The failure to carry out that contract, even if the fault be that of the purchaser, does not deprive the broker of his right to commission.”
The undisputed proof in this record justified the court in finding that the appellee had complied with the terms of the contract on his part. He furnished the purchaser, Brown, with whom the appellees entered into the contract of February 4,1922, for the sale of the lands in controversy. The undisputed testimony shows that the failure to consummate the sale contemplated by that contract was not the fault of the appellee. The undisputed testimony shows that Brown, the prospective purchaser, refused to carry out the contract on his part because of an alleged failure on the part of the other parties to the contract to furnish an abstract of title such as the contract called for. On the other hand, the appellants claim that they did not fail to comply with the contract in that respect. This controversy between Brown and the. appellants was no concern of the appellee, inasmuch as the undisputed testimony of Nina B. Beard, who conducted the negotiations for the appellants, shows that the appellants did not undertake to enforce the contract; and the undisputed evidence shows that Brown was financially able to carry out the contract, on his part, and that same could have been enforced if he had violated same. The appellee owed the appellants no duty with reference to the enforcement of the contract between the appellants and Brown.
It is unnecessary to discuss in detail the oral testimony in the record. The decision of the cause turns upon the construction of the contract, and we are convinced that the trial court correctly construed the same, and, under the undisputed evidence, did not err in directing a verdict in favor of the appellee. The judgment is therefore affirmed. | [
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Hart, J.
S. H. Moore was convicted in a justice of the peace court for enticing away a laborer, in violation of our statute, and appealed to the circuit court.
According" to the evidence for the State, on the 5th day of M'ay, 1924, J. A. Price employed a negro named George Butler to. work for him in putting in and making a rice crop.' Price hired Butler by the month, and was to pay him $35 per month to help put in the crop. "When the pumping season began he was to pay him $2 per night and board until that season was over. Alter George Butler had worked three weeks, Price paid him $15 on account. This was on Saturday, the 24th day of May, 1924, and Butler went to town with the distinct understanding that he would be back for work early the next Monday morning. Butler never came back, and the defendant told Price that he had employed Butler for $2.50 per day to help him in getting out timber. Price saw the defendant driving by his place a day or two before Butler quit. Butler had worked for the defendant during the timber season in the fall of 1923.
Other witnesses for the State testified that Moore came into the neighborhood in May, 1924, and was looking for some negroes who had worked for Mm in getting out timber during the previous fall. He inquired about George Butler, and was told that Butler was employed by the month by J. A. Price.
Another witness testified that the defendant told him on the Sunday morning that he hired Butler that he knew that Butler was working for Price, and that he would not.hire him without his consent.
Evidence was adduced by the defendant tending to show that George Butler quit working for Price of his own accord, and, after he had quit, the defendant hired him to work for him.
The court instructed a verdict of acquittal, and the State has appealed.
The court stated specifically that the fact that the defendant knew that Butler was employed by Price, and with that knowledge gave him employment, before his contract had expired with Price, together with the other circumstances adduced in evidence, would not warrant a verdict of guilty.
The court was mistaken in its view of the law. Our statute provides that, if any person shall interfere with, entice away, knowingly employ, or induce a laborer who has contracted with another person for a specified time, to leave his employer before the expiration of his contract, without the consent of the employer, he shall, upon, conviction, be fined not less than $2-5 nor more than $100. Crawford & Moses’ Digest, § 6570.
This court has held that one will not become guilty under the statute of enticing away a laborer who has quit his employer’s service; but that he is guilty if the enticement is made while there exists a valid contract for continued service known to the defendant. Johns v. Patterson, 138 Ark. 420; Johns v. Patterson, 145 Ark. 46; and Griffin v. State, 160 Ark. 166.
In the latter case the facts were that Griffin, with knowledge that Hutson had been employed by Cox & Alexander for the year 1923 to make a crop, and before Hutson had quit the employment, began negotiations with Hutson, without the consent of his employers, to go with him to the State of Mississippi and work for him there. The court expressly- said that the existence of these facts brought the case within the operation of the statute, and that a verdict of guilty was warranted both as to the law and the evidence.
The facts in the instant case are precisely the same in all essential respects, and the* court erred in telling the jury as a matter of law that the defendant was not guilty of a violation of the statute. The guilt or innocence of the defendant should have been submitted to the jury as a question of fact to be determined by it.
It follows that the judgment will be reversed, and the cause remanded for a new trial. | [
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'Wood, J.
This is an action by the Tiirner Hardware Company, a corporation, hereafter called apxjellee, against G-. A. Dunn, hereafter called appellant. The action was begun at law in unlawful detainer to recover the possession of a portion of a brick building in the town of Magnolia. Appellee alleged that it was the owner of the building, and had rented a portion thereof to the appellant for a period of one year; that appellant’s lease expired the first of January, 1922, and that appellant, after having leg’al notice to quit, had refused to deliver possession to the appellee; that, on account of the unlawful detention, appellee had been damaged in the sum of $1,500. Appellee prayed judgment for possession and damages.
The appellant, in his answer, admitted that the appellee is the owner of the building and that appellant had rented a portion thereof from the appellee, but denied that his lease expired January 1,1922, and denied ihat he wilfully and without right detained the possession thereof. He alleged that he rented the building from the appellee in August, 1918, for a period of five years, under a contract that appellee would build the building to suit the needs of the appellant; that, in pursuance of the contract, appellant went into possession, and had performed his contract by paying all the rents due thereunder; that appellant had made certain improvements and arranged fixtures therein to suit his business, on. the faith that he would'be allowed to keep the building for a period of five years. .Appellant 'specified in his answer the kind of-improvements that he placed in the building, which he alleged were fixtures and were installed at a great expense; that, if the appellant were denied the use of the building and forced to remove the fixtures, he would be damaged to the extent of the cost of these fixtures; that, since entering into the contract, the appellee had rented the building to another, party, which fact had been made known through the public press, and damaged his business in the sum of at least $500. The appellant prayed that he be awarded the use of the premises for the remainder of his lease and that he have damages against the appellee in the sum of $500.
The appellee filed’a pleading designated “Reply to the answer,” in which he denied the allegations of the answer, and set up, among other things, that, if there was any contract between the appellee and the appellant for the lease of the building for five years, as alleged in the answer, the same was within the statute of frauds. The appellant thereupon moved to transfer the cause to the chancery court, and the cause was transferred to the chancery court. The amended answer set out above was thereafter filed, and time was given.to take depositions. A motion was made thereafter to strike the reply to the answer from the files, which motion was sustained. On May 23, 1923, an adjourned day of the April term of the chancery court, the defendant filed his depositions*-,and also moved to quash the depositions that had been filed by the appellee. This motion to quash the depositions of the appellee was overruled on this day, and the appellant was then allowed ten days in which to take depositions, and the appellee given five days thereafter to take-depositions in rebuttal. ' ■
On July 24, 1923, the same being the second day of the regular July term, appellee filed what it‘designated-“Amendment to complaint and reply to answer;’-’ in which1 it set up that, “ifThere is any contract betweefbtheíplain- «= tiff and the defendant for the lease of this buiíding, said - ■ contract is verbal ánd not in writing, and-is-therefore void by reason of the statute of frauds.” The appel lant moved, to strike this pleading from the files, and the court overruled the motion. The cause was then heard by the chancery court upon the pleadings, their exhibits, and the depositions of the witnesses. The court -found, among other things: “First, that, if there was an oral contract entered into between the plaintiff and the defendant for-the lease of said /building for a period of five years, it is void on account of the statute of frauds; second, that the burden of proof is upon the defendant to show by a preponderance of the testimony that he entered into said oral contract for the lease of said building for a period of five years; and that the defendant has failed to sustain said burden; third, that the plaintiff is entitled to possession of said building, and was at the time of the bringing of the suit, and that it has sustained damages on account of the detention of same by the defendant in the sum of $1,000.”
The court thereupon entered a decree in favor of the appellee against the appellant for the possession of the building, and also a judgment against the appellant and his bondsmen in the sum of $1,000 damages, with interest at the rate of six per cent, from the date of the decree. From that decree is this appeal.
1. The secretary and treasurer of the appellee, and also its vice president, testified to the effect that the appellee never entered into any contract with the appellant for the lease of this building for five years. The secretary and treasurer, who represented the corporation in negotiations, testified that appellee rented the building to appellant for a year. The testimony of the witnesses for the appellee was to the effect that they never heard of any five-year contract’until the first of January, 1922, when they went to appellant to ascertain whether he was going to deliver possession of the building to them. One of the witnesses testified that, on the first of August, 1921, he went to appellant and asked him if he wanted the building for -the year 1922, and told appellant that witness had an opportunity to lease it if appellant did not want it, and appellant told witness to go ahead and lease it — that he conld not use it.
' The secretary-treasurer also told appellant that he (appellant) could lease the building from the first day of .September, 1921, to the first day of January, 1923, and left it optional with appellant as to whether he would lease it from the first of September, 1921, or the first of January, 1922, and appellant told the witness to lease it from the first of January, 1922. After this conversation, witness entered into a contract with one Mitchell for the building for the year 1922, relying on appellant’s statement that he didn’t want it and would not use it. After witness had leased the building to Mitchell, he told appellant about it; that he had leased the building to Mitchell at $50 per month for the year 1922, and appellant replied that it was perfectly all right; that he was glad witness could get that for it, because it was more than he (appellant) could pay.
The vice president of appellee testified, corroborating the testimony of the secretary to the effect that he and the secretary had a conversation with the appellant in the fall of 1921, at the time they made the contráet with Mitchell, and appellant stated that he didn’t-blame the witnesses for renting the building if they could get a higher rent; that he'could not pay as much as $50 per month, the sum that Mitchell had agreed to pay.
On the contrary, the testimony of 'the appellant was to the effect that he rented the building in the pear Í918 for a period of five years at $35 per month. He first talked to the president of appellee ’ in regard to the dimensions of the building, and then to the secretary. They would not agree to make the building as long as appellant wanted, but did agree to make if 40x50'feet, and, under that contract, appellant went into possession of the building, and went to an expense of $500 in putting in an ice-box and other fixtures to' the amount of about $300, amounting in all to about $800; that he had entered into possession of the building on August 26. 1918, and had paid his rents' regularly. Appellant denied that he told the secretary of appellee that he did not want the building for five years. He didn’t know they were trying to lease the building. The secretary and he were always joking, and the secretary was always telling the appellant that he was going to be put out. ■ Appellant did not take this seriously, and did not agree to vacate January 1,1922. He heard the building was leased to one Mitchell, but the officers of the appellee never told him so, and he paid no attention to the idle gossip. There was never anything said by the officers of the appellee to lead witness to believe that he had the building for five years. Appellant paid his rents to January 1, 1922, and offered to pay his rent in, February and March of that year, but appellee refused to accent same.
On cross-examination appellant stated that the secretary of appellee went through the store and said, “I have leased this building for $50,” and witness said, “That is all right,” and witness didn’t know until some time later that he meant it. Appellant was asked: “When Mr. Colquitt first mentioned it to you, in the summer or fall of the year 1921,1 believe, you say you told,him that you didn’t know whether you would want it for another year or not? A. I told him I didn’t know what I would do another year. Q. He told you that he wanted to know what you were going to do about the building for another year? A. I told him that I didn’t know what I would be doing next year.' Q. When he told you that he had a chance to rent it you told him that you did not know whether or not you would want it for another year? A. I told him I did not know what I would- do — I might be in Halifax, or dead.”
The appellant admitted that he was in possession of the building under a lease contract, but alleged that it was a contract .-for five'years. The court therefore correctly found that the burden as to whether the Contract was one for five years’ was upon the appellant. It occurs to us that the finding of the chancellor thatfffie appellant had failed to 'sustain this burden is correct. There is á decided conflict in the evidence, as is shown, by the above,, but certainly it cannot be 'said that the appellant had proved the contract as alleged, even if the statute of frauds was not properly pleaded.
2. We are convinced, from the .record entries as above set forth, that the statute of frauds was properly pleaded. Appellant, in his amended answer, set up that the appellee, before the expiration of the lease contract with appellant, had entered into a lease of the building to one Mitchell, for the purpose of conducting a grocery store therein, which lease contract with Mitchell had damaged the appellant in the sum of $500, for which damage he prayed judgment. This pleading was in the nature of a counterclaim against the appellee, and justified it in filing a reply thereto under § 1205, Crawford & Moses’ Digest.
The contention of the appellant that the statute of frauds was not pleaded by the appellee cannot be sustained. At the time this last pleading was filed by the appellee the cause had been transferred to the chancery court, and the court correctly overruled appellant’s motion to strike the same from the- files. Since the defense of the statute of frauds therefore was not waived by the appellee, the appellant cannot sustain his contention that there was an oral lease for five years unless he proved by a preponderance of the evidence facts which prevented the operation of the statute of frauds. While the appellant testified that he madé certain improvements — that he built on to a portion that was already there, and fixed it with lattice work, and put in an ice-box, a platform in the rear on top of the partition, a cement block for his motor, a window display, and ventilators in front of the building, and power line to drive the motor — yet this testimony does not show that these were in the nature of permanent fixtures to the freehold. His testimony only shows that these improvements were made by him to conserve his own' business interests. They were made for his own convenience and profit, and not to add any permanent value to the freehold. At least his testimony does not tend to prove- that thése improvements were contemplated by the terms of the contract between himself and the appellee. We find nothing in the testimony to take the case out of the operation of the statute of frauds. Mere occupancy of. the land and the payment of the rent for the period occupied were not sufficient. Reichardt v. Howe, 91 Ark. 280; Phillips v. Grubbs, 112 Ark. 562; Storthz v. Watts, 117 Ark. 500; Garner v. Stanley, 137 Ark. 446.
3. The uncontradicted evidence is that appellee was deprived of possession of its building. As we have seen, a preponderance of the evidence shows that the appellant’s lease expired January 1,1922. Appellant retained possession of the .property from that time, on till the trial of the cause, July 24, 1923. Thus appellee was deprived by appellant of the possession of its property for a period of one year and nearly seven months. Appellee had rented the building to Mitchell for the year 1922 at $50 per month, and there was evidence that the building could have been rented in 1923 for $60 per month, and that, at the time of the trial, the building had a rental value of $75 per month. The court entered a decree awarding the appellee possession and damages in the sum of $1,000. The 'appellant contends that a decree for damages is without evidence to sustain it; that the appéllee failed to prove the market value of the lease; but we cannot agree with the appellant in this contention. The testimony above set forth does tend to prove that appellee’s land had rental value during the time occupied by appellant of at least $1,000, and that appellant, in unlawfully withholding the lands from appellee and thus depriving it of the rents it would have obtained for the land, damaged appellee to the amount of thesé rents. It is wholly immaterial that the trial court, through a misnomer, designated the amount appellee was entitled to recover as “damages” instead of “rents.” Appellee was entitled to recover of appellant, as the rental value of the lease, the sum of $1,000, and appellant is not prejudiced because the court designated this amount as “damages” instead of “rents.” The consequence to appellant is the same.
4. Appellee contends, on affirmance of the decree, that it is entitled to judgment against the appellant and his bondsmen in the sum of double the yearly rental value of the lands since the rendition of the decree, under § 6557, Crawford & Moses’ Digest; but the facts of this record do not bring it within the provisions of that section.
The decree is in all things correct, and is therefore affirmed. | [
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Mehaeey, J.
B. H. Williams and L. M. Moody, administrator of the estate of John B. Williams and Joe Williams, deceased, filed suit in the Mississippi Circuit Court against the appellant, W. D. Gravette, alleging that’ H. M. Haynes, as guardian of the person and estate of B. H. Williams, John Williams and Joe Wil liams, minors, obtained an order of the probate court of Mississippi County to sell certain lands, and that said Haynes, as guardian, was ordered by the probate court to make the sale and to execute a bond in the sum of $1,000 conditioned that he would truly account for the proceeds of the sale according to law and as the order might require. That he executed this bond, and W. D. Gravette was one of the sureties on said bond. That the sale was made of said land for the sum of $760, after same had been appraised, and that a deed was made and the purchasers executed a note and mortgage to the guardian, the note being payable twelve months after date and bearing 8 per cent, interest. That the accounts of the guardian were settled by the probate court of Mississippi County, showing a balance owing to said minors of $1,228.02. The sureties on the guardian’s general bond had paid all but $228.02. J. B. Williams and Joe Williams had died, and Moody was their qualified and acting administrator, and B. H. Williams has attained his majority.
There was a prayer for judgment for $228.02, with interest and cost.
The answer denied all the material allegations of the complaint, and alleged that plaintiffs had filed suit against A. M. Butt and Josie Sudberry, executrix of the estate of J. G. Sudberry, alleging that they were sureties on the bond of Haynes as guardian, and that plaintiffs had procured a judgment against them for $1000. Defendant denied that he was indebted to plaintiff in any sum.
It was agreed that the question should be submitted to the court sitting as a jury, and should be heard upon the pleadings and evidence introduced. Letters of guardianship issued to H. M. Haynes in 1910 and the guardian’s bond executed by Haynes with Sudberry and Butt as sureties were introduced. Also order of the probate court for the sale of certain lands and order directing the'guardian to give a special bond of $1,000, and there was also introduced the bond for $1,000 signed by the guardian and D. W. Hieles and W- D. Gravette, the appellant. There was also a report of sale showing that the property was sold for $760, which was more than three-fourths of its appraised value. There was introduced also the order of the probate court approving the sale and a guardian’s deed to the purchasers of the land, and deed of trust from the purchasers to secure the payment of the purchase money. Also the petition of B. H. Williams and the order of court finding that Haynes was indebted in the sum of $1,228.02 as guardian. *
The complaint of plaintiffs in the chancery court in Mississippi County against the sureties on both the general and special bond was introduced. Also the amended complaint, which was against the sureties of the general bond only. Also answer to the amended complaint, decree of chancery court against the sureties on the guardian’s general bond, and the deposition of Mr. Ramsey Duncan, who testified, in substance, that he was trustee in the deed of trust, and that the note which was given for the purchase of the land sold by the guardian was exhibited to him as paid, and he satisfied the record.
After hearing the evidence above mentioned, the court made the following finding of fact:
“In this case the court doth find the facts to be: 1. That on January 23, 1911, W. D. Gravette, as surety for H. M. Haynes, the guardian of Bolden (B. II.) Williams, John B. Williams, and Joe Williams, minors, executed the bond mentioned in and exhibited with the complaint.
“2. That, on December 3, 1910, the said H. M. Haynes, guardian as aforesaid, did, in pursuance to the orders of the probate court for the Chickasawba District of Mississippi County, Arkansas, sell to A. T. Cloar and R. T. Lipscomb, upon a credit of twelve months, for the sum of $760, tog-ether with interest at the rate of 8 per cent, per annum, the following described real estate belonging to his minor wards, to-wit: northwest quarter of the southwest quarter of section 28, township 15 north, range 10 east, Mississippi County, Arkansas; and that said sale was had under and in pursuance to §4 5044 to 5046, both inclusive, of Crawford & Moses’ Digest for the purpose of reinvestment.
“3. That the proceeds of the sale of the aforesaid land belonging to said minors, to-wit, the sum of $820.80. were duly received by the said H. M. Haynes, guardian as aforesaid, on December 3, 1911; that the accounts of the said guardian were duly settled by the probate court for the Chickasawba District of Mississippi County, Arkansas, on November 29, 1924, and that out of the proceeds of the aforesaid sale there now remains a balance of $228.02, together with interest from November 29, 1924, at the rate of six per cent, per annum, justly owing bj- the said H. M. Haynes, guardian as aforesaid, to his said wards.
“4. That the condition of said bond has been broken, and that the plaintiffs in this case are entitled to judgment against the defendant, W. D. Gravette, as surety on said bond, in the sum of $228.02, together with interest from November 29, 1924, at the rate of six per cent, per annum, making a total of $250.17 now due and owing.”
Judgment was given against the appellant for $250.17. A motion for a new trial was filed, overruled, and appeal taken to this court.
The appellant states that this suit involves the construction of §§ 5044 and- 5046 of Crawford & Moses’ Digest. Said sections read as follows:
“Section 5044. When it shall appear that it would be for the benefit of a ward that his real estate, or any part thereof, be sold or leased and the proceeds put on interest., or invested in productive stocks, or in other real estate, his guardian or curator may sell or lease the same accordingly upon obtaining an order for such sale or lease from the court of probate of the county in which such real estate or the greater part thereof shall be situate.”
‘ ‘ Section 5046. If, after a full examination, on the oath of credible and disinterested witnesses, it appears to the court that it would be for the benefit of the ward that the real estate, or any part of it, should be sold or leased, the court may'make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bond to make such leases and conduct such sale with fidelity to the interest of his ward and faithfully to account for the proceeds of such sale and lease according to law and as the order of the court may require.”
The appellant then contends that § 5046, above quoted, does not contemplate that the guardian shall continue to loan the money derived from the sale of lands.
It is unnecessary to decide in this case whether that is a proper construction of § 5046 or not, because there is no evidence in the record that hó did continue to loan the money derived from the sale of lands. The evidence conclusively shows that he collected the money, charged himself with it, but never did pay it over or account for it.
We agree with the appellant that it is the settled law in this State that all statutes relating* to the same subject shall be construed together in arriving at the legislative intent. The statute provides for the probate court to appoint guardians and curators, and § 5013 of Crawford & Moses’ Digest provides that guardians and curators appointed by the court shall, before entering on the duties of their offices, give bond with security to be approved by the court, before they shall be appointed, to the State of Arkansas, for the use of the minors, respectively, in double the value of the estate or interest to be committed to their care, conditioned for the faithful discharge of their duties according* to law. That is the condition of the guardian’s general bond. The bond given in this case is under § 5046, and provides that the courts shall require the guardian or curator to enter into a good and sufficient bond, not only that he will conduct such sales with fidelity to the interest of his ward, but that he will faithfully account for the proceeds of such sales according to law and as the order of the court may require. It is also provided in § 5060 of Crawford & Moses’ Digest that, if any guardian fail to loan the money of his ward on hand, he shall be accountable for the interest thereon.
Considering' all these statutes together, as suggested by the appellant, it appears that the guardian, when appointed, is required to give a general bond for the faithful discharge of his duties, that in sales of land, as in this case, he is required to give an additional bond, not only for good faith in making the sale, but to account for the proceeds of such sale, and, if he does not lend the money under the order of the court (and it does not appear in this case that he did), or if he should lend the money without an order of the court to do so and without the approval of the court as to his sureties, then in either event he would himself be liable for the interest.
The probate court made the order to sell the land, it was sold on a credit of twelve months, and a deed was executed by the guardian and approved by the court and a deed of trust executed by the purchasers to secure the payment of the purchase money, $760, and this action was approved by the court. This note was then collected by the guardian, and it does not appear that he ever accounted for it.
It is true, as argued by appellant, that the only assets ever coming into the hands of the guardian, so far as the records show, were the proceeds of the sale of the land. It is also true that this sale was made in conformity with the orders of the court, and, so far as the record shows, was free from fraud or bad faith in any way. Some of his actions seem to have been reported to the court, but we think the appellant is in error when he says he accounted to the court for the proceeds. It is true he took a note and deed of trust to secure the payment of the note, as ordered by the court, but he collected this note and did not account for the money collected. It is true that it is not shown by the record when it was collected, but we think that immaterial, because the note itself was an interest-bearing note, and, if lie collected it after maturity, lie would necessarily collect the interest on it, and then he would be required to pay interest if he did not lend it again from that time on. These bonds were given for this purpose.
It is unnecessary to decide whether a suit could have been maintained against the sureties on both bonds and $1,000 only recovered, because, if that had been done, the appellant would have had to pay more than he is now called upon to pay, and he cannot complain because the procedure was such that his obligation was less than it would have been if plaintiff had proceeded as suggested by appellant.
In a Missouri case it was said by the court:
‘ ‘ It can hardly be maintained that an administrator or guardian has faithfully accounted for money received by him as such, Avithin the meaning of the statute or bond requiring' him to fully account therefor, when he simply charges himself therewith before the proper officer, and, at the time, has the same in his possession.” State v. Coleman, 73 Mo. 684.
In this case it is not disputed that the. purchase money note Avas paid to the guardian, but that he simply charged himself with it before the proper officer, the probate court, and, as said in the case last mentioned, in order to faithfully account for such money, he must not only charge himself with it, but he must safely keep and disburse the same according to law. The object of the statute was to provide additional security for the safekeeping and proper disbursement of the proceeds of the sale of the land.- That was the purpose of requiring the bond. Not simply that the sale should be fairly made and that the guardian should report it, but that he should pay it over to the persons entitled to it. That is what is meant by accounting for it.
There are numerous authorities cited in appellee’s brief, but it is unnecessary to repeat them here. The bond, as we have said, was given for the specific purpose of requiring a proper sale and accounting for the pro eeeds of tlie sale of this particular land, and the fact that a portion of the proceeds had been collected from the sureties of the general bond does not release the surety on this special sale bond. In fact, the appellant was liable on his bond for $1,000, for there was that amount of the proceeds unaccounted for.
There is no dispute about the facts, and, while the appellant says that the court erred in its finding of facts and declarations of law, yet he does not point out in what respect it erred in either, except in the matters we have above discussed. We find no error in the findings of fact or law, and the judgment of the circuit court is affirmed. | [
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Humphreys, J.
This is a suit brought by appellants against appellee to enjoin the directors of the Earl Frazier Special School District oh Pulaski County from borrowing money and issuing bonds to build a new schoolhouse in the district, upon two alleged grounds; first, that the act creating the district is void because it contains no authority to borrow money, and because it does not state in whose names the notes and bonds may be executed; second, that, if the act is valid, the directors were about to recklessly expend and waste the school funds in the construction of an unnecessary school building.
A demurrer was filed to the complaint, upon the alleged ground that it did not state sufficient facts to constitute a cause of action.
The demurrer was sustained and the complaint dis.missed, from which judgment an appeal has been duly prosecuted to this court.
(1). Earl Frazier Special School District of Pulaski County was created by special act of the Legislature, No. 324. Section 4 of the act is as follows: “A majority of said board of directors is hereby authorized to execute a promissory note, or notes, or bonds, in the name of, and for such sums of money as may be required, which shall be similar in form as are like instruments of like kind, and shall have the same force and effect as though it had been the act of an individual; and said directors may mortgage any of the property of said district and pledge the revenues thereof as security for payment of said notes and bonds, and against such instruments said district shall be allowed no defense by virtue of its capacity as a school district, in law or in equity, not accorded to individuals. Said directors shall in no way be personally liable for the payment of said notes or bonds. Nothing in this act shall be so construed as shall prevent or preclude from such school district any right in law or in equity which as a natural person it may claim..”
This section clearly authorizes the directors to execute negotiable paper and to mortgage the property of the district to secure same. We think it just as clearly auuionzes rue directors to borrow whatever money may be necessary for school purposes, inducting construction or necessary school buildings, it will ,be observed that the first part of the section provides that the notes and bonds may ,be executed by the directors, “for such sums of money as may be required.” There is no inhibition in our Constitution against the creation of the special school district in rural territory by the Legislature, and investing it with the same power and authority which may be conferred upon special school districts m cities and towns. Again, we do not think § 4 of said act is invalid because it does not state in whose name the notes, bonds, and mortgages may be executed. The section clearly indicates that they are to be executed for the benefit of the school district, and not for the benefit of the directors. It is provided in the section that the directors shall not be personally responsible upon them. The clear inference is that the school district shall be responsible for them. It is apparent that the name of the school district was omitted through typographical error.
(2). The gist of that part of the complaint charging an abuse of the discretion on the part of the directors in attempting to construct a new school building, is that they are about to destroy a practically new building, which is in every way ample for school purposes, and to erect one in its stead at a cost of $58,000, which will result in cutting the school term down to a very short period of time each year; and are about to pay $1,200 for two acres of land worth only $200. These are general allegations of fact, but not so general that they may be characterized as conclusions only. As the allegations are more than mere conclusions, the court should have treated the demurrer as a motion to make the complaint more definite and certain by requiring the appellants to state the accommodations and conveniences afforded by the old building, the number of scholars in the district, the revenues thereof, and the length of time the annual terms of the school district will be cut down, etc., if the new building is constructed. The complaint should specifically set out facts showing a clear abuse of discretion amounting to a reckless expenditure and waste of the school funds, or a shortening of the school term to such an extent-that it would destroy the real purposes for which the school district was created. The main purpose of public schools is to educate the children, and not merely to provide equipment which cannot be used. The law, however, accords to school directors a broad discretion, and courts will not interfere with their discretion unless an arbitrary abuse thereof is contemplated.
On account of the error indicated, the decree is reversed, and the cause is remanded, with leave to appellants to amend their complaint if they desire to do so, and for further proceedings not inconsistent with this opinion.
Hart, J., concurring. | [
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McCulloch, C. J.
Appellee, Searcy Wholesale Grocer Company, is a domestic corporation doing business at Searcy, Arkansas, and it instituted this action in the circuit court of that county against the Michael- ' Swanson-Brady Produce Company, of Kansas City, to recover the sum of $237.75 for damages sustained by reason of alleged depreciation, by decay and otherwise, of a part of a carload of potatoes sold and shipped by said defendant to appellee. A garnishment was issued at the instance of appellee against the Bank of Searcy as garnishee, and the garnishee answered that it had in its possession the sum of $306.77, the proceeds of a draft drawn on appellee by defendant in favor of appellant, Merchants’ Bank of Kansas City. Appellant appeared as intervener in the cause, and claimed the proceeds of the draft as its property. There was a trial of the issues before the court sitting as a jury, and the court found in favor of appellee for the recovery of the amount claimed against the defendant, and also found that the funds in the hands of the garnishee were not the property of appellant, but were the property of the defendant, and rendered judgment accordingly. The defendant, Michael-Swanson-Brady Produce Company, did not appear in the action.
The sole contention here is that the finding of the court was not supported by any evidence, and we must, of course, follow the well-established rule that, in trials at law before the court as well as before a jury, the finding will not be disturbed, when based on conflicting evidence, if there is testimony of a substantial nature in support of the finding or verdict.
The facts- developed at the trial by uncontradicted evidence are that appellee purchased a carload of potatoes from defendant, Michael-Swanson-Brady Produce Company, the price being the sum of $306.77, and defendant shipped the car of potatoes by rail to appellee, and drew a draft on appellee in favor of appellant for the price of the potatoes; that appellant credited the amount of the draft to defendant’s cheeking account on the hooks of the bank and forwarded the draft to the garnishee, Bank of .Searcy, for collection. Appellee paid the draft, but, as before stated, caused a writ of garnishment to he issued and served while the funds thus collected were still in the hands of the Bank of Searcy. The trial court made a finding that the proceeds of the draft paid by appellee to the garnishee bank were not the property of appellant, but that the latter was merely the agent of the defendant in the collection of the draft, and that the proceeds thus collected were the property of said defendant and subject to garnishment for its debts. We are of the opinion that the court’s finding of fact on this issue was unsupported by the testimony, and that the case is controlled by the decision of this court in Cox Wholesale Gro. Co. v. National Bank of Pittsburg, 107 Ark. 601. The facts of that case were identical with the present one, except that, in that case, the draft was payable to the drawer’s own order and was indorsed to the hank, whereas in the present instance the draft was drawn in favor of appellant bank and was delivered without indorsement. In each case all that was shown was that the draft, upon delivery, was passed to the credit of the checking account of the drawer. In the opinion in the case just cited we quoted with approval from the decision of the Supreme Judicial Court of Massachusetts in the case of Taft v. Bank, 172 Mass. 363, as follows:
“So when, without more, a bank receives upon deposit a check indorsed without restriction, and gives credit for it to the depositor as cash in a drawing account, the form of the transaction is consistent with and indicates a sale, in which, as with money so deposited, the check becomes the absolute property of the hanker.”
The only additional question presented in the present case is whether or mot there is anything more shown by the testimony in this case to detract from the force of the facts stated above. Appellee introduced as witnesses several bankers of Searcy, who testified that they were acquainted with tbe general practice or custom of banks in'handling drafts for perishable products sold by customers, and that the custom was to receive the draft for collection and pass it to the credit of the checking account of the drawer, treating the draft as a line of credit until finally paid. Each of these witnesses, save •one, testified, however, that they did not know the custom of the Kansas City banks, and that witness stated his own conclusion, without showing any knowledge or information on the subject, except the fact that several 'drafts had come through his bank. It is contended that this was sufficient to raise a conflict in the testimony as to whether or not appellant bank received the draft as the absolute owner, or whether merely for collection as agent of the drawer. We do not think that this testimony has any probative force. In the first place, it is not applicable, because the witnesses knew nothing about the custom of banks in Kansas City.
Again, it is argued that the' testimony to the effect that appellee first made claim for $48.31 for deduction for part of the freight, and that appellant agreed to allow this deduction, but later refused to allow an additional deduction for damages, stating, in the correspondence, that the drawer of the draft would not consent, was sufficient to constitute an admission on the part of appellant that the draft was the property of the defendant. We do not think so. The fact that appellant referred the claim of appellee to the drawer of the draft to determine whether or not a credit should be allowed, does not change the effect of the draft being drawn in favor of appellant and credited to the account of the defendant. Notwithstanding the fact that the draft became the absolute property of appellant as the party in whose favor it was drawn, yet the defendant was liable to appellant as drawer if the draft was not paid. Therefore, the act of appellant in consulting the drawer or in carrying out the wishes of the drawer did not concede that the draft was not its absolute property.
Finally, it is contended that the draft was not the absolute property of appellant for the reason that there was no indorsement, but the answer to that contention is that an indorsement was unnecessary, the draft having been drawn in favor, of appellant.
The finding of the court being without evidence, it must be set aside and a new trial granted. The judgment is therefore reversed, and the cause remanded for a-new trial.
Wood, J., dissenting. | [
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Hart, C. J.,
(after stating the facts). In Holt v. Holt, 42 Ark. 495, it was held that a court of equity will, at a subsequent term, entertain the petition of the mother to recover from the father her reasonable and proper advances for the support of their minor children since the divorce and for an order for their future support. In that case, at the time of the rendition of the decree of divorce, the care and custody of the two younger children was awarded the mother, but no provision was made in the decree as to who should defray the expenses of their support and education while they were in charge of the mother. The court held that the father was bound to maintain the children as long as they were too young to earn their own livelihood, and that the fact that the mother had been awarded their custody in the divorce decree did not relieve the father from his obligation to support them.
In a case-note to Spencer v. Spencer, 97 Minn. 56, 7 Ann. Cas. 901, at page 903, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, it is said that a majority of the cases hold that, where the divorce decree awards the custody of the children to the mother but makes no provision for their maintenance, the father’s legal liability to support his children still continues, and a reasonable sum may be recovered for their support.
It follows that the plaintiff had a right to maintain this action against the defendant for the custody of their minor child and for her fntnre support and education until she arrived at full age. In this connection it may he said that, whatever the result of the agreement between the husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court.- In this view of the matter the court did not err in awarding the custody of the child to the mother, for she had arrived at an age when her wishes should be considered in the matter, and she preferred to live with her mother because her father had married again.
On the question of support and education of the minor, we are of the opinion that the allowance of twenty dollars per month, as fixed by the chancellor, for the future support and education of the minor while she is attending school, was reasonable, and it will be allowed to stand. The father testified that his orchards had depreciated in value so that at present they did not yield him any income. He stated that he only received an income of twenty dollars per month from his property. This, we think, is a reasonable sum to be devoted to the education of his daughter during her minority, leaving him to support himself.
We think, however, that the chancellor erred in rendering judgment against him for one hundred dollars for past support, for the reason that we think that the allowance of twenty dollars against him was a sufficient consideration, when his state of health and financial ability is considered.
The result of our views is that the decree of the chancery court will be modified so as to require the defendant to pay to the plaintiff the sum of twenty dollars monthly, commencing on the 15th day of November, 1926, for the support and education of said minor, Anna Daily, and the decree of the chancery court awarding, the cus tody of said minor to the plaintiff will he affirmed. The cost of this appeal willbe taxed against the defendant.
It is therefore ordered that the decree of the chancery court he modified in accordance with this opinion, and, as modified, it will be affirmed. | [
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Humphreys, J.
The question involved on this appeal is whether the statement of account mailed by appellee to appellant on June 25, 1922, was a sufficient presentation in law of the statement of an account to an administrator of the estate of a deceased person. The deceased, J. A. Smelser, died February 22, 1921. His widow, the appellant herein, qualified as administratrix of his estate a short time after his death, and gave notice to his creditors to present thei? claims. Pursuant to the notice appellee, a corporation, mailed its claim to appellant in form and figures as follows:
“Cairo, Ill., June 21, 1921.
“Mrs. Zona Smelser,
“Beech Grove, Ark.
“Dear Madam: As we have not received an acknowledgment of onr claim, we are sending herewith statement and affidavit covering onr account, to he filed with the prohate court. “Yours truly,
“Weber-Wolters Dry Goods Co.
“Statement.
“Mrs. Zona Smelser, Admx., Estate of J. A. Smelser, Beech Grove, Ark. in account with
Weber-Wolters Dry Goods Company Importers and Jobbers Dry Goods and Notions
Date, 1920 715 Ohio St.
July 29 Mdse........................................................................$700.77
Aug. 16 Mdse.............................. 147.37
Aug. 30 Mdse......................................................................... 147.50
Oct. 1 C-M................................................................................. $ 74.40
Nov. 4 Ck.................................................................................. 300.00
Nov. 22 C-M.............................................................................. 117.55
$503.69
“State of Illinois, Alexander County.
“H. B. Warden, being first duly sworn, on his oath declares and says that he is a resident of the county and State aforesaid; that he is bookkeeper for the firm of ■Weber-Wolters Dry Goods Company; that the above account is true and just and unpaid, after allowing all due credits and set-offs. “II. B. Warden.
‘ ‘ Subscribed and sworn to before me this 21st day of June, A D., 1921. James B. Wall, notary public. My commission expires May 1, 1924.” (seal).
Appellant received the statement, but did not formally approve it and file it with the clerk of the probate court, for classification.
Deceased, a retail merchant in his lifetime, purchased merchandise from appellee’s predecessor, a wholesale merchant. When he died his wife took charge of the store and operated same in the capacity of administratrix. There was quite a little correspondence between appellee and appellant relative to the claim. The substance of this correspondence was to the effect that, while the claim was correct, she could not pay it until she got ready to settle up the estate and until her lawyer advised her to pay the account. The testimony in the case shows that H. R. Warden, who verified the account, was cashier as well as bookkeeper of appellee.
Suit was brought by appellee upon the claim in the circuit court of Greene County, First Division. The sufficiency of the presentation of the account was challenged by appellant.
Upon the hearing of the cause the court ruled that the account was sufficient in form and properly verified, and rendered judgment against appellant, as administratrix of the estate of J. A. Smelser, deceased, in the sum of $589.80, with interest from October 1, 1923, at the rate of 6 per cent, per annum, from which is this appeal.
Appellant first contends for a reversal of the judgment because the account was not itemized. By reference to the items charged in the account it will be seen that said items consist of bills of merchandise of certain amounts, without setting out the particular things embraced in the order. It is a matter of common knowledge that wholesale houses render bills of invoice with each shipment of goods to merchants, and, when rendering statements, they do so by setting forth the different kinds and quantities of goods shipped. These invoices were likely in the possession of appellant, who took possession of the stock of goods and continued to operate the business. The statement of the account embraced the credits as well as the items of the account stated in general terms, and sufficiently complied with the requirement of § 100 of Crawford & Moses’ Digest. Josephs v. Briant, 108 Ark. 171.
Appellant next contends for a reversal of the judgment because the statement was mailed to the administratrix, instead of being personally presented to her. The mailing and receiving of said statement by appellant constituted a sufficient presentation of the claim to her, within the meaning of the words “by delivering” used in § 100 of Crawford & Moses’ Digest. Keffer v. Stuart, 127 Art. 498; Friend v. Patterson, 150 Ark. 577. Appellant admits that she received the statement of the account through the mail.
Appellant next contends for a reversal of the judgment because the statement of the account was made by the bookkeeper of appellee instead of the cashier. Section 103 of Crawford & Moses’ Digest requires that the cashier or treasurer of the corporation shall verify the account before same is presented to the administrator for allowance. The testimony shows that the affiant to the account was not only the bookkeeper but also the cashier of appellee. It was proper for the court to treat the affidavit as having been made by the cashier, notwithstanding it was verified by him as bookkeeper. He acted in a dual capacity for the corporation.
Appellant’s next and last contention for a reversal of the judgment is because the affidavit does not follow the exact wording of §§ 101 and 104 of Crawford & Moses’ Digest. Sections 101 and 104 of Crawford & Moses’ Digest are as follows:
Section 101. “And the claimant shall also append to his demand an- affidavit of its justice, which may be made by.himself, or an agent, attorney, or other person. If made 'by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due. If made by any other person, it shall state that the affiant is acquainted with the facts sworn to, or that he has made diligent inquiry and examination, and that he verily believes nothing has been naid or delivered toward the satisfaction of the demand, except the amount credited thereon, and that the sum demanded is justly due.”
Section 104. “When an affidavit shall be required to be made by an officer of a corporation, executor, adminis trator, or assignee, it shall be sufficient to state in such affidavit ‘that he has made diligent inquiry and examination, and that he does verily believe that nothing has been paid except the amount credited, and that the sum demanded is justly due’.”
A substantial compliance with the statute is all that is required. Eddy v. Loyd, 90 Ark. 340; Keffer v. Stuart, 127 Ark. 498. It was ruled in the case of Willard v. Willard, 134 Ark. 197, that the statement to the effect that a defendant was a nonresident of the State of Arkansas was sufficient upon which to obtain a warning order under a statute requiring a plaintiff to make an affidavit that “he had made diligent inquiry, and that it is his information and belief that the defendant is a nonresident of the State.” We think the positive statement of H. It. Warden, the cashier of appellee, to the effect “that the above account is true and just and unpaid, after allowing all due credits and set-offs,” is a substantial compliance with the statute requiring him to state “that he has made diligent inquiry and examination, and he does verily believe that nothing has been paid except the amount credited, and that the sum demanded is justly due.”
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
A road improvement district, known as Pulton and Izard Road Improvement District No. 4, was created by a special statute enacted by the General Assembly at the extraordinary session of 1920 (unpublished act No. 266), for the purpose of improving a public road or roads in Pulton and Izard counties, beginning at Calico Rock, in Izard County, and running in a northeasterly direction through Pineville, Cross Road, Wild Cherry, Bexar and Byron to Salem, in Pulton County,' and also a lateral beginning at Bexar and running- in an easterly direction to Union, and another lateral from Yiola to Salem. This statute contained numerous sections appointing commissioners and authorizing the formation of plans, the assessment of benefits on lands, and the construction of the improvement mentioned, and the collection of taxes. Sections 14 and 25 of that statute, bearing upon the present controversy, read as follows:
“Section 14. All taxes levied under the terms of this act shall be payable between the first Monday in January and the 10th day of April of each year, and, if any taxes levied by the board in pursuance of this act ■ are not paid at maturity, the collector shall not embrace such taxes in the taxes for which he shall sell the lands, but shall report such delinquencies to the board of commissioners of said district, who shall add to the amount of the tax a penalty of twenty-five per cent.; and said board of commissioners shall enforce the collection by chancery proceedings in the chancery court of ’ their respective counties, in the manner provided hy §§ 23 and 24 of act No. 279 of the General Assembly, of the State of Arkansas for the year 1909, entitled, ‘An act to provide for the creation of drainage districts in this' ■ State/' approved May 27, 1909; but the owner of property sold for taxes thereunder shall have the right to redeem it at any time within two years from the time when his lands have been stricken off by the commissioner making the sale.”
“Section 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expenses shall be a first lien upon all the property in the district, and shall be paid by a levy of á fax upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Pulton and Izard counties, and shall be collected by the receiver to be appointed by said court.”
Pursuant to the statute, the commissioners caused a survey to.be made of the road and formed plans for the construction of the work, thereby incurring certain preliminary expenses, but there was opposition to the construction of the road, and it was found to be impracticable to do so, and the project was abandoned. Certain creditors of the district for preliminary expenses commenced an action in the chancery court of Pulton County for the enforcement of their claims and the appointment óf a receiver to collect the taxes, pursuant to § 25 of the statute. This action was commenced on March 22, 1921, and, after service upon the commissioners of the- district, a large number of property owners appeared and were «made parties for the purpose of resisting the allowance of some of the claims. The claims were finally adjusted, the principal one, being for engineering expenses, was adjusted by agreement of all parties, and the chancery court entered a decree allowing the claims as agreed upon, and ascertaining the total amount to be collected, and appointed a receiver to collect the taxes; The order of court appointing the receiver was entered on April 13,1921, and the final decree allowing'the claims was entered on October 12, 1921. All of the landowners in the district paid their respective apportionment of the tax except appellant, Missouri Pacific Bailroad Company, and this action was 'instituted in the chancery court of Izard County, where that portion of appellant’s property which is taxed is situated, to recover its amount of the proportionate part of the preliminary expenses. On the hearing of the cause, the court rendered a decree against appellant for the recovery of the amount which was found to be its tax or proportionate part of the expenses, in accordance with § 25 of the statute creating the district, and also for a penalty of twenty-five per centum of the tax, in accordance with § 14 of the statute.
The G-eneral Assembly of 1921 enacted a statute amending the other statute (act No. 266, Feb. 1920) by changing the name of the district created thereby from the Fulton and Izard Boad Improvement District No. 4 to “Izard Boad Improvement District No. 4,” and eliminating from the district all of the lands in Fulton County and excluding that part of the improvement which lies in that county. Special Acts 1921, p. 97. The effect of that statute, while purporting merely to amend act No. 266, was to repeal the last mentioned statute and to create a new district composed entirely of lands in Izard County for the purpose of constructing an improvement ■situated entirely in that county. The statute simply cut off the road in Fulton County and eliminated all the lands in that county, leaving a road district situated in Izard County to construct the part of the road in that county. There was no emergency clause attached to the last mentioned statute; hence it did not go into effect until ninety days after the adjournment of the Legislature, which was .in June, 1921.
At the same session of the Legislature (1921) another statute was passed repealing- the other statute enacted at that session and adding certain lands contained therein to another district in Izard County, designated as Izard County Highway Improvement District No. 1. This statute did not contain the emergency clause, and there fore did not go into effect until ninety days after the adjournment of the session. Special Acts 1921, p. 1251.
The language of § 3 of the last mentioned statute is somewhat involved, owing to what appears to have been the desire of its framers to emphasize and reemphasize the fact that the original statute creating the Fulton and Izard Road Improvement District was not to be revived so as to recreate a road improvement district in Fulton County, but one thing is clearly expressed, and that is that the preceding statute of the same session creating the district in Izard County, known as the Izard County Improvement District No. 4, was repealed. That section concludes as follows:
“Fulton County shall be exempt from the provisions of act No. 266 of the Forty-second General Assembly of the .State of Arkansas, approved February 20, 1920, and no taxes shall be collected under the provisions of any of the above mentioned acts, except the necessary amounts to pay for the expenses already incurred previous to the passage of this act by reason of said act No. 266, and, in accordance with act 78 of the acts of 1921, from any lands or property lying within Fulton County, .also act No. 266 of the Acts of the General Assembly of the State of Arkansas in extra session, 1920, creating Fulton-Izard County Highway Improvement District No. 4, is hereby repealed.”
It is earnestly contended, in the first place, that the chancery court of Fulton County had no jurisdiction to adjudicate the claims against the district and appoint a receiver to collect the taxes. The argument is that the first of the statutes of 1921, mentioned above, transferred the jurisdiction from the chancery court of Fulton County to the chancery court of Izard County. We do not agree with counsel in this contention, for, as before stated, the effect of the act of 1921, supra, was to abolish the old district without repealing the statute in toto, and to create a new district, composed of lands situated in Izard 'County, and for the purpose of constructing an improvement in that county. There was ho express repeal of the act creating the old district, and, as the preliminary expenses had been incurred, thereby creating obligations pursuant to § 25 of the statute — obligations which could not be impaired by subsequent legislation— no presumption is to be indulged that the Legislature intended to take away the only remedy afforded by the statute for enforcing those obligations. The new statute was, in other words, merely prospective in its operation, and had no effect upon obligations already incurred and the remedy provided in the old statute for .their enforcement. The preliminary expenses were incurred by the old district as a whole, and all of the lands in the district were subject to taxation, under the statute, for' the purpose of paying those expenses. The elimination of the Pulton County lands from the district manifested no intention on the part of the lawmakers to exempt those lands from'the obligations incurred for preliminary expenses. Nor did the statute later enacted in the session of 1921 have the effect of repealing § 25 of the original statute so as to cut off the remedy for the enforcement of obligation for preliminary expenses. -■ It is true the concluding clause of § 3 of the statute declares the repeal of act No. 266, creating the Pulton and Izard County Highway Improvement District No.' 4, but that is coupled with the express declaration that “no taxes shall be collected under the provisions of any of the above mentioned acts, except the necessary' amounts to pay for the expenses already incurred previous to the passage of this act.”
Our conclusion is that the Pulton Chancery Court had jurisdiction under the original statute, which was not repealed as to the section conferring jurisdiction on the Pulton Chancery Court.
It is further contended that, as appellant was not ■a party to the suit in the Pulton Chancery Court, where the amount of the claims was adjusted and a receiver appointed, it is not bound by that decree, but has a right, in the present suit in the Izard Chancery' Court, to attack the validity of the claims against the district. There was no effort at the trial to show that the claims against the district were unjust, appellant contenting itself with the argument that the court whs without jurisdiction and that no one was bound by the decree except those who were parties. We have already seen that the court had jurisdiction, and it was therefore unnecessary for the property owners to he made parties in order to hind them. They were not necessary parties, as they were represented by the district itself, which was sued. Appellant could have had itself made a. party, as did many other property owners, but, having failed to do so, it cannot question the correctness of the court’s decree. The fact that the claims were allowed without proof adduced by the court, other than the agreement as to the amounts, does not affect the decree on collateral attack.
Appellant also attempted to show that the tax against its property was arbitrary and unjust. It will be observed that § 25 of the original statute provides that the preliminary expenses, in case of abandonment of the project, should be paid “by a levy of a tax upon the assessed value for county and State taxation.” This constituted a legislative determination of the justice of this method of taxation, and such legislation has been upheld by this court as the proper exercise of legislative power. Netterer v. Dickinson & Watkins, 153 Ark. 5. The only attempt made by appellant to break down the statute as arbitrary was to show, by the opinion of one witness, that the railroad’s property would not have been benefited at all, for the reason, in the language of the witness, that “the Interstate Commerce Commission fixes the rate for transportation, and, when the business will net the railroad over five and a half per cent., the Government takes the amount earned in excess of that. It is kept in a different fund, and the railroad does not need new roads, and settling up and civilizing a new road would not add anything to the physical value of the railroad or the railroad’s property.” This testimony was not sufficient to show that the statute was arbitrary and unreasonable in fixing the assessment of values for State and county taxation as the basis of apportionment of the preliminary expenses of the district.
Finally, it is' contended that the ,court erred in decreeing a penalty in accordance with § 14 of the original statute, and in this contention we fully agree with appellant. Section 14 relates only to the collections of assessments, while the district is a going concern, for the purpose of constructing the improvement. Section 25 is the only provision which has reference to the winding up of the district and collecting taxes for the purpose of' paying the preliminary expenses. The two sections contain altogether different provisions with reference to the method of collecting the taxes. One provides for an actual assessment of benefits and the collection thereof in annual installments by the tax collector of the county; and the other provision is for a horizontal assessment on the valuations fixed for State and county taxation, and the collection thereof by a receiver appointed by the court. As the section with reference to the collection of taxes to pay preliminary expenses contains no provision for a penalty, the court is without authority to declare one.
The decree of the chancery court is therefore modified by striking out the penalty, and the cause is remanded with directions to enforce the lien for the amount of taxes, without penalty. | [
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Mehaeey, J.
The appellant was indicted by the grand jury of Calhoun County at its July term, 1927, accused of the crime of murder by killing Lucius Dunn, was tried, convicted of voluntary manslaughter, and sentenced to a term of seven years in the penitentiary. He thereafter filed a motion for a new trial, which was overruled, exceptions saved, and to reverse this .judgment he prosecutes this appeal.
Lucius Dunn was killed and his body buried, and a few days later discovered. Appellant had been arrested and charged with the crime before the body was discovered.
Appellant states in his brief: ‘ ‘ The only matter we wish to present to the court is raised on the question of the insufficiency of the testimony to sustain the verdict,' and the errors in the admission of certain evidence and the exclusion of other evidence at the trial.” Appellant also states: “If the confession was voluntarily made and properly admitted as evidence in the trial, then it is sufficient to sustain the verdict.” It therefore becomes unnecessary to set out any of the evidence except the evidence of the confession, because, as appellant himself states, if properly admitted, it is sufficient to sustain the verdict.
C. I. Abbott, the sheriff of Calhoun County, testified that he hrrested the defendant and put him in jail; that he talked with him, but did not threaten, hit or strike him, did not intimidate him nor hold out any hopes of reward to him. He made his statement to the sheriff the first night he was arrested. Witness testified that appellant talked freely and voluntarily, and appellant told witness that the last time he saw Lucius Dunn was when they crossed the water and Lucius left him in front of John Neeley’s. He never changed his statement until the body was found. Appellant knew that he was sheriff, and had known him all his life. The sheriff talked to the appellant several times, and one time in the vault of his office, about 10 or 11 o’clock. There were present the prosecuting attorney and Mr. Plunkett. That was the day they carried him to Camden. He talked to him again about 6 o’clock, and then again on the courthouse steps. Appellant then told witness that he wanted to talk to him, and told him that he killed Lucius Dunn.
On cross-examination witness said that, during the time he kept appellant in jail, he talked to him five or six times.. Brought him out once at night, once carried him up to the prosecuting attorney’s office, and once talked to him in the dark. There were then present Neill Dunn, Darnell, Jim Dunn and Mr. Plunkett. Neill Dunn is a brother of Lucius Dunn, Jim Dunn is his father, and- Darnell is his brother-in-law. That he put one Poster in the cell with defendant. Poster suggested that he be put in the cell with the defendant. The sheriff thought that he could get some information that would help in running down the crime.
On redirect examination the witness testified that appellant told Mm about going in a boat with Lucius; that deceased claimed to have some.whiskey, but, when they got there, it was gone. That deceased got mad, cursed him, and drew a knife on him, and that appellant picked up a boat paddle and kept him off. Then the deceased picked up a paddle and started towards appellant, and appellant told him if he did not stop he would shoot him, and that Dunn came on, and he shot him, and he fell in the water, and that appellant caught him by the overalls and dragged him to the bank, and that he left him there dead, and went to Neeley’s place, and stayed until that night at 11 o’clock, at which time he returned and buried him. He told about the manner of burying him, and then went to the sheriff’s office, and called the prosecuting attorney, and he made the same statement as to how he killed Dunn.
Witness said he did not let defendant’s attorney talk to him until after the prosecuting attorney had talked to him, but after the prosecuting attorney talked to him he let his attorney talk to him. It was after that that he confessed. Witness refused to let appellant talk to his father or his attorney until after he had talked to the prosecuting attorney; kept him in jail from Friday until Sunday before he would let him talk to his father or his attorney. Both the defendant and his father were insisting all the time that he had the right to talk to his lawyer. That he let him confer with his attorney after that, any time he asked to. Carried appellant to Camden and placed him in charge of the police department. The prosecuting attorney and Mr. Darnell, Lucius’ brother-in-law, went with them. Had kept the prisoner over 35 days when he brought him into the prosecuting attorney ’s office, and appellant insisted that he was innocent. Neill Dunn called him a damn liar. Neill got mad and talked rough and loud. Neill weighs about 220 pounds, and is 42 years of age. Defendant is about 19 or 20 years of age, and weighs about 120 pounds.
M. C. Darnell, a brother-in-law of the deceased, talked to witness, and said no one threatened him nor used violent language toward him, nor offered any promises or hope of reward. Witness did not at any time threaten him nor hear any one else threaten him or offer him any hope of reward. Does not know what others said to him. Does not know how long he had been in jail, but he told witness about killing Dunn. Said he did the job solely by himself. This witness is a special agent for the T. P. Railroad, and his business is investigating crimes. Was not present when Neill Dunn cursed appellant. Witness is 40 years old, and weighs about 190 pounds. He is 6 feet 1 inch high. Had talked to the appellant one time before he confessed.
Abbott, the sheriff, was recalled, and testified to further conversations, and other witnesses testified. All of them stated that no threats were made, and no promises.
We deem it unnecessary to set out other evidence.
Appellant’s first contention is that the confession should not have been admitted, and that without it there was no evidence to support the verdict.
If the confession was freely and voluntarily made, it was admissible; otherwise it was not admissible. This court has many times held that confessions of guilt, to be admissible, must be free from taint of official inducement proceeding either from hope of gain or torture of fear. When improper influences have been used to obtain a confession, the presumption arises that a subsequent confession of the same crime flows from that influence.
This court has held that the question of the admissibility of a confession is a question for the court. The court determines whether the confession was freely and voluntarily made, and if, in the opinion of the court, it was so made, it is admitted in evidence. Its determination of this question, however, is solely for the purpose of passing on its admissibility, and when it has been admitted in evidence it is then a question for the jury. If the court determines that the confession was freely and voluntarily made, without promise or threat, even though made to the sheriff while he was under arrest, it is competent evidence. Myer v. State, 19 Ark. 156; Youngblood v. State, 35 Ark. 35; Wallace v. State, 28 Ark. 531. In this case all of the witnesses testify that there were no threats and no promises made, and we think the court was justified in admitting the confession, notwithstanding the presence in a dark room of the sheriff, prosecuting attorney and relatives of the deceased.
This court lias uniformly held that the trial court determines the admissibility of the evidence, and this is the province of the court, although there may be conflict in the testimony as to whether there were promises or threats. In fact, there is no conflict in our decisions with reference to this question.
This court has said: “The judge must pass upon any question involving the competency of witnesses and the admissibility of the evidence offered, but it is for the jury to pass upon the weight of the evidence and the credibility of the witnesses.” Paxton v. State, 114 Ark. 393, 170 S. W. 80, Ann. Cas. 1916A, 1239.
It- was therefore proper for the court to pass upon the admissibility of the confession, and the province of the jury to determine its weight and credibility. It was the province of the jury to determine whether it was made voluntarily and freely or whether there were any promises or threats.
‘ ‘ There being a conflict in the evidence as to whether the statement was voluntarily made, the trial court admitted it, over the objection and exception of appellant. * * * We think, under the principle announced in the case of Henry v. State, 151 Ark. 620, 243 S. W. 70, it was proper to admit- the statement, with the restrictions contained in the court’s 7th instruction. In the case referred to the court said: 'The testimony was sufficient to justify the court in submitting it to the jury, but appellant, as before stated, .had a right to have the jury consider the question whether or not it was a confession voluntarily made.’ Hughes v. State, 154 Ark. 621, 243 S. W. 70.
It -was proper for the court to admit the confession, but as to whether it was freely and voluntarily made should have been submitted to the jury -without any comment from the court, without any statement from the court that would indicate what the court thought about it being voluntary or not.
The appellant’s next objection is to the following statement made by the court: “The objection and motion is overruled for the reason that no showing has been made that any threats were made or any hope of rewards given.” Appellant was insisting that the court exclude certain testimony, and the court, in the presence of the jury, made the statement above set out.
As we have already said, it was the province of the jury and not the court to determine whether there were any threats made or any promises or any inducement, and this remark of the court was improper and invaded the province of the jury. This error, however, was. waived by the appellant, who does not preserve this objection in his motion for a new trial.
In speaking of an objection urged in this court, the court said: “With regard to this, it need only be said that it was not made one of the defendant’s grounds for a motion for a new trial. It is well settled in this State that error cannot be predicated on rulings of a trial court which were not assigned as erroneous in defendant’s motion for a new trial. ’ ’ Lambden v. State, 150 Ark. 580, 234 S. W. 987.
Again: “Moreover, the action of the court in this respect was not made one of the grounds in defendant’s motion for a new trial. An exception to the admission of the testimony which is not brought forward in the motion for a new trial will not be considered on the appeal.” Gooch v. State, 150 Ark. 269, 234 S. W. 33, 35; Freeman v. State, 150 Ark. 387, 234 S. W. 267.
It would serve no purpose to call attention to additional cases holding that, unless appellant’s motion for a new trial contains the objection, it cannot be considered here. We have carefully examined the record, and find no error other than the one to which we have called attention, and, as we have already said, appellant’s motion for a new trial does not contain this objection, and the judgment is therefore affirmed. | [
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Humphreys, J.
Appellant was indicted in the Northern District of Logan County, and, on change of venue to the Ozark District of Franklin County, was convicted upon the charge of accessory before the fact to the crime of arson, and, as a punishment therefor,was adjudged to serve a term of two years in the State Penitentiary, from which is this appeal.
The indictment charged, in substance, that one T. B. Wackerly, at the instance of appellant, procured Floyd McCuen and John Carney to burn a certain storehouse at Ratcliff belonging to R. A. Harkins & Company. In other words, the indictment charged that said storehouse was burned through a conspiracy in which appellant and T. B. Wackerly were co-conspirators. The theory of the State was that appellant and his brother, Floyd Stroud, advised and encouraged T. B. Wackerly to employ Floyd McCuen and John Carney to burn said storehouse. When Floyd McCuen and John Carney were arrested for burning the storehouse they admitted their guilt, and implicated T. B. Wackerly, claiming that he had employed and agreed to pay them $150 for burning said house. T. B. Wackerly admitted his guilt, and testified, in substance, that appellant and his brother, Floyd Stroud, had induced him to employ Floyd McCuen and John Carney to burn said storehouse and had furnished him the money with which to pay them; that their purpose was to get rid of a business competitor of Floyd Stroud. The house was burned by Floyd McCuen and John Carney on the night of November 29, 1923.
The first contention of appellant for a reversal of the judgment is that there is no evidence in the record except that of Tom Wackerly and other alleged co-conspirators that appellant had any connection with this crime. It is true that there is no evidence in the record tending to connect him with the crime, prior to the burning of the house, aside from that of J. B. Wackerly; but the State introduced witnesses who testified to certain declarations and acts of appellant after the house was burned, tending to connect him with the crime. While one charged with a conspiracy to commit a crime cannot be convicted on the uncorroborated evidence of his accomplice or accomplices, yet he can be convicted] upon the testimony of his accomplices if corroborated by his own acts and declarations done or made either before or after the commission of the crime.
The rules of evidence applicable are, first, that the acts and declarations of co-conspirators done and made during the existence or furtherance of the conspiracy are imputable to all and admissible against each other, though not made or done in the presence of each other. Wharton on Criminal Evidence, § 698; Cox v. Vise, 50 Ark. 283; Gill v. State, 59 Ark. 422. And second, that, after the accomplishment of the enterprise, the acts or declarations of a co-conspirator are not evidence against the others unless done or made in their presence. Counts v. State, 20 Ark. 462; Housley v. State, 143 Ark. 315. And third, that acts and declarations of a co-conspirator done and made after the accomplishment of the enterprise are not evidence against any one of the conspirators except himself. 1 R. C. L., pp. 520, 521, and cases cited in support of the rule in footnote No. 18.
Under the rules of evidence announced above there was sufficient corroboration of the testimony of the accomplices to sustain the verdict.
Appellant also contends for a reversal of the judgment upon the alleged ground that the court admitted incompetent testimony. We have read the evidence very carefully, and think all of it was competent and admissible under the rules announced, except the telephone conversation between Floyd McCuen and Floyd Stroud, two of the alleged co-conspirators, which occurred after' the arson, while Floyd McCuen was in jail, and in the absence of appellant. Two objections were made to the admission of this testimony .by counsel for appellant, and the admission thereof was made a ground for reversal in appellant’s motion for a new trial. It was not admissible upon the theory that the conspiracy existed after the crime was committed. Appellant was not charged as accessory after the fact nor with being in a conspiracy to conceal the crime, but, on the contrary, was specifically charged with the sole crime of accessory before the fact to the arson.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.
The Chief Justice and Justice Smith dissent, on the ground that the testimony tends to show that the conspiracy was continued to suppress evidence of the crime by extricating Wackerly from the charge and by packing the grand jury to prevent indictments, and that the acts and declarations of all the co-conspirators were competent against each. | [
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Hart, J.,
.(after stating the facts). Under the facts stated, the court erred in instructing the jury that the plaintiffs were entitled to the ungathered crops on the mortgaged premises at the time they were dispossessed. The law is that the mortgagee, having purchased the mortgaged premises at a foreclosure sale, is entitled to the possession of the same and to the rents and profits, after notice to quit and a demand for the rents and profits has been made. A purchaser from the mortgagee during the period of redemption has the same rights as the mortgagee. North American Trust Co. v. Burrow, 68 Ark. 584, and Tallman v. Heuck, 152 Ark. 438.
The record shows that the mortgagee, Mrs. V. C. Irvin, purchased1 the mortgaged premises at the foreclosure sale, and that .the sale was duly confirmed by the court. A deed to the mortgaged premises was also executed to her, which was approved by the court, and possession was awarded her.
Pursuant to this direction of the chancery court, a writ of assistance was issued by the clerk of the court on the 26th day of July, 1922. The writ of assistance was placed in the hands of the sheriff, and notice of its issuance was given to E. E. Deffenbaugh. It is true that the writ was not executed until the 6th day of October, 1922; but the issuance of the writ and notice to Deffenbaugh that it had been placed in the hands of the sheriff for execution was equivalent to a notice to quit and a demand for the rents and profits.
The record shows that Deffenbaugh had notice that the writ had been placed in the hands of the sheriff for execution about the first day of August, 1922. Therefore Mrs. Y. C. Irvin and Oliver, her grantee, were entitled to the rents after this date. At that time the confirmation of the sale had 'been obtained.
In Gailey v. Ricketts, 123 Ark. 18, it was held that the purchaser of land at a commissioner’s sale, in the absence of a reservation of rents or the right to growing crops, acquires, upon confirmation of the sale, a right to the same.
It necessarily follows that the court erred in telling the jury that the plaintiffs were entitled to the ungath-ered crops when they were dispossessed of the land.
The mortgagor had the right to redeem the property sold at the foreclosure sale at any time within a year from the date of the sale. Crawford & Moses’ Digest, § 7411. Of course if he should exercise this right, Deffenbaugh would be entitled to an accounting for the rents and profits received by Mrs. Y. C. Irvin and her grantee during the statutory period of redemption.
It follows that the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Kirby, J.
Appellants brought this suit to set aside or vacate a decree or order of sale and to be permitted to redeem the lands from the sale. A general demurrer to the complaint was interposed, with five other grounds of special demurrer or specifications, showing the particular allegations of the complaint that rendered it insufficient; and the sixth specification is as follows:
' “6. That said petition shows that defendants did not comply with the law in the matter of their alleged attempt to redeem- said property, in that it shows that they deposited only $500 with the clerk of -the court, and this sum was deposited more than one year from the date of sale of said property, and that it was withdrawn. ’ ’
The complaint is voluminous, with its exhibits of other pleadings in other proceedings and suits between the parties, but it alleges that the offer to redeem was made within the time allowed by law, and to pay any amount that might be found to be due under the mortgage, as well as the amount for which the property sold; that it was accompanied by a check for $500, the amount for which the property sold under the mortgage, and that no objection was made to the check, it being after-wards withdrawn under an agreement of all the parties at interest that the rents of the property should be applied first in payment of an indebtedness of the mortgagors to the Huntington State Bank, which was secured by a prior lien or mortgage to the one sought to be foreclosed in this suit and recognized in the decree of foreclosure; and the further agreement between all parties at interest that the net proceeds of the mine of L. E. Lake should ¡be applied in the reduction of the amounts covered by the decree of foreclosure, except an amount ■specified, due to Ted Kirkland, which had never been recognized as valid by defendants in the foreclosure suit, etc. It was further alleged that the appellees had surreptitiously procured a sale of the property and deed thereto, in disregard of the pending petitions for redemption and the agreement about the disposition of the rents in payment of the mortgage indebtedness, and that they were about to take possession of the foreclosed mortgaged property, notwithstanding such agreement and right of redemption by appellants, and would do so unless enjoined, etc.
A temporary injunction was granted, which the court refused to make perpetual, and the demurrer sustained, and, the petitioners declining to plead further, the complaint was dismissed for want of equity, from which decree this appeal is prosecuted.
Appellees insist in their brief that every question presented by this record except one — the alleged offer to redeem — was involved in a former appeal of this case, No. 9150, and filed in the Supreme Court April 20, 1925, and dismissed for failure to comply with Rule 9, and included a copy of the order of dismissal in their brief. This court, however, can take no notice of the questions involved on that appeal, since there was no plea of res judicata to the petition to- redeem herein, even if they were entitled to rely upon any subh plea. Bolton v. Mo. Pac. Ry. Co., 148 Ark. 319, 229 S. W. 1025.
The truth of the allegations of the complaint are admitted by the demurrer, and, if such allegations were regarded as indefinite or as stating a cause of action defectively only, the objection should have been made by a motion to make more definite and certain, rather than by demurrer.
The court erred in sustaining the demurrer to the petitions to redeem, and the decree is reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. | [
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Per Curiam :
Appellee was the plaintiff below, and recovered against appellant a money judgment as compensation for personal injuries alleged to have been caused by negligence. The judgment was rendered on October 25, 1923, and later during the term appellant filed a motion for a new trial. There was a final adjournment for the term on December 12, 1923, and the transcript lodged here by appellant duly certified by the clerk, contains an order as of the last day of the term, overruling appellant’s motion for a new trial and granting an appeal and time within which to file a bill of exceptions. Appellee subsequently filed a motion to dismiss the appeal or affirm the judgment, on the ground that the motion for a new trial was not presented to the court for a ruling thereon, nor was the order overruling the motion for a new trial made during the term, but was made by the judge in vacation, and was erroneously entered on the record by the clerk as of the last ¡day of the term. On consideration of this motion this court entered an order on June 30, 1924, postponing further consideration, with permission to either of the parties to apply to the trial court for a correction of the record so as to show whether or not the motion for a new trial was acted on during term time.
On July 3, 1924, appellee filed a motion in the circuit court to amend the record nunc pro tunc so as to show that the order of December 12, 1923, overruling the motion for a new trial, was not in fact rendered by the court on that day, but was a vacation order. Appellant appeared to resist the motion and filed an answer alleging, among other things, that appellee had, on May 7, 1924, filed a similar motion, winch the court had overruled, and pleaded the former ruling as an adjudication of appellee’s right to have the record amended as to the particular order mentioned. Appellant exhibited with its answer a copy of the former proceedings of the court. On the hearing of the motion, the court granted the prayer, and entered an order nunc pro tunc, reciting that the order overruling the motion for a new trial was not in fact rendered by the court on the day mentioned or during the term of the court, but was rendered in vacation. Appellant has brought the record of that additional preceeding to this court by appeal.
The contention of counsel for appellant is that the order made by the court on May 7, 1924, was an adjudication and bar to further proceedings on the part of appellee to. obtain a correction of the record in the particulars mentioned. We are of the opinion that the contention of counsel is correct, for we perceive no reason why the adjudication on the question of the correction of the record should not bar subsequent inquiry into the same matter, if the two applications are based on the same state of facts. If such were not the case, a ruling of a court in matters pertaining to the record would never become final, but would remain within the control of the court. We think that an order of court on a motion stating the facts upon which a correction of the record is sought constitutes a final .judgment, from which an appeal may be taken, and which bars any further adjudication of that particular question upon the same state of facts.
It appears from the record that there was a peculiarity in the order of May 7, 1924, in that it recited a finding of the court that the facts recited in the petition were true, but the court proceeded nevertheless, and overruled the petition. The trial judge subsequently made an amendment to this order by striking out the words expressing a finding that the facts recited in the petition were true, and it is contended that this correction was beyond the power of the trial judge, for the reason that it was made in vacation. Without going into the question concerning the effect of this action of the trial .judge in attempting to change the form of the order in vacation, we conclude that, if the order be accepted in the form contended for by appellee, containing a recital of the finding by the court that the facts were true, yet the prayer of the petition was overruled, and, at most, the order was merely erroneous, and could have been corrected only by appeal. There was no appeal prosecuted in that case, and, as before stated, we think that the judgment overruling the petition to amend the record was final and conclusive.
Counsel for appellee seek to uphold the last order of the court and to escape the effect of the former adjudication on the ground that the order of this court postponing the case and granting permission for either party to apply to the court for a correction constituted an adjudication of the continuing power of the circuit court to make the order. In other words, the contention is that the order of this court granted to the parties the right.to get an order of correction from the trial court, and that this averted the effect of the former order of the trial court as a bar to further proceedings. We do not agree with counsel in this contention, for the effect of the order of this court was merely a postponement of the case to give the parties an opportunity, if the way was still -open, to secure a correction of the record in the trial court. The order made here did not in any respect enlarge the powers of the trial court or tend in any degree to undo what the court had already done.
The last order of the circuit court amending the record is therefore reversed and quashed, and the motion to dismiss the appeal or affirm the judgment is overruled. | [
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Wood, J.
J. P. and J. B. Walt, hereafter called appellants, and L. L. Phillips, hereafter called appellee, are adjoining landowners in Jefferson County, Arkansas. The lands of appellants in sections sis and seven are divided from the lands of the appellee in section one by a public road running north and south along the range line between their plantations. Appellants’ lands lie east of the road, in range 7, and appellee’s land lie west of the road, in range 8. The public road has been gradually built up for a period of some fifteen years until it is higher than the lands on either side.
This action was instituted by the appellee against the appellants in the chancery court of Jefferson County. The appellee alleged that there is a bayou, known as Brown’s Bayou, which lias its source on the Brown place, near the town of Altheimer, and from thence flows, in the natural course of drainage, through other plantations and through the plantation of the appellee, and across the public road dividing the plantation of the appellee from that of the appellants, and on, throug’h appellants’ plantation, into what is known as Five Forks Bayou; that', if unobstructed, the bayou does not affect or damage the appellee’s lands. It is alleged that the appellants, without regard to the appellee’s rights, were constructing a large levee across Brown’s Bayou, at the point where the same enters appellants’ land, for the sole purpose of preventing the water which flows through Brown’s Bayou from passing through the regular and natural drainage channel; .that, if the levee were permitted to be constructed, it would prevent the flow of water through Brown’s Bayou and cause it to back up on the lands of the appellee, to his great damage. The appellee prayed that the appellants be restrained from constructing such levee.
The appellants answered and denied all the allegations of the complaint, and alleged that the levee they were then constructing is a small levee, about 1,400 feet long, on their own lands in section 6, township 5 south, range 7 west, for the purpose of preventing surface waters from flowing across their lands in time of freshet and large rainfalls; that the dividing line between the lands of the appellants and appellee is a public road running north and south, along the side of which, and parallel with the road on the west side thereof, is a canal or ditch twenty feet wide, constructed by the Jefferson County Drainage District No. 2 for the purpose of carrying any water out of Brown’s Bayou and any surface water flowing into such canal into Wabbaseka Bayou; that the appellants are taxpayers of the drainage district, and are taxed solely upon the theory of betterment to their lands in having the water diverted therefrom by the drainage district; that there has never been any culvert across the public road for the purpose of enabling the waters on the west side of the road to cross to the east side, and that it is only in times of unusual freshet that the surface waters from appellee’s plantation overflow said canal and public road So as to put a part of same upon the lands of appellants; that such waters are strictly surface waters, and do not constitute the waters flowing through Brown’s Bayou in a natural stream; that the location of appellants’ levee is in a high state of cultivation, and has been for more than seventeen years;. that the levee was then being- constructed across cotton rows; that there has never been a natural stream running across appellants’ lands at any point along said levee. Appellants prayed that appellee’s complaint be dismissed for want of equity.
The cause was heard upon the testimony, by depositions, and also oral testimony before the court, and upon maps and photographs of the locus in quo. The trial court found that Brown’s Bayou is a natural course, through which the water coming into it at its source now flows and has flowed in the same channel for many years; that Brown’s Bayou begins about the Brown place, in Jefferson County, and flows in a southeasterly direction through other plantations and through the plantation of the” appellee, and on in a southeasterly direction through the plantation of the appellants, and continues its flow in a southeasterly direction, after leaving the plantation of appellants, through other plantations and farms, finally emptying into Five Forks Bayou and Fish Lake; that Brown’s Bayou ran across the public road at a certain point between the plantation of appellee and appellants, and continued from that point through the lands of appellants; that the effect of the construction of the levee contemplated by the appellants would be to prevent the flow of water through the channel of Brown’s Bayou and to back the same over a large portion of the land of the appellee, so that no crops could be raised thereon in any years of ordinary rainfall, to appellee’s great damage and irreparable injury. Upon these findings the court entered a decree directing appellants to remove such part of the levee as had already been constructed and restraining them from the further construction thereof. From that decree is this appeal.
1. The issue presented by the pleadings is whether Brown’s Bayou is a natural stream or watercourse which ran through the lands of the appellee and across the public road, on to the lands of the appellants, at a point where the latter are constructing a levee, and whether this levee, when constructed as contemplated by the appellants, will so obstruct the natural watercourse or stream as to injure and damage the lands of the appellee. The appellants contend that the photographs showing the premises at the point in controversy demonstrate that no bayou runs through at the point where the appellants are constructing their levee, and that the testimony of the engineer, Bennett, in connection with the drawing prepared by him and attached to his deposition, also demonstrates that Brown’s Bayou does not flow across the public road on to appellants’ land at the point where the appellants are constructing their levee, and that this fact is also shown by the testimony of nineteen other witnesses. These witnesses appellants name, and say they are white men, and, because of their high standing and personal familiarity and knowledge of the matters involved, are peculiarly qualified to testify, and that their testimony establishes the fact that Brown’s Bayou does not cross the road where appellants are building their levee.
On the other hand, the appellee contends that the facts testified to by appellants’ witnesses aré controverted and rebutted by Engineer W. J. Parlies and twenty-one witnesses on behalf of the appellee, who were also white persons, and, by reason of their familiarity and knowledge of the premises, are equally reputable as the witnesses for the appellants and as worthy of belief; that the testimony of these witnesses' shows that they were better acquainted with the country through which Brown’s Bayou flows, and with the course of the bayou, than weré the white witnesses for the appellants, and that, in addition to these, the appellee has adduced the testimony of nine negro witnesses, all of whom were worthy of belief, and, on account of their familiarity with the matters in controversy, were in a position to know as much, if not more, than the majority of the witnesses who testified for the appellants.
This is an immense record of nearly seven hundred pages. ¡We have carefully examined and weighed the testimony, including photographs and maps, with a view of determining, if- possible, where the preponderance lies as to the essential facts in controversy. While numbers are to be considered, the preponderance is not to be determined alone by numbers, neither can- it be determined by'the color or character of the witnesses; but 'all elements are tó be considered in connection with the subject-matter of the testimony of each witness, such as the intelligence of the witness, or lack of intelligence, his.'character, his interest, and relationship to the parties, his means of information, and his opportunity for knowing the facts to which he testified. It is wholly impractical to set out and discuss in detail the testimony of •the witnesses. After duly considering and weighing , all these elements, it occurs to us that the facts of this record present a typical case for the application of the doctrine announced in the case of Leach v. Smith, 130 Ark. 465-470, and other cases, to-wit: “Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive.” In all such oases the findings of fact by the chancellor will not be disturbed, but his findings will be adopted by this court.
2. The trial court found that Brown’s Bayou is a natural watercourse, and that the levee which appellants were building, if completed, would prevent the flow of water through the channel of Brown’s Bayou and overflow the appellee’s land, to his damage and irreparable injury. The issue was a mixed one of law and fact.
“A watercourse is defined to be a running stream of water, a natural stream, including rivers, creeks, runs and rivulets. There must be a stream usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel and have a bed and banks, and usually discharge itself into some other stream or body of water. It -must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshet or other extraordinary causes.” Boone v. Wilson, 125 Ark. 364. The finding that Brown’s Bayou was a watercourse was warranted, under the evidence, and was in accord with the above definition. The law is well settled that “equity will grant relief in the case of the raising of water in a watercourse by means of a dam, to the injury of upper riparian lands, where the injury is substantial and permanent, even though the rights have not been established at law. The reason is that, where the defendant maintains a dam and continues to flow the land of plaintiff, asserting his right to do so, he is in the -situation of a party maintaining a nuisance.” Taylor v. Rudy, 99 Ark. 128, and authorities there cited.
The decree is correct, and it is therefore affirmed. | [
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Kirby, J.,
(after stating the facts). No contention is made that the defendants were not served with summons in the original action, and there is no allegation of the judgment or decree having been obtained by fraud practiced by the successful party, nor any allegation of fraud in the procurement of the judgment, but only in the original cause of action alleged as a defense to the suit. Although the petitioners may not have known that the plaintiff in the-original suit was still pressing same, they could easily have ascertained the fact, after the filing of the amended complaint on February 16, 1925, before the judgment at the following October term, and no complaint was made of the judgment having been rendered until July 19, 1926, when a bill for review was filed.
The court correctly held that no sufficient showing was made for granting the relief prayed. As already stated, no fraud was alleged in the procurement of the judgment, which -was not rendered until nine months after the amended complaint was filed, and was not complained about until the filing of a bill of review more than eleven months after the decree was rendered; this, notwithstanding the petitioners were duly summoned to appear, and had entered their appearance to the suit more than a year and a half before they seek this relief.
There was no allegation attacking the decree on the ground of error of law apparent on the face of the record entitling the petitioners to the relief sought, nor was there any allegation of any newly discovered evidence material to the issue involved in the original suit and of such character and weight that it might have changed the result.
The court committed no error in dismissing the bill of review and denving the relief prayed for. Long v. Long, 104 Ark. 562, 149 S. W. 662; Wood v. Wood, 59 Ark. 441, 27 S. W. 641, 28 L. R. A. 157, 43 Am. St. Rep. 42; and Killion v. Killion, 98 Ark. 15, 135 S. W. 452.
The petitioners neglected their opportunity to defend the suit against them and to prove their alleged defenses to the policies upon -which the suit was brought, and, having failed to show any sufficient grounds for relief from 'such judgment in their bill of review, the judgment of dismissal must be affirmed. It is so ordered. | [
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Humphreys, J.
The purpose of this suit was to collect an inheritance tax from the estate of C. W. Hine, who died testate, May 16,1916, leaving as his distributees Mrs. Abbie Hine, his wife and certain collateral heirs. The inheritance tax attorney of the State commenced the proceedings by filing a complaint in the probate court of Pulaski County, to which appellee, representing said estate and distributees, filed an answer admitting inheritance tax liability on the real estate and tangible personal property located in Arkansas, but denying inheritance tax liability on the bank deposits, shares of stock in corporations outside of the State, and promissory notes. The liability upon the latter properties was dependent upon whether C. W. Hine was a resident of the State of Arkansas at the time he died. Appellees denied that C. W. Hine was a resident of the State of Arkansas at the time he died, and this presented the only issue in the case for determination. This issue was tried in the probate court, and, on appeal, in the Second Division of the Circuit Court of Pulaski County, upon an agreed statement of facts, and determined adversely to the contention of appellant, from which is this appeal. The agreed statement of facts is as follows:
“The decedent, C. W. Hine, settled in Montgomery County, Iowa, some time between 1870 and 1880, and made his home there, and later married, and, on December-23, 1884, purchased a dwelling-house in said county, and lived in it continuously from the time of its purchase until about one year before his death, and at his death still owned the said property. This dwelling and home was in the town of Stanton, a village of about six hundred people, in said county, and about six miles east of the city -of Red Oak. Mr. Hine had business connections in Stanton and in Red Oak which were never severed up to the time of his death, and his banking relations with the First National Bank of Stanton continued to the time of his death, and -on his death all of his personalty in said county was in said bank. The last time he voted it was in Montgomery County, Iowa. In his will, dated September 23, 1914, he recited that he was a resident of said county, and he appointed a resident of Montgomery County his executor and trustee. He left his will in the First National Bank of Stanton, and it was filed for probate by the cashier of said bank, who was his friend and business adviser for many years. The probate court of Montgomery County took -original jurisdiction of the estate, and found that his domicile was in said county.
“On June 9, 1904, Mr. Hine purchased 640 acres of land in Lonoke County, Arkansas, which he improved into a cotton farm, and, on September 28,1906, purchased 190 acres of land in said Lonoke County, and, on November 15, 1915, purchased two lots in the city of Little Rock, Arkansas, upon.which a residence was -located. After the purchase of the land in Lonoke County Mr. Hine made frequent trips from Iowa to Lonoke, and spent considerable time in Lonoke attending to his hold ings there. Mr. Hine died May 16, 1916, in Chicago, Illinois, where he had gone to attend to business. About a year before his death he and his wife vacated the residence in Stanton, Iowa, and for a short time occupied a residence owned by his wife in Red Oak, Iowa. During the following summer he was in Lonoke, improving his lands, and his wife was visiting in the East. In November, 1915, he purchased a house and two lots in Little Rock, mentioned above, and sold the furniture from the Stanton home, and brought furniture and fitted out the house in Little Rock, and he and Mrs. Hine moved into it in December, 1915, and remained there until his death the following May. At the time of his death, his wife’s house in Red Oak, Iowa, was furnished and ready to be occupied during the summer, and his house in Little Rock, Arkansas, was furnished and occupied by Mr. Hine and his wife. Since Mr. Hine’s death, Mrs. Hine has continued to live seven or eight months each year at the Little Rock house. During the summer months she was in Iowa. Mr. Hine was buried in Montgomery 'County, Iowa. In 1922 Mrs Hine rented the Little Rock house, and since then has lived in Iowa.”
Appellant contends that the undisputed evidence reveals that C. W. Hine abandoned his domicile in Montgomery County, Iowa, and established a domicile in Arkansas at the time he sold his furniture at Stanton, Iowa, and purchased and furnished a house in Little Rock into which he and his wife moved some six months before his death. The rule governing a change of residence or domicile, in tax and succession laws, laid down in 9 R. C. L., p. 452, which we think correct, is as follows:
“To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.”
The intent to abandon one’s domicile and take up another must be ascertained from all the facts and cir cumstances in any particular case. The issue of residence involved in this case, however, is not before us for a trial de novo upon the record, but is here on appeal from a verdict from a circuit court sitting as a jury and a judgment rendered in accordance therewith. The rule is that a verdict and judgment of a law court will not be disturbed if there is any substantial evidence to support it. St. L. & S. F. R. Co. v. Stewart, 137 Ark. 6. After a careful analysis of the testimony we are unable to agree with learned counsel for appellant that the undisputed evidence reveals that C. W. Hine abandoned his domicile in Mongomery County, in Iowa, and acquired a permanent residence in Arkansas prior to his death. There are facts and circumstances in the record tending to show that he had no such intent. After disposing of his furniture in Stanton, he and his wife moved into a house at Red Oak, a village about six miles distant from Stanton, where they remained for a short time. He did not sell his "Stanton home, but owned it at the time of his death. The house at Red Oak, into which he moved after selling his furniture at Stanton, belonged to his wife, and, when they came to Arkansas, it was left furnished and ready to be occupied the following summer by them. He retained his business connections in Stantion and Red Oak, and executed a will on September 23, 1914, in which he recited that he was a resident of Montgomery County, Iowa. In his will he named a resident of Montgomery County as executor, and left the will in the First National Bank of Stanton for safekeeping. The will was probated in that county. His last vote was cast in Montgomery County, Iowa. When Mr. Hine died in Chicago, his remains were carried to Montgomery County, Iowa, for burial, and were interred there.
The facts and circumstances just related are of a substantial nature, and tended to show that C. W. Hine had not changed his domicile from Montgomery County, Iowa, to Little Eock, Arkansas.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This suit was brought on November 12, 1921, in the chancery court of Craighead County, 'by appellee against appellant for the dissolution, accounting, and division of the assets of a partnership organized on December 10, 1919, for the purpose of mining and selling gravel. ■ The opening and operation of the gravel pit involved the construction of a mile and one-half of railroad and the purchase of expensive machinery. It was provided in the articles of copartnership that appellant and appellee should advance money for this purpose not to exceed $33,000, in the proportion of one-third by appellant and two-thirds by appellee. Each advanced more than the maximum provided for in the contract. The venture was unsuccessful, so, when this suit was brought, a receiver was appointed to take charge of the concern and operate it during the pendency of the suit. At the receiver’s sale the assets sold for $22,500 and the assumption by the purchaser of the unpaid commercial debts of the concern amounting to $15,500. • The proceeds derived from the sale of the assets were insufficient to repay .appellant and appellee the respective amounts advanced by* them, so, after ordering the receiver to pay the costs of the receivership and adjusting the various items of debit and credit between the partners, the trial court ordered that the excess be divided between them in the proportion of two-thirds to Hunter and one-third to Koehler. In the audit of the account between them the court refused to allow appellant, as an overpayment on his contribution- to the partnership, the $6,800 claimed by him as a salary at $400 per month from Jjune 1, 1920, to November 1, 1921, for managing the business, and allowed appellee an item of $8,165.10 for an interest which he claims to have sold appellant in the Gold Dust Mining Claim in Colorado. An appeal has been prosecuted to this court for the purpose of challenging the correctness of the ruling of the trial court as to these items and the proportion in which the assets were divided between the partners.
Appellant contends that the finding of the trial court, to the effect that he was indebted to appellee in the sum-of $8,197 or the interest in the Gold Dust Mining Claim, is contrary to the weight of the evidence.
Appellant testified that appellee owned a two-thirds interest and he a one-third interest in a gold mine- at Breckenridge, Colorado, and that he agreed to pay appellant $8,197 for a full one-half interest therein, so as to make them equal owners, in case he made it out of the gravel pit; that he was not to take a half interest in said gold mine unless he could pay for it out of the profits derived from the operation of the gravel pit.
Appellee testified that he and appellant purchased the gold mine togéther, and that he advanced $8,197 to appellant on his part of the purchase price, for which amount he executed a note; that on December 24, 1919, the note was surrendered, and that he and appellant entered into a contract in which the indebtedness was admitted, and whereby one-half of the profits to be realized in the operation of the gravel pit was pledged to secure the payment of the amount.
The contract referred to contains the following recitals:
“Whereas, C. W. Hunter and Paul Koehler, of Memphis, Tennessee, jointly owned what is known as'the Gold Dust Mining Claim, located near Breckenridge, Colorado, and, while the ownership is intended to be in equal shares, said C. W. Hunter has advanced and put in said business the sum of twenty-one thousand and four hundred sixty-two and 30/100 ($21,462.30) dollars, while the said Paul Koehler has advanced and put in said business the - sum of five thousand one hundred thirty-two and 10/100 ($5,132.10) dollars, and,
“Whereas, it is the intention and desire of said Paul Koehler to secure to the said C. W. Hunter the payment of excess advancements made by said Hunter in said business, and, for the purpose of so securing the said C. W. Hunter, the said Paul Koehler hereby transfers and assigns to said C. W. Hunter one-half of all profits which become due him under a certain contract entered into between Paul Koehler, C. W. Hunter, D. A. Pelton, J. W. Reid1, and J. P. Gautney, dated December 10, 1919.”
. We think the recitals in the written- contract strongly corroborate appellee’s version of the agreement, and that the finding -of the chancellor, to the effect that appellant was indebted to the appellee in said sum, is supported by the weight of the testimony. It was proper also to allow interest on this amount, at the legal rate, from the date of the written contract acknowledging the indebtedness.
Appellant next contends that the trial court committed reversible error in not dividing the excess, after deducting the overpayment by the partners, equally between them. The copartnership' agreement provided for an equal division of the profits between the partners, but this provision had no application in the audit of the account, for there were no profits. The gravel pit was opened and operated at a great loss.
The copartnership agreement contained the following paragraph: “It is mutually agreed that there shall be no division of profits amongst the several copartners until the earnings of the company shall be sufficient to repay to the copartners herein all moneys which they or either of them may have advanced for the purchase of machinery, construction of railroads, tramways, buildings, purchase of leases, real estate or other things necessary for the successful conduct of said copartnership, together with interest thereon at the rate of six per cent, per annum from tbe date of such advancement until paid. ’ ’
The assets did not sell for enough to repay appellant and appellee advances which they made, hence the court properly applied the clause quoted above in auditing the account.
Appellant’s last contention is that the trial court erred in disallowing the salary item claimed by him for operating the gravel pit. He claimed $400 per month as salary from June 1, 1920, until November 1, 1921. On June 1,1920, the plant was completed and put into operation. At that time appellant assumed the entire control and management thereof, which required a great deal of his time. Appellee did not participate in the management of the business at all, and claimed he did not know that appellant had drawn a salary of $400 per month until the books were audited in the early summer of 1921, else he would have objected. He also denied that appellant mentioned the matter of salary to him or the amount thereof in the office at Memphis or in J. F. Gahtney’s office in Jonesboro.
Appellant testified that, when they began to mine gravel, he informed appellee in the office at Memphis that he was going to charge a salary of $400 per month for operating the plant, and that later the matter was discussed in the office of J. F. Gautney in Jonesboro, and that no objection was made to the salary or the amount thereof by appellee.
The copartnership agreement contains two paragraphs relating to the services of appellant in connection with the construction and operation of the gravel plant. They are as follows:
“It is further mutually agreed that, until the plant is constructed and the company is ready to begin the mining of gravel on the property hereinbefore mentioned, Paul Koehler ¡shall have the management and control of said business, purchase in the name of the company such machinery, equipment, employ and discharge such laborers, agents and other persons as may be necessary for the conduct of said business, and keep the books of said company.
“That, until such time as the company is ready to begin the actual business of mining gravel, said Paul Koehler shall not receive any salary or other compensation for his services, save and except actual expenses incurred by him while managing said business.”
A reading of these two paragraphs convinces us that it was contemplated by the contract that appellant should draw a salary when the actual operation of the plant should begin. The amount was not specified in the contract, and the evidence is in sharp 'conflict as to whether any amount was thereafter agreed upon. If no amount was agreed upon, appellant should have been allowed a reasonable salary for his services from June 1, 1920, until November 1, 1921. According to the weight of the evidence, appellant devoted most of his time to the management and control of the business, and it was contemplated between the parties that he should be recompensed for his services. The record fails to show what his -services were reasonably worth. The decree must be reversed for the error in refusing to allow appellant a salary, and, as the evidence was not fully developed on this point, the cause will be remanded, with permission to each party to introduce evidence as to the reasonable value of his services and for a restatement of the account after determining this issue.
In all other respects the decree is affirmed. | [
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Smith, J.
Appellants are the owners of lots 6, 7, 9 and 10, in the southeast quarter of section 1, township 9 north, range 4 west, and broug’ht this .suit to recover possession of a house alleged to be located on lot 10 in that quarter section. Appellee, Mrs. Denny, is the owner of the southwest quarter of this section, and insists that the house in question is on her land. The question between these coterminous owners is therefore the location of the true line between these two quarter sections.
The field-notes of the original United States survey and the Grovernment plat of section .1, township 9 north, range 4 west, was offered in evidence, and it appears from these records that the southwest quarter contains 160 acres and that the southeast quarter is. divided into four lots, numbered 6, 7, 9 and 10, each containing 40 acres, and a fifth lot, numbered 8, a parallelogram in shape, containing 46 acres, which last named lot lies along the east line of the section, which line is also the range line 'between ranges 3 west and 4 west. White River runs near the southeast corner of this section, and the testimony shows that, to such an extent as the river has changed its course since the original Government survey, which is very slight, the river has moved east, and not west.
The field-notes show the south line of this section to be 92.50 .chains in length, while the undisputed testimony shows, according to four separate surveys thereof, that the actual length of the south line of the section is only 75 chains, and that the south line of the section, if run from the southwest corner thereof in accordance with the field-notes, for a distance of 92.50 chains, as called for by the field-notes, would not only run across the range line which divides section 1, township 9 north, range 4 west, from section 6, township 9 north, range 3 west, but would also extend across White River, no part of which stream, according to either the field-notes or the plat, is in section 1, township 9 north, range 4 west.
The southwest corner of the section was found, and exists as an established corner, and the northwest corner of the southwest quarter was also located and established, but neither the southeast corner of the southwest quarter nor the southeast corner of the section itself has ever been found. In fact, every survey of the south half of this section made since the original Government survey demonstrates the inaccuracy and falsity of the original field-notes and the plat thereof. These field-notes and the plat thereof show the course and distance of the interior lines dividing the southeast quarter into five lots, but the conclusion is inevitable that the survey as reported was never in fact made on the east and south lines. The location of the range lines and the river makes it impossible for tbe field-notes to be correct, so that tbe southeast corner of the section, according to the field-notes, has never been found and is nonexistent in fact, yet this corner must be placed' in the range line, because that line forms the boundary of section 1, township 9 north, range 4 west, on the west, and section 6, township 9 north, range 3 west, on the east. This southeast corner of the section must be in the range line, because it cannot be anywhere else, yet the field-notes show the length of the south line of section 1 to be 92.50 chains, whereas every survey shows the actual length of this south line to be only 75 chains. We have therefore the case of an incorrect original Government survey, resulting in the loss of the southeast corner of the south-west quarter of the section and the southeast corner of the section itself.
A witness named Shelton, who was a farm laborer, and who did not profess to know anything about the field-notes, testified that he was present when the south.line .of the southwest quarter of the section-was surveyed, and assisted the surveyor, whose name he did not remember* in making the survey. He testified that the southwest corner of the section was found and marked, a fact about which none of the witnesses, differ, as the location of that corner has been definitely and accurately established. He also testified that the surveyor ran the south line of the southwest quarter, and rocks were placed at the southeast corner of the quarter section according to that survey.- He admitted, however, that the southeast corner of. the section was not found, and that that corner would be in, or across, the river. According to the testimony of this witness, the southeast corner of the southwest quarter, as thus located, would place the house in question on appellee’s land, and would give her the strip of land here in question.
We attach no importance, however, to the testimony of this, witness. He did not testify that the southeast corner of the southwest quarter was located, or that any witness trees or other monuments were found showing that corner. The surveyor did not find this quarter' section corner; he merely located a corner, and this was evi clently done by surveying on the course indicated by the field-notes for a distance of 40 chains from the southwest corner of the section. If the field-notes were correct, such a survey would have located the southeast corner o.f the southwest quarter, but the section cannot be surveyed according to the field-notes, because the superficial area does not exist for which the field-notes, call.
It was adjudged, in the decree from which this appeal comes, that appellee, Mrs. Denny, “is the owner of the southwest quarter of section one, township nine north, range 4 west, and that the east line of said southwest quarter should be and the same is. hereby established as being a line running due north from a point on the south line of said section one, 40 chains east of the southwest corner of said section one as established by the United States Government surveyor, so as to give 160 acres, of land in the said southwest quarter of said section; and that the title to said quarter section as herein established be and the same is hereby quieted and confirmed” in appellee, Mrs. Denny.
It is, of course, obvious that, in establishing the east line of the southwest quarter so as to give that quarter section 160 acres, a proportionate quantity of land was taken from the four lots owned by appellants in the southeast quarter, which lots, according to the field-notes and the Government plat, also contained 160 acres. It is also obvious that if, after thus establishing the east line of the southwest quarter by measuring 40 chains' from the southwest corner of the section, a similar method was' employed to establish the east line of the four lots owned by appellants, by extending the south line of the section 40 chains further, in accordance with the field-notes, lot numbered 8 would cease to exist, and the south line of the four lots, taking no account of lot 8, which is east of them, would extend five chains beyond the range line. as it is only 75 chains from the southwest corner of the section to the range line. This, of course, could not be done, as the boundary line of the section could, in no event, extend beyond the range line of the township in which the section is located.
Authority for the court’s action is asserted under § 57 of Clark on Surveying and Boundaries, which reads as follows:
“As to the proper manner of .placing the deficiency in a fractional section the courts hold, in sections having less than the full number of acres, where the quarter section corner cannot be found, the deficiency will not be divided between the quarter sections but must fall on the quarter directly on the township or range line.”
The author cites in support of the text quoted the case of Vaughan v. Tate, 64 Mo. 491, and that case alone. The doctrine of that case was expressly repudiated by this court in the case of Tolson v. Southwestern Imp. Assn., 97 Ark. 193, 133 S. W. 603.
Before discussing the last mentioned case it rpay be said that the statute (§ 1891, C. & M. Digest) provides that it shall be the duty of a surveyor, “in subdividing any section or part of a section of land originally surveyed under the authority of the United States, to make his survey conformably to the original survey,” and the Tolson case followed this statute by bolding that, where the official government survey established the section and quarter section corners, such corners will stand, though erroneous. But, as we have said, we have here a case where the southeast corner of the southwest quarter and the southeast corner of the section itself have not been and cannot be found. The facts here recited warrant the statement that these corners were never actually located by the government surveyor. Indeed, it is not too much to say that the survey is a false one, and was never made except on paper.
Under the rule that fixed monuments must govern, the south line of sootion 1 begins at the southwest corner of that section, an ascertained point, as that corner was found, and it must end in the range line, another fixed point, and the distance between these two points is 75 chains, or 4,950 feet, whereas the field-notes show the length of this south line to be 92.50 chains, or 6,105 feet, a discrepancy of 17.50 chains, or 1,155 feet. A difference so great in the survey of a line so short — considerably less than a mile — is strong evidence that the survey was never made, except on paper. Notwithstanding this fact, under the rules of surveying prescribed by the Government Land Department, this survey would govern the Location of the Lines of the coterminous owners if the corners established by that survey could be found. This is true because fixed monuments are to be considered and govern over courses and distances .called for by the field-notes. Meyer v. Board of Imp. Paving Dist. No. 3, 148 Ark. 623, 231 S. W. 12.
But it must be borne in mind that the only corners which have ever been located in the survey of the south half of this section are the southwest corner of the section and the northwest corner of the southwest quarter. The other corners cannot be found, nor can they be located by the field-notes, which are demonstrably and admittedly incorrect. These other corners are therefore lost and obliterated corners. Under these circumstances, should the deficiency in the acreage, which results from the error we have here several times stated, fall entirely upon the southeast quarter of the section, or should the deficiency be apportioned between the two quarter sections and each share proportionately in the loss'?
The question stated was covered by a quotation from 5 Cyc. 974, quoted with approval in the note in the case of Tolson v. Southwestern Imp. Assn., supra, as follows:
“ ‘In the case of government sections, interior lines in the extreme northern or western tiers of quarter sections, containing either more or less than the regular quantity, are to be 20 chains wide, and the excess or deficiency of measurement is always to be thrown on the exterior lots; elsewhere the assumed subd’ivisional corner will always be a point equidistant from the established -corners. This rule, however, has no application where the original surveys are found to be erroneous, in which case the excess or deficiency is to be apportioned to each subdivision within the boundaries where the corners are lost.’ ”
After approving the above quotation, this court proceeded to say:
“In the case of Caylor v. Luzadder, 137 Ind. 319, 45 Am. St. Rep. 183, 36 N. E. 909, the court recognized the general rule, but said: ‘ There seems to be a well recognized distinction between this rule as applied to original surveys, whether in the making of such surveys or in allotting the deficiency or overplus, when the correctness of such surveys is not questioned, and that where such original surveys are found to have been erroneous or the original corners and lines are wholly lost. ’
“The following authorities which we have examined are cited as recognizing the distinction: Bailey v. Chamblin, 20 Ind. 33; Jones v. Kimble, 19 Wis. 452 (429); Moreland v. Page, 2 Clarke (2 Iowa) 139; Westphal v. Schultz, 48 Wis. 75, 4 N. W. 136; James v. Drew, 68 Miss. 518, 24 Am. St. Rep. 287.
“The Supreme Court of Missouri has taken the contrary view. See Vaughan v. Tate, 64 Mo. 491; Knight v. Elliott, 57 Mo. 317.’’
After thus disapproving the doctrine of the Missouri case, upon which the text quoted from Clark on .Surveying and Boundaries was based, this court proceeded further to say:
“Continuing, the Supreme Court of Indiana said: ‘The Surveyor-General was not required to, and did not, locate the half-quarter posts or line, and, having surveyed the quarter, established the lines and located the corners thereof, these defined irrevocably the boundaries or limits of the quarter; the purchasers and the Government acted upon the assumption that the lines were correctly meas ured and returned 'by tbe deputy surveyor; in this all were alike deceived; the length of lines is less than that so acted upon, and, by every principle of equity, the deficiency should be borne by the several tracts in proportion to the quantities so presumed to be contained therein at the time of the purchase.’ ”
In that case, as in this, there were no ¡corners which served as fixed monuments which would govern, notwithstanding errors as to course and distance, and in that case, as in this, the field-notes were demonstrably erroneous, but, unlike the present case, there was in that case an excess instead of a deficiency as exists here.
In applying the rules there announced and here quoted the court said:
“The official plat shows that the distance from the quarter section corner on the west side of the section to the northwest corner of the section is 90 chains, when by actual measurement it is 93 chains and 62 links. The official plat also shows that the west line of lot 18 is 20 Chains, and that of lot 11, immediately adjoining and north of it, is 20 chains. By the rule announced above, lot 11 is entitled to its proportionate part of this excess of 3 chains and 62 links.”
All the courts everywhere have always recognized the right ¡of the Land Department of the United States Government to make rules for the direction and control of 'Surveyors in establishing the lines of the original government survey, and we quote §§ 59 and 60 of the rules and regulations issued by the United States Government General Land Office, in a pamphlet entitled “Restoration of Lost or Obliterated Corners and Subdivisions of Sections, Revision of June 1, 1909:
“Section 59. Re-establishment of quarter-section corners on closing section lines between fractional sections. This class of corners irnu-st be re-established proportionately, according to thepriginal measurement of 40 chains from the last interior section corner. If.the whole measurement does not agree with the original survey, the excess or deficiency must be divided propor tionately between the two distances expressed in the field-notes of tbe original survey. The section started from and the corner closed upon should be connected by a right line, unless the retracement should develop the fact that the section line is either a broken or a curved line, as is sometimes the case.
“Section 60. Re-establishment of interior quarter section comers. In some of the older surveys these corners are placed at variable distances, in which case the field-notes of the original survey must be consulted, and the quarter-section corner re-established at proportionate distances between the corresponding section corners in accordance therewith. The latter surveys being more uniform and in stricter accordance, with law, the missing quarter-section corner must be re-established equidistant between the section corner making the line, according to the field-notes of the original survey. The remarks made under § 56, in relation to section lines, apply with full force here also; the caution there given, not to neglect sight trees, is equally applicable, since the proper establishment of the quarter-section corner may in some instances very largely depend upon its observance, and avoid one of the many sources of litigation.”
The case of Tolson v. Southwestern Imp. Assn., supra, defines what is meant by proportionate measurement by quoting from pages 22 and 23 of a Government pamphlet on the “Restoration of Lost or Obliterated Corners and Subdivisions of Sections,” above referred to, as follows: “ 'By proportionate measurement of a part -of a line is meant a measurement having the same ratio to that recorded in the original field-notes for that portion as the length of the whole line by actual resurvey bears to its length'as given in the record.’ ”
The case of Tolson v. Southwestern Imp. Assn., supra, is cited in an extensive note to the case of Booth v. Clark, Ann. Cas. 1912A 1272, 59 Wash. 229, 109 Pac. 805, where a large number of other cases are also cited, and the annotator’s note states the general rule as follows:
“It is a general and well established rule that, where a tract of land is divided into smaller tracts or lots, the title to which becomes vested in different persons, none of the grantees is entitled to any preference over the others on the discovery of an excess or deficiency in the quantity of the land contained in the larger tract, and the excess must be divided ¡among, or the deficiency must be borne 'by, all of the smaller tracts or lots in proportion to their ¡areas.”
In vol. 8 Century Digest, § 278 of the chapter on Boundaries, a number of cases which have construed the rules and regulations of the Land Department for the location of the lines of an original Government survey are cited, and the following rule is deduced, which is based upon the authority of decisions of the Supreme Courts of Iowa, Kansas and Wisconsin there cited:
“Section 278. In general. On a line of the same survey, and between remote corners, the whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from a defective survey in any part, but it must be presumed, in the absence of circumstances showing the contrary, that it arose from imperfect measurement of the wholé line; and such variance must be distributed between the several subdivisions of the line, in proportion to their respective lengths.”
So here it must not be presumed that the error in the Government survey of the south line of section 1 was made in surveying the south line of the southeast quarter, but it must be presumed, in the absence of any circumstances showing the contrary, that the error arose from an imperfect measurement of the entire south line of the section, and the deficiency must therefore be distributed between the various subdivisions of the line in proportion to their respective lengths.
The decree of the court below is therefore reversed, and the cause will be remanded for further proceedings not inconsistent -with this opinion.
Mehaeey, J., dissents. | [
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Hart, J.,
(after stating the facts). It is the well settled rule of this court that the indignities offered which entitle one to a divorce, under the statute, must be habitual and systematically pursued to an extent that would render intolerable the life of the one upon whom the indignities are imposed. Simpkins v. Simpkins, 136 Ark. 588; Pryor v. Pryor, 151 Ark. 150; and Davis v. Davis, 163 Ark. 263.
It is also well settled by these decisions that divorces will not be granted upon the uncorroborated testimony of either party, even if admitted to be true by the other party. While we have not copied the testimony in full, we have set it out in detail in the language of the witnesses as it appears in the record. Upon a consideration of this testimony, a majority of the court is of the opinion that the chancellor was warranted in rendering a decree for the husband on his cross-complaint.
According to the testimony of the husband, his wife had left him twice before, and he had treated her as well as his condition in life would allow. According to his testimony and that of Hazel Graves, his wife called him a son of a bitch on the night she left him. This occurred on Monday night, the 4th of June, 1923.
According to the testimony of William Ramsey, he was at their house on the Sunday before, and Mrs. Scales told him then that she was going’ to leave her husband. She said the trouble came up about one Mr. Jim Tom Barnett, who was boarding with them.
It is also inferable from the testimony of Hazel Graves that they quarreled about a man who had been boarding there, and who had p'aid them six dollars. According to the testimony of Ramsey, Mrs. Scales was continually nagging her husband, and when they would get in company ‘‘ she would try to throw it into him. ’’ He stated further that she crossed him in everything and would not agree with him in anything.
The majority of the court is of the opinion that this testimony, when taken in connection with her cursing him, shows that the nagging and cursing her husband was of the same character as her conduct on the night she left. They think that the language" used on that night was indicative of the language she used towards her husband when Ramsey said that she would “nag him” and “throw it into him.” Therefore they think that the chancellor was justified in granting a decree of divorce to the husband on the statutory ground alleged in his cross-complaint.
On the other hand, Judge Wooo and the writer think that this corroborative testimony was too indefinite, and that the witness should have been required to state what was meant by “nagging” and “throwing it into her husband.” "We think they meant petty fault-finding. These expressions and the further expression that “she crossed him in everything and would not agree with him in anything,” amounted to no more than an expression of opinion on the part of the witness. Hence we think that the chancellor erred in granting the divorce.
It results, however, from the views of the majority of the court that the decision of the chancellor was correct, and it will therefore be affirmed. | [
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Hart, J.,
(after stating the facts). In the case before ns the defendants were indebted to the plaintiff in a large amount for machinery and materials purchased by the former from the latter, to be used in drilling oil wells on leased territory operated by the defendants as trustees for certain other persons associated with them for the purpose of drilling wells for oil and gas. In this connection it may be stated that the defendants were personally liable for the account under a written guaranty signed by them, and the facts as disclosed in the record also show them to be liable as trustees, of a business trust doing business under a declaration vesting in them absolute authority over the trust business and property, within the rule laid down in Betts v. Hackathorne, 159 Ark. 621.
Some time in December, 1919, the Continental Supply Company mailed to D. H. Echols, as trustee for the Texas & Arkansas Oil & Gas Company, which was the name under which his association was doing business, a statement of their account, showing a balance of $15,688.77. After receiving the statement, Echols wrote the plaintiff a letter on the letterheads of the Texas and Arkansas Oil & Gas Company, signed by himself as secretary, in which he asked to be personally released from all responsibility for purchases of his company or association. He sent a remittance of $15,688.77 with the letter. On December 27, 1919, the plaintiff acknowledged the receipt of the check and letters, and advised Echols that he was released from responsibility from this date. The settlement of the account by Echols was the only consideration for the release executed by the plaintiff. The effect of a release executed in consideration of the settlement of accounts between parties is not to render the settlement conclusive. If the account is impeached on the ground of fraud or mutual mistake, the release will not prevent the court looking into the settlement. The party seeking to impeach the settlement is bound to show affirmatively the mistake alleged. The force of the admission and the strength of the evidence which will be necessary to overcome it will depend upon the circumstances of each case. St. L. I. M. & So. Ry. Co. v. Morgan, 115 Ark. 529, and Hawkins Brothers v. Lesser-Goldman Cotton Co., 157 Ark. 299.
It is manifest, under the rule just announced, that an account stated and a settlement of it, which is shown to have been examined by both parties and expressly agreed to by them, will afford stronger evidence of the correctness of the account than if it had been merely delivered by mail in the usual course of business and acquiesced in for a considerable period of time thereafter.
In the instant case the account was settled and the balance paid by Echols, accompanied by a demand to be released from all further personal liability for purchases of his company. Echols expressly notified the plaintiff that he would not be responsible any further for any purchases made by the company or agent. This put the plaintiff upon notice that Echols, for some reason, desired to know the exact state of the accounts between the parties and to have the settlement made between them a final settlement. He states the reason that he did this was that he was about to retire from the company and to cease to act as trustee for his associates. He caused an audit of the affairs of his company to be made by a public accountant, in order that he might be advised of the exact state of its affairs. During the course of his investigation he did not find out any fact or circumstance which would lead him to believe that his company owed the plaintiff the account sued for in this action, or that his association or company was indebted to the plaintiff in any amount whatever. The affairs and business of the Texas & Arkansas Oil & Gas Company were wound up and the accounts between Echols and his co-trustees and their associates were adjusted and settled. All the property of the concern was sold to a foreign corporation. Robertson and Harris were advised of the action taken by Echols when he settled with the plaintiff. All three of the defendants engaged in winding up the affairs of the Texas & Arkansas Oil & Gas Company, under the belief that the company had made a final settlement with the plaintiff. They adjusted the accounts between each other and between themselves and their associates under this belief. They were not notified that the plaintiff claimed that there had been a mistake made in their final settlement until some time in the spring of 1921, more than a year after the final settlement had been made and some time after the affairs of the Texas & Arkansas Oil & Gas Company had been settled and the property and assets sold- to persons who were beyond the boundaries of the State.
The defendants testified that, at this time, none of the property and assets of the Texas & Arkansas Oil & Gas Company were in their hands or in the hands of any of their associates. The fact that the mistake was made in settlement of the account is attributable to no fault of the defendants. The purchase of the articles in question was made by another agent of the company, and the defendants were ignorant of the fact that it had been made until the claim was sent to them some time in March, 1921. If the plaintiff had proceeded promptly, or at least within a reasonable time, and discovered the mistake, the defendants could have had an adjustment of the matter with their associates. It is true that they were personally liable to the plaintiff, but it appears from the record that the items of the account sued on were received and used by another agent of the Texas & Arkansas Oil & Gas Company, in the usual 'Course of business, and, under these circumstances, the defendants could have deducted their proportionate part of the. account, if the claim had been presented to them before the property and assets of the Texas & Arkansas Oil & Gas Company had been sold and the proceeds thereof distributed.
Under tbe rule above announced it would be inequitable to allow a recovery against tbe defendants, and tbe case is brought witbin tbe principles of an equitable estoppel between tbe parties. Tbe account bas been .settled and tbe balance paid -upon tbe express demand that it should become a final .settlement. Tbe circumstances under which tbe settlement was made require more proof to overcome i-t than a mere account stated. Tbe plaintiff was expressly put upon notice, and bas waited an unreasonable time before discovering tbe alleged mistake. No excuse for tbe delay bas been shown.
On tbe other band, tbe defendants have shown that they would be put to a great inconvenience and perhaps - considerable loss by having to pay the' amount now. Tbe settlement and release executed under such circumstances are binding upon tbe parties, and tbe decree must be affirmed. | [
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Kirby, J.
Appellants brought suit to cancel two notes executed by them to S. D. Donnahoe, one of the appellees.
It was -alleged that on December 15', 1923, they leased from Donnahoe certain lands in Crittenden and Cross counties for a period of five years, beginning January 1, 1924, at a yearly rental of $320. That they paid the first three years’ rent in cash in advance and executed two promissory notes, each for the sum of $320, payable, one January 1, 1927, and the other January 1, 1928, for the rent for the years 1927 and 1928. That, at the time of the execution of said lease and notes, the Missouri 'State Life Insurance Company held a deed of trust on the lands included in the lease as security for a $25,000 loan; that, since the execution of the lease contract, default has been made in payments due to the said Missouri State Life Insurance Company, which had filed suit to foreclose the deed of trust; that said Donnahoe was insolvent,- and had stated to appellants that he would make no attempt to pay the amount due the insurance company, but would allow the lands to sell; that appellants had requested him to return the notes given for the rent for the years 1927 and 1928, appellants having been deprived of the possession of the lands by the foreclosure of- the mortgage, but he had refused to do so, and alleged that the notes were in his possession and under his control, and prayed that they he canceled.
Defendants answered, admitting the execution of the lease contract and the payment of the money, hut denied that the payments were for any particular period. Admitted that the lands were incumbered by the deed of trust, and alleged that appellants were informed about it and agreed to make the necessary payments to continue the appellees in possession of the premises; admitted that the lands included in the deed of trust were insufficient to pay the insurance company, and that he was insolvent and unable to pay the company; denied that he had been requested to return the notes to appellees and that he could have returned them, for the reason that he had, on August 15, 1924, transferred said notes to H. Blair in payment of an existing indebtedness, which had been previously incurred for legal services, and that appellee, Donnahoe, was not then the owner or holder of the said notes. Also filed a cross-complaint, stating that appellants were informed about the deed of trust when the lease contract wias made and took it subject to the rights of the mortgagee, and agreed to pay all the money becoming due on said mortgage, if not paid by appellee, as part of the consideration of the lease contract, and that, by mutual mistake, the clause in said contract expressing said agreement was not correctly drawn, and prayed reformation of same to express the agreement actually made.
Appellants answered the cross-complaint on October 31, 1924, denying that defendant had transferred the notes to H. Blair, and alleged that, if they were in fact transferred to Blair, it was without consideration and with full knowledge cn the part of Blair of the failure of consideration for said notes and of the lease contract between the appellants and Donma'hoe, under which they were executed, and alleged that said Blair was not an innocent purchaser of the said notes for vialue, and denied all the other allegations of the cross-complaint.
The court found that the notes were not subject to cancellation in the hands of Blair, unless he- was holding same for the said Donnahoe, and that appellants were not entitled to the cancellation of the entire notes, but only of the amount thereof in excess of $500, with interest from August 1, 19-25, -at six per cent, per 'annum, and decreed accordingly, requiring appellants to pay all costs, and this appeal is prosecuted from this decree.
The undisputed testimony ¡shows that all the parties had' notice of the mortgage of the Missouri State • Life Insurance Company covering the lands leased, when the lease contract was made, and also that H. Blair, the attorney of Donnahoe, to whom the notes were transferred, had knowledge of the mortgage or deed of trust of said insurance company, knew what lands were included in it, and told his clients that they could not lease the lands without the consent of the insurance company. . He also wrote the insurance company what was decided to be done in the way of leasing the lands, 'but .stated that lessee only wanted to pay a nominal consideration therefor, and the company refused to consent to the leíase.
The lease contract was made, and appellants also purchased some timber, Donnahoe not knowing it was included in the mortgage at the time, and being told by turn that he wanted the purchase money of the timber to pay on the mortgage debt.
Wallin, an appellant, testified that no mistake was made in drawing the lease contract; that he made no agreement in consideration of the lease to p-ay any amount due the mortgagee if Donnahoe made default in payment, but he was given the right to make such payment, if he oared -to exercise it, as provided in the lease; -stated that in February, 1924, prior to filing the suit, he had several conversations with S. D. Donnahoe and his -son, F. C., relative to the notes in question, and, when he ascertained that the insurance company was going to foreclose its mortgage, he asked Donnahoe about it, and he told him it was a fact. He then said: “Now, in the event -of the foreclosure you fellows have some of my notes. In fact, I have already paid you three years in advance, given you cash for three years, and you got the notes for the fourth and fifth years. If you are going to be foreclosed, I think you will agree that it would be nothing but right to give me these notes. And he, Forrest, said that was all right, they would fix that up all right. Then I got hold of the old man and we talked about it, and he said, ‘I do not want to give those notes up right now, but do not worry about the notes, because you have already paid uis the cash, and if they foreclose you will lose two years, and you need not worry about the notes; if they foreclose we will not worry you about the notes.’ I asked him if they had the notes, and he said, ‘Yes, we have them, they are all right; you need not worry about the notes.’ I went back to them the second and third time, and talked to both of them the last time, and never got the notes, but they admitted they had the notes lat that time, and I did not file this suit until after they told me they had the notes and refused to give them back to me.” Said the timber contract and the lease were entirely, separate matters, neither dependent upon the other, and that Donnahoe, after showing him a letter from the mortgagee insurance company relative to the lease, said he would take the money paid by him, $1,§20 cash, and pay it on the interest and loan due.
The trade ivas made in the fall of 1923. Witness did mot talk with Donnahoe nor his son about returning the notes until the foreclosure suit.was filed, and never had a conversation with Blair about them. That Davis, his partner, never had anything to do with any of the negotiations. Stated his conversations about the contract were with Donnahoe and his son, sometimes with each and sometimes with both. That, after the foreclosure of the mortgage, he leased the lands from the Missouri State Life Insurance .Company, which purchased them under the sale, and paid them the same amount of rent yearly that he 'had agreed to pay Donnahoe. .
Donnahoe testified that he had had two or three talks about the (business with Wallin, and first told him he could not let him have the lands, as the insurance company would not consent to the lease, and he told Wallin it could not 'be done. “Later we talked about it again, and he went to an attorney and had the contract fixed up to suit himself,” and witness -said: “Get a lawyer, I want it done right.” He also told him he was to take his place if he fell down. Said he showed the insurance company’s letter to Wallin, and told him that there was a way they could fix this, and to go see a lawyer and make a contract, and he did that. He employed W. B.. Scott. Said he regarded the two papers as one contract, and they called for some notes, which he had delivered to Blair some time the latter part of July, 1924. That he had had a conversation with Wallin shortly after he made the contract, and told him that he might have to use the two notes, and he replied “All right, my notes are good.” Said the timber contract had nothing to do with the lease contract. That he read them over and signed both, and did not know of any misunderstanding. “I saw Mr. Blair before making- the contract. * * * He advised me about the contract. * * # I suppose he knew at the time I traded him the notes that they were the anotes Wallin gave on the lease. * * * The consideration Mr. Blair paid' for the notes was that he had been attending to my business for a long time. We bad had no settlement, and he was pushing me and wanted a settlement, and I told him I was not able to pay anything, and was a sick man, and he said he could take the notes and wait longer, and that was how we traded. I do not know if Mr. Blair has ever rendered me any statement. Probably he has mentioned some debts that have been running along that I owed him.” Witness could not remember the amount of any particular service charged for nor any particular service rendered, nor how much he had ever paid Blair, his attorney, nor that he had ever been furnished a statement of the charges by Mr. Blair.
The lease contract shows the consideration to be paid as $320 a year; that $960 cash wias paid for the first three years c!f the term of the contract, beginning January 1, 1924, rent for the years 1924, 1925 and 1926, the balance to be paid yearly in advance for the remaining two years by two notes 'being given for the balance of the rent. ,
F. C. Donnahoe testified that he had been attending to his father’s business for about 25 years; knew of the contract with Wallin and Davis, and when it was made. Told Wallin to see his father about it. Witness went to see Mr. Blair to see if they had a right to do this, because there was a loan on the place, and Mr. Blair said we could not, and witness had him to write the loan company a letter, and showed the reply to Wallin and his father, both of whom said it looked like they had a right to do it. His father said he wanted to get a contract that would take care of him and the company, and that, if he should fail, Luther Wallin would back the proposition up. The timber and the lease contract was one trade. “Mr. Wallin had the contracts drawn by W. B. Scott. It was one entire contract that was made for the timber and another for the lease and right-of-way.” Told Mr. Wallin that Blair had advised they had no right to sell the timber or lease the right-of-way. Showed him the letter 'from the insurance company written to Mr. Blair; could not find the letter now. . The letter was shown to Wallin prior to the execution of the contracts. Admitted signing'the contracts in the name of his father. Said there were two notes signed, which they traded to Mr. Blair between the first and tenth of July, 1924. He had heard a conversation in which his father told Mr. Wallin that they might have to use the notes. Said he transferred the notes to Mr. Blair because they awed him $500 for attending to his father’s business, and- he was pushing them. Blair had been attending to his father’s business ten or twelve years, and “had never paid him anything-, except $'25 at one time. We have had no statement that Mr. Blair ever ren dered, but knew that we owed him something’.” Witness was not able to specify any particular 'business attended to by Blair. Said “Mr. Blair told us we could not lease that place. We submitted the contracts to Mr. Blair as they were written. He looked them over and told us they were all right. Saw the contracts about five hours after they were signed.”
Blair stated that he was attorney for S. D. Donna-hoe, and had been for several years. Was consulted by him about the contract with-Wallin and Davis, and knew of the mortgage of the Missouri State Life Insurance 'Company on the land. Advised Mr. Donnahoe that he could not make a contract that would be good without the consent of the company, and wrote them a letter about it. Denied ever having seen the lease and timber contract until after the suit was filed. Said that Donna-hoe was mistaken about showing them to him. Could not tell exactly the amount Donnahoe owed him for services; had never kept a strict book account, Donnahoe being la good friend of his. Knew the condition, of his business, and had been paid very little money, $25 atone time. Had no certain recollection of particular transactions, but said that he agreed to pay him the $500 in June or July, 1924, and traded him the Wallin notes about the last of June or the first of July, before this suit was filed.
Cross-examination: “I knew all about the contracts. I never did render Donnahoe a statement of his account, but told him from time to time. I knew they were hard pressed, and they were good friends of mine, and I was not pressing them, but, when I saw he was going down, I tried to get some compensation for my services, and I think $500' was a very small amount. ’ ’
The sale of the timber had been discussed with him, but he -could not remember whether it was before he had written the letter to the insurance company, in December, 1923.
* * * “I was not in Earle the day the contract was drawn. I presumed the contract would be recorded, and it would be an act which would warrant the loan company in foreclosing the mortgage. Mr. Wallin wanted the timber, and did not want the loan company to know. That is the reason I took the notes; I did not think he would come into a court of equity and ask that this contract be canceled. Mr. Donnahoe told me about the lease contract.”
The appellee had the right, of course, to lease the lands to appellants, subject to the lien of the insurance company’s mortgage, and it had the right to foreclose in default of the payment of the money secured, and the parties certainly intended, as shown by the terms of the lease, that it should run for the full term, as it would necessarily have done, had the mortgagor, Wallin’s lessor, paid the amounts due to the mortgagee, as agreed.
A covenant of quiet enjoyment was necessarily implied in the contract for leasing the lands, and there is no question but that the mortgage was foreclosed and the tenant, deprived of the possession under the lease, which was determined by the foreclosure, the purchaser becoming entitled to the subsequently accruing rents from the lessee, requiring them to be paid to it, as it had the right to do. Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545; Fitzgerald v. Beebe, 7 Ark. 310.
The undisputed testimony shows that the lessee was deprived of the lands for two of the years for which he had paid the cash rent in advance, and had to pay the purchaser for their use for the two years 1927 and 1928, for which he had given rental notes to Donnahoe at the time the lease was made.
The testimony is also undisputed that all of the parties, Blair included, knew the terms of the lease, and all knew of the foreclosure of the mortgage and sale and purchase of the lands by the insurance company, which took possession of .same long before the expiration of the three years of the five-year term for- which the rent was actually paid in advance in cash.
The testimony shows- that Blair knew the terms of the lease, the eviction of the tenants under the foreclosure
salo long- prior to the time the two last mentioned notes became due, and of the failure of the consideration of these notes on that account, before he traded for them in payment of a past due indebtedness, the items constituting which he seemed to have a very hazy recollection of. Having this knowledge -of both the terms of the lease and the notes, he took them because, as he said, Wallin wanted the timber and did not want the loan company to know it, land he did not think that he would come into a court of equity and ask that this -contract be canceled. Blair admitted he knew for what the notes were given and that the mortgage had been foreclosed, depriving Wallin of the possession under the old lease, compelling him to pay rent to the-new owner and landlord. In other words, ho took the notes knowing -all of the circumstances 'at the time showing that the consideration therefor had failed, and wa-s not a bona fide holder, since he must be charg-ed with the notice of the defenses- thereof. Tiedeman on Commercial Paper, §§ 279-299; Old National Bank of Ft. Wayne v. Marcy, 79 Ark. 149, 95 S. W. 145, 9 Ann. Cas. 339; Jones v. Jackson, 86 Ark. 191, 110 S. W. 215; Hogg v. Thurman, 90 Ark. 93, 117 S. W. 1070, 17 Ann. Cas. 383; and Bank of Monette v. Hale, 104 Ark. 388, 149 S. W. 845.
In Simmons National Bank v. Dilley Foundry Co., 95 Ark. 368, 130 S. W. 162, the court s-ai-d: “Before one can become a bona fide and innocent purchaser of commercial paper, it must appear that it was acquired without notice or knowledge of defenses or circumstances which would put him on inquiry.” See also Morehead v. Harris, 121 Ark. 634,182 S. W. 521, and Little v. Arkansas National Bank, 113 Ark. 72, 167 S. W. 75.
“T'hi-s notice of a defense to the note or its infirmity affects the good faith of the purchaser, and deprives him of the vantage ground and security of an innocent purchaser. ” Thompson v. Love, 61 Ark. 81, 32 S. W. 65.
“One who purchases a note with notice that his assignor is under obligation to make- title to certain land when a -series of notes for purchase money is paid, takes subject to such obligation.” Cunningham v. Toye, 97 Ark. 537, 134 S. W. 962.
Blair, having (become the holder of these notes under such conditions and circumstances as to be charged with notice of the defenses thereof, is deprived of the vantage ground land security of an innocent purchaser, and is in no better position than the first holder of the notes would have against the defense of failure of consideration.
The chancellor erred therefore in holding that the notes were not subject to cancellation in the hands of Blair, unless he wias holding the same as the property of Donnahoe, and should have decreed a cancellation of both notes in the entire amount thereof, because of the established defense of failure of consideration, instead of a partial cancellation.
For the error designated the decree is reversed, and the cause remanded with directions to render a decree for the cancellation of the notes in full, in accordance with this opinion. | [
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Smith, J.
Appellant recovered judgment against Rector L. Williams, and, in satisfaction thereof, sought to sell under execution the undivided third interest of Williams in certain property in the city of Hot Springs, but the sale was enjoined upon the ground that the interest of the judgment debtor in the property levied upon was merely a contingent remainder, and therefore not subject to sale under execution, and this appeal was prosecuted to reverse a decree of the chancery court sustaining that contention.
H. M. Rector died testate, and, by the eighth clause of his will, directed that “after satisfying the special bequests herein provided for, I give and bequeath to my son, Doctor H. M. Rector, and to my son, Elias W. Rector, and to my daughter, Ernestine F. Brunson, the remainder of my estate, real, personal and mixed. The real property, however, hereby bequeathed to my daughter, Ernestine, to be an estate for life and in remainder to her surviving children.’’
The judgment debtor, Williams, was one of the three children of the testator’s daughter, Ernestine F. Brunson, and the three children and their mother were all parties plaintiff to the suit, they being joined with the judgment debtor, on the theory that they were interested in the property advertised for sale.
The cause was heard on an agreed statement of facts, from which we copy the following recitals. The testator died August 12, 1899, and the will was probated on August 15. On November 17, 1900, in order to avoid a contest of the will, a consent decree was entered in the Garland Chancery Court in a cause wherein H. M. and E. W. Sector and Mrs. Brunson and her children were plaintiffs, and the other heirs of the testator, being the children of another child of the testator, were defendants, wherein the defendants were granted certain portions of the estate of the testator in lieu of certain specific bequests and devises, and the defendants were perpetually enjoined from contesting the will. On July 26, 1902, a second consent decree was rendered by the Garland Chancery Court, in a cause wherein E. W. Sector was plaintiff and H. M. Sector, Ernestine F. Brunson, Sector Williams, McGehee Williams and Thruston Williams (the three children of Mrs. Brunson), were defendants. This was a suit for partition, and, under the provisions of the decree, one-third of that portion of the testator’s estate which was held in common by the sons, E. W. Sector and H. M. Sector, and the daughter, Mrs. Brunson, and her children, was set apart to E. W. Sector, another third to H. M. Sector, and the remaining third to Mrs. Brunson and her three children.
The language of the decree assigning the last-mentioned third is as follows: “and to the said Ernestine F. Brunson, Rector Williams, McGehee Williams and Thruston Williams, the remaining one-third thereof, to be held by the said Ernestine F. Brunson for and during her life, and the remainder of said one-third interest to the said Rector, McGehee and Thruston Williams, their heirs and assigns forever.” Subsequent to this decree Mrs. Brunson married, and is now known as Mrs. Vaughan.
It is the contention of the judgment creditor that, if Rector L. Williams did not take a vested remainder interest’ under the will of his grandfather, he did take that interest under the decree rendered July 26, 1902, and that thereafter, if not before, his interest in the property became and is subject to sale and satisfaction of appellant’s judgment against him, and the correctness of this contention is the question presented for decision.
We think it clear that Rector L. Williams did not take a vested remainder under the will of his grandfather. An opinion on this title was prepared by John M. Moore, one of the State’s greatest lawyers, and, as we concur in his construction of the will, we quote and adopt certain language employed by him in his opinion. After quoting the eighth clause of the will, he said: “This clause of the will vested a life estate in Mrs. Brunson with remainder in fee to her surviving children. The word ‘children’ is used in the will in the ordinary sense, and does not include grandchildren nor embrace the descendants of a child who should die during Mrs. Brunson’s life. The devise to the children is to take effect upon the death of the mother, and their interest is contingent upon their surviving her. At the time this will was executed Mrs. Brunson had three children living. If all of the children were to die before their mother, this devise would lapse, and it is a question of some importance to determine whether it would pass to the heirs at law of H. M. Rector, the testator, or fall into the residuum and pass to the residuary devisees, H. M. Rector and Elias W. Rector.”
Mrs. Brunson (now Mrs. Vaughan) and the children are all alive, and it is apparent that Rector L. Wil Hams took, under the will of his grandfather, only a remainder interest, contingent upon his surviving his mother. Horsley v. Hilburn, 44 Ark. 458; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Plumlee v. Bounds, 118 Ark. 274.
It is conceded by appellant that, if the judgment debtor’s interest is that only of a contingent remainder-man, it is not subject to execution (Plumlee v. Bounds, 118 Ark. 274), and, as we are of the opinion that this was the interest he took under the will, it becomes necessary to consider whether that estate was enlarged by the consent decree of July 26, 1902. No appeal was ever prosecuted by any one from this decree, and more than seven years have elapsed since the youngest of the three children came of age before the institution of this suit.
It does appear that the decree of July 26, 1902, assigned to the mother and her three children “the remaining one-third thereof, to be held by the said Ernestine F. Brunson for and during her life, and the remainder of said one-third interest to the said Rector, MeGehee and Thruston Williams, their heirs and assigns forever.” But this language of the decree must be interpreted in the light of the connection in which it was employed. This was a partition suit, pure and simple, and no relief except that of partition was prayed. The suit was brought by E. W. Rector, who alleged that he was the owner of an undivided one-third interest in the lands sought to be partitioned, and that his brother, H. M. Rector, owned an undivided one-third, and that their sister and her three children owned the remaining third. There was no issue between the mother and her three children as to their respective interests in the third which they together owned. There was no prayer that the will be construed and their respective interests adjudged, and there is nothing in this decree, which is incorporated in the agreed statement of facts, to indicate that the court undertook to construe! this will ot to adjudge the respective interests of the mother and her children. It was alleged in the complaint for partition that Mrs. Brunson and her three children owned an undivided third interest.
It is true, as was said by Mr. Moore in his opinion, that, if all the children were to die before their mother, this devise would lapse; but this contingency was waived by the brothers, who sought partition, and, as was further said by Mr. Moore in his opinion, that suit would estop the brothers from disputing the title of Mrs. Brunson and her sons; but there is nothing to indicate that the court was asked to assign her and her children any other or different interest than that given them by the will of the testator.
The complaint said nothing about the nature of the remainder interest which the children owned, and there was no prayer in either the complaint or the answer that this interest be adjudged, and there was no necessity for such adjudication to afford the brothers the relief prayed by them, that is, that they be assigned their interests in severalty as against their sister and her children. There is nothing to indicate that these litigants had placed themselves under the control of the court for all purposes, and the only interests alleged were that the respective parties owned each a third of the property sought to be divided, and there was no prayer for any relief except that partition be made, and we feel sure there was no attempt in this decree to adjudge the interest given Mrs. Vaughan or her children by the terms of the will, but that it was intended only to assign to her and to her children the interests given them under the will in severalty. Cowling v. Nelson, 76 Ark. 146; Rankin v. Schofield, 81 Ark. 440.
This being true, Rector L. Williams has only a contingent remainder in a third, and, as this is an interest which cannot be sold under execution, it follows that the sale was properly enjoined, and that decree is therefore affirmed. | [
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Wood, J.
On the 23rd day of June, 1923, the Howard-Sevier Road Improvement District No. 1 of Howard and Sevier counties, Arkansas (hereafter called district), instituted an action in the chancery court of Howard” County against delinquent lands. This case was numbered 211 on the docket of the trial court. The complaint alleged the organization of the district and the levying of assessments under the authority of the act creating the same and the failure to pay these assessments. The complaint set forth a list of the supposed owners and a description of the lands returned delinquent, together with the amount of the assessment and penalty set opposite the names. It was alleged that the assessments, penalties, interest and cost had not been paid on the lands mentioned. The prayer was that notice be given of the pendency of the action as provided by law, and that, unless the sums due were paid, a judgment be entered for the several amounts and for the sale of the lands described, to satisfy the same. After the institution of the suit, John C. Gardner, the receiver of the district, was joined as party plaintiff. .
J. M. Hunt and others, taxpayers in the district, filed an answer denying the allegations of the complaint, and set up affirmatively that the commissioners of the district had wholly failed to comply with the law requiring them to obtain and file a certified copy of the list of lands alleged to be delinquent. The parties filing the answer as defendants in the above cause also instituted an action in the Howard Chancery Court against the district and its commissioners, for themselves and “all those who have a general common interest with them in this suit.” This case was numbered 258 on the docket of the trial court. In their complaint they attacked the validity of the assessment of benefits as a whole, which the district and the receiver were attempting to collect, in their suit against the lands of the district. They set up in detail the causes which they alleged made the assessment as a whole invalid. They alleged in substance that the assessment of benefits sought to be charged against their lands was an arbitrary legislative assessment, the Legislature having -ratified and adopted an invalid assessment made by the board of assessors under a void act; that the assessment was so excessive as to amount to a confiscation of property; that it was in excess of any possible benefit to the property by reason of the improvement, and was greater in amount than the value of all the property in the district; that the attempted assessment was by the zone system, in which none of the elements affecting the benefits to their property were considered; that they had never had a day in court to challenge the assessment of benefits. They alleged that they were not seeking to avoid or repudiate any just and legal assessment that might be made against their property by reason of the construction of the improvement; that they were ready and willing to submit to any just and proper assessment of benefits made in the manner provided by law. They prayed that the assessment of benefits now standing against their lands be canceled, and that the district be restrained from prosecuting the suit for the collection thereof, and that a reassessment of benefits by reason of the improvement be ordered, to the end that a fair, proper and legal assessment of benefits be ascertained and fixed.
The answer of the district and its receiver alleged the appointment of a receiver under the terms of the act creating the district, and set up and made an exhibit to the answer a copy of the decree of the United States District Court of the Western District of Arkansas, validating $380,000 of the bonds of the district “secured by first mortgage on the assessment of benefits.” All of the allegations of the complaint were denied except as to the due organization of the district and the qualification of the assessors and the making of the assessment by them. The'answer admitted that the assessment made by the assessors was under a special act passed at a special session of the Legislature, which session was declared void by the Supreme Court. They alleged that such assessment was afterwards validated by act Noi 13 of the special session of the General Assembly in January, 1920; that, after the assessment was thus validated, a large amount of bonds were issued and sold and the proceeds used in the construction of the roads provided for under the original act creating the district and act No. 13, supra, amending the same. It was further alleged in the answer that on the 9th of April, 1921, T. G. Kennedy and others, for themselves and all other taxpayers in the district, instituted an action in the Howard Chancery Court against the commissioners as representatives of the district, and also in their individual capacity, in which suit they attacked the validity of the assessment of benefits as a whole, alleging that the same was arbitrary, discriminatory, and confiscatory, in violation of the due process clause of the Constitution of the United States, and also contrary to the Constitution of the State of Arkansas. It was alleged that the district duly appeared and was made a party to the suit, and answered, denying all the grounds upon which the validity of the assessment of benefits was challenged. It was also alleged that the Howard Chancery Court rendered a decree in that cause sustaining the validity of the assessment of benefits, and that no appeal had been prosecuted from that decree; that the issues in the suit of Kennedy et at. against the district and its commissioners were identical .with the issues in the present suit; that such suit was a class suit instituted by the taxpayers in the district in their own behalf and also for all other taxpayers within the district, and the district and receiver pleaded that the decree in that case sustaining the assessment of benefits was res judicata of the present action.
The causes were consolidated and tried together in the chancery court. Testimony was adduced on the issue as to the validity of the assessment of benefits, and the cause was heard upon this testimony and upon the pleadings and exhibits in the consolidated causes. Among other things the court found that “there is no merit to the plea of res judicata made by the plaintiffs in cause No. 211 and by the defendants in cause No. 258; that none of the parties plaintiff in case No. 258 and defendants in case No. 211 were parties to the cases pleaded in bar.” The court further found that “the attempted assessment of benefits is arbitrary, confiscatory, and an unwarranted exercise of the taxing powers.” The court thereupon entered a decree canceling the assessment of benefits and enjoining the collection thereof or any levy made for that purpose, and directed that the commis sioners appoint assessors to “assess the real, jnst, fair, true and actual benefits as have accrued against the several tracts 'and parcels of land in the district by reason of the construction of said improvements.” The plaintiffs in case No. 211 and defendants in case No. 258 excepted to the findings and decree of the court, and duly prosecuted this appeal.
1. • It will be observed from the above resumé of the pleadings in these causes that the appellees contend that the assessment of benefits which the appellants are attempting to enforce is, as a whole, an invalid assessment, for the reasons alleged. On the other hand, the appellants contend that the assessment of benefits was valid, and that such issue had already been determined by the former decrees of the Howard Chancery Court and the District Court of the United States, Western District of'Arkansas, adversely to the appellees, which decree they pleaded as res judicata of the matters raised by the appellees in their pleadings in these causes. Therefore the first question for our determination is whether or not the court erred in holding that there was no merit in appellants’ plea of res judicata.
The appellants’ pleadings and the exhibits thereto established the following facts, which are undisputed by the appellees, to-wit: On the 9th of April, 1921, T. Gr. Kennedy and others instituted an action in their own right and for all other taxpayers within the district' against the district and the commissioners in their representative and individual capacities, in which the assessment of benefits now under review, as a whole, was challenged on the ground that it was “unfair, unjust, discriminatory, confiscatory■ and not uniform,” and in violation of the due process -clause of the Constitution of the United States and contrary to the Constitution of the State of Arkansas, and therefore void; the cause was heard upon the pleadings raising the issue of the validity of the assessment, and the evidence adduced, and a decree was entered on the 9th of November, 1921, sustaining the validity of the assessment of benefits, and dismissing so much of the complaint in that, action as challenged the validity of such assessment for want of equity.
The appellees contend that they were not parties to that action, and hence were not bound by the decree, citing the ease of Cooper v. McCoy, 116 Ark. 501, and other cases which hold that, in order that a former judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties, or their privies, involving the same subject-matter and cause of action, and must be determined on its merits. The same subject-matter was involved in the case of Kennedy et al. v. District as is involved in these consolidated causes, and that cause was heard upon its merits, and the cause of action was the same, as to the validity of the assessment of benefits.
The only remaining question is whether the appellees here, although not parties by name in the suit of Kennedy et al. against the district, were, in law, parties because of the fact that Kennedy et al. had instituted the action in their own right and for the benefit of all other taxpayers in the district. So far as we are aware, this precise question has never before been decided by this court, and is therefore one of the first impression in this State.
Our statute (§ 109i8, C. & M. Digest) provides:
“"Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.” This statute is decisive of the question, and it but declares the doctrine which is supported with practical unanimity where considered in other jurisdictions.
Numerous authorities are cited in the briefs of appellants to sustain this view. Out of the array we select the case of Harmon v. Auditor of Public Accounts, 123 Ill. 122, which is fairly representative of the others. In that case an action was instituted by certain prop erty owners against the town of Mount Morris, Illinois, and its officers and the Chicago & Iowa Eailroad Company, to enjoin the town and its officers from issuing bonds to the railroad company. The issue was joined as to the right of the defendant town to issue the bonds, and the cause was finally adjudicated, denying the plaintiffs the relief sought. After this adjudication, four other taxpayers and property owners of the town instituted an action against certain bondholders and officers of the town, county and State, seeking to personally enjoin the collection of taxes upon their property for the payment of bonds issued to the railroad company. Judge Magruder, speaking for the Supreme Court of Illinois, of the action first brought by the taxpayers, among other things said: “The Pinckney bill was filed by certain property owners and taxpayers, as representatives of a. class. Though not formally stating that it is filed on behalf of all the other taxpayers in the town, yet it constantly refers to them and their interests in the questions involved.” And then, speaking of the last action brought by other taxpayers, he said: “The present suit was begun by Harmon and others, also taxpayers and property owners of the town, as representatives of the same class for whose benefit the Pinckney bill was filed. The complainants in this proceeding were represented by the complainants in the former suit, and are therefore bound by the decree therein entered. The remedy in suits of the character here indicated is in the interest of a class of individuals having common rights that need-protection, and, in the pursuit of that remedy, individuals have the right to represent the class to which they belong. This jurisdiction, in some respects, rests on the principles of a proceeding in rem. We therefore think that there is sufficient identity between the parties filing the present bill and those who filed the bill in the Pinckney case to justify the pleading ■ of the decree entered there as res judicata in this case.” And, further along, he announces principles which are apposite to the case at bar as follows: “The value of a plea of former recovery is not to be determined by the reasons which the court rendering the former decree or judgment may have given for doing so.. Nor is such former judgment or decree conclusive only as to questions actually and formally litigated. It is conclusive as to all questions within the issue, whether formally litigated or not. The principle of res judicata reaches further. It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense which might have been, ■ but were not, presented.”
In addition to the authorities cited in appellants’ briefs, see Freeman on Judgments, § 178; Elreno v. Cleveland Trinidad Paving Co., 107 Pa. 163; Gallagher v. Moundsville, 34 W. Va. 730, 12 S. E. 859; Ashton v. Rochester, 133 N. Y. 187, 30 N. E. 965, 31 N. E. 334; Dewey v. St. Albans Trust Co., 60 Vt. 1, 12 Atl. 224; Cincinnati v. Emerson, 57 Ohio St. 132, 48 N. E. 667.
2. The judgment of the District Court of the United States, Western District of Arkansas, in which the Guardian Savings & Trust Company, as trustee for bondholders, instituted an action against the district and its commissioners, and in which the plaintiff sought t-o validate and collect the first installment on mortgage bonds of the district in the sum of $380,000, was likewise res judicata of the appellees’ contentions in the ease in hand. The district, in that case, represented the taxpayers, and they were bound by the judgment- of the Federal court. Orcutt v. McGinley, 148 N. W. 586, 96 Neb. 619; Stone v. Wynn, 176 S. W. 933, 165 Ky. 9; Rose v. Port of Portland, 162 Pac. 498, 82 Ore. 541; Town of Tallassee v. State, 89 So. 514, 206 Ala. 169; Pear v. East St. Louis, 113 N. E. 60, 273 Ill. 501; 1 Freeman on Judgments, 4th ed. § 178; 2 Black on Judgments, 1st ed. 584, and numerous other authorities cited in appellants’ briefs.
The issue in the Federal court case as to the validity of the, bonds necessarily involved the issue as to whether there had been a valid assessment of benefits, for, if there was no valid assessment of benefits, there could be no valid issue of bonds. Western Randolph County Rd. Imp. Dist. v. Clifford, 150 Ark. 94. It is not pretended that the action in the Federal court was collusive or simulated between the bondholders and the district to have the first issue of -bonds of the district validated. As the district represented the taxpayers, it was bound to plead for them any defense that could have been set up which would have rendered the bonds invalid, and a good defense would have been that, for any reason whatsoever, there was no valid assessment of benefits. The district could, and should, have pleaded such ■ defense for the benefit of the taxpayers. See Ellis v. Clark, 19 Ark. 420; Morris v. Curry, 41 Ark. 75; Jones v. Terry, 41 Ark. 230; Church v. Gallic, 76 Ark. 423; Ederheimer v. Carson Dry Goods Co., 105 Ark. 488; Jimmerson v. Fordyce Lbr. Co., 119 Ark. 413.
The judgment of the United States District Court, after setting out the bonds, recited: They are “the valid obligations of said district, and are each duly secured by a first mortgage on the assessment of benefits of said district, bearing even date -to the bond issue, and duly recorded.” The judgment in that case was duly pleaded and in evidence in these consolidated causes. It was the duty of the trial court to give full faith and credit to 'this judgment. State ex rel. Craighead County v. St. Louis-S. F. R. Co., 162 Ark. 443; Shaw v. Polk, 152 Ark. 18; Davies v. Patterson, 137 Ark. 187; Harris v. Harris, 142 Ark. 267.
The facts of this record present a typical case for the application of the doctrine of res judicata above set forth, and exemplify the wisdom of the rule declared by our statute. This was a large district of several hundred taxpayers. If, at the end of two lawsuits involving -the validity of an assessment of benefits in this district, in which all the taxpayers thereof were duly represented and in which it was adjudged that the assessment of benefits was valid, other taxpayers could bring new suits, and so on down, until every taxpayer by name had been excluded, then indeed the only, security upon which the bonds were issued and sold and the money furnished to make 'such improvements would be as flickering and insubstantial as the “borealis race.”
The rationale of the doctrine of res judicata is well expressed by Judge Mitchell, in State of Wisconsin v. Torinus, 28 Minn, 175-179. “The doctrine of res judicata,” says he, “is founded upon two maxims of the law, one of which is that ‘a man should not be twice vexed for the same cause,’ the other that ‘it is for the public good that there be an end of litigation;’ and it is undoubtedly true that, if there be any one principle of law settled, it is that, whenever a cause of action, in the language of the law, ‘transit in rem adjudicatam/ and the judgment thereupon remains in full force and unreversed, the original cause of action is merged and gone forever. After judgment on the merits, a party cannot afterwards litigate the same question in another action, although some argument might have been urged on the first trial that would have led to a different result. Such a judgment is final and conclusive, not only as to matters actually decided, but as to every other matter which the parties might have litigated and had decided as incident to and essentially connected with the subject-matter of the litigation, as the facts then existed. The discovery of new evidence, not in the power of the party at the former trial, forms no exception to the rule. The doctrine is so just, and so necessary to the peace and good order of society, that we have no desire to either modify it or unreasonably limit its application.”
The district, as we have seen, represented all the taxpayers in the Federal suit.
Since Kennedy and the others who instituted the original action attacking the validity of the assessment of benefits as a whole, which appellants are here seeking to enforce, represented the appellees and a-11 the taxpayers and property owners of the district who were in the same class, it follows, from our statute and the above authorities, that the appellees were parties to that original action the same as if they had been made so by name. The appellees are bound by the unreverséd judgment of the trial court in that case, determined on the merits, that the assessment of benefits was valid. There is no contention here that that cause was a simulated or collusive lawsuit' on- the part of Kennedy and the others named with him and the district and its commissioners to obtain a judgment of the court validating the assessment. That it was. not a collusive suit is abundantly shown by the opinion of this' court in the case of Holcomb v. Kennedy, 158 Ark. 585, where one branch of that lawsuit was reviewed and decided.
3. The appellees contend that this court, in the ■ cases of Frazier v. McHaney, 117 Ark. 394, and Meyer v. Board of Imp. Paving Dist., 148 Ark. 629, has •already decided that suits of this nature do not come within the above doctrine of class suits. The issue of res judicata was not raised in either of those cases, and, if it had been, those cases are easily differentiated on the facts from the present case, and have no application here.
In the case of Frazier v. McHaney, supra, certain railroad corporations, and a trustee for one of them, instituted an action against the Fourche Drainage District, challenging the assessments on their own lands in the district. No attack was made upon the validity of the assessment of benefits as a whole, and the action was instituted by the plaintiffs, not as a class action but simply as bn action to correct assessments against their particular property and none other. After the decree was rendered, Frazier and others-filed petitions asking to be made parties for the purpose of prosecuting an appeal to this court. We held that they were not parties to the action, and that'only those who were parties- when the decree was entered would have the right to prosecute an appeal.
In the case of Meyers v. Board of Improvement of Paving District, supra, the plaintiffs instituted the- action attacking the validity of the assessment of benefit's as- a whole, made under the ordinances creating improvement districts in the city of Van Burén. The statute under which the ordinances were passed, among other things, provided that “all persons who shall fail to begin legal proceedings within thirty days after, such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded.” The action was instituted within the thirty days by the plaintiffs, Meyers and others, and some one of them, for himself and others similarly situated, who might wish to join in the action. The action therefore was a class action in which the plaintiffs represented the other taxpayers in the district similarly situated. Several months after the institution of the action, and after the time had expired in which an action could be brought for invalidating the assessment, other property owners who had not joined, by name, in the original action, asked and were permitted by the trial court to become parties plaintiff. Speaking of this ruling of the trial court, we said: “We think the court should not have permitted the new parties to be made plaintiffs. Several months had then expired since the publication of the notices of the ordinances creating the district, and the effect of the court’s action was to permit these persons, by adopting the pleadings of the persons whose names are set out above, to prosecute the° litigation which the statute required them to begin within thirty days. ’ ’ The effect of this ruling was merely to treat as new parties those who sought to come into the suit after the time when an action to invalidate the assessment of benefits could have been brought, and who then sought to be-made parties and to have the case from that time on proceed in their names to a final decree. The effect of the ruling of the trial court was to substitute these parties for those who. had originally instituted the action, and this ruling, we held,- was tantamount to the bringing of' a new suit after the time had elapsed in which a suit could have been brought.
The question of res judicata, as we have already said, was not raised, and the issue now under review was not considered nor ruled upon, and the language of the opinion in the case above quoted certainly would not be controlling here, and, we believe, has no application to the.facts of this record. We conclude therefore that the trial court erred in holding that there is no merit in appellant’s plea of res judicata. Having reached this conclusion, the other interesting questions so elaborately ■and ably argued in the briefs of counsel for the respective parties pass out, and it would be supererogation, pure and simple, to consider and decide them. Hence .we have not done so.
For the error indicated the .decree is reversed, and the cause is remanded with directions to dismiss the appellees’ complaint in case No. 258 for want of equity, and for such' other and further proceedings in case No. 211 as may be- necessary to enforce the collection of the •levies based on the assessment of benefits according to law, and not inconsistent with this opinion. | [
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Hart, C. J.,
(after stating the facts). The correctness of the holding of the circuit court depends upon the interpretation to be placed upon the provisions of act 11, approved February 4, 19'27, Acts of 1927, p. 17. Under § 1 it is declared to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the. State comprising the State highways as defined in the act. Section 3 provides for the amount of outstanding bonds to be determined, and for payment each year as they become due. Section 3 reads, in part, as follows:
“The commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State, the date of the maturities thereof, and the annual interest due thereon, and it shall be the duty of the' circuit clerk of each county to furnish the commission with such information. The commission shall, each year, beginning with the year 1927, allot to each road district in the State having outstanding bond issues an amount equal to its bonds maturing during the year, together with the interest payable by such districts during the year, plus a paying charge of one-eighth of one per cent, of bonds to be paid and one-fourth of one per cent, of interest to be paid, and shall certify to the State Auditor the amount allotted to each road district. ’ ’
The second paragraph of the section is as follows:
“In case the appropriation of six and á half million dollars allotted to the road improvement districts is insufficient to pay in. full the maturing bonds and interest for the year, the commission shall allot to each district its pro rata of such appropriation.”
The last paragraph of the section is as follows:
“All of the road districts referred to in this section are hereby taken over by the State, but only such portions of such roads which are now or may hereafter he embraced in the State highway -system .shall be maintained by the State.”
The term ‘ ‘bond, ’ ’ as used in the act as labove quoted, evidently refers to the term “bond” as used in acts' creating road improvement districts, and authorizing the commission to borrow money to construct the improved roads, and to' issue negotiable -interest-bearing bonds therefor.
In Davenport v. Dodge County, 105 U. S. 237, 26 L. ed. 1018, a county bond was defined to be an instrument that implies that an obligur is bound to do what it is agreed shall be done. This is substantially what this court has held bridge land highway improvement district bonds to be.
In Arkansas Foundry Co. v. Stanley, 150 Ark. 127, 233 S. W. 922, it was held that, under the special act creating a bridge district and authorizing the commissioners to sell bonds at not less than par, and to pay interest at not more than six per cent., and to pledge the assessments, as security, such commissioners are authorized to- borrow money from banks at the prescribed rate and pledge the 'assessments therefor.
Section 9 of the act provided that, in order to- do the work, the bolard might borrow money at a rate -of interest not exceeding six per cent, per -annum, might issue- negotiable bonds therefor, signed by the chairman and secretary -of the board, and -pledge and mortgage all assessments for the repayment thereof. The .section further provided that the bonds.should not be disposed of at less than par.
It was contended by an owner of real property within -the bridge district, who brought suit, that the act only authorized the commissioners to issue negotiable -bonds, and that the commissioners were about to borrow money from the banks -of the city of Little Rock and to pledge the assessments for the security -of the said loans, in violation of the provisions of the act. The court s-aid the issuance -and sale of the bonds -of the district was nothing. more than borrowing money by the commissioners for the purpose of constructing the improvement. The court further said that the bonds of the district would be nothing more than evidence of indebtedness of the district, and it would make no difference whether the commissioners borrowed the money in the city of Little Rock or from banks or other persons elsewhere. Consequently, it was held that the chancery court rightly sustained a demurrer to this paragraph of the complaint. This was tantamount to holding a bond and a certificate of indebtedness such as was issued in the case at bar were substantially one and the same thing, and that to hold otherwise would be to put form above substance.
In the later case of Road Improvement District No. 4 v. Southern Trust Co., 152 Ark. 422, 239 S. W. 8, it was held that, under a statute authorizing the board of commissioners of a road improvement district to borrow money iat a fate of interest not exceeding six per cent., and to issue negotiable bonds therefor, and to pledge, assign and mortgage all assessments for the repayment thereof, the board was. authorized to issue a negotiable note for borrowed money. It was contended that the district was not authorized to execute a negotiable note under the provisions of the act creating it. The court said:
“While the act does specify that the. board may ‘borrow money’ and may issue ‘negotiable bonds,’ yet the fact that the resolution designated the instrument to be executed for the money borrowed as a ‘note’ instead of a negotiable ‘bond,’ and the fact that the instrument took the form of a ‘note’ instead of a ‘bond,’ can make no difference. Where the indebtedness which the instrument represents is for money bofrowed, a technical compliance with the law as to the form of the instrument evidencing the debt, whether by negotiable note or negotiable bond, is wholly immaterial. Either would be evidence of indebtedness of the district, and, in the eyes of the statute, ‘note’ and ‘bond’ would be but convertible terms.”
Our earlier case of Arkansas Foundry Co. v. Stanley, 150 Ark. 127, 233 S. W. 922, was cited in support of the holding. We must presume that the framers of the act under consideration had these oases before them, and used the word “bond” in the sense this court had interpreted it to mean in the acts creating the road districts and authorizing the commissioners thereof to issue bonds for the purpose of securing money with which to construct the improvement. The evident and avowed purpose of the act under consideration was to aid road districts, which had become overburdened with debt, in the construction of the improved roads, and we are of the opinion that the word “bond” as used in the act wias meant to include promissory notes and certificates of indebtedness issued by the district for the purpose of constructing the improved roads;- and that the words “bond,” “note” or “certificate of indebtedness” are but convertible terms. In short, we are of the opinion that the expression “bond,” as used in the act under consideration, was intended to cpver all written obligations for the payment of money legally issued by the commissioners for the purpose of constructing the improved roads under the original acts creating the road districts.
Acts 112 (Acts 1927, p. 312) is supplementary to act 11 (Acts of 1927, p. 17), and there is nothing in its language or within the scope of its purpose to indicate that the Legislature meant to change the meaning of the word “bond.” Hence the meaning of the -word “bond” as used in act 11 is not changed by act 112. Neither do we think that, when the object and purpose of act 112 are considered in connection with act 11, the term “bond” was used in it in any different sense than it wra-s used in act 11. It is agreed that the road in the district under consideration was taken over by the Arkansas State Highway'Commission, and that it is a part of the highway system.
It follows that the judgment of the circuit court was correct, and it will he affirmed. | [
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Hart J.,
(after stating the facts). T¡he evidence clearly shows that Francis Goodwin, in his lifetime exchanged a lot owned by him with the Methodist Church for the lot in controversy. The exchange was made in this way: Goodwin purchased the lot, and had the deed made direct to the Methodist Church; the trustees accepted the deed to the lot, and erected a church on it ; possession of the lot in controversy was taken by Francis Goodwin under the agreement, and in this way the exchange was consummated. If is true that no- deed or other instrument in writing was given to Francis Goodwin, but the oral contract for the exchange of the lots was taken out of the statute of frauds by the fact that Francis Goodwin entered into possession of the lot in controversy, and caused the lot which he had given in exchange for it to be conveyed to the Methodist Church. This is sufficient part performance of the contract to take the case out of the operation of the statute of frauds. Carnahan v. Terral Bros., 137 Ark. 107; Newton v. Mathis, 110 Ark. 252; Kilgore Lbr. Co. v Halley, 110 Ark 118; Beattie v. Smith, 116 Ark. 532; and Wilkinson v. James, 161 Ark. 175.
It does not make any difference whether either Francis Goodwin or T. C, Goodwin has remained in the actual continuous and adverse possession of the lot in question so as to obtain the title by adverse possession. The title was obtained by the oral contract for the exchange of the lots, which was consummated by Francis Goodwin’s taking possession of the lot in controversy and paying the consideration therefor, which was done by causing a deed to the lot given in exchange for it to be made to the Methodist Church. After the exchange had been consummated by taking possession of the lot and paying the consideration therefor, it did not make any difference whether either Francis Goodwin or T. C. Goodwin remained in the continuous, adverse possession of the lot for the statutory period. The title by the exchange bad passed out of the church, and it did not make any difference to it or its trustees what the purchaser did with the lot.
It is next objected that T. C. Goodwin did not have title to the lot, and could not maintain this action. On this point T. C. Goodwin testified that the lot belonged to his father’s estate, and that, after his death, be received a deed from the other heirs of his father to the lot. His testimony in this respect was not attempted to be contradicted.
It follows that the decree was correct, and will be affirmed. | [
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Wood, J".
This is an action by Mrs. Corrie Carleton, administratrix of the estate of her deceased husband, against the Boyle-Farrell Lumber Company, to recover damages for the alleged negligent killing of E. B. Carleton while in the employ of the defendant. She alleged that Carleton was employed by the defendant as a mechanic, and was engaged in removing the shafting from the sheave wheels at the west end of the carriage platform in the defendant’s sawmill; that, being unable to do so with the tools and equipment at hand, he stopped work and went for other tools with which to perform the task; that, during his absence, and without his knowledge or consent, one Mose Smith, an employee of the defendant, removed the shafting from the sheave wheels, leaving them suspended in a dangerous manner, and that, just as Carleton returned to the point on the ground under neath. said sheave wheels, they fell, and one of them struck Carleton and injured him so severely that he died about one hour • thereafter; that the death of Carleton was due to the negligence of defendant in-removing the shaft from the wheels, in the absence of the deceased, and in leaving the said wheels suspended in a dangerous manner after removing the shaft, and in failing to warn the deceased of what had been done and of the dangerous condition in which the sheave wheels had been left. The plaintiff prayed judgment on behalf of the estate in the sum of $5,000, and -for the benefit of the next of kin in the sum of $10,000.
The answer denied the allegations of the complaint as to negligence, and set up the defenses of contributory negligence and assumed risk.
Mose Smith testified that he had been employed by the Boyle-Farrell Lumber Company, hereafter called appellant, for eighteen or nineteen years, off and on. He was working for appellant in December, 1922, when Carleton was killed. The mill at that time was shut down for repairs. Witness was working with Carleton, taking down a pair of sheave wheels. The saw-carriage platform is built above the ground about twelve or fourteen feet high. The carriage is pulled by a pair of twin engines and a wire rope feed which winds and unwinds on a drum wheel. There is a little groove cut in the drum, and the rope winds and unwinds off of that groove, and the sheave wheels have a groove cut in them, and the wire cable works back and forth in this groove. There were four sheave wheels, two at each end. They were taking down the two larger wheels on the rear end. At first Carleton was on the upper floor, sitting on the grand stand, a place about two and a-half feet high, and witness was down underneath the floor, driving the shaft out of the wheels. Carleton was looking down at witness. Witness was standing on a ladder, the foot of-the ladder resting on the ground and the top on the rim of the sheave wheels. Witness was driving the shaft out of the hub of the wheels with a sledge-hammer. Carleton said he was going to take the wheels down. Witness drove the shaft np to the hub of the wheel, when Carleton said, “Mose, wait a minute. I will go to the shop and get •you something to drive it out with.” After witness drove it up to the hub, he could not hit it any more with the sledge-hammer, and at this point Carleton said, “ Wait, and I will go to the shop and hunt you a piece of iron to drive it out with. ’ ’ Carleton got down from where he was sitting and went to the shop to get the piece of iron. He wasn’t gone over two, three, or four minutes. While he was gone, witness looked down on the ground and saw a piece of iron, which witness got and drove the shaft out. Just as he drove it out, it fell on the ground right down under the wheel. Carlton walked in the back end of the mill, about the time witness drove it out, .and said to witness, “You have got it out, have you?” and witness replied, “Yes sir.” Carleton then threw the piece of iron down that he had to drive the shaft out with. After witness drove the shaft out, he went down the ladder. As he was coming down Carleton was walking up. As witness stepped off the ladder Carleton walked right up under the wheels, and reached down to get a key that bounced out of the shaft when it fell on the ground. As Carleton reached down, to pick up the key, witness heard a noise, and said, “Look out!” and witness jumped right but through a hole that was in the wall' The wheels came right straight down. They were hung four or five feet above witness’ head. As they came down one of the wheels brushed the sledge-hammer off of witness’ shoulder and drove it in the ground. The other wheel fell on Carleton. It all happened in a second.
On cross-examination witness explained that the two wheels were side by side, just as near together as they could get. They had a hub like a wagon hub, and these two hubs rubbed together. There were four or five inches.between the rims. The piece of iron witness used to drive the axle out with was about the same kind that Carleton went to get. Either piece would answer the same purpose. Witness was asked this question:
“Q. He said for you to wait and ‘I will get you something?’ A. Yes sir. Q. 'Did you understand he Wanted you to quit work, if you had a piece there to drive it out with? A. No sir; if I had a piece to drive it out with, I didn’t understand he wanted me to quit, hut I didn’t have anything to drive it out with hut the sledgehammer at that time, and he didn’t see anything. I don’t suppose, if. he had he would have told me to get it, and I didn’t see anything or I would have told him that I saw a piece down there that would answer for that purpose; but I didn’t see anything at the time he told me to wait.”
- The witness continued his testimony, and stated that, just as Carleton walked in the rear end of the mill, witness hit the last lick, and the shaft fell out. Witness then put his sledge-hammer on his shoulder and came down the ladder, and, just as witness stepped off the ladder on the ground, .Carleton reached down and picked up a key, when witness heard the noise, and jumped, as before stated. Carleton was straightening up, but hadn’t got straight. Before Carleton got up to witness, he said “I see you have it out,” and when he said that he threw down the piece of iron he had. He was then about twenty feet away. Witness and Carleton were standing together, nearly under the wheels. Witness explained how the wheels were hung by saying that Carleton took a piece of wood and put it through the rim of both wheels (indicating by using the arm of a chair), either wheel resting on the end of the piece of wood.' They had a tackle chain which they wrapped around the block on the ends of which the wheels were suspended. When the chain was wrapped around the block two or three times there wasn’t much of the rim over the end of the block. Witness was working as a helper under Carleton’s direction. Carleton was the master mechanic. Witness never thought about the wheels falling, or he would not have gone on the ladder. Witness supposed Carleton could have wrapped the chain around the spokes and through the rims and lifted the wheels just as easy as he • could have done with the block. If he had done that, he would not have had the block. When witness knocked on the shaft with the sledge-hammer, he never paid any attention to the shaking part of it. He was after driving the shaft out, and it was pretty hard to drive it, and witness “might have shook it right smart, because it was hard.” He had to stop and rest once or twice while he was driving it out. After witness drove the shaft out with the piece of iron, he laid it on. the window sill. Witness-further explained that, when the wheels fell, Carleton was not standing directly under the wheels. He was standing right at the side of it. The wheel, in falling, did not hit the ground, but hit a big piece of timber and fell over on Carleton.
R. E. Farrell, one of the owners of the mill, testified, among other things, that Carleton was in the employ of the appellant in charge of its repair work. He had full charge of • all the machinery, locomotives, plants and ■ everything, and had about twenty men under him, among them Mose Smith., Witness picked up the block on which the sheave wheels were suspended, and pointed out the marks of the chain around the block,- and stated that the wheels were seven feet eight inches in diameter, and -that the floor was fourteen feet from the ground; that it was nine feet from the center of the shaft to the ground; that the wheels were keyed on to the shaft to keep them from slipping back and forth and to hold them steadily on' the axle; that the wheels extended above the floor about' two inches. The opening through which they extended above the floor was about seven inches wide and three feet long. The'wheels weighed about 1,200 pounds each. Carleton raised the wheels with a chain-block which would lift 2,500 or 3,000 pounds, and could be operated by one man. Carleton could have put the chain right around the sheave wheels to keep them from slipping on the block, or he could have used a longer piece of timber. Any of those methods' would have been safer than the method he used, which was the most dangerous he' could use for suspending the wheels while removing the shaft and pin.
The above states all the material testimony bearing on the issues of negligence, contributory negligence and assumed risk. The court submitted these issues to the jury under instructions which, -in our view of the ease, it becomes unnecessary to set forth.
Among other prayers for instructions, the appellant presented the following: “You are instructed to return a verdict for the defendant company.” The court •refused this prayer, and the appellant duly, excepted to the ruling of the court. The appellant also presented several other prayers for instructions to the effect that, if the jury believed from the evidence that the manner of suspending the sheave wheels was dangerous, and that the deceased knew and appreciated the danger,, or, by the exercise of reasonable and ordinary prudence, could and should have known, then he assumed the risk of being injured thereby, and, if the jury found he was injured thereby, they should return a verdict in favor of the appellant. The court refused these prayers, to which the appellant duly excepted.
Another prayer for instruction was to the effect that, if the jury found Carleton, upon his return, saw the shaft was out of the wheels, before he went near them, and while he was still fifteen or twenty feet away, then the driving of the shaft from the wheels was not the proximate cause of Carleton’s injury. The court refused this prayer, to which the appellant duly excepted.
The jury returned a verdict in favor of the appellee for the benefit of the estate in the sum of $2,500 and for the benefit of the next of kin in the sum of $5,000. Judgment was entered in favor of the appellee in accordance with the verdict, from which is this appeal.
The appellee contends that the appellant is liable on the ground that its employee, Mose Smith, in the absence of Carleton, his foreman, and in disobedience of his orders, drove out the shaft, and that, in so doing, Smith was guilty of an act of negligence which was the proximate cause of the death of Carleton, and which act of negligence rendered the appellant liable under § 7144, Crawford & Moses’ Digest. To sustain this contention the appellee must rely upon the testimony of Mose Smith, who was the only eye-witness to the injury. After a careful consideration of his testimony, we are convinced, in the first place, that there was no act of negligence on the part of Mose Smith. When Mose Smith had driven the axle to the hub of the wheel, Carleton said, “Mose, wait a minute, I will go to the shop and get you something to drive it out with.” Mose stated that he didn’t understand that Carleton, by this direction to wait, wanted him to quit driving'the axle,- but that, as he didn’t have any iron to drive it further, his only purpose in wanting him to quit was to get the piece of iron, and, as he saw a piece of iron, near that would answer the same purpose, he used that while Carleton was away. The iron witness used was substantially the same kind of iron that Carleton brought back, and served the same purpose as that would have done. So, during the absence of Carleton, Mose Smith didn’t change the manner that liad been adopted by Carleton to drive out the axle. 'He used the same method and practically the same means that would have been used had he waited for Carleton’s return. Manifestly, the purpose of Carleton in telling Mose to wait was not to change the method that he had' adopted for driving out the axle, but only to procure an instrument by which it might be done in the same manner Hint lie bad adopted. If Mose, during the absence of Carleton, had changed the method or the means of driving out the axle, the case would have been different, but Mose was pursuing the same method and using practically the same means that he would have used had Carleton been present when the axle was driven out. Mose was doing the work in the manner Carleton had planned and directed that it should be done.
We do not find in this testimony any evidence whatever to justify the conclusion that Mose disobeyed the orders of his superior, and that he was negligent.
In the second place, even if we are mistaken in holding that the undisputed evidence shows that there was no negligence on the part of Muse Smith, and if it could be said that he was negligent in not waiting for the return of Carleton, still the undisputed evidence shows that his negligence in this respect was not the proximate cause of Carleton’s injury. Carleton walked into the back end of the mill about the time Mose drove the axle out, and said, “Mose, you have got it out, have you?” and Mose replied, “Yes sir.” Mose was then coming down the ladder, and Carleton walked up right under the wheels as Mose stepped off the ladder, and reached down to get the key that was in the shaft when the shaft fell on the ground, and, as Carleton reached down, the wheels fell, and one of them struck him. The undisputed testimony shows that Carleton knew, soon after he returned with the piece of iron, and before he went under the wheels, that the axle had been driven out. Mose stated that Carleton was about eighteen or twenty feet away when he said, “I see you have got it out,” and he replied, “Yes sir.” With full knowledge of this fact, Carleton walked up and stepped under the suspended wheels, and stooped to pick up the key, when the wheels fell and injured him as he was straightening up.
The testimony unquestionábly shows that the manner adopted for suspending the wheels and removing the axle was negligent, but the manner of doing this repair work was wholly within the control of Carleton himself, and it was his negligence, and his negligence alone, as we view the undisputed evidence, that was the direct and proximate cause of his death. By the exercise of ordinary care upon his part he could, and should, have planned a safer method for suspending the wheels and removing the axle, which the proof shows could have been adopted; but, after adopting this dangerous method, and after the axle had been driven out according to that method, he had knowledge of this fact, and could and should have known, in the exercise of ordinary care on his part, that it was dang’erous in the extreme to walk under the suspended wheels. The danger was so obvious, at least to one of his experience, that there is no room for any conclusion in the mind of any reasonable person other than that Carleton’s own negligence Was the direct and proximate cause of his injury and death. The undisputed evidence shows that the wheels were suspended in such a manner that the least vibration or oscillation from the slightest difference in weight, or from other cause, would make them slip from the short 2 x 4 on which they were suspended. Carleton had full knowledge of these conditions. The danger was so imminent and obvious that Carleton, by the exercise of ordinary care, could and should have avoided it. The court therefore erred in refusing appellant’s prayer for a directed verdict and in not declaring as a matter of. law that the direct and proximate cause of the injury to Carleton was his own negligence.
The judgment is reversed, and, inasmuch as the cause has been fully developed, it will be dismissed.
Humphreys, J., dissenting. • | [
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Humphreys, J.
Appellee, who owned lot 3 in block 25 in the city of Van Burén, and within the boundaries of Paving* District No. 6, proceeded, in accordance with §§ 7573-7575 of Crawford & Moses’ Digest, to recover alleged damages to his lot by the construction of an improvement in the district. The assessors appointed under the statute awarded 'appellee $50 damages. He refused to accept the amount, and instituted suit against appellant in the circuit court of said county for $750. Upon the trial of the cause appellee recovered a judgment for $100, from which is this appeal.
In the construction of the improvement, an embankment six feet high was built in Cherry Street, upon which the lot fronted, and, according to the allegation of appellee’s complaint, obstructed ingress and egress to and from his lot.
The testimony introduced by appellee tended to show that his lot was damaged by reason of the embankment anywhere from $400 to $800. The damage was estimated by the witnesses upon the basis of a six-foot embankment constructed in front of it.
The testimony introduced by appellant showed that, in the year 1892, a street grade was established by city ordinance on Cherry Street, leaving the lot in question four feet below the established grade. Appellant’s testi mony also tended to show that, had the lot been filled to the grade first established, the additional fill of two feet in front of the lot would not have damaged it at all.
The court sent the case to the jury upon the theory that appellee was entitled to recover damages to his lot on account of the construction of an embankment six' feet high in front thereof. Appellant requested the court to instruct the jury as follows:
“You are instructed that, in determining the question of damages to plaintiff’s property, you may take into consideration the established grade of Cherry Street fronting the property, if you find there was an established grade. The city had the right to construct the paving as high as the established grade, and would only be liable in damages, if at all, for the excess to which it caused the street to be built higher than the established grade for the street at this point.”
The court refused to give the instruction, and, in refusing to do so, committed reversible error. A city is only liable to damage to property 'by reason of changing a grade already established, and not for damage thereto in establishing grades of streets in-the first instance. Dickerson v. Okolona, 98 Ark. 206, 135 S. W. 863, 36 L. R. A. (N. S.) 1194; Fayetteville v. Stone, 104 Ark. 138, 148 S. W. 524; Red v. Little Rock Ry. & Elec. Co., 121 Ark. 71, 180 S. W. 220. Under the rule announced in these cases, the court should have given appellant’s requested instruction confining the damage to the property on account of building the embankment two feet higher than the grade established in 1892.
Appellant also requested and was refused the following instruction:
“You are instructed that, if the jury believe from the evidence that the property of the plaintiff was in any manner specifically benefited by the grading of the street adjoining same, and that the amount of said special benefits is equal to or greater than the damages, if any, done to said property by reason of said grading, then the plaintiff cannot recover, and your verdict should be for the defendant.”
The undisputed evidence shows that this particular lot was assessed $24 a year as benefits by reason of the construction of the improvement. This assessment is an annual charge upon the property until the indebtedness created by the construction of the improvement shall have been paid. Under the rule laid down in the cases of Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407, and Miller Levee District No. 2 v. Dale, 172 Ark. 942, 290 S. W. 948, appellant was not entitled to set-off special benefits resulting to the property from the improvement against damages which resulted by reason of said embankment.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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McCulloch, C. J.
This litigation arose over an alleged contract between appellant and appellee for the purchase and sale of a product called cotton linters, which is the lint taken from cotton seed. Appellee sued appellant to recover the sum of $565.20 on account for the price of twenty-one bales of linters, and appellant brought another action against appellee to recover damages for alleged violation of a contract for the sale of 600 bales of linters. The complaint in each case was answered, and the two suits w;ere consolidated and tried together, resulting in a verdict in favor of appellee for the sum of $420.
Appellee is operating a cotton-oil mill near the city of Little Rock, and the first process of manufacturing cotton-seed oil and the by-products is to remove the remainder of the lint left on the seed after ginning. The product thus removed is called linters, and, by the process used by appellee, there are two grades of linters, called the first cut and second cut, the latter being shorter and of less value.
Appellant is engaged in the manufacture of cotton mattresses, and uses cotton linters in large quantities for that purpose. The plants lie close together, and the alleged contract was made by the respective managers, Mr. Hunt for appellee and Mr. Ortmeyer for appellant. Negotiations began for tbe purchase by appellant from appellee of 600 bales of linters, and twenty-one bales were delivered by appellee to appellant. There is a sharp and irreconcilable conflict in the testimony as to the details and price, but it is conceded that the tentative agreement made between the two managers was to be reduced to writing’ after the approval of the general manager at appellee’s principal office in Memphis, Tennessee, was received.
The testimony adduced by appellee was to the effect that the price of linters was to be six cents a pound. Appellee’s manager so testified, and he was corroborated by other witnesses. On the other hand, appellant’s manager testified that, according to the terms of the contract, he was to have 200 bales of first cut at four cents a pound, and 400 bales of second cut at two cents a pound. Appellee’s witnesses testified that the twenty-one bales of linters were delivered to appellant merely as a loan, to be returned or paid for, whereas appellant’s witnesses testified that the twenty-one bales of linters were delivered on the contract. These bales were delivered before the confirmation of the Memphis manager was received and the contract reduced to writing. At this point of the proceedings appellee’s manager caused the contract to be reduced to writing, showing the sale of 600 bales of linters at six cents a pound, and appellant’s manager refused to sign the contract on the ground that it was not in accordance with the oral agreement. The contention of appellant is that there was an oral agreement and part performance by the delivery of twenty-one bales of linters. Appellee contends that there was no contract, for the reason that appellant refused to sign the contract as tentatively agreed upon, and that the delivery of the twenty-one bales was merely a loan.
There was evidence legally sufficient to support a finding by the jury either way on the issues presented, and we must treat the verdiot as conclusive, unless error be found in the instructions. There is no contention of error in any respect save in giving and refusing instructions.
Error is assigned in giving the fourth instruction, which told the jury that the burden of proof was on appellant to establish its case “clearly by a preponderance of the evidence,” and in modifying appellant’s second instruction by adding the words, “unless the mattress company has failed to show, by a clear preponderance of the evidence, that the twenty-one bales of linters were delivered by the oil company in pursuance of the alleged contract for 600 bales.” The use of the words “clearly” and “clear” in the instruction and in the modification mentioned above, instead of merely using the term, “preponderance of the evidence,” is the point of attack upon the court’s instructions.
Instruction No. 2 as requested by appellant reads as follows:
“If you find from a fair preponderance of the testimony that the defendant entered into a contract with said plaintiff whereby it purchased from said plaintiff six hundred bales of linters, two hundred bales to be of first cut, at 4 cents per pound, and four hundred bales of second cut at 2 cents per pound, and that said plaintiff declined and refused to fulfill its contract by delivering said linters to said defendant, then your verdict will be for the defendant on the cross-complaint.”
There was no specific objection made to either of the rulings of the court in giving instruction No. 4 and in modifying instruction No. 2, and the objection in each instance was general. It must be conceded that the use of the word “clearly” or “clear,” in connection with an instruction concerning the preponderance of the evidence, is improper, for, in a trial of the issues, the burden of proof is discharged by producing a mere preponderance of the evidence. Shinn v. Tucker, 37 Ark. 580. But a general objection is not sufficient to bring the erroneous use of these words to the attention of the trial court. This should he done by a specific objection. In the case of St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, the court had under consideration an assignment of error relating to the giving- of an instruction by the trial court which declared the duty of the defendant to establish its defense of contributory negligence “by a preponderance of the testimony to the satisfaction of the jury.” This court condemned the use of the word “satisfaction” as inaccurate, but held that a general objection was not sufficient to raise the question for review on appeal. In Hays v. Williams, 115 Ark. 406, an instruction was given which used the word “fair” in connection with a declaration as to the duty of the party to make out his case by a preponderance of the evidence, and the use of the word was condemned by this court, but we held that it was necessary to raise the question by a specific objection. The same principle has been announced in other decisions of this court. Morris v. Collins, 127 Ark. 68; Bocquin v. Theurer, 133 Ark. 448.
Error is also assigned in giving instruction No. 6, which reads as follows:
“If you find from the evidence that Mr. Hunt, acting as a reasonably prudent man, understood that the price for the 600 bales of linters was to be 6 cents, but Mr. Ortmeyer, acting as a reasonably prudent man, understood it was to be 4 cents for first cut and 2 cents for second cut, the minds of the parties did not meet, and you will allow the mattress company'nothing in its suit, but will render your verdict in favor of the oil company for the amount you think it is entitled to recover for the 21 bales of linters it delivered to the mattress company.”
The contention is that this instruction was abstract for the reason that there was no testimony tending to show a mistake as to the price of the linters. One of the principal witnesses testified to a given price and another testified as to a different price. It is true that each of the witnesses testified definitely as to the agreed price, and the testimony of neither of the witnesses, taken alone, would justify a finding* that there was a mistake, but the jury was not bound to' accept the unqualified statement of either of the witnesses, and might have found that there was an honest mistake between them as to the price of the linters, and that their minds failed to meet on an agreed price. Each of the managers of the respective concerns testified directly and positively, and the jury might have found that each one stated the facts as he remembered them, but that there was a misunderstanding between the parties, and, as before stated, their minds failed to meet upon the price to be paid, hence there was no binding contract. We cannot say therefore that the instruction was abstract.
These are the only errors that are assigned, and as we conclude that these assignments are unfounded and that the evidence is sufficient to support the verdict, nothing remains but to affirm the judgment, and it is so ordered. | [
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Smith, J.
A copartnership doing business under the firm name of the Border City Broom Company of Fort 'Smith, hereinafter referred to as the Fort Smith company, brought suit for the benefit of the Boggs Broom-corn Company, of St. Louis, hereinafter referred to as the 'St. Louis company, against the Wimberley Grocer Company, a corporation engaged in business in Jonesboro, hereinafter referred to as the grocer company, and at the trial the following facts were developed:
The Fort Smith company sold the grocer company a carload of brooms, for which an invoice was rendered October 20, 1921. The invoice price of the brooms was $2,495.50, but there were certain discounts and credits, which reduced the bill to $2,058.77, and judgment was prayed for that amount. The invoice contained this notation: “This invoice payable to the Boggs Broomcorn Company, St. Louis, Mo.” Mr. Wimberley, the president of the grocer company, admitted that he saw this notation on the invoice when it was received.
On November 11, 1921, the St. Louis company wrote the grocer company that the invoice had been assigned to and was payable to it, and the letter concluded with this inquiry: “For our information kindly advise us when we may expect payment of this invoice.” The grocer company replied to this letter under date of November 15, and in this letter stated: “Beg to advise that avo expect to mail check about the 20th.”
. On October 28, 1921, the grocer company bought more brooms from the Fort Smith company, the invoice price of which was $186.87, and this invoice included the former bill, making- a total of $2,245.54, and contained no notation that the bill was to be paid to the St. Louis company.
■Certain credits were claimed by the grocer company on the first invoice, in addition to those noted there, and these were conceded by the Fort Smith company, and, on November 7, that company wired the grocer company as follows: “We will allow deduction as shown by your-invoice to us. Remit to St. Louis as per our notation on invoice.”
On November 29,1921, the Fort Smith company wired the grocer company the following inquiry: “Please advise when you sent draft covering invoice sent you.”
On December 3,1921, the Fort -Smith company wired the grocer company as follows: “Have not received check which you stated you would send. Please have your bank wire City National Bank of this city that they will honor our draft for the full amount of our invoices, less your charges. Please state this amount in the telegram. This is very important.”
In response to this telegram the grocer company remitted to the Fort Smith Company the amount of both invoices, less the total amount of all credits claimed.
Nothing further appears to have been done about the matter until June 20, 1922, when the St. Louis company wrote the grocer company reminding the latter of the promise contained in the letter of the latter to remit on or about November 20. This letter was answered by a letter from the attorney of the grocer company, advising that, at the direction of the Fort Smith company, remittance had been made to that company, thereby paying the bill. This letter denied liability, and declined to 'pay the bill a second time.
Thereafter this suit was commenced, and the complaint set out the above'correspondence, both by telegraph and toy letter, as the basis of the suit, and judgment was prayed for the original amount of the first invoice.
The grocer company answered and admitted the purchase of the brooms and the correspondence in regard thereto, but denied that the invoice had been assigned to the St. Louis company or that it had knowledge of its assignment. The answer further alleged that, at the request and insistence of the Fort Smith company, remittance had been made to that company in full payment of the bill. Upon these allegations the grocer company denied liability to the St. Louis company, and filed a counterclaim against the Fort Smith company in the following language: “For its counterclaim herein against Border City Broom Company and its individual copartners mentioned in the caption hereof and of the complaint herein, this defendant, in addition to all of the allegations and admissions hereinbefore made, says that the amount of said invoice was paid to the said Border City Broom Company at its special instance and request, and that if plaintiff, Boggs Broomcorn Company, recover against this defendant, then that it should have judgment against said 'Border City Broom Company.”
The answer concluded with a prayer that the grocer company be discharged with its costs, tout that, if the St. Louis Company recovered judgment against it, it have judgment over against the Fort Smith company.
The deposition of C. B. Carson was taken on interrogatories. This witness was one of the partners composing the Fort Smith company, and was its manager. After certain preliminary questions, he was asked if his company had requested the grocer company to forward draft to it covering tooth invoices, and he answered: “A. We did, with the intention of sending Boggs’ part to them and keeping the smaller invoice, which was not assigned to them, for ourselves.”
Interrogatories 6, 7, 8, 9 and 10 propounded to the witness Carson were excluded by the court, on motion of the plaintiff, for the reason that they were not relevant to any issue raised by the pleadings, and this action is assigned as error.
The answers elicited by these interrogatories were to ■ the following effect: The Fort Smith company was heavily indebted to the St. Louis company, and the proceeds of the assigned invoice were to apply .on account. Part of the proceeds of the grocer company’s draft paying the invoice were used for the Fort Smith company’s payroll. Part was either paid to the St. Louis company or applied on an acceptance due that company. Being asked what part of the proceeds of the grocer company draft the St. Louis company had received, the witness' answered that he could not remember, as the transaction was two years old. Being asked if the 'St. Louis company was advised of this transaction and if it had been handled in accordance with its wishes, and whether any complaint had been made about the transaction • prior to June 15, 1922, at which time witness severed his connection with the Fort Smith company, the witness- answered: “A. .They knew we received this check and that, we used a part for payroll, and the balance was applied either on an acceptance or paid direct to them.”
Interrogatory 9 reads as follows: “State if there was an assignment by the Border City Broom Company to the Boggs Broomcorn Company of St. Louis on or about the 15th day of April, 1922.” The witness answered: “A. There was.”
Interrogatory 10 is as follows: “State if there has recently 'been an instrument signed by the Boggs Broom-corn Company releasing the Border Citv Broom Company from any and all further known liability "with reference to any claim it might have against said company or any member of the partnership composing the Border City Broom Company. ■ If you state that such an instrument has been executed, will you please attach copy of same as an exhibit to your deposition. ’ ’ To this the witness answered: “A. There was an instrument 'signed which released the partners from any further liability from the debts of the Border City Broom Company, Boggs agreeing to pay all indebtedness which had shown up at that time., I do not have this -with me, but same may be procured from W. B. Booxie at Fort Smith, Arkansas.”
The witness did not attach the assignment referred to by him as an exhibit, as he was directed to do, and we know nothing about its provisions, except the statement contained in the answer of the witness.
We think the court did not err by striking out these interrogatories and the answers thereto. They were not responsive to any defense set up in the answer. The. answer did not allege that the St. Louis company had assumed the obligations of the Fort Smith company, and there was no request- for permission to so amend the answer as to make this alleg-ation. If this testimony had .been admitted without objection, the answer might have 'been treated as amended to conform thereto, but objection was made to the testimony, the objection being that it was irrelevant, and there was no amendment of the answer making the testimony relevant.
Moreover, the witness makes plain a fact — which is otherwise perfectly clear— that the invoice was assigned, ' and that this was done at the time of the sale. True, he says credit was not to be given the account of the Fort Smith company until the invoice was paid, but that fact did not affect the validity of the assignment, as the assignment was for the purpose of collecting the invoice, at which time credit would have been given.
The witness stated that the St. Louis company knew the Fort Smith company had received the check, but he does not say when this information was acquired. .He was being asked about complaint being made by the St. Louis company prior to Jnne 15, 1922, which was, of course, long after the happening of the events out of which this litigation arose; nor did the witness state what part of the grocer -company’s draft was used to meet the payroll, nor on what account the acceptance was applied, nor whether all of the balance was paid on the acceptance, or, if the balance was paid to the St. Louis company, on what account it was paid.
The witness did not produce the assignment referred to by him as requested, and we do not know what obligations were included in it — what the known liabilities were to which the witness referred, and the burden of proving all this rested on the grocer company, even though this defense had been alleged.
It is insisted that there was a trade custom between the Fort Smith company and the St. Louis company whereby the former collected assigned invoices and remitted proceeds thereof to apply on account. But the answer set up no such defense, and we 'do not think the testimony established any such custom, even though it had been alleged.
In explanation of the letter from the grocer company under date of November 15, Wimberley testified that he did not intend by that letter to promise payment to the St. Louis company, but only intended to say that he would pay the invoice, and that he did pay it a few day's later than he promised. In view of the inquiry of the St. Louis company in its letter under date of November 11, we do not think the reply of the grocer company is susceptible of any other construction than a promise to pay the St. Louis company within the time stated.
It is the insistence of the St. Louis company that the remittance was .made to the Fort Smith company because that company had agreed to allow certain additional credits not shown on the original invoice. We do not consider that question, because a verdict was directed by the court in its favor. However, the verdict was directed for only the balance admitted to be due after all credits claimed by the grocer company had been allowed, and the St. Louis company has not cross-appealed.
The request for judgment over against the Fort Smith company appears to have been overlooked at the trial, or to have been considered as unimportant; at least the failure to render such judgment is not assigned as error in the motion for a new trial.
The undisputed testimony shows that there was an assignment of the invoice. This fact appears from tho recital on the face of the invoice itself, which Wimberley admits having seen upon its receipt.
At § 73 of the chapter on Assignments, in 5 C. J., p. 906, it is said: “Where the assignment is in writing, no special form of words or language is required to be used, although the operative words of an assignment generally used are ‘sell, assign, and transfer,’ or ‘sell, assign, and set over.’ It may be in the form of an order on the debtor or holder of the fund assigned to pay the debt or fund to another person. Any language, however informal, if it shows the intention of the owner of the. chose in action to transfer it, will be sufficient to vest the property therein in the assignee. Of course, any statutory requirements as to the form of .an assignment must be observed.”
The correspondence and the telegrams show the assignment beyond question, and we think the grocer company’s letter was an unequivocal promise to pay the invoice, and the grocer company was fully advised of this assignment when it made payment" to the Fort Smith company.
“But payment to the assignor, or discharge or release by him after notice to the debtor of the assignment, is no defense to the claim of the assignee; nor may the debtor, after receiving such notice, acquire new obligations of the assignor and offset them to the prejudice of the assignee.” Section 148, chapter on Assignments in 5 C. J., p. 960. State v. Jennings, 10 Ark. 428.
There was no testimony that the invoice was reassigned, or that authority was conferred on the Fort-Smith company to collect it, and it is not contended that the St. Louis company had any knowledge of the corresnondence passing between the grocer company an 1 the Fort Smith company about the first of December which induced the grocer company to remit to the Fort Smith company, and it is not contended that the grocer company advised the St. Louis company that it had been directed to remit to the Fort Smith company, and the remittance was made without advising the St. Louis company that this would be done.
Under these circumstances the grocer company paid the invoice to the Fort Smith company at its peril, and the judgment was properly directed for the plaintiff. Judgment affirmed. | [
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Hart, C. J.
Oscar Williams prosecutes this appeal to reverse a judgment of .conviction against him for willfully and maliciously cutting a barbed wire fence belong ing to Frank McKinzie, in the Southern District of Logan County, Arkansas, in violation of § 2527 of Crawford & Moses’Digest.
The evidence for the State tended to establish the guilt of the defendant, and the evidence for the defendant tended to show that he was not guilty. Inasmuch as the evidence for the State was legally sufficient to warrant a verdict of guilty, and as the defendant does not ask for a reversal of the judgment and sentence of conviction on the ground that the evidence was not legally sufficient to warrant a verdict of guilty, we need not abstract the evidence in the case.
The main ground relied upon for a reversal of the judgment is that the court erred in refusing to permit Lizzie Williams, a witness for the State, to be asked certain questions on cross-examination. Lizzie Williams is a sister to the wife of Frank McKinzie, the prosecuting witness, and a sister of Oscar Williams, the defendant. She lived in the house with Frank McKinzie and her sister since their marriage for about thirty years. Bad feeling had existed between the (family of the prosecuting witness and the family of the defendant. She was out watching, and saw the defendant cut the fence on the night in question. She went to the house and reported to her brother-in-law, and they both went down and saw the defendant cutting the fence. Several shots were exchanged betwen Frank McKinzie and Lizzie Williams on'the one. hand and Oscar Williams on the other. On cross-examination of Lizzie Williams, we copy from the record the following:
“Q. Isn’t i.t customary for you and Frank McKinzie to drive around in his car and leave his wife at home? Mr. Evans: We object. The court: We are. not going into that. Witness: If they are going to try my character, I want to get a lawyer. The court: Tour character is not on trial here; we all know you have a good character, Miss Williams. Mr. Boberts: We object to the remark of the court. The court: Save your exceptions. Mr. Eoberts: We except. Q. Didn’t Oscar Williams catch you and Frank McKinzie in a compromising attitude about two weeks ago? Mr. Wilson : We object. Witness: I want a lawyer, if they are going to try my character. The court: We are not going into that, Miss Williams, that is not competent here. We know you have a good character. Mr. Roberts : We save our exceptions. Q. You did leave your mother and father and went to .Frank McKinzie’s house and have been there ever since? A. Yes sir.”
At the outset it may be stated that the questions asked the witness on cross-examination by counsel for the defendant were proper under Hughes v. State, 70 Ark. 420, 68 S. W. 676; and Martin v. State, 161 Ark. 177, 255 S. W. 1094. In the Martin case, the defendant assigned as error the 'ruling of the court in allowing a witness for the 'defendant to be asked, on cross-examination, whether or not she had, late on the night that the alleged crime was committed, been out riding with a man in a stolen car. The witness admitted that she was out riding that night in the car at a very late hour, when there was a collision with another car, and that the man who was driving the car ivas arrested for speeding. The court said that the testimony drawn out on cross-examination was competent for the purpose of throwing light on the credibility of the witness.
In the Hughes case the question propounded to the prosecuting witness was: “Do you ever go over to the levee camp and sit around there with the negroes?” The court said that the question was. proper, and should have been allowed. The reason was that, if she had answered in the affirmative, the answer would have had some tendency to reflect her record for truth and morality, and thus her credibility. The court said that cross-examination is a means of sifting the testimony of a witness, and is especially important to the defendant in a case of this kind, and should not be denied unless there is a clear abuse of the right. It will be noted that in the Hughes case the record does not show what the answer of the witness would have been, or that the judg ment was reversed on the ground that there had been an abuse of discretion in interfering with the right of the defendant to cross-examine a witness for the State. The 'Case was reversed on other grounds. In this connection it may be stated, however, that it .is a settled rule of this court not to reverse judgments except for errors that are prejudicial to the rights of the defendant. Perkins v. State, 168 Ark. 710, 271 S. W. 326; and Middleton v. State, 162 Ark. 530, 258 S. W. 995. Now, if Miss Williams had answered the question copied above in the negative, the defendant would have been bound by her answer, and that would have ended the matter. The object of cross-examination in a collateral matter is to enable the jury to comprehend just what sort of a person they are called upon to believe, but, because the character of the witness is collateral to -the 'main issue, which is the guilt or innocence of the defendant, the latter is bound by the answer of a witness as to a collateral issue. McAlister v. State, 99 Ark. 604, 139 S. W. 684; Perkins v. State, 168 Ark. 710, 271 S. W. 326; and Smith v. State, 172 Ark. 156, 287 S. W. 1026.
So it will be seen that, if Miss Williams had answered the question in the negative, this would have ended the matter. If she had answered it in the affirmative, the answer should have been allowed to g*o to the jury for what they considered it worth as affecting her credibility. She did not answer it at all, and a majority of the court are of the opinion that this brings the case within the general rule that, where evidence is ruled out as being incompetent, theire must be set out in the record what the answer of the witness would have been. Otherwise the court would not know whether or not there had Ibeen any prejudicial error committed. It is only where a witness is rejected on the ground of incompetency that it is to be presumed that the witness would have been rejected, no matter how material the evidence might have been. Rickerstricker v. State, 31 Ark. 207.
Where the record does not show what the answer of a witness to a question would have been, this court has repeatedly held that exclusion of evidence is not ground for reversal of the judgment. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720; Battle v. Guttrey, 137 Ark. 228, 208 S. W. 289; Johnson v. Mo. Pac. Rd. Co., 167 Ark. 660, 269 S. W. 67; and Smith v. State, 172 Ark. 156, 287 S. W. 1026.
The court is of the opinion that the record does not present an instance where the testimony of the witness was excluded on the ground of inoompetency, but merely Where the answer to a single question was excluded; and we think that it comes within the rule that, in order to show prejudice, the record ought to show whiat the answer of the witness would have been to the question. In short, before any prejudice would result from the failure to allow the witness to answer the question, counsel should have informed the court what he expected the answer of the witness to he. We cannot know whether the witness would have answered “Yes” or “No” to the question.
But it is insisted that the remarks of the court in connection with its ruling on the matter amounted to a statement to the jury that the witness was of good character. We have copied above the whole of the record on this point, and a majority of the court are of the opinion that the remarks of the court, under the circumstances, did not amount to an expression of opinion to the jury as to the credibility of the witness. It amounted to nothing more than telling the witness that her character was not the main issue in the case, and that it would not he necessary for her to have a lawyer to advise her whether or not she should answer a question as tending to incriminate herself. The character of the witness for morality was presumed to he good until attacked in some manner. The jury was presumed to be composed of men of common sense, and would not be misled by a remark made by the court to the witness which, under the circumstances, we do not think was an attempt to express an opinion to the' jury as to the general credibility of the witness as viewed or characterized by the court.
In this connection it may be said that the court gave to the jury specific and definite instructions, telling them that they were the sole judges of the credibility of the witness and the weight to be given to their testimony. A majority of us think that no prejudice resulted from what we have copied in the record on this point, because the court was explaining to the witness that it was not necessary for her to have a lawyer on a collateral issue. If the record had contained a statement to the effect that counsel for the defendant had expected the witness-to answer in the affirmative, then the result would be different, but we cannot know from the state of the record whether she would have answered “Yes” or “No,” and if she had answered no it would have ended the matter. We cannot go into the realms of speculation or conjecture as to what her answer might have been, and if the defendant expected it to be “Yes,” his counsel should have, in a spirit of candor to the court, so stated, and had the expected answer placed in the record. Not having done so, we do not think any prejudice resulted to the rights of the defendant.
The next- assignment of error relied upon foir a reversal of the judgment is that the court failed to instruct the jury that, if the defendant was not proved guilty beyond a reasonable doubt, they should find him not guilty. If the defendant wished a specific instruction on the question of reasonable doubt, he should have asked for it. We think the instructions given by the court fully submitted that question to the jury. In instruction No. 3 the jury was specifically told that, if it should find from the testimony beyond a reasonable doubt that the defendant, at the time and place mentioned in the indictment, willfully and maliciously cut the barbed wire fence of Frank McKinzie, it should find the defendant guilty. In the succeeding instruction the jury-Was fully instructed upon the presumption of innocence in favor of the defendant and told that this presumption ■ protects him from conviction until his guilt is established to the satisfaction, of the jury beyond a reason able doubt. Continuing, the court, in tbe same instruction, fully and fairly defined the term “reasonable doubt.” In instruction No. 5 tbe jury was fully and fairly instructed upon tbe credibility of witnesses and the weight to be given to their testimony.
Error is also assigned in tbe motion for a new trial upon certain remarks made by tbe special counsel for tbe State, in his argument to tbe jury, but this assignment of error has been abandoned by counsel for tbe defendant in their brief. Moreover, we are of tbe opinion that, when tbe remarks of special counsel for tbe State are considered in tbe light of the evidence introduced, they constitute no more than what was considered a reasonable deduction to be drawn from -the evidence.
It follows that tbe judgment should be affirmed.
Justices Wood and Sm:ith dissent because they think the remark of tbe judge as to tbe reputation of tbe witness was erroneous and prejudicial. | [
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McCulloch, C. J.
Appellant was convicted of the crime of grand larcency, alleged to have been committed by stealing an automobile (a Ford touring car) the property of H. S. Speer. The owner of the car lived at Tinsman, in Calhoun County, and the' car in question was stolen from his garage in Tinsman on the night of July 29-30, 1923. Speer testified that he missed his car from the garage the next morning, and that he followed the track from the garage to the town of Hampton, the county seat of Calhoun County, and thence to a ferry known as the Lee Ferry, on the Ouachita River near Cal-ion. He testified that he got to the ferry about eleven o’clock on the morning after the car was stolen, and that he there gave to the ferryman a description of the two men he had seen the afternoon or evening before, whom he suspected of being guilty of the theft. He testified that he saw no other track but that of his car in the bottom near the ferry. He also described appellant and another man with him, whom he said he saw in Tinsman the evening before the car was stolen. He identified appellant as one of the men he saw in Tinsman, and described the other man with him as being about thirty years of age, with “kind of red hair.”
Bud Lee, a witness introduced by the State, testified that he operated a ferry at Calion, and that, about daylight, or a little before daylight, on the morning of July 30, appellant and another man came to his ferry to be put across. He said that he identified appellant as being one of the men, and testified that the other man was about eighteen years old, and was much smaller in size than appellant. He testified that appellant crossed the ferry on the Sunday before in a car, and was accompanied by a woman. He also testified that the man he put across the river had on khaki pants, a yellow hat and a yellow shirt, and that the two men were traveling in a Ford car without a license. The witness did not attempt to state any marks of identification about the car, but, on the contrary, stated that he could not tell anything about the car except that it was a Ford car and had no license tag on it.
Several other witnesses identified appellant as being seen at Tinsman on the afternoon or evening before the night during which the car was stolen. These witnesses identified appellant, but differed somewhat in their descriptions of the young man or boy who accompanied him. Two of them, however, stated that appellant had on khaki pants, but that his hat and coat were white instead of yellow, as stated by witness Lee.
The car was found a few days after it was stolen, between Calion and Smaekover — about three-quarters of a mile from Smaekover. Appellant was arrested at Camden.
Appellant testified in his own behalf, and stated that he lived at Smaekover, where he had been following different occupations and employments. He testified that he was in -Smaekover on the night of July 29, and introduced witnesses to prove that he was there that night and was engaged in a game of poker. Another witness, Hollingsworth by name, was introduced by appellant, and he testified that he lived in Hampton, and that the Speer car was stolen by a man he had known 'by the name of “Two Gun Blondie,” who was now in the penitentiary • for holding up an oil camp. Hollingsworth testified that .he saw “Two Gun Blondie” and another man by the name of Jones with the car about three o’clock on the morning of July 30, 1923, and that they were asking the road to Smaekover.
It is earnestly insisted that the evidence is not sufficient to sustain the verdict, but we are of the opinion that there was sufficient evidence to warrant the submission of the issues to the jury.
The only other assignment of error relates to the ruling of the court in permitting the prosecuting attorney to ask witness Hollingsworth concerning the latter having been indicted for participating in the theft of one or more automobiles, This was done over the objection of appellant, and the error was duly assigned in the motion for a new trial.
Hollingsworth testified, as before stated, that he lived at Hampton, and that he saw two men, ‘‘ Two Gun Blondie” and Jones, with the Speer car at Hampton on the night it was stolen. This fact was inconsistent with the guilt of appellant, and, if the jury had accepted Hollingsworth’s statement as true, they should, and doubtless would, have acquitted appellant. In order to discredit Hollingsworth, the prosecuting attorney asked him the following questions: “Did you know these three little boys that stole cars and brought them across the ferry and delivered them to some of you fellows in Camden ? A. I never got one of them. Q. You were indicted for receiving one of these cars? A. Yes sir, and you dismissed it this morning.” On objection being made, the court overruled the objection, and stated that the testimony could be considered by the .jury in determining the credibility of the witness. This court has decided that, for the purpose of testing the credibility of a witness, he may be asked on cross-examination concerning collateral matters which may affect his credibility, but the party cross-examining is bound by the answer of the witness. Hollingsworth v. State, 53 Ark. 101. But it has also been held that a witness cannot be interrogated concerning a mere accusation or indictment for crime. Johnson v. State, 161 Ark. 111; Parnell v. State, 163 Ark. 316. If the inquiry had been concerning an accusation of crime in connection with the particular offense under which appellant was being tried, it would have been competent as tending to show bias on the part of the witness, but the question related to an altogether different offense, and it fell within the rule announced by our decisions that a witness cannot be discredited by showing a mere áccusation or indictment. The Attorney General suggests that there was no prejudice for the reason that the witness stated in his answer that the charge against him had been dismissed. The answer does not necessarily relieve the prejudicial effect of the inquiry, for the court, in effect, permitted the jury to consider the accusation in determining the credibility of the witness, and the mere fact that the charge had been withdrawn did not relieve the inquiry of its prejudicial effect. Hollingsworth was an important witness for appellant in connection with the testimony of other witnesses, who stated that appellant was in Smackover on the night the car was stolen. We have no means of knowing the extent to which the jury were influenced by the State being permitted to improperly discredit the testimony of the witness by showing that he had been indicted for another crime. The only way to eliminate the error is to grant a new trial, and the judgment is reversed, and the cause remanded for that purpose. | [
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Hart, J.,
(after stating the facts). This court has held that, where a contract for the purchase and sale of land calls for an abstract showing good title, the covenant will be construed to mean a good record title, and not such a title as may be shown to be good by oral proof, or affidavits and other writings not subject to registration. In short, it is not sufficient in such cases that the title is good in-fact, that is, capable of being made good by the production of affidavits or other oral testimony, but it must be good of record. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 193; and Bennett v. Farabough, 154 Ark. 193.
Counsel on both sides recognize this to be the settled rule in this State, but differ as to the effect of the language used in the contract under consideration in this case.
On the part of the plaintiff it is contended that the contract itself brings the case within the rule announced. On the other hand, it is contended by the defendants that, when the contract is construed as a whole, it shows that any defects in the title which could not be cured by record evidence might be supplied by affidavits and other oral proof.
The covenant in the contract on this point has been copied in our statement of facts, and reference will only be made to it here. The covenant provides that Meek shall deliver to the bank, for Green,- an abstract-of title covering said lands. It then provides that Green shall have five days within which to have the title examined by his attorney and a written opinion by him, pointing’ out the defects in the title, if any. The contract provides that Meek shall have thirty days within which to cure said defects in the title and to redeliver said abstract and curative work to said bank.
If the said abstract of title shows a good title in Meek at either of said times, then it is provided that the bank is to deliver the deed to Green and the money and notes . to Meek. If, however, the title to said property is not good, or not made good in Meek, 'as hereinbefore set out, then the deed and the money and notes are to be returned to the respective parties.
The majority of the court is of the opinion that this language authorizes Meek to supply defects in the title by affidavits and other oral proof. The covenant provides for a redelivery of the abstract and curative work to the bank. If it merely contemplated strengthening the abstract by record evidence omitted from it, it would not have been necessary to have used the phrase, “curative work. ’ ’
It is true that the next sentence uses the words, “if said abstract of title shows a good title * * * at either of said times;” but it seems clear that the words, “said abstract of title,” means the abstract containing the curative work. In short, said “abstract of title” refers to the words, “said abstract and curative work,” and shows that the parties intended to use the words, “abstract of title,” in an enlarged sense so as to include the curative Work.
This view is strengthened by the next sentence in the covenant, which provides that,' if the title to the said property is not good, or made good in Meek, then the bank shall redeliver the deed, money and notes to the respective parties entitled to the same. If the words, “curative work,” were not intended to mean anything except record evidence, they need not have been used. The parties would simply have provided that Meek should have thirty days within which to cure defects in the title oi' to amend the abstract and then redeliver the abstract to the bank.
If it was intended that record evidence alone should be used, such evidence would be part of the abstract of title, and it would not have been necessary to have used the words, “curative work,” at all. In short, if the contract meant that Meek was to furnish an abstract of title which, on its face, would show that he had a good title of record, then it should have merely given him additional. time to perfect or amend his abstract of title. The contract, in our opinion, when considered from its four corners, simply means that, if Meek had a good title to the lots at the end of the period of time given him for curing defects in it, the contract was to stand; and if he did not have a good title at that time, the contract was to be at an end.
By adverse possession, it is sufficient to enable the vendor to maintain an action for specific performance against the purchaser in the absence of a contract for a perfect record title. In such cases, however, the proof of the adverse possession must be readily available and of a character so* convincing as to leave no reasonable doubt of its sufficiency. Hinton v. Martin, 151 Ark. 343. Tested by this rule, we think the testimony in the case entitles Meek to a decree for specific performance.
D. Newton and O. E. Newton, his wife, ■ executed a deed of trust to the lots on February 21, 1891, to secure an indebtedness of $3,000. The fee in the lots was mortgaged. The deed of trust also contained a covenant that the lots were free from all incumbrances, and that the grantors would forever warrant and defend the title to the same.
D. Newton and Ora E. Newton were made parties to the foreclosure suit. "W. E. McRae became the purchaser at the foreclosure sale, and received a deed from the commissioner appointed to make the sale. The deed was acknowledged in open court, and McRae went into possession'of the lots by virtue of his deed, and remained in possession of them until he sold them.
According to the testimony of one witness, the lots were known as the Newton lots in 1878, and they then had a building on them.
Another witness stated that they were known as the Newton lots in 1872.
Affidavits of several witnesses were filed to the effect that they had known the lots for forty years, and some of the witnesses had known them for forty-five years. They all said that D. Newton and Ora E. Newton were in the exclusive possession of the lots until they were sold under the foreclosure decree in 1894; that W. E. McRea then went into possession of the lots, and that he and his grantees have been in the exclusive and peaceable possession of them ever since; and that none of the parties mentioned, or their heirs, have ever been insane.
The affidavit of Mrs. Ora E. Newton was also filed with the abstract of title. According to her testimony, the lots were in the peaceable and adverse possession of her husband, D. Newton, and herself for many years prior to the year 1894. She does not recollect how they acquired title to the property. She does recollect that W. E. McRea acquired title to the property in 1894, and since that time neither her husband nor herself nor any of tlieir children have had any claim or made any claim to said lots.
It appears that D. Newton is dead, but the affidavit of his son, R. D. Newton, was also filed: According to his testimony, all of the children of D. Newton and Ora E. Newton are still living, and all of them are more than thirty-five years of age, except two children who died in infancy. R. D. Newton is sixty-one years of age, and has been a resident of Camden all of his life. His father had been in the actual possession of said lots from about the year 1870 to the year 1893, when the lots were sold under a mortgage foreclosure decree and purchased by W. E. McRae. R. D. Newton stated further that it was a matter of family history that his father received a deed to the .lots from the city of Camden about the year 1870, in consideration of services rendered the city.
There is no dispute that all of these persons have had the actual and peaceable possession of-the lots during the years mentioned. No other person has ever made a claim of title to the lots during this time. The evidence to this effect is available, and there is but little room to doubt that Meek and his grantors have title to the lots by adverse possession. Hence all the requirements of the law as to the title by adverse possession, where specific performance is asked, have been met.
Therefore we are df the opinion that Meek was entitled to a decree of specific performance as prayed for by him, and, for the error in canceling the contract of purchase and sale- between him and Green, and ordering the restoration of the consideration to the latter, the decree will be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. It is so ordered. | [
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Wood, J.
Blanche Bradley Dunn instituted this action on October 13, 1925, by filing her petition in the Union County Probate Court, in which petition she set up that J. P. Bradley died on the 18th day of November, 1913, leaving his widow, Ida Bradley, and the petitioner, his only child and heir at law; that an instrument purporting to be the last will and testament of J. P. Bradley, hereafter called Bradley, was file'd in the office of the clerk of the probate court soon after the death of Bradley, and was admitted to probate on the 13th of April, 1914; that Bradley gave his wife, Ida, all his property, real and personal, during her life, and bequeathed and devised to Robert William Bradley, an adopted son of Ida Bradley, all Ms property, subject to tbe life estate of Ida Bradley; tbat he gave to the petitioner the sum of only $5; that one Frank Murph was named as the executor, and qualified as such; that the widow took possession of the property and continued in possession thereof until her death. After her death W. J. Murph qualified as administrator of her estate, and, by order of the probate court, paid the surplus of funds remaining in his hands as administrator to John Murph, the guardian of Robert Bradley, a minor. The petition then sets forth that, under the terms of the will, a large .sum of money went through the hands of the guardians of Robert Bradley and, after he became of age, into his hands. The petitioner sets forth that Bradley, her father, was twice married, she and her deceased brother being the only children of the first marriage; that, after the death of her mother, her father married Ida Bradley; that her stepmother, through hatred of the petitioner and by undue and sinister influence, induced petitioner’s father to disinherit her. She alleged, in substance, that, at the time the will was made, her father was so weakened by disease and narcotics given him to relieve his suffering and to enable him to sleep that he did not have testamentary capacity; that her stepmother took advantage of this condition and, by reason of the undue influence and fraud and duress practiced upon petitioner’s father, he was induced to execute the purported will which had been admitted to probate; that she had not discovered that the purported will was executed under the above conditions and circumstances until a few weeks before the filing of her petition; that the purported will was not executed and signed in the presence of attesting witnesses, and was not attested as the law requires. She further sets forth that, at the time of the probate of the will, petitioner resided in Calhoun County, and was not present when the application for probate was made, and had no notice of the proceedings until more than one year after the probate of the will. She alleged by an amendment to her petition that the filing of the paper purporting to be the last will and testament of Bradley-under the circumstances was a fraud upon the court because the beneficiaries under the will knew at the time of the fraud, duress, and undue influence that had been practiced upon Bradley to induce him to sign the paper purporting to be the will, and they knew at the time the paper was executed that Bradley did not have the mental capacity to mlake a will. Petitioner prayed that Robert Bradley and his former guardians be summoned into court and that the former probate of the will be set aside and held for naught, and that Robert Bradley and the former guardians be required to account to the petitioner for all money and property of every description which had come into their hands from the estate of 'Bradley and his wife, Ida, and for all proper relief.
Mary Saunders and Percy Saunders intervened, setting up that they were heirs-at-law and next of kin of Robert ¡Bradley and the owners of his estate. They filed a demurrer to the petition; also R. E. Wood, a former guardian, filed a demurrer to the petition, alleging: icl. That the petition shows on its face that this court is without jurisdiction of the subject-matter mentioned in the said petition. '2. For the reason that the petition does not state facts sufficient to warrant the court in setting aside the judgment rendered by it herein on April 33, 1911. 3. The petition shows on its face that Blanche Bradley Dunn is barred by the statute of limitations.”
The probate court sustained these demurrers, and the petitioner refused to plead further, and the petition was dismissed. She duly prosecuted her appeal from the judgment of the probate court to the circuit court. In the circuit court the cause was dismissed as to R. E. Wood, the former guardian, and Robert Bradley, whose disability of minority had been removed by the court, was authorized to defend the action in his own name, and he filed a demurrer in which he set forth the following :
“1. The petition does not allege facts sufficient to give the probate court jurisdiction of this matter, and, the probate court having no jurisdiction, none was acquiréd by the circuit court upon appeal. 2. That the petition does not state facts sufficient to constitute a cause of laotion against the appellee. 3. That the petition does not allege facts sufficient to show that a fraud was perpetrated upon the probate court of Union County in obtaining the order of April 13, 1914, admitting to probate the will of J. P. Bradley, deceased. 4.' That the petition shows upon its face that the appellant has not acted with that degree of diligence required of her by law in moving the court to set aside the order of the Union Probate Court of April 13, 1914. 5. That the petition shows upon its face that the appellee and Ida Bradley have had the control, management and possession of the property involved in this controversy for a period of more than seven years, under claim of ownership, and have acquired good title to said property by limitations, even if it should be found that the will of J. P. Bradley, deceased, is void. 6. That the petition shows upon its face that appellant’s cause of action herein, if any she has, was in existence when act No. 10 of the Acts of the General Assembly was approved on February 20, 1919, and that she failed to institute this suit within one yeiar from the passage of said act, and she is therefore barred by said act from maintaining this action.”
The court sustained the demurrer on the ground “that the facts stated in said petition are not sufficient to constitute a cause of action against the respondent, Robert William Bradley.” The petitioner refused to plead further, and stood upon her petition, whereupon the court dismissed her petition, from which judgment is this ¡appeal.
1. There is an allegation in the petition “that said purported will was not signed by the said J. P. Bradley in the presence of each of the attesting witnesses, both being present together, and that said attesting witnesses did not attest said will at the request of the testator.” The original will itself is brought into the record as a part of the pleadings and the record of its probate, and these show that the will bore the signature of the testator, J. P. Bradley, and the signatures of two witnesses, as the statute requires, and the order of the court showing that, after examination and proof, the will was found to be regular and was admitted to probate and ordered recorded.
2. In the amended petition it will be observed that the petitioner alleged that the application for probate and the hearing and proceeding had was a fraud upon the court, the beneficiaries therein well knowing at the • time that fraud, duress and undue influence had been practiced upon the said J. P. Bradley to induce him to sign said paper, and that, at the same time, the said parties well knew that the said testator was not of sound and disposing mind and memory. The probate court is a court of record, and its judgment probating a will in common form, under § 10526 of C. & M. Digest, is, after the lapse of its term, a final judgment until vacated or set aside in some manner authorized by law. One of the grounds for vacating a judgment of the court after the expiration of the term is “for fraud practiced by the successful party in the obtaining of the judgment or order.” § 6290, 0. & M. Digest, subdiv. 4.
The will named Murph as executor. It was the moral, if not the legal, duty of the executor to present the will for probate. In Schouler on Wills, vol. 2, § 730, it is said: “The first and most pressing duty of every executor nominated as such is to have the will, by virtue of which he claims the rights of representative, admitted to probate.” And in 40 Cyc., at page 1226, it is said: “There is a moral obligation, if not an imperative legal duty, resting upon the person named in the will as executor to produce the will for probate.” See also 28 R. C. L., § 361. We have no statute declaring it to be the duty of the executor to present the will for probate, but, in the absence of a statute, such at least would be his moral duty. There is no allegation in the petition as to who filed the will for probate, but there is an allegation that, after the probate of said purported will, the said Frank Murph, executor, qualified as such, etc. We cannot assume, in the absence of allegation, that the beneficiaries named in the will presented the same, land that the same was not presented for probate by the executor. The above allegation rather tends to show that the executor presented the will for probate. We only know from the record that proof was made and the will, on examination, was found regular and duly admitted to probate.
Now, the beneficiaries named in the will were Ida Bradley and Robert William Bradley. It is not alleged that they, knowing’ that the testator, at the time the will was executed, did not have sufficient mental capacity to make the will, presented the will for probate and withheld and suppressed such fact from the court; nor is it alleged that the executor presented the will knowing such fact, and suppressed and withheld the same from the court at the time the will was admitted to probate; nor is it alleged that the beneficiaries land the executor, having knowledge of such, entered into a collusion to suppress and withhold such fact from the probate court at the time the will was presented for probate, and that they did withhold such fact' from said court. On the contrary, the proof of the will by the clerk, which was made an exhibit to the petition herein, recites as follows: “C. W. Smith and D. R. Young, to me well known, who, being duly sworn, slay: That they are the subscribing witnesses to the foregoing instrument of writing, purporting to be the last will and testament of J. P. Bradley, deceased; that .said instrument was executed at the time, place, and by the person therein named; that said J. P. Bradley, the testator, was, at the time of signing said instrument, upwards of twenty-one years of age, ánd of sound and disposing mind and memory, and that, in the presence of both of these affiants, he declared it to be his last will and testament, and subscribed his name thereto in the presence of both of these affiants; that, at the request of said testator, affiants wrote their names to his said will in his presence and in the presence of each other; that the subscriptions to the foregoing instrument of writing are genuine, and that the said instrument which is hereto attached is the identical one that affiants so witnessed and saw the said J. P. Bradley sign.”
The above recital, in connection with the further recital in the judgment of the court admitting the will to probate, that “same is found regular and proof thereof having been made,” must.be considered as part of the allegations of the petition. So, taken all together, we are convinced that the allegations of the petition do not show that any fraud was practiced upon the court by the successful party in obtaining its judgment admitting the will to probate.
This court, in a long and unbroken line of eases, has held that the fraud for which a judgment will be vacated by the court in which same was rendered must be a fraud practiced by the successful party in the procurement of the judgment itself. A few of the numerous cases are as follows: Old Amer. Ins. Co. v. Perry, 167 Ark. 200, 266 S. W. 943; Pugh v. Martin, 164 Ark. 423, 262 S. W. 308; Estes v. Luckey, 133 Ark. 97, 201 S. W. 815; Cassidy v. Norris, 118 Ark. 449, 177 S. W. 10; Burbridge v. Gotsch, 107 Ark. 136, 154 S. W. 200; Hall v. Cox, 104 Ark. 304, 149 S. W. 80; Reaves v. Conger, 103 Ark. 446, 147 S. W. 438; Gray v. Parkes, 94 Ark. 39, 125 S. W. 1023. In the last case (Gray v. Parkes) it is said:
“The fraud that would give a court of chancery jurisdiction to set aside the judgment of the probate court admitting the will to probate would be fraud that' was practiced upon the court in obtaining the judgment. The allegation that the said Rufus B. Gray, by falsely and fraudulently' representing to the probate court that the said will was duly executed by and was the will of Jesse L. Gray, deceived the probate court, etc., was not sufficient to show that a fraud was practiced on the court in obtaining the probate of the will, for other allegations of the complaint show that the will was executed by Jesse L. Gray. The allegations of the complaint, taken together, show that fraud wlas practiced on the testator in procuring the will, but not on the court in admitting it to probate.”
While the above rule was announced in cases originating in circuit and chancery courts, yet there is no reason why the same rule should not apply to judgments of probate courts where the ground for setting aside the same is alleged to be fraud in procuring the judgment.
3. The allegations of the complaint setting forth the facts which the complaint alleged constituted fraud and duress upon the testator causing him to make the will, and the facts which she alleged constituted a lack of testamentary capacity, it is unnecessary to set out in detail. We have reached the conclusion that these allegations are sufficiently well pleaded on demurrer to constitute a cause of action. These facts, if true, would justify the probate court, if it had jurisdiction of the cause, in setting aside its judgment probating the will. We are therefore brought, in the next place, to the issue as to whether or not the probate court, under the facts alleged in the petition, had jurisdiction.
Lelarned counsel for the appellant contend that the probate court had jurisdiction to set aside its former judgment admitting the will to probate, notwithstanding the fact that eleven and a half years had elapsed since the judgment was rendered. In a very able brief they cite authorities to the effect “that the probate of a will is governed by the rules of ecclesiastical law, except where a change by statute, or where the .spirit of our institutions makes the application of them impossible or unwise; and that the proceeding is not a proceeding either at common law or in equity.” Lillard v. Tolliver, 154 Tenn. 304, 285 S. W. 576. See also Waters v. Slickney, 94 Mass. (12 Allen 1), 90 Am. Dec. 122; Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714; Cousens v. Advent Church, 93 Me. 292, 45 A. 43; Vance v. Upston, 64 Tex. 266; Bowen v. Johnson, 5 R. I. 112, 73 Amer. Dec. 49; Md. Trust Co. v. Hartford, 104 Me. 566, 72 A. 745, 129 Am. St. Rep. 415.
Counsel deduce from the above authorities that probate courts have power in this State to grant the relief which the appellant seeks because, they say, neither the Constitution nor the statutes of the State prohibit it, and therefore these courts have the right to exercise such power as a necessary implication from the general powers conferred upon them under the Constitution and statute giving them original jurisdiction in matters relating to the probate of wills. Article 7, § 34, Constitution of 1874, § 2'256 C. & M. Digest. Counsel say that the issue here presented is one of first impression in this State, and they urge us to adopt the holding of the cases cited by them on this issue from other jurisdictions, contending that to hold otherwise in this case would be violative of the 14th Amendment to the Constitution of the United States, commonly known as the due process clause, and also violative of § 13, art. 2, of the Constitution of the State of Arkansas of 1874, to-wit: “Every person is entitled to certain remedy in the laws for all injuries or wrongs he may receive, in his person, property, or character.” We cannot concur in these views of counsel and cannot heed the pronouncements of courts of other jurisdictions on this issue, for we believe that we are precluded from ao doing by previous decisions of this court. While it is true that the precise question has not been decided, this court, in effect, and for all practical purposes, in at least two cases has ruled contrary to the contention of counsel and the decisions of the other State courts named.
In Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373, we said: “It is well to remember that these tribunals (probate courts) have only such special and limited jurisdiction as is conferred upon them by the Constitution and the statutes, and can only exercise the powers expressly granted, and such as are necessarily incident thereto. They have no general equity jurisdiction.”
Section 2258 of C. & M. Digest provides: “Appeals-may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof,” etc. This court, in Hogane v. Hogane, 57 Ark. 508, 22 S. W. 167, construing a similar statute, § 1386, Mansfield’s Digest, held (quoting syllabus): “A judgment of the probate court admitting a will to record is a final order or judgment from which an appeal lies at any time within twelve months after the rendition thereof.”
In Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S. W. 536, we held (quoting syllabus): “Where a will is admitted to probate in the common form in the probate court, ivithotbt notice to interested persons, they may make themselves parties by perfecting am appeal to the circuit court in order to contest the will.”
In Jenkins v. Jenkins, 144 Ark. 419, 222 S. W. 714, the facts were that P. Gr. Jenkins died, leaving a will, which was admitted to probate in common form without notice. Two of his children who were minors at that time sought to contest the will on the ground of undue influence in its execution, and they claimed that, on account of their minority, they had the right to have the will probated in solemn form, or, in other words, to contest it, although more than one year had elapsed since the will was probated. In thiat case we quoted from Ouachita Baptist College v. Scott, supra, in part as follows:
“If the will has been probated in the more solemn form (that is, upon notice to all interested to appear in the probate court at the probation), then, of course, this particular question does not arise. If, however, as in the present case, the probation is in the common form, and parties interested have not been summoned to appear and make objection, then we think it but a fair and reasonable construction to put on the statute that parties interested may file the affidavit provided in the statute within the twelve months allowed, and thus make themselves parties to the probate proceedings for the pur pose of taking an appeal from the order of probation to the circuit court, wherein, in such case, the real contest of the will may be made on the grounds .set forth in their petition, which, of course, will necessarily show their relationship to the deceased. This ruling is one of first impression in this court, but is in harmony with the suggestion contained in all of our more recent decisions, although these decisions contain mere suggestions or intimations on the subject, and nowhere decide the particular question. Furthermore, since the decisions of this court have left no other remedy to the contestant, who has not been given a day in court, this ruling meets the requirements of the constitutional provision which declares that‘ every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive, in his person, property or character.’ ”
After quoting the above language, this court (in Jenkins v. Jenkins) continues:
“The statute under construction in that case is the one applicable here, and it contains no saving clause in favor of infmits, and the court can make none. A saving from the operation of the statute for the disability of minority must be expressed, or it does not exist. Hence it has been held that, where the time for contesting probated wills is limited by statute and there is no saving clause in favor of infants, none exists. (Citing authorities).”
In Robertson v. Robertson, 144 Ark. 556, 223 S. W. 32, we said: “The right to contest a will is not an inherent or constitutional right. Such a right is purely statutory, and does not exist independent of statutory authority. ’ ’ The validity of State statutory proceedings admitting wills to probate in common form is recognized by the Supreme Court of the United States in O’Callahan v. O’Brien, 199 U. S. 89, 25 S. Ct. 727, 50 L. ed. 101, and in Bent v. Thompson, 138 U. S. 116, 31 S. Ct. 238, 34 L. ed. 902.
To grant the relief which appellant seeks by the petition herein, it seems to us we would have to overrule the eases of Ouachita Baptist College v. Scott and Jenkins v. Jenkins, supra. These decisions have become rules of property in our State, and to overrule them would have a far-reaching effect and be disastrous to property rights that may have been built upon them.
The judgment of the trial court sustaining the demurrer to appellant’s petition and dismissing the same is correct, and it is therefore affirmed. | [
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McCulloch, C. J.
Appellant entered into a written contract with a road improvement district in Faulkner County to improve a certain highway known as the Conway and Damascus road and the work of clearing, grading and pipe-hauling* was subcontracted by appellant to appellees, a copartnership.. There was a written contract between appellant, and appellees, specifying the work to be done, the unit prices therefor, and the time within which it was to be done. It was provided in the contract between appellant and appellees that the contract between appellant and the road improvement district should be “made a part of this contract, the same as if set out, with the exception of the unit prices. ’ ’ The contract also provided that appellees should push the work to a rapid completion not later than July 1, 1921, and that time was to be of the essence of the contract. The contract between appellant and the road improvement district provided that the improvement should be done under the supervision of the engineer of the district and subject to his approval and acceptance.
Appellees commenced this action in the circuit court of Faulkner County, alleging that they had completed their work in accordance with the contract, that the work had been accepted, and that appellant owed appellees therefor the balance demanded in the sum of $9,562.21. Appellant furnished to appellees a statement showing a balance due under a former statement of $6,297.21, which had been held back as retained percentage, and the further sum of $3,265, subsequently earned in completing the contract, making a total of $9,562.21, the amount claimed by appellees, which was allowed under the decree of the court.
Appellant’s statement also set forth items aggregating $9,199.05, claimed for expenses paid out by appellant in completing the work according to the requirements of the engineer of the district, and the statement charging these items to appellees shows a balance due to appellees of $363.16. The controversy arises over the items of credit claimed by appellant.
Appellant filed its answer denying that it was indebted to appellees in any sum, and moved that the cause be transferred to the chancery court, which was done without objection, and there was a reference to a master, before whom the testimony was taken, and, after the report of the master came in, the court heard the cause on the testimony thus taken and rendered a decree, as before stated, in favor of appellees for the recovery of the sum of $9,562.21, which was the amount conceded by appellant if the credits claimed be disallowed.
Each of the three appellees testified in the ease, as well as other witnesses introduced by them, and it appears from this testimony that appellees completed their work within the time specified in the contract, except a very small portion, which was pointed out by the engineer, and subsequently performed; that they left their equipments on the ground, ready to do any further work required by the engineer, but that, on October 24, 1921, the engineer went over the work with appellees and accepted the work as completed, whereupon appellees removed their equipment.
Appellees and the other witnesses introduced by them also testified that the work was done in accordance with the contract and that they were not chargeable with the items claimed as credit on appellant’s account. They disputed each of the items,- and introduced testimony tending to show that they were not proper credits.
Appellant claimed, and undertook to prove, that in April, 1922, the engineer of the district required it to do additional work in the completion of the grading and in repairing damages done to the grade during the winter, and that appellant in turn notified appellees to do this work, that appellees failed to do it, and that it was done at the expense of appellant. There is a conflict in the testimony concerning these items, but, in some respects, the proof is undisputed. Under the contract appellees had nothing to do with the surfacing of the road, as that work was subcontracted to another concern and afterwards taken over by appellant. Appellees were only required to do the work of clearing and grading and hauling and laying the metal piping. If, as contended by appellees, they did their work in accordance with the contract, which was accepted by the engineer, they were not responsible for any damage caused by the delay in doing the grading. Some of the witnesses testified that, in the spring of 1922, it was necessary to do a lot of work to restore the grades on account of damage done during the winter. Witnesses testified that, where the damage was done by unusual rains, the expenses was to fall upon the district, and where the damage was done by ordinary wear of the weather, it was to be repaired by the principal contractor.
Appellant introduced in evidence the written notice from the road improvement district, dated April 14, 1922, the notice being to the effect that the surfacing of the road had not been properly carried on, and that the principal contractor was “not taking proper care of the dump, especially that portion through the Cadron bottom.” Appellant also introduced the notice- claimed to have been sent by it to appellees, dated April 20, stating that the grading was found to be in a very unsatisfactory condition. One of the witnesses for appellant testified that this notice was mailed to appellees, but each of the appellees testified that no such notice was ever received.
It will be observed that there is a slight difference between the notice from the district to appellant and the one from appellant to appellees. The first notice complains that appellant had not been taking proper care of the dump through the Cadron bottom, which implies deterioration, whereas appellant’s notice to appellees implies that the work had not been satisfactorily done. Now, one of the principal items -of -credit claimed by appellant is the sum of $1,048.83 for labor and additional work on the Cadron levee. The testimony adduced by appellees shows that this deterioration in Cadron bottom was on account of heavy and unusual rains, and, according to the undisputed evidence, that kind of damage was to be repaired at the expense of the district itself. In fact, the undisputed evidence is that appellant was paid in full ¡by the district for all this work under a distinct agreement that it should settle with all the subcontractors: There is other evidence directly to the point that some, if not all, of the work for which credit is claimed was done under what is termed “force account” and paid for by the district. In fact, many of the items of appellant’s claim are directly disputed by testimony adduced by appellees. For instance, there is an item of $950.68, claimed to have been paid by appellant to Bolls & Mc-Clendon, subcontractors under appellees, but, after one of those parties testified that nothing had been paid to them by appellant, it was admitted that this item should be eliminated. There is another item of $1,523.28, claimed to have been paid to Hargrove & Stanton, which is disputed by Stanton, who was introduced as a witness, and also another item of more than $1,000, claimed to have been paid' to those parties for work on the Cadron levee, whereas Stanton testified that they were paid not exceeding $750, and that this work was done under force account and paid for by the district. There are other circumstances and contradictions in the testimony which it is unnecessary to relate in detail. Suffice it to say that there was a conflict in the testimony, and we cannot say that the finding of the chancellor is not supported by a preponderance of the evidence.
Decree affirmed.
Humphreys, J., not participating. | [
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Smith, J.
This appeal comes from a judgment in appellee’s favor which was rendered upon a verdict which the court directed the jury to return: In testing the correctness of the action of the court in directing a verdict in appellee’s favor we must give to the testimony tending to support appellant’s cause of action its highest probative value, and the facts may therefore be stated as follows.
The suit was brought to recover damages under §§ 7395 and 7396, C. & M. Digest. These statutes read as follows:
“Section 7395. If any mortgagee, his executor, administrator or assignee shall receive full satisfaction for the amount due on any mortgage, he shall, at the request of the person making satisfaction, acknowledge satisfaction thereof on the margin of the record in which such mortgage is recorded.
“Section 7396. If any person thus receiving satisfaction do not, within sixty days after being requested, acknowledge satisfaction as aforesaid, he shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money, to be recovered by civil action .in any court of competent jurisdiction.”
Appellant alleged and offered testimony tending to show that, immediately after the affirmance of the decree of the Hot Spring Chancery Court in the case of Barnett v. Bank of Malvern (an unreported case), he applied to the cashier of the bank to pay the indebtedness, secured by the mortgage, which we held in that case to be an outstanding lien on the land, which appellant had purchased subject to the bank’s mortgiage. The decree there appealed from had directed the foreclosure of this mort gage. Appellant testified that the cashier demanded a sum $11 in excess of the amount due the bank and secured by the mortgage, and that he then applied to the clerk of the chancery court for a statement of the correct amount due under the decree, including the costs and the interest, and that the clerk advised him that the amount due the bank was $519.40, which, sum he tendered and paid to the attorney of record for the bank, after giving separate checks for the costs of the suit. The bank’s attorney thereupon entered upon the margin of the records of the chancery court the following indorsement: “This judgment is satisfied in full, this 9th day of March, 1927. D. D. Glover, attorney for plaintiff.”
Thereafter appellant requested the cashier of the bank to enter satisfaction of the mortgage upon the margin of the record thereof, and, after waiting sixty days for this to be done, his request not having been complied with, he brought this suit to recover damages, under the sections of the statute quoted above.
Appellant testified that he negotiated a sale of the property described in the mortgage, which he was unable to consummate because of the failure of the bank to satisfy the mortgage of record. On the day after the institution of this suit the cashier of the bank properly satisfied the mortgage record.
Appellee insists that the judgment of the court below should be affirmed for the following reasons:
(1) That the suit was not brought in good faith, as the testimony shows that appellant called a witness to' whom he privately gave directions to make a note of the date upon which the request to satisfy the mortgage was made. This witness testified that he was present when appellant made this request of the cashier of the bank, and that the witness made a note of the date upon which this demand was made. (2) That the payment made by appellant to the clerk was $2.21 less than the amount actually due the bank. (3) That the notice was insufficient. (4) That the satisfaction of the decree of fore closure was a substantial compliance with the statute, inasmuch as the mortgage -lien was merged in the.lien of the decree.
The testimony does show an apparent intent on appellant’s part to sue for th,e penalty at the time he made the demand for the satisfaction of the mortgage, and that he brought this suit at the earliest date possible. But that fact does not constitute a defense to this suit. It is the duty of the mortgagee, or his assignee, at the request of the person making satisfaction, to acknowledge satisfaction .thereof on the margin of the record in which such mortgage is recorded, and, if this is not done, a cause of action arises, because the statute gives it, and it is no defense thereto that the person making the satisfaction was prompted by a mercenary motive. In this connection it may be said that appellant was the proper person to make this request, although he was not the mortgagor, as he had bought the property subject to the mortgage. In the case of Johns v. Rollison, 152 Ark. 52, 237 S. W. 448, in construing the statute above quoted, it was said: “In other words, our statute penalizes the ones receiving satisfaction for not satisfying the record, upon the request of those making satisfaction. The statute, of course, means interested parties, not volunteers. Appellant was an interested party, and not a volunteer, and the bank was fully advised of that fact and the nature of appellant’s interest through the previous litigation involving this mortgage.
Appellee insists that appellant did not pay the sum due the bank and secured by the mortgage. It is, of course, essential that the mortgagee be paid the full amount due under and secured by the mortgage before a cause of action could arise under the statutes quoted. However, if the bank, or its authorized agent, accepted the sum tendered as full payment of the balance due, then the duty to satisfy the mortgage arose, and it would be no defense to say that the tender was insufficient, there being no contention that appellant had deceived the bank in this respect. In other words, if the hank voluntarily elected to accept in full payment of the mortgage indebtedness a smaller sum than the amount actually due, it could not thereafter be heard to say that the indebtedness had not been paid.
Upon the question of the form of demand which should be made upon the mortgagee, it may be said that the statute does not prescribe how the demand shall be made, as it provides only that satisfaction shall be made “at the request of the person making satisfaction.” In the case of Johns v. Rollison, supra, the request to satisfy was made “through the medium of a letter,” and this was treated, without discussion of the subject, as a sufficient demand to comply with the statute. "We' are therefore of the opinion that a demand to satisfy is sufficient which calls to the attention of the mortgagee the fact that the indebtedness secured by the mortgage has been paid, and requests, in consideration of that payment, that satisfaction of the mortgage be made. The statute does not require a written notice, but makes a “request” sufficient, and this request may be either oral or written.
It is true the attorney for the bank indorsed upon the margin of the decree of the chancery court the payment in full of the indebtedness secured by the mortgage the foreclosure of which was there decreed, and it is true also that this indorsement could have been shown in bar of any action on the part of the bank to -foreclose or otherwise proceed under that decree. But that indorsement did not comply with the requirements of the statute quoted. The purpose of the statute was to require that the record showing the mortgage óf record should show also its satisfaction, so that one' examining the records might be advised that the lien of the mortgage had been satisfied. • ■ ■ ■
At § 354 of the chapter on Mortgages, in 19 R. C. L., 548, it is said: “Although there-is some conflict oh the question, the weight of authority favors the doctrine that a decree of foreclosure does not merge the lien of the mortgage until it has been consummated by sale - and satisfaction. This is in harmony with settled general rules, because a mortgage lien is extinguished only by payment or release.” Among the cases cited in the note to the text quoted is that of Ford v. Harrison, 69 Ark. 205, 62 S. W. 59, 86 Am. St. Rep. 192, in which case the syllabus reads as follows: “While the general lien of a decree continues in force as to the judgment debtor’s land only three years from the date of the decree, unless revived, the lien of a mortgage on land, enforced by decree, doeá not lapse after three years from the date of the decree.”
The indorsement of the satisfaction of the decree of foreclosure would,:of course, prevent the bank from proceeding thereunder, but the payment of the indebtedness, without this indorsement, could also be pleaded in bar of any action on the part of the bank to sell the land. But the statute contemplates that the record 'which shows the existence of the mortgage shall also show its satisfaction, and that this evidence of satisfaction shall be indorsed upon the margin of the mortgage record. The satisfaction of the decree of foreclosure was not a compliance with this statute, as the mortgagor was entitled to have the mortgage record satisfied.
We conclude therefore that the court was in error in directing a verdict in appellee’s favor, and the judgment of the court below must therefore be reversed,, and it is is so ordered. | [
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Hart, J.,
(after stating the facts). The parties to this suit concede that the written instrument copied in our statement of facts, which is the basis of this lawsuit, is an option contract, within the rule laid down in Indiana & Arkansas Lbr. & Mfg. Co. v. Pharr, 82 Ark. 573, and we shall so treat it.
The consideration recited in the option contract was one dollar, and the defendants did not complete the contract by the payment of the $6,000 recited in it before the plaintiffs withdrew their offer.' There is some conflict in the authorities as to whether or not there must be a valuable consideration for the option to render it more than an offer revocable before acceptance, but this court has recognized the rule to be that a recited consideration of one dollar is merely nominal, and that the offer may be revoked at any time before it is accepted. Jones v. Lewis, 89 Ark. 368.
In the earlier case of Greenfield v. Carlton, 30 Ark. 548, the court recognized that, in a complaint to enforce the specific performance of a contract for the sale of land, among other things, it was necessary to allege the execution of a binding agreement for a sufficient consideration.
Again, in Ashcraft v. Tucker, 136 Ark. 447, the court said that it is well settled in this State that an option contract, based upon a valuable consideration, does not lack mutuality, and that equity will compel the specific performance of such a contract when it has been accepted by the party seeking to enforce it.
The distinction between an option for the sale of land for a nominal consideration and one for a valuable consideration is that the former is merely an offer to sell and may be withdrawn at any time before acceptance, upon notice to the vendee; but in the latter, where a valuable consideration is paid for the option, it cannot be withdrawn by the vendee, before the expiration of the time specified in the option. Ide v. Leiser (Mont.), 24 Am. St. Rep. 19, and Cummins v. Berners (Va.), 106 Am. St. Reps. 881.
The reason for the distinction in the two classes of cases is clearly stated by Judge Lurton in Bradford v. Foster, 87 Tenn. 4, as follows: “Before acceptance such an agreement can be regarded only as an offer in writing to sell upon specified terms the lands referred to. Such an offer, if based upon no consideration, could be withdrawn by the seller at any time before acceptance. It is the acceptance, while outstanding, which gives an option not given upon a consideration vitality. If, however, an offer to sell is made in writing, and, for a valuable consideration, time is given within which it shall stand open for acceptance, such an option is irrevocable. It is based upon a consideration, and has all the elements of a contract. Such a contract is a conditional agreement. Upon the vendee accepting the offer, a contract of sale between the parties is complete.”
The contract in the case at bar was a mere option given by Charles Richardson and wife to C. B. Hogan and W. H. Strong to purchase an undivided one-half interest in all of the oil, gas and other minerals in 240 acres of land, and there was no consideration to support the contract until Hogan and Strong should accept the offer of Richardson unless one dollar should be considered a valuable one. It would be therefore in the power of Richardson to withdraw his offer before it was accepted if the consideration was nominal, and he in effect did withdraw it by bringing the present suit.
It was conceded that an option to purchase land without consideration may be withdrawn at any time before acceptance, and that an option founded upon a valuable or adequate consideration cannot be withdrawn before the time specified therein has expired. This is the settled rule in this State, as will be readily seen by reading our cases cited above.
It is insisted by counsel for appellant, however, that the sum of one dollar named in the option contract is a valuable, or at least an adequate, consideration. The authorities on this point are in direct conflict, and we do not deem it necessary to cite or review them in this opin ion. We consider that the better reasoning and the right of the matter is that one dollar is not an adequate consideration for such an option. It is merely a nominal consideration, and should be disregarded by a court of equity. It cannot be said that the consideration for the option extends to and includes the purchase price named therein. The persons to whom the option was given were not to take possession of the property, nor were they to make any improvements thereon. The sole consideration for the option was the sum of one dollar.
In this respect the case. is different from that of Lawrence v. MaHioney, 145 Ark. 310. There the court had under consideration an oil and gas lease which recited a consideration of one dollar, and an agreement by the lessee to drill an oil and gas well within a stipulated time. The obligation on the part of the lessee to drill the oil and gas well within a given time, or to pay an additional rental, constituted a substantial consideration to support the lease contract. The object on the part of the lessor was to have his property developed as oil and gas property, and the lessee agreed to develop it by drilling an oil and gas well on it.
It is not so in the case at bar. The option stated the terms and conditions on which the owner was willing to sell an interest in his land; but it was a mere proposal to sell the land until its terms were accepted. The holder of the option was not bound to do anything except to pay one dollar. This consideration was purely nominal and was infinitesimal in amount when compared with the value of the right granted.
It results from the views we have expressed that the court was right in dismissing the cross-complaint for want of equity and in granting the prayer of the complaint.
Therefore the decree will be affirmed. | [
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Kirby, J.
If this intervention, as appears to be the case from the allegations of the petition, be considered a proceeding to set aside and cancel the mortgage from the Port Smith Spelter Company to the American Zinc Products Company as fraudulent and giving a preference to the creditors of an insolvent corporation, it must fail, as not having been commenced within 90 days after the execution of the mortgage complained of, as the law requires, since the mortgage sought, to be foreclosed was recorded on June' 24,1924, as alleged in the intervention, which was not filed until October 14, 1925, more than a year after the execution and recording of the mortgage. Sections 1799 and 1800, C. & M. Digest; Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880.
The chancellor held the mortgage void as fraudulent, denied appellant’s right to foreclosure thereof, and took charge of the mortgaged property by his receiver, under a $2,000 bond, and directed a sale thereof and that the receiver make prompt report of his action in the matter, and apply for orders with respect to the disposition of the proceeds realized from such sale, and retain jurisdiction to make orders for distribution thereof. The chancellor was without authority to order a sale of the property for winding up its affairs, as an insolvent corporation attempting, by the execution of the mortgage, to give preference to one of its creditors, as he held to be the case, since the law relating to the dissolution and winding up of an insolvent corporation, under such conditions, does not apply to a foreign corporation authorized to do business in the State. Dickey v. S. W. Surety Insurance Co., 119 Ark. 17, 273 S. W. 398, Ann. Cas. 1927B, 634; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31.
The evidence not only does not support the court’s findings that the mortgage was executed without consideration and to hinder and delay creditors in the collection of their debts and in the enforcement of their rights, but is contrary thereto, the great preponderance thereof being against such finding. The testimony is voluminous, but, notwithstanding strenuous efforts made to show that improper motives prompted the execution of the mortgage between the two corporations, we do not find anything in the evidence warranting the conclusion that the transaction was tainted with fraudulent intention, or that the effect of it was to hinder and delay creditors of the mortgagor corporation. It was not shown that there were any other creditors, or that the mortgagor corporation was indebted except to the mortgagee. The intervener was not a creditor of the mortgagee corporation in fact, but only had an alleged claim for damages to his lands, because of the operation of its plant, and for securing the enforcement of any judgment recovered an attachment had been levied, after the execution and recording of the mortgage, upon the mortgaged property. His claim was only for $16,000, and upon the first hearing thereof a mistrial resulted. Certainly the court could not have found necessity for denying the foreclosure of appellant’s mortgage, under the circumstances, and the sale of the mortgaged property, of the probable value of a half million dollars, and the taking charge of such property for selling it by a receiver, for the protection of an alleged claim for damages to the intervener, that might never be reduced to judgment, and could not exceed $16,000 in any event. The attachment issued would have protected any valid claim the intervener could have against the property attached, if the allegations of the intervention were true relative to its fraudulent conveyance, without any seizure and sale by the court’s receiver in this proceeding.
Neither do we agree with the contention that the mortgage of the Port Smith Spelter Company to the American Zinc Products Company was void, as not having been executed in fact by the spelter company, but rather by the zinc products company, as mortgagee, to itself. The entire instrument, as recorded and exhibited to this court, shows unmistakably that it was intended as a mortgage by said spelter company to the zinc products company, given to secure the payment of the note executed for advancements of money to said mortgagor, the note being correctly described in the recitals of the mortgage as the indebtedness of the spelter company, which the mortgage was executed to secure, the mortgage, in fact, being signed by the president and acting secretary of the mortgagor corporation, who, by obvious mistake, signed the name of the zinc products company instead of the spelter compa*ny, as the evidence discloses should have been and was intended to be done. The seal of the mortgagor corporation was attached with the signature, the indentation or impression showing it to. be such and containing the words “Port Smith Spelter Company,” and the certificate of acknowledgment shows that it was executed by the president and the acting secretary of the Fort Smith Spelter Company, who acknowledged that they had executed it in their respective official capacities by authority of the corporation for the Fort Smith Spelter Company, etc.
The recording of the mortgage, as executed, the whole of the writing, and the certificate of acknowledgment, showing conclusively that it was, in fact, executed and acknowledged by the proper officers of the corporation, who intended to, but by obvious mistake did not, sign its name as mortgagor, was sufficient to put third persons upon inquiry and give notice to all persons of its existence, and constituted a lien upon the mortgaged property.
The undisputed testimony established the fact that the directors of the two corporations were not always the same, that the stockholders were never the same, and, when this mortgage was executed, although C. W. Martin was president and treasurer of both companies, and C. H. Stewart was secretary of the spelter company and vice president of the zinc products company, the two companies remained separate corporations, and, even though they were so connected by the officers and directors, that fact did not make the transaction between the corporations fraudulent. They could have dealings and lend money to each other. Jones Lbr. Co. v. Wisarkana Lbr. Co., 125 Ark. 65, 187 S. W. 1068; Twin Lick Oil Co. v. Mabury, 91 U. S. 587, 23 L. ed. 328.
Both of the corporations were organized under the laws of Ohio, where it appears the Fort Smith Spelter Company was a de jure as well as a de facto corporation, as would have been held to be the case under our court’s ruling, and where a de facto may act as though it were a de jure corporation, and its corporate existence cannot be attacked in an action by or between private individuals. Perun v. Cleveland, 43 Ohio St. 481, 3 N. E. 357; Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.
Sanders having brought his suit in the Federal court against the Fort Smith Spelter Company as a corporation and his intervention in the chancery court alleging it was a corporation, he has elected to treat such company as a corporation, and should not be allowed to deny its existence. Petroleum v. Ware, 27 Ohio St. 343.
There is no reason in law why, under the circumstances of this case, there being no evidence tending to show that the mortgage was made to defraud or injure intervener and other creditors, the spelter company could not borrow money from the zinc products company and secure the payment thereof by a valid mortgage. Goodbar v. Locke, 56 Ark. 314, 19 S. W. 924; Galkins v. Lockewood, 16 Conn. 276, 41 Am. Dec. 143.
If the spelter company was insolvent at the time, and there was no real evidence to show that it was, the borrowing of $250,000 more, for which it executed said mortgage to secure the payment of, could not have proved injurious, in any event, to the intervener nor rendered the corporation insolvent. Cain v. Lane, 165 Ark. 205; 263 S. W. 399; McKee v. Hendricks, 165 Ark. 369, 264 S. W. 825, 952.
It follows that the chancellor erred in not reforming the mortgage as prayed, and in holding it a fraudulent conveyance, executed to hinder and delay creditors in the collection of their debts, and also in sustaining the intervention, which should have been dismissed for want of equity, and in appointing a receiver to take charge of and sell the mortgaged property. The decree is accordingly reversed, and the cause remanded with directions to reform the mortgage and foreclose same and sell the property for the payment of the indebtedness, and to dismiss the intervention for want of equity, and for all further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion.
Mehaeey, J., not participating. | [
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McCulloch, C. J.
This case has been here on a former appeal, and, as all the facts concerning it are stated in the former opinion (158 Ark. 285), it is unnecessary to restate them.
On the first trial of the issues the jury rendered a verdict in favor of appellant for tfie recovery of tfie sum of $1,600, and on tfie appeal we field tfiat tfie undisputed evidence adduced by appellant showed tfiat fie was entitled to recover a sum largely in excess of tfiat amount, and we remanded tfie case for a new trial. Appellee did not introduce any testimony either on tfie first trial or tfie last, and the testimony introduced by appellant on tfie last trial was tfie same as tfiat introduced on tfie first trial. On tfie last trial tfie verdict was in favor of appellant for recovery of $1,500. ,
Tfie same reasons given for reversal in tfie former trial call for a reversal of tfie judgment now appealed from. Our reason for remanding tfie casé on tfie former appeal was tfiat appellee might desire to introduce testimony, but, as no testimony was introduced on tfie retrial of tfie case, no useful purpose would be served by remanding tfie case again for a new trial.
Tfie evidence is undisputed tfiat appellant is entitled to tfie sum of $3,387.19, the amount of tfie certificate of indebtedness given by tfie road commissioners to appellant, together with, interest.
The judgment of tfie circuit court is therefore reversed, and judgment will be rendered here for tfie sum mentioned above, with interest at legal rate from tfie date of tfie filing of tfie claim in tfie circuit court, together with all costs of tfie proceeding, including tfie costs of this appeal, and tfie judgment thus rendered will be certified down to tfie circuit court for enforcement, in accordance with tfie statute winding up tfie affairs of tfie road district. | [
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Smith, J.
Appellee, as administrator of the estate of H. Gr. Pottebaum, brought this suit, in conjunction with the widow of the said Pottebaum, who alleged that she had acquired the interest of the heirs of her husband in his estate, to partition a lot in the city, of Little Bock, a half interest in which was alleged to be owned by the intestate, and from a decree granting the relief prayed is this appeal.
The question presented on the appeal is that of the validity of a judgment of the Pulaski Circuit Court, whereunder it was alleged that appellee’s intestate had acquired an undivided one-half interest.
Some years ago Potte'baum brought suit upon a note executed to his order by one Fred A. Williams, who, at the time, was a resident of the city of Chicago and an employee of the postoffice in that city. Judgment was rendered by default for the amount of the note, and an attachment was sustained and the lot ordered sold, and, pursuant to this judgment, an execution was levied upon Williams’ undivided half interest, and that.interest was sold, and later an execution deed was issued to Pottebaum by the sheriff who made the sale.
It was alleged that the judgment against Williams was'void for the following reasons:
The lot levied upon had been owned by Williams’ father, who, upon his. death, was survived by his widow and two children, and the lot was then occupied by Williams’ mother as her homestead. It is'therefore insisted that, as the lot was a homestead, it was not subject to sale. In reply to this contention it suffices to say that the widow was not a party to the attachment suit, and her homestead right was not affected by it. The defendant had an interest in the lot, which was, of course, subject to his mother’s right -of homestead, and it was upon this interest that the attachment was levied. The homestead estate of the widow terminated 'by her death in 1925, before the institution of this suit.
It is next insisted that defendant should have been sued as Fred A. Williams, and not as F. A. Williams, as was done, inasmuch as the note sued on was signed “Fred A. Williams.” It must be presumed, in this collateral attack on the judgment of the circuit court, that that court ascertained that the Fred A. Williams who signed' the note and the F. A. Williams who was sued as the maker thereof were one and the same person. Indeed, the testimony heard at the trial from which this appeal" comes shows that such was the fact.
It is insisted that the defendant was not properly advised of the pendency of the suit by the attorney appointed by the clerk to represent the nonresident defendant. Upon rendering judgment sustaining the attachment the circuit court presumably found to the contrary, and that finding is not subject to the collateral attack here made upon it. It may be said, however, that a letter written by Williams, which was offered in evidence at the trial from which this appeal comes, shows that he was in fact aware of the levy of the attachment.
It is next insisted that there was no affidavit for the attachment, nor was any showing made that the defendant’s personal property was not 'Sufficient to satisfy the plaintiff’s demand without making -a levy upon his interest in the land. In support of this allegation it is shown that no affidavit for the attachment was found, when this case was tried in the court below, among the files of the clerk in the original attachment suit. In answer to this collateral attack, it may be said that it will be conclusively presumed that the court below, before sustaining the attachment, ascertained that the attachment had been properly issued.
It is finally insisted that it was. not shown that the sale under the execution was ever approved, and that a suit for partition cannot be maintained upon a\ title acquired through an unconfirmed sale.
Counsel for appellee set out in their brief an order of the circuit court confirming the sale; but, inasmuch as this order was not offered in evidence in the court below, it cannot be considered here. But appellee offered in evidence in the court below an execution deed duly executed and acknowledged by the sheriff who made the sale, and this deed was. duly recorded, and its recitals conform to the requirements of § 4334, C. & M. Digest.
Section 8390, C. & M. Digest, provides that: "A sheriff’s or auditor’s deed, given in the usual form, without witnesses, shall be taken and considered by said court as sufficient evidence of the authority -under which said sale was made, the description of the land, and the price at which it was purchased.”
Section 1534, C. & M. Digest, provides that: “All deeds of conveyance made by administrators, executors, guardians and commissioners in chancery, and deeds made and executed by sheriffs of real estate sold under executions duly made and executed, acknowledged and recorded as required by law, and purporting to convey real estate, shall vest in the grantee, his heirs and assigns, a good and valid title, both in law and in equity, and shall be evidence of the facts, therein recited and of the legality and regularity of the sale of the lands so conveyed until the contrary is made to appear.”
It is not made to appear that the execution deed was not executed under authority of law, and the fact alone that the affidavit for the attachment was not found in the files of the original attachment suit does not prove that there was in fact no affidavit for the attachment. The court found that the attachment was properly issued, and the attachment was sustained as having been properly levied upon the lot which the judgment directed should be sold in satisfaction of the indebtedness there adjudged to be due the plaintiff.
In 15 R. C. L., page 891, § 370 of the chapter “Judgments,” it is said: “If a statute requires a certain affidavit to be filed prior to the rendition of judgment, it •frill be presumed, in support of the judgment of a court of general jurisdiction, in the absence of any statement or showing upon the subject, that such affidavit was filed. Thus it may be presumed that a writ of attachment, regular upon its face, on which a judgment has been based, was properly issued after execution of a proper affidavit required in such cases.”
Upon a consideration of the whole record we conclude that it was not tiiade to appear that the judgment of the circuit court was void through failure to comply with the law in the rendition of the judgment through which Pottebaum’s title was acquired. Huggins v. Dabbs, 57 Ark. 628, 22 S. W. 563; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81, 84 S. W. 1044; Taylor v. King, 135 Ark. 43, 204 S. W. 614; Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546, 207 S. W. 45; Baxter County Bank v. Davis, 137 Ark. 459, 208 S. W. 797; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; St. L. S. F. R. Co. v. Wardell, 157 Ark. 557, 249 S. W. 17.
. Tliis being true, tlie relief by way of partition was properly granted, and that decree is affirmed. | [
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Wood, J.
This is an action by the appellee against the appellant on an insurance policy to recover the sum of $295, alleged to be due on account of damage to appellee’s -automobile by the sinking of same in Black 'River. The cause was submitted to the court, sitting as a' jury, on the following agreed statement of facts:
“That the plaintiff, Claudius Jones, on November 12, 1922, was the owner of a -certain Hupmo-bile coupe, - upon which there was in full force and effect a certain insurance policy issued by the defendant herein, covering loss or damage by fire, theft and transportation to the body, machinery and equipment, of said car.
“That the said Claudius Jones and C. C. Larimer drove said car on to a ferryboat at Point Ferry, about 200 yards above Black River, where it goes into White River, about eight miles north of Newport, Arkansas, and were transported on said boat across said river. When the boat arrived at the other side of the river, the ferryman threw down the apron of said boat. The embankment was steep, and it was also raining. Plaintiff and the said Larimer were in the said automobile with the door and windows closed. After the boat was landed and the apron to the boat let down by the ferryman, plaintiff, believing that all was safe, started to drive off the said ferryboat. When the front wheels of said automobile landed on the bank, the rear wheels pushed the boat back, which let the said automobile back off into the water, which was some fifteen feet deep.”
It was agreed that the appellee had sustained damages by reason of the accident in the sum of $295.
Attached to the agreed statement was a copy of the insurance policy which is headed: “Customer’s Copy— Non-Valued Fire, Theft, and Transportation Form.” On the back of the policy is plainly printed: “Automobile Certificate — Non-Valued Fire, Theft and Transportation Form.” In the body of the policy.the automobile “is insured against direct loss or damage by fire, theft and transportation to the body, machinery and equipment, subject to all conditions, stipulations, provisions, exclusions and warranties contained and set forth in said policy, or set forth herein which are a part of said policy. ’ ’ On the back of the' policy, among many other provisions, is the following:
“Perils insured against — (a) fire, arising from any cause whatsoever; and lightning.
‘ ‘ (b) While being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the insured is legally liable.
“(c) Theft, robbery,, or pilferage, except by any person or persons in the assured’s household,” etc.
The court entered a judgment upon the above facts in favor of the appellee in the sum of $295, and for penalty and attorney’s fee, from which judgment is this appeal.
The only question for our decision is whether the damages sustained by the appellee were covered by the policy. If appellant is liable at all, its liability must be predicated upon subdivision “b,” siopm, of the policy. The appellant contends that’ it is not liable under this provision because, first, the car, at the time of the accident, was not being transported in any conveyance by land or water, and second, because if the car was being transported in a conveyance, the clause of the policy did not cover loss or damage by the “sinking” of the car for the reason that there was no £‘stranding,” ££sinking,” “collision,” “burning” or “derailment” of the conveyance in which the car was being transported. To sustain this contention, appellant relies upon the case of Wample v. British Empire Underwriters’ Agency, 54 Dom. L. R. 657, in which the Supreme Court of Canada had under review a policy containing precisely similar provisions to those set forth above. In construing these provisions, the court, among other things, said: “And the risk that the policy assumes is the stranding, burning, sinking, collision and derailment of the conveyance containing the motor car while being transported by land or water. It is not the stranding, sinking, etc., of the motor car itself which is covered, but of the conveyance. And any damage to the motor car resulting from such accident to the conveyance would be covered by the policy. The opening words of the clause are to be interpreted solely as marking the occasion upon which any specified accident to the conveyance will entitle the insured to recover.”
We cannot concur in this construction of the contract. To our minds it is entirely too narrow and superficial, and does not carry out the intention of the parties to the contract of insurance. In arriving at the intention of the parties to the contract of insurance, the language of the clause in subdivision “b” in the policy must be considered in connection, not only with its immediate context, but with all the other language of the policy. It must be interpreted in the light of the situation of the parties and the subject-matter of the contract; and if the language used by the parties is of doubtful meaning and susceptible of two constructions, the one favorable to the insured, and the other to the insurer, that construction must be given which is most unfavorable to the party framing the contract and using the language to express the intention of the parties.
These are familiar canons for the construing of all contracts, and especially insurance contracts. Wood v. Kelsey, 90 Ark. 272; Fort Smith Light & Traction Co. v. Kelly, 94 Ark. 461-71; Hope Spoke Co. v. Maryland Cas. Co., 102 Ark. 8; Harrison v. Interstate Business Men’s Assn. of Des Moines, 133 Ark. 163; Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245; Benham v. Am. Central Life Ins. Co., 140 Ark. 612; Home Mutual Benefit Assn. v. Mayfield, 142 Ark. 240; Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300. In the last named case, we said: .“Insurance policies are usually prepared on blank forms prepared by experts of the company, and, where the language used is doubtful, it must be given the strongest interpretation against the insurer which it will reasonably bear.’ See also Benham v. Am. Cent. Life Ins. Co., supra.
Now, the subject-matter of the insurance was an automobile, and it occurs to us, when all the language of the policy is considered, that it was the intention of the parties to insure the automobile against direct loss or damage by fire, theft and transportation; against fire arising from any cause whatever, and- against transportation arising from any cause whatever. To be sure, by feather-edge refinements in the construction of language and a process of strained reasoning, the language of clause “b” is susceptible of the construction given it by the Canada court, and in accordance with the conten- ■ t-ion of learned counsel for appellant. But such construction would not carry out the intention of the parties to the contract. It was manifestly their intention, by the language used, to cover all conceivable losses to the automobile while it was being transported, and they used the terms “sinking, collision, stranding, burning and derailment” as an enumeration of the methods by which such loss or damage might occur. - When the subject-matter of the insurance and the language of the policy as a whole is considered, it certainly cannot be said that it was the intention of the company to limit its liability to the appellee for a loss or damage caused only by the sinking, col lision, stranding, burning and' derailment of the conveyance in wbicb the car was being transported, rather than the “sinking,” eta, of the car itself. The words “sinking,” etc., were words of enumeration or description of the: manner of loss of the car rather than a limitation of the liability to the manner of the description of the vehicle or means of transportation. Such we believe to be the plain, common-sense meaning of the contract. Any other view would lead to the rather absurd conclusion that, although the automobile was damaged or destroyed by “sinking,” yet the appellant did not intend to be liable for such loss or damage unless the boat in which the car was being transported was also lost or destroyed by ‘ ‘ sinking, ’ ’ etc. If such was the meaning of the appellant, it should have used phraseology that would express it in plain terms, instead of ambiguous language indorsed in exceedingly fine print among multitudinous other provisions on the back of the policy.
“■Contracts of insurance should be given a fair, reasonable and sensible construction, su'ch as it is to, be assumed intelligent business men would give it, rather than a strained, forced and unnatural, unreasonable or strict technical interpretation, or one which would lead to an absurd conclusion, or render the.policy nonsensical.” 32 C. J., p. 1151.
In Wheeler v. Globe & Rutgers Fire Ins. Co., 118 S. E. 609, the plaintiff’s automobile was insured under a policy containing a precisely similar provision to that of the policy under review. In that case the driver of plaintiff’s car was- attempting’ to drive the car on to a ferryboat to be transported across Great Pee Dee Biver. In so doing the end of the flatboat broke off, and the car was precipitated into the river. The plaintiff instituted an action against the company for damages under the policy and recovered judgment for the amount claimed. At the close of the testimony the appellant moved for a nonsuit on the ground that “the entire proof shows that the car was not being transported when damaged, and therefore the plaintiff cannot recover,” which motion being overruled, the appellant moved for a directed verdict, one of the grounds being that “the plaintiff lias failed to prove that the damage to his car was occasioned by either the stranding or sinking of the flat, and he cannot therefore recover.” This motion was overruled, and, on appeal, the Supreme Court of South Carolina affirmed the judgment. Among other things, the court said: ‘ ‘ The proper way to get the car on the boat was to drive it on, and-in driving it on it was being transported. * * * The driving on the ferryboat and driving off is transporting the car. * •* * His honor was right in not granting a nonsuit or directing a verdict as asked for by the defendant:”
The above case thoroughly comports with our own views of the meaning of the contract of insurance under consideration. Unquestionably the transportation of appellee’s car had not ended when the ferryboat landed at the bank where the car was to debark. Public ferrymen are common carriers. Harvey v. Rose, 26 Ark. 3; Evans v. Rudy, 34 Ark. 383. See also St. Paul F. & M. Ins. Co. v. Harrison, 140 Ark. 158. The duty of a ferryman, like any other common carrier, requires that he .provide an entrance and exit to his ferry, and the transportation across the stream is not completed until the passenger, having entered on the one shore, has landed on the other. This the appellee had not done, but, on the contrary, while attempting so to do, the rear wheels of ■ appellee’s car “pushed the boat back, which let the automobile back off into the water.”
The record presents no error, and the judgment is therefore affirmed. | [
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McHaney, J.
Appellant and appellee both claim to be the lawful widow of Charlie Lathan, deceased, who died intestate and without issue in Phillips County, Arkansas, in the month of February, 1926. Appellant was lawfully married to said Charlie Lathan on December 24,1896, at Eupora, Mississippi, and thereafter lived with him ias his wife there, and at Cleveland, Mississippi, until in 1909, at which time Charlie Lathan left appellant and removed to Phillips County, Arkansas. About two-years later, -appellee, who was also a resident of Cleveland, Mississippi removed from thence to Phillips County, and on July 31, 1913, she was married to Charlie Lathan. On June. 8, 1917, said Charlie Lathan and appellee purchased the land described in the complaint which is sought to be partitioned in this action, taking the title thereto in their joint names,-so as to create ian estate by the-entirety in them, if appellee was the lawful wife. Appellant brought this action to partition said land, charging that Charlie Lathan and appellee owned said land as tenants in common, and that she had acquired title to an undivided one-half interest therein from the collateral heirs of Charlie Lathan, and was therefore entitled to an undivided one-half interest therein. The court made a general finding of fact for appellee, entered a decree dismissing the complaint for want of equity, and quieted and confirmed the title to the property in appellee, from which is this appeal.
Appellant has correctly stated the question for our determination as follows: “The appeal in this case raises the one question upon which the cause of the' appellant must stand or fall. Was she the legal widow of the deceased, Charlie Lathan?” Let it he conceded, as heretofore stated, that appellant wias lawfully married to Charlie Lathan in 1896. It is also true that he married appellee in 1913, four years after he had separated from his first wife. Appellant testified that she had not procured a divorce from her husband, and that, to her knowledge, no divorce had been granted him, although, according to Mr. J. M. Walker, a member of the Helena bar, she told him that she had been married to a man in St. Louis, evidently subsequently to her .separation from Charlie Lathan. No divorce was procured by Charlie Lathan in Phillips County, as the records of the clerk of the chancery court fail to show it. Appellee' testified that she knew appellant had been married to Charlie Lathan, but that he told her, prior to her marriage to him, that he had been divorced. Under this state of facts, what are the rights of the parties, and what is the law applicable thereto? Let us review some of the decisions of this court bearing upon this question, as well as decisions from other states.
In the case of Holbrook v. State, 34 Ark. 518, 36 Am. Rep. 17, this court said:
£ £ There was also .a presumption that appellant’s marriage with Jane Honeycutt was lawful, innocent, and not criminal. It is supposed that a man will not incur the guilt of felony and danger which attends it by marrying another woman during the life of one to whom he has previously been lawfully married.”
And again, in the case of Cash v. Cash, 67 Ark. 278, 54 S. W. 744, this court said:
“It is in evidence that she married in due form of law John H. Cash. The court properly held that the presumption of law is that this was a legal marriage, and that the burden to show its illegality was upon the party attacking the validity of the marriage on the ground of illegality to show it by evidence. It is not presumed that the appellee violated the law. The presumption that the marriage was legal is stronger than the presumption that Miles Hankins, to whom she was first married, was living at the time of the second marriage. Her marriage is presumed to have been ‘lawful, innocent, land not criminal’.”
Again, in the more recent case of Estes v. Merrill, 121 Ark. 361, 181 S. W. 136, the court goes a little further and states the law as follows, on the question of the presumption :
“¡So strong is the presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains, even though it involves the proving of la negative, and although it is shown.that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not (Sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage.”
And in the still later case, McGaugh v. Mathis, 131 Ark. 221, 198 S. W. 1147, the court quoted the above from Estes v. Merrill with approval, and again adhered to the principle therein stated.
In' the case of Brotherhood of Railroad Trainmen v. Meredith, 146 Ark. 140, 225 S. W. 337, this court again approved the above citations in the following language:
“Counsel for appellee cite numerous cases of other courts, as well las decisions of this court, to the effect that there is a presumption of validity in favor of any marriage which is shown to have been solemnized, and that the burden of proving its invalidity rests upon him who questions its validity, and that this is true, notwithstanding it requires proof of a negative. * *'*
“'Counsel for appellee correctly state the presumption of law, and the testimony in the case would have sup ported a verdict to the effect that this presumption had not been overcome; but, as the verdict was directed against the company, the question-is whether the jury might not have found otherwise. ’ ’
This case was reversed because not submitted to the jury. On the second appeal of this case, Brotherhood of Railroad Trainmen v. Fountaine, 155 Ark. 578, 245 S. W. 17, this presumption was again sustained.
To the same effect see Bishop on Marriage, Divorce and Separation, §§ 77, 956, 958. In the case of Chancery v. Whinney, 47 Okla. 276, 147 p. 1087, the court said:
“Marriage will not be destroyed on presumption. The law is astute to preserve the sanctity of the marriage relation, and legitimacy of children and stability of descent and distribution, and therefore presumes innocence and virtue, in the absence of proof to the contrary. (Citing cases). In Haile v. Haile, 40 Okla. 101, 135 Pac. 1143, the plaintiff testified that she had never obtained a divorce from her first husband, but did not testify as to Avhether he obtained a divorce from her and that 'by such divorce their marriage relations were dissolved. Then the defendant introduced depositions of the clerks of the circuit courts of three counties in Illinois and one county in Texas, in Avhich counties the plaintiff’s former husband had at different times resided. It was said by the court that the eAddence did not establish that the counties named in the depositions were the only counties in which said former husband resided during said time, and that said courts weré the only courts that had jurisdiction to grant him a divorce. It was further said that the stability of descent and distribution, the rendering illegitimate of innocent children upon such facts as were presented by the record .in that case, established the wisdom; of the presumption that sustains the validity of a marriage contract under the forms of law; and it was held that the trial court did not err in his finding to the effect that the presumption had not been overcome.”
The case of Pittinger v. Pittinger, 28 Col. 308, 64 Pac. 195, 89 Am. St. Rep. 193, is a leading case, and is in point with, the case at bar. In the course of this opinion the court said:
“Appellee having been named as the beneficiary in the original certificates, and designated therein as the wife of deceased, she is presumed to be a legal one, and bear the relation to the insured designated (Knights of Honor v. Davis, 26 Col. 252, 58 Pac. 595), so that, to the extent that the rights of appellant are dependent upon the fact that appellee was not the wife of deceased, the burden of proof rested with her to establish this issue by a preponderance of the evidence. On this subject the first wife testifies to the effect that she was married to deceased in 1876. She took no steps herself to obtain a divorce, and states that no papers for that purpose were ever served upon her. This is the only testimony tending to establish that the marriage relation between herself and deceased was not dissolved, as the evidence of the other witnesses on behalf of appellant on this subject is immaterial. As against this testimony we have the undisputed evidence to the fact that a marriage ceremony was regularly solemnized between appellee and deceased, and the question squarely presented is: Does the proof of the existence of the former marriage relation of deceased and the testimony of the former wife establish that the marriage of appellee was invalid? No.man is presumed to do an unlawful act. When a marriage has been shown, the law raises a strong presumption in favor of its legality. By some of the authorities this presumption is said- to be one of the strongest known to the law. Its strength increases with the lapse of time. This presumption arises because the law presumes morality, and not immorality, and that every intendment is in favor of matrimony. (Citing cases).
“This presumption applies with peculiar force in favor of one who is unable to prove affirmatively that the man with whom she entered into the marriage relation in good faith was divorced from a former wife. Appellee was not acquainted with deceased until she met him in Colorado, and, except for the presumption in favor of her innocence, there would be imposed upon her an unreasonable burden if she is required to show that, prior to her contracting marriage with the assured, he had been divorced: It is contended on behalf of appellant that, the marriage of deceased to his first wife having been shown, this is sufficient to overcome the presumption in favor of the legality of the marriage between deceased and appellee. While it is true that it is a presumption of law that a fact continuous in its nature, such as marriage, continues after its existence is once shown, yet this presumption is not sufficient in all cases to overthrow the presumption of law in favor of innocence. Klein v. Laudman, 29 Mo. 259. In other words, under the facts of this case the presumption of the continuance of the first marriage, based upon the naked fact that it was solemnized, is not equal in probative force to the presumption in favor of legality of appellee’s marriage (Erwin v. English, 61 Conn. 502, 23 Atl. 753); so that the remaining question on this subject is, was the evidence of the first wife, that no process in divorce proceedings instituted by deceased had ever been served upon her, sufficient to overthrow the presumption in favor of appellee? * * * It is not impossible that he might have instituted proceedings for a divorce and his first wife not have received a copy of the summons, even though mailed to her. * * * In this instance appellee is free from wrong. If she is deprived of any rights, it results from no wrongful act of hers, but from the misconduct of another. The rights of the first wife are not involved in this proceeding. Appellant has no claim upon the bounty of deceased, and, in so far as her rights are dependent upon the fact that he has been guilty of a violation of the laws of the land, the principles of natural justice require that the evidence to that effect should be sufficiently convincing to admit of no other reasonable hypothesis. In such circumstances appellee is entitled to a broad application of the rule that ‘the law presumes morality, and not immorality; marriage, and not concubinage’; Teter v. Teter, 101 Ind. 129, 71 Am. Dec. 742. Considering- tlie strong presumption which the law raises in favor of the innocence of appellee and the validity of her marriage with deceased, * * * and that legal divorce proceedings might have been instituted and terminated in his favor without process being received by her, we are of opinion that this testimony is insufficient to establish that deceased was not divorced from his first wife at the time he contracted marriage with appellee. As this conclusion is fairly deducihle without considering the testimony introduced on behalf of appellee relative to what deceased told her regarding his former marriage and its dissolution, it follows that the reception of this evidence, even if error, was not prejudicial, because it could not affect the result.”
From these authorities we feel justified in again stating the law to be that, where a second marriage is established in form according to law, a presumption arises in favor of its validity as against a former marriage, even though the husband or wife of the former marriage is living at the time, and that this presumption is not overcome by the presumption of law in favor of the continuance of the first marital relation, coupled with the testimony of the former spouse that he or'she has not obtained a divorce, and has no information as to whether the other spouse had obtained a divorce, and the testi mony of the clerk of the divorce court where the deceased spouse had some time lived, that no divorce had been granted such spouse in such court.
We cannot say therefore that the decree of the chan- - eery court is against the preponderance of the evidence, and the judgment is accordingly affirmed.
Hart, O. J., dissents. | [
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Smith, J.
Appellant Washa brought this suit to recover on a note dated May 14, 1921, for $1,102.50, executed by appellee Harris to the order of Krumpen Machine Company, and indorsed by the payee, “without recourse,” to appellant.
Harris owned a rice farm, and, on July 21,1919, contracted with Washa to drill a well to irrigate his land, for the contract price of $4,000, of which $3,000 was to be paid in cash upon the completion of the well and the balance of a thousand dollars one year thereafter. There was a guaranty that the well would furnish a flow of a thousand gallons of water per minute, and the contract provided that, if the well did not furnish this amount of water, Washa should, within five days, remedy the trouble, and, failing to do so, should drill another well, and, if the second well also failed to furnish the guaranteed amount of water, the cash payment should be returned.
The well was completed in November, 1919, and the latter part of that year or the first, part of 1920 Harris paid Washa the $3,000 in cash and executed two notes ol’ $500 each for the balance. The well was used in irrigating the 1920 crop, and the testimony shows that it did not furnish the guaranteed quantity of water, as a result of which fact Harris lost a considerable part of that year’s crop.
The contract contained a provision-as to what the measure of damages should be in the event the well failed to furnish the guaranteed amount of water; but we need not consider this provision, as it is unimportant on this appeal.
Washa was engaged in drilling wells, and bought the material used by him for that purpose from the Krumpen Machine Company, and he bought from that company the material used in drilling the well in question.
On May 14, 1921, Mr. Krumpen, of the Krumpen Machine Company, Washa and Harris met to test the well, a weir was put in, and the test was made. According to Washa, the test then made showed a flow of slightly more than a thousand gallons per minute, and Harris accepted the well, and, in payment thereof, executed the note in suit, and included in the note a year’s interest then due on the two five-hundred-dollar notes which evidenced the balance of the thousand dollars due on the well, and the price of a pulley amounting to $42.50. This note was made payable to the Krumpen Machine Company, because Washa was indebted to that company for supplies which he had used in drilling the well in question and other wells. Later Washa drilled wells for the machine company, and the note was then indorsed over to him.
The testimony is in irreconcilable conflict as to the purpose for which the note was given. Harris testified that Krumpen was anxious to close the matter up, and. on behalf of his company, guaranteed that the well would thereafter flow a thousand gallons per minute, and the note was executed in consideration of this guaranty. Harris admitted that the well was made to flow practically a thousand gallons during the test, hut he says this result was accomplished only by speeding the engine up to its highest capacity, a speed which could not be maintained, and that the well never again was made to flow as guaranteed. Harris further testified that he offered to give a check in payment of the pulley, but Krumpen said, “No, include it in the note,” and that Krumpen accepted the note in consideration of his express guaranty that the well would thereafter meet the contract requirement.
Washa testified that he offered to drill a new well, but Harris stated that he preferred to keep the old one, although it did not meet the guaranty, because he had placed his engine, and did not wish to incur the expense of moving it. Harris denied this, and testified that he requested that a new well be drilled, but Washa said he was unable to do so, as he did not have the money. .
Harris denied liability on the note, and filed a counterclaim in which he prayed judgment for the $3,000 cash which he had paid.
Numerous exceptions were saved to the giving and to the refusal to give instructions, and, upon the submission of the case to the jury, the following verdict was returned: “We, the jury, find a verdict in favor of defendant, with the understanding that none of the $3,000 be refunded to the defendant.” A judgment was rendered in accordance with this verdict, and Washa has appealed.
It is insisted that this verdict was not responsive to the testimony offered by either side, and that the jury should have found for the plaintiff the amount of the note, or have found for the defendant the amount of cash paid on the well.
Appellant insists that a verdict should have been directed in his favor, for the reason that the note sued on. was based on the original notes executed in 1920 for the balance of a thousand dollars due on the well, and in further consideration of the satisfactory test made on the date the note was executed, and that no.promise on the part of Krumpen entered into the consideration. But, as we have said, the testimony is in sharp dispute on this question. Harris testified that he declined to execute the note until Krumpen, acting for his company, guaranteed the well, and that this guaranty was the consideration for the note, without which he would then and there have demanded the return of the money he had paid. If this testimony is true, it made an issue for the jury whether the consideration for the note had failed. It is true the machine company is not a party to this suit, hut, if Harris ’ testimony is true, Washa was fully advised of the circumstances under which and the consideration for which the note was executed, and it was to Washa himself that the $3,000 cash had been paid.
The instructions given submitted to the jury the. question whether there had been a test and acceptance of the well, and, as the testimony would have supported a verdict either way on that question, we must treat the verdict of the jury as decisive of the fact that the well had not been accepted as complying with the contract specifications.
The court submitted the question of the well’s capacity to the jury in an instruction which recited that Washa had warranted the well he was to drill would produce a thousand gallons of water per minute, during the pumping season of 1920, and he told the jury that “if you find that said well did not produce that amount of water in 1920 or at any later date, then the plaintiff has breached his warranty * * * . ” And the instruction further declared the law as follows: “So, if you find that said well did not produce 1,000 gallons of water in 1920, and that plaintiff did not, after 1920, cause it to produce said required amount of water, # # * ” to find for the defendant on that issue.
It is insisted that this instruction is erroneous because the guaranty related only to the capacity of the well during the year 1920. It is true the guaranty applied to the capacity of the well during 1920 only; but we do not think the instruction was erroneous on that account. In fact, as we read this instruction, the jury was told that there was no breach of the guaranty if the well produced the required amount of water in 1920 or at a later date, the court evidently having in üiind the test made in 1921, and, as thus construed, the instruction was not unfavorable to appellant. If it was thought that the instruction imposed that requirement, that the well flow a thousand gallons per minute during 1920 and should continue to do so thereafter, a specific objection should have been made, as we think the court did not intend to so construe the contract of guaranty.
An unnecesary number of instructions were given in the case, but, when they are considered as a whole, we think they impose the requirement on appellee to show that the consideration for the note had failed, and to sustain this defense he was required to show (1) that the well did not flow a thousand gallons per minute during 1920, and was not later made to do so; (2) that there was no complete settlement of the controversy between the parties which was consummated and evidenced-by the execution of the note in suit; and (3) that this note had been executed in consideration of the guaranty of the payee of the note that the well would thereafter comply with the specification of the construction contract, which the well had previously failed to meet.
It must be conceded that the verdict does not appear to be consistent with either theory of the case; but we cannot say that it is unsupported by the testimony. The testimony in Harris’ behalf would have supported a verdict for the entire amount in controversy, except the price of the pulley, which was only $42.50, which would, of course, have included the $3,000 paid in cash, yet the verdict of the jury included only so much of the $3,000 as was necessary to extinguish the note and the price of the pulley, and we will not therefore disturb the verdict, because the jury’s finding on the facts against appellant sustains the verdict, and would support a larger recovery against him than the mere extinguishment of the note. McGough v. State, 119 Ark. 57.
Appellant insists that he is at least entitled to judgment for the price of the pulley, as this was a separate transaction. It is true the price of the pulley was due directly to the machine company, and was included in the note in suit, hut Washa became owner of this note by the indorsement of it to him, 'and the jury found by their verdict that he was not entitled to recover anything at all.
There was a cross-appeal, but appellee appears to be content to have the judgment affirmed, and, as no prejudicial error appears, it is so ordered. | [
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Hart, C. J.,
(after stating the facts). The record shows that appellant, Federal Land Blank of St. Louis, Missouri, and the El Dorado National Farm Loan Association of El Dorado, Arkansas, are both incorporated under an act of Congress of the United States, but that they are separate and distinct corporations. The loan by. appellant to Craig was obtained by Brown, as secretary of the El Dorado National Farm Loan Association; and, without reciting the evidence in detail, we are of the opinion that the chancellor was justified in holding that Brown, as secretary of said association, was authorized to receive payment on the mortgage indebtedness of the Craig’s to appellant. Brown acted for appellant throughout in securing the loan and in paying over the amount of it to the Craigs and in applying the amount borrowed to the satisfaction of their debts.
The evidence also shows that, under the circumstances, Brown, 'as secretary of said association, was authorized to receive payments on the mortgage indebtedness for the purpose of transmitting the same to appellant. After giving the mortgage to appellant, the Craigs conveyed the land to Robert Scott, and he, in turn, executed a deed of trust on it to secure an indebtedness of his own. 'The deed of trust was foreclosed, and J. L. Kinard became the purchaser under it, and took possession of the land. He rented it to Robert Scott, whose mortgage had been foreclosed, for the year- 1925, for the sum of $150. Kiuard and Scott recognized that appellant had a prior mortgage on the land, and it was agreed between them that, instead of paying the $150 rent to Kinard, iScott should pay it to Brown, to be applied in satisfaction of the mortgage of the Craigs to appellant. Scott also borrowed $278.53, which he paid to Brown to be so applied to the payment of the mortgage of appellant. This made 'a total of $428.53 which was paid by .Scott to Brown for that purpose.
The chancellor held that Brown, as agent of appellant, had the right to receive the $428.53 to be applied towards the satisfaction of appellant’s mortgage, and that, after Scott had paid that sum to Brown, the payment became absolute, and that the order subsequently given by Scott to Brown to pay the money to Stewart & Oliver was of no avail.
The chancellor was right in so holding as to the $150. Scott owed Kinard this amount as rent, and it was agreed between Kinard and Scott that Scott, instead of paying Kinard, should pay the rent to Brown, to be applied towards the satisfaction of the Craig mortgage to appellant. "When 'Scott paid this sum to Brown, as agent for appellant, it constituted an absolute payment, which could not be returned. To illustrate, suppose Kinard had wished to recall the transaction and have Scott pay the rent to him. Brown,, as agent of appellant, could have refused to do this, and, inasmuch 'as Kinard, under his contract with Scott, had a vested interest in the matter, Brown, after receiving the payment from Scott, could not, to the detriment of Kinard, return the money to Scott to be used by him for his own private purpose.
The case as to the $278.53, however, is entirely different. Scott borrowed the money from a third person, and Kinard had no interest whatever in the transaction. So long as the money had not been actually applied to the payment of the mortgage indebtedness, Scott had a right, by agreement with Brown, to receive the money back and use it for his own private purpose. Until the money had been actually applied to the payment of the mortgage indebtedness, the parties could rescind the transaction, and the money conld -he paid hack to Scott without in any manner interfering with the rights of Kinard. If Scott had sent the money in a letter direct to appellant, and, before appellant had received the money and applied it to the payment of the mortgage indebtedness, had asked that the money be returned to be used by him in employing attorneys to defend his son for murder, and appellant had done so, this would have constituted a new agreement between appellant and Scott, and would have in no wise affected the mortgage, because no payment had been actually received and applied towards the satisfaction of the mortgage by appellant. Scott could not complain, because appellant had done exactly what he asked it to do in the matter. Kinard could not complain, because he had no interest in the matter whatever. It' was no concern of his whether Scott ever made, a payment on the mortgage of appellant or not. lie could only claim any right or interest' in the matter when such payment 'had been actually received by appellant and applied by it towards the satisfaction of the mortgage.
The result of our views is that the chancellor should have held that the $150 owed by Scott to Kinard and paid by Scott to Brown constituted an absolute payment on the mortgage, but that the chancellor erred in so holding as to the $278.53 which Scott had borrowed and paid to Brown as agent of appellant.
It is next contended that the decree should be reversed because the chancery court refused to allow appellant a reasonable attorney fee. In the first place, it is'contended that the allowance should have been made because the mortgage contained a clause providing- that, if default be made in its payment, in addition to his payment of the indebtedness, the mortgagor should also pay such reasonable attorney fee as might be allowed by law. This court has held that the insertion in a note of the stipulation of an attorney fee and costs for the collection of the note does not destroy the negotiable character of the instrument, but such stipulation is void and not enforceable, because it is lan agreement for a penalty, even though, it would be enforceable in the State in which it was executed. Bank of Holly Grove v. Sudburry, 121 Ark. 59, 180 S. W. 470, Ann. Cas. 1917D, 373; Arden Lumber Co. v. Henderson Iron Works & Supply Co., 83 Ark. 240, 103 S. W. 185; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208; and Boozer v. Anderson, 42 Ark. 167.
Again, it is insisted that the attorney’s fee should have been allowed under the provisions of an act regulating the foreclosure of deeds of trust given to Federal Farm Loan banks. Acts of 1924, special session, page 72. The act provides that, where the amount involved is $200 or more and the interest is 7 per cent, or less, the court trying the case may, at its option, allow a reasonable attorney’s fee to be taxed as costs in the case. The act' has a proviso which says that it should apply only to loans made under the Federal .Loan Act. Without deciding’ the question, we are of the opinion that, even if the act be held valid, the chancery court did not abuse its discretion in refusing to ’allow an attorney fee to be taxed as costs in the case. As we have already seen, the rights of • subsequent'mortgagees were involved in the action, and the contest was really between them and the appellant as the holder of the first mortgage. Appellant was claiming, among other things, to have a right to enforce its lien for $224 abstract fees. The court held against it, and it is not now claimed that the holding of the court was erroneous. As we have already seen, appellant was contending that it had a right to enforce .its mortgage against the $150 rent which had been paid its agent, to be applied on the mortgage, and which it had not so applied. .Under these circumstances it was a matter of discretion, in any event, whether or not the chancellor should allow an attorney’s fee under the act, even if valid.
It follows that the decree must be reversed, and the cause will be remanded with directions for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. The costs of the appeal will be taxed against appellees. | [
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Smith, J.
Appellant was convicted under an indictment which charged that he had manufactured and was interested in the manufacture of intoxicating liquors.
Officers of the law testified that they had been advised that a still was in operation on an island in the L’Anguille River, and they went in search of it. Their search was aided by an ascending smoke which they saw through the trees and the sound of some one cutting wood, and they came upon a still which had only recently been in operation. The still was complete, except that some one had carried off the worm. The officers had separated in their search, and the two who first found the still saw two men leaving the place, and one of the officers positively identified one of the men as appellant, and the other officer testified that one of the men he saw leaving limped like appellant did when he walked.
The State was proceeding to prove other circumstances identifying appellant as one of the men seen at the still, when the following colloquy occurred between the court and counsel for appellant, which we copy from the record:
' ‘ ‘ Counsel ; In order to facilitate this matter, I am willing to admit that this man was down there, that his horse was there, and— Court: The motion is overruled. Counsel: I am just trying to facilitate matters. Court: Yes, facilitate like a crawfish does, backwards. Counsel: I object to the remark of the court. Court: Yes, I understand it. Counsel : All in the world I Avant, in my humble way, is to defend this man the best I can, and I have a right to get these things in the record.” To which said remarks in the presence of the jnry counsel for defendant objected, which said objections were by the court overruled; to which ruling of the court defendant at the time excepted, and caused said exceptions to be noted of record.”
Appellant testified in his own behalf, and admitted his presence at the still, but explained that he was looking for a cow, and that he had heard there-was a still located near his house, and he decided that he would find that too, if he could, for the purpose of reporting it to the officers.
The two officers who saw appellant at the still did not offer to arrest him at the time, as they decided to wait until the sheriff with another officer came up, but, after waiting about five minutes for these officers, they went up to the still, and the men they had seen there were gone.-
After making the remarks quoted above, the court permitted the witnesses to detail what they had seen; that .appellant’s horse was hitched to a tree near the still, and a boat was found on the island side of the river bank, where the still was; that some whiskey had been poured on the ground, which burned when a match was applied to it, and that the fire had been recently scattered and water poured on it. The island was a small body of land, and no other persons were seen near the still except appellant and the man who was seen with him.
Appellant admitted that he was the man seen at the still, and that his brother was with him; but he stated that his brother was assisting in the search; and he also admitted that they turned over one of the barrels, but he said they did this to destroy its contents. Appellant also admitted that he carried away from the still a spade, but he said he did this because the spade had -been stolen from his home, and, as he recognized it, he took it away with him.
Before the jury was completed, appellant asked to be allowed to challenge two jurors who had been accepted. His attorney said: “If the court please, since accepting Y. O. Turner and H. B. Slrumacker as jurors .in this ease, and before the jury is completed, the. defendant now discovers reasons to believe that the said V. O. Turner and H. B. Shumacker would not be competent jurors, and therefore asks permission to exercise a peremptory challenge on the said jurors. ’ ’ The court ruled as follows: “It will be refused, for the reason that no cause is given, and for the further reason that .the. court announced at the beginning of the term to attorneys that, at the time the jury was being made up, counsel both for the State and the defendant must at the time accept or reject jurors.” An exception was duly saved to this ruling.
Over appellant’s objection the State was permitted to prove that two officers were watching appellant some time after the discovery of the still, and they saw some negroes drive down the road in an automobile, and the officers heard a conversation between appellant and the negroes about the purchase of a half-pint of whiskey, Which appellant agreed to sell for a half-dollar. The officers thought the sale had been made, and they came out of their hiding place and arrested appellant, but, after searching him and the car, they failed to find any whiskey.
Exceptions were also saved to action of the court in giving and in refusing to give certain instructions.
Appellant was found guilty, and has appealed.
We think the testimony set out above was legally sufficient to support the finding that appellant was guilty as charged. The jury evidently did not accept as true the explanation made by appellant concerning his presence and purpose at the still.
But we are also of the opinion that the remark of the court about appellant backing out like a crawfish was erroneous and prejudicial. It tended to discredit his explanation. He was not guilty if his explanation was true, and its truth was wholly for the jury, and the court should have permitted the jury to consider and pass upon this question uninfluenced by any comment of the court tending to discredit his explanation.
It is the opinion of the majority that no error was committed in refusing to allow appellant to challenge peremptorily the two jurors who had been accepted. This question was recently considered in the case of Brust v. State, 153 Ark. 348, and we there quoted from the case of Allen v. State, 70 Ark. 337, as follows: “Under the statutes of this State persons summoned as jurors, when, called to serve in criminal cases, may be examined under oath touching their qualifications. As each one. is called, he is first examined by the State, and then by the defendant, and, after each examination is completed, if the juror is found by the court to be competent, the State shall challenge him peremptorily or accept him; if accepted by the State, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Bach party must challenge or accept in the order named when the court declares him competent. After he is accepted by both parties, he cannot be challenged peremptorily, without permission.. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., §§ 2202-2217.”
It is the opinion of the majority that appellant should have stated to the court the reason why he desired to challenge the jurors, after having accepted them, and that it was not sufficient to state merely that he had discovered reasons for believing that the jurors would not be competent. The court has a discretion in these matters, and a reversal will be ordered only where an abuse of this discretion is shown, and no abuse is shown when the accused fails to apprise the court of some' fact or circumstance which has caused him to believe that an accepted juror is not acceptable. Where this is not done the court cannot know that appellant is not acting capriciously.
It is the opinion of the writer, however, that a good cause is shown when the court is advised that appellant has concluded that the juror is not competent or acceptable, even though he does not state the reasons for this conclusion, as the question at issue is the right to exercise a peremptory challenge given him by the law.
We think no error was committed in admitting testi- . mony in regard to the sale of a half-pint of liquor, as this testimony tended to show the business in which appellant was engaged; that he had whiskey to sell, and therefore has some probative yalue to show his connection with the liquor which had, only a short time before, been manufactured on an island in the river. Lowery v. State, 135 Ark. 159; McMillar v. State, 162 Ark. 45; Morris v. State, 165 Ark. 452.
We find no error in giving or in refusing to give instructions. The instructions were to the effect that the State was not required to show that appellant owned the still, or would have owned the manufactured product; but that it was necessary to show, and would have been sufficient, if shown, that appellant was present while the still was in operation, aiding, abetting or assisting in its operation.
Appellant asked an instruction to the effect that he could not be convicted unless the jury found that he was engaged in making liquor. The State was not required to show that this was his employment, or that he had- previously made whiskey. As we have said, the State was not required to show that he owned the still, or would have owned the manufactured product. It was only necessary for the jury to find that he was present, aiding, abetting or assisting in making the liquor, and the court so instructed the jury.
Other instructions requested by appellant, in so far as they correctly declared the law, were covered by instructions given.
No error appears in giving or in refusing to give instructions, but the judgment must be reversed for the comment of the court, set out above.
Hart and Humphreys, JJ., dissent.' | [
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MoHaney, J.
Keebey brought replevin in the Little Rock Municipal Court against Watson, alleging that he was the owner and entitled to the possession of a diamond stud of the value of $130; that the defendant was in possession thereof, and unlawfully detaining the same, and set up the other jurisdictional matters in replevin suits. He further alleged that he believed the diamond stud had been concealed with intent to defeat this action. An order of delivery was issued, commanding the sheriff to take the stud from Watson and deliver the same to Keebey upon his giving bond as required by law, and further directing the sheriff, in the event he could not find said diamond stud, to take the body of said Watson and have him before the court on the return dáte to answer the claim of plaintiff. The sheriff served the order of delivery, .and arrested appellant, not being able to find the property. Appellant executed to the sheriff, with one Johnson as surety, the following bond: “We undertake and are bound to Homer M. Adkins, sheriff of Pulaski County, Arkansas, and P. Gr. Keebey, plaintiff herein, in the sum of two hundred and sixty and no-hundredths dollars ($260), that the defendant, Walter Watson, shall abide the order and judgment of the court in this action, and that he will deliver to the plaintiff the property sought to be replevied in his complaint, or, in lieu thereof, will pay to him the value of said property, as the court may direct, if the plaintiff prevails in this action, and that said defendant, Walter Watson, shall render himself amenable to the order of the court, and that he will not depart from said court "without exoneration from this bond and the order of the court.”
This bond was prepared by counsel for appellee and delivered to the sheriff, to be signed by appellant and surety satisfactory to the sheriff, before appellant should be released. We think it clearly appears from the evidence that appellant and his surety were required to execute the foregoing bond before' his release by the sheriff. The municipal court rendered judgment against appellant for the stone or its value, but refused to render judgment on the bond, and both parties appealed to the circuit court, where the case was tried de novo, and a verdict rendered by the jury for the plaintiff for possession of the property, or its value, which was fixed at $80. Thereupon the court entered a judgment in favor of appellee against appellant, and against Johnson, surety on the cross-bond, for possession of the stone or its value, $80, from which comes this appeal.
Appellant contends that, under the statute, § 8645, C. &. M.' Digest, he was only required to give an appearance bond, and that the bond which he did execute was a bond net' only for his appearance, but a forthcoming bond, by which he agreed to- return the property or pay its value, and that he was required to execute this bond' by duress in order to obtain his release from arrest. Section 8645 of the Digest reads as follows:
“The defendant" shall be, entitled to be discharged from such arrest'at any time before final judgment had in the cause, upon executing to the officer who shall have made such arrest, with. the. addition of his name "of office, a bond in a penalty of at least double the value of the property described, as sworn to in the affidavit, with such security as shall be approved by such officer, conditioned that such defendant shall abide the order and judgment of tlie court in such action, and that he will cause special bail to be put in, if the same be required. ’ ’
This section has been many times construed by this court. Appellee relies for an affirmance of the case upon O’Brien v. Alford, 114 Ark. 257, 169 S. W. 774, where a bond identical in form and effect was upheld by this court; but the distinction between this case and that is, that the bond in that case was voluntarily entered into by the defendant, whereas in this case, as above stated, it is shown to have been entered into unwillingly, and under duress or coercion, in order to obtain his release.
In the case of Daniels v. Wagner, 156 Ark. 198, 245 S. W. 487, this court held that the above section of the statutes only requires a bail bond where the defendant is arrested under a capias attached to the order of delivery, and after analyzing the situation-in that case,'the court said: “We conclude therefore that this bond is a bail bond under the provisions of § 8645, Crawford & Moses’ Digest, and not a delivery bond under the provisions of § 8649, Crawford & Moses’ Digest.” See also Jones v. Keebey, 159 Ark. 586, 252 S. W. 591, and Lane v. Alexander, 168 Ark. 700, 271 S. W. 710.
Since appellee and the officers had no right to demand of appellant a bond other and different from that prescribed by the above section of the Digest, the defendant being in custody under the capias, and since we have concluded that the execution of the bond in this case was procured by duress, we think the court was in error in rendering judgment against'the surety on the bond. For this error the case will have to be reversed. It is so ordered. | [
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Humphreys, J.
This suit was instituted by appellee against appellant in the Southern District of the Chancery Court of Woodruff County to confirm his title to certain lands and lots in said county. The petition contained an alternative prayer that, if title to the lands and lots should not be confirmed in him, the agreement entered! into between him and appellant, John T. Inman, on February 8, 1921, be treated as a mortgage, and that a lien be declared in his favor upon the lands for the unpaid purchase price thereof, and that the lands be sold to satisfy the lien.
The only defense interposed to the action by appellants was that appellee had failed to comply with the agreement of February 8, 1921, in failing to procure a loan on said lands and lots for a term of two years for $6,500, and in failing to advance John T. Inman $1,000 out of the loan and to credit the balance thereof on the unpaid purchase price of the land.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree confirming the title of the lands and lots in appellee, from which is this appeal.
Appellee, being the owner of the lands and lots in question on the 10th day of January, 1919, sold them on that date to W. A. Nailing for $18,000, $3,600 o,f which amount was paid in cash, and the balance, evidenced by four promissory notes in the sum of $3,600 each, due in one, two, three and four years, which were secured by a lien upon the lands and lots. On June 16, 1919, W. A. Nailing and his wife conveyed the lands and lots to John T. Inman, who assumed the payment of the four notes. He subsequently paid one of the notes, but was unable to pay the .others when they became due, so, on February 7, 1921, appellee and appellant, John T. Inman, entered into a written contract whereby it was agreed that John T. Inman should convey the lands and lots to appellee in satisfaction of the unpaid notes and interest, which amounted, to $11,544, on condition that appellee should reconvey the lands to John T. Inman upon the payment of $11,544, and interest at 6 per cent., within two years. The contract contained two provisions pertinent to the issue involved in this case, which are as follows : It is agreed that J. L. Rynearson will make application and procure a loan for a term of two years upon said lands in the sum of $6,500, of which $5,500 shall be applied on the amount due J. L. Rynearson and $1,000 shall be paid to John T. Inman.
“It is further agreed and understood that the party of the second part shall pay all taxes assessed against said lands, and any failure on his part to pay said taxes as they become due shall operate as a forfeiture of any rights the party of the second part shall have under this agreement. ’ ’
Pursuant to the contract, appellant and his wife, Cora Inman, executed a quitclaim deed for the lands and lots to appellee.
Appellants remained in possession of the lands, receiving the rents and profits therefrom. John T. Inman failed to pay the taxes then due upon the lands and lots, and permitted them to forfeit for the general as well as the special improvement district taxes. Appellee redeemed the lands and lots from the tax forfeitures at a cost of $3,178.28.
Appellee made an effort to obtain the $6,500 loan upon the lands and lots, but failed to procure same because his quitclaim deed from appellants was regarded by money lenders as a mortgage and not an absolute conveyance.
Appellants made no objection to the form of the decree vesting the title to the lands and lots in appellee, instead of decreeing a foreclosure sale of the land to satisfy the indebtedness, but contended for a reversal thereof on the ground that appellee was not entitled to any decree because he himself breached the contract by failure to obtain the $6,500 loan and advanced appellant, John T. Inman, $1,000 out of same. This contention is not well grounded, for appellant, John T. Inman, forfeited all his rights under the contract by failing to pay the taxes assessed against said lands and lots, amounting to $3,178.28. If the contract should be construed as imposing an absolute duty upon appellee to borrow $6,500 on the land for a term of years and to turn over $1,000 out of the loan to appellant, J. T. Inman, and to credit the balance thereof on the indebtedness, he was released therefrom by the failure of Inman to pay all the taxes assessed against the lands and lots. There is no ambiguity in the contract. It plainly provides that “any failure .on his (Inman’s) part to pay said taxes as they become due shall operate as a forfeiture of any rights the party of the second part shall have under this agreement.”
The decree is affirmed. | [
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McHaney, J.
Appellant brought this action under the Federal Employers’ Liability Act to recover damages for personal injuries received by him early in the morning of October 12, 1925, while working for appellee in the capacity of section foreman, at or near Buffalo, Arkansas. Appellant was an experienced section man, having been employed by appellee in such capacity for eight years, six of which he had been its foreman, and had never had an accident.
On the.morning of October 12, about 8 o’clock, he took his motor-car from the tool-house, with a helper, to go over the track on his section, to ascertain if there were any washouts or obstructions on the track, a heavy rain having fallen, which was still continuing at the time. The motor on his car was operating badly on account of the rain, and it was necessary for his helper to push the car a distance before it started to run. He had gone only a short distance when he had a head-on collision with another motor-car operated by appellee’s superintendent, receiving severe and-painful personal injuries. The superintendent’s car was much larger than the section foreman’s car, and could not be removed from the track, as could appellant’s car. On this account the superintendent’s ear was operated under orders of the dispatcher, and, on this particular morning, was running as an extra, just as if it had been a train. The collision occurred on a sharp curve. Appellee had a rule applicable to appellant, to the effect that he should expect trains at any time, without warning or notice, and from any direction, and, in order to protect himself, to put out ¡a flag each way, in front and behind. This rule was not complied with. Appellant admitted also that he did not get a line-up, that is, that he did not go to the station agent at the station of Buffalo and get a line-up on all trains overdue or any extra trains. Appellee had a rule that required this to be done when practicable. Appellant says he did not comply with this rule for the reason that the station agent was always late, and went on duty at 8:30, ¡although the station agent lived in the depot at Buffalo, from whom he could have got a line-up on all trains, including the superintendent’s motor-car running as an ¿xtra train, if he had asked for it, as it is not disputed that the station agent always had train orders by 8 o’clock in the morning. Rule 148 also provides that all hand and motor-cars must be run with care and caution, carefully protected by signals when necessary, and must not be used on main track in foggy weather, and requires the keeping of a constant lookout for trains while such hand and motor-cars are being operated. Said rule further requires that the foreman or man in charge shall stop and send flagmen ahead around all obscure curves to prevent the possibility of colliding with trains or other motor-cars.
Appellant frankly admits that he violated all these rules, but contends that it was not practicable under the circumstances. He admits that he did not keep a lookout and did not .see the car in which the superintendent was traveling until he was within five or six feet of it, for the reason that he had his head down, adjusting the needle-valve on the carburetor in order to adjust same so that it would hit regularly. Neither appellant nor his assistant was keeping a lookout, and. the assistant says that the superintendent’s car had slowed up and was not running over ten miles an hour at the time of the collision. Under this state of the evidence, without setting out more of it, the court directed a verdict against appellant, and he has appealed.
We think the court was correct in directing this verdict. The undisputed evidence shows that there was no negligence on the part of appellee in the operation of the car in which the superintendent was riding. On the other hand, the proof shows conclusively that appellant was guilty of the grossest kind of negligence in the operation of his motor-car, in violation of every rule on the subject; and, in taking the car.out and in leaving the station without getting a line-up, as the witnesses call it, giving him all information concerning movement of trains or motor-ears operated under orders over his section, he assumed the risk of any injury he might receive by reason thereof. There was no negligence in the operation of the car of the superintendent, as it was being operated under orders of the dispatcher, just as a train, and, by calling at the station in Buffalo, appellant would have known of the movement of this car as an extra over his section.
While it is true, under the employers’ liability act, contributory negligence is not a complete .defense, assumption of risk is, and, when the employer is guilty of no negligence and the injuries result solely from the act or negligence of the employee, there can be no recovery.
No error appearing, the judgment is affirmed. | [
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Wood, J.
On the 25th of September, 1922, Clay Henderson conveyed to George G. Dent, by warranty deed, a certain lot or parcel of ground in the town of Imboden, Arkansas, lying at the corner of Main Street and the alley dividing block 2 east -and west on the north side of the alley. The lot is particularly described in the deed. Situated on the lot was a two-story brick building, fifty-one feet front by seventy feet deep. At the time of the purchase the building was occupied by G. W. Bowers under an oral lease from Clay Henderson. Bowers was using the lower.floor of the building as a garage. After purchasing the property, Dent and Bowers could not agree upon the rent, and Bowers began the construction of another building for a garage, and claimed that he owned a certain pump and gasoline tank designated as a “filling station,” having purchased the same from one O. H. McKamey, a former tenant, and also that he owned certain indoor fixtures which he had purchased from Henderson. He was threatening to remove this filling station and the alleged indoor fixtures to, his new garage when Dent instituted this action to restrain him from so doing.
In his complaint Dent alleged that he was the owner of the property claimed by Bowers; that same was included in his purchase from Henderson. Bowers denied that Dent was the owner of the property, and the issue thus joined was submitted to the trial court upon substantially the following evidence:
Dent testified in his own behalf. He introduced the deed -above mentioned, and testified that, under the sidewalk and gutter of the street, was a gasoline tank used in connection with the garage. The pump to the tank was situated on the outer edge of the pavement, and -the concrete pavement extended to and was joined to the building. There was a partition running up to the ceiling to cut off the office and the place for materials used for the repair of cars. There were also cabins for bolts and counters and shelving. The shelving and also the partition were attached to the building. The counters were held by their own weight, but were a part of the partition. The counters and partition could not be removed without damage to. the building. The gasoline tank could not be removed without damage to the building and sidewalk in connection therewith. These things were taken into consideration by him when he purchased the lot. He did not know at the time of his purchase that Bowers claimed to own the property.
Clay Henderson testified that, at the time he sold the property to Dent, he did not own the gasoline tank. The building was erected fifteen years ago, and the .tank and filling station were put up in 1917. It is in no way connected with the building, and is at' least five feet from the property line. He did not consider that he owned the shelving, counters, bolts and part cabins used in the garage. He sold all the stock and. fixtures to Hill Brothers. He stated that Dent was aware of the fact that witness did not transfer title to the fixtures and the gasoline tank and filling station. Witness was asked if anything was said by him to Dent at the time of the sale or before in regard to the ownership of the gasoline tank and fixtures, and he answered: “Dent at numerous times talked to Gr. W. Bowers and a real estate agent at Imboden relative to this property. In fact, the deal was practically made by these parties. They had witness ’ terms, and he only talked to Dent on two occasions previous to the closing of the deal, at which time he told Dent about the gasoline tank and fixtures to the building. ’ ’ Witness was further asked to state what he said, if anything, to Dent at the time of the trade as to what went with the building, and stated: “At the time the deal was made they were placing a concrete floor in the front end of the building, and I tried to get Mr. Dent to assume payment of this amount. He refused, and the deal went through with me paying this amount, and he realized that that was all about which there was auy controversy.” Witness further stated that he transferred the title to the tank by a bill of sale to Hill Brothers in 1918. They occupied the building under an oral contract of lease, and sold to Oscar McKamey. He occupied the building under the same kind of contract as Hill Brothers. He sold to G-rover Bowers, and Bowers rented the premises from witness under oral contract until witness sold the property to Dent. Witness was asked to give a complete detail of his contract of sale to Dent, and stated that he prepared the deed himself. Dent understood that he was only getting the building, and witness did not try to pass title to Dent to the fixtures or gasoline station, and Dent knew and realized that he was not obtaining title to anything but the building.
'Bowers testified that the gasoline tank and filling station belonged to him. He purchased it from McKamey. He was asked if Dent knew that this property belonged to witness before Dent bought the property from Clay Henderson, and answered: “I think he did, yes sir.” Witness was sure that he had talked to Dent about it when he bought McKamey’s garage, and he personally talked with Dent and Henderson at the time Henderson sold the building to Dent, and the building was all that was mentioned in their deal, so far as he knew. The gasoline tank and filling station were at the outer edge of a seven-foot sidewalk. The sidewalk was torn up when the tank was installed, and it could be easily removed without damage to the building. There was a seam in the concrete sidewalk where the same was cut to put the tank in, which would enable one to take out the tank and replace the sidewalk just as it was. Witness further testified that the counters and shelving belonged to witness. He bought these from Henderson. Part of these were tacked to the ceiling with small nails, and could easily be removed without damage to the building. Dent knew that these fixtures belonged to witness. Further along in his testimony witness stated that he built the partition and cabinets in the building and glassed half of the shelving since he had been in the building. The concrete sidewalk was laid up against the ■ concrete foundation of the building. It was put there after the building was built. The sidewalk was in the street, and the tank and filling station were in the street. The tank was buried in the street just outside of the sidewalk, about half of the tank being under the edge of the walk. The concrete had been cut to put the tank in, and the part replaced after it had been buried, leaving a seam in the sidewalk. No connection was made with the building, but the pump was placed at the outer edge of the sidewalk.
McKamey testified that he bought the gasoline tank and filling station from Hill Brothers and sold the same to Bowers. Witness remembered about Dent going to his office and talking about the gasoline tank and other fixtures. Witness had an idea that that was after Dent had bought the lot from Henderson.
In rebuttal Dent testified that Henderson did not say one word to him at the time be bought the property about the sale of any fixtures or the sale of any tank to anybody. The question of the fixtures and tank was not mentioned at all. Witness thought, when he bought the property, that all the fixtures and the tank went with the property. He denied positively that either Henderson or Bowers informed him, prior to his purchase, that the fixtures did not belong to Henderson. Witness naturally thought, when he bought the property, that the fixtures and tank went with the property, as they had been put in there by Clay Henderson, who had used them for a year or so in conducting a garage business. Witness understood that he had rented them with the building to other people. Witness bought them when he bought the property, and, after his purchase, he took charge of them and rented them to Bowers.
The trial court found that Dent was the owner of the indoor fixtures, and entered a decree enjoining Bowers from removing same, but dismissed the complaint of Dent as to the “filling station,” and granted Bowers the privilege of taking np and removing the same. From that decree Dent prosecutes this appeal.
“Subject to the easement of the public in a street to use and enjoy as a highway, the fee therein belongs to the owners of adjacent lots.” Reichert v. St. L. & S. F. Ry. Co., 51 Ark. 491. See also Taylor v. Armstrong, 24 Ark. 102. At the time Dent purchased the lot from Henderson, the lot was- being used in part as a filling station. While the tank and pump were on the part of the lot dedicated to the public as -a street, nevertheless the use of the lot as a filling station by the owner thereof did not interfere with the .public use. . Henderson did not reserve in his deed the filling station, and, unless the filling station was personal property, Dent acquired title thereto under the deed from Henderson. The filling station consisted of a five-hundred-gallon tank buried several feet in the ground under the sidewalk which joined the building, and a pump connected with the tank at the outer edge of the sidewalk. This tank and pump could not be removed without taking up a section of the sidewalk and without permanent injury to the freehold. The filling station was worth about $300. At the time Dent purchased the property, it was being used partly as a filling station, and, according to the testimony of Dent, that fact entered into the consideration for the purchase, so far as he was concerned. To be sure, Henderson and Dent could have agreed, when Dent purchased the lot, that the filling station was personal property, and therefore did not pass by the deed. There is no evidence of any such contract between them. True, Henderson testified that he did not own the gasoline station at the time of the sale of the lot to Dent, having sold the same by bill of sale to Hill Brothers several years previous, and that Dent was aware of that fact. But he does not state that he expressly, informed Dent, at the time of the sale, that the deed did not cover the filling station. Dent, on the contrary, expressly denied that Henderson told him he was getting only the naked building. While Henderson testified that he had sold the filling station to Hill Brothers by bill of sale', it was not shown that this bill oi sale was placed on record. Hill Brothers were not in possession of the property at the time of the sale by Henderson to Dent, and there was nothing to advise Dent that they were once the owners of the filling station, and1 that Bowers had acquired title through them.
When we consider the character of the filling station and the use of same to which a part of the freehold had been, and was being, devoted at the time of the purchase thereof by Dent, the presumption, in the absence of proof, would be that the owner, Henderson, had annexed the filling station as a permanent accession to his land. 26 C. J. 666; Choate v. Kimball, 56 Ark. 11; Bemis v. First National Bank, 63 Ark. 625. See also Osarle v. Adams, 73 Ark. 227.
A clear preponderance of the evidence shows that the filling station in controversy is a fixture and the title thereto in Dent, under the doctrine of the authorities above cited. The trial court erred in not so holding. The decree is therefore reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Mehaeey, J.
This suit was brought by the appellee, Cotton, in the Phillips Circuit Court to contest the certification of the nomination of the appellant, Tuck, as a central committeeman from the First Ward of West Helena, Phillips County, Arkansas. It was alleged that the contestant received 74 votes and the contestee 66 votes in said ward, but that the contestee, although receiving onty 66 votes as against 74, had been certified as the committeeman from this ward.
It is first contended that the court had no jurisdiction, because it is argued that the committeemen are not public officers, and that 'the law gives candidates for public office ¡alone the right to contest. It is argued that political parties are voluntary associations, and the voters may organize them at will. It is also .contended that it would be impossible for the Legislature to compel the organization of a political party.
“In the ¡absence of any statute giving them jurisdiction, the courts have no power to interfere with the judgments of the committees and tribunals of established political parties in matters involving party government and discipline. It is much more proper that questions which relate to the regularity of conventions or nomination of candidates and the constitution of committees should be determined b}r the regularly constituted party 'authorities than to have every question relating to a caucus, convention, or nomination determined by the courts, and thus, in effect, compel them to make party nominations 'and regulate the details of party procedure instead of having them controlled by party authorities.” 35 Cyc. 330.
In the absence of statute the courts would have no authority-to interfere in any rvay with political organiza tions, nor with party matters, and would have no authority to entertain a contest for office. .
The question to determine here is whether, under the primary election law, the courts are given authority to he'ar and determine a contest for the nomination of a central committeeman. The authorities construing primary election laws are not in harmony, and that is true partly because of the difference in the statutes or primary election laws of the different States.
Our statute provides: “Whenever any political party in this State shall, by primary election, nominate any person to become a candidate at any general election, regular or special, or for United States Senator, or for Congress, or any legislative, judicial, State, district, county, township or municipal office, the said primary election shall be, and is hereby, made a legal election.” Section 3754, C. & M. Dig. Then follow the directions with reference to the oath, and § 3757 provides: “All organized political" parties selecting their candidates for office through primary elections shall be. subject to the provisions of this act, except in case of vacancies, as hereinafter provided, and each party shall pay the expense of its own primary election, except as herein otherwise provided, and all primary elections for the nomination of county, district and State officers shall be held on the same day. Provided, however, nominations by petition of electors may continue to be made as provided in § 3746.”
It will be observed, from the first section of the statute quoted, that political parties may or may not, nominate candidates by primary election. If they nominate by primary election, said election is made a legal election, and, in conducting this election, the provisions of law with reference to the same must be complied with, and § 3759 provides, among other things: “There shall be chosen at each primary election delegates to the comity convention, and the members of the county central committee to which each election precinct or city ward is entitled, and it shall be the duty of the county central committee to place on the primary ballot the names of all persons nominated for delegates -and committeemen. ’ ’
Prior to this enactment it was the custom of political parties to fix some hour of election day at which time the electors in the precinct or ward were notified to meet and select delegates to the county conventions and central committeemen. Since the enactment of this law, instead of meeting at some hour of the day in a mass meeting, they print the mames of the candidates for delegates to the convention and committeemen on the ballot and vote for them when they vote for candidates for office'. We know of no other reason for the contention that the courts have jurisdiction of election contests than this provision requiring the names of delegates and committeemen to be placed on the ballot.
The section providing for contests reads as follows:
“A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The ¡action shall be brought in the circuit court. If for the office of representative or a county or township office, in the circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred; and if for United States Senator or a State office, in the Pulaski Circuit Court.” Section 3772, C. & M. Digest.
This is the only section providing for a contest, and it does not mention either delegates to the convention or committeemen, and, if the Legislature had intended that the courts should hear contests of delegates and committeemen, we think they would have said so in plain language, so there could have been no dispute about it. Since they did not do that, it is our opinion that they intended to leave these matters, that is, contests for committeemen and delegates, within the jurisdiction of the party itself. It is true that § 3778, C. & M. Digest, provides that “all laws or rules of political organizations holding primary elections providing for contest before political conventions or committees, other than the proceedings herein provided, shall be of no further force or effect.” We think this statute has reference to the contests by candidates for office — those mentioned in the section quoted above — and h'as no reference to contests for committeemen or delegates, but leaves the control of .these matters entirely with the political party.
The Legislature has the authority to give the courts jurisdiction in these matters, but, unless it is clear that the Legislature intended to do this, the courts will not assume jurisdiction, but will leave these matters to be determined by the political parties, just as they were before the enactment of the primary election law. The law does not seek to interfere with the management of party affairs by the central committees or conventions, nor to control them in any way, the purpose of the statute being to secure and protect the rights of the voters, and it was not intended to in any way control or interfere with the action of political parties or with matters that 'are entirely political in their nature.
The Idaho Supreme Court, in discussing the primary election law, said: £tA primary election, within the meaning of this act, is an election held in any county, city, town or precinct in the State of Idaho, by any political party, for the purpose of selecting delegates to political conventions, and the provisions hereof shall apply only to general State and county and general city or town elections. This section clearly indicates the intention of the Legislature to provide for primary elections at which delegates shall be selected to political conventions. The political conventions contemplated evidently were the political conventions designated and recognized by the general election laws of 1899.” Walling v. Lansdon, 15 Idaho 282, 97 P. 396.
The above court has held that the committeemen are not public officers.
££A candidate for nomination has no inherent right to contest his opponent’s nomination at a primary elec tion. Consequently, unless, he is given the right by party rules, or unless a statute makes provision therefor, the election cannot be contested, and, if the Legislature confers the right of contest, it may impose such terms ancl conditions on the exercise thereof as it sees fit. Unless made applicable either expressly or by implication, constitutional and statutory provisions relating to election contests generally do not apply to the contest of primaiy elections, although the contrary has been held.” 20 C. J. 119.
"Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers. As elections belong to the political branch of the Government, the courts will not be astute in seeking to find ground for interference, but will seek rather to maintain the integrity and independence of the several departments of the Government by leaving questions as to p'arty polic3T, the regularity of conventions, the nomination of candidates, and the constitution; powers, and proceedings of committees, to be determined by the tribunals of the parly. Thus, the action of a State convention in deciding between two contesting delegations and the regularity of the State or district conventions or other meeting at which tho3T were selected, is regarded as conclusive.” 20 C. J. 137 et seq.
As we have already said, our statute provides for contests for candidates for office. A committeeman or delegate is not a candidate for office, except office within the party, and it is not a primaiy election as to them, but it is an election to committeeman or delegate of the party.
After discussing the primary election laws and the reason for their enactment, ancl rights of the parties and jurisdiction of the courts, in Buling Case Law, it is said:
“It must- not, however, be concluded, from what is said in the preceding paragraph, that party officers become public officers by reason of the fact that they are elected at a statutory primary election; for the duties of a public office are in their nature public, that is, they involve in their performance the exercise of some portion of the sovereign power, whether great or small, in the performance of which all citizens, irrespective of party, are interested, either as members of the entire body politic or of some duly established division of it. Manifestly, membership in a political committee belonging to one party or another does not come, within the above description of wli-at constitutes public office, and the fact that the Legislature undertakes by statute to regulate the election and conduct of political committees does not make the office a public one. The members thereof contimie to be, as before, officers of the party which elects them, and their duties are confined to matters pertaining to the party to which they belong and which alone is interested in tlieir proper performance. It therefore follows that quo icarranfo is not a proper proceeding by which to try the title to such an office. Nor does a statute requiring the filing of a statement by a candidate for public office of expenses incurred and money expended in securing his election, before he shall be deemed elected to any office, apply to party committeemen.” 9 R. C. L. 1088.
We think it clear that our statute only intended to provide a means of contest for officers, and not for committeemen and delegates to county conventions. If the Legislature should see fit to give courts jurisdiction to try contests for committeemen and delegates, it would have the authority to do so, and, when that i;s done, the courts would hear and determine these questions. Many authorities hold that the Legislature has the power to enact laws providing for primary elections and giving courts jurisdiction to hear and determine contests, but the lawmaking power in this State has given the courts jurisdiction to try contests, hut names the particular officers, and wo tliink that it is thereby meant that those that are not included — delegates and committeemen— are to resort to the party organizations and committees if they desire to contest, and not to the courts.
■ In the case of Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C 980, this court (quoting from the Nebraska court) said:
“It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for .judicial tribunals, for the court to undertake, in any ease, to investigate either the government, usages or doctrine of political parties, and to exclude from the official ballot the names of candidates placed in nomination by an organization which a portion, or, perhaps, a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government. We doubt even whether the Legislature has the power to confer upon the court any such authority. ’ ’
Our conclusion is that the circuit courts have jurisdiction to hear and determine contests for the offices mentioned in § 3772 of Crawford & Moses’ Digest, and that the court ha's no jurisdiction, under our statute, to hear and determine a contest for committeeman or delegate. The party rules are of no further force and effect as to contests for the offices mentioned in § 3772, but they are still in effect as to committeemen and delegates.
Since we hold that the court has no jurisdiction to try this case, it becomes unnecessary to determine the other question raised 'and discussed by appellant.
The judgment of the circuit court is therefore reversed, and the case dismissed. | [
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