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McCulloch, C. J.
C. M. Bledsoe, one of the appellants, was sheriff and collector of Crawford County from January 1, 1919, to December 31, 1922, and the other appellants were sureties on his collector’s bond during his first term.
On July 5, 1921, Bledsoe filed with the county court his settlement, as collector, for the taxes collected by him for the year 1920, and that settlement was examined and approved by the county court on the day it was filed. On July 16, 1923, the county judge caused notice to be served on Bledsoe and his sureties to the effect that on August 7, 1923, the county court would reconsider the settlement of account of July 5, 1921, and correct any error found therein. Upon the maturity of this notice, appellants appeared in the county court and objected on the ground that the county court was without jurisdiction to reconsider the settlement, for the reason that two years had elapsed since the court had approved the settlement. The county court overruled the protest, and proceeded to a reconsideration of the account, and found that there were errors in the settlement whereby Bledsoe had failed to charge himself with the gross sum of $9,632.84, which should have been properly accounted for in the settlement. The court readjusted the settlement and charged Bledsoe with the additional amount found to be due. There was an appeal to the circuit court, where appellants renewed their motion to dismiss the proceedings on account of lack of jurisdiction. This was overruled, and the circuit court proceeded with the trial of the cause, and, after giving all credits found to be due, found alleged errors in Bledsoe’s settlement in the aggregate of $8,039:24, for which he was chargeable, and rendered judgment accordingly.
There were numerous exceptions saved on the trial of the cause, and there are assignments of error with respect to each. The first assignment, the one which we find to be fatal to the proceeding, is that the county court was without jurisdiction, for the reason that the proceedings were not instituted within two years after the approval of Bledsoe’s settlement. The statute under which the proceedings were instituted is as follows :
“Section 10165. Adjustment of Errors. Whenever any error shall be discovered in the settlement of any county officers made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement, to reconsider and adjust the same.”
“Section 10166. Notice of Re-examination. Before any such settlement shall be re-examined, it shall be the duty of the court to give such officer ten days’ notice of the time and place where such settlement will be adjusted.” Id.
It is undisputed that the settlement was made with the county court and approved on July 5, 1921, and that the notice for re-examination of the settlement was not given until July 16, 1923, which was eleven days after the expiration of the statutory time allowed for reexamination of the settlement in the county court. It has been decided by this court that, under the statute referred to, the county court lost jurisdiction to re-examine the account after the expiration of two years from the date of the approval of the settlement. State ex rel. v. Turner, 49 Ark. 311; State v. Perkins, 101 Ark. 358; Fuller v. State, 112 Ark. 91. It was decided in those cases that the settlement of a collector became final and conclusive after the expiration of two years from the date thereof, except that a court of equity may re-examine such settlement on a charge of fraud
Learned counsel for appellee concede this to be the law, but they contend that the proceedings for re-examination of the settlement of Bledsoe were, in effect, instituted prior to the expiration of two years after the original approval of the settlement by the county court. They base this contention upon the fact that, in November, 1922, the county court employed an auditor to check up Bledsoe’s accounts; that the accountant found the shortage which is now charged, and so reported to the county court; that the commissioners of accounts appointed by the circuit court also filed a report with the county court, charging the same amount of shortage reported by the accountant; and that the county court, upon this report, rendered a judgment against Bledsoe and his sureties for the amount of the alleged shortage. These facts are brought out in the proof, and it is also shown that an action was instituted in behalf of the State against appellants in the circuit court of Crawford County to recover the amount found by the county court to be due, but the circuit court dismissed this action on the ground that there had not been a readjustment of the account upon notice, as required by statute. It is thus seen that all the proceedings prior to July 16, 1923, were ex parte, and that none of the appellants were parties thereto. A mere investigation conducted by the county court, or even on order of the county court, was not binding upon appellants without notice having been given as required by statute. Those proceedings can in no sense be treated as being connected with the subsequent proceedings which were begun by giving the statutory notice on July 16, 1923. It is unnecessary to determine in thi's case whether or not the giving of notice within two years would be sufficient to endow the county court with jurisdiction, for it is undisputed that the notice was not given within a period of two years from the time of the settlement.
It follows therefore that the county court had no jurisdiction and that the circuit court acquired none on appeal. The cause could not be transferred to the chancery court, even on proper allegations of fraud, except in a new action commenced in that court. In other words, there could be no transfer of this cause from the circuit court to the chancery court.
The' facts being undisputed, it is unnecessary to remand the case, so the judgment of the circuit court will be reversed, and the proceeding dismissed. It is so ordered. | [
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Wood, J.
Mrs. N. R. Fitzgerald instituted an action against R. L. Cobh and wife in the chancery court of Phillips County to foreclose a deed of trust executed by Cobb on a large plantation to secure an indebtedness to plaintiff of approximately $104,000. The deed of trust was subject to a prior deed of trust in favor of the Deming Investment Company in the sum of $110,000. The investment company was made a party defendant, but filed no answer. It was alleged that Cobb, tlie mortgagor, bad wrongfully . and unlawfully cut timber from the mortgaged premises and sold the same to the Chicago Mill & Lumber Company, and 'also cut timber from the mortgaged premises -and sold same to the Howe-Neely Lumber Company. The value of the timber alleged to have been sold to the Chicago Mill & Lumber Company was not set forth, and the plaintiff asked that that company be required to produce its books to enable the plaintiff to (ascertain the correct value of the timber sold to it. The value of the timber alleged to have been sold to the Howe-Neely Lumber Company was set down at $2,202.47. Judgment of foreclosure was prayed against the mortgagors, R. L. Cobb and wife, and for damages in the sum of three times the value of the timber removed and sold, and against the lumber companies for the value of the timber purchased by them from Cobb.
The only appeal here is by the plaintiff from the decree dismissing’ her complaint for want of equity as against the lumber companies. Therefore it is unnecessary to set out the answer of Cobb and wife, further than to say it denied that they had wrongfully and unlawfully cut and sold timber to the lumber companies. The Chicago Mill & Lumber Company answered, denying that it had, without lawful authority, purchased timber from Cobb, knowing that it had been cut and removed from the lands described, contrary to law, land denied that any timber sold to it by Cobb was grown on, or removed from, the property described, and denied that the quantity of timber sold to it by Cobb was unknown to the plaintiff, and denied that appellants should recover any amount for the timber. It alleged that it had purchased certain timber in the form of logs from Cobb which bad been delivered to it on the west 'bank of the Mississippi River, in dumps or piles, where it could be conveniently loaded on barges; that it was not responsible for the cutting and hauling of the logs to the river; that, when the logs were thus delivered to it, they- were no longer real estate, but personal property, and tbe plaintiff had no lien thereon; that the proceeds of the sale of the logs by Cobb were used by him in the making of necessary improvements on the property described in the deed of trust. It was alleged that the plaintiff and Cobb, on the 25th day of November, 1923, entered into a verbal agreement by which 'Cobb conveyed to the plaintiff the lands involved, the consideration being the release of the deed of trust; that Cobb,-pursuant to the agreement, surrendered possession to the plaintiff and tendered a quitclaim deed to plaintiff to the mortgaged premises; that, iat the time the verbal agreement was entered into for the surrender of the possession of the premises, the plaintiff knew that the timber had been removed and therefore she was estopped from claiming any damages therefor. It was further alleged that the Doming Investment Company had a prior lien on the mortgaged property in the sum of $121,000, which the plaintiff had not paid, and the failure to satisfy this prior mortgage was pleaded in bar of plaintiff’s right to recover against the lumber company. The Chicag’o Mill & Lumber Company also entered a demurrer to the complaint on the ground that it did not state a cause of action, and also on the ground that the plaintiff had not paid the prior indebtedness to the Deming Investment Company, and therefore had no cause of action for the removal of the timber by the mortgagor, Cobb.
The Howe-Neely Lumber Company answered and admitted that it purchased some logs from Cobb, but denied that the plaintiff had any interest therein,' and denied that it was indebted to the plaintiff in the amount prayed. It also denied that the logs purchased by it from Cobb were táken from premises on which the plaintiff had a mortgage. It denied that it had cut logs from any lands owned by plaintiff or Cobb, and alleged that the logs purchased by it from Cobb were delivered by Cobb to the defendant’s millyard at Helena.
The plaintiff replied to the answers, and pleaded the statute of frauds to defeat the alleged verbal contract of sale from Cobb to the plaintiff.
The undisputed, testimony shows that E. C. Nelson, the local manager of the Chicago Mill & Lumber Company, during the year 1923 purchased for the company from R. L. Cobb logs for which it paid the sum of $16,661.72. These logs were purchased under a written contract between the Chicago Mill & Lumber Company and Cobb, executed May 12, 1923. The logs consisted of cottonwood, gum, maple, and elm, and were to 'be delivered on the bank of the Mississippi River at or near Westover Landing, within easy reach of derrick boats at all stages of water, and were so delivered from June to October, 1923. The Chicago Mill & Lumber Company bad the rig*ht to claim the logs as soon as same were placed on the bank of the river at the place specified. The price to be paid for the logs thus delivered was $16 per thousand feet. Westover Place, on which Westover Landing above mentioned is situated, consisted of about 4,500 acres in the whole plantation, divided into several different small plantations included in this foreclosure. Westover Landing Was the landing for all the plantations comprising Westover Place.
The undisputed testimony by those living on the plantations comprising* Westover Place was to the effect that timber was cut from Westover Place for R. L. Cobb in the year 1923 between the river and the levee, and that this timber was delivered on the river bank near West-over Landing*. 'They began cutting the timber as soon as the water went down, and continued until the fall. Timber was cut on the places constituting Westover Place on the land side of the levee, or what is known as the “inside of the levee,” and the timber thus cut was hauled to Helena.
The undisputed testimony showed that the HoweNeely Lumber Company purchased timber from R. L. Cobb during the years 1922 and 1923 amounting to $2,209.47.
Without setting out the testimony in detail, we are convinced that the undisputed testimony shows that the timber purchased by both lumber companies from R. L. Cobb was timber cut by him, from the Westover Place. The testimony shows that the proceeds from the sale of the timber by Cobb were used in the farming operations of the place and in making some minor improvements, such as covering some of the houses. The price paid for the timber by the purchasers included the cutting and the hauling — everything that went into the cost of the timber and the cutting and delivering of the siame. Mr. and Mrs. R. L. Cobb, at the time of the foreclosure, owed the appellant the sum of $118,000. The land was sold under foreclosure and purchased by the plaintiff for-$10,000, and the undisputed testimony is that the foreclosure was subject to a prior mortgage in favor of the Deming Investment Company for $110,000. There is testimony in the record tending to prove that the West-over Place, after the removal of the timber, was worth from $160,000 to $175,000. -One. witness, A. C. Cobb, son of R. L. Cobb, testified that, in his opinion, the Westover Place was worth $275,000.
Another witness, Gerald Fitzgerald, who was familiar with the land, having purchased the same in 1917, gave it as his opinion that the value of the place was from $160,000 to $175,000. No one had made enough on the place to pay the debt due thereon, the cost of farming the same, and the taxes. The most valuable portion of the plantation was in timber. He had tried to help Cobb sell the place, and never could get an offer that would pay the first mortgage and the plaintiff’.s mortgage. One hundred and sixty-five thousand dollars was due on the place prior to the last loan made by the Deming Investment Company. The plaintiff had no knowledge of the cutting of the timber.
F. P. Fitzgerald, husband of the plaintiff, testified that Cobb offered to turn the place back by giving a quitclaim deed, but he would never agree to it when he found out about the timber having been removed from the place. Cobb was going to give it up, either by quitclaim deed or by foreclosure, and, when witness was discussing with Cobb concerning taking the place back for his wife by quitclaim deed from Cobb, Cobb said he had only cut what went on the place for repairs, and witness did not dream that more timber had been removed.
Mrs. Fitzgerald testified that she had no information that Cobb was cutting the timber, and never surrendered her right-therein to any one.
There is no testimony in the record tending to prove that the appellees had any actual notice that the timber purchased -by them from Cobb was timber on which the appellant had a mortgage, nor is there any testimony to ■ the effect that they had any knowledge that Cobb was selling them the timber without the permission of the appellant. The deed of trust or mortgage of Cobb and wife to the plaintiff was duly recorded before the timber was sold.
The above are substantially the facts upon which the trial court entered a general finding in favor of the appellees and a decree dismissing appellant’s complaint against them for want of equity, from which decree is this 'appeal.
1. The first question to be determined is whether or not R. L. Cobb cut the timber in controversy from land upon which the appellant at the time held a mortgage, and, if so, whether, in cutting such timber, he was a tres-passer. The decided preponderance of the evidence— indeed, practically the undisputed evidence — proves that the' timber in controversy was cut from the Westover Plantation, upon which the appellant at the time- held the second mortgage. Likewise the undisputed testimony shows that the proceeds were used by R. L. Cobb in farming operations and in doing some minor improvements on the land, such as covering several houses and the like. In this State the legal title passes by the mortgagor to the mortgagee, subject to be defeated b}^ the performance of the conditions of the mortgage. Danenhauer v. Dawson, 65 Ark. 126, 132, 46 S. W. 131, 44 L. R. A. 193, and oases there cited. Therefore the mortgagor, Cobb, would have no right to cut, remove, and sell the timber and use the proceeds of such sale in-his farming operations.
The affirmative testimony in the record is that the appellant did not consent to the act of 'Cobb in cutting and removing the timber in controversy, and there is no proof of circumstances to justify the trial court in concluding that the appellant had given her consent to the removal and sale of the timber. The doctrine in cases like this is well stated in Searle v. Sawyer, 127 Mass. 491, 494, 34 Am. Rep. 425, as follows:
“If a farmer mortgages the whole or a part of his farm, with a clause permitting him to retain possession, * * * it is within the contemplation. of the parties that he is entitled to take the annual crops and wood for fuel, and we do not think that the implied license is necessarily limited to the annual crops, but that it extends to any acts of carrying on the farm which are usual and proper in the course of good husbandry.”
It could hardly be said that the usual course of good husbandry justified Cobb in removing the timber from the freehold for purposes indicated in this case, and it cannot be reasonably presumed that the appellant gave her consent to such conduct of Cobb. We conclude therefore that the acts of Cobb were wrong in cutting*, removing, and selling the timber for the purposes shown, land such acts constituted him a trespasser.
2. The next question is, was R. L. Cobb a willful trespasser? He must be held to have known that he had no right to cut the timber, except such as was necessary in good husbandry, such as for fuel, for making and repairing fences, and the like, but certainly not for the purpose of paying his expenses of general f arming operations, such as the expense incident to the planting, cultivation and harvesting of his crops. Cobb was overwhelmed with debt; he was not able to make financial arrangements to conduct his farming operations, not even to pay his taxes, amounting to about $700. When negotiations were pending looking- to the surrender of possession of the plantation by Cobb, he was asked if he had cut any of the timber, and replied, “No, you know I wouldn’t do that — only for plantation purposes — for buildings- — only what went on the place for repairs.” A. C. Cobb himself, in his testimony, said that nothing was said about his fiather paying for the timber; that it was not discussed at all. He further stated that the Fitzgeralds knew “that the money my father had got out of the timber had been spent back into the crop. ’ ’ He says: “We -discussed what the money was used for.” Now, it occurs to us that, under these circumstances, the removal land sale of the timber by Cobb, without having first obtained the consent of appellant, constituted Cobb a willful trespasser. In other words, it must be held that his acts in removing and selling the timber were not in good faith. See Foreman v. Holloway & Son, 122 Ark. 341, 183 S. W. 763.
3. Such being the case, the next question is, what was the measure of appellant’s damages as lagainst the appellees? While appellees had no actual notice that Cobb was a willful trespasser in cutting and removing the timber, they had constructive notice of the mortgage, and therefore must be held to hiave known that the timber did not belong to Cobb. Therefore, in purchasing and .paying Cobb for the timber, instead of the appellant, they placed themselves precisely in Cobb’s shoes as to liability for actual damages in conversion of the timber. This court, in Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49, passing upon a similar question in an opinion voiced by Mr. Justice Riddick, s'aid:
“The question here for decision is whether the defendant, who purchased the ties from the trespassers, and then converted them to its own use, is entitled to any reduction in the damages on account of the increase in value caused by the work and labor of the willful trespassers. We must answer this question in the negative. The timber belonged to the plaintiffs. The title to it was not changed by the trespass, or the conversion to cross-ties. It still belonged, in its improved shape, to the plaintiffs. Had Less & Watkins, who knowingly and wrongfully put labor upon these ties, been sued, they, as before stated, would have been entitled to an allowance or reduction of damages on account of the labor expended or value added to the timber, and could convey no such right to the coal and coke company. Admit that the company was an innocent purchaser, still it purchased property belonging to plaintiffs from those having no right to sell, it converted this property to its own use, and plaintiffs were, by this conversion, damaged to the extent of the value of the property at the time of the conversion. The company, it will be noticed, did not perform any work and labor on these ties, nor add any value to them. Under these circumstances we think the circuit judge correctly ruled that the measure of damages was the value of the ties at the time and place they were converted by the defendant company, with interest at six per cent, from date of conversion.” 'Citing cases. 'See also, in addition to the authorities from other jurisdictions there cited, Hudson v. Burton, 158 Ark. 619, 250 .S. W. 898, and other Arkansas cases there cited on page 622 (250 S. W. 899).
Of course the rule would have been different if Cobb had been merely a technical trespasser, innocent of any bad faith or intentional wrongdoing. See Randleman v. Taylor, 94 Ark. 511-513, 127 S. W. 723, 140 Am. St. Rep. 141, and cases there cited. Foreman v. Holloway & Son, supra; Baker-Mathis Lbr. Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S. W. 995.
4. 'Counsel for the appellees contend that the conversion of the timber did not impair the security of the appellant. This contention cannot be sustained, for the reason that the undisputed testimony shows that 1,063,120 feet of logs were sold to the appellee, Chicago Mill & Lumber Company, for the sum of $16,661.72, and logs of the value of $2,209.41 were sold by Cobb to the HoweNeely Lumber Company. Thus Cobb removed timber from the freehold upon which the appellant had a mortgage, which timber in its converted form was of the aggregate value of $18,871.19. While A. C. Cobb testified that it cost $9,991.13 to remove the trees, that still leaves a margin of nearly $9,000 that the timber was worth to the freehold while standing. The removal of the timber therefore lessened the value of the mortgaged property and appellant’s security.at leiast to that extent. While A. C. 'Cobb testified that, in his opinion, the value of the land was $275,000, a decided preponderance of the evidence shows that he was mistaken in this conclusion. The debt to appellant for which the property was sold at foreclosure amounted to $118,606.54; the property was directed to be sold subject to the rights of the Deming Investment'Company; the Deming'Investment Company’s mortgage, principal and interest, amounted to more than $110,000. The property was sold under foreclosure order of the court at public sale to the highest bidder, and the highest and best bid at the sale was the sum of $10,000, which was the bid of appellant. To have obtained an unincumbered title, appellant would have had to pay the debt to the Deming Investment Company. She had the right to pay that debt and to obtain, all the security unimpaired that the investment company had under its mortg'ag’e. Whatever lessened the security of the first mortgage, necessarily lessened the security of the appellant. The property, under the law, did not belong to Cobb until the mortgage debts thereon were paid. It belonged to the mortgagee. Primarily the Deming Investment 'Company had the right to the security, but, if it did not elect to avail itself thereof, then the ajopellant had the right, in • the protection of its security, to hold the appellees liable for the value of the property which, by their purchase, they had enabled Cobb to convert to his own use, to the detriment of the appellant.
5. It is urged by the appellees that the appellant was estopped from claiming the value of the timber from appellees because she knew that it was being removed by Cobb, and made no complaint for a period of almost a year. While the testimony of A. C. Cobb ahd-R. E. Scott, the overseer on the plantation, shows that logs were .stacked on the river bank on the Westover Place during the velar 1923, and that Gerald Fitzgerald was over the plantation several times while the timber was banked there, yet the appellant herself testified that she had no information or knowledge that Cobb was cutting the timber on these places. Scott, the overseer, testified that he never saw the appellant on the place. F. P. Fitzgerald testifies that he had absolutely no knowledge of the cutting of the timber until after Cobb had surrendered possession thereof to appellant’s agent, Marley. Gerald Fitzgerald testified that he had no knowledge of the cutting of timber during the time same was being cut from' December, 1922, until October, 1923. Therefore we conclude that the preponderance of the evidence shows that the appellant was not barred by laches or estopped in any way by her conduct from making a claim for the value of the timber in controversy.
6. While the undisputed testimony of A. C. Cobb wias to the effect that the proceeds from the sale of the timber were used in farming operations and making minor improvements, such as covering houses and the like, he does not testify what amount was used in the way of the purchase of necessary fuel or in making the necessary repairs. In short, he does not testify what amount, if any, was used in the course of good husbandry. Cobb commingled the entire proceeds piaid him by the appellees for the timber. The burden was upon the appellees to prove what amount, if any, was expended on the plantation in conformity with good husbandry. A. C. Cobb was a witness for the appellees, and they were given an opportunity to develop the facts along this line, and presumably did not do so because they could not.
After a careful consideration of the entire record, our conclusion therefore is that the court erred in dismissing the appellant’s complaint against the appellees for want of equity. The trial court, instead, should have entered a decree in favor of the appellant against the appellee, Chicago Mill & Lumber Company, in the sum of $16,661.72, land against the appellee, IIowe-Neely Lumber Company, in the sum of $2,209.47, with interest at the rate of six per cent, per annum from date of conversion. The decree is therefore reversed, and the cause is remanded with directions to enter a decree in favor of the appellant against the appellee, Chicago Mill & Lumber Company, in the sum of $16,661.72, and against the appellee, Howe-Neely Lumber Company, in the sum of $'2,209.47, with interest at the rate of six per cent, per annum from the date of conversion.
Mehanfy, J., dissenting on measure of damages. | [
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McCulloch, C. J.
F. R. Wood, one of the appellees, instituted an action in the circuit court of Madison County against George A. Reese and Gussie E. Reese to recover on a note in the sum of $4,949, executed by them to the said appellee, and he caused a general attachment to be issued against the defendants and levied on personal property and real estate — numerous tracts of land containing several thousand acres. Said defendants were nonresidents, and were brought in by publication of warning order. The court rendered judgment in favor of appellee Wood against the defendants for the amount of the note; with interest, amounting to the aggregate sum of $7,679.27, and ordered the attached property sold by the sheriff. There was a sale of the property, and the real estate was purchased by appellee C. E. Crawford, and the sheriff reported the sale to the court for confirmation. At the term at which the report of sale came up for confirmation, but' before there was an order of the court in that regard, appellant, a foreign corporation, appeared and filed what was termed an interplea, asking that the sale be not confirmed, but that it be set aside'. Appellant alleged that George A. Reese held the legal title to the lands in controversy, in trust for appellant, and that, shortly after the purchase of the land by Reese, appellant, through its agent, entered into possession of a portion of the lands, cleared up about five hundred acres, and fenced it and built houses and other improvements thereon. The plea contained a prayer for .transfer of the cause to the Madi-' son Chancery Court, and that, on final hearing, appellant be decreed to be the owner of the lands or have a lien on the lands for the amount it had expended on permanent improvements.
Appellees Wood and Crawford answered the inter-plea, denying that appellant was the owner of the land or that the same was held in trust for appellant, and the cause was thereupon transferred to the chancery court. On final hearing, the court dismissed the complaint or interplea for want of equity.
Appellant was not a party to the original action, and was not bound by the judgment or by the sale made thereunder, but its interplea was answered and the cause was transferred to the chancery court, hence we may properly pass over the original proceedings in the action of appellee Wood against defendant Reese and treat the status of the present proceeding as an effort on the part of appellant in a court of chancery to enforce an alleged trust whereby Reese held the title to the lands for the use and benefit of appellant.
Appellant offered the depositions of three witnesses .-to establish the alleged trust, and appellees filed a motion to exclude the testimony as incompetent. It was disclosed in' the testimony of appellant’s witnesses that there was a written contract between Reese and appellant whereby he agreed to hold the land in trust for appellant, and to convey the same to appellant. The writing was unaccounted for, and it was improper to prove its execution and contents by oral testimony. The court was therefore correct in excluding this testimony, so far as it referred to the written contract.
It is further contended that there was a resulting trust on account of appellant furnishing money to use in the improvement of the lands, and which was used in such improvement. There is no proof, however, that appellant furnished money with which to buy the lands. The rule is well settled by decisions of this court that, in order to constitute a resulting trust, the contribution of funds upon which the trust is claimed to have arisen must have been made at the time of, or prior to, the purchase, and not afterwards. Reeves v. Reeves, 165 Ark. 505. The proof in the present case does not show that appellant contributed funds with which to purchase the lands, and no trust arose on account of its having furnished funds later with which to improve the property.
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McHaney, J.
This'is an action to establish as the debt of appellant a $3,500 note executed by R. A. Doyle and H. W. Doyle, originally executed December 4, 1922, and renewed thereafter every 90 days, the last renewal being August 19,1925, and for a judgment in said amount against appellant, -with interest. In 1922 appellant negotiated a loan from appellee in the sum of $7,000, through Mr. Milton Winham, president of appellee, and a director in appellant company. This amount being in excess of the amount appellee could lawfully lend to anx one borrower, it was arranged between appellant and appellee that they would split the loan into two notes, one to be executed by appellant, with personal indorsers, and the other to be executed by said Doyles, with $7,000 stock in appellant as collateral. Accordingly, on November 29, 1922, Mr. Winham, acting for appellee, wrote Mr. J. P. Blanks, vice president of appellant, and who was acting for appellant, in part as follows:
“In accordance with our talk a few days since about the loan from the Doddridge State Bank of Doddridge, Arkansas, I am herewith handing you two notes for $3,500 each. One of these is for a loan to the company, properly executed by same, and the other to be loaned to the company through one of the men in the house, and secured by twice the amount of stock in the company, properly executed, with' the releases, as you stated. You know just how to fix these up legally, and I will ask that you do all this and send same to me at Texarkana, and I will have exchange sent to the company according to your directions. * * *”
And in concluding the letter, said: “Kindly have it all fixed up so that we can get by the Bank Commissioner without criticism, and mail to me here, and I will attend to it.”
In response to this letter, Mr. Blanks, on December 1, wrote Mr. Winham two letters; one in which he inclosed the note signed by appellant and indorsed by certain individuals, and in the other he inclosed the note signed by the Doyles, with the stock as collateral; Both notes were executed on the same date, to-wit, December 4, 1922, and, on receipt of said notes and collateral, executed and indorsed in accordance with said agreement, appellee mailed exchange to appellant in the sum of $7,000. Thereafter, from time to time, as the notes became due and were renewed, notices were sent to appellant and remittances were made by it for the interest on both notes, and several letters-passed between appellant and Mr. Winham, acting for appellee, regarding the matter. On August 19,1925, the last renewal was made, and neither of the notes was paid at maturity, but finally appellant paid the note executed by it, and on February 4, 1926, Mr. Blanks wrote a letter to Mr. Winham, in which, for the first time, he intimated that the note executed by the Doyles was not in fact an obligation of the company. Mr. Winham answered this letter immediately, on February 6, and advised Mr. Blanks that he would not agree with his interpretation of the matter, and in which he asserted that the Doyle note was a note of the company, and that it was arranged that way by Mr. Blanks; that the company got the money, paid the interest, and that the company would be expected to pay. Thereafter suit was brought in the Pulaski Chancery Court to have this note declared the indebtedness of the company, and to impound the funds of appellant in the hands of R. C. Wilkins, who was placed in charge of the business of appellant as a creditors’ manager, or liquidating agent, and to enjoin him from disposing of the funds without taking this note into consideration. On a hearing the chancellor found that the note in question was an obligation of the company, and rendered judgment against it, with interest, amounting to $3,729.60, from which comes this appeal.
We think the chancellor was right in so holding. The very great preponderance of the evidence shows this to be the fact, and the letter written by Mr. Winham on November 29 conclusively, to our minds, shows this to be true. At any rate, we cannot say that it is against the preponderance of the evidence. This being true, the contention of counsel for appellant that this is a suit for the reformation of a written contract, and that therefore the rules of evidence applicable to reformation apply, cannot be sustained. It was simply a suit by appellee to have this note established as the obligation of appellant. An action for reformation is usually based on a mutual mistake, or a mistake of one party accompanied by fraud or other inequitable conduct on the part of the other party. American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Welch v. Welch, 132 Ark. 227, 200 S. W. 139. There are no allegations to this effect in this complaint, and the only issue made by the complaint was whether or not appellee loaned appellant $7,000 and took notes in evidence of the transaction, as charged in the complaint. This court has heretofore held that a note ■ executed by one person may be in fact shown to be the real debt and obligation of another person. Richeson v. National Bank of Mena, 96 Ark. 594, 132 S. W. 913. And it'is only necessary to show this fact by a preponderance of the evidence. It was not even necessary that the contract be in writing. It was not within the statute of frauds, and the same rule of evidence would obtain.
Appellant next insists that appellee is not entitled to recover, irrespective of reformation, for the reason that the loan was made in violation of the law, and that, of necessity, in mailing out his case he is forced to rely on an illegal transaction, and that in such cases relief will be denied. This contention is based on § 698 of O. & M. Digest, which is as follows:
“No bank in this State shall lend its money to any individual, corporation or company, directly or indirectly, or permit any individual, corporation or company to become, at any time, indebted or liable to it in a sum exceeding thirty per cent, of its capital stock actually paid in, or permit a line of loans or credits to any greater amount to any individual or corporation; a permanent surplus, the setting apart of which shall have been certified to the Commissioner, and which cannot be diverted without due notice to said officer, may be taken and considered as a part of the capital stock for the purposes of this section. Provided, that the .discount of the following classes of paper shall not be considered as money borrowed within the meaning of this section. * * *”
This provision of the banking law was enacted for the protection of depositors, creditors and stockholders. It carries with it no penalty. It has no provision making an excessive loan void or unenforceable as against the borrower. This section was amended in 1927 in many particulars, none of which are applicable to this case; but, in the third section of the amendatory act, a penalty is fixed for the violation thereof by the officers and directors knowingly permitting excess loans, making them personally liable for the excess amount of the loan in the event the bank should sustain loss by reason" of such excess. See act 174, Acts 1927, page 612.
It was not the intention of the Legislature enacting this law, as more plainly appears in the amendatory act, to relieve the borrower from liability on account of the violation of the law by the officers of the bank, and, as was said in the case of Richeson v. National Bank of Mena, supra, “It has been held by the Supreme Court of the United States that the action of a national bank in making an excessive loan contrary to the national banking law could only be objected to by the Government, and that the debtor could not urge the prohibitive provisions of the national statute ag’ainst a recovery of such excessive loan.” Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; Nat. Bank v. Whitney, 108 U. S. 99, 26 L. ed. 443; Gold Mining Co. v. Nat. Bank, 96 U. S. 640, 24 L. ed. 648. Section 745 of C. & M. Digest only provides a penalty for overdrafts and 1ms no relation to § 698. The only penalty we have been able to find fixed by law for a violation of the excessive loan act is that contained in the act of 1927, above referred to.
We therefore hold that, although this was an excessive loan and made in such a way as to avoid criticism of the Bank Examiner, yet it could not have the effect of destroying the obligation to pay, and that the only person who could question the matter at all would be the State, through the Bank Commissioner. The decree of the chancery court is therefore right, and is in all things affirmed. | [
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McCulloch, C. J.
North Arkansas Highway Improvement District No. 3 is composed of territory embraced in the counties of Sharp, Lawrence, Izard and Pulton, and was created by act No. 32 (unpublished), approved February 3, 1920, of an extraordinary session of the General Assembly. The statute is in the usual form, creating the district, providing for commissioners in each county, to be appointed by the respective county courts, and conferring authority to improve the road mentioned, to borrow money, assess benefits and levy taxes. Power is also conferred to employ engineers and other agents to carry on the work. Section 2 of the statute describes the route of the public road to be improved as one beginning near Mammoth Spring, in Pulton County, “at a point to be selected by the commissioners,” thence in a general southeasterly direction to the towns of Hardy and Williford, in Sharp County, and thence to the town of Bavenden, in Lawrence County; also beginning at or near Mount Olive, on White Biver, at a point to be selected by the commissioners, thence northeasterly through the towns of Melbourne, La Crosse, Violet Hill, Franklin and Myron, in Izard County, and through Ash Plat, in Sharp County, to the town of Hardy, intersecting the Mammoth Spring road at Hardy; also a lateral beginning at a point on the Mammoth Spring road near Mammoth Spring and thence- east to the town or village of Wirth; also beginning at the village of Hill Top, and thence southwesterly to Williford and Sitka, and thence to Poughkeepsie, in Sharp County, this being a lateral intersecting the Mammoth Spring road at Williford. These roads are treated as a single improvement, and they connect up with each other so as to be treated as such.
Section 3 of the statute makes it the duty of the commissioners to “improve roads herein described by grading, drainage and surfacing them, or part thereof, in such manner and with such material as the plans of the district may designate, and by straightening and widening them, and to construct bridges and culverts as needed on said road, according to the plans that may be approved by the county courts of the respective counties in which said road or parts thereof is situated.”
Section 7 provides for the filing of the plans of the proposed improvement with the respective county courts, together with an estimate of the cost of the work to be done in each county.
Section 10 provides that “if said plans contemplate that the line of any public road to be improved shall be straightened or changed and the county court of the county in which the changed part is situated approve the same, this shall constitute a laying out by the county court of the said road as changed.” The section further provides that, if additional lands are taken in laying out and constructing the new road caused by the change of route, damages shall be paid, and provision for notice to the affected landowners is made.
The commissioners of the district were duly appointed by the respective county courts, and, after effecting an organization, they entered into a contract with appellant to do the engineering work, both preliminary and permanent, and, pursuant to this contract, appellant started a preliminary survey, which was practically completed, though the work was stopped before the plans 'were made out. During the progress of the work of making the preliminary survey much opposition was developed, and it was determined by tbe commissioners that it would be impracticable to construct the road, so the scheme was abandoned, and appellant instituted this action against the district in the chancery court of Sharp County to recover on the quantum meruit for services performed in making, the preliminary survey. He alleged in his complaint that, in making the survey, he incurred an actual expense of $6,343.09, and that $3,000 would be a reasonable compensation for his own services. The district answered, denying that the services performed by appellant were of any value to the district, and alleging that the survey made was along a route not specified and authorized by the statute. There was a trial before the chancery court, which resulted in a decree dismissing appellant’s complaint for want of equity.
There is a conflict in the testimony, which it becomes necessary to reconcile, and in doing so it is our duty to leave the findings of the chancellor undisturbed unless discovered to be against the preponderance of the evidence.
It appears from the testimony that the public road described in the statute begins at the town of Mammoth Spring, on the west or south side of Spring River, and runs down the river for about a mile and a-half or two miles, and then crosses the river by a concrete bridge, thence approximately following the line of the St. Louis-San Francisco Railway Company down the east or north side of Spring River to the town of Hardy, and thence, partly on that side of the river, to the town of "Williford and on to the town of Ravenden, in Lawrence County. It is also conceded that appellant, in surveying for the construction of the improvement, changed the route so as to •cross Spring River near Mammoth Spring, instead of following the line of the old road down on the south or west side, and that, from Hardy to Williford, lie crossed back to the south or west side of the road, instead of following the old line on the north or east side to Williford. The road from Hardy, on Spring River, over to Mount Olive, on White River, runs through the towns mentioned in the statute, and the evidence shows that the line surveyed by appellant also ran through those towns, but it is conceded that the survey did not follow the old road, and, on the contrary, that it frequently departed from the old route for the purpose of straightening the line and lessening the distance. There is, as before stated, a conflict in the testimony as to the extent of these changes. The same can be said with respect to the line of road beginning at Hill Top and intersecting the Mammoth Spring road at Williford and running southwesterly down to Poughkeepsie. The survey made by appellant followed the route with respect to the termini and the intervening points mentioned in the statute, but the line was frequently changed by the new survey, and did not follow the old route.
The conflict in the views held by the judges of this court, both with respect to the facts and the law of the case, is such that it becomes necessary to determine the net result of these views. It is the opinion of Justices Wood and Hart that the statute creating the district does not authorize the commissioners to make any changes in the road other than those that are deemed immaterial. Justices Smith and Humphreys and the writer are of the opinion that the power of the commissioners is not thus limited by the statute, but that, on the contrary, the board of commissioners may, with the approving action of the county court, make material changes in the route, if those changes are not such as to constitute an entire departure from the improvement contemplated by the statute. They are of the opinion, further, that an engineer performing, in good faith, services in making a preliminary survey and plans authorized by the statute, is entitled to compensation, even though that survey may never be approved by the county court. It is necessary for the survey to be made in order for the county court to determine whether or not the route thus surveyed will be approved, and, if the services are performed in good faith, the fact that the time for approval by the county court is never reached, or, if the county court should, for good cause, not approve the change in the route, the engineer nevertheless is entitled to his compensation. The test is whether or not the services were performed in good faith and are reasonably calculated to be of resulting-benefit in the event of the construction of the improvement.
These views of the majority, of course, constitute, to that extent, the law of the case. There is, however, a further difference in the views of those just referred to as the majority, in that Mr. Justice Smith is of the opinion that, according to the facts of this case, in making the survey there was a complete departure from the scheme of improvement authorized by the statute, and the views of Mr. Justice Humphreys and the writer are to the contrary. They (the writer and Mr. Justice Humphreys) areof the opinion that, since the survey ran between each of the stated termini and through the towns and villages mentioned in the statute, the scheme was not departed from, even though material changes were made.
It will be observed from the language of the statute that the lawmakers intended to authorize material changes, for the reason that the approval of the count}court is required. This court has decided that immaterial changes may be made without the authority of the county court (Wimberly v. Road Imp. Dist., 161 Ark. 79), and, if only immaterial changes had been contemplated by the lawmakers, it is not reasonable to suppose that they would have required the approval of the county court. It will be observed that § 3 of the statute uses the words ‘‘straightening and widening” in referring to the roads to be improved, but § 10, in referring to the approval of the county court, uses the word “straightened or changed,” and provides that, where additional lands are taken “in laying out and constructing the new road caused by the change of route,” damages shall be paid, etc. Now, all of this shows clearly to our minds that the lawmakers contemplated the making of material changes, and the only limitation placed upon the power was that it should be subject to the approval of the county court, for this was a recognition of the county court’s jurisdiction in laying out or changing public roads. What the Legislature contemplated, in the opinion of Mr. Justice Humphreys and the writer, was that the route of the road to be constructed, whether according to the line of the old road or by a changed route made by the commissioners, should be designated by the .respective termini and the intervening points, and that a rouie surveyed between those points, even though there was a material departure from the line of the old road, fell within the authority of the statute.
Justices Wood and Smith have reached the conclusion, from a consideration of the facts of the case, that the whole line surveyed by appellant constituted- such a complete departure from the route indicated in the statute that it was, in effect, a wholly different project, and was unauthorized, and that appellant is not entitled to any compensation for his services in making the survey. They are of the opinion that the facts of the case bring it within the decision of this court in the ease of Kern v. Booneville and Sanatorium Highway Dist., 154 Ark. 107. Their conclusion is, on the whole case, that the decree of the chancery court should be affirmed. Mr. Justice Humphreys and the writer are of the opinion that the testimony in the case shows that, under their view of the law as expressed above and of the facts as they find them to be, the survey made by appellant was done in good faith and within the authority conferred by the statute, even though there were material changes in the route, and that the case of Kern v. Booneville & Sanatorium Highway District, supra, does not apply, and that appellant is entitled to compensation for all of his services.
There seems to be no serious conflict in the testimony as to the expenses incurred by appellant in making the survey, or the amount of compensation to which he is entitled. We (Mr. Justice Humphreys and myself) would reverse the case, with directions to enter a decree in favor of appellant. The views of Mr. Justice Hart traverse middle grounds between the extreme views, on the facts, of Justices Wood and Smith on the one side and Mr. Justice Humphreys and the writer on the other. He (Mr. Justice Hart) is of the opinion that appellant is not entitled to compensation for services rendered in making material changes in the route of the road. He thinks that the survey was made in good faith, and that the case of Kern v. Booneville & Sanatorium Highway District, supra, does not apply, but that, in so far as material changes were made, it was not authorized by the statute, and for that reason there should be no compensation. He is of the opinion, however, that the survey of parts of the road made only immaterial changes so as to widen or straighten the road, and that, since the survey was made in good faith, appellant is entitled to recover for those services on the quantum meruit. Those conclusions of fact reached by Mr. Justice Hart, since they occupy middle ground between the other extreme views, necessarily control the decision of this case. There was not such a separation, however, in the testimony adduced below-to afford means for determining what amount of compensation appellant is entitled to under the rule resulting from our conflicting views. There being such a conflict in the views of the justices as to the facts of the case, we deem it unnecessary to state them here in detail. There are separate opinions stating in their own language the views of the respective justices, and, since the opinion of Mr. Justice Hart will be controlling, it will serve as a guide to the trial court in the further proceedings.
The decree is therefore reversed, and the cause remanded, with directions to the chancery court to hear further testimony, if offered by either party, and to determine therefrom the amount of compensation to which appellant may be found to be entitled on the quantum meruit basis, for surveying such parts of the route where the changes from the old route were not material. | [
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McHaney, J.
Appellees are the widow and two daughters of George O. Raymond, deceased. On June 4, 1925, each of the appellants issued to said George O. Raymond a policy of life insurance in the sum of $1,000, with a double indemnity clause covering death by bodily injury through “external, violent and accidental means.” The policy issued by the appellant, Mutual Life Insurance Company, designated appellee, Alice M. Raymond, as the beneficiary, and the policy of the .¿Etna Life Insurance Company designated the appellees, Mary F. and Johnnie E. Raymond, las his beneficiaries. On April 26, 1926, George O. Raymond came to his death from a pistol-shot wound, which all parties admit was self-inflicted, but they differ as to whether his death was by suicide or by accident — whether intentional or unintentional. Suicide, whether sane or insane, within one year after the date of said policies, was not -a risk assumed by the appellants. Appellants having denied liability after proof of death, separate suits were instituted against them, but, the defense being the same, they were consolidated, tried together, separate judgments of $2,000 each, under the double indemnity clause, had, and they jointly prosecute this appeal to reverse such judgments.
Suicide being the defense relied upon by appellants, the law places upon them the burden of establishing this fact by a preponderance of tbe evidence, which they undertook to do. The facts developed are substantially as follows:
The insured was a deputy for the- county clerk and the circuit clerk, and had been during the year 1925, and up until the time of his de'ath in 1926, his office being in the rear of the Bank of McCrory, McCrory being one of the county sites of Woodruff County. For two or three months prior to his death he had been drinking somewhat, but none of the witnesses testified that he had been drinking to excess. -Some complaint had been made against him by one or two persons on hi® bond to the clerks that he was neglecting his duties by remaining awiay from his office too much, and on the morning of his death both the county and circuit clerks came to McCrory for the purpose of talking to him about these matters, and of checking over his accounts. Mr. Raymond was at home, ill. He had been suffering with what his physician thought was influenza for about two weeks, and on the morning in question, April '26, after the arrival of the clerks, one of his bondsmen called him on the telephone and advised him that the two clerks were there for a conference with him, and to check over his accounts, and requested him to come to his office, if he was able to do so, which he agreed to do. It appears that he had been taking'medicine during the night, which necessitated his going to the toilet, a small wooden structure to the back of his house, twice before his death, being accompanied on both occasions by his wife. He had borrowed a pistol from a friend in McCrory, who had requested the return of same, and he had been cleaning the pistol with a handkerchief. -Shortly after the telephone call he took the pistol, got in his car, and started to his office, but, after going a short distance, he returned, got out of his ear, and ¡again went to the toilet, in response to a call of nature, apparently, and a short time thereafter a shot was heard in the toilet, and a scream of pain was heard by his wife, who was at the time in the garden near the toilet. His brother, Jack Raymond, land two other gentlemen immediately responded, being the first ones to him, and they found him .sitting on the toilet with his trousers down, as if in the act of responding to a call of nature, slumped over, with this borrowed pistol and the handkerchief he had used in cleaning it lying between his feet. They found that he had been shot through the left breast, the bullet entering, according to the doctor, ■ right under the heiart and passed through his back, going through the body, whether straight through or not the doctor did not know. He was taken into his house, where he died shortly after the arrival of the physician. No powder-burns were found on his clothes. The toilet on which he was sitting had a metal lid, which had been elevated, and the bullet from his body passed through this lid near the top, and through the wall of the toilet, the bullet-hole in the seat covering being 13 inches above the seat, and in the wall one inch lower, which would tend to show that the bullet ranged slightly downward.
It was further shown that, during’ his illness, he got out his insurance policies, which he kept in the dresser drawer, and examined them. His wife stated that he and she read the policies together, including the suicide clause, and that he was familiar with this clause, and knew it was in the policies. Other members of the family saw him reading the policies and heard him discuss them with his wife. ■ On cross-examination of Mrs. Raymond she was asked this question, and permitted to give the following answer, over appellants ’ objections and exceptions: ‘ ‘ Q. I want you to tell the jury what, if anything, was said by your husband, when he wias examining these policies, about paying the next premiums that came due? A. He told me that he was very sick, he was feeling awfully bad, and he didn’t think he would ever be able to work any more, and he wanted his premiums to be kept up. He said, ‘Wife, if I haven’t the money when they come due, I have' a friend who will help you out. They must be kept up’.” This conversation occurred three days before his death.
The undertaker who took charge of his body found two notes in his clothing which he wore at the time, both of which had been destroyed or been misplaced; one to J. C. McCrory, and the other to Senator Walter W. Raney, the undertaker. The note to McCrory, in substance, read: “Dear J. C. You have been good to me and my family. Good luck.” In the note to Senator Raney he stated that he was sick, did not know whether he would get well, and, if not, for him to take charge of his body. 'Both McCrory and Raney were warm personal friends of the deceased, McCrory having loaned him money to send his two girls away to school.
It is also shown that he was overdrawn in a small amount at the bank. An examination of his accounts at the office of the county and circuit clerk disclosed no shortage, and nothing of a criminal nature. It was developed that some warrants of duplicate numbers had been issued, but on examination thereof by the county judge they were held to be valid, and were reissued.
Under the above state of facts, the appellants insist that the court should have directed a verdict in their favor. We do not agree with counsel in this contention. There is little or no dispute about the facts. As was said in Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742: “The only disputed question is whether the shot was accidental or an act of intentional self destruction. The burden of proving suicide was upon the defendant. It alleged that fact as a defense to the action, and must prove it, for, until that fact is established, liability of the defendant for the amount of the policy is clear.
. “There is no dispute about the facts, which were susceptible of direct proof, but the case turns upon the conclusion to be drawn therefrom — whether or not they establish suicide indisputably. For, if the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then they were properly submitted to the jury for determination. Judges should not, under that state of the case, substitute their judgment for that of the jury.” And, as was further said in the same case: “After careful consideration of the evidence we are of the opinion that this question was properly submitted to the jury, and that there was evidence sufficient to support the verdict. Conceding that the theory of death by suicide finds more rational support in the facts established by direct proof than the theory of death by accident — that there is greater probability from the evidence that death resulted from a suicidal act than an accident — still we cannot say that death by suicide is the only reasonable conclusion to be drawn from the evidence. The proof does not exclude with reasonable certainty death from accidental shooting, and, the burden being upon the defendant to establish the defense by proof, it was properly left to the jury to say whether or not it was a case of suicide. ’ ’
In that case the universal rule was again announced that there is a presumption of law against a man’s taking his own life intentionally, even where it is shown that he came to his death at his own hands. The law presumes rather that the death was accidental instead of suicidal. This presumption of law is strengthened in the case at bar by the fact that he was a comparatively young man, 42 years of age, living happily with his wife and children, holding a position of honor and trust, being- a deputy for two of the county’s officials; that, while he was suffering from an illness prior to the day of his death, he had discussed with his family his insurance policies, and his desire the keep the premiums paid; that, in response to the telephone call, he had started to his office to consult with his employers, taking with him the borrowed pistol, when he was overcome by a call of nature, and suddenly returned to his home to answer it; the seating of himself -and so arranging his clothes to answer such call, no doubt taking the pistol out of bis pocket in order to prevent it from falling on the floor while sitting upon the toilet. • No one knows just how the fatal shot happened to be inflicted, whether he was again polishing the gun with the handkerchief he had formerly used, and accidentally discharged it, or whether it might have fallen on the floor and was discharged in such a manner as to receive the bullet in his breast, where it was deflected by a bone and passed straight through his body, or whether he deliberately shot himself, no one can tell. It would seem unreasonable to believe, or at least it would be improbable, that he would take his life intentionally in the place where he was ¡and in the undressed condition in which he was found. It was therefore not impossible, nor even improbable, that the shooting of himself was accidental. We fail to find in the evidence any motive for suicide. The notes that were found in his clothing may be explained without reference to suicide. Taking into consideration his condition of health, his ide'a that he might not get well, might not be able to work any more, and all the facts and circumstances surrounding him at the time, we are unable to say that men of reasonable intelligence might not honestly draw therefrom different conclusions on whether his death was suicidal or otherwise.
The facts in this case are wholly different from those in New York Life Ins. Co. v. Watters, 154 Ark. 569, 243 S. W. 831; Ætna Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W. 744; and Fidelity Mutual Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. (2d) 80, in which cases it was held that the undisputed facts unmistakably pointed to suicide, and the death could not be accounted for upon any other reasonable hypothesis than that of suicide.
It is next insisted that the court erred in permitting Mrs. Raymond to testify, as above set out, regarding her conversation with the deceased about the payment of premiums. It is said that this testimony is hearsay, and for that reason inadmissible, and, being highly prej udicial, calls for a reversal of the case. We cannot agree with this contention, for the reason that it seems to ns that any testimony which tends to throw light upon the question at issue, that is, whether the deceased committed suicide, or came to his death by accidental means, is relevant and competent. His statements regarding the payment of premiums on these policies to his wife tended to show that at that time he was not contemplating suicide, but, on the contrary, was expecting to live at least past the next premium period, which was June 4 following, and was therefore competent for this purpose.
In the case of Scott v. Sovereign Camp W. O. W., 149 Ia. 562, 129 N. W. 302, the Supreme Court of Iowa held that, on the issue whether a member of a fraternal beneficiary association committed suicide, evidence of his conversation’ over the telephone with his daughter, shortly before his death, to the effect that he would return home soon, in time to keep an engagement, that there were some clients in his office at the time, was admissible, as bearing’ on his apparent state of mind, contradicting the theory of suicide. And in an extensive note to Rosman v. Travelers’ Ins. Co., 127 Md. 689, 96 A. 875, Ann. Cas. 1918C, p. 1050, it is said:
“In like manner declarations of an insured shortly before his death have been held in recent cases to be admissible to refute an inference that he committed suicide. Thus, in Woodmen of World v. Wright, 7 Ala. App. 255, 60 So. 1006, declarations made by the insured, who had shot himself, manifesting a hope or desire to recover, were held to be admissible ‘for the purpose of showing whether or not the act was intentional.’ So in Messersmith v. Supreme Lodge, etc., 31 N. D. 163, 153 N. W. 989, proof that, shortly before his death, the insured stated that he was going to the house to fix the fire and would then come back for his wife and baby, was held to be admissible to rebut evidence of suicide.”
In Browner v. Royal Indemnity Co. (C. C. A.), 246 Fed. 637, it was held that statements of the insured tend ing to show a disposition to commit suicide made some months before his death were held to be admissible. The court said:
“The fact that threats or intimations of suicide were made some time prior to the death in question does not make evidence of them inadmissible, when it is fairly inferable from circumstances disclosed that, immediately prior .to the de'ath, the deceased was subjected to a depressing influence which was the same as or similar to the one by which he was affected when, not very long before, the incidents testified to occurred. As above stated, it was inferable from other evidence adduced in the instant case that the cause of the gloomy and despondent mood or state of mind, as to manifestations of which the witness referred to testified, had not ceased to exist at the time of Brawner’s death. This being so, the conclusion is that those incidents are not to be regarded as being too far removed in point of time and sequence from his death to justify the consideration of them in connection with other circumstances throwing light upon the question of his death being accidental or suicidal.”
And in the case of Benjamin v. District Grand Lodge No. 4, 171 Cal. 260, 152 Pac. 731, statements of the deceased showing intent to commit suicide, made seven months before the time of death, were held to be admissible. The court held that their remoteness went to their weight and not to their admissibility. An examination of the authorities discloses that the tendency of courts, in recent times at least, is to hold -that any evidence, including statements of the deceased, which tends to throw light upon the question of whether the deceased came to his death by suicide or not, is competent. We therefore hold that there was no error in permitting Mrs. Raymond to testify as above set out.
It is next said that instruction No. 3, given at the request of the appellees, was improper. It is as follows:
“In attempting to determine whether or not the said George Raymond committed suicide, you would be authorized to take into consideration all of the proved facts and circumstances which have been testified to 'in this case. Before you would be justified in finding that he did commit suicide, there must be evidence from which a conclusion would be reasonable and probable, and not merely speculative or conjectural. - If you find from a consideration of all the evidence in this case that it is merely speculative or conjectural as to whether the said George Raymond committed suicide, your verdict should be for the plaintiffs.”
It is objected to because it contains the words “speculative” and “conjectural,” and the court was asked to strike this clause froni the instruction. It is said that the instruction is erroneous because it permits the jury to apply a test of law, which is the proper function of the court. This same instruction was used and similarly criticised in the case of Benefit Association of Railway Employees v. Jacklin, 173 Ark. 937, 294 S. W. 353, and the court there held it to be a proper instruction. It would serve no useful purpose to make the same argument again, and we therefore overrule appellants’ contention in this regard.
It is finally contended that instruction No. 8 was erroneous. It follows:
“In passing upon the question of whether or not the deceased, George Raymond, shot himself accidentally or intentionally, you have a right to consider all the facts and circumstances leading up to and surrounding the fatal shooting. You have a right to consider the conduct of the deceased prior to the shooting, any facts and circumstances which took place during his last illness which may tend to explain any motive in his mind, that might or might not explain the shooting, and you are to pass upon the facts and circumstances in the light of reason and common sense.”
It is s'aid that the last clause in this instruction particularly emphasizes certain portions of the testimony, and for that reason is an instruction upon the weight of the evidence, which trial courts may not give. We do not think this instruction is open to this criticism. What we have already said relative to the assignment of error relating to the testimony of Mrs. Raymond has some application here. The court did not tell the jury to take into consideration any particular testimony in the case, hut, in effect, told the jury to take into consideration all of the facts and circumstances surrounding his death, and those during his last illness, lany facts which might or might not tend to explain the shooting. We think this was a correct instruction, and was no more than instruction No. 8 given at the request of appellants, by which the jury was told that, “in determining whether or not the insured committed suicide, you will consider all the facts and circumstances surrounding Raymond’s death; the nature of the wound, the position of the body, and all the circumstances which might explain the cause of his death.” It appears to us that this last instruction is more nearly subject to the criticism appellants have made of the other instruction. However, we regard them both as correct statements of law for the jury’s guidance.
We find no error, and-the judgment is affirmed. | [
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Smith, J.
Appellee sued and recovered damages for breach of the following contract of employment:
“North Little Rock, Arkansas, October 25, 1922.
“We hereby employ Mr. Priess for a period of three months from date as sales manager, at a salary of $100 per week and 1 per cent, of the gross sales. He is to get the same salary plus any railroad fare to put on a sale at gny place we might say.
“M. Carp,
. : , . “B. C.
“John Priess.”
The defense to the suit was that B. Carp, who signed the name of M. Carp, liis father, did so without authority. On behalf of Priess, the plaintiff below, it was insisted that B. Carp had the authority to make the contract, and that, if he did not have the express authority, it was within the apparent scope of his authority; and, finally, that the .contract was ratified .by M. Carp.
Priess testified in his own behalf that th.e defendant, M. Carp, owned stores in Little Rock and North Little Rock, and one in Pine Bluff, and that Carp had employed him a.s .a special sales manager to put on a sale at Pine Bluff,, and that this sale had been successful and was satisfactory to all parties, and that he was accustomed to charge for such services, depending on the character of the sale, as much as $500 per week. Priess’ home was in Kansas City, and he received a letter from M. Carp advising that" Carp wished him to put bn a sale in Little Rock.' There' was nothing in this letter about the terms of the" employment, but it was answered by Priess, and a reply to this answer was written bv B. Carp. In response to this last letter, Priess wired that lie was unwilling to go to Little Rock unless M. Carp was there to talk terms. An answer to this telegram was forwarded to Priess at Greenwood, South Carolina, where he then was, from B. Carp, stating that he had full authority to close the deal, and for Priess to ■ hurry to Little Rock, and that, in response to this telegram, he came to Little Rock, and there entered into the contract set out above. That he proceeded to work under this contract, and was employed for four weeks and four days, during which time he put on a highly successful sale, and that, at- its conclusion, he was discharged without cause. He detailed the employment he had been able to secure during the remainder of the time -covered by the contract, and this alone appears to have been taken into account by the jury, as no compensation was allowed by way of commission on sales, but there was no cross-appeal.
Priess further testified that M. Carp had a store in Little Rock, and another in North Little Rock, and that the father ran one and the son the other.
M. Carp, his son, B. Carp, and a daughter of M. Carp, who worked in the store with her brother, all testified that B. Carp had no authority to employ or to discharge an employee, and that M. Carp alone had this right. M. Carp also testified that he did not know Priess had been employed until October 31, and on November 4 he advised him that his son had no authority to employ him, and that he. could not and would not ’pay the salary called for in the contract, but he did agree, by way of a compromise or settlement of the controversv which then arose, to allow Priess to work two more weeks under the contract, and he tendered the balance due for that period of time.
The conflicting testimony of the witnesses cannot be reconciled, and the jury’s verdict is conclusive of this conflict, and we think the testimony of Priess is legally sufficient to support the finding by the jury that the son acted within the apparent scope of his authoritv, or, if not, that his unauthorized act-was ratified by M. Carp.
Appellant then asked an instruction correctly defining the difference between a special agent and a general agent, and, after so doing, concluded with the declaration that “if you find from the evidence that the person who signed the contract was only an agent as a salesman for the defendant, then the contract made by the agent was without authority, and you will find for the defendant.” This instruction was properly refused, as it left out of account the question of ratification. Neither did it take into account the question of the apparent scope of the agent’s authority.
Other instructions requested by appellant also left out of account either the question of the apparent authority of the agent'or the question of the principal’s ratification of the agent’s unauthorized act.
. Appellant requested, but the court refused to give, an instruction numbered 6, which reads as follows: “The court instructs the jury that, if you find from the evidence that a contract was signed by Ben Carp without the knowledge and consent of the defendant, and that the plaintiff entered into the employment of the defendant under said contract, and that, after notice came to the defendant that said plaintiff had a contract that was not authorized by him, and disaffirmed the contract with the plaintiff, but allowed the plaintiff to work for the defendant by agreement for two weeks after said disaffirmance of the contract, then the plaintiff can only recover from the defendant the amount due for work done within the two weeks under said new contract.”
This instruction was properly refused. It assumes that there was no right of recoverv if B. Carp signed the contract without the knowledge and consent of his father, the defendant, M. Carp, and defendant disaffirmed upon being advised of it, and thus leaves out of account the question of the apparent scope of the agent’s authority.
It further tells the jurv that, if defendant disaffirmed the contract, yet allowed Priess to work for two weeks after doing so, there could be no recovery escept for the two weeks’ work. The instruction does not require the ■jury to. find that Priess agreed to waive the damages for the breach of the contract if permitted to work the two weeks, hut bars any other recovery except-for the two Weeks •'after the breach of the contract if defendant ’allowed him to'work two weeks after the disaffirmance. If Priess is correct in his contention (and the 'jury so found), he had'the right' and was under the duty to render service, riot orily for the two weeks, hut for all tlié unexpired timé covered by the contract, and, if Priess did riot waive his' damages or agree that the contract should be annulled, he did not, by his continued performance of the Contract for two weeks, lose his right to sué for itsb'reach. ■ The’instruction was'therefore properly refused.
‘ 'No error appears, and the judgment is affirmed. | [
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Smith, J.
This suit was filed by the State of Arkansas, on the relation of the Attorney General, on July 25, 1925, against the White River Lumber Company, a foreign corporation, hereinafter referred to as the company, to recover, on behalf of the State and its political subdivisions, certain back taxes alleged to be due by the company. The suit was brought to recover back taxes alleged to be due upon the intangible value of the company’s capital stock, but interrogatories propounded to the company developed the fact that it owned no property in this State except its real estate, and about that time the opinion of this court was delivered in the case of State ex rel. Attorney General v. Lion Oil & Refining Co., 171 Ark. 209, 284 S. W. 33, in which it was held that the capital stock of a foreign corporation which is neither located nor used within the boundaries of the State could not be assessed for taxation in this State. An amended complaint, was filed, in which it was alleged that the company owned large tracts of timbered lands in the counties of Desha, Phillips, Monroe and Arkansas, which had been grossly under-assessed for purposes of taxation for the years 1915 to 1925, inclusive.
The amended complaint contained a list of the company’s lands on which it was alleged that taxes had been paid at under-valuations. This list contains 191 descriptions, located in 105 different sections in the four counties named.
It was stipulated that the State Tax Commission had ordered an assessment of all property in the State at 50 per cent, of the market value, but the court found the fact to be that this direction had not been obeyed by the assessing officers, and that property in the counties mentioned had been assessed at only 30 per cent, of its value. Witnesses who testified on this feature of the case differed widely as to what per cent, of the value had been assessed, some placing it higher and others lower than the .30 per cent, found by the court. Without reviewing this testimony, we announce our conclusion to be that the finding of the court below on this question does not appear to be against the preponderance of the evidence.
A large amount of testimony was taken, and we have before us a voluminous record. The testimony on the part of the State was directed principally to a showing of the amount and value of the timber on the lands, which fixed the value thereof.
The testimony on the part of the company was to the effect that all timbered lands in the counties mentioned had been assessed at from $4'to $5 per acre, and that those of the company were of about the same average value as the lands of other owners, and that it would be discriminatory to assess the lands of the company at a higher valuation for purposes of taxation. It was also shown that, during the years for which the State asks back assessments, large quantities of the timber had been stolen, and .that in recent years large quantities had been sold, and that the value of the lands was proportionately reduced.
The court, in fixing the value of the lands, divided them into five groups, those in Desha, Phillips and Monroe counties comprising three of the groups. The fourth group was composed of all the lands in Arkansas County, except the lands referred to as “Big Island,” which last mentioned body of lands composed the fifth group. The court found the value of the Big Island lands for the years 1915 to 1925, inclusive, to be $50 per acre, and the value of all the other groups to be $33.33 for each of these years, and directed that they be back-assessed for all those years at 30 per cent, of the value stated, less credits for the timber stolen and sold. No attempt was made to.show from what tracts of land timber had been sold or stolen, and the court directed that the total amount of these two items be apportioned to the entire acreage, and the valuations were credited with these apportioned amounts. The valuations thus fixed by the court were further reduced by the valuations upon which taxes had been paid.
As a result of this finding and decree, taxes were charged against the entire body of land in the sum of $79,033.63, and it was ordered that the lien for the taxes which the court decreed be enforced against each separate tract. From this decree the company has appealed, and the State has cross-appealed, and it is now insisted on behalf of the State that the lien for the taxes should be enforced against the lands as a body or as a personal .judgment against the company.
Before further reciting or discussing the testimony, we proceed to consider the legal principles which must be taken into account and be followed in passing upon the issues of fact.
The State is proceeding under the provisions of the back tax law, which appear as §§ 10204 et seq., C. & M. Digest. ‘Section 10204 was enacted at the 1913 session of the General Assembly (Acts 1913, page 724) as act 169, the title of the act being: “An act to amend § 1 of act No. 354 of the Acts of 1911, approved May 30, 1911.”
This act of 1913 was passed shortly after the opinion of this court was delivered in the case of State ex rel. Attorney General v. Kansas City & M. Ry. & Bridge Co., 106 Ark. 248, 153 S. W. 614, and was, no doubt, intended to remedy certain supposed defects in the then existing back tax law. In that case the suit was for: back taxes alleged to be due upon the bridge owned by the defendant corporation, which the complaint alleged had been assessed for taxation at only about one-sixth of its true value. A' demurrer to this complaint was sustained, and the State appealed; Upon the appeal to this court it was held that, where a corporation has paid the taxes on the annual assessments made on its property, the State could not recover additional taxes, where a mere mistake had been made in assessing the property too low, and that a review of the assessments by the courts would be permitted only when the assessing boards or officers had proceeded on the wrong basis of valuation, in omitting some property or element of value or in adopting the wrong basis in estimating value, and it was further held that the policy of the law was to treat the find-’ ing of the assessors, supervising boards and commissions as final, except when otherwise expressly provided by the statute.
This opinion was delivered January 20,1913, and the act of 1913, which appears as § 10204, O. & M. Digest, was approved March 12, 1913. By this amendatory act it was provided that, “Where the Attorney General is satisfied * * * that, 'in consequence of the failure, from any cause, to assess and levy taxes, or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money of any property hereinafter mentioned, or because of any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof, or from any other cause, there are overdue and unpaid taxes owing to the State or -any county or municipal corporation, or road district, or school district, by any corporation, upon any property now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid, that it shall become his duty to at once institute a suit or suits in chancery in the name of the State of Arkansas, for the collection of the same, in any county in which the corporation owing such taxes may be found * * * ,”
After the passage of the act of 1913, from which we have just quoted, a second suit was brought against the same bridge company to recover the taxes sued for in the first case. It was alleged in the second suit that the corporation owning the bridge had for a number of years paid taxes on the bridge “upon an inadequate and insufficient valuation and upon an undervaluation thereof,” and that a larg-e amount of taxes would be due by the corporation upon a proper assessment of its property. A general demurrer to this complaint was sustained, and the complaint was dismissed, from which order and decree an appeal was duly prosecuted to this court. The opinion upon the appeal, which was delivered by L. H. McG-ill, Esq., as -special Justice, reviewed the back tax legislation of the State, and interpreted the amendatory act of 1913, and it will now suffice to restate the conclusions there announced without again reviewing this legislation. State ex rel. v. K. C. & M. Ry. & B. Co., 117 Ark. 606, 174 S. W 248.
The act was held to be retroactive in its effect, and the right of the State to enact such a statute was declared. It was held that the purpose of the statute, as amended by the act of 1913, was to give the State a complete remedy for the recovery of back taxes due by a corporation upon any property in the State which belonged to any corporation at the time such taxes should properly have been assessed and paid, and that a proper exercise of this power was not in violation of the Federal Constitution as denying corporations the equal protection of the law or depriving them of property without dne process of law.
It was further held that the fact that no statutory remedy existed for the correction of erroneous assessments at the time they were made did not preclude the Legislature from granting a remedy at a subsequent time, and that the owner of property which, for any reason, escaped payment of a part of its just share of taxation, does not have a vested right to immunity from payment of the balance dne. It was there also held that the fact that the statute authorized suits for back taxes against corporations only did not cause it to offend against either the State or the Federal Constitution.
After thus announcing the law, the decree of the chancery court sustaining the demurrer to the complaint of the State was reversed and the cause .remanded for further proceedings in accordance with the opinion, which meant, of course, to hear testimony to determine whether there had been “any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof.” That cause was not again appealed to this court.
The case of State ex rel. Attorney General v. Fort Smith Limber Co., 131 Ark. 40, 198 S. W. 702, was a suit against a"domestic corporation to recover taxes on property which the State alleged had escaped adequate assessment for previous years. A second opinion was rendered in the same case, which is found reported in 138 Ark. 581, 211 S. W. 662. From this last opinion, which was adverse to the corporation, an appeal was prosecuted to the Supreme Court of the United States, and the opinion of that court on the appeal is reported in 251 U. S. 532, 40 S. Ct. 304, 64 L. ed. 396.
That was a suit by the State against a domestic corporation to recover back taxes alleged to be due upon a proper valuation of the capital stock of the -corporation. The corporation owned stock in two other corporations of the State, each of which had paid full taxes, and it was contended that the corporation sued was entitled to omit the value of such stock from the valuation of its own. The corporation defended upon the ground that individuals are not taxed for such stock or subject to suit for back taxes thereon.
In upholding the right of the State to sue for these back taxes, it was stated 'by Mr. Justice Holmes, speaking for the court, that it was within the power of the State, so far as the Constitution of the United States is concerned, to tax its own corporations in respect of the stock held by them in other domestic corporations, although unincorporated stockholders are exempt from such tax, and that a discrimination between corporations and individuals in regard to such a tax could not be pronounced arbitrary, although the precise ground of policy which led to the distinction did not appear.
It was there further said: “The same is true with regard to confining the recovery of back taxes to those due from corporations. It is to be presumed, until the contrary appears, that there were reasons for more strenuous efforts to collect admitted dues from corporations than in other cases, and we cannot pronounce it an unlawful policy on the part of the State. See New York State v. Barker, 179 U. S. 279, 283, 21 S. Ct. 121, 45 L. ed. 190.”
Other decisions by the Supreme Court of the United States have upheld the validity of back tax statutes passed by the States which apply only to corporations, upon the ground that the State Legislatures, in passing such statutes, may have ascertained, as a practical matter, that, if such statutes were made applicable to individuals, the expense of enforcement would be so great that the law would be without profit to the State. Winona, etc., Land Co. v. Minnesota, 159 U. S. 526, 16 S. Ct. 83, 40 L. ed. 247; Weyerkmeser v. Minnesota, 176 U. S. 550, 20 S. Ct. 485. 44 L. ed. 583: Florida, C. & P. R. R. Co. v. Reynolds. 183 U. S. 471, 22 S. Ct. 176, 46 L. ed. 283.
We may say therefore that the statute under which the State has here proceeded does not violate the Constitution of this State or the Constitution of the United States, and that the State may maintain a suit to recover back taxes under a statute which applies only to corporations, the demand for the additional taxes being predicated upon the proposition that there had been an inadequate or insufficient valuation or assessment of the corporate property.
But, while such a suit may be maintained, upon what basis shall such valuation be assessed? The answer to this question is that, under § 5 of article 16 of the Constitution of the State, the reassessment should be on the same basis as that upon which the original and inadequate assessment should have been made.
The section of the Constitution referred to provides that: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value. # # _
This constitutional mandate has been many times considered by this court, and several of these cases were reviewed in the case of State ex rel. Nelson v. Meek, 127 Ark. 349, 192 S. W. 202, L. R. A. 1918F 642. That was a suit on the relation of a judgment creditor of one of the counties of the State, who sought to compel the assessor of the county to assess the property of the county at its full market value in order that funds might be provided to pay the judgment against the county, but, in holding against that contention, the court quoted from an earlier case as follows: ■
“In Bank of Jonesboro v. Hampton, 92 Ark. 492, 123 S. W. 753, we said: ‘It is true the Constitution provides that all property subject to taxation shall be taxed according to its value, but this is done when the valuation is equalized with other property of the same kind in the county. ’ ’ ’
The ease of Hays v. Missouri Pacific R. R. Co., 159 Ark. 101, 250 S. W. 879, involved the constitutionality of a local act requiring an assessment in certain school dis tricts of all property therein at 75 per cent, of its true market value, this being in excess of the per cent, of market value at which other property was assessed for taxation .in other parts of the State. In holding the act unconstitutional, it was said:
“The object of this provision of the Constitution (the one quoted above) is to secure equality and uniformity in the imposition of the public burdens. The tax must be laid according to some rule of apportionment which is not arbitrary, but is such that the burden may be made to fall with something like impartiality upon the property sought to be taxed. The settled construction placed upon constitutional provisions similar to the one in question is that uniform taxation requires uniformity not only in the rate of taxation but in the mode of assessment upon the taxable valuation.” See also Drew County Timber Co. v. Board of Equalization, 124 Ark. 569, 187 S. W. 942; Doniphan Lbr. Co. v. Cleburne County, 138 Ark. 449, 212 S. W. 308.
This being the rule applicable to original assessments, it must, of necessity, apply to back assessments, for the theory upon which the right to make back assessment is based is that the property sought to be assessed has escaped the payment of its just share of taxes. If our back tax statute were construed as conferring any greater right, it would offend against the section of the State Constitution quoted and the equal protection clause of the Federal Constitution. See cases cited above.
It was expressly held in the case of State ex rel. v. Kansas City & M. Ry. Bridge Co., supra, that “the statute does not contemplate that any property will be made to bear any greater burden of taxation than it would have borne if it had been originally assessed at its proper value.”
We must also take into account the kind of testimony, or the sufficiency thereof, which will justify the courts in holding that property was undervalued by the assessing officers who were clothed by the law with the authority to make the original assessments. Upon this question it was said in the case of State ex rel. v. Kansas City & M. Ry. & Bridge Co., supra, that:
“It must he presumed that the courts will give persuasive force to all original assessments • fairly made, and will not set them aside on account of mere error in judgment, without clear and satisfactory proof. This is demanded by sound policy and the natural justice of the case. ’ ’
Another principle to be taken into account is that “mere errors of .judgment in the assessment of other property do not support a claim of discrimination, entitling the taxpayer to a reduction of his assessment below the actual value of his property (or the uniform basis upon which the assessment is made), but there must be something more — something which, in effect, amounts to an intentional violation of the essential principle of practical uniformity.” Sioux City Bridge Co. v. Dakota County, 260 U. S. 441, 43 S. Ct. 190, 67 L. ed. 340, 28 A. L. R. 979.
It appears that, prior to the passage of act 234 of the Acts of 1917, as amended by act 147 of the Acts of 1919’ (an act entitled “An act to provide for the assessment and valuation of the taxable property of the State of Arkansas, and for other purposes”), the assessments were made by the county assessors, subject to review by the county equalization boards. Subsequent to the passage of the above act the assessments in question were made by the township boards, composed of the county assessor, and two reputable and intelligent citizens and taxpayers of each township, subject to appeal to the county court by an aggrieved taxpayer, but not by the State.
The assessors in office during the time the assessments in question were made testified' on behalf of the company, and their testimony was to the effect that they had intended to assess upon a uniform basis, and had made no intentional discriminations for or against any one. " ■ ; ■! ■ ¡ í
There was testimony on behalf of the State that all the lands of the company were more valuable than those of other owners whose lands were also assessed at from $4 to $5 per acre.
We think, however, that the testimony, except as to the Big Island group, was too indefinite and uncertain to measure up to the requirement announced in the case of State ex rel. v. Kansas City & M. Ry. & Bridge Co., supra, quoted above. The principal witness for the State (one Dennison) candidly admitted that he had only a very general knowledge of the company’s lands, except in Arkansas County, and more especially of the Big Island group.
We are of the opinion that the testimony does not show as to any of the lands, except the Big Island group, “any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof,” within the meaning of the rules of law by which that fact is to be determined.
• As to the Big Island group, consisting of 7,964 acres, the testimony is much more definite and certain. This is shown to be a body of land so unusually well timbered as to have a value not possessed by the other timbered lands which were assessed at from $4 to $5 per acre. The assessing officers were in ignorance of the quality and quantity of timber which gave this land its greater value. As to this group of lands there was an ignorance of the facts. The testimony is conflicting as to its value, but we think it was clearly shown that these lands were of an average value, during the entire time covered by the assessments in question, of $40 per acre, taking into account the timber stolen and the timber sold.
As it appears that all other property was assessed at an average of 30 per cent, of its market value, these lands should also be assessed at that per cent.,, and as 30 per cent, of $40 is $12, that figure represents the valuation at which the Big Island group should be assessed, less, of course, the valuation on which the taxes have been paid.
It is earnestly argued on behalf of the State that the valuations for purposes of taxation should be assessed at 501 per cent, of the market value, as this was the basis fixed by the State Tax Commission, and that any assessment based on a lower per cent, of the market value is an undervaluation within the meaning of the statute under which this suit was brought. We think, however, that it must appear, from what we have already said, that, if the statute is so construed as to permit this to be done, it would offend against both the uniform clause of the Constitution of the State, quoted above, and the equal protection clause of the Federal Constitution.
The argument that • any assessment at a less per cent, of the market value than that fixed by the State Tax Commission is an underassessment, which may be corrected by a back assessment, is so thoroughly answered by the opinion of the Court of Appeals of the Sixth Circuit in the case of Taylor v. Louisville & N. R. Co. (C. C. A.), 88 Fed. 350, that we quote extensively from it. The opinion was delivered by Judge Taft, then a member of that court and now the Chief Justice of the Supreme Court of the United States. The opinion contains ■ an exhaustive review of the decisions of the United States Supreme Court, and is one which has been cited and approved by many courts. That case is of special value here, as it arose under the taxing laws of the State of Tennessee, and the provision of the Constitution of that State (article 2, § 28, Constitution 1870), is so nearly identical with our own on the same subject as to suggest the idea that our provision was taken from the Constitution of that'State.
Under the statutes of that State railroads and certain other property were assessed biennially by a board consisting of three members, known as the “State Tax Assessors,” whose assessment was subject to review by another board, called the “Board of Equalization,” composed of the Governor, Secretary of State and State Treasurer. This State board assessed the property of the plaintiff railroad and all other property which it was required to assess at its real value, whereas it was shown that all other property not assessed by the State Board of Assessors was habitually and ¡intentionally assessed by other assessing officers at not exceeding 75 per cent, of its real or correct value.
The opinion contains a review of many cases, and quoted extensively from the opinion of this court in the case of Ex parte Ft. Smith & Van Buren Bridge Co., 62 Ark. 461, 36 S. W. 1060. We copy that portion of the opinion, as it is directly in point:
“In Ex parte Ft. Smith & Van Buren Bridge Co., 62 Ark. 461, 36 S. W. 1060, the case arose on an appeal from the refusal of the county board of equalization to reduce the taxation of assessment upon the petitioner’s bridge. The assessor had assessed one-half of the bridge in Crawford County at $150,000, and the county board of equalization had reduced this assessment to $125,000. At the trial in the circuit court it appeared that $250,000 was a fair market price for the entire bridge, and that $125,000, therefore, was the full value of one-half of the bridge. It further appeared that all the real estate in Crawford County was assessed at 50 per cent, of its actual value. The appellate court contended that, under the circumstances, the assessment of one-half the bridge should be reduced accordingly to its request of $75,000. The Constitution of the State was exactly in the words of the Tennessee Constitution, to-wit:
“ ‘That all property subject to taxation shall be taxed according to its value, to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State; and provided, further, that no one species' of property, upon which taxes shall be levied, shall be taxed higher than another species of property of equal value.’
“The law passed in pursuance of this section of the Constitution required the assessors of the counties-in the State to assess the real estate at its true market value in money. The court, in construing this question, said:
“ ‘It may Be said that, inasmuch as its property was •not assessed above its true value, it had no right to complain. But this is not true. It had the right to demand that no unequal burden be imposed upon it by taxation. The duty to contribute to the support of the State G-ovp.mmerit by the payment of taxes is imposed upon all persons owning property subject to taxation. The Constitution provides that this burden shall be apportioned among them according to the value of their property, to be ascertained as directed by law. When therefore the property of a few is taxed according to its value, and of all others at one-half its value, then the few are required to contribute double' their portion of the burden. This is manifestly a wrong, and justice demands that it be redressed whenever it can be done conformably to the laws. * * * In this case the county court acquired jurisdiction, by the appeal of the bridge company, to grant relief from the illegal, erroneous, or unequal assessment of appellant’s property, but did not acquire the right or authority to make the valuation of all real property in the county for the purposes of taxation, in all cases in which it had not been done, the true value, by raising it, or to change the valuation of any property except the bridge. The assessment of no property can be increased without notice first given to the owner by the board of equalization. How, then, was the county court to afford relief to appellant? The only relief it could have afforded was to reduce the valuation so as to make it conform to the standard adopted in the valuation of the ■ other real property in the county, or the average valuation of such property. Why should not this relief be granted? The valuation of property is only a constitutional means adopted for the purpose of making the burdens of government bear upon each taxpayer in proportion'to the value of his property. The relief suggested accomplishes that end in this case. By granting it a constitutional right will be enforced, and by denying it will be withheld, because the means devised for its enforcement were not adopted. By pursuing the latter course, the Constitution will be made the means of defeating itself, by the imposition of unequal burdens. To avoid this result, the relief should be granted.’ ”
The learned Justice also quoted from the case of Cummings v. Bank, 101 U. S. 153, 25 L. ed. 903, as follows:
. “ ‘But, whatever may be its cause, when it is recognized as the source of manifest injustice to a large class of property, around which the Constitution of the State has thrown the protection of uniformity of taxation'and equality of burden, the rule must be held void, and the injustice produced under it must be remedied, so far as the judicial power can give remedy.’ ”
The decision of the court, so far as it is applicable here, is reflected by the 9th syllabus, which reads as follows:
“Under the Tennessee Constitution of 1870 (article 2, § 28), declaring that all property shall be taxed ‘according to its value,’ to be ascertained as the Legislature shall direct, ‘so that taxes shall be equal and uniform throughout the State,’ when it is the uniform practice in the various counties of the State to assess real property at not exceeding 75 per cent, of its true value, an assessment upon railroad property at its full value violates the uniformity of taxation, which is the main purpose of the constitutional provision, and will be enjoined, although this involves a violation of the letter of the State statutes passed pursuant to the Constitution, which requires.all property to be assessed at its full value.”
The petition of the State of Tennessee for a writ of certiorari to review this decision was denied by the Supreme Court of the United States on the authority of Chicago & M. W. Ry. Co. v. Osborne, 146 U. S. 354, 13 S. Ct. 281, 36 L. ed. 1002; Forsyth v. Hammond, 166 U. S. 506, 17 S. Ct. 665, 41 L. ed. 1095. See 172 U. S. 647.
The basis of assessment which was actually employed in the case of all other property owners must therefore be applied here, although it does not conform to the directions of the State Tax Commission. This must be done to preserve uniformity.
What we have said probably makes it unnecessary to consider whether the State was entitled to a personal judgment against the corporation, to be enforced against its general assets to pay the tax on these lands. That it should be thought necessary to make such a contention argues strongly against the merit of the State’s case, for all the taxes assessed against the company’s land have been paid, and this suit was brought only to collect additional taxes which it is contended should be paid on all the lands. But, as the question has been raised and is insisted upon, we decide it.
In the case of Worthen v. Quinn, 52 Ark. 82, 12 S. W. 156, the syllabus reads as follows:
“Where goods are sold by the person in whose name they are assessed for taxation, after the lien of the State for taxes attaches thereto, and his vendee sells them, the collector, if he cannot realize the taxes otherwise, may maintain a suit in equity against the vendee to charge the proceeds of such sale with the payment of the taxes. ’ ’
That case, however, involved the taxes on personal property (a stock of goods) which, by a sale, had been placed beyond the power of the tax collecting officers to seize and sell.
There is involved here only the taxes on lands, which are always in place, and may be sold when the law requires.
In the case of Van DeGriff v. Haynie, 28 Ark. 270, it was said:
“Unless the power is specifically delegated or expressed, no right of action exists for taxes, and they cannot be turned into .judgments. Both the State and municipal corporations have a much better and more expeditious remedy. They have the right, by summary process, to enforce collection, by levy and sale, and when this power exists, complete and ample as it most assuredly is,- it would be monstrous, without plain and express authority to that effect, to say that they could abandon, at pleasure, the usual and simple manner of making collections, and resort to judicial power for their enforcement.”
In the case of Coats v. Hill, 41 Ark. 149, it was said: “By onr law taxes are glebae ascripti — serfs of the soil —a charge which follows the land in whosesoever hands it may go.”
On behalf of the State it is insisted that the right to a personal judgment is given by §§ 10209 and 10210, C. & M. Digest. By the first of these sections it is provided that: “ On such final hearing the court shall render a decree declaring and enforcing said lien for taxes, by sale of the property to which said taxes pray have attached. * * * The court shall decree the said taxes shall be paid within three months after rendering said decree, and that, -in default thereof, said defendant shall pay a penalty of ten per centum on the amount of said taxes.”
Section 10210 reads as follows: “The sale of any property under said decree shall be made in the same manner as other sales are made under other decrees foreclosing liens in chancery, and with like effect, and the court shall distribute any fund accruing under this act among the States, counties and municipal corporations and school districts entitled thereto by law.”
These sections were intended to enable the State to enforce its claim against any corporation owing back taxes, whose property might be of such a character that the payment could be enforced only by the rendition of a personal judgment; but such is not the case here. The delinquent property is land, and land only, and we think there is nothing in the statute quoted from which marks a departure from the policy always pursued in all the State’s revenue laws, of making the land, and it only, liable for the taxes due on the land. The lands of a corporation might be sold in satisfaction of a decree rendered under the sections quoted from for taxes on other corporate property, but we think these sections mean, as applied to the facts of this case, where the taxes on lands only are involved, that the court is merely authorized to find in the decree the amount of the taxes due and to declare the same to be a lien on the laud involved, and to order each tract of land sold for the taxes due thereon, unless the same are paid within three months of the date of the decree.
The decree of the court below will therefore be modified by permitting a recovery of back taxes on the Big Island group of lands only, and on those lands only to the extent herein indicated.
Wood and McHaney, JJ., dissent, believing that the back-tax act is. not constitutional, as stated in Judge Wood’s concurring opinion in State v. Bodcaw Lumber Co., 128 Ark. 521. | [
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Humphreys, J.
This is the second appeal of this case. On the former appeal the court ruled that the lots owned and occupied by Starr in the city of Fort Smith, and claimed by him as a homestead, exceeded $2,500 in value and one-fourth of an acre in area, and that the area in excess of one-quarter of an acre was subject to the claims of his creditors, but that he was entitled to claim one-fourth of an acre, irrespective of value, out of said lots as exempt against the claims of his creditors. The trial court had subjected the whole property to the payment of Starr’s debt, and this court reversed its decree in so far as it subjected his homestead to the extent of one-fourth acre to the claims of his creditors,, and remanded the cause, with instruction to allow Starr to select one-fourth of an acre as his homestead. Starr v. City National Bank, 159 Ark. 409.
Upon the remand of the cause, Starr selected lot 7 and 27¾ feet off of lot 8, and adjoining lot 7, as his homestead. The house stood upon lot 7, and the actual area selected by him was a fraction less than one-fourth of an acre. Lot 8 had been used in connection with lot 7 as a part of the homestead. These lots are all 50x140 feet, fronting on South Ninth Street, which is fifty feet wide, and running back to an alley twenty feet wide. Lot 7 is a corner lot lying lengthwise and adjacent to South C Street, which is also fifty feet wide.
Appellees questioned the right of Starr to select this particular area as his homestead, contending that, in estimating the one-fourth of an acre to which he was entitled, he was compelled to take into consideration one-half the streets and alley adjacent to the lots and to include them in' the area selected. This contention was based upon the theory that 'appellants owned the fee to the center of the street and alley adjacent to lots 7 and 8. The' trial court adopted the theory advanced by appellees, and, in estimating the area to which Starr was entitled as his homestead, included the surface to the center of the streets and alley adjacent to lot 7, and restricting him to the selection of lot 7 only, and subjecting all of lot 8 to the payment of the claims of appellees, from which is this appeal.
Issue was joined between appellants and appellees as to whether, under the act of Congress donating the lands, of which lots 7 and 8 are a part, to the city of Fort Smith, and the patent issued pursuant thereto, Starr owned the fee to the center of the streets and alley adjacent to said lots, but we deem it unnecessary to decide this question, under our interpretation of the meaning of the words “owned and occupied as a residence” contained in § 5, article 9, of the Constitution of Arkansas, which is as follows:
“The homestead in any city, town or village, owned and occupied as a residence, shall consist of not exceeding one acre of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of two thousand five hundred dollars, and in no event shall such homestead be reduced to less than one-quarter of an acre of land, without regard to value.”
The meaning of this section is that the owner may select an area as a homestead out of lands owned and occupied by him as a residence. In selecting the area he is not compelled to select any part of streets and alleys adjacent to the lot or lots upon which his residence stands, although he may own the fee to the middle of the streets and alleys in which the public owns the easement. He cannot occupy the streets and alleys to the exclusion of the public, and the purpose and intent of the section was to allow the owner to select an area as Ms homestead which he both owned and occupied exclusively. In a proper interpretation of the section, emphasis should not be given to the word ‘ ‘ owned” to the exclusion of the word “occupied.” Both ownership and occupancy are necessary elements in the selection of a homestead, under this section of the Constitution. If the contention made by appellees is correct, one owning a homestead on a very wide street would be restricted to a narrow space for the actual occupancy of himself and family. Of course, the owner will not be permitted to select an area surrounding his residence in such an arbitrary, capricious and unreasonable shape as to destroy or impair the value of the remainder of the land, to the unnecessary injury of Ids creditors (Sparks v. Day, 61 Ark. 570), but the selection of a corner lot and a part of an adjoining lot which does not exceed one-fourth of an acre in area, cannot be characterized as an arbitrary and capricious selection.
Under an act in Wisconsin exempting one-fourth of an acre of urban property, and the dwelling-house thereon, “owned and occupied” by a debtor as a homestead, it was held by the Supreme Court of the State that, in determining the debtor’s homestead exemption, land included in a public street adjoining the property, in which the debtor owned the fee, subject to the public easement, should not be considered. The reason assigned was that controlling effect should be given to the words “occupied” in construing the statute. Weisbrod v. Daenike, 36 Wis. 73. It will be observed that the language used in the Wisconsin statute is similar to that used in § 5, article 9, of our Constitution.
On account of the error indicated the decree is reversed, and the cause is remanded with instructions to allow Starr all of lot 7 and 27¾ feet adjoining lot 7 off of lot 8 for his homestead, as exempt from the claims of appellees. | [
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Mehaffy, J.
The appellee brought this suit, alleging that he prooured a purchaser for certain property of appellant, under a contract by which he was to be paid a commission of $75 for procuring a purchaser at a price of $2,500, terms to be agreed on between appellant and purchaser. The appellant had purchased the property from the Bankers’ Trust Company for $2,100, paying $200 cash and agreeing to pay $20 a month. He was • behind in his monthly payments, and wanted to sell the property, and agreed with appellee that, if appellee would find him a purchaser, he would pay him, as commissions, $25 cash and $12.50 a month for four months.
There was some conflict in the evidence, but the weight of the evidence and the credibility of the witnesses were questions for the jury, and if the jury’s finding is supported by any substantial evidence it is conclusive on this court.
Appellant contends, first, that, as there was no exclusive agency for the sale of the property and no definite time within which West was to find a purchaser, the authority was revoked. He contends that, before an agent is entitled to commissions, he must procure a purchaser ready, able, and willing to buy.
Appellant is correct in his statement that there was no exclusive agency, and he is also correct in his statement that an agent, in order to be entitled to commissions, must procure a purchaser ready, able, and willing to buy. The proof shows that appellee did procure a purchaser, and that this purchaser bought the property. There could be no better evidence of one’s being ready, able and willing to.buy than the fact that he did actually buy, as the purchaser secured by West did in this case. Appellant, however, contends that the evidence is not legally sufficient to show that appellee procured the purchaser to whom the property was sold.
The undisputed evidence shows that there was a contract, and that the commission was to be $75. Appellee testified that he advertised the property in the Democrat, and showed it to two or three persons, one. of them being Mr. Warrington, and that Mr. Browning came with Mr. Warrington and looked at the property. Appellee also testified that Browning told him he was ready to buy the place; that he wanted to close the deal, and appellee then got in touch with Mr. Sharp. Browning corroborates appellee in this. The undisputed proof shows that the property was sold to Browning. Sharp had bought from the bank, was behind with his payments, and, after West had'got Browning interested, Sharp went, to the bank and requested the bank to refund the money that he had paid and take a new contract with Browning. The bank declined to do this, but finally agreed with Sharp that it would give him credit for the amount he had paid on the price of some lots on the pike. This was done, and the contract between Sharp and the bank was canceled, and the bank made a contract with Browning by which Browning was 'to pay $2,500 for the property. The cancellation of the Sharp contract and the sale by the bank to Browning was all one transaction, and the sale was made to a purchaser procured by West, and Sharp received the benefit exactly as he would if he had sold directly to Browning'. This testimony about the transaction with the bank is' undisputed.
The appellant also complains of the remarks made by the court. Appellant’s attorney asked a question of Risley, and the court stated: “I do not think that is material in this case; it is taking up unnecessary time. ’ ’ Whereupon the attorney stated: “I am trying to prove how the property was sold, and by whom.” The court -then said: ‘ ‘ There is no dispute about to whom it was sold, is there?” and then stated: “As far as that is concerned, if the sale was made to Browning, and the plaintiff procured the purchaser and brought about the sale, I am going to instruct the jury to find for the plaintiff if they find those facts. I will not allow any such defense that the sale was made to the bank, so far as this case goes.” Appellant insists that the above remarks of the court were prejudicial.
We do not think so. We have already said that the cancellation of Sharp’s contract and the sale to the bank was but one transaction. The remarks of the court amounted to no more than saying that, if West procured a purchaser, and the sale was made to him, the fact that it was made by canceling Sharp’s contract and letting the bank convey to Browning would not prevent West from recovering his commissions.
Of course, the court could not charge the jury with regard to matters of fact, but these are facts about which there was no dispute, and it was therefore a question of law and proper to tell the jury that the manner in which the contracts were made was immaterial; that, if West procured a purchaser, and the purchaser bought the property, the fact that it was made in the manner in which it was was immaterial. The court properly instructed the jury, telling them that, before a real estate broker was entitled to a commission for selling real estate or procuring a purchaser, he must procure a purchaser, and must, by his efforts, bring about a sale of the property, and that the burden was upon the plaintiff to show that he did procure a purchaser, and this must be shown by a preponderance of the evidence.
The court fully instructed the jury, and- we find no error, and the judgment is therefore affirmed. | [
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Wood, J.
This is -an appeal from a judgment of the Sebastian Circuit Court, Fort Smith District, sentencing the appellant to imprisonment in the State Penitentiary for a period of one year, on conviction of the crime -of carnal abuse. The prosecutrix was Bernice Montgomery.
It was an issue .before the jury as to whether or not the prosecutrix was under sixteen years of age at the .time of the .alleged sexual intercourse. On this issue the court, oyer the objection of appellant, permitted the State to prove that, in a divorce proceeding in the Sebastian -Chancery Court in which the mother of the prosecutrix was a party, it was decreed that the prosecutrix was four years old at the time the decree was rendered. This record was incompetent to establish the age of the prosecutrix at the time of the alleged sexual intercourse. -It was a record of the proceedings in an action for divorce, in which neither the State, the appellant, nor the prosecutrix were parties. It had no relevancy to any issue involved in this prosecution. White v. Hudson, 165 Ark. 232; Doss v. Long Prairie Levee District, 96 Ark. 451; Wilson v. Gaylord, 77 Ark. 477; 22 C. J. 814. See 22 C. J. 814, § 926. .
In overruling the motion to exclude this testimony, the court announced that the record was a judicial, determination of the age of the prosecutrix. The appellant duly excepted to the remarks of the court. In the absence of an affirmative showing to the contrary, it must be presumed that the incompetent testimony was prejudicial to the rights , of the appellant.
There are many other assignments of error in appellant’s motion for a new trial, but the above is the only reversible error we discover in the rulings of the court, and the questions raised by the other assignments may not .arise in a new trial of the cause. .Therefore it is unnecessary to discuss the same. For the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Hart, C. J.,_
(after stating the facts). The judgment of the circuit court was wrong. Under the terms of 'the original contract, the bagging and ties were to be delivered by' October 1, 1925. Up to this time the defendant had only delivered to the plaintiff 600 rolls of bagging, so that there was still due under the contract 400 rolls of bagging. The failure to deliver the bagging in the time required by the contract constituted a breach of the contract on the part of the defendant; but, according to the plaintiff’s own testimony, this breach was waived by it. On November 19, 1925, Johnston, as president and manager of the plaintiff company, wrote to the defendant that the plaintiff would accept the remaining 400 rolls of bagging under the contract if delivery was made at once. The defendant delayed delivering the 400 rolls of bagging until the latter part of December, 1925. This did not constitute a shipment and delivery at once, as required by the plaintiff.
The court, in instructing a verdict for the defendant, proceeded upon the theory that this additional breach of the contract was waived by the plaintiff accepting 200 rolls of the-bagging when it was delivered in the latter part of December, 1925, and based its ruling upon Truemper v. Thane Lumber Co., 154 Ark. 524, 242 S. W. 823. In that case there was acceptance of money for a shipment of logs after knowledge of a breach of the contract. There the money was received in payment of the logs in performance of the contract, and the other party had a right to consider that a breach of the contract had been waived by the acceptance of the money in part performance of it. Here the facts are different. The letter of November 19,1925, written by Johnston to the defendant, was a waiver of all breaches of the contract which had occurred prior to that time, under the doctrine of the case just cited.
It became the duty of the defendant, however, to ship the remaining 400 rolls of the bagging promptly. This he did not do, and his delay in delivering the 400 rolls of bagging constituted an additional breach of the contract. It cannot be said, however, that, because the plaintiff received 200 rolls of this bagging, it waived this breach of the contract. If it had accepted the 400 rolls of bagging, the contract .would have been at an end by performance on the part of the defendant and acceptance by the plaintiff. The plaintiff would have had the right, however, to reject the whole 400 rolls of bagging because of the delay in delivering it. Under the settled rules of law in this State, however, it would have been the duty of the plaintiff to minimize its damages ; and if, by the exercise of reasonable prudence on its part, it could have purchased similar bagging in the market in the fulfillment of its contract, it would have been required to do so. Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (N. S.) 977. Hence the action of the plaintiff in receiving the '200 rolls of bag ging which could be used by it was the exercise of a reasonable effort on its part to reduce the damages suffered by it, and did not in any sense amount to an acceptance■ of the bagging under the terms of the contract so as to constitute a waiver of the breach of it.
In this view of the matter, under the plaintiff’s own evidence it is. only entitled to damages for the failure to deliver 200 rolls of bagging promptly after its letter of November 19, and the measure of damages in such a case would be the difference between the 'contract price and the market price of similar 'bagging' at the time and place when the 400 rolls should have been delivered pursuant to the letter written by the plaintiff to the defendant on November 19,1925. Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S. W. 830.
For the error in directing a verdict in favor of the defendant the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Humphreys, J.
Appellees brought suit in the circuit court of White County against appellant to recover $650 damages to a Maxwell truck, resulting from a collision with a fast passenger train which was operated by appellant. The collision occurred at the street crossing immediately south of the depot at Judsonia. It was alleged in the complaint that the truck was damaged through the negligence of the employees of the appellant, who were operating the train, by failure to give' the statutory signals of the approach of the train.
Appellant filed an answer denying the material allegations of the complaint, and, as a further defense, pleaded contributory negligence on the part of the driver of the truck.
The cause was submitted upon the pleadings, testimony adduced by the respective parties, and instructions of the court, which resulted in a verdict and judgment in favor of appellees, from which is this appeal
Appellant first seeks a reversal and 'dismissal of the action because the court refused to instruct a verdict for it. The contention was made that the undisputed evidence showed that appellant was not negligent in failing to give warning of the approaching train, and that appellee’s driver was guilty of negligence in driving upon the track without listening and looking for the approaching train. We cannot agree with appellant’s interpretation of the testimony.
The record contains substantial evidence tending to show that appellant’s train approached the street crossing without ringing its bell or sounding its whistle, and that the driver on the truck was unable to see the approaching train on account of obstructions until he reached the second track, although looking and listening, and that, immediately upon discovering the train, he did all he could to avoid a collision.
The dispute in the evidence justified the submission of the issues of negligence and contributory negligence to the jury.
Appellant’s next contention for a reversal'of the judgment is that, in submitting these issues, the court erroneously applied the statutory rule of comparative negligence to the cause of action. Instruction No. 7, given by the court, over the objection and exception of appellant, was based upon act 156 of the Acts of 1919, page 143 (<S 8575, C. & M. Digest), which provides for a recovery of damages growing out of personal injuries or death occasioned by the running of trains in this State. Instruction No. 7 given by the court is as follows:
“You are instructed that, if you find that the automobile of the plaintiff was struck by the locomotive pulling one of the defendant company’s trains, at a public road or street crossing, that the contributory negligence of the plaintiff, if any, will not prevent a recovery, if you find from the evidence that the negligence of the plaintiff was of a less degree than the negligence of the defendant’s employees in charge of the train and locomotive, provided you find said employees .were negligent as defined in these instructions; but the contributory negligence of the plaintiff, if any, would serve to diminish the amount of his recovery in proportion to the degree of such contributory negligence.”
The statute invoked and used as a basis for instruction No. 7 has no application to recovery of damages to property, but is limited by the language of the statute to causes of action for personal injury or death. Appellee suggests that a specific objection should have been made to instruction No. 7 in order to derive any advantage from the error committed by the court in giving the instruction. Not so, for the instruction was inherently wrong, and susceptible to challenge by a general objection which was made.
Appellant also insists upon a reversal of the judgment because appellees were permitted to prove by J. A. Ferguson that its fireman, Edward E. Mequet, stated immediately after the accident that the reason he did not see the approaching truck as the train neared the crossing was because he was putting in coal instead of keeping a lookout. It is true that declarations made by employees of a railroad company, after an accident, as to the manner in which it happened, are inadmissible as being hearsay merely; but in the instant case no objection was made by appellant at the time this piece of testimony was introduced. Having failed to object to the introduction of the evidence when introduced, it cannot now complain. Lisco v. Uhren, 130 Ark. 11.
On account of the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Smith, J.
On or about November 5, 1922, Tullis & McClurkin, merchants at Magnolia, Arkansas, ordered a bill of dry goods from the William B. Moore Dry Goods Company, a corporation having its place of business in Memphis, Tennessee. The order was filled by ordering the goods shipped from Winston-Salem, North Carolina. After placing the order, Tullis & McClurkin canceled it, and the cancellation was accepted by the Moore Company, which company made an unsuccessful effort to stop the goods in transit as they passed through Memphis, and the shipment, consisting of a box weighing 259 pounds, went through to Magnolia.
■ John Curry is a drayman in Magnolia, and he had an arrangement with Tullis & McClurkin whereby he received from the railroad company all freight intended for Tullis & McClurkin, and delivered the same to them.
The box of goods in question had been shipped by prepaid freight, but the payment was twenty-nine cents short of the correct freight, and Curry paid this difference, and hauled the box to the store of Tullis & McClurkin, who refused to receive it. Curry then' returned the box to the railroad freigirt-room and delivered it to the person there in charge, and he testified that he later saw the box'in the freight-room, but that he did not haul it a second time to the store of Tullis & McClurkin. The box was never reshipped to the Moore Company by the railroad company, but was lost. Testimony was offered by the railroad company tending to show that Curry hauled the box from the freight-room a second time, and did not return it a second time. This was denied by Curry.
The complaint filed by the Moore Company against the railroad company, to recover the value of the box of goods, alleged an erroneous date as the. date of the receipt of the box by the railroad company at its station in Magnolia, but it is not questioned that' it was received by the railroad company at that station, and it is not claimed that the 'box was ever reshipped to the plaintiff.
An answer was filed by the railroad company, in which liability was denied upon the ground that it had fully discharged its contract of carriage by delivering the freight to the consignee named in the bill of lading.
There was a verdict and judgment for the plaintiff for the value of the goods, and the railroad company has appealed.
It is insisted by the appellant railroad company that this judgment should be reversed and the cause dismissed because it was not shown that the plaintiff was the owner of the freight, nor was it shown that the box was lost through its negligence.
The court instructed the jury that the plaintiff could not recover unless it was shown by the evidence, and the jury so found, that there was an understanding with Tullis & McClurldn whereby the goods were to be reshipped to the plaintiff, and it is insisted that instruction numbered 1, given at the request of the plaintiff, is in conflict with this instruction, in that it permitted a recovery by the plaintiff without imposing that requirement. It appears however that, even though the instructions are in conflict in this respect, the error was not prejudicial, for the reason that McClurldn, of the firm of Tullis & McClurldn, testified that his firm had canceled the order and had refused to accept the goods; that he saw the station agent, and obtained the copy of the freig’ht-bill, which he marked “Eefused,” and he sent a copy so marked, to the plaintiff, Moore Company, and that the railroad agent wrote the word “Eefused” on the original freight-bill. The goods belonged either to the consignor or the consignee, and, as the consignee expressly disclaimed any interest in or title thereto, there was no error in assuming — as plaintiff’s instruction numbered 1 did — that the goods belonged to the consignor, the plaintiff in the action. The title of the plaintiff was sufficiently proved, and was undisputed, and there was no error therefore in assuming this to be an undisputed fact, as plaintiff’s instruction numbered 1 did.
Plaintiff’s instruction numbered 1 further told the jury that, if the goods were delivered to and received by the railroad company, “then, while said goods were in possession of defendant in the depot at Magnolia, Arkansas, it was liable as a warehouseman for the care and custody of said goods, and, as such, was required to use common and reasonable diligence in caring for said goods, and if you further find that, from want of common and reasonable diligence, said goods were lost, then you should find for the plaintiff.”
There was no error in this instruction. Appellant insists that it was erroneous bécause it permits a recovery without requiring a finding that the goods were lost through the negligence of the defendant. But the instruction does require a finding that, “from want of common and reasonable diligence, said goods were lost.” The failure to exercise ordinary care and reasonable diligence would be negligence.
In the case of Yazoo & M. V. R. R. Co. v. Altman, 129 Ark. 358, 196 S. W. 122, it was held (to quote a syllabus): “The nondelivery by a warehouseman of'goods held by him, upon demand, in the absence of any explanation of their loss by fire or theft, or in any other manner consistent with the exercise of ordinary care over the goods, makes a prima facie-case against the warehouseman.”
Appellant insists that it fully discharged its liability as a warehouseman by delivering the goods to the consignee’s agent, but this question of fact was passed upon by the jury adversely to appellant’s contention, and that finding is conclusive.
' Upon this question the case is similar to and is controlled by the decision in the Altman ease, supra.
The testimony is sufficient to support the finding that the consignee refused to receive the box, and that it was redelivered to the railroad company, and, although no bill of lading was ever issued for the reshipment of the box, it was lost after it was shown to be in the possession of the railroad company, and, as the only explanation of the loss was denied by Curry, a prima facie case of negligence was made when the jury found that the loss of. the box was unexplained, which is sufficient to support the verdict of the jury, and the judgment is therefore affirmed. | [
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Humphreys, J.
Two questions are presented by this appeal and cross-appeal for determination. The first question to be determined is whether Joe Hudson is entitled to $6,000 on deposit in the Bank of Brinkley and $1,000 on deposit in the Monroe County Bank, or whether W. T. Hudson was seized and possessed of said money at the time of his death in 1926. The certificates of deposit are as follows:
■ “Certificate of Deposit.
“Brinkley, Ark., Sept. 6, 1925. No. 1787.
“Bank of Brinkley.
“‘W. T. Hudson has deposited in this bank exactly six thousand no/100 dollars ($6,000), payable to the order of himself or Joe Hudson, his son, in current funds, on the return of this certificate, properly indorsed, twelve months after date, with interest at 4 per cent, per annum. No interest after maturity.
“Not subject to check.
“L. H. Bradley, Cashier.”
“Certificate of Deposit.
“Not subject to check.
“Monroe County Bank 81-190 — No. 994.
“Brinkley, Ark. 5-21-26.
“This certifies that W. T. Hudson or Joe Hudson has deposited in this bank exactly one thousand dollars ($1,000), payable to his or either own order 12 months after date, with interest to maturity only at the rate of 4 per cent, per annum on return of this certificate.
“No interest after maturity. Non-negotiable.
“L. W. Brown, Cashier.”
These certificates of deposit were found in the trunk of the deceased after his burial, at the home of himself and appellant. Joe Hudson, a son of the deceased, obtained the key to the trunk from appellant, and found the certificate of deposit therein. He claimed the money as a gift inter vivos from his father. He testified relative to the gifts as follows:
“My father told me that this money was placed in bank so that no one could touch it, only himself and me, and at his death I would have full possession of it; that the rest of the outfit had done got all that was coming to them, and that this money belongs to me. My father told me that if Mrs. Hudson was left any money she would throw it away, therefore he did not want her to have any money; I refer you to marriage contract on file. My father told me about the money being a joint account at the time I visited him in the spring of 1924. ’ ’
Joe Hudson insists that he is the sole owner of the money, whereas the widow and other heirs, who are grandchildren of the deceased, land nieces and nephews of Joe Hudson, and the administrator of the estate of W. T. Hudson, deceased, insist that the money belongs to his estate and is subject to division among them according to the statute of descent and distribution.
In the case of Lowe v. Hart, 93 Ark. 549, 125 S. W. 1030, this court defined gifts inter vivos in substance as follows: To constitute a gift a donor must actually deliver the property to a donee with intent to pass the title immediately, and the donee must accept the same. See also Stifft v. W. B. Worthen Co., ante, p. 585.
The evidence in the instant case does not meet the requirements of this rule. The time certificates, of deposit were in the joint names of W. T. Hudson and Joe Hudson, and were not subject to check. The. money constituted the savings of W. T. Hudson, land the certificates themselves were never delivered to Joe Hudson, but were retained under lock and key by W. T. Hudson. There was no actual delivery and acceptance of either the certificate or the money they represented in such manner that W. T. Hudson surrendered dominion over them. W. T. Hudson could at any time during his life have presented the certificates and got the money out of the bank, without the consent or permission of Joe Hudson. Joe Hudson could not have presented the certificates and got the mone3^, because he never had possession of them. There was no intention in the acts of the parties to pass the title to the certificates or money. The evidence is insufficient to support a gift. -
In addition to claiming the money as a gift, Joe Hudson interposed the further defense to appellant’s claim for dower that she entered into an antenuptial contract with his father, waiving her right of dower in and to his estate. The contract is as follows:
“This agreement made and entered into this the '2d day of December, by and between W. T. Hudson and S. B. Hudson, is 'as follows: That whereas we, the said "W. T. Hudson and S. B. Hudson desire and have decided to be remarried again, and become as husband and wife, and now before said marriage it is hereby agreed and fully understood, and in consideration of this agreement and of said marriage, and the further consideration that we have once . divided our property between. each other mutually and agreeably to each of us, it is now hereby agreed and understood by and between each of us that I, the said S-. B. Hudson, do hereby agree and waive all my right or possibility and future claims or any and all dower or financial claims that would come to me or be allowed to me under the matrimonial laws of the State of Arkansas. To make it more explicit, I, S. B. Hudson, waive all right to a dower or other claims in or to said W. T. Hudson’s estate either during his natural life or after his death, and our property to be kept separate and distinct apart and in each other’s name and control as separate individuals do, with no future claims of dower or curtesy whatever. And it is hereby -understood and agreed that, in case of any disagreement between us that would result in separation as husband and wife, each one of us to take the individual property owned by ns individually, and that to be the final settlement between us as herein agreed and made binding between us.
“Witness our hands and seals this the second day of December, 1916.
“W. T. Hudson
her
“Mrs. S. B. (x) Hudson
mark
“Witness, R. M. Henderson.
“Witness to mark, R. M. Henderson.”
“State o,f Arkansas, county of Monroe.
“On this the 2d-day of December, 1916, appeared - before me, R. M. Henderson, a justice of the peace, duly commissioned and acting, Mrs. S. B. Hudson, to me well known, and acknowledged that she had signed the foregoing transfer, for the consideration and purposes therein mentioned, of her own free will and accord.
“Witness my hand as such justice of the peace, on this the 2d day of December, 1916. R. M. Henderson, J. P.”
Certificate of Record.
“State of Arkansas, County of Monroe.
“I, R. A. Holloway, circuit clerk and ex-officio recorder of the county aforesaid, do hereby certify that the annexed and foregoing instrument of writing was filed in my office on 1st day of December, 1917, at 2:30 o’clock p. m., and that the same is now duly recorded with the acknowledgments and certificates thereon in record book 21, page 46.
“In witness whereof I have hereunto set my hand and affixed the seal of said court this 13th day of December, 1917. R. A. Holloway, circuit clerk and ex-officio recorder. By................................................” (Seal).
Appellant denied signing the contract or authorizing any one to sign it for her. She said her husband proposed entering into such a contract before their second marriage, but that she declined to do so, and that she never heard of nor saw the purported contract until it was shown to her hy Mr. Milwee after her husband’s death. Appellant could neither read nor write. Appellant’s second initial is V, and it will be observed that it appeared as B on the contract. 'Counsel for appellee° argue that the contract had been on record for nearly ten years. We do not see how that fact can help them, unless they had shown that appellant knew of the existence of the contract and that same had been recorded.
The trial court’s finding to the effect that appellant signed the antenuptial contract was contrary to the weight of the evidence.
The trial court’s finding against a gift of money by W. T. Hudson to Joe Hudson is in accordance -with the weight of the evidence.
The judgment on the cross-appeal is affirmed, but the judgment on the direct appeal is reversed and the cause is remanded, with directions to allow the widow one-third of the money and to divide the balance between the heirs according to the statute of descent and distribution. | [
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McCulloch, C. J.
Adam Reeves, one of the appellees, was, on March 23, 1916, the owner in fee simple of the tract of land in controversy, which contains about seventy-eight acres, and is situated in Ouachita County, Arkansas. On that date he was indebted to the estate of George L. Ritchie, deceased, in the sum of $347.60 on open account, and he executed to appellant Gordon, as executor of the estate of Ritchie, a deed conveying said land in fee simple for the consideration of the extinguishment of said debt to the Ritchie estate. On the same day, and contemporaneously with the execution of said deed, Gordon executed to appellee Reeves a written instrument whereby he agreed to give said appellee the right to repurchase said land within two years from that date on payment of the sum of $347.60 with interest from date, and that, upon payment of said sum, he would execute to said appellee a deed reconveying said land to him. This instrument was delivered by Gordon to Reeves, and the latter kept it thereafter in his possession. Adam Reeves remained in possession of the land and cultivated the same, and so continued until the present time.
This action was instituted by appellee Adam Reeves and his wife against appellant Gordon, and others claiming an interest, in December, 1922, alleging that the deed executed by Reeves to appellant Gordon was intended as a mortgage and praying an accounting of the amount due, and a decree as to the rights of redemption. Appellees alleged' in their complaint that they are ignorant persons, and that they were induced to execute said deed under the false and fraudulent misrepresentations made to them that it was a mortgage; that the written instrument executed by appellant Gordon and delivered to them was represented to be a copy of the mortgage, and that they did not receive any information to the contrary, being permitted to remain unmolested in posses- " sion of the land, until some time during the year 1922, when a vistor at their home looked at the paper and called their attention to the fact that it was not a copy of a mortgage, but that it was a contract of different import. Appellee also alleged that, after the execution of the deed in March, 1916, they continued in possession, as before stated, and that, during the year 1916, they harvested two- and a half bales of cotton of the market value of $375, and in the year 1917 harvested one and one-half bales of cotton of the market value of $225, and in the year 1918 harvested a bale of cotton with a market vain** of $125, all of which was delivered to appellant Gordon to be credited on the supposed mortgage.
On the trial of the issues, appellees testified themselves and introduced other witnesses tending to support the allegations of their complaint that they were led to believe that the deed executed by them was a mortgage, thát they did not receive information to the contrary until the year 1922, and that they had delivered the quantity of cotton of the value mentioned above to appellant Gordon during the years mentioned.
Appellants introduced testimony tending to show that there was no misrepresentation concerning the character of the instruments, and appellant Gordon also intro•duced his accounts showing supplies furnished to appellees during the years 1916, 1917, 1918 and 1919, and the amount of cotton delivered for credit of the proceeds on the account. This account shows that only one bale of cotton was delivered in the year 1916, one bale in 1917, together with a small cash payment, and a bale in the spring of 1919 of the crop of 1918.
On the trial of the cause the court found that the deed was intended as a mortgage, having been given to secure a debt due the estate of Ritchie, and entered a decree declaring the same to be, in effect, a mortgage, and permitting appellees to redeem therefrom by paying the sum of $347.60 with interest, which was declared to be a lien upon the land. The appellees have not appealed or cross-appealed.
It is contended, in the first place, that the decree is void, and should be reversed for the reason that the court was not in session on the day the decree was rendered and that there was no authority for the court to sit on that day. This contention involves an interpretation of the statutes in regard1 to holding courts in Ouachita County.
The terms of the chancery court of Ouachita County were fixed by act No. 10 of the session of 1919 to begin quarterly on the third Mondays in March, June, September and December. The General Assembly of 1923, at the regular session, enacted a statute (act No. 372) providing for an additional chancellor for the seventh chancery circuit, which includes the counties of Ouachita and Union. The statute provides for the division of these courts in Ouachita and Union counties into two divisions, to be known as the first and second divisions, and provides for the appointment of another chancellor to hold the second division of the court. Section 8 of the statute reads as follows: “For the purpose of expediting business in said second division of the chancery court of Union and Ouachita counties, the court of said division shall be always open for the transaction of business, and may sit in either county and may hear and try causes at the same time and .in the same county where the first division may be in session.” The present case was heard and the decree rendered on June 27, 1923. It appears from the record before us that Honorable George M. LeCroy, the chancellor of the second division, held court on June 15 and adjourned over to June 25, which was after the commencement of the June term according to the original statutes, which began on June 18. On June 25 a special chancellor was elected to hold the court for that day, and adjourned over to June 27, when the court was opened by Honorable John E. Martineau, chancellor of the first circuit, on exchange with 'Chancellor LeOroy. The court was not opened on June 18 nor on. any day thereafter until June 25, when, as before stated, the court was opened and a special chancellor was elected.
The contention of counsel for appellants is that there was no intention on the part of the lawmakers to create a new chancery court, but merely to provide for a división of the regular court by the appointment of a chancellor to hold the second division, that the terms of court as established by the prior statute were not repealed or affected by the new statute authorizing* holding* of court at any .time, and that the term necessarily lapsed when the day came for the holding of the new term. The further contention is that if the court was not opened for the new term within the three days specified by the general statute, there was no authority for holding the court on the day on which this decree was rendered.
We are unable to agree with the whole of the contention of learned counsel. They are correct, we think, in saying that there was no new court created, but merely a division of the regular court, with another chancellor to hold it. But we cannot agree with their contention that the failure to open court at the beginning of the new term prevented the holding of court at any later date pursuant to the provisions of the statute creating the division and authorizing the holding of the court at all times. The statute creating the terms of the court applies to both divisions, and one term ends with the beginning of the new term, so that all judgments become final, but it wás within the power of the Legislature, notwithstanding the creation of the regular term, to provide for the holding of the court at any time. There is no constitutional restriction upon the power of the Legislature to regulate terms of court except that a term of court must be held in each county during the year. Parker v. Sanders, 46 Ark. 229. We hold therefore that the court was in session on the day that this case was heard and the decree rendered.
It is next contended that the decree is void for the reason that the record' does not show that the agreement between Chancellor LeCroy and Chancellor Martineau for exchange was in writing and entered on the record as provided by statute.
The statute (Crawford & Moses’ Digest, § 2224) provides that judges of the circuit court may, by agreement, exchange circuits and hold court for each other for such length of time as may seem practicáble, etc., and that “such agreement shall be signed by the judges so agreeing, and entered on the record of the court or courts so to be held.” Another statute (Crawford & Moses’ Digest, § 2204) provides that chancellors “may exchange and hold court for each other as in the ease of circuit judges.” The record shows that, at the time the appeal was perfected, the opening order of the court recited that “court met pursuant to adjournment, present and presiding Honorable John E. Martineau, Chancellor of the First Chancery ’Court District of Arkansas, and the following proceedings were had, to-wit.” There was a blank space in the record, which has been shown in an ancillary proceeding to have been left for the time being as a space in which the agreement of the two chancellors was to be entered, and there has been brought up on certiorari an additional record showing a nunc pro tunc order made by the regular chancellor after this appeal had been perfected, entering the agreement nunc pro time. An appeal has also been taken by the appellants from that order.
Without baking into account the effect, if any, which might be given to the nunc pro tuno order, and disregarding that order altogether, we are of the opinion that the decree cannot be avoided on the ground that there is no affirmative showing in the record of the entry of a written agreement of the chancellors to exchange. The statute authorizing the election of a special judge, in the absence or disqualification of the regular judge, provides that such election 'shall be held by the clerk and the members of the bar, and that “the proceedings shall be entered at large upon the record where a special judge is elected.” Crawford & Moses ’ Digest, § 2226. 'Counsel for appellants rely upon decisions of this court holding that, in case of an election of a special judge, the record must affirmatively show compliance with the 'statutory requirements, otherwise the judgment is void for want of jurisdiction. Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126; Wall v. Looney, 52 Ark. 113; Arkadelphia Lbr. Co. v. Asman, 72 Ark. 320, 79 Ark. 248. The basis of those decisions was the well established rule that judicial power cannot be conferred by consent of parties in the absence of statutory authority, and that all the statutory requisites in regard to conferring power upon special judges must be complied with, otherwise the proceedings are void, and, in the absence of a showing of such compliance, no presumption will be indulged in favor of the record. That is not a proper basis, however, for testing the record of a trial before a judge on exchange of circuits, for a judge or chancellor on exchange of circuits is already a sworn officer of the law and clothed with judicial power, and the presumption that every officer has complied with the law in the performance of his duties, until the contrary appears, should be- applied on appeal from a judgment rendered by a judge or chancellor on exchange of circuits. McCamey v. Wright, 96 Ark. 477; Cotton v. White, 131 Ark. 273; Wallace v. Hill, 135 Ark. 353. That presumption is conclusive unless it affirmatively appears from the record that there was no proper exchange of circuits and that the question of irregularity was raised in the proceedings below. That is the rule that was applied by this court in disposing of a challenge made here, for the first time, of the disqualification of a trial judge and the election of a special judge, and we held that the question could not be raised here for the first time. Blagg v. Fry, 105 Ark. 356. See also Fernwood Mining Co. v. Pluna, 136 Ark. 107. There was no question raised below as to the regularity of the agreement for exchange of circuits /between Chancellor Le'C'r-oy and Chancellor Martineau, and the authority of the latter to hold the court cannot be questioned here for the first time, the presumption being indulged conclusively that the exchange was regular and in compliance with the statute. The opening order of the court recites the fact that the court was opened and was'being held by Chancellor Martineau on exchange, and this is sufficient to raise the presumption that he was holding court rightfully under an agreement with the regular chancellor.
This brings us to a consideration of the merits of the litigation, and we are of the opinion that the court reached, the right conclusion — that is to say, a result as favorable to appellants as the testimony warranted. It is immaterial whether or not the decree was based upon proper grounds, for, if it was a correct decree, it should be affirmed. Without discussing the grounds upon which the decree is based, we are of the opinion that it was correct for the reason that, according to the undisputed proof, Gordon, the holder of the legal title, who executed the contract with appellees for a resale of the property, waived the time limit for exercising the right of repurchase,-even if time be treated as of the essence.of the contract. He permitted appellees to remain in possession of the property under the contract.for repurchase and has never demanded possession; he accepted the proceeds of all the crops raised on the place for three years, and applied the same on the running account of appellees, and also charged the taxes on the land to appellees on that ■ account. This conduct on his part was a recognition of appellees-’ rightful possession of the land under the contract, which was the sole evidence and limit of their rights in the premises, and he is therefore deemed to have waived- the time specified for exercising the right of repurchase. Banks v. Bowman, 83 Ark. 524.
There is a sharp conflict in the testimony as to the amount and market value of the cotton delivered by appellees to appellant Gordon. The testimony of appellees, which is corroborated by the testimony of other witnesses, tended to show that the value of the cotton delivered during the years 1916,1917 and 1918 was more than sufficient to pay off the original debt as well as the account for supplies, but this is contradicted by the testimony of appellant Gordon and another witness, and, since the finding of the chancellor in decreeing a lien on the land for the amount of the original debt is in favor of appellants, and no appeal or cross-appeal has been prosecuted by appellees, we need not pass upon the weight of the evidence on that issue.
It follows from what we have said that the decree should be affirmed, and it is so ordered. | [
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Mehakfy, J.
These suits were brought, one by Maude Byan against the appellant and the other by Emma Florslioim against- the appellant, to recover on two promissory notes. The suits were brought separately but were consolidated and tried together.
The appellant, who was defendant in each suit below, answered, alleging that there was no consideration for the note other than an agreement to prevent or stop certain prosecutions against E. V. Oglesby, one of the makers of each note. That is, that the notes were executed in consideration of the fact that plaintiffs would dismiss or cause to be dismissed the charge of felony which, the plaintiffs had instituted or caused to be instituted against the said Oglesby.
The plaintiff, J. J. Smith, who was 72 years old, testified, in substance, that he was engaged in the practice of medicine, and had been for forty years; that ho signed the note to Maude Ryan and also the note to Emma Florsheim, the notes sued on in these suits. That the consideration of his signing the notes was that the charges against Oglesby should be dismissed. The notes were presented to him by Oglesby, the party against whom prosecution had begun. Defendant further testified that he had never seen either of the plaintiffs. That he had some notes given by the plaintiffs to Oglesby, and had loaned Oglesby some money- and had taken these notes as collateral security, and that Oglesby made application to him to make his bond, and that Smith did make Oglesby’s bond. The witness testifies that he then went to Mr. Roy Clean, Oglesby’s attorney, and phoned for Mr. McDonald, who was the attorney of the plaintiffs, but that McDonald would not or did not come. Then Mr. Glean got in touch with the prosecuting attorney, Mr. Wood, and they got the bond reduced to $3,000, and Smith signed the bond. That defendant gave up the notes which he held as collateral on the loan made to Oglesby, and they fixed up notes to cover the amounts they claimed Oglesby owed them, and Oglesby was released from any prosecution. That the agreement was made in Roy Glean’s office between plaintiff and Roy (lean, who represented Oglesby, and the prosecuting attorney of that district, Sam Wood. Witness was to give up the notes for $2,700 and go on Oglesby’s note, the note sued on herein, and this was done and the prosecution stopped. This agreement, he testifies, was made while they were in Air. dean’s office and while Oglesby was still in jail. Witness said, “I signed the notes with Oglesby, and gave them back to him along with the notes signed by the ladies, which I had held as collateral for money I had loaned him.” Oglesby took the notes and went back to Fort Smith. Witness did not sign tlie notes and give them to the ladies. He had never seen the plaintiff's at that time. This was the only conversation witness ever had about the matter. The notes sued on are notes which witness signed with Oglesby in pursuance of the. agreement. “The grand jury asked me about the notes, and 1 told them that the notes Avere good if I was good. Mr. J. F. Brewer Avas foreman of the grand jury. So far as I knoAV, the charge against Oglesby was ignored, and I heard no more about it. The prosecuting attorney ' told me it would be all right. Oglesby is now dead. ’ ’ Witness did not hear the charge stated before the grand jury. The question asked him by the grand jury Avas, did he sign the notes. That was the only thing they asked him about it. At the time the agreement Avas made, Avitness did not see Mr. McDonald, who represented the plaintiffs, and did not see or make any agreement AAdth the plaintiffs in the ease.
Records Avere introduced here shoAving the prosecution of Oglesby and the report of the grand jury ignoring the charge against Oglesby.
J. F. Brewer, foreman of the grand jury, testified that he knew the plaintiffs, Miss Florsheim and Mrs. Ryan, and one of them Avas before the grand jury with reference to the charge against Oglesby. He was charged with defrauding one or both of them of some property, and was bound over to the grand jury. The grand jury investigated the charge, and one of the plaintiffs Avas before the grand jury. Witness Avas presented with the notes, and the question before the grand jury seemed to be whether or not these notes were forgeries. Witness had Dr. Smith to come up to see whether or not his signature was genuine. Dr. Smith came up, and said he signed the notes, and that was all there was to it. Everybody A\.as satisfied about it, AVe had Dr.- Smith up there, and he said he signed the notes. AVe sent for Dr. Smith to see if he signed the notes, and that was after one of the plaintiffs had testified before the grand jury. One of the plaintiffs had testified about the transaction betAveen Oglesby and themselves. They had let liim have a certain amount of money, she said. She said it was settled by these notes, if the notes were good. Then we got Dr. Smith up there, and, after he testified, we did not indict Oglesby. The notes never came before the grand jury. The question was whether there was a* forgery of the notes. My impression is that they did not care to go any further into it. If they had insisted on indictment, I do not know what the grand jury would have done. We would have voted on it, of course.
T. C. Gray, a member of the grand jury, testified that they investigated the charge against Oglesby for defrauding Miss Florsheim and Mrs. Ryan of some money. One of the plaintiffs was before the grand jury, and she testified with reference to the charge. Witness thinks she had some notes that Oglesby had given her and her sister as settlement of some money he had got from them, and there was some question about the genuineness of the signature. Then Dr. .Smith was summoned. No request was made to the grand jury not to indict. The only question, as witness remembers, was whether Dr. Smith had signed the notes. Witness thinks that one of the plaintiffs who appeared charged that Oglesby had got their money from them under false pretenses and that, if the signature on these notes was not genuine, she would not be satisfied. ‘ ‘ We investigated to see if Dr. Smith signed the notes, and thereby a satisfactory settlement was made. The grand jury did not pass on whether they ought,to indict Oglesby for false pretense until Dr. Smith said he signed the notes. Then we did not indict. We did not think there was any charge against him when they got their money. If the notes were fictitious they wanted to indict him. The plaintiffs made no request of the grand jury to indict or not to indict. They did not refuse to answer, but were willing to answer any question asked them.”
Luther Hodges testified that he was on the grand jury; was clerk of the grand jury part of the time, and his testimony was largely the same as the other members of the grand jury whose testimony has been set out above.
Emma Florsheim testified that she had no knoA?ledge of any agreement made by Sam Wood, prosecuting attorney, with Dr. Smith and Oglesby at Eoy Gean’s office. Never heard of it until now. Never at any time made any agreement not to prosecute Oglesby and did not authorize anybody to make a settlement for her. Witness was called in and answered all the questions asked by the grand jury. She did not make any request and did not indicate in any way that she did not want the man indicted. Executed note to Oglesby and got it back through her attorney, Mr. McDonald, and got the notes sued on. Got back the notes after Oglesby was bound over to the grand jury. Told the grand jury if Dr. Smith signed that note that she was satisfied. Witness testified that Mr. McDonald was her lawyer and had authority' to represent her, and talked to the prosecuting attorney and had Mr. Oglesby arrested for false pretenses. Mr. McDonald gave these notes to witness. “We had given notes to Oglesby, but never received any money for them. We got the notes back.” Understood that Oglesby was being prosecuted through Mr. McDonald for defrauding witness.
The above is all the testimony on the question of any agreement with reference to Oglesby’s prosecution, and the appellant in his brief says: “The issues in this case are within a narrow compass.” Appellant then contends that the court erred in placing the burden of proof upon defendant to show by a preponderance of the evidence that there was no consideration for the notes in suit or that the consideration was illegal.
We think the court did not err in giving this instruction. The plaintiff sued on the notes, the defendant filed an answer admitting that he signed the notes, and when the notes were introduced in evidence they made a prima facÁe case, and the defendant, in asserting an affirmative defense, assumed the burden of proving it.
“The burden of proving defenses of an affirmative nature, or in confession and avoidance, is upon the defendant. The reason is obvious. In such instances the effect of the pleading is to admit the material allegations of the complaint or declaration, but to seek to avoid the effect thereof by the affirmative allegation of new matter avoiding plaintiff’s case. If the defendant pleads a release, in abatement, a discharge in bankruptcy, or other substantive defense, the burden is upon him to prove such affirmative defense and forms no part of the plaintiff’s averments.” Jones on Evidence, 2d Edition, vol. 2, 866; Johnson v. Aylar, 129 Ark. 82, 195 S. W. 4; Johnson v. Ankrum, 131 Ark. 557, 199 S. W. 897; Horn v. Brand, 133 Ark. 567, 203 S. W. 5; Cheney v. Auto Fedan Hay Press Co., 146 Ark. 517, 226 S. W. 161.
The plaintiff made a prima facie case when he introduced the notes, and the defense was that the consideration was illegal. If the law were otherwise, the plain tiffs in their suit on the notes would, have had to prove, not only that Smith executed the note which itself shows a consideration, but would also have been required to show that Oglesby was not bound over to the grand jury; that Smith did not go on his bond; that there was not an agreement not to prosecute. In other words, the plaintiffs would have been required to prove these negatives, unless the burden of proving these things as facts were upon the defendant.
The appellant does not call the court’s attention to any authorities supporting his views, but merely argues that the burden of proof was not upon the defendant. And, as Ave have said, the court did not err in giving this instruction.
There is no complaint about any other instruction, and the onfy other contention of the appellant is that the testimony shoAvs an agreement Avas had between defendant Smith and the prosecuting attorney, but, in ansAver to this, it may he said that the prosecuting attorney did not represent either of the plaintiffs; the undisputed proof sIioavs that the defendant had never spoken to either of the plaintiffs, that the)' had never talked to anybody representing the plaintiffs, and AAdmt the defendant claims to be an agreement not to prosecute is an agree ment which he alleges was made between him and the prosecuting attorney and Roy Gean, representing Oglesby. The plaintiff absolutely knew nothing about it. Did not know that it had ever been discussed, and, when Dr. Smith was subpoenaed before the grand jury, it was for the purpose of inquiring of him whether his signature' to "the notes was genuine. The testimony shows that there was some claim that the notes were forgeries, that Dr. Smith did not sign them, and that seems to be the thing about which the plaintiffs were concerned. As soon as they found that Dr. Smith signed the notes, they were satisfied.
We think it clear from the proof that, if there- was any prosecution in the minds of the plaintiffs at the time, it was for; a prosecution against Oglesby for forgery. The undisputed proof shows that neither of them asked the grand jury to indict or not to indict. They simply went before the grand jury and answered the questions asked them. It is certainly true that the contracts or notes signed by Dr. Smith would have been illegal and void if the consideration had been to prevent a prosecution or to secure the dismissal of the prosecution or to suppress evidence. This question has been decided by this court many times, and there is no controversy about the law on this question. But it is unnecessary to refer to these authorities or to discuss the question further,, since we hold that there is no evidence that the plaintiffs or either of them ever entered into any agreement or that anybody representing them entered into any agreement to have the prosecution dismissed or to not prosecute.
We think the evidence sufficiently shows a consideration, and that the agreement not to prosecute or to secure a dismissal was not part of the consideration. The judgment of the circuit court is therefore affirmed. | [
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Wood, J.
This is an action by the appellees, Basham and Patterson, against the appellant for the sum of $1,015, which claim is bottomed on the following contract:
“As county judge of Johnson County, Arkansas, hereby retain and employ Hugh Basham and G. O. Patterson as attorneys for Johnson County, Arkansas, to represent said county in a claim held against it by the Dixie Culvert Company, and hereby fully authorize, empower and direct my said attorneys to do and perform any and all matters necessary to defend against and defeat said claim. And for their services in that behalf hereby pay untó them the sum of $25 each as a retainer, and further agree that the county of Johnson will also pay said attorneys, in addition to the retainer, a sum equal to one-fourth of the claim held- by said company, for their further services as such attorneys in making defense to said claim in the courts or otherwise. And the said Hugh Basham and G. O. Patterson hereby accept said employment, acknowledge receipt of said sum of $25 retainer, and agree to give to the defense of said claim their best attention. (Signed) C. H. Baskin, county judge of Johnson County, Arkansas.”
The action was instituted by the filing of the claim, duly verified, and exhibiting therewith the above con tract. The answer denied that the appellees had rendered any services thereunder, and set up that, prior to August, 1916, the Dixie Culvert Company furnished the appellant certain materials amounting in the aggregate to more than $4,000; that, in August, 1916, road warrants were issued covering the indebtedness, which were subsequently called in by C. H. Baskin, the then county judge, for reissue, which warrants were by him declared fraudulent and canceled on August 11, 1917; that these warrants, at the time of their cancellation, were a valid and subsisting claim against the appellant, but no suit had been instituted against the appellant for the amount thereof; that, approximately eight months after the cancellation of the warrants, the alleged contract of the appellees was signed by the then county judge; that there was no consideration whatever for such contract; that the claim for services growing out of such contract was filed for allowance on April 13, 1923, more than five years after the alleged contract was entered into, and that therefore such claim is barred by the five-year statute of limitation, which appellant pleads.
The testimony of Judge Basham, for the appellees, was to the effect that he was retained by Judge Baskin, county judge of Johnson County, soon after his election in 1916, to recover what Judge Baskin considered a lot of fraudulent scrip that had been issued. He was employed because the prosecuting attorney could not give those matters the attention they needed. Witness’ contract with the county judge was that he was to have one-fourth of the amount recovered, and the resistance of the payment of the warrants that had been issued to the Dixie -Culvert Company was included in his employment. These warrants were identified by the witness, and introduced in evidence. They were drawn on the general road fund, and amounted in the aggregate to the sum of $4,167.62. They were presented to the county court, under an order that had ¡been made by Judge Baskin, calling in all the county scrip for reissue. Each of the warrants had indorsed on its face, “Canceled as fraudulent, August 11, 1917. C. H. Baskin, County Judge.” At the time the warrants were issued, Judge Montgomery was the county judge, and they were issued a short time before his retirement from office, two of them about the close of his term. Witness was employed by Judge Baskin to resist the payment of these and other warrants claimed by him to be fraudulent, because witness had been county judge eight years, and Baskin thought witness was pretty well posted in regard to such -matters, and wanted the services of witness to assist him in resisting payment of what he deemed fraudulent county warrants. Witness ’advised Judge Biaskin that the warrants issued in favor of the Dixie Culvert Company were embraced within his order calling in the county warrants, and that their presentation in obedience to the call gave the county court jurisdiction over the subject-matter, and that the order canceling these warrants was within the court’s jurisdiction. The county judge consulted with witness a number of times during his administration concerning these warrants. The culvert company was talking about bringing suit to 'try to establish and reinstate these warrants that had been declared fraudulent and canceled. Its agent came in a time or two to investigate concerning the reinstatement of these warrants before its right to appeal had expired. Judge Baskin talked to witness concerning it, and witness told him not to bother anything about it until the time for the appeal was up. Witness wanted the time for the appeal by the culvert company to expire, as he feared that a suit might be- brought against the county before the five-year statute of limitation had run. Witness did not consider that the appellees had any claim against the county for the resistance of the payment of these warrants until the expiration of the statute- of limitation. He was holding himself in readiness all the time to defend any suit that might be brought after the five-year statute had run. When the five years expired, witness decided that the fee due him under the contract had been earned, because he claimed these war rants had, at that time, been defeated. Witness was asked if Judge Baskin had entered into a written contract of employment with him, and witness answered that Judge Baskin had informed witness that he had employed Patterson to assist witness in the matter of resisting the claim of the culvert company and signed the written contract on April 21, 1918, supra, which witness identified and introduced in evidence. This contract was executed something like a year and a half after Judge Baskin went into office: It was delivered by the county judge to witness and Patterson and was accepted by them. Witness and Patterson had been ready and willing, at all times since they had been retained by Judge Baskin, to do anything necessary, in witness ’ judgment, to defeat the allowance of the claim, and had advised with the county judge all the time about the matter. No appeal was ever taken from the order of the county court canceling the warrants of the culvert company, and no suit was ever brought. Attorneys on different occasions would come to Clarksville and investigate it, and, upon investigation, decided they didn’t have a case, for some reason, and no- suit was brought. Witness’ contention was .that the claim of the culvert company was barred after five years from the date of the warrants, and absolutely barred at the expiration of one year for appeal from the order of cancellation. Witness didn’t want any suit brought about it until the five years was out, and therefore said very little about it, except in conference with Judge Baskin. Suit was not brought on the contract of employment with witness and Patterson prior to April 13, 1923, because witness didn’t consider their fee was earned until the claim was absolutely barred. Witness’ services were being continuously rendered, but were not fully rendered until that time, and witness didn’t have anything done that might cause the matter to be stirred uo and to cause the culvert company to bring suit until the five-year statute had run. That was witness’ idea of the best way to proceed to defeat the claim. Judge Baskin’s contention in regard to the claim of the culvert company was that the property purchased from the company a short while before he went into office, upon which property its claim ag’ainst the county was founded, was worthless; that he couldn’t use it, and it was never used for the county. He denied that the county owned it, and refused to have anything to do with it.
Witness Patterson testified that he was employed by Judge Baskin to assist Judge Basham in resisting the claim and in preventing its allowance in the court. Judge Baskin informed witness that he had agreed with Judge Basham to pay him one-forth of the amount of the claim for his services in resisting payment of same. Witness told Judge Baskin that, if it was agreeable with Judge Basham for witness to assist him, he would accept employment on the terms mentioned, and split the fee with Judge Basham. After the scrip had been canceled by the county court, and before the time ran out for the appeal, witness received a letter from a firm of attorneys in Little Rock, wanting to retain witness to represent the culvert company and take an appeal, or whatever steps witness thought necessary to protect its rights. Witness replied that he had been employed ¡by the county to resist the allowance of the claims, and therefore could not accept the employment by the culvert company. Witness and Judge Basham and Judge Baskin discussed the matter two or three times before the time for appeal ran out. Witness and Judge Basham held themselves in readiness at all times to represent the county, and liad made it known to everybody having an interest in it that they were representing the county. Witness had advised other attorneys, who had been to Clarksville looking into it, that he was representing the county. Some time in 1918 Judge Baskin had opposition, and it was suggested that it would be better to put their contract in writing, as Judge Baskin might go out of office, and that Judge Basham would have nothing but a verbal contract for their employment. The contract in evidence was then reduced to writing about six months after wit ness’ employment. Witness was spoken to by a banker in Little Rock, asking if witness would assist in getting tbe claim of tbe culvert company allowed, and agreeing to pay witness a nice fee if he would do so, but witness informed this banker and every one else, that be was employed to resist tbe claim. He and Judge Basham had advised with tbe county judge, and informed bim of their views and what proceedings they would take if suit were brought to establish tbe validity of tbe scrip. Tbe payment of the fee called for by' the contract, in addition to the retainer, was not contingent upon the claim being filed and contested in court; it was contingent upon the claim being disallowed or finally defeated — never being allowed as a claim against the county. Witness was asked if he had a conversation with Judge Montgomery, after he bad filed his claim for a fee, in which witness stated that he never did anything in tbe matter — that be had almost forgotten about it, or words to that effect. Witness replied that be didn’t think be bad any such conversation, but did have a number of conversations with Judge Montgomery, trying to get bim to allow witness’ claim'or to pass on it.
Judge Montgomery testified, for tbe appellant, that he had been county judge of Johnson County up to the latter part of 1916, and again since the first of January, 1921. Tbe first be knew of tbe contract with Judge Basham and Patterson was when they filed their claim. Patterson talked with witness soon after it was filed, and witness told Patterson that he would disallow the claim. Patterson told witness that he didn’t do anything in tbe matter, and bad forgotten about it until Judge Basham called his attention to it a short time before tbe contract was filed. Two carloads of metal culverts were bought from tbe culvert company by witness in tbe spring of 1916. Tbe county bad no money to pay warrants at that time, and tbe company was told it would have to wait. After witness went out of office, tbe culverts purchased from tbe culvert company were hauled out and used by Judge Baskin on the highways. Witness knew of his own personal knowledge that those culverts were used by the county. No claim had ever been filed, but attorneys for the company had been to ‘Clarksville several times, wanting the claim allowed. The canceled warrants were sent to the county clerk in a letter, which is as follows:
“As per our ’phone conversation today, I am inclosing herewith Johnson County warrants as follows (giving numbers and amounts). Kindly file these for reissue, and mail us a receipt. Thanking you in advance for your kind attention to this matter, we are, yours very truly, Dixie Culvert & Metal Company, by W. J. Hearn. ’ ’
There had been no suit filed in any of the courts for any claim- — no action brought to collect them in any of the courts that witness knew of. The first that witness knew that Basham and Patterson were interested in the claims was when they filed their claim against the county for their fee for services. On cross-examination witness was asked: “After this claim was filed, I will ask you if two representatives of the company didn’t come up here and ask you to allow the- claim and discuss the matter with you? A. I think they have been here since this claim was filed. They have been here several times, and written me letters about it. Q. I will ask you if you didn’t tell those men that you wouldn’t allow it, for the reason that the county attorneys here had been hired to resist it? A. No sir. I didn’t tell them that; I told them that you and Judge Basham had a claim filed over here for services in resisting that. Q. Was that one of the reasons why? A. I told them to go over there to the clerk’s office and look it up and see for themselves. That is about all that was said. Q. How did you happen to tell them that attorneys had been employed to defend the matter, to resist the claim? A. I told them that because that claim was pending in the county court. Q. Were they interested in our claim? A. Not that I know of. * * * Q. Did vou explain t-o them what our employment was? A. Nothing further than the contract. I showed them the contract. That it all I knew about it. Q. How did you happen to advise them or what was your purpose in advising them that we had been employed in resisting the claim? A. My purpose was that I didn’t want to pay them for the culverts and then pay lawyers a thousand dollars for resisting it. Instead of having a claim of $4,000, run it up to $5,000.”
No suit was ever brought, and no record of any kind has ever been made except what is on the face of those road warrants. On being recalled, Judge Basham testified that he went to the clerk of the county court and told him, if any claim were filed against the county to re-establish the warrants of the culvert company, to let witness know; that witness intended to defend against it, and, if they were allowed, witness intended to take an appeal. Witness got the' impression that Judge Montgomery would be friendly with the other side, and that was his reason for going- to the clerk and talking with him about it, and not to Judge Montgomery.
Upon substantially the above facts the trial court, sitting as a jury, found in favor of the appellees against the appellant, and rendered a judgment in their favor in the sum of $1,015, from which is this appeal.
The testimony of Judge Basham shows that he was employed by the county judge to resist the payment of certain claims against the county, which the county judge considered fraudulent. Among the outstanding-warrants was the claim of the Dixie Culvert Company, amounting in the aggregate to over $4,000. The county judge desired to resist the payment of this claim, and therefore employed the appellees, under the contract, which is the foundation of this action, to resist the payment of such claim. Judge Basham states that his employment grew out of the fact that the prosecuting attorney could not give these matters the attention needed.. The amount and character of the claim involved were sufficient to show that it was one of more than ordinary importance, and, as the prosecuting attorney, in the performance of his duties, could not give the claim the attention needed, the county judge was authorized to enter into the contract with the appellees to represent the county in the resistance of this claim.
The court was correct in finding, from the testimony of Judge Basham, that the contract was valid. Oglesby v. Fort Smith, 119 Art. 567-572; Spence & Dudley v. Clay County, 122, Ark. 157; Buchanan v. Fanner, 122 Ark. 562; Sumpter v. Buchanan, 128 Ark. 498. We cannot concur with learned counsel for appellant in their statement “that every line of this contract shows conclusively that the sole purpose and intention of the county judge in making such contract was to pay the appellees for any future services rendered in making a defense to the claim in the event suit was brought.” Such a construction of the contract is entirely too narrow, and would defeat its manifest purpose. Taking the contract by “its four corners,” it was contemplated that the appellees, on their part, “should do and perform any and all matters necessary to defend against and defeat said claim” of the Dixie Culvert Company “in the courts or otherwise,” and the county, on its part, in addition to the $25 paid the appellees as a retainer, was to further pay them a sum equal to one-fourth of the claim held by the culvert company. The contract was broad enough to cover whatever services the appellees rendered the county toward defending against and defeating this claim, whether those services were rendered in defending a suit brought to establish the claim, or otherwise, that is, in any other manner by which the claim was finally defeated.
Now, the testimony of Judge Basham shows that he advised the county judge the course to pursue with reference to these warrants, and the result proves that, by following his advice, these claims were finally defeated. Judge Basham, after investigating the matter, advised the county judge, in the first place, that these warrants were embraced in his order calling in county warrants for cancellation and reissue; that this gave the court jurisdiction to make the order, and that, when such warrants were presented, the court then had jurisdiction of the subject-matter, and could make the order canceling the warrants. This advice was correct. Wilkes. v. Bank of Augusta & Trust Co., 163 Ark. 455; Allen, v. Banster, 33 Ark. 740. This advice was most important and exceedingly valuable from the viewpoint of defeating the claim of the culvert company. Likewise, after the order of the county court was made canceling the warrants, and after the warrants were marked canceled, it may also have been the part of wisdom for the county to let the matter rest and be forgotten, as far as possible, in order that the culvert company might not be stirred to action and an appeal taken from the decision of the county court canceling the warrants, and in order, if possible, that no suit be brought before the expiration of the five-year statute of limitation. The advice of Judge Basham along this line was also correct. Crudup v. Ramsey, 54 Ark. 168. The testimony of Judge Basham further shows he considered that his services in the way of directing the course of the county judge were continuous from the time of his employment, and that he did not consider his services ended and the contract performed until the warrants were barred by the five-year statute of limitation. He and Patterson at all times were ready and willing to defend any action that might be brought against the county to establish these claims, and to do all things necessary looking toward the repudiation of such claims, in compliance with the terms of their contract. To this end the testimony of Patterson shows that he refused offers of employment to represent the culvert company in the establishment of the claim, and that he informed all those who made inquiry concerning same and all who manifested an interest in the establishment of such claims that he and Judge Basham had been employed by the county to resist them, and would do so in fulfillment of their contract.
In Jacks & Company v. Thweatt & Quarles, 39 Ark. 340, Thweatt & Quarles, attorneys, had entered into a contract with Jacks & Company whereby they were to advise Jacks & Company in a case which the latter had against Phillips County, and they agreed to pay the attorneys a fee of ten per cent, on all amount collected of the county on account of the county money, whether collected by suit or compromise. In an action by the attorneys against Jacks & Company, one of the defenses set up was. a failure of consideration, in that the attorneys had never rendered any services under such contract. Upon this issue the proof was that the attorneys had at all times held themselves in readiness to perform their contract, but had never been called upon by Jacks & Company for any advice or assistance in the court. The adjustment of the matter between Jacks & Company and the county court was in the main upon the court’s own motion. In that case we said: “In cases of this nature readiness to perform is sometimes equivalent to performance. ’’
That principle would apply here, even if the appellees had atually rendered no service in the performance of their contract, but the testimony warranted the court in finding that they had actually rendered the services contracted for. The appellees earned their fee under the contract, and they must be paid. The trial court ruled correctly in so holding, and its judgment is therefore affirmed. | [
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Humphreys, J.
Tliis -suit was brought in the Second Division of Pulaski County Circuit Court by appellant against appellee to compel him to issue a warrant in the sum of $13,861.42 in its favor upon the Treasury of the State, payable out of the unappropriated school funds, under authority of .act No. 117 of the General Assembly of 1927. The .act provided that:
“Whenever it shall be made to appear by the certificate of the treasurer of any county of this State that taxes heretofore or hereafter assessed by said Tax Commission or Tax Board for the support of any special or rural special school district in this. State, or any part thereof, have been erroneously paid to and received by any other school district than that to which it was payable under such assessment, it is hereby made the duty of the State Auditor, upon the receipt of such certificate of the treasurer of any county, describing the property assessed for the benefit of any special school district or rural special school district,' and the amount of taxes assessed therein, that have been erroneously paid to and received by any school district other than that to which it was properly payable, to draw his warrant on the Treasurer of the State of Arkansas, payable to the special school district or rural special school district, for the amount of said taxes so .erroneously paid. This act to apply to and cover all erroneous payments heretofore made as well as. erroneous payments hereafter made. That, for the purpose of carrying out the purposes of this act, the State Treasurer shall pay said warrant out of the unappropriated school fund of the State of Arkansas.”
It was alleged, in substance, in the complaint that, for the years 1913 to 1914 inclusive, taxes in the sum of $13,861.42 were collected on properties of certain public utilities within the boundaries of appellant district for school purposes and erroneously paid to Marked Tree Special School District, and by it expended for educational purposes; that, pursuant to the provisions of said act, it obtained the required certificate of the county treasurer and presented same to appellee in order that he might draw his warrant on the State Treasury, payable to appellant, for the amount of taxes belonging to it which were erroneously paid to said Marked Tree Special School District and by it expended in conducting its school; that appellee refused to issue the warrant.
The prayer of the complaint was for a writ of mandamus commanding appellee, as Auditor of State, to issue the warrant.
Appellee filed the following demurrer, omitting caption and signature, to the complaint:
“(1) The facts alleged do not constitute a cause of action. • (2) Act No. 117 of the Acts of the G-eneral Assembly of the State of Arkansas for the year 1927 is in conflict with article 16, § 11, of the Constitution, which provides that moneys arising from a tax levied for one purpose shall not be used for any other purpose. (3) The said act does not comply with article 5, § 29, of the Constitution, which provides that Mo money should be drawn from the Treasury except in pursuance of specific appropriation made by law, the purpose of which shall be dis tinctly stated in the bill, and the máximum amount which may be drawn shall be specified in dollars and cents’.”
The court sustained the demurrer to the complaint, and appellant refused to plead further, whereupon the court dismissed its complaint, from which is this appeal.
Act No. 117 of the General Assembly of 1927, made the 'basis of appellant’s suit, is void for failure to make a specific appropriation out of which to pay the warrant, in accordance with article 5, § 29, of the Constitution of the State of Arkansas, which is as follows:
“No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriation shall be for a longer period than two years.”
The only attempted appropriation of funds out of which to pay said warrant which appellant is demanding that appellee issue is contained in § 3 of said act, which is as follows:
“That, for the purpose of carrying out the provision of this act, the State Treasurer shall pay said warrant out of the unappropriated school fund of the State of Arkansas.”
It will be observed that the maximum amount which may be drawn for the purpose mentioned was not specified. in dollars and cents. For aught that appears, the Auditor might be required to draw warrants in unlimited amounts for the purpose mentioned. This is inhibited by the Constitution of the State. The requirement in the Constitution is that all appropriations made out of the State Treasury for a special purpose shall state the maximum amount in dollars and cents that may be drawn out for such purpose.
Having* reached the conclusion that the act in question is void because indefinite as to the amount attempted to be appropriated for the purpose specified therein, it is unnecessary to decide the other interesting questions presented and ably argued by learned counsel in the case.
The judgment is affirmed. | [
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'Wood, J.
This is an action by the appellant against the appellees to recover damages growing out of the alleged wrongful appointment of a receiver at the instance of the appellees. The appellant alleged, in substance, that one Charles H. Sevick owned a large quantity of personal property and real estate, located in White County, consisting of five mills and their equipment, which property is described in the complaint; also certain lands, town lots and timber rights. The appellant alleged that Sevick conveyed all of this property to appellant, by instruments duly executed and placed of record, and that appellant entered into possession of the property; that, shortly after this, appellees brought suit against Sevick and appellant, alleging that Sevick was indebted to them on divers accounts in sundry sums, and that he conveyed certain of his property to appellant -with the fraudulent intent of defeating their claims; that the appellees, in their action against Sevick and the appellant, asked that the conveyances made to appellant by Sevick be set aside, and that a receiver be appointed to take charge of the property and hold it during the pendency of the action; that, upon the representations made by the appellees in that action, a receiver was appointed who took charge of all the property which had been conveyed by Sevick to the appellant; that an answer was filed in that case by the appellant, and, upon final hearing of the cause, the issues were determined in appellant’s favor, and the receiver was directed to return the property to him; that such cause was appealed to the Supreme Court, and the decree of the lower court in that cause was affirmed. The appellant in the present action alleges in detail the damages which he sustained bv reason of the amoointment of the receiver, which amounted in the aggregate to $13,033.11, and asked judg ment against tlie appellees in this snm. General demurrers were sustained to the complaint. The appellant stood on his complaint, and the court entered a decree dismissing the same, from which is this appeal.
The only question for decision is whether of not the complaint states a cause of action. Our statute provides that “whenever it shall not he forbidden by law, and shall be deemed fair and proper in any case in equity, the court, judge or chancellor shall appoint some prudent and discreet person as receiver.” Section 8600, C. & M. Digest. By the same section the receiver is required to take an oath to “faithfully, impartially, diligently and truly execute the trust reposed in him,” and he is also required to give bond1 with good and sufficient security to be approved by the court, judge, or chancellor, in such sum as may be deemed sufficient for the benefit of all persons in interest, conditioned that he will faithfully discharge the duties incumbent on him and faithfully account for all assets coming into his hands as such receiver.
Our statute further provides that receivers may be removed at any time by the court, judge, or chancellor, when it shall appear that they have failed to discharge any duty incumbent upon them, or for other sufficient cause, upon motion of any person interested, either as party, creditor, or otherwise. Section 8609, C. & M. Digest.
There is no provision in our statute requiring those who desire to apply for the appointment of a receiver to execute a bond as a condition precedent to such appointment, that they will pay all damages growing out of the receivership if it should afterward be determined that his appointment was unnecessary or improper. In the case of injunctions there is a provision requiring the party obtaining’ the injunction to execute a bond sufficient to cover all probable damages that may be occasioned by the injunction. Section 5801, C. & M. Digest. But in the case of the appointment of a receiver, in the absence of a statutory provision requiring it, it is wholly a matter within the discretion of the court as to whether a bond will be required of the parties applying therefor to pay all damages to the other party growing out of such receivership. There is no statute forbidding any litigant to apply to the court for the appointment of a receiver without first making a bond to pay damages. It is therefore one of the rights that every litigant has in the course of the litigation, if he so elects, to ask for such remedy as incident to the litigation, and he is not liable in damages for so doing, any more than he would be for instituting the action itself in which he asks for the receiver.
In the appellant’s complaint he does not allege that he resisted the appointment of a receiver in the action by appellees against him and Sevick; nor does he allege that he had made application to the court in which the receiver was appointed at any time to discharge the receiver; nor does he allege that he requested the court to require the plaintiffs in that case, appellees here, to execute a bond conditioned to pay all damages that he might sustain by reason of the appointment of the receiver.
To be sure, in those jurisdictions where the statute requires the execution of a bond 'by the party applying for a receiver, to pay all damages growing out of the wrongful appointment of such receiver, such damages are recoverable in an action on the bond, and it is not necessary in such cases to prove that the action in which the receiver were appointed, and the appointment of the receiver, was malicious, and without probable cause. Pagett v. Brooks, 140 Ala. 257, 37 So. 263; Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870; Strum v. Blair, 182 Ill. App. 413; Thornton-Thomas Merc. Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10; Haverly v. Elliott, 39 Neb. 210, 57 N. W. 1010; Joslin v. Williams, 76 Neb. 594, 107 N. W. 837.
But in jurisdictions like ours, where there is no such statute, and where there is no law forbidding the appointment of a receiver without bond, and where the matter of the appointment of such, receiver depends entirely upon the discretion of tlie court, judge, or chancellor, there can be no liability for damages growing out of the appointment of a receiver, in the absence of allegations and proof to the effect that the appointment was sought and obtained maliciously, or without probable cause. In the absence of a statute requiring the party applying for a receiver to pay damages growing out of a wrongful appointment, the action against a party wrongfully procuring the appointment of a receiver is likened to that accruing on the dissolution of an improperly procured injunction. See 23 R. C. L., p. 45. In injunction cases, since our statute requires the giving of a bond to pay damages, the party aggrieved and suffering damages by the wrongful issuance of an injunction may recover on the bond, or, if he does not so elect, he may bring his action as if it were a common-law action on the case for the damages done him by reason of the wrongful injunction, alleging that such injunction was malicious and without probable cause. But, in the absence of such allegation and proof, he cannot sustain such action. Riger & Co. v. Knight, L. R. A. 1916E, p. 1277, and case notes.
In Powell v. Woodbury, 85 Vt. 504, at page 513, it is said: “No action lies at common law for damages by an injunction, unless it was sued out maliciously and without probable cause. To remedy this defect, injunction bonds were devised, and then there were two remedies, one on the bond and one for the malicious use of the process without probable cause.” See numerous authorities cited in ease note to this case in Ann. Cases 1914D, 606.
In Meyers v. Block, 120 U. S. 206, it is said: “Without a bond for the payment of damages 'or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution.”
The same rule obtains with reference to an action for wrongfully procuring the appointment of a receiver. See Lyon v. United States Fidelity, etc., Co., Ann. Cas. 1915D, p. 1036, and case note.
It follows that the appellant’s complaint against the appellees did not state a cause of action, and the decree of the court so holding and dismissing the complaint is correct, and it is therefore affirmed. | [
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Kirby, J.
This appeal challenges the jurisdiction of the circuit court of the Dardanelle District of Yell County to hear and determine a primary election contest between candidates for the office of county and probate clerk.
At the general Democratic primary election held on August 10,1926, appellant and appellee were rival candidates for the office of county and probate clerk. Appellee was declared the nominee, and, within the time prescribed by law, appellant filed in the Dardanelle District of Yell County Circuit Court his complaint, setting- out grounds for contest, duly verified, with the number of affidavits of qualified electors required. Summons was issued and served upon appellee at Danville, in the Dan-ville District of said county, as shown by the report of the sheriff.
Appellee moved to quash the service as being made in the Danville District, contrary to the statute, and because of the lack of jurisdiction of the circuit court of the Dardanelle District to hear and determine the contest, alleging that, under the special act creating said district, it was without jurisdiction to hear and determine said cause.
The question was heard as upon demurrer, and the cause abated and dismissed for want of jurisdiction, from which judgment this appeal is prosecuted.
In Walker v. State, 35 Ark. 390, this court, construing the act separating Yell County into two judicial districts, held it constitutional, saying: “The act does not reduce the area of Yell County or change its county seat from Danville; it merely divides the county into two judicial districts for the purpose of the act, and is carefully framed so as to leave the county seat proper, and for general purposes, at Danville.”
Appellant contends, however, that the division of the county into districts by said act provided for the establishment of a circuit court in the Dardanelle District, whose power to hear and determine all causes cognizable under the Constitution conferring jurisdiction upon circuit courts could not be limited, and that an attempt to prescribe or restrict its jurisdiction to hearing certain causes only brings the act into conflict with the provision of the Constitution relative thereto.
In Ex parte Jones, 27 Ark. 349, the court staid: ‘ ‘ The Constitution defines the general jurisdiction as to the subject-matter of circuit courts, but is silent as to territorial limits, and provides that this court should be held at such place in each county as might by law be directed.”
Section 3 of the act creating the district provides:
“ * * * and the authority and territorial jurisdiction of said circuit courts shall extend over the Dardanelle District tlio same and in like manner as if said district was a constitutional county of this State, and said circuit court of Yell County for the Dardanelle District shall have original and exclusive jurisdiction of all such cases as are now by law vested in the circuit courts of this State, which have or may hereafter arise in the said Dardanelle District; provided, that no citizen or resident of the Danville District shall be liable to be sued in the .said Dardanelle District in any action whatever.”
Section 5 reads:
“That, in order to ascertain in which of the respective districts in said county actions cognizable in the circuit court shall be returnable and be tried, the said districts, for all the purposes of this act, shall be considered as separate and distinct counties, and the mode and place for trying suits shall be determined by the general law applicable to different counties, except that all process, civil, criminal, original, mesne, and final, that may be issued from the circuit court of either district, shall run through the whole county, and have like effect as if the court where it issued were the only circuit court of said county. Provided, that no process except subpoenas for witnesses and executions issued by the circuit court of the Dardanelle District, shall be served on any citizen or resident of the Danville District.”
Section 16 provides that, as to all matters not within the provisions of this act, the county of Yell shall be one entire and undivided county.
Section 3372, C. & M. Digest of the Statutes, confers a right of action upon candidates to contest the nomination in primary elections, and requires the contests for county offices to be brought in the circuit court of the county.
The act providing for the establishment of the Dardanelle District gave the circuit court for that district original and exclusive jurisdiction of all such causes as are now by law vested in the circuit courts of the State, which have arisen or may hereafter arise in the said Dardanelle District.
The right of action to contest the primary election had not been conferred by law upon the candidates until long after the division of Yell County into two judicial districts, and such contests do not constitute civil actions, within the meaning of our Code of Civil Practice^ as held in Logan v. Russell, 136 Ark. 217, 206 S. W. 131; and Pierce v. Doyle, 145 Ark. 371, 224 S. W. 740.
The case last cited involved an election contest where Ihe suit was brought at the county seat, where the circuit court was held before the creation of a separate district. The defendant lived in the created district, but was served in Pulaski County, while away from home. Upon a motion to dismiss because suit was not brought in the district where defendant lived, and to quash the service, the court passed upon a provision of the act creating the separate district in that county, identical with the provisions of § 16 of the act of 1875, creating ihe Dardanelle District of Yell County, saying:
“Section 17 of the act of 1887, supra, expressly provides ‘that, as to all matters not within the provisions of this act, the county of Lawrence shall be one entire and undivided county.’ Under the primary election law supra, contests for the office of representative shall be brought in the circuit court of the county wherein any of the wrongful acts complained of occur. The Brundidge act takes no notice of the division of counties into separate judicial districts for the purpose of election contests provided therein, but for the office of representative and for county and township offices the county is considered as an entirety. The separate and independent judicial districts are not treated as separate and independent counties (in election contest cases), as appellee contends. There is nothing in the Brundidge law that repeals, either expressly or by implication, the Code of Civil Procedure which requires that actions of this kind shall be brought in ‘any county in which the defendant resides.’ The appellee, at the time of the institution of this proceeding, was a resident of Lawrence County, where it was brought, and he was duly served with process.
The cause of action, a general' contest of a primary election to the nomination for a county office, cannot well be said to have arisen in the Dardanelle District in any event, and the statute creating that district expressly provides that no citizen, or resident of the Danville District shall be liable to-be sued in the said Dardanelle District in any action whatever.
It follows that the circuit court of the Dardanelle District was without jurisdiction to hear and determine this election contest, under the provisions of the act creating the separate district, which is in no wise in conflict with the Constitution conferring 'jurisdiction upon the circuit courts.
No error was committed by the court in quashing the service and dismissing the cause, and the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that the judgment should be reversed, because the weight of the evidence showed that, under the custom of the country, the words, “subject to the-usual overflow clause,” meant that, in case the land was overflowed, the tenant would pay a part of the crop for rent on the overflowed land and the average price per acre in cash for the land that was not overflowed.
It does not make any difference where the weight of the evidence on this point was. It is sufficient to say that there was testimony on the part of the plaintiff tending to show that the words referred to meant that, in case of overflow, the tenant had the option to pay the stipulated rent in cash, or a part of the crops raised by him on the whole place. Of course it is well settled that usages and customs of trade cannot be invoked to defeat the express terms of a written contract, being applicable only where the contract is silent or where its terms are ambiguous. Southern Coal Co. v. Searcy Transfer Co., 152 Ark. 471.
It is equally well settled, by the authorities cited in the case last mentioned, that a local custom may be proved in proper cases to remove ambiguities and uncertainties in a contract. Proof of a custom is also admissible to explain what is doubtful. Therefore it was proper in the case before us to receive testimony as to the meaning of the words, “subject to the usual overflow clause.”
Each party introduced evidence as to what was the meaning of these words in the particular locality where the land rented was situated, and the court submitted to the jury the question under proper instructions on the' subject. The jury returned a verdict in favor of the plaintiff, thereby -saying that it believed the evidence for the plaintiff on this point.
As we have frequently pointed out, under -our system of practice it is the duty of a trial court to set aside a verdict which is considered by it to be contrary to the weight of the evidence. The reason is that the circuit judge hears the testimony -of the witnesses, and has an equal opportunity with the jury to weigh their testimony. On the other hand, no such opportunity is afforded us, and this court cannot set aside the verdict of a jury where there is any evidence of a substantial nature to support it. St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428.
Again, it is insisted that the court erred in admitting the testimony of witnesses to the effect that the tenant raised twelve bales of cotton on the land that was not overflowed.
This testimony was competent. According to the evidence for the plaintiff, where land is rented for a stipulated price in money, and a part of the land is overflowed, the tenant has the option to pay the stipulated money rent, or a part of the crop as rent. Therefore it was competent to prove how many bales of cotton were raised on the land that did not overflow, in order that the jury might determine the value of the crop.
Again, it is insisted that the court erred in excluding from the jury certain testimony offered by the defendant. It appears that the defendant had rented the same land from the plaintiff the year before, and had inserted a provision in writing defining what was meant by the words, “subject to the usual overflow clause.” There was no error in excluding this testimony. Where the parties defined these words by particular language whose meaning was not doubtful, they fixed their rights under the contract, and parol evidence could not be introduced to give the words a different meaning from those agreed upon by the parties.
In the case before us they used the words, “subject to the usual overflow clause,” without defining them. It cannot be said that, because the parties had defined these words in a contract entered into between them the year before, this meaning should be given to a subsequent contract where the words were not defined. By omitting to define the words in the contract, it is evident that the parties meant that they should be given their customary meaning in that particular locality. Therefore it was competent to show by parol evidence what these words meant in that particular locality, and it would be incompetent to show that these words meant what the parties had defined them to mean in a previous contract. The definition given the words in the previous contract made it definite and certain, and the absence of such, definition in the contract before us rendered! the words ambiguous, so that parol evidence could be resorted to to determine their meaning’.
It follows that the judgment must be affirmed. | [
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Mehaffy, J.
The appellee, plaintiff below, brought suit in the Independence Circuit Court, alleging’ that it was an improvement district created by act of the General Assembly for the purpose of constructing and maintaining a bridge across White River, at or near the present location of the ferry owned by the appellant, who was the defendant below. It alleged that it had a right to acquire all necessary land for the purpose of building approaches and embankments, as well as such land as may be necessary to connect the bridge with the public highway. That, in carrying out the purposes of its creation, it was necessary that it acquire title to certain lands belonging’ to the appellant. It then described the land desired, and asked the court to fix the damages that might be sustained by. appellant, and.' to condemn said land.
An order was made by the judge in vacation, ordering appellees to deposit $3,000 with the Union Bank & Trust Company of Batesville, and this sum was deposited.
The appellant filed answer, admitting the creation of the district and admitting that they had been unable to agree upon the amount of damages. He alleged that he was the owner of the land on both sides of the river where appellant proposed to build the bridge; that he and those under whom he held title had owned the land for more than 100 years; that he was the owner of a licensed public ferry known as Ramsey’s Ferry, located within a few feet of the proposed bridge site, which had been so located, owned, used and operated by him and his grantors and their ancestors continuously for more than one hundred years; that they have continuously paid all taxes on said land and license on said ferry as required by law during the entire time of their ownérship. That he owned all the land fronting on the bank of the river in fee simple, at the south landing of said ferry, for more than a mile up and down stream and extending back for more than one mile, and also owned the land fronting on the bank of the river at the north end of said ferry for more than one-fourth mile up and down stream and extending far enough back to embrace about seventy acres. That, in order to obtain- a ferry license, the licensee must be the -owner or lessee of the lands on both banks of the stream. That taking the land as proposed by plaintiff would wholly destroy the approaches to said ferry, render it useless, and thereby destroy the defendant’s franchise to operate the same. That the right and privilege to operate a ferry, and the ability and opportunity to operate the same, are wholly dependent upon ownership and possession of the lands on the banks of the stream where the same is to be operated, and, for this reason, the right to establish, operate and run a ferry is a valuable right belonging and appertaining to the land, and makes the land more valuable. That the ferry right and privilege in controversy in this case is especially and peculiarly valuable by reason of the fact that the ferry is established and located on a State highway between important cities, and enjoys a large tourist patronage from both directions, and the value of defend ant’s lands is enhanced and increased by the net income derived from the ferry and by reason of its availability for such rights and uses. That the right and nse comes to the defendant by reason of his ownership of the land, and yields him a net income of $4,500 a year; and, by taking said land of the defendant for use and construction of a free bridge at the approaches of the ferry, the plaiñtiff destroys the ferry and deprives the defendant of a net income of at least $4,500 a year in perpetuity. That the lands proposed to be taken are advantageously located, peculiarly suited and highly valuable as a ferry site. That, on account of the nature and character of the lands, its location and peculiar fitness as a ferry site, and other elements contributing to and making up its true value, if condemned and taken for a free bridge site, as sought by the plaintiff, the defendant will be damaged not less than $60,000. líe asked that he be awarded the sum of $60,000 as damages.
The appellee filed an amendment, asking to condemn an additional two-tenths of an acre, and deposited $40 with the same bank for this additional land.
The defendant filed a motion for a change of venue, alleging that, he could' not obtain a fair and impartial trial in Independence County and Stone County, on account of undue influence of plaintiff and on account of undue prejudice agaist his defense. He set up that the improvement district was composed of all lands south and a portion north of White River, in Independence County, including the city of Batesville; that most of the advocates of a bridge across White River at Batesville are property owners in Independence County, and some in Stone County; that many who favor building the bridge, including the commissioners of the district, are publicly opposing the defendant’s claim for damages because, if he prevails, the cost of the improvement will be increased and borne by the property owners of the district, most of whom are eligible for jury service in Independence County, and some in Stone County; that many of the property owners and newspapers in the district, as well as the county officials, have publicly expressed opposition to the claims and demands of the defendant, all of which tends to defeat a fair and impartial trial of the cause before a jury in Independence or Stone County. He asked that a change of venue be granted, and that the cause be transferred to Jackson County for trial.
The motion for change of venue was in proper form, and properly verified, and supported by the affidavits of auite a number of witnesses.
The court overruled the motion for change of venue, and the defendant objected and saved his exceptions.
The plaintiff then filed another amendment to its complaint, in which it stated that it did not intend to, and would not, interfere with the operation of the ferry owned by the defendant, but it expressly conceded, granted and reserved to the defendant the right to operate the ferry and the right of ingress and egress on said lands, so far as the same may be necessary for the operation of his ferry, and agreed that the decree and judgment of this court which may hereafter be rendered may contain such reservations and exceptions as will protect the defendant fully in his rights to operate the ferry.
The case was tried, and the court directed the jury to return a verdict in favor of the defendant for $3,040, which was accordingly done. Judgment was entered accordingly, proper objections and exceptions were made, and the defendant filed motion for a new trial, which was overruled on the same day, and the appellant saved his exceptions, and prayed and was granted an appeal to the Supreme Court.
Appellant’s first contention is that the court erred in refusing to grant a change of venue.
Section 10339 of Crawford & Moses ’ Digest provides that any party to a civil action trial by a jury may obtain an order for a change of venue therein by motion, etc.
Mr. Justice Humphreys and the writer believe that the change of venue should have been granted. That, to deny a change of venue where two-thirds of the county are interested as they, are in this case, practically abrogates the statute. A majority of the court, however, is of opinion that, under § 10341 of Crawford & Moses’ Digest, the court had a right to deny the motion to change the venue, and that his refusal to grant said motion was not error. The section reads- as follows:
“Hereafter the venue of civil actions shall not be changed unless the court or judge, to whom the application for change of venue is made, finds that the same is necessary to obtain a fair and impartial trial of the cause.” See also Louisiana & N. W. Ry. Co. v. Smith, 74 Ark. 172, 85 S. W. 242.
The question has been passed on a number of times by this court, and all of the decisions are to the effect that the granting or denying of a motion for change of venue is in the discretion of the trial court.
The next contention of appellant is that the court erred in directing a verdict for $3,040. Appellant concedes that this is the value of the land, considered solely for agricultural purposes. The undisputed proof in this case is that appellant owns the land on both sides of the river where the bridge is to be built.
Appellant offered to prove the fair market value of the land, and offered to prove by a number of witnesses that the value was $50,000, but the witnesses would testify that, in estimating and fixing the damages, they arrive at the amount by fixing* the value of the ferry rights, privileges and franchises attached to the land. The court did not permit appellant to make this proof.
Appellant also offered to prove the income or receipts, or revenue, derived from operating the ferry, and this testimony was also excluded.
This court has -said: “In determining* the value of lands appropriated for public use, the same considerations are to be regarded as in sales of private parties, the inquiry being, in such case,, what, from their availability for valuable uses, are they worth in the market?” Little Rock & Fort Smith Ry. Co. v. McGehee, 41 Ark. 202.
This statement of the inquiry to be made in such eases has been followed and approved by this court in subsequent cases. And the only question here is whether the testimony offered and excluded was competent testimony to prove the fair market value from the availability for valuable uses of this land. In other words, what was the fair market value of this land for any purposes for which it could be used? — for ferry purposes or bridge purposes? — the purpose of the suit being to condemn it and take it for a bridge site. Then, certainly, testimony as to the value of the land for a bridge site would be competent, and the only way in which the market value could be shown.
In the case of St. Louis, I. M. & So. Ry. Co. v. Theo Maxfield Co., 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (N. S.) 1111, the court said:
‘ ‘ The measure of damages which the owner is entitled to recover for property taken for public use or depreciated by such use is the market value of it. This market value is determined, not solely by the uses to which the property has been put or is put at the time of the condemnation proceeding, but by all the purposes to which it is adapted. It may not be used at the time for any purpose that is profitable, but the use to which it may reasonably and. probably be put profitably must necessarily be taken into consideration in determining the market value of the land. ’ ’
How could its use as a bridge site or a ferry site be taken into consideration in determining its value except to prove its value, as the appellant offered to do, by showing its value as a bridge site or a ferry site? In other words, showing its value with the ferry or bridge rights or privileges.
This court said in a much more recent case: ‘ ‘ The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking, for all purposes, comprehending its availability for any use to. which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.” Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440.
This is exactly what the appellant offered to prove. The witnesses were probably not experts, and might not pnt it in the exact language of the court, but what they were endeavoring to testify to was the market value of the land for a bridge site or for a ferry site. Appellant had a right to introduce testimony of the value of the land for a bridge site or a ferry site.
Appellees could develop on cross-examination what elements they took into consideration, and. could also develop on cross-examination the knowledge that the witnesses had of its value, and all other circumstances that affected the credibility of the witnesses or tended to show their knowledge of the thing about which they testified. It is¡ said in the Scott case, above referred to:
“Finally, it is insisted by counsel for appellant that there is no testimony tending to support the finding of the circuit court as to the value of the land taken. They contend that the only value of the land, as shown by the testimony of appellees themselves, was its use as a ferry landing, and that this is not an element of value that can be considered by the court in awarding damages in a condemnation suit. It is true that the testimony on the part of appellees tended to show that the land in question was not dedicated to the public, but was reserved in the dedicator on account of its value as a ferry landing. The court, however, is not concerned with the purpose which caused the dedicator to reserve the land. He might reserve it for ferry purposes as well as for any other purpose. The question to be determined by the court in awarding damages in this case was the value of the land taken, and, in determining this value, its availability for any use to which it is plainly adapted can be considered. In view of our decision in the case of Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, it can not be said that the finding of the court that appellees were damaged in the sum of $2,500 by tbe land taken bas no evidence of a substantial' character to support it.”
Any testimony that will tend to show the market value of the land sought to be taken for any use, or for any purpose for which the land could be used, is competent for the purpose of showing the market value of the land. The market value of the land is the question to be determined.
A tract of land might be very valuable for a bridge purpose and be practically worthless for any other purpose. A tract of land might be very valuable for a railroad right-of-way because of- its being a pass between mountains, and yet be almost worthless for any other purpose. But the question to be determined is the value for any purpose for which the land might be suitable, in this case for a bridge or ferry site, and any testimony that would tend to show its value as a site for a bridge or ferry would be competent. The witnesses therefore should have been permitted to testify what their opinion was as to its market value, basing it on the fact that it was suitable for a bridge site or ferry site, or, as they said, including the ferry rights and privileges, which means the same thing.
It is contended also that the revenue or income from the ferry was competent testimony. This would not be competent testimony for any other purpose except as tending to show the market value of the land.
“When a parcel of land is taken by eminent domain, the measure of compensation to be awarded the owner is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy; in other words, the test is the fair market value of the land. Actual market value at the time of the institution of the condemnation proceedings is usually the inquiry; but, when the defendant has already entered upon the property, and has depreciated its value thereby, the measure of damages is the difference between the fair market value of the whole property at the time of the condemnation and the present market value of the prop erty left with, the structure thereon. The productive value of land, or the value to its owner, is not the measure of compensation and is not material except so far as it throws light upon the market value.” 10 R. C. L. 128.
So, in this case, the productive value or the income to be derived from its use is not the measure of compensation, and is not material except so far as it throws light upon the market value, but, for this purpose, it is competent and material.
In the proceedings to condemn any kind of property having a rental value, the income or rent from the property would be competent evidence to be considered solely for the purpose of determining the market value. There might be two buildings for rent situated in different surroundings, different districts with different environments, and, although the buildings might be the same in every respect so far as the material, structure, building, etc., is concerned, yet, because of different environments, one might rent for two or three times as much as the other. In determining the value of this land, both the buyer and the seller would consider these facts and consider the income derived from each in determining the market value.
The court therefore erred in directing a verdict, but, instead of doing that, should have permitted witnesses to testify as to the value of the land, taking into consideration ’ the uses for which it was suitable, and submitted the question to the jury, under proper instructions. It was also error to permit amendment to the effect that plaintiff did not intend to interfere with the operation of the ferry near said bridge site, etc. Of course, every one knows that a free bridge would destroy the value as a ferry site. The sole question here is the market value of the land taken.
For the errors indicated the cause is reversed, and remanded for a new trial.
Mr. Justice Smith concurred in judgment.
Mr. Justice McHaney dissented. | [
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McCulloch, C. J.
The three appellants, Herdison, Ladd and Butler, were arrested and, on a trial before a justice of the peace of Sebastian County, were each convicted of the offense of transporting intoxicating liquor, and appellant Herdison was also convicted of the offense of resisting an officer. There was an appeal prosecuted to the circuit court from each of the judgments of conviction, where all -of the cases were tried together, and the trial resulted in a verdict of guilty in each case.
In the first place, it is insisted that the judgment against appellant Herdison should be reversed because the ease was improperly consolidated with and tried with the other cases. The record is silent as to any order of court consolidating the cases, and merely recites that all of the parties in the cases appeared and announced ready for trial. Appellants concede in their brief that all of the cases involving the transportation of liquor were joined by consent, but insist that there was no joinder with the other cases of the case ag-ainst Herdison for resisting an officer. The record does not show that appellant Herdison made any objection to the consolidation of his case with the others, and, as no prejudice "•esulted from the consolidation, he is in no attitude to urge that as grounds for reversal of the judgment. Silvie v. State, 117 Art. 108.
It is next insisted that the venue was not proved. The Attorney General answers this contention' by the suggestion that this question was not raised in the motion for a new trial, but there is an assignment in the motion that the evidence is insufficient to support the verdict, and that raises the question properly of the sufficiency of the proof of venue. It is true that there is no direct testimony as to venue, but this, like any other essential fact in the case, may be proved inf erentially by circumstances as well as by direct testimony. Forehand v. State, 53 Ark. 46; Scott v. State, 75 Ark. 142; Bell v. State, 93 Ark. 600. The State’s witness who testified directly concerning the commission of the offenses by appellants stated that he was a justice of the peace of Sebastian County, and lived at Central City, and that he saw appellant with the whiskey near his (witness’) house. Courts will take judicial knowledge of the location of county lines, and also the location of towns. Central City is situated on a railroad which traverses the Greenwood District of Sebastian County, and is several miles distant from the county line. It therefore sufficiently appears from the testimony, inferentially at least, that the offenses of which appellants were'convicted occurred in the Green-wood District of Sebastian County.
The legal sufficiency of the evidence is challenged, but we are of the opinion that the evidence is sufficient to sustain the conviction for the offense'of transporting liquor, charged against each of the appellants.
The State’s witness, H. H. Times, testified that, on a certain day, he was standing in the front yard of his home at Central City, and saw 'two automobiles coming down the road, appellant Herdison being the driver of the front car, and the other two appellants being in the rear car, the two cars -being close together. He testified that both cars stopped by the side of the road, and that all of the three appellants got out and went over into a field; that Herdison, after taking a few steps away from the car, came back to the car and got something out of it that res'embled fruit jars, and that all -of the parties then went over into the field, and, after staying there a short time, came out and got into the cars and drove away. He testified that, after the party left, he went over into the field where he had seen the appellants go, and found two fruit jars full of “choc” beer lying in the weeds, and that he then went into town, looking for an officer to make an arrest, and, finding none, he returned home, and, later in the day, he saw the same cars, occupied by the three appellants, drive up and stop, and that the three appellants again went over into the field where the fruit jars had been left. He testified that he then went over into the field and 'found appellants squatting down by the fruit jars, the lid of one of the jars having been removed, and that the jar was about half full of beer, the other jar being empty; that he asked appellants what they had there, and that one of them replied that they had been caught red-handed, and asked what the fine would be; that, as witness reached down and picked up the jar that contained the beer, appellant. Herdison knocked it out of his hand, and the jar fell on the ground and the contents were spilled. The witness testified that he knew the character of the liquid by the -odor, and that it was intoxicating. He said that he ordered the appellants to submit to arrest, and that Herdison began cursing him, and declared that he would not submit to arrest, and that he struck the witness, and refused to submit to arrest.
The contention is that this evidence is not legally sufficient to show that the liquor was intoxicating or that it was being transported from one place to another. The testimony of witness Times is positive to the effect that the liquor was intoxicating, and we are also of the opinion that it is sufficient to show that the parties were transporting the liquor from one place to another. Whatever may have been the intention of the parties with respect to the disposition of the liquor, it is certain that, when they stopped the car, they transported.it from the car over into the field, which was sufficient to constitute the offense under the statute. Allen v. State, 159 Ark. 663; Fly v. Fort Smith, 165 Ark. 392.
We are of the opinion, however, that the evidence in the case does not establish facts which constitute resisting an officer within the meaning of the statute. Crawford & Moses’ Digest, § 2585 et seq. The Constitution (art. 7, § 40) provides that justices of the peace shall be “conservators of the peace within their respective counties, ’ ’ and it seems that at common law such officers were clothed with authority either to make arrests themselves of persons committing offenses in their presence, or to “verbally command any person to take them in custody.” 1 Chitty’s Cr. Law, 25. However, the statutes of this State defining the authority of conservators of the peace with respect to making arrests read as follow's:
“Section 290,6. A magistrate or any judge may orally order a peace officer or private person to arrest any one committing a public offense in the magistrate’s or judge’s presence, which order shall authorize the arrest.” Crawford & Moses’Digest. '
We perceive no reason why the Legislature cannot define the duties of such officers, and this statute operates' as a definition of such duties and powers, and is exclusive. It follows therefore that a justice of the peace has. no authority to make arrests himself, but may order others, either peace officers or private persons, to make arrests for offenses committed in his presence. -There was no attempt to show that the arrest said to have been resisted was being made by-any one clothed with authority to make-the arrest. Appellant Herdison may be guilty of the offense of- assault and battery, but not of the offense with which he is charged. The case was properly sent to the jury as to the offense of transporting liquor.
There are assignments of error with respect to the court’s charge, but these assignments are all without any foundation. Instruction No. 4, requested by appellant,- and for the refusal of which error is assigned, was, we think, argumentative in form, and properly refused.
The judgment against each of the appellánts for transporting liquor is affirmed, but the judgment against Herdison for resisting an officer is reversed, and the -cause is dismissed. | [
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Hart, O. J.,
(after stating the facts). The decree of the chancellor was correct. The rule governing the liability of a bank on a certified check has been clearly stated by the Supreme Court of Alabama as follows:
“A certified check has a distinctive character as a species of commercial paper, the certification constituting a new contract between the holder and the certifying bank; the funds of the drawer are, in legal contemplation, withdrawn from his credit and appropriated to the payment of the check, and the bank becomes the debtor of the holder as for money paid and received.” National Bank v. Miller, 77 Ala. 168, 54 Am. Rep. 50.
This view of the effect of a cashier’s check has been adopted by this court in Merchants’ & Planters’ Bank of Camden v. New First National Bank of Columbus, Ohio, 116 Ark. 1, 170 S. W. 852, Ann. Cas. 1917A 944. In that case the court quoted from an opinion of the Supreme Court of the United States in Merchants’ Bank v. State Bank, 10 Wall. (U. S.) 604, 19 L. ed. 1008, the following.
“By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until, in the course of business, it goes back to the bank for redemption and is extinguished by payment. ’ ’
So it will be seen that when the Bank of Swifton issued the certified check to Nichols there was an absolute liability on its part to pay the check when received. This brings us to the question of the effect of the indorsement of the certified check by Nichols to the American Exchange Bank of Leslie. This indorsement was made by Nichols on March 1, 1926. This was before the issue of the writs of garnishment in this case. At that time it may be stated that the facts would have justified a finding that Nichols acted, fraudulently in making the sale of his stock of drugs to G-. A. Causey and his associates. The record, however, does not show that the American Exchange Bank of Leslie had any knowledge of that fact. According to the evidence in the case, when Nichols indorsed the cashier’s check of the Bank of Swifton for $3,500, he directed the cashier of the American Exchange Bank of Leslie to credit $500 of this amount to his personal account and to credit a note which he owed William Ashley with the sum of $3,000. This was done. The account of Ashley was on that day credited with the sum of $3,000 and the account of Nichols was credited with $500. These facts bring the case squarely within the principles of law announced in Merchants’ & Planters’ Bank of Camden v. New First National Bank of Columbus, Ohio, 116 Ark. 1, 170 S. W. 852, Ann. Cas. 1917A, 944. In that case it was held that a bank which has received a certified check for deposit and has credited the deposit with the amount of it, was a bona fide holder, and might enforce payment of it as against the drawee bank.
The record does not show that the American Exchange Bank of Leslie received the certified check for collection. Nichols indorsed the check in blank to the bank. The bank received such certified check, and credited the account of Nichols with $500 of the amount of the certified check. The remaining $3,000 was, under the direction of the bank, credited on a note of $4,500 owed by Nichols to William Ashley. At the time this was done the American Exchange Bank did not have notice of any facts that would lead it to believe that Nichols had acted fraudulently in the sale of his stock of drugs and had thereby secured money with which to purchase the certified check from the Bank of Swifton. The American Exchange Bank of Leslie became the absolute owner of the -certified check when Nichols indorsed it in blank to the bank, and the -bank credited Nichols with $500 of this amount and allowed $3,000 of it to be used as a credit upon a note due by Nichols to Ashley, and no subsequent garnishment of the funds could .affect the rights of the bank. The -certified check became its absolute property when the transaction was closed..
As we have already seen, a cashier’s check is of an' entirely different nature to an ordinary check. It is a. bill of exchange drawn by a bank upon itself, and is accepted by the act of issuance. Hence there is no right of countermand, and the check would pass in the same manner as a bank bill, and, as above stated, become the absolute property of the bank at Leslie when it was indorsed by Nichols and the amount of it credited to his account and on a note owed by him to Ashley. This made the Bank at Leslie absolutely liable to Ashley for the' $3,000.
It follows that the.decree of the chancery court must be affirmed. | [
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Ponder, Special Judge,,
(after stating the facts): The appellees, W. M. Coats, receiver, El Dorado Gas Company and Central States Gas & Electric Company, claim that the latter company has the exclusive right of supplying the city of El Dorado and its inhabitants gas for domestic and commercial purposes. That this exclusive right and privilege is given and granted to it by virtue of a certain ordinance passed by the city council on March 21, 1921, under which J. W. Atkins, his successor and assigns, were given this franchise, and that Atkins organized the El Dorado Gas Company, and transferred to it this franchise. That, although the word “exclusive” does not appear in the ordinance, still by reason of certain provisions in the ordinance by which the city was to receive two per cent, of the gross revenues from the business each month, and was to keep one well in reserve for the benefit of the city and its consumers, by implication it was intended and did operate to make an exclusive franchise, under the law. That the first ordinance granting a franchise to Atkins and his successors made a contract between him and the city, and that the same cannot be impaired or broken by the passage of the ordinance on the 6th day of January, 1927, and that this last ordinance and franchise are void.
By its complaint filed in equity the plaintiffs asked that the defendant corporation may be perpetually enjoined from building its gas and pipe lines in the city of El Dorado, and furnishing gas to the inhabitants of said city, and from enjoying the rights and benefits given it by reason of the franchise granted, notwithstanding such right had been granted by the council' of said city, under the powers given to it by the Legislature of this State. Both plaintiff and the defendant corporations derive their franchises and authority from the council, acting in its sovereign capacity. In this country, as in England, every grant from the sovereign power is to be construed strictly against the grantee and in favor of the city or government. The rights of the public are therefore not to be presumed to have been surrendered to a corporation, except so far-as the intention to surrender them appears in the charter. Inland Fisheries Commrs. v. Holyoke Water Power Co., 104 Mass. 450, 6 Am. Rep. 247; Newton v. Mahoning County, 100 U. S. 548, 25 L. ed. 710; Bradley v. South Car. Phosphate & P. R. Min. Co., 1 Hughes 72, Fed. Cas. No. 1, 787.
The plaintiff claims there was a contract between it and the city of El Dorado which secured to it the exclusive right to furnish gas to said city. The court says, in Tucker v. Ferguson, 22 Wall. (89 U. S.) 527, 22 L. ed. 805: “But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require.”
A 'State or council ought never to be presumed to surrender this power, because the whole community have an interest in preserving it undiminished; and when a corporation alleges that the State or council has surrendered its power of improvement and public accommodation, abandonment ought not to be presumed in a case in which the deliberate purpose of the State or council does not appear. Charles River Bridge Co. v. Warren Bridge, 11 Pet. 420, 9 L. ed. 773; Northwestern Fertilizing Co. v. Hydepark, 97 U. S. 666, 24 L. ed. 1036; Union Bridge Co. v. Spaulding, 63 N. H. 298.
The contention of the appellees is that the franchise granted by the. ordinance in March, 1921, to Atkins and his assigns, together with what was done under the same, constituted a contract which is binding on the council and the city, and that the subsequent franchise granted to the appellant company impairs the obligation of this contract.
Unquestionably tbe State or the council, in the exercise of its sovereignty, may contract like an individual, and be bound accordingly.
This court is committed to the doctrine that, where rights are granted by ordinance, and a franchise given, it creates and makes a contract between the city and the party or corporation to whom it is granted. City of Mena v. Tomlinson, 118 Ark. 166, 175 S. W. 1187; Ark. Light & Power Co. v. Cooley, 138 Ark. 390, 211 S. W. 664; Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S. W. 712; El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882; Natural Gas & Fuel Co. v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S. W. 52. These decisions and others of this court have created fixed property rights in this State, and it is not the purpose of this decision to modify or overrule these cases and the rules of law therein announced. But they all distinguish themselves from the case at bar, for they were not exclusive contracts, or exclusive franchises, and herein lies the line of demarcation. This distinguishes contracts of a private nature from public contracts, and the rule of interpretation is different.
In-the case of Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S. W. 165, Ann. Cas. 1913D 1086, Chief Justice McCulloch said:
‘ ‘ A city council acts in a legislative capacity in exercising the powers conferred upon it to grant franchises for the public benefit. The power thus conferred upon a city council by the lawmakers is coequal with the power in this respect of the Legislature itself, and in the exercise of the power of discretion, is vested with power which cannot be taken away by the courts. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the city council, with whom the lawmakers have seen fit to lodge this power.”
In the case of El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882, Chief Justice McCulloch, again speaking for the court, said:
“The council of the city of El Dorado passed an ordinance, granting a franchise to Rowland and other citizens to construct and operate a system for furnishing light and water in the city, and the franchisé was subsequently assigned to the Citizens’ Light & Power Company. Prior to that time a franchise for similar purposes, not exclusive, had been granted to the Arkansas Light & Power Company, and that company is operating in the city. ’ ’
The italicized words, “not exclusive,” clearly shows that it was not an exclusive contract. The ordinance granting the franchise alone making the contract, the question therefore to be determined in cases of this kind, when the legislative interference is claimed, is whether such interference impairs the obligation of the contract, for there may be legislation such as to injuriously affect the interest of those with whom such contracts exist, and yet impair no obligation of contracts. Thus it has been held that, when a State confers no exclusive privileges to one company it impairs no contract by granting a franchise to a second one, with powers and privileges which necessarily produce injurious effects and consequences to the first. Washington & B. Turnpike Co. v. Maryland, 3 Wall. (70 U. S.) 210, 18 L. ed. 180.
The misfortunes which follow in such cases, as the court aptly remarks in that case, “may excite our sympathies, but are not the subject of legal redress.”
Such was the doctrine laid down in Charles River Bridge v. Warren, 11 Pet. (36 U. S.) 527, 9 L. ed. 773, and which from that day to this has been sustained by the courts of last resort in this country. Tuckahoe Canal Co. v. Tuckahoe & James River Canal Co., 11 Leigh (Va.) 42, 36 Am. Dec. 374; Leigh Water Co. v. Easton, 121 U. S. 391, 7 S. Ct. 916, 30 L. ed. 1059.
In considering the question whether the council has transcended its power by the ordinance granting the appellant compány the right and privileges contained in the franchise, it becomes necessary to construe the legislative act of the council and the ordinance under which the ap polices assert üioir claim of ail exclusive right. For, notwithstanding the ordinance granting to appellees the franchise became a contract, founded upon mutual consid.erations, yet, if no exclusive right was conferred, then the second ordinance, which granted the franchise of the same rights to the appellant company, is valid because no obligation of contract was impaired. Nor will equity interfere by injunction to restrain the operation of a person or a corporation, claiming the right to exercise a similar franchise under the legislative authority conferred by the council. High on Injunctions., § 902.
Under the rule of law herein announced, the appellees did not have an exclusive contract or franchise.
This doctrine is vital to the public welfare.
Mr. Justice Clifford, in Holyoke Water Co. v. Leyman, 15 Wall. (82 U. S.) 512, 21 L. ed. 133, remarks:
“That repeated decisions of this court have established the rule that, whenever privileges are granted to a corporation, and the grant comes under revision in the coixrts, such privileges are to be strictly construed against the corporation and in favor of the public; and that nothing passes but what is granted in clear and explicit terms. Whatever is not unequivocally granted in such ordinance is taken to have been withheld.”
The samé rule is followed in 12 K C. L., pp. 18(5 to 198.
The only other question to he determined is the construction to he given to § 7492 of C. & M. Digest. We are of the opinion that, under the language of this section, the council may have granted to the appellees an exclusive franchise or not, as in their judgment seemed best. Not having granted such a franchise, there is nothing in this section that makes it exclusive.
For the reason given this cause is reversed, and remanded with directions to dismiss the complaint of the appellees, because the same does not state a cause of action, and for want of equity, and that the restraining order granted herein shall be dissolved.
Judge McHaney, being disqualified, did not participate in the proceeding.
Justices Wood,- Smith and Kirby dissent. | [
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Humphreys, J.
This case is before us on a second appeal, and,- for a partial statement of the facts, reference is made to the opinion rendered on the first appeal, under style of Hollan v. American Bank of Commerce & Trust Co., 159 Ark. 141. The transcript in that case was, by agreement, adopted by the parties as a partial transcript in this ease. Appellant herein was a party in the original suit, .and, by intervention, claimed a first mortgage on several of the automobiles and second mortgage on a number of automobiles.upon which the American Bank of Commerce & Trust Company claimed the first mortgage. The single question involved on the first appeal was whether the notes and mortgages executed by Claude L. Hollan for the Hollan Auto Company, covering the automobiles, were usurious and void. According to the testimony and pleadings in the first trial of the cause, only two issues were involved, that of usury and whether the Hollan Auto Company was bound by the act of Claude L. Hollan in executing said notes and mortgages to the bank. On the former trial this court declared the second, third and fourth loans usurious, and reversed and remanded the cause, with directions to enter a decree declaring those loans null and void, and for further proceedings not inconsistent with the opinion.
Upon the remand of the cause, the Hollan Auto Company moved for restitution of the automobiles or the value thereof, covered by the usurious mortgages, and appellant, the intervener, moved that the proceeds from the sales of the automobiles covered by the usurious notes and mortgages be applied on the payment of his note and mortgage which covered the same automobiles. During the pendency of the first appeal the automobiles embraced in the usurious mortgages, as well as those embraced in the valid mortgages, were sold to appellee. The automobiles embraeed in the usurious mortgages brought $5,030 at said sale. When the second, third and fourth loans were declared usurious and void, pursuant to the mandate of this court, it left a deficiency payment due appellee of $3,803.02 on account of the failure of the automobiles embraced in the valid mortgages to bring a sufficient amount to liquidate the judgment rendered on the valid loans held by said appellee against the Hollan Automobile Company.
Appellee defended against the motion for restitution of the fund derived from the sale of the automobiles embraced in the usurious mortgages, to the extent of this deficiency judgment, on the ground that the mortgages securing its notes contained the following clause: “* * * for all other moneys, advances, goods, wares, merchandise, supplies, services, etc., furnished by the party of the second part (the bank) to the party of the first part (Hollan Auto Company) up to the foreclosure of this instrument, with interest at the rate of eight per cent, per annum from date of furnishing until paid. ’ ’
Upon the issues stated and the testimony adduced, the court rendeded a decree in favor of appellant upon his note and mortgage for $4,500 and interest against the Hollan Auto Company, with a lien upon the fund arising from the sale of the automobiles, subject, however, to a prior and paramount lien thereon in favor of the appellee bank for its deficiency judgment in the sum of $3,803.02. The court then deducted the deficiency judgment from the amount of $5,030, which bid it made for the automobiles embraced in the usurious mortgages, and rendered a decree against appellee for $1,226.98 in favor of appellant, from which he has appealed.
The trial court construed the clause for advances in the mortgages to appellee as securing any deficiency between the debt and the amount derived from the sale of the automobiles covered by each mortgage, and, under these clauses in the usurious mortgages, and the wording of the original decree, declared a priority for the deficiency between the debt and the fund derived from the sale of the automobiles, embraced in the valid mortgages. The record reflects that each of the loans made by appellee to the Hollan Auto Company was a separate and independent loan upon the 'basis of eighty per cent, of the factory cost or invoice price of the automobiles, secured by separate mortgages, and which were separately insured against fires in favor of appellee as its interest might appear. The course of business was that, when shipment of two or three cars would arrive, the bank would make a loan of eig’hty per cent, of the factory cost of the ears contained in the shipment, to enable the Hollan Auto Company to get them from the railroad, and take a note payable in thirty days secured by mortgage on each particular shipment. We think the proper interpretation of the clause for advances in the several mortgages was to secure any additional advances which appellee might make on any particular shipment, and not to secure independent loans secured by other mortgages on independent shipments. The clause was not intended to cover loans secured by separate mortgages on entirely different property, but to secure advances related and incident to each particular contract and shipment.
Appellee contends, however, that the construction of this clause in the several mortgages was adjudicated in the first trial of the cause, as evidenced by the decree rendered on December 13, 1921. It is insisted that the whole question involved in this cause is res judicata by virtue of the following paragraph in said decree: •
“The plaintiff, (bank) has a further lien upon each of the automobiles described in the foregoing paragraphs in this decree, numbered 2, 3, 4, 5 and 6, to secure the payment of the sums mentioned in each and every one of said paragraphs, and in paragraph 7 of this decree, or any deficiency left upon any of said sums,, after applying thereupon the proceeds of the automobiles specifically pledged to secure the same.” This, and other like clauses in the decree of date December 13, 1921, was not within the issues joined, and is consequently void. The only issues pleaded and tried out originally were usury and whether Hollan had authority to execute the notes and mortgages to appellee. The issue as to the meaning of the clause for advances was not joined and tried out until the decree was reversed and the cause remanded for further, proceedings. Even then appellee did not plead res judicata, and it seems not to have been thought of until the last decree, from which this appeal is prosecuted, was entered.
On account of the error indicated the decree is reversed, and the cause is remanded with instructions to render a judgment in favor of appellant against appellee for the proceeds derived from the sale of the automobiles covered by the usurious mortgages, to the extent of his debt and accumulated interest. | [
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Wood, J.
Drainage District No. 37 in Mississippi County, Arkansas, was a very large district, created by act No. 3.03 of ihe Acts of 1917, p. 4-85. The plans of the district showed that it would require many drains or ditches to complete the project. Among these was a ditch or drain designated as Improvement No. 48, which hereafter, for convenience, will be so called, which would drain approximately seventy thousand acres of the district.
On the 35th of July, 3920, a contract was entered into by one J. T. Flanagan and District No. 3.7 for the construction of improvement No. 48 as called for by the plans. On February 8, 3.921, Flanagan assigned the contract to the Harding Construction Company, a Minne sota corporation, and on the same day the Harding Construction Company in turn assigned a two-thirds interest in the contract to Andrew and Toleff Jacobson, and they in turn conveyed a one-sixth interest in the contract to J. O. and A. G. Shuland. On the 10th of October, 1923, after Flanagan had done considerable clearing on the right-of-way under the contract, and was ready to commence excavation, he was notified by the directors of the district that his contract would not be carried out by the district..
In December, 3920, J. E. McGibbon entered into a contract to purchase $450,000 worth of the bonds of the district. John E. McGibbon was manager of the Northwestern Mortgage & Security Company of Fargo, North Dakota, which the Jacobsons controlled. The contract for the purchase of the bonds was in his name, but he was buying the bonds for the company he was managing. On November 7, 1921, Baker and Shepherd, two landowners in the drainage district, filed a bill in the chancery court of Mississippi County against Flanagan and his associates and McGibbon and his associates, and later filed an amended complaint in which it was alleged:
(3) That Flanagan was in reality the purchaser of the bonds, and that the two contracts were let at one and the same time, one being the consideration for the other; (2) that the construction contract was let privately, for an exorbitant price, without competition; (3) that an error of two feet was made in establishing the levels of Improvement No. 48; (4) that, on account of said error, Improvement District No. 48 would not give the relief intended to be given to the landowners; and (5) that,'if the plans were changed so as to construct Improvement No. 48 deep enough to give the relief intended, it would be so deep that it could not be maintained, owing to quicksand and other • defects in the soil.
The complaint and amended complaint both concluded with a prayer for the cancellation of both contracts, and that Flanagan be enjoined from attempting to enforce Ms contract, and that some sum he fixed by this court, to be deposited with the court by Drainage District No. 17, to protect the same J. T. Flanagan in any judgment for damages that he.may secure in this cause for breach of said contract, heretofore set out, in the event it should be finally determined that said contract was a valid obligation on the part of said Drainage District No. 17. Flanagan and his associates and McG-ibbon and his associates filed an answer, denying all charg’es of fraud and irregularity in letting the contracts, and embodied in the answer a cross-bill against the district, concluding with a prayer for an injunction enjoining the district from annulling its contract. Later an amendment was filed by the defendants to their cross-complaint, in which they reaffirmed the allegations of the original cross-complaint and alleged that the district had abrogated its contract with Flanagan and had repudiated its contract with McGibbon for the sale, of $450,-000 worth of the bonds of the district, and had sold and delivered these bonds to other parties; that, if Flanagan and his associates had been allowed to perform the contract, they would have realized a profit of $300,000 net, and if McGibbon 'and his associates had been allowed to purchase the bonds in accordance with the provision of his contract, they would have realized a net profit of $75,000. McGibbon and his associates therefore prayed judgment in that sum against the district for a violation of the contract for the sale of bonds to McGibbon, and Flanagan and his associates pra3red judgment in the sum of $300,000 for the violation of the .construction contract with the district for the construction of Improvement No. 48.
The district answered the complaint of the plaintiff, admitted its allegations, and denied the allegations of the cross-complaint, and prayed for cancellation of the construction and bond contracts.
Issues were joined by a denial by the defendants of the allegations of the amendments to the amended or supplemental complaint of the plaintiffs, except the clis trict admitted, as stated, the allegations of the complaint, and denied the allegations of the cross-complaint; and there was also an answer of the plaintiffs to the allegations of the cross-complaint and amended cross-complaint, in which the allegations of these pleadings were denied.
On November 7, 1921, a temporary injunction was issued restraining the district, its commissioners and Flanagan from carrying- out the provisions of the contract for the construction of Improvement No. 48, and restraining the district from paying to Flanagan any sum of money in settlement or adjustment, as damages, for the breach of such contract, and restraining Flanagan, his agents, attorneys and employees, from instituting any separate action seeking to recover damages from the district, or to interfere or prevent the district from selling or delivering the -bonds.
A large volume of testimony was taken, fully developing the facts on the issues joined.
On September 24, 1923, the chancery court of Mississippi County, through its chancellor, J. M. Futrell, rendered the following decree:
“This cause coming on for final hearing, come all of the above-named parties by their respective solicitors, and the cause is submitted to the court on the pleadings filed therein, with the exhibits thereto, and on the depositions of the witnesses filed in this cause, with the exhibits thereto, and the court, after argument of counsel, being well and -sufficiently advised in the premises, finds that the contract entered into by and between J. T. Flanagan and the board of directors of Drainage District No. 17 of Mississippi County, Arkansas, dated July 15,1920, was a valid contract at the time it was entered into, but that Drainage District No. 17 subsequently became entitled to rescind the said contract on account of legal impossibility of performance, subject to its liability to reimburse the said J. T. Flanagan for all expense incurred by him in making the necessary preparations to perform and carry out said contract up to the date he had knowledge of the fact that the district would not permit him to carry out said contract, tog-ether with the contract price of any work done by him under the contract up to said date, and including any damages sustained by him in connection with the performance of the contract up to said date, but not including anticipated profits on materials not furnished or work done.
“Wherefore it is considered, ordered, adjudged and decreed that the injunction heretofore issued restraining the parties from carrying- out the contract referred to be and the same is hereby made perpetual, and that' the cross-complainants, J. T. Flanagan, J. R. Mo Gibbon, Toleif Jacobson, Andrew Jacobson, J. O. Shuland, A. G. Shuland and Harding Construction Company, have and recover of and. from Drainage District No. 17 of Mississippi County.the contract price for all work actually done by them in performance of the contract referred to up to the timie the said J. T. Flanagan had knowledge of the fact that the’ drainage district would not permit the said contract to be carried out, together with all expenses necessarily incurred by said parties preparing to carry out and perform said contract prior to the time referred to, including any damages sustained by them in performance of said contract up to said time, the amount of the recovery to be determined hereafter by the court or by the master to be appointed by the court; it is further ordered that such amount shall be determined from the evidence already submitted in the cause, and from such additional evidence and testimony as the parties may see fit to produce on such issue, and jurisdiction of this suit is hereby retained until such issue is finally disposed of.
“The question of liability as between John R. MoGibbon, Toleif Jacobson and Andrew Jacobson on the one side, and Drainage District No. 17 on the other,, on the contract for the purchase of $450,000' of the district bonds at par, and the damages, if lany, for the failure to carry out said contract, is reserved for future décision. The question of costs is also reserved for future decision.
“Archer Wheatley, Esq., is hereby appointed special master in this cause, and the issue noted above is hereby referred to him. He is hereby given the usual powers of a master, and is directed to ascertain and determine the facts with reference to said issue, and to report his findings of facts to the next term of this court, or either to the chancellor in vacation, if possible.
“The question of the liability of J. T. Flanagan and the other cross-complainants for interest on the $100,000 of the district’s funds which were held by the bond purchasers, pursuant to the order heretofore made in this cause, is expressly reserved for future decision. It is further ordered that the said $100,000 remain in statu quo for' thirty days from this date, during which time the said Flanagan and the other cross-complainants may give a good and solvent bond to be approved by the court or master, conditioned to pay the district legal interest on said sum or such parts thereof as they m'ay designate until the final disposition of this cause, and further conditioned as required by law for injunction bonds, and, if such a bond is given within the specified time, the said sum, or such part thereof as said parties shall designate, shall be held as now held under the order referred to until the cause is finally disposed of. If no bond is given as provided herein, or if the parties designate less than the full amount of said sum, the said $100,000, or the excess of such sum over the amount designated, shall be released from the order above referred to and may be made by the parties now holding it to the said district.”
The special master made his report, in which, among other things, he states:
“'The special master was appointed with directions to state an account on the basis of the actual loss sustained by the contractor, without considering any anticipated profits whatever. This is the theory on which this report has been made up.
“For the convenience of the court and interested parties, the different classes of items have, in a way, been separated. Improvement No. 57, which was com pleted just prior to the work of overhauling the dredge-boat for Improvement No. 18, was finished about July-15, 1921. The testimony offered by the district would indicate there was no serious opposition on their part to the allowance of all expenses incurred between July 15 and October 10, the date on which the contractor was notified the district would not have ditch No. 18 dug. A list of the alleged expenses incurred in the overhauling of the boat prior to July 15 was put in evidence. Some of these were eliminated by the contractor. There were 123 items of these expenses. It appeared from the books of the Harding Construction Company that items 1 to 37 had been charged to Improvement No. 57, and had never been credited to that improvement and recharged to Ño. 18. The district therefore contends that none of these items are properly chargeable to No. 18. As to a large number of these items, the evidence of witnesses is otherwise undisputed that the material called for by the invoices was actually used after July 15, and for this reason the special master has given the contractor credit for these items, but has separated the amount, so that, if his finding in this respect is erroneous, it may be easily corrected.
“As above stated, the district gave notice on October 10, 1921, that the ditch would not be dug. It contends that the contractor should therefore have stopped all expense of every kind and nature on that day, and that it (the district) is not chargeable with anything thereafter. The special master thinks this is an arbitrary position to take, and that the contractor should be allowed a reasonable time in which to adjust matters following this breach of the contract. If a reasonable time is given, the termination of its length must be made without reference to- any mathematical basis. The master has arbitrarily adopted sixty days, and has therefore allowed the contractor expenses incurred up to December 10, 1921. The contractor, on the other hand, did not sell the boat until April, 1922, and says credit should be given for all expenses up to that date.”
After considering the testimony on the issue'submitted to him, the master sets forth in his report an elaborate account of items, which it is unnecessary to here set forth in detail. He states the total indebtedness of the district to the 'contractor in the sum of $33,129.62, and allows the district a credit of $7,922.50, leaving a net balance due the contractor by the district of $'25,207.12. The .plaintiffs and District No. 17 filed exceptions to the following items of the master’s report:
“ (1) To the allowance of item No. 87 for $319, covering the traveling expenses of Jacobson and Flanagan on trips south. (2) To the allowance of $6,800 for rent or usable value of dredgeboat from July 15 to October 10. (3) To the allowance of $4,800 covering the rent or usable value of dredgeboat from October 10 to December 10. (4) To the allowance of $833.32 covering the item of supervision or overhead from October 10 to December 10. (5) To the allowance of $708.20, the amount of the insurance premium covering insurance on the boat from July 16 to December 10. (6) To the allowance of item No. 81, $68.30, covering traveling expenses of Toleff Jaco'bson to Chicago. ’ ’
The district also excepted and objected to the allowance of any of the items set forth in the master’s report-as against it, on the ground that all proof taken before the special master on the statement of the account showed that the Harding Construction Company is a Minnesota corporation, and, at the time of the making of the repairs Ujpon the boat and the expenditures of the items which are charged" to the drainage district, the Harding Construction Company, which made the repairs, wlas doing business in violation of the laws of the State of Arkansas, the same being a foreign corporation which bad not been authorized to do business in the State.
The cross-complainants excepted to the report of the master on the following- grounds:
(1) No allowance is made in favor of the cross-plaintiffs for the accrued interest on the $450,000 worth of bonds which Drainage District No. 17 sold and refused to deliver to cross-plaintiffs. (2) The master did not allow the cross-plaintiffs the rental or usable value of the dredgeboat up to the time of the sale of the same. (3) The report does not allow the cross-plaintiffs anticipated profits on the contract for the construction work, which Drainag'e District No. 17 repudiated and refused to carry out.
On the 27th of September, 1926, the court entered the following decree:
“ On this day, September 27,1926, this cause coming on to be heard, came the plaintiffs, W. IT. Baker et al., by their attorneys, Little, Buck & La.sley, and defendants, Drainage District No. 17 et al., by their attorneys, Charles T. Coleman and Little, Buck & Lasley, and the defendants, J. T. Flanagan et al. (who are also cross-plaintiffs), by their attorney, J. T. Coston, and this cause was heard on the exceptions of Drainage District No. 17 and its directors, and the exceptions of the cross-plaintiffs to the master’s report, and, upon due consideration of the same, it is considered, ordered, adjudged and decreed that all said exceptions to the master’s report be and the same are hereby overruled; to which action of the court in overruling their exceptions to said report said Drainage District No. 17 and its directors excepted at the time, and said cross-plaintiffs, J. T. Flanagan et al., excepted at the time to the action of the court in overruling their exceptions to the master’s said report.
“It is further considered, ordered, adjudged and decreed that the complaint of the plaintiffs, W. TI. Baker and E. H. Sheppard, be and the same is hereby dismissed.
“It is further considered, ordered, adjudged and decreed that the cross-plaintiffs, J. T. Flanagan, J. R. MoGtibbon, Toleff Jacobson, Andrew Jacobson, J. O. Shuland, A. Gr. Shuland and Harding Construction Company, do have and recover of and from Drainage District No. 17 of Mississippi County, Arkansas, the sum of $32,515 (the amount found due by the master, with interest thereon), and all cost, including a fee of $1,000 in favor of Hon. Archer Wheatley for his services as mas ter, but the respective interests of said cross-plaintiffs in the recovery are not hereby fixed or determined.
“It appearing that in the original decree herein rendered on the.................jday of.............................., 1923, there was a finding that cross-complainants, J. T. Flanagan et al., were not entitled to any damages for anticipated profits on the construction contract or for breach of contract for sale of the bonds, but there was no formal dismissal of the cross-complaint with reference thereto, said cross-complaint with reference to said features- is dismissed for want of equity, exceptions of cross-complainants thereto being saved.
“It is further considered, ordered and adjudged that this decree sháll draw interest from this date until paid at the rate of 6 per cent, per annum, and R. C. Rose, C. E. Crigger and B. A. Lynch, the present board of directors of said Drainage District No. 17, be and they are hereby ordered, directed and "required to issue all vouchers, checks or warrants necessary to satisfy this decree, with costs.
“To which judgment and decree of the court Drainage District No. 17 excepted at the time, and prayed an appeal to the Supreme Court, which is granted.
“To which judgment and decree of the court the cross-plaintiffs excepted at the time, and prayed an appeal to the Supreme -Court, which is granted.”
1. The appellants contend that District No. 17 is liable to Flanagan in damages for anticipated profits for breach of. a valid contract entered into between the district and Flanagan for the digging or construction of Improvement No. 48. But appellees contend that the decree of 1923 was final and conclusive of that. issue, since there was no appeal from that decree within the time prescribed by law. In other words, the appellees contend that the appeal lodged here on the issue as to anticipated profits should be dismissed. That issue therefore must be determined in limine.
Section 2129 of C. & M. Digest provides as follows: “The Supreme Court shall have appellate juris diction over the final orders, judgments and determinations of all inferior courts of the State,” etc.
The above provision is § 15 of the Civil Code, as amended by the Acts of 1871, the words “and determinations” and £‘inferior courts of the State” being added by the Legislature of 1871. This court has always held, before and ever since the adoption of the Code (1869), that, where there is no final judgment, no appeal lies, and that an appeal will be dismissed for want of a final judgment. See Adams v. Owens, 1 Ark. 135; Bailey v. Ralph, 4 Ark. 591; Campbell v. Sneed, 5 Ark. 398; Ex parte Hawley, 24 Ark. 596; Mirror v. O’Brien, 36 Ark. 200; Davie v. Davie, 52 Ark. 224, 12 S. W. 558, 20 Am. St. Rep. 170; Davis v. Hale, 114 Ark. 426, 170' S. W. 99, Ann. Cas. 1916D 701; Darbin v. Montgomery, 144 Ark. 153, 221 S. W. 855, 223 S. W. 17. Other cases are cited in 1 Crawford’s Arkansas Digest, at page 130. But this court has likewise always held, and it necessarily follows, that, under the above statute, an appeal will lie and must be taken from a final decree within the time prescribed by statute for the perfecting of appeals. So the issue on the motion of appellees to dismiss the appeal of appellants, as to anticipated pro-fits is whether or not the decree of September 24, 1923, is final.
What is a final decree? This court, in numerous cases, beginning as early as Campbell v. Snead, supra, and on down as late as Temple Cotton Oil Co. v. Davis, 167 Ark. 449, 268 S. W. 38, has held that an order overruling or sustaining a demurrer to a pleading without further action is not' appealable. See also Moody v. Jonesboro, etc. Ry. Co., 83 Ark. 371, 103 S. W. 1134; Fairview Coal Co. v. Ark. Central Ry. Co., 153 Ark. 295, 239 S. W. 1058.
This court, in Campbell v. Snead, supra, in giving its reasons for declaring such a judgment not final, said:
“Because it neither in form nor effect dismisses the parties from the court, discharges them from the action, or concludes their rights in respect to the subject-matter in controversy in the case; and no proceeding in court, not attended with at least one of these consequences, can, in our opinion, be considered as embraced by the law allowing’ ‘writs of error upon any final judgment or decision of any circuit court’.”
In State Bank v. Bates, 10 Ark. 633, we said:
“A judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject-matter in controversy.”
And in Tucker v. Yell, 26 Ark. 420-429, we quoted Bouvier’s definition of a final decree as follows: “A
final decree is that which finally disposes of the whole question so that nothing is left to adjudicate upon.”
It is further held in that case, quoting syllabus:
“In peculiar oases this court may decree as to certain defendants or property, while all the equities as to other defendants and property are reserved for further consideration; and yet this decree, as to certain defendants or property, may be final. If, in the course of the proceedings, final decrees vital to the interests of any of the litigants are made, an appeal may be had. ’ ’
In Marlow v. Mason, 117 Ark. 360-362,174 S. W. 1163, we quoted the language quoted from the case of State Bank v. Bates, supra.
In Davie v. Davie, supra, it is said: “But the unnecessary splitting of causes by courts of chancery creates confusion and difficulty in practice, and is condemned.” Citing cases, among them Tucker v. Yell, supra.
Learned counsel for the appellants cites and relies upon Arkansas cases to support his contention that the decree of September 24,1923, was not a final decree, and he cites numerous eases from other jurisdictions, which, he also maintains, support his contention, if the court desires to pursue its investigation further than our own decisions. We have examined all the cases on this issue from our own court cited and relied on by counsel both for appellants and appellees, and find it unnecessary to investigate the decisions of other courts; for we have concluded that the issue is clearly settled against the appellants by decisions of our own court. This court lias never departed from the doctrine announced in Campbell v. Sneed, State Bank v. Bates, and Yell v. Tucker, supra, to the effect that, where a decree concludes the rights of the parties to the action in respect to the subject-matter in controversy in the case, it is a. final decree. That doctrine, announced so early, has 'been reaffirmed expressly and in legal effect in all subsequent cases.
In Davie v. Davie, supra, a leading case on the subject, it is said: “An appeal is allowed also where a distinct and several branch of the case is finally determined, although the suit is not ended.” See also Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175, where it is. held, quoting syllabus: “A decree which disposes of all the matters in issue between the parties and gives all consequential directions necessary to carry it into execution, is a final decree. ’ ’
In Young v. Rose, 80 Ark. 513, 98 S. W. 370, it is said:
“A decree which settles the rights of parties and leaves nothing to the master but a statement of an account on a basis fixed by the decree, is a final judgment. A report of a master is not subject to exceptions when it simply follows the decree directing the reference and makes a report based on findings contained in suoh decree, as, if there be error, it is in the original decree, and not in the report of the master, whose duty it was to obey the decree.”
In the comparatively recent case of Newald v. Valley Farming Company, 133 Ark. 456, 467, 202 S. W. 838, 841, we quoted from McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536, 13 S. Ct. 170, 36 L. ed. 1079, as follows:
“It may be said in general that, if the court make a decree fixing the rights and liabilities of the parties, and thereupon refers the case to a master for a ministerial purpose only, and no further proceedings in a court are contemplated, the decree is final; but, if it refers the case to him as a subordinate court and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final.”
And also, in the same case from Jones on Mortgages, vol. 3, par. 1600, the following:
“A judgment which settles all the rights of the parties and directs a sale of the premises, and that the defendant pay any deficiency which may arise after such sale, is a final decree from which an appeal may be taken; though, in a limited sense, it is interlocutory, inasmuch as further proceedings are necessary to carry it into effect. It leaves nothing further to be adjudicated. ’ ’
In Lewisburg Bank v. Sheffey, 140 U. S. 445,11 S. Ct. 755, 35 L. ed. 493, it is said:
“Where the entire subject-matter of a suit is disposed of by a decree, the mere fact that accounts remain to be adjusted and the bill is retained for that purpose, does not deprive the adjudication of its character as a final and appealable decree.”
Now, when the above rule of o.ur court and of the Supreme Court of the United States is applied to the decree of September 24, 1923, it is impossible to escape the conclusion that the same was a final decree on the issue as to whether Flanagan and his associates were entitled to recover anticipated profits by reason of the alleged breach of contract on the part of the district for the construction of No. 48. It must be remembered that this issue was not determined on demurrer to the answer and cross-complaint of appellants, but on the merits of the issue as raised by such answer and cross-complaint after the allegations thereof had been denied by the plaintiffs and after proof on the issue thus raised had been fully developed. The recitals of the decree show that it was rendered on final hearing and determined on this issue. We will not set out again all of the recitals of the decree. The court, after finding that the original contract was valid, found that the district was entitled to rescind the same on account of impossibility of performance, and that it was only liable to Flanagan and his associates for the expenses incurred in making prep arations to perform the contract up to the time that he was notified by the district that it would not carry out the contract, including all damages sustained by him in connection with the performance of the contract to that date, but “not including anticipated profits on materials not furnished or work done.” The decree recites: “Wherefore it is considered, ordered, adjudged and decreed that the injunction heretofore issued restraining the parties from carrying out the contract referred to be and the same is hereby made perpetual.” In other words, the court found that the appellants could never recover from the district any damages by way of anticipated profits, and entered a decree so holding. A reading of the whole decree will show that it was a final disposition of that issue. Nothing whatever was left to be determined concerning such issue. On the contrary, the court, by expressly reserving other issues and giving the master specific directions to take proof and make his report at a future term of the court with reference to the sole and only issue submitted to him as designated in the decree of September 4, 1923, completely, without reservation, and finally disposed of the issue of anticipated profits for alleged breach of the contract for the construction of No. 48. After entering the decree in this form, it was wholly immaterial that the court did not have the decree recite that the complaint of the appellants on the issue of anticipated profits was dismissed. If the cause on this issue had been disposed of by sustaining a demurrer to appellants* cross-complaint, then, in order to make the decree final, it would have been necessary for the record of the decree to recite that the appellants, cross-complainants, stood on their cross-complaint, and that the same was dismissed. But, as already stated, the cause on this issue was not determined on demurrer to the cross-complaint, but the issue was joined by answer to the allegations of the cross-complaint and fully developed by the taking of testimony, and finally submitted and determined on its merits. Therefore the decree as actually rendered was tanta mount to a dismissal of appellants’ cross-complaint on the issue of anticipated profits, and as completely and effectually disposed of it as if there had been a formal recital in the decree dismissing the cross-complaint for want of equity; because • all parties were forever restrained from carrying out the contract for construction of No. 48, and it was decided that the appellants were not entitled to damages by way of anticipated profits because the district would not allow the appellants to complete the construction of No. 48 under the contract. The issue therefore as to anticipated profits for this alleged breach of contract was finally disposed of by the decree of 1923.
Both the master and the court itself so construed the decree. The report of the master states that “he was appointed with directions to state an account on the (basis of the actual loss sustained by the contractor, without considering any anticipated profits whatever,” ancithe recitals of the decree of 'September 27, 1923, in which the court states: “It appearing that, in the original decree herein rendered on the ........... day of .................................... 1923, there was a finding that cross-complainants, J. T. Flanagan et al., were not entitled to any damages for anticipated profits on the construction contract or for breach of contract for sale of the bonds, but there was no formal dismissal of the cross-complaint with reference thereto, ’ ’ etc. After the lapse of the term when the decree on the issue of anticipated profits was rendered, that decree became final. Spivey v. Taylor, 144 Ark. 301, 222 S. W. 57. When therefore the appellants failed to perfect their appeal from the decree of the court on the issue of anticipated profits within the six months prescribed by § 2140 of C. & M. Digest, they forever lost their right to prosecute an appeal on that issue. Consequently their so-called appeal on that issue must be, and is, hereby dismissed.
' 2. It is next contended by appellants that the district is liable for accrued interest on $450,000 worth of the bonds which appellants allege the district sold and refused to deliver to appellants. On the 15th day of July, 1920, the district entered into a contract with J. R. McGi'btoon for a purchase of $450,000 worth of bonds of the district bearing interest at the rate of 6 per cent, payable semi-annually, land to toe dated August 2, 1920. The contract was assigned to Jacobson. The purchaser was to pay for the bonds in the sum of $450,000 for Improvement No. 48, as the payrolls for the construction of such improvement were due. The appellees contend that the construction contract is voidable because it was not let publicly, as the statute requires, and further, that the .construction contract was excessive, and therefore voidable ; and still further, thjit the construction contract and bond contract were coupled and interdependent, and therefore voidable.
We have considered the testimony in the record bearing upon these contentions of the appellees, tout we do not set out and discuss it, because it is exceedingly voluminous and would unduly extend this opinion to do so. Besides, it is wholly unnecessary to do so, inasmuch as we have concluded that, if these contentions of counsel for appellees were unsound, still there could be no recovery by the appellants for breach of the bond contract for two reasons: (1) 'because the undisputed evidence shows that the district was released by the Jacobsons from the obligations of the 'bond contract; (2) if the district was not released from the bond contract, and if there was a breach of the contract, nevertheless there could be no recovery of damages, because the appellants sustained no loss on account of such breach.
The facts, briefly stated, on the alleged breach of the ‘bond contract are substantially as follows: The district had made a tentative agreement with Carbough & Company, ’bond buyers, of Chicago, for the purchase of $2,330,000 worth of bonds, but the tentative purchasers were unwilling to take any of the bonds of the district unless $450,000 worth of bonds which the district had contracted to McG-ibbon were included in the purchase. Lange, the secretary of the district, arranged a meeting in Chicago with Jacobson for the purpose of arranging for the sale of the bonds of the district, including tlie 'bonds contracted to McG-ibbon. The result of the meeting was that the Jacobsons agreed that “if they were relieved of the burden of purchasing $450,000 worth of bonds at par, a reduction should be made in the contract price for constructing No. 48. ’ ’ They were relieved, and the bonds that were to be purchased by the Jacobsons were sold by the district on November 9, 1921, to 'a St. Louis syndicate at 85c on the dollar. While Lange testified that the district and the Jacobsons never reached an agreement about the extent of the reduction that the board should receive on the construction contract, there is no uncertainty in his testimony, and no contradiction thereof, that the Jacobs one were relieved, by agreement with the district, of the obligations of the contract for the purchase of the bonds. The substitution of this new contract, by oral agreement concerning the purchase of the bonds, necessarily relieved both parties from the obligations of the original contract for the purchase of bonds. Furthermore, the testimony shows that, during the time negotiations were pending for their sale and purchase, the bonds had a market value ranging from 85c to 93c, or an average market value of about 90c. The district notified the contractor, October 10, 1921, that the contract for the construction of Improvement No. 48 would not be carried out. The bonds were to be dated August 2,1920, and they bore interest at the rate of 6 per cent, per annum, payable semi-annually, therefore fourteen months’ interest had accrued at the time the contract was repudiated. If there was a breach of the contract for the purchase of the bonds, the damages for such a breach should be estimated as of the time the breach occurred, because the right of action, if any, accrued at that time. Now, if the Jacobsons had been required to take the bonds, they would have had to pay $450,000, but the market value of the bonds at the time of the alleged breach of contract for their purchase, calculated 93c on the dollar, the highest estimated market value shown by the evidence, would be $4.18,000; this, including the inter est on $450,000 (which the Jacobsons were entitled to) from August 2, 1920, the date of the bonds, to October 10,1921, the date of the alleged 'breach of contract, would amount to $31,500 which, added to $418,000, would make the market value of the bonds and the interest equal to $449,500. Therefore, by simple mathematical calculation, it is demonstrated that Jacobson was not damaged by breach, if any, of the bond contract, but, on the contrary, he gained instead of lost .by such breach.
3. This 'brings ús, in conclusion, to determine Avhether or not the court erred in overruling all exceptions to the master’s report and in rendering judgment against the district in the sum of $32,515.
In its decree of 1923 the court found that the contract for'the construction of No. 48 was valid, but that the district subsequently became entitled to rescind the contract on account of legal impossibility of performance, and directed the master to ascertain the expense that Flanagan, the contractor, had incurred in necessary preparation to perform and carry out the contract, and also the contract price of any work done by him, including any damage sustained 'by him in connection with the performance of the contract to the date when he was notified that the district would not permit him to carry out the contract.
Counsel for appellants and appellees have favored the court with an exceedingly elaborate brief on the issues as to whether or not the construction contract was valid when entered into, and also on the issue of Avhether, if valid, the district had the legal right, under the act February 23, 1920, to abandon the performance of the contract.
Here again we regard a decision of these issues as Avholly immaterial, and Ave therefore pretermit a discussion thereof, for the reason that we are convinced that the district is liable to the contractor on the matters involved in the issue referred to the master, under the plainest principles of equity, whether the district had the discretion to abandon the contract or not.
Flanagan and the district entered into the contract believing the contract was valid. Flanagan made preparations for, and entered in good faith upon, the performance of the contract, and was engaged in such performance when he was notified by the district that it would not further perform the contract on its part. Conceding, without deciding, that the district had a perfect right to thus repudiate the contract, equity would not allow it to do so without reimbursing the' other party to the contract for the necessary expense incurred by him in the performance of the same.
“If a party calls upon a court of chancery to put forth its extraordinary powers and grant him purely equitable relief, he may with propriety be required to submit to the operation of a rule which always applies in such cases to do equity in order to get equity.” Spring F. Company v. School Fist. No. 4, Faulkner County, 67 Ark. 236, 54 S. W. 217. In McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621, we said:
“This suit is in equity, and the court has the right to impose conditions upon the plaintiffs in granting them the relief prayed for. ITe who seeks equity must do equity, is a favorite maxim. In the broadest sense it is regarded as the very foundation of all equity and as the source of every doctrine and rule of equity jurisprudence. Its practical meaning is that, whatever be the nature of the controversy and of the remedy demanded, the court will not give equitable relief to the party seeking it unless he will admit and provide for all the equitable rights, claims and demands of his adversary growing out of, or necessarily involved in, the subject-matter of the controversy. I Pom. Eq. § 385.” See also Grider v. Driver, 46 Ark. 64; Comstock v. Johnson, 46 N. Y. 521; Hitchcock v. Galveston, 96 U. S. 350, 24 L. ed. 659, and other cases cited in appellant’s brief.
Under all the circumstances disclosed by this record, it occurs to us that it would be rank -injustice upon the part of the district to fail to remunerate Flanagan and his associates for their necessary outlay in endeavoring in good faith to perform the contract on their part, even though the district was justified in abandoning the same. As a part of .said outlay, the master correctly concluded, that the contractor should he allowed at least sixty days to rearrange its affairs land should be reimbursed the amount necessarily expended in doing so. It must be remembered that this was a stupendous project, and a sudden termination of the contract made it necessary for the contractor to incur a large expense in readjusting his affaii's to. meet the situation caused directly by the act of the district in repudiating its contract.
But the appellees contend that the Harding.Construction] Company was in fact the real party in interest in this litigation, it being the exclusive owner of the contract and the real contractor which was to do the construction work. One of the exceptions of the appellees to the master’s report is that the Harding Construction Company is a Minnesota corporation, and .was. doing the business contemplated by the contract under review in violation of the laws of Arkansas, not being authorized to do business in the State. Conceding thát the Harding Construction Company was the reial party in interest, the trial court did not err in overruling this exception to the master’s report. This, in effect, was a plea in abatement, or rather a plea in bar, of the appellant’s action as set forth in their answer and cross-complaint, and the appellees should have entered their plea in their answer to such cross-complaint or by special plea'in bar at the beginning of the lawsuit, instead of at the end thereof. About two and. one-half years after the district filed its answer denying the allegations of appellant’s cross-complaint, and after proof on the merits of the issues thus joined had been taken, the original plaintiffs in the action file an amendment to their amended complaint, alleging, for the first time, that the Harding Construction Company was not qualified to do business in Arkansas. This wias too late for a plea in abatement, or in bar of the action. The appellees must be held to have waived the incapacity of the Harding Construction Company to maintain its cross-action by answering this cross-complaint and permitting the proof to be developed on the merits, without raising the issue of incapacity of the cross-icomplainant, Harding Construction Company, to maintain the action. See § 1189, C. & M. Digest, subdiv. 2; also § 1192, C. & M. Digest. See also Pettigrew v. Washington County, 43 Ark. 41; Files v. Reynolds, 66 Ark. 316, 50 S. W. 509; Triggs v. Ray, 64 Ark. 151, 41 S. W. 55, and cases from other jurisdictions cited in brief of counsel for appellant.
The master was a former chancellor of the district, and his report and its exhibits cover fifteen pages of the record. It could serve no useful purpose to set out and discuss the evidence upon which the master based his findings, as only questions of fact are mainly involved. The report of the master shows that he was thoroughly capable, and that he apprehended fully the directions of the court. He made a painstaking and exhaustive examination of the evidence already in the record, and took further testimony on the issue submitted to him.
After a careful consideration of the master’s report, we have reached the conclusion that the same is correct, and that the trial court did not err in overruling all the exceptions thereto, and did not err in approving the same and rendering* a decree in accordance therewith. We find no error in the entire record calling for a reversal of the decree, and the same is therefore affirmed. | [
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Humphreys, J.
Appellant brought suit in the circuit court of Franklin County, Ozark District, against appellees to recover $5,000 actual and $5,000 punitive damages for prevailing upon his employer, Western Coal & Mining Company, to discharge him as a coal miner from his employment in Mine No. 2 on. its property at Denning, Arkansas.
The. complaint alleged, in substance, that the United Mine Workers of America is a voluntary unincorporated association, composed of appellees and other individuals, organized for the purpose of bringing about an increase in their wages and bettering their condition by legisla tion, conciliation, joint agreement, and strikes; that appellant was one time a member thereof, but was expelled from the association because he joined the Ku Klux Klan, at which time he was in the employ of the Western Coal & Mining Company, a corporation engaged in .mining coal at Denning, in said county; that he appealed from the local union expelling* him to the district board, where the order was affirmed; that he appealed from the order of affirmance to the Totemalional union executive board, and that said last named board has failed, refused and neglected to act upon said appeal; that the constitution of the International Workers of the United Mine Workers of America prohibited its members from joining the I. W. W., W. C. U. and the Ku Klux Klan; that before, at the time of and after his expulsion, the coal mine in question was operated by the Western Coal & Mining Company under contract with the United Mine Workers of America, by which only members of the association should be employed to dig or mine coal; that, after appellant was expelled, appellee's conspired to and did unlawfully procure appellant’s discharge by serving the following notice upon his employer:
“Denning, Arkansas.
“To Western Coal & Mining Company:
“Oentlemen: You are hereby notified that J. P. Baker, Walter Harmon, W. B. Sublett, Elmer Carter, are no longer members of the United Mine Workers of America, and are not affiliated with any local union of said organization.
“You are therefore notified that we cannot continue longer in your employment, under the terms of the contract existing between yourself and the United Mine Workers of America, and shall cease work on and after November 7, .1922, unless we are otherwise notified by the agents of the Western Coal & Mining Company that the terms of the contract will be strictly adhered to.
“Signed on behalf of the employees and members of Local Union No. 1814, employed at Mine No. 2 and Mine No. 6.
“Chas. Ireland, President,
“E. W. Mackey, Secretary.”
A demurrer was filed to the complaint, and sustained, over, the objection and exception of appellant. Appellant refused to plead further, and stood upon his complaint, whereupon same was dismissed by the court. From the judgment sustaining the demurrer and dismissing the complaint an appeal has been duly prosecuted to this court.
Several questions are raised and urged by appellant as grounds for a reversal of the judgment, but it is unnecessary to discuss or decide them, as no legal damages were alleged. This question raises itself, and is determinative of the case. The complaint only alleged an employment of appellant toy the Western Coal & Mining Company at will. It was not alleged that the employment was for a definite period.. There can be no damages resulting to an employee on account of a discharge from an employment at will. The motive of the employer in discharging him is immaterial, and cannot be questioned. The discharge may have been inspired by a bad motive, for the legal right to determine an employment at will is absolute in either the employer or the employee. This principle of law was announced and applied in the case of Cusumano v. Schlessinger, 152 N. Y. S. 1081, which is exactly in point. The syllabus of that case correctly reflects the purport of the opinion of the court, and is as follows:
“Plaintiff, whose employer was a member of a cloak and suit makers’ association, which had agreed with defendant union that only members of the union should be employed by the association, who was not employed for any definite time, and who was discharged at the' instigation of delegates of the association and of the defendant unión, on information to his employer,' in fact true, that he was not a member of the union, liad no cause of action against the defendant union.”
No error appearing, the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). In proceedings of this sort a citizen and taxpayer has a right to he made a party to the proceedings in the county court 'and to appeal from an adverse ruling of the county court relative to the vacation, alteration or establishment of roads. Johnson v. West, 89 Ark. 604, 117 S. W. 770; and McMahan v. Ruble, 136 Ark. 83, 204 S. W. 746, and cases cited.
But it is insisted that Hill had no such right, because he signed the original petition for the vacation of the road. The record shows that, before the original petition was acted upon, Hill and other persons who had signed the original petition asked that their names be withdrawn, before the court took any action on the petition. The withdrawal of the name of Hill and the names of the other persons did not affect the jurisdiction of the court, because there was still left upon the petition more than ten names, as required by the statutes. Under these circumstances it has been generally held that names may be withdrawn at any time before the tribunal in which the petition is filed in some way acts or determines the sufficiency of the petition. Elliott on Roads and Streets, '4 Ed., vol., 1, paragraph 374. Numerous cases from the courts of last resort of several States are cited in support of the doctrine.
There is no analogy between proceedings of this sort and proceedings to form local improvement districts in cities and towns under the provisions of our Constitution. In such a case our Constitution provides that such improvement district can only be formed where a majority in value of the property owners have signed the petition. The act of signing the petition is in the nature of an election, and is an irrevocable act, because the signing of the petition is in the nature of casting a ballot at an election. A signer of a petition for the establish ment of an improvement district cannot revoke Ms act except for cause shown.
In the present case more than ten names, as required by the statute, were left on the petition, and it cannot be doubted that Hill and the other remonstrants might withdraw their names at any time before the petition had been acted upon by the county court. Each petitioner acted on his individual responsibility, and, if he should change his mind on the question of whether the road should be vacated or not, he had a right to do so at any time before the county court acted upon the petition. Besides this, the record shows that Hill and the other remonstrants signed the petition upon the representation that the road described in it was the old road leading from' the main public road to the ferry formerly owned and operated by J. M. McClintock. When they found out that they had signed the petition upon a misrepresentation of fact and that the road in question was the one leading to the east and west approaches of the bridge across White River, they had a right to correct their mistake, because the petition had not been acted on by the county court before they withdrew their names.
In the circuit court J. M. McClintock filed a motion to dismiss the appeal because Hill and the other parties to the appeal had not filed the appeal bond required by § 5241 of Crawford & Moses’ Digest. McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case. Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, and Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088.
It is next insisted that the giving of the appeal bond was a prerequisite to the exercise of jurisdiction by the circuit court, and could not ¡be waived. We do not agree with this contention. The giving of the appeal bond was for the benefit of McClintock and the other peti tioners to the vacation of the road, and might be waived by them. The only purpose of the bond in the present case would have been for the payment of the costs of the case. If McClintock wished to avail himself of his right under the statute to have the appeal bond given, he should have insisted upon the circuit court acting upon his motion to dismiss the appeal. Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 489, and Free v. Maxwell, 138 Ark. 489, 212 S. W. 325, where it was held that, where no affidavit for appeal was filed before an appeal was granted by the probate court, appellee waived the filing thereof by proceeding* to trial in the circuit court without objection on that account. By analogy, the appeal'bond required by the statute, being for the benefit of the appellee, might be waived by him. Appellee must be held to have waived a provision of the statute for his benefit to which he gave no attention until after the ease had gone to trial on its merits. His stipulation of facts and his agreement to try the case on the merits were sufficient waiver of his right to require the appeal bond under the statute.
It f ollows that the circuit court had .jurisdiction of the case, and this brings us to a consideration of the trial of the case in the circuit court on its merits.
The- record shows that no notice was given of the proceeding*'and that no viewers were appointed, and consequently no viewer’s report was made in favor of vacating the road, as required under § 5247 of Crawford & Moses’ Digest. It is contended, however, by counsel for appellee, that this is a proceeding under § 5249 of Crawford & Moses ’ Digest, and that no notice was necessary, under the ruling of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. We do not agree with this contention of counsel for appellee. Section 5249 confers upon the county court authority to. open new roads and to make such changes in old roads as they may deem necessary and proper. Section 5247 provides that, when any county road or -any part of any county road shall be considered useless, any ten citizens residing* in that portion 'of the comity may make application by petition to the county court to vacate the same. Thus it will be seen that the two sections of the statute operate in entirely different fields. There is a material difference in laying out a new road 'and making* changes and alterations in a public road, and in vacating it.
In Thompson v. Crabb, 6 J. J. Marsh. (Ky.) 222, it was said that there is. a palpable distinction between the alteration and the discontinuance of a public highway. In the one case the road is kept up, leading to the principal points, although it may be, by alteration, upon different ground from that on which it was first located. In the other it is abolished altogether, the authorities are exempted from keeping it in repair, and it may be stopped up entirely. Hence it was said that the Kentucky statute providing for a discontinuance of an established road did not apply to the ease of an alteration.
In the case at bar we are of the opinion that the proceedings was under § 5247, providing for the vacation of roads under certain conditions, and that the court erred in vacating' the road, for the reason that the provisions with regard to notice and the appointment of viewers provided by the statute were not complied with.
The judgment vacating the property was erroneous for another reason. It will be noted that § 5247 provides that, when any county road or any part of any county road shall be considered useless, it may be vacated by a proper petition filed in the county court. Under the statute the portion of the road could only be vacated when it was considered useless. The question of whether the part of- the road asked to be vacated had become useless was one of fact to be determined on the evidence. The question of the utility or non-utility of the part of the highway asked to. be vacated was therefore one for judicial determination, which could not be arbitrarily exercised by the county court.
The undisputed evidence shows that the part of the road asked to be vacated connected the east and west approaches to the bridge over White River with, the Bankhead Highway, which is a part of the State system of highways, and is one which receives aid from the United States. The court will take judicial notice' that White River is a navigable river, and, if the approaches of the public road which connect with the bridge across that river should be vacated, the use of the whole road would be materially affected, and the use of the bridge as a means of crossing the river would be entirely abolished. Therefore it will be seen that, as long as the bridge is used as a part of the State Highway and as a means of crossing White River, the public road leading to the bridge on each side of it cannot, in the very nature of things, be considered useless, and it was erroneous for the county court to so hold. As a practical matter, those parts of the public road which are used as approaches to the bridge can never be considered useless as long as the (bridge is a part of the public highway for crossing White River. The circuit court affirmed the judgment of the county court vacating the road, and thereby adopted the view of the matter held by the county court, and committed error in so holding.
Other questions are pressed upon us for a reversal of the judgment, but the views which we have expressed are conclusive of the case. Hence it is not necessary to state, consider or determine the other questions relied upon by counsel for appellants for a reversal of the judgment.
It follows that the judgment will be reversed, and the cause will be remanded, with directions to the circuit court to reverse the judgment of the county court vacating the road in question, and to certify its judgment down to the county court, to the end that the judgment of the circuit court may be adopted by the county court and entered upon its record as the judgment of the county court. That is to say, the judgment of the circuit court will be that the order of the county court vacating the road in question will be reversed, and the county court ordered to dismiss the petition of J. M. MeClintock and others asking for a vacation of the public road in question. It is so ordered. | [
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Hart, J.,
(after stating the facts). It is conceded by counsel for the defendant that there was sufficient evidence to go to the .jury on the question of whether or not the party removing the pole was guilty of negligence in leaving the hole unfilled right at the sidewalk, where people were accustomed to walk. They seek to reverse the judgment solely on the ground that the evidence was not sufficient to show that the pole which was removed belonged to the defendant, and contend therefore that the court should have directed a verdict in its favor.
It has been repeatedly held, and it is the settled rule of practice in this State that a case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, and Rice-Stix Dry Goods Co. v. Montgomery, 164 Ark. 161.
According to the testimony of Mrs. Selma W. Shelby, she fell in the hole in question on July 26, 1923. It was a very large deep hole, partly covered with grass, and was just where a cement sidewalk would have been had there been one. The plaintiff also testified that she had moved from that neighborhood in January, 1922, and that there was a telephone pole at the place in question when she moved. The defendant did not attempt to contradict the evidence just stated, but introduced several of its employees, who testified in the most positive manner that the pole in question did not belong to defendant, and that it had not been removed by it.
Counsel for the defendant contend that the evidence for the plaintiff and all reasonable inferences which may be drawn from it do not contradict the defendant’s evidence on this point. In short, they claim that the evidence for the plaintiff to the contrary is only conjectural, and is not of a sufficiently substantial nature to warrant the trial court in submitting the case to the jury. We cannot agree with counsel in this position. The evidence for the plaintiff showed that the hole in question was the result of removing a telegraph, telephone, or electric light pole, and leaving the hole unfilled. An employee of the electric light and water company which operated in Pine Bluff testified that the pole in question did not belong to that company and was not removed by it. The verdict of the jury being in favor of the plaintiff, the question of whether the pole belonged to the electric light and water company is eliminated from the case. The evidence shows that the only other public utilities which operated along the street in question were the defendant and the Postal Telegraph Company. It was also shown that the defendant had bought all the poles of the Postal Telegraph Company when it ceased to do business in Pine Bluff. It is true that the defendant proved by several witnesses that its line of poles was located on the north side of Pullen Street, and that it had never taken over any poles of the Postal Telegraph Company on the south side of Pullen Street..
It cannot be said, however, that its testimony in this respect, however strong it may be, is uncontradicted. A°s we have already seen, the hole was caused by the removal of a telegraph, telephone, or electric light pole, and the electric light and water company is eliminated from the case by the verdict of the jury. The Postal Telegraph Company gradually went out of the telegraph business, and the defendant took over its poles. The city engineer of Pine Bluff exhibited to the jury a list of poles of the Postal Telegraph Company made upon January 12, 1915. This list showed that at Beech and Pullen,- on Pullen Street, there was pole No. 59 on the south side of Pullen Street and 60 feet east of Beech Street, and pole No. 60 on'the same side of Pullen street 60 feet west of Beech Street. Pole No. 59 was situated about where the accident occurred.
The jury might have found that this pole remained standing until some time after January, 1922, and the fact that there was a hole there indicated that the po]e had been dug up and removed by some one. It is legally inferable that this pole was dug up and removed by the servants of the defendant, and that the employees who testified that such was not the case were either mistaken, or had forgotten the facts in the premises.
The plaintiff testified that a pole was there in January, 1922, and it was not there when she was injured in July, 1923. A witness for the electric light and water company testified that the pole did not belong to that company. No other companies operated in that part of the city, except the defendant and the Postal Telegraph Company. Clearly, then, it is not a matter of conjecture to say that the pole in question belonged to one of the latter, two companies. The evidence also shows that the defendant bought the poles of the Postal Telegraph Company before the pole in question was removed. 'Therefore we do not think that the finding of the jury —that the pole belonged to the defendant- — was merely conjectural, but think that it was ia reasonable inference to be drawn from all the facts and circumstances in the case, when we consider that the jury were the sole and exclusive judges of the credibility of the witnesses.
It follows that the judgment must be affirmed. | [
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Kirby, J.
This appeal involves the construction .of a will which disposes of quite a lot of property, paragraph eleven of which reads as follows :
“I devise and bequeath to my daughters, Lizzie Taggart and Lottie D. Walker, all the lands devised to me by my nephew, James B. Waddill, for and during the term of their natural life, share and share alike, to hold the same unto themselves during the term of their natural life. But if my daughter Lottie D. Walker shall die before my daughter Lizzie Taggart, then I devise and bequeath to my granddaug’hter, Josephine Walker, a fifth interest in said lands for and during the natural life of my daughter Lizzie Taggart, and the remainder of said lands I devise and bequeath to my daughter Lizzie Taggart for and during the term of her natural life. And in case my daughter Lizzie Taggart dies before my daughter Lottie D. Walker, I devise and bequeath to my grandchildren, the children of Lizzie Taggart, a one-half interest in said lands for and during the term of the natural life of my daughter Lottie D. Walker, share and share alike. And I devise the remainder in fee in said lands to my then living grandchildren, the children of the bodies of each of my daughters Lizzie Taggart and Lottie D. Walker begotten, share and share alike.”
Lizzie Taggart died in December, 1910, leaving surviving four children of her body, grandchildren of the testatrix, Laura J. Dills, Malcolm D., Samuel W., James B. and Margaret Taggart, and also Lottie Walker, the other life tenant devisee in the will, and her one child, Josephine Walker, since married, and one of the appellants, Josephine Walker Connell.
J. C. Wilmans, appellee, acquired the interest, vested and contingent, of three of the Taggart heirs, Malcolm D., Samuel W. and James B., and Margaret Taggart conveyed her interest, on the 7th of September, 1921, to Lottie D. Walker.
In May, 1923, the Newport Levee District appropriated some of the lands, and paid into the Jackson Chancery Court for the owners of the fee of the lands $925.25, and appellee hr ought this suit for distribution of said fund on the basis of his claim of a 3/5 interest in fee in the lands and being* entitled to a 3/8' interest in the income thereof. Appellant denied that the appellee was entitled to any interest in fee in the lands before the death of the surviving life tenant, and, from the decree holding otherwise, has appealed.
It was the intention of the testatrix, clearly expressed, to give her grandchildren then living, the children of her daughters, the two life tenants, the remainder, in the lands in fee, share and share alike, upon the death of both life tenants, and such estate did not vest in fee so long as either life tenant survived. Neither could it be sooner determined under the will what inter-. est each grandchild would be entitled to in the remainder in fee which is devised to the then living grandchildren upon the termination of the life estates.
The decree is reversed accordingly, and the cause dismissed. | [
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Humphreys, J.
This is an appeal from a decree. rendered in a case wherein appellant, G. C, Williams, was plaintiff, and appellee, Eoad Improvement District No. 1 of Perry County, Arkansas, was defendant, setting aside a vacation decree of date March 25, 1921, in favor of appellant against appellee, for $20,618.82, which was entered mono pro tunc on the 21st day of September, 1922. The vacation decree was rendered by Chancellor Jordan Sellers, pursuant to an agreement between the parties to the effect that he might hear and decide the case at chambers, in Morrilton, and send the decree to the chancery court of Perry County for entry in a blank space left on the record for that purpose. A few days before he heard the case, the General Assembly of Arkansas removed the old commissioners of the appellee district and appointed three new ones in their place. The new commissioners made an attempt to postpone the hearing at chambers in Morrilton, but without avail. Immediately upon their appointment they discharged the attorneys who had been representing appellee, under employment by the old commissioners. After failing to procure a postponement. of the case, they retired, and did not participate thereafter in the hearing. The chancellor tried the case, in their absence, upon the pleadings and proof brought before him, and rendered a decree for the sum aforesaid in favor of appellant against appellee, but did not reduce the decree to writing until July 1, 1921. In the meantime, and before reducing the decree to writing, the chancellor resigned, and moved to El Dorado. On July 1, 1921, he mailed the decree from El Dorado to the chancery clerk of Perry County, with instructions to file same with the papers in the case, objection having been made by the new commissioners to the entry of the decree. The suit in which said decree was rendered grew out of a contract between appellant and appellee for constructing a highway about twenty-six miles long- The money of the district gave out before the road was completed, and the old commissioners were unable to proceed with the work unless Federal or State aid could be obtained, which was doubtful’. ' At the time the-nfoiiey gave out and the work ceased, the contractor, anpellant herein, had considerable material on the ground, and had sublet the ungraded portion, of the road to responsible subcontractors at a profit. Being confronted by this situation, the old commissioners arid the contractor had several meetings for the purpose of adjusting matters between them. At a meeting on August 11, ly20, the contractor made a proposal to the old commissioners, in the form of a letter, which was incorporated in the minutes of the meeting, The minutes of the meeting, including the letter, are as follows:
“Minutes of meeting of Road Improvement District No. 1, held in the office of J. T. Chafin, at Perry, Arkansas, August 11,1920. Commissioners present, D. M. Wallace, A. F. Leigh and J. T. Chafin. Attorneys, G-. B. Colvin, J. H. Bowen and J. L. Hill. Contractors, (1. C. Williams and R. L. Gastor.
“The commissioners had convened at the call of the chairman for the purpose of settling with contractors. After considerable discussion the following agreement was reached with Mr. Williams, general contractor:
“ ‘Perry, Ark., Aug. 11, 1920.
. “ ‘Commissioners of Road Improvement District Nó. 1, Perry, Arkansas:
“ ‘Gentlemen: In closing my. contract with you I hereby ag'ree that you may take over the following materials now on hand, at prices stipulated herein, crediting me with the amount of same when same is ascertained by estimate of the engineers:
Sand........................................................................$10.00 per yard
Crushed rock................................................... 6.25 per yard
Cement.................................................................. 5.60 per bbl.
Damage to lumber....................................290.00
Steel at invoice 'price. ' .
“ ‘Pinal estimate to be furnished at once by all parties, including myself.
“ ‘As soon as my final- estimate is made up and agreed upon, as partial settlement of same, I hereby " agree to accept valid certificates of indebtedness of the district, not to exceed $3,000, drawing 6 per cent, interest, balance to be paid in cash.
“ ‘Very truly yours,
“ ‘ ('Signed.) G. '0. Williams/.
“The following resolution was offered by J. T. Chafin:
“ ‘Resolution: Whereas, the district has on hand culvert material that will not be used by reason of the fact that the road building cannot be continued, .and whereas, it is advisable to sell said culvert in order to raise funds with which to pay obligations of the district already incurred.
“ ‘Therefore be it resolved, that said culvert material be sold to R. L. Gastor at the present market price, as submitted by Dixie Culvert Company, said price to be f. o. b. Beebe, Arkansas, freight and loading charges to be deducted. That said R. L. Gastor be and he is hereby authorized to load said culverts and invoice same under directions of the engineers of the district. Terms of sale, net cash, 30 days.
“ ‘Be it further resolved, that the reenforced steel unused and belonging to the district be sold to R. L. Gastor at $4.25 per 100 lb. at Perry. Terms, net cash/
“On motion of A. P. Leigh, seconded by j. T. Chafin, the above resolution was adopted.
“The engineers were instructed to make a final account of all material on hand, and render a final estimate at the earliest possible date.
“(Signed) D. M. Wallace, Chr.
“ J. T. Chapin, 'Secy.
“A. F. Leigh.”
Pursuant to and in accordance with the minutes aforesaid, the resident engineer, J. C. Spotts, as representative of the district, and Parkes Engineering Company, who was the engineer for the district, made a final estimate, showing the amount due from’ the district to the contractor. This estimate was the eleventh estimate which had been made during the progress of the work, and bore that number. In making up the estimate the engineer allowed the district $3,100 ont of retained percentage, which amount the district would have to expend in completing certain portions of the road which the contractor had only partially finished. The contractor objected to this deduction, but payments were made and received after that time upon the estimate.
The minutes of the meeting of the board on August 16, 1920, reflected that the contractor demanded part payment on estimate No. 11, rendered by Parkes Engineering Company, and that the board ordered $2,000 paid thereon. •
The minutes of October 11, 1920, reflected that the contractor made a proposition to the board to accept $8,000, in addition to the balance due him on estimate No. 11, in full payment of his claim for damages, which was refused by the board. The addendum to the minutes of that meeting is as follows :
“It appears that there is still due contractor G. C. Williams, on. estimate No. 11, the sum of $3,416.27, and that there is cash on hand amounting to approximately $1,500; motion is made, seconded and passed that the sum of $1,000 be paid contractor Williams on said estimate, and that warrants be drawn in his favor on the Perry-State Bank for said sum.
“D. M. Wallace,
“A. P. Leigh.”
This payment was accepted 'by the contractor, which left a balance due him on final estimate No. 11 of $2,416.
Shortly after receiving this payment, he brought the suit heretofore mentioned against the district, in the circuit court of Perry County, for $21,913.87, in which he obtained the vacation decree for $20,618.82, and which was entered mmcpro im by Chancellor Atkinson, the succéssor of Chancellor Sellers.
Prior to the entry of the mmc pro tune decree, the new commissioner's' for the district employed Edward Gordon to represent'it. Mr. Gordon'madd'nm effort to '■procure court files and napers in the suit brought by the contractor against the district, for the purpose of appeal ing the case to .the Supreme Court, and to use in an attempt to prevent the mmc pro tunc entry. He finally located the papers in the possession of appellant, who refused to deliver them to him unless his client would consent for the clerk to enter the vacation decree rendered by Chancellor Sellers. Immediately after the entry of the nunc pro tunc decree, appellee filed this suit against appellant, which was denominated “a bill of ■review and general bill in the way of a bill of review and motion for new trial. ’ ’ The gist of this bill, as amended, was a charge by appellee that appellant and the old commissioners of appellee district entered into a collusion in obtaining the decree against the district in his favor, growing out of said contract, which suit and decree amounted to a fraud upon the taxpayers of the district. It is alleged in the bill that, prior to the institution of the suit by appellant against appellee in which the vacation decree was obtained, there had been a full and complete compromise and settlement between the parties thereto of all matters growing out of the contract to construct a highway. The bill contained other allegations which it is unnecessary to set out.
Appellant filed an answer denying the material allegations of the bill. Thereafter, and on the 13th day of June, 1923, by agreement of the parties, the question of reopening the cause or setting aside the decree, and the amount due the contractor, was submitted to the court on all the pleadings and evidence which could be obtained in the original suit, in the application for the mmc nro tunc decree, and such testimony as each party might introduce responsive to the issues presented by the bill of review and the answer thereto.
The following findings of fact appear in the body of the decree from which is this appeal:
“The court, after hearing the evidence and being well and sufficiently advised, doth find that the proof shows that no defense was made by the road district at the time said cause was submitted to the chancellor.'
. ‘ ‘ That no evidence was taken to be presented on behalf of the district, and that, according to the testimony, the commissioners ■ entered into collusion with said (i. (J. Williams in obtaining said decree, and that same is in fact a fraud upon the taxpayers of the district, and should therefore be set aside.
“And the court further finds that there was in fact compromise and settlement-had between the district and said G-. C. Williams, based upon the final estimate No. 11 as made and presented by the engineer of the district, and that the district is only due the said Gr. C. Williams the sum of '$2,116 on .said final estimate and compromise settlement, together with six per cent.'interest thereon from the date of said final estimate until paid. And that the said G-. -C. Williams is entitled to judgment against the district for said amount. ’ ’
After a very careful reading of the testimony we are convinced that the findings of fact by the chancellor are supported by a preponderance thereof. .Both engineers, W. J. Parkes and J. C. Spotts, and M. D. Wallace, one of the old commissioners, testified in effect that the settlement was a full and complete compromise of all matters in dispute between the - contractor and district. J. C. ■Spotts, who made estimate No. 11, incorporated language therein to that effect. The language of the letter from the contractor to the district* embraced in the minutes of August 11, 1920, so indicates.
Two witnesses, J.- T. Chafin, who was one of the commissioners, and G-. B. Colvin, 'one of the attorneys for the - district, testified that the settlement only embraced such-matters as were specifically mentioned therein, but we are unable to say that their-testimony is of greater weight than the testimony of the other witnesses, assisted by the letter of the contractor.
The new commissioners did not know of this settlement, which was a complete defense to the suit by the 'contractor, arid had no opportunity to present it as a defense when the cause was heard before Chancellor Sellers in vacation. It is quite apparent, from'appellant’s own statement, and especially that part of it when on cross-examination, that he had an arrangement with some of the old commissioners by which no real defense would 'be made against his proposed suit for damages. The following questions and answers indicate it;
“Q. When was it that you had the agreement with the commissioners that you would just have a friendly suit, and that they would not interpose any defense in chancery court to your suit? A. I did not say they did not interpose any defense. I said we would not take any depositions, just lay it before the court. Q. Did they agree upon the amount you should sue for? A. No. Q. Sue for any amount you desired, and it would be a friendly suit, and it would be submitted to the court without going to the trouble of taking depositions or anything? A. Yes sir. Q. When was it that you had that agreement? A. At one of those meetings when they paid me $1,000 or $2,000,1 don’t remember which.”
The act of the contractor in withdrawing or retaining the court files and papers in his suit against appellee ■was another potent circumstance tending to show that he, in collusion with the old commissioners, fraudulently obtained the vacation decree.
The vacation decree was collusively obtained, and the court was warranted in setting it aside. McWillie v. Martin, 25 Ark. 566; Harris v. Stewart, 65 Ark. 566; Montague v. Craddock, 128 Ark. 59.
Appellant makes the further contention that- the trial court erred in not allowing him $3,100, which he charges was erroneously deducted out of retained percentages with which to complete the highway where it had not been finished in accordance with the plans and specifications. He makes the contention that, according to a preponderance of the evidence, he had finished the contract in all places where he had worked on the road; in accordance with the plans and specifications.
We have read the testimony carefully bearing upon this issue, and think, according to the weight theréof, that the contractor left the work unfinished in many places, and that it would have cost at least $3,100 to complete same in the manner provided by the contract.
No error appearing, the decree is affirmed. | [
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McIIaney, J.
This is a suit on a promissory note executed hy appellee to the Cotton States Life Insurance Company, on the 5th day of September, 1922, for $176.46, with 8 per cent, interest per annum, which was assigned by the payee to appellant. This note was executed and delivered to appellant under the following conditions: .
Appellant is engaged in the business of soliciting life insurance, with its principal office at Jonesboro, Arkansas, and was at the time the general agent for the Cotton States Life Insurance Company, for whom it had made a few farm loans, and had also made some loans for the Denver Investment 'Company, but that the loan business was not its main business. Lynn "Warren was the agent of appellant, whose authority was limited, according to Mr. Peel, to that of soliciting life insurance only. Warren solicited insurance from appellee for the Cotton States Company. Appellee did not want any life insurance, but wanted a loan of $5,000 on certain land owned by him. Warren advised' him that, in order to get the loan, he would have to take out an equal amount of life insurance. He thereupon gave Warren an application for the $5,000 life insurance, and in a few days he returned with the policy, telling appellee that he could pay the premium in the above amount out of the loan when it was received, and pay the balance of his debts out of the amount of the loan. Under this agreement, he executed the note for the premium and turned over his deeds and abstract to Warren, who took them off with him, and, a few days later, appellant sent them back to Mr. Simms, who was the cashier of the Bank of Lepanto, but did not make any loan. Appellee is a man without education, not being able to read or write, and, upon demand being made on him to pay his note, refused, for the reason that the loan he desired had not been granted to him. He did not return the policy to the company, but, immediately upon receipt of his abstract and deeds by the Bank of Lepanto, he went to his attorney, Mr. Scobey, and told Mr. Scobey to write the company for him, 'but does not know whether this was done or not. Pie also told Warren he would give him the policy, or he could come and get it, and Warren said he did not want it; that he offered to go get it, but did not have it in his pocket; that he did not surrender the policy, as no one came to get it, and he thought no more about it.
Appellee kept his abstract and deeds in the safe of Mr. Stuckey, who testified that appellee and Warren came to him about this matter, and that Warren agreed to write, the insurance, and get the loan, and, at appellee's request, he got the abstract and deeds to the property, and delivered them to Warren, who said that the premium could be paid out of the loan.
The case was submitted to the jury under instructions from the court, and a verdict and judgment was rendered for appellee, from which is this appeal.
Appellant urgently insists, for a reversal of this case, that Warren had no authority to make the representation that the company would make a loan as an inducement to write the policy of insurance, and that therefore the plaintiff is not bound by such representation. He cites a number of authorities to the general effect that a principal is not bound by the acts of his agent, unless done within the actual or apparent scope of his authority. While this is true, it is equally well settled, as was said in the case of Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508, that: “One dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent clothed with authority co-extensive with its apparent scope.” This case was cited with approval in the case of Arkadelphia Milling Co. v. Green, 142 Ark. 565, 219 S. W. 319, where it was said: “A person dealing with a special agent must do so at his peril, and, if the special agent was without authority,- the principal cannot be held. Not so, however, in dealing with a general agent. A person dealing with a general agent can hold the principal if the acts of the agent are within the general scope of the particular kind of business intrusted to him.” .In that case, one Carr was employed by appellant, and was sent 'by it to the mill of one Brown semimonthly for the purpose of checking up the bolts, staves and labor incurred in making them and for paying therefor by drawing checks against appellant to settle the labor accounts, and to pay Brown, or others at Brown’s directions, with whom appellant had a contract for the output of the mill. The court held in that case that: “ Carr’s employment was not a special one and confined to a single transaction, but was a general employment to transact a particular kind of business for appellant. He was therefore a general agent, under the rule announced in the case of Liddell v. Sahline, 55 Ark. 627, 17 S. W. 705.” In this case it is admitted that Warren was appellant’s agent for the soliciting of insurance, and it is undisputed that, in soliciting insurance from the appellee, who did not want the insurance, but who did want a loan, he promised to get the loan through appellant’s agency, and it is undisputed that appellant did procure farm loans, and that the premium for which the note was given could be paid, out of such loan: It was therefore one indivisible contract, the insurance being applied for and taken as a necessary incident to the procuring of the loan. We therefore hold, under the authority of the above-cited case, that, since Warren was admitted to be the agent of appellant, appellee had the right to presume, in the absence of notice to the contrary, that Warren was appellant’is general agent, clothed with authority to make a contract with appellee for the loan and the insurance. Furthermore, it is undisputed that the abstract and deeds to the property appellee desired to pledge for a loan were delivered to appellant, and by it returned to the Bank of Lepanto some three or four days after having received same, and it therefore must have known at that time that appellee was desirous of procuring a loan, else he would not have sent in his abstracts and deeds. While it is true that the'loan business is not appellant’s principal business, it is undis puted, in fact testified to (by Mr. Peel, that his company had procured farm loans, not only for the Cotton States Company, but for another company, and it cannot therefore be said that it was not engaged in that kind of business.
It is. further insisted that there wia-s no surrender of the policy by appellee, and that, having kept same, he is now estopped from setting up the defense of fraud in the procurement of the note sued upon. In other words, it is insisted that, if a party who has been defrauded, after discovering the fraud, ratifies the acts of which he complains, he cannot thereafter rescind the contract. That is undoubtedly true and a correct statement of the law, but we do not think the evidence justifies the assumption that appellee ratified the contract. At least we cannot say that he did as a matter of law. The facts which have heretofore been stated made it a question for the jury, and the court submitted this question to the jury under this instruction: “If you should find that, if the contract is as the defendant claims it to be, but should find that, within a reasonable time, he did not notify them of the rescission of the contract and tender or offer back to them the policy, then your verdict would be for the note for the amount sued for.” The jury found for the defendant, and necessarily found that he did tender, or offer back to appellant, the policy within a reasonable time. We think there was substantial evidence upon which to base this instruction, as appellee testified positively that he told Warren that he could have the policy back, or he would go and get it for him, not having it in his pocket at the time, but that Warren told him he did not want it back, that he could do with it what he pleased, or something to that effect, and this ivas within a few days after the return to him by appellant of his abstract and deeds.
The case Avas submitted to the jury under correct instructions, and, finding no prejudicial error, the judgment is affirmed. | [
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Wood, J.
This action was instituted by Eva Jernigan, Sarah McKee Vance and J. T. Scott against the Wisconsin & Arkansas Lumber Company and Arkansas Land & Lumber Company. The plaintiffs, Jernigan and. Vance, alleged that they were the owners of certain lands over which the defendants had constructed their railroad; that, on the first of August, 1922, defendants negligently set out fire and burned plaintiffs’ fence, to their damage in the sum of $75; that J. T. Scott had rented the lands for the year 1922, and, by reason of the burning of the fence, they had been unable to collect their rent from Scott in the sum of $75. 'They prayed for damages in the sum of $150.
J. T. Scott alleged that he had rented the lands from the co-plaintiffs, and that he was using the same as a pasture for his stock, consisting of horses, hogs and cattle; that he had sustained damage by reason of the loss and destruction of the fence in the sum of $150, and had been deprived of the use of the pasture in the additional loss of $50, and prayed judgment in the sum of $200.
The defendants denied the allegations of the complaint. The cause was submitted to the jury, which, upon the evidence adduced, returned a verdict in favor of the defendants against Mrs. Yanee and Mrs. Jernigan and in favor of the plaintiff, Scott, in the sum of $112.50. Judgment was rendered in favor of the plaintiff, Scott, against the defendants in that sum, from which the defendants appeal.
The appellee predicates his right to recover upon the alleged negligence of the appellants in setting out fire and destroying the fence, which he alleged caused his damage. The appellants, on the other hand, denied that there was any negligence. The issue as to whether appellants negligently set fire to the fence which inclosed the land appellee had rented was submitted to the jury under correct instructions, and it suffices to say that this issue, under the evidence, was one of fact for the jury, and their verdict is conclusive here on that issue.
Among other instructions, the court gave the following, at the instance of the appellee: “No. 4. You are instructed that, if you find from the evidence in this case that the defendant company negligently burned the fence that inclosed the plaintiff, John Scott’s, hogs, and you find from the evidence that the defendant company knew that the stock was so inclosed, it would befits duty to exercise ordinary care to prevent them from escaping from said inclosure, and if you find from the evidence that it did not exercise that degree of care, and you find that the plaintiff’s damage was caused thereby, it will be your duty to find for John Scott in whatever sum he was damaged by its failure to exercise ordinary care, unless you further find that John Scott did not exercise proper care to prevent said loss.” And, at the instance of the appellants, the court gave the following instruction: ‘‘No. 7. The court instructs the jury that it was the duty of John T. Scott to do whatever was reasonably neces^ sary to protect his hogs from straying away from the premises complained of, after the fire, and if you find from the evidence in this case that he did not reasonably exert himself to prevent said hogs from straying off, then, in that event, he cannot recover, and your verdict will be for the defendant.”
The appellee testified to the effect that, when he saw the fire late Friday evening, the section crew of the appellants was with the fire and had it under control, and he expected that they would put up a fence or guard it so that no further damage could occur. He went early Saturday morning, and worked about two weeks to^ get what stock he could. He knew that the stock Would get out of the inclosure unless some one prevented them from doing so. He had something else to do, and made no effort to gather together the stock, nor did he employ any one to watch the burned space to prevent the stock from getting out. About sixty head of stock escaped from the pasture, and seventeen head of hogs were entirely lost, weighing about 150 pounds each, and worth at least $150. It cost him at least $50 to feed them by-reason of the loss of the use of the pasture, and he placed his entire damage at the sum of $250.
The above instructions were in conflict and calculated to mislead the jury. If the appellee had knowledge of the destruction of his inclosure by the appellants soon after it occurred and in time for him to prevent the escape of his stock, it was his duty to exercise ordinary care to prevent his stock from escaping, and this duty did not devolve upon the appellants. But instruction No. 4, given at the instance of the appellee, was calculated to cause the jury to believe that it was the duty of the appellants to prevent appellee’s stock from escaping after the fence was destroyed, even though the appellee had knowledge of the fact that the fence was destroyed and could himself, by the exercise of ordinary care, have prevented the escape of his stock. To be sure, if the destruction of appellee’s pasture fence was caused through the negligence of the appellants in putting out fire, and this negligence w¡as the proximate cause of the appellee’s damage, then he was entitled to recover. Opi the other hand, even if the appellants ’ negligence caused the destruction of the fence, yet if the appellee knew of such destruction in time that by the exercise of ordinary care he could have prevented the escape of his stock and failed to exercise .such care, then the proximate cause of the damage caused by the escaping of the animals was the appellee’s own negligence.
As was said by us in L. N. O. & Texas Rd. Co. v. Jackson, 123 Ark. 1-8: “The property owner is required to do whatever is reasonably necessary to protect his property from injury, and cannot permit the injury to occur and then claim full damages when he might have prevented it or lessened its effect by a reasonable expenditure.” See also Western Union Tel. Co. v. Ivey, 102 Ark. 246.
For the error in giving appellee’s prayer for instruction No. 4, the judgment is reversed and the cause remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). Counsel for appellants seek to reverse the decree upon the ground that the sale of the machinery to appellants was procured by the false representations of L. B. McClure, vice president and manager of appellee bank. In order to vitiate a contract of sale on the ground of fraudulent representations, such representations must relate-to an existing fact material to the contract, .and upon which the other party had a right to rely, and did rely to his injury. If the means .of information as to the matters alleged to be misrepresented are equally accessible to both parties, they will be presumed to have informed themselves; and if they have not done so, they must abide by the consequences of their own carelessness. Bankers’ Utilities Co., Inc., v. Cotton Belt Savings & Trust Co., 152 Ark. 135, 237 S. W. 707; and Manzil v. White, 161 Ark. 1, 255 S. W. 567.
Thus it will be seen that the issue raised by the appeal is entirely one of fact; and, in determining issues of fact in chancery cases, where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, the findings of fact by the chancellor are persuasive. In short, the findings of fact by the chancery court stand upon appeal, unless they are clearly against the preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
In the application of this rule to the facts in the record, viewed in the light of the attendant circumstances, it cannot be said that the findings of fact made by the chancellor are clearly against the weight of the evidence. Appellants were experienced sawmill men, and were shown the sawmill outfit before they purchased it. Harris and McClure both testified that they agreed to purchase the sawmill outfit as viewed by them. The machinery composing the sawmill outfit had been hauled from its location in the country and stored at the residence of the witness Harris, who held a first mortgage on it. Appellants saw the outfit before they purchased it. They now claim that certain pakts were missing when they hauled it away. They claim that they asked about the missing parts, and that Harris promised, to get them up. Appellants knew the missing parts were not with the other parts and that the parts examined by them had been hauled into town from their location somewhere in the country. It is not reasonable to think that they were induced to make the purchase by the representations of Harris and McClure as to the value and character of the parts which they now claim are missing. They saw the most valuable parts of the sawmill outfit, and it is more in accordance with reason and human experience that they purchased the machinery relying upon the value of the parts which were shown to them and which they examined before making the purchase. In addition they secured the sum of $'200, which they claim they were to use in operating expenses. •
We think the chancellor was justified in finding that the facts of the case bring it within the principles of law above announced, and it follows that the decree should be affirmed. It is so ordered. | [
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Hart, J.,
(after stating the facts). It appears from the record that Morgan purchased the land from'Rogers for the sum of $3,600, and gave his note for the purchase money, bearing interest at the rate of 8 per cent, per annum from date until paid. He intended to give Rogers .a mortgage on the land to secure the payment of the purchase price, but the mortgage described another tract of land by mistake. When the mistake was discovered, Morgan having failed to pay the interest, it was added to the principal, so that principal and interest together, with the sum of $112,“which Rogers then loaned Morgan, made a total of $4,000, for which the note sued on was executed, bearing interest at the rate of ten per cent, per annum from date until paid.
This court has held that it is not usury to add the interest, when it becomes due, to the principal and take a new note for the whole, with interest at the rate of ten per cent, per annum from date until paid. Grider v. Driver, 46 Ark. 50. Therefore there was no usury in the taking of the new notes for $4,000, this being the amount of the principal and interest on the first note, together with $112 additional which Rogers loaned to Morgan.
The record shows that the interest on the new note was payable semi-annually. This court has also held that a contract charging the highest rate of interest allowed by the Constitution is not rendered usurious by the fact that payments of interest are required at intervals of less than a year. First National Bank v. Waddell, 74 Ark. 241.
The note also provided that, if the interest was not paid annually, it should become a part of the principal and bear the 'same rate of interest. This was not in violation of our Constitution on usury. A person may lawfully contract for the payment of interest as it accrues, and it -is not necessary that the principal debt should be due at the time the payment of accrued interest is exacted. The agreement was not a positive undertaking to pay compound interest at all events, but only.in case of default in the payment of the annual interest when it fell due. Morgan could readily relieve himself from all liability thereon by the payment of the interest annually as it fell due. Our Constitution and statute are silent as to the time when the interest may be paid, and only prescribed the rate for a specified term. The language of our Constitution is that all contracts that have a greater rate of interest than ten per cent, per annum shall be void as to principal and interest, and the General Assembly shall prohibit the same by law. Article 19, § 13, of the Constitution of 1874.
This court has expressly held that taking a note bearing ten per cent, interest per annum and providing that, if interest be not paid annually, it shall become principal and bear the same rate of interest, is not such a compounding of interest as would render the note usurious. Carney v. Matthewson, 86 Ark. 25. It might be that the installments of interest might be made so lrequent or unusual as to indicate a disposition to evade the spirit of the law and to compound the interest so rapixlly .as thereby to secure a greater rate of interest than that allowed under the Constitution, but there is nothing in this transaction to evince such an intention.
• It follows that the decree will be affirmed. | [
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Wood, J.
On the 23rd day of March, 1926, J. K. Defries instituted an action in the Independence Circuit Court against the Farmers’ Mutual Fire Insurance Company of - Malvern, Arkansas, and J. E. Stanley, W. L. Knight, W. K. Smith, T. J. Fowler, J. W. Lee, W. A. Callis, E. 0. Kilpatrick, J. C. Minen, W. W. Bray, and R. J. Hodges, bondsmen for said company. The plaintiff set up the policy, alleged that he had complied with its terms, and that the defendant company refused to pay the loss, to his damage in the sum of $1,000. He also set up a bond executed by the defendants in the sum of $20,000, and alleged that the condition of the bond was that the defendant company would make prompt assessments and promptly pay the same over to any person having a claim by virtue of the policy, and that this bond was in full force and effect at the time of the destruction of the plaintiff’s property by fire. He alleged also that the defendants had refused to make any assessments or to pay the same over, all to his damage in the sum of $1,000, for which he prayed judgment, together with 12 per cent, penalty and a reasonable attorney’s fee and costs.
The defendants answered. The company admitted that it was a mutual fire insurance company, and issued the policy sued on. It denied the other allegations of the complaint. The defendants, bondsmen, answered, and alleged that the only condition of their bond was that the insurance company, in case of loss or damag’e under the policy, would make an assessment and pay over any moneys collected on said assessment. They alleged that the assessment was made, and that the members failed and refused to pay such assessment, and therefore no money had been received by the company to be paid over to the plaintiff. They denied that the plaintiff was entitled to any judgment whatever against them.
Oh the 19th day of April, 1926, the same being the thirteenth day of the spring term of the Independence Circuit Court, the following judgment was entered:
‘ * On this day this cause came on to '■be heard on the regular call of the docket, and appeared the plaintiff in person and by attorney, but the defendants appeared not, and the court, after hearing all the evidence and the exhibits made and produced by the plaintiff, doth find from the evidence that the defendant, Farmers’ Mutual Fire Insurance Company, failed and refused to make an assessment under said policy and for the loss of the plaintiff, and that they failed and refused to pay any assessment over to the plaintiff; and the court doth further find from the evidence that the loss of the plaintiff by fire was to the same and identical property insured more than $2,000; and the court doth further find from the evidence that the plaintiff paid all assessments as they became due, and that said plaintiff has complied with all the conditions of said policy made and provided; and the court doth further find that this suit was not commenced until more than ninety days after the proof of loss was received by the defendant company; and the court doth further find that the defendants, nor either of them, ever made any abjections or exceptions to said proof of loss; the court doth further find that the plaintiff should recover the sum of $1,000, the amount of damage sustained by plaintiff under said policy by reason of said loss, and 12 per cent, of said sum as damages, and $150 attorney’s fees, as provided by § 6155 of Crawford & Moses’ Digest.
‘ ‘ Tlio court further finds from the' evidence that the defendants, Farmers’ Mutual Fire Insurance Company of Malvern, Arkansas, made and executed a bond with the following persons as sureties thereon, to-wit: J. E. Stanley, W. L. Knight, "W. K. Smith, T. J. Fowler, J. W. Lee, W. A. Callis, E. 0. Kilpatrick, J. C. Minen, W. W. Bray, and R. J. Hodges; and the court doth further find from the evidence that the sureties and each of them have been duly served with process more than 20 days, having been duly served on the 26th day of March, 1926, and the court doth further find from the evidence that there has been a breach in the condition of said bond, and that the sureties on said bond are liable to the plaintiff for the amount of his loss and all damages.
“Wherefore it is by the court considered, ordered and adjudged that the plaintiff, J. K. Defries, do have and recover of and from the defendants, Farmers’ Mutual Fire Insurance Company of Malvern, Arkansas, J. E. Stanley, W. L. Knight, W. K. Smith, T. J. Fowler, J. W. Lee, W. A. Callis, E. 0. Kilpatrick, J. C. Minen, W. W. Bray, and R. J. Hodges, the sum of $1,000, the amount of the loss under said policy, 12 per cent, of said $1,000 as damages, and an attorney fee of $150, together with all the costs of this suit. ” .
The spring term of the Independence County Circuit Court continued in session thereafter until May 5, 1926, when the same was adjourned until court in course. On the 28th day of April, 1926, this action was instituted by the insurance company and its bondsmen above named against the defendant Defries to vacate the above .judgment. The plaintiffs in their complaint set up the proceedings on the policy by the defendants against the plaintiffs, resulting in the judgment. They alleged that the plaintiff insurance company was a mutual fire insurance company, based on the assessment plan; that the policy provides as follows: “Only one assessment can be made oii a member for one loss, and the company shall never be liable to any member on a loss for a greater amoutit than themembersingood standing and responding shall pay into the treasury when the assessment of said loss shall be made, which said member agrees to accept for said loss as provided in the by-laws.” They alleged that the policy provides that it shall be governed by the constitution and by-laws adopted by the company, and further, that, in case of loss, an assessment will be made against each member in the group, and whatever amount is collected from the membership in the group, after the assessment of said loss is made, shall be paid by the company to the holder of the policy. They alleged that the plaintiff in the original action, the defendant herein, ag’reed to accept whatever amount was collected from such assessment in full satisfaction of his policy, and the company was not to be liable for any further sum. They alleged that they signed the bond of the company to this effect only, that the moneys collected by said company under an assessment would be paid over to the person entitled to receive the same. They set up their answer to the original complaint, in which they denied that they had failed or refused to make an assessment, and denied that they had refused to pay over any moneys collected on such assessment and that any moneys were collected on such assessment. They set up that the plaintiff had' exercised diligence to find out from the clerk of the circuit Court the time the cause would be set for trial, and set forth the correspondence between the secretary of the company and the circuit clerk of Independence County concerning the setting of the cause for trial. They set up that, on March 30, the secretary of the insurance company at Malvern, Arkansas, wrote a letter to Oscar T. Jones, the clerk of the circuit court at Batesville, Arkansas. This letter is set forth in the complaint. It called attention to the number and style of the case, and asked the clerk to give information as to his manner of setting the docket, whether the clerk set the cases or whether they were set by the attorneys, and when the case would be set for trial. The secretary states in this lettér that the answer would be due the 15th day of April, and that he would be summoned on the Federal grand jury,' which would hold him until about the 24th of April, and asked whether the case would be called before that time. On the following day the secretary of the company received a letter from the clerk of the circuit court as follows: “Tour case not set. Service had not matured at the time of the setting of the docket last Saturday. ’ ’ On April 5, 1926, the secretary again wrote the clerk, asking him to send copy of the complaint so that the defendants could file an answer, and requesting' the clerk to watch the case and call the secretary when the same was set down, and to state the cost of filing the answer. The complaint states that a day or two after the letter of April 5, 1926, the secretary received a letter from the clerk containing copy of the original complaint, and stating that the filing of the answer would be ten cents, order twenty cents, and index ten cents. The plaintiff alleged that, after receiving this letter, the secretary wrote to1 the clerk, inclosing the answer to the original complaint, and sent the amount of costs for filing same. The plaintiff alleged that it relied on the request made of the clerk to notify it at its expense when the case was set for trial, if the court and .clerk determined to set the cause for trial at that term of the court. They alleged that, on the 21st of April, 1926, the secretary of the company called the clerk over the ’phone to ascertain whether the case would be set for trial; that the person to whom he talked stated that he was the deputy clerk, and that he would get the information and call the secretary over the telephone, which he failed to do. They alleged that plaintiffs were not informed of the day when the cause was set for hearing, nor of the day when judgment was entered against them, and if the clerk had informed the plaintiffs they would have had time to file their motion to set aside the judgment before the adjournment of the term of the court when same was rendered. They alleged that they received no notice of the- setting of the cause or of the judgment until April 26, 1926, when the secretary again called the clerk to know when the cause would be set, if at all, during the spring term. They alleged that the judgment obtained against them in the above manner was without notice and void, and a franc! upon their rights; that the plaintiff in the original suit was not entitled to any judgment at all, as shoAvn by their answer filed in the original suit; that, in any event, the defendant in this action, plaintiff in original action, was not entitled to recover attorney’s fee and penalty, since the insurance company was doing business on the assessment plan. The prayer of the complaint was that the judgment be set aside and that the cause bexset for trial on its merits.
The pleadings in the original cause were made exhibits, and likewise £he correspondence between Bray and the circuit clerk, and affidavits of W. W. Bray, secretary of the insurance company, and D. D. Glover, attorney of the plaintiffs, to sustain the allegations of the complaint that neither the plaintiffs nor their attorney had received any notice of the setting of the cause for trial at the April term of the court.
The defendants demurred to the complaint on the ground that the plaintiffs were not diligent in the prosecution of their suit, and that the facts stated were not sufficient to entitle the plaintiffs to vacate the judgment. The cause was heard upon the complaint, exhibits, and demurrer of the defendants, the judgment in the former case, and the court record showing that the court did not adjourn until May 5, 1926, and the admission of the attorney for the defendant that the letters, and telephone calls as testified to by the secretary of the insurance company in his affidavit and his statements in the complaint were true and correct. The court thereupon found that the demurrer of the defendant should be overruled, but the court found that the original judgment entered in the cause should not be set aside, and entered its judgment to that effect, from which '.judgment the plaintiffs duly prosecute this appeal.
■Section 1275 of C. & M. Digest provides: “The law docket shall be made out for each term of the court, and the actions shall be set for particular days, and so arranged by the clerk that the cases set for each day shall bo tried tvs nearly as may bo on that day.” The correspondence between Bray, the secretary of the insurance company, and the clerk of the circuit court of Independence County shows that, as early as March 30, 1926, and after the defendants in the original action had received notice of the filing’ of the action against them by J. K. Defries, the defendants, through Bray, requested the clerk to send them a copy of the complaint, and also to advise about the date that the case would be set down for trial. In answer to this request the appellants were notified, on March 31, 1926, by the circuit clerk that the case had not been set, as “service had not matured at that time.” Again, on April 5, the defendants in the original action, appellants here, through Bray, requested the clerk “to watch the case and to call them when the case was set down,” requesting him to give amount of cost of filing answer, and stating that he' would remit for same. A few days thereafter, before the convening of the circuit court, the clerk notified Bray of the costs, and' the defendants remitted the amount of such costs, and inclosed their answer. The record shows that the answer of the defendants was filed by the clerk and the costs thereof paid by the defendants on April 15, 1926,- after the spring term of the court convened. On April 21, 1926, two days after the judgment had been rendered, the defendants, through Bray, called the clerk to find out whether the case would be set for trial, and the person to whom he talked over the ’phone stated that he was a deputy clerk, and that he would get the information and call Bray over the ’phone, which he failed to do, and failed to inform the defendants in that cause that the judgment had already been entered. It is alleged that, if he had done so when requested, the defendants in that cause, plaintiffs here, would have had time to file motion to set aside the judgment for want of notice before the adjournment of the court for that term. They received no notice thereafter that judgment had been rendered until April 26, 1926, when Bray again called the circuit clerk over the ’phone to know when the case would be called, if at all, during that term of the court. The court orders show that the court adjourned from April 24 to May 1, 1926, and from May 1 to May 5, 1926, and on May 5, 1926, until court in course.
The appellants alleged that, under the above facts, the judgment entered against them was without notice, and a fraud on their rights.' Among the grounds specified in the statute for vacating the judgment after expiration of the term at which the same is rendered are the following: “For fraud practiced by the successful party in the obtaining of a judgment or order,” and “for unavoidable casualty or misfortune preventing the party from appearing or defending.” Section 6290, C. & M. Digest, subdivisions 4 and 7. Under the facts above set forth the judgment cannot be set aside on the ground of fraud. No fraud whatever was practiced by the successful party in obtaining the judgment. It does not appear that either the appellee or his attorney knew of the correspondence that the appellants had with the clerk concerning the .setting of the case. The record does not show that the appellee or his attorney did anything more than appear in court when the case was called for hearing’. The appellants had received due notice of the pendency of the action and had filed an answer in the cause. So far as the appellee and his counsel are concerned, the record shows ‘that the judgment was obtained by them during the regular course of the court proceedings.
Neither does the record show any unavoidable casualty or misfortune that prevented the appellants from appearing and defending the action. The appellants were not justified in relying’ upon any representation or promise of the. clerk, when the court was not in session, that he would notify them of the day when the case would be called for hearing'. The court not being in session, the clerk, in making these representations to the appellants, was not speaking for the court or for the appellee. The appellants must be held to have made the clerk their own agent and representative to ascertain and give them the information concerning the setting and calling of the case for hearing, and they relied upon snch information at their peril. It was certainly neither the fault of the appellee nor the court, at the hearing of the cause, that information concerning the correspondence between the appellants and the clerk of the court was not brought to the attention of the trial court. The failure of appellants to appear and defend the action manifestly was not an unavoidable casualty. If the appellants had not taken for granted that the clerk would notify them in advance of the day when the cause would be called and heard, they could and would, so far as the record shows to the contrary, have appeared when the case was called for trial and made their defense. The cause was not set for hearing when the clerk set the law docket for the spring term of the court, for the reason, as stated by the clerk, that service had not been had at that time. Thereafter court convened before appellants’ answer in the original cause was filed, and after same was filed and the cause was ready for hearing the court proceeded to call the case on the docket and to a hearing thereof at the court’s convenience. We cannot see that there was any unavoidable casualty in such proceeding which prevented the appellants from appearing at the hearing.
It is alleged in the complaint “that the appellants called the clerk on the 21st of April, 1926, to find out when the cause would be set for trial, if at all, during that term, and the party answering over the ’phone stated that he was deputy clerk, and that he would get the information and advise the plaintiffs, but he failed to do so, and that, if he had done so, appellants would have had time to file their motion to set aside the judgment for want of notice before the adjournment of the court and within the time prescribed by statute.” The above allegation is the nearest approach to an unavoidable casualty disclosed by the record. But this allegation falls short of proving an unavoidable casualty. The telephone call, according to the allegation, was on April 21, 1926. From the recitals of the court records it appears that the court adjourned until court in course on May 5, 1926. When appellants failed to receive the information sought from the clerk on April 21, 1926, proper diligence on their part required that they make further inquiry; and, if necessary, appear in the Independence Circuit Court before its adjournment and move the court for a new trial and to vacate the judgment in that cause, for the reasons which they now assert were grounds for vacating the same, and to press such motion at that term of the court. This they did not do. For aught that appears to the contrary, they could have done this by the exercise of proper diligence. They did file the complaint herein, and have summons issued thereon as an original action against the defendant, appellee, on April 28, 1926. But service was not had upon the defendant herein until May 13, 1926, which was eight days after the court had adjourned for the term. While the court was not in session on the day this complaint was filed, it was thereafter in regular session May the first. Instead of inviting the attention of the court to this pleading and asking that it be treated as a motion for new trial, or to vacate the judgment in the same cause, they elected to pursue the defendant, appellee, as in an independent action, and, by so doing, let the term lapse, and thus killed their only chance to haves the judgment set aside at the term when it was rendered. Therefore appellants do not show any unavoidable casualty, but they do show a lack of diligence.
In Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222, we held, quoting syllabus: “It is the duty of a litigant to keep himself informed of the progress of his case, and a party seeking relief against a judgment on the ground of unavoidable casualty, or misfortune, preventing’ him from defending, must show that he himself is not guilty of ne’gligence, and he cannot have relief if the taking of the judgment appears to have been due to his own carelessness.” See also Jackson v. Woodruff, 57 Ark. 599-604, 22 S. W. 566; Weller v. Studebaker Mfg. Co., 93 Ark. 462, 125 S. W. 129; Kohn v. Smith, 122 Ark. 74-77, 182 S. W. 533.
The judgment is therefore correct, and it is affirmed. | [
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Hart, J.
(after stating the facts). The circuit court was right in holding that the commissioners of the drainage ditch were not personally liable for the damage caused by the erection of the embankments in question; it was wrong in holding that the drainage district was not liable.
.It is claimed that the commissioners are individually liable because there was no legal authority for them to construct embankments, and because they had no authority to do anything after the construction of the drainage ditch was completed. We cannot agree with counsel in this contention. It is true that the object of the improvement district was to drain the lands within the boundaries of the district, and the general plan to do this was the digging of a drainage ditch. After the construction of the drainage ditch had been completed it was found that it was not fully adequate for the purpose for which it was intended, and the construction of the embankments across these sloughs was done by the commissioners in order to carry out the project of draining the lands within the boundaries of the district. It was thought that the damming up' of these sloughs would cause the water from above to flow down the drainage ditch, and not spread out over the lower lands, as it had done before. In aid of the proj ect, the lower end of the drainage ditch was deepened to a certain extent, but this was not sufficient to carry off the waters which had been impounded by the construction of the embankments. This caused the waters to flow back over the land of the plaintiff and to materially damage it in a permanent manner.
Section 3630 of Crawford & Moses’ Digest provides that the drainage district, after the completion of the drainage system, shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions, and of extending, widening or deepening the ditches from time to time, as it may be found advantageous to the district.
We think the authority here given includes the power to build the embankments in question for the purpose of turning the water into the drainage ditch in aid of the drainage system. As we have already seen, the erection of these embankments caused the water to flow back on the land of the plaintiff and to permanently damage it. This act of .the commissioners in building the embankments was a new taking or damage to the land of the plaintiff within the meaning of the Constitution, and, being in furtherance of the original plan of draining the lands of the district, the district was liable to the owner whose land was damaged, within the rule announced in Road Dist. No. 6 v. Hall, 140 Ark. 241.
Again, in Sain v. Cypress Creek Drainage District 161 Ark. 529, it was held that injury to lands from the construction and operation of a drainage project is within art. 2, § 22, of our Constitution, providing that no private property shall be taken or damaged for public use without just compensation. In that case the majority of the court held that the damage complained of was one which was in contemplation at the time the drainage district was created, and was taken into consideration by the board of commissioners in assessing the benefits and arriving at the damages suffered by the landowners by the construction of the drainage ditch. Hence they found that there was no change of plans subsequent to the assessment of benefits, and no additional taking or damage to .the property, as was the case of Road Dist. No. 6 v. Hall, 140 Ark. 241.
The writer wrote a dissent in that case, but it was based wholly upon the ground that practically the undisputed facts showed that there had been a new taking or damage to the property of the complaining landowners.
It sufficiently appears, from the testimony of the plaintiff and his witnesses, that the construction of the embankments across the three sloughs as they now exist was not a part of the plans of the original improvement. The plaintiff says that the embankments that were constructed by the contractors were for the purpose of impounding the waters so that they might float the boats used in digging the canal, or drainage ditch, and was not a part of the improvement. The commissioners admit that they strengthened and built the embankments higher than they were originally. They also admit that this was done nine months after the drainage ditch was completed, and it is fairly inferable that it was not a part of their original plans. Hence the court erred in holding that there was no liability on the part of the drainage district, and in directing a verdict in its favor. As we have already seen, the. commissioners did not act without legal authority in building the embankments, and, for that reason, there is no personal liability against them.
Section 3930 of Crawford & Moses’ Digest provides that, whenever any corporation authorized by law to appropriate private property for its own use shall have entered upon and appropriated such property, the owner shall have the right to bring an action against such corporation in the circuit court of the county in which the property is situated, for damages.
The suit in the present case was brought within the statutory period, and it results, from the views that we have expressed, that the circuit court erred in directing a verdict in favor of the drainage district.
Therefore the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Smith, J.
Appellants were tried and convicted in the coürt of a justice of the peace upon a charge of transporting intoxicating liquors, and duly appealed to the circuit court, where they were -again tried and convicted, and have prosecuted this appeal to reverse the judgment of the circuit court. For the reversal of this judgment they insist that the evidence is insufficient to sustain the verdict, and that the court erred in the admission and in the exclusion of certain testimony.
Three deputy sheriffs testified -that they saw appellants in front of a store in Locust Grove, and some of them appeared to have been drinking, and the officers suspected that appellants were transporting intoxicating liquors in the automobile in which they' drove out of the village. The officers followed in another car, and saw two or three of appellants leave their car at a place where there was a mudhole in the road and a cultivator near the road. Appellants drove on for about a quarter of a mile, and stopped their car, and the officers overtook them, and searched appellants’ car and the weeds around it, but did not find any liquor. The officers then retraced their course, and stopped at the mudhole where appellants had previously stopped. They found a half-gallon jug of whiskey at the edge of a cotton patch about eight feet from the road, and a sack containing some bottles. They crossed the road, and found another half-gallon of whiskey near the cultivator and another sack of bottles.
There was some conflict in the testimony as to the distance the officers were from appellants when they first stopped their car and the distance appellants had driven from that point when they were overtaken by the officers, but these conflicts presented questions for the jury. We think the above testimony warranted the jury in finding that appellants had placed the whiskey found by the officers near the road where appellants’ car had stopped, and, if they did this, they had transported liquor within the meaning of the law under' which they were convicted.
There was no error in permitting the officers to testify that some of the appellants appeared to have been drinking. This was not a mere expression of an opinion, as appellants contend, but was testimony concerning a fact about which any nonexpert might express his conclusion. Prewitt v. State, 150 Ark. 279, 234 S. W. 35.
Appellants, testifying in their own behalf, denied that they, or any of them, had been drinking, and they then offered to prove that they they had been arrested for being in a drunken or intoxicated condition on a public highway on the day in question, and had been acquitted of that charge by a justice of the peace, but the court excluded this testimony.
There was no error in excluding the testimony that appellants had been acquitted, of being drunk on a public highway. Such testimony would have involved the trial of a collateral issue. Appellants may have been drinking without being drunk. In the case of Simmons v. State, 149 Ark. 348, 232 S. W. 597, it was said:
“In Brooke v. State, 86 Ark. 364, 111 S. W. 471, the count had under review an ordinance of the city of Morrilton which made it a misdemeanor ‘for any person to appear in any public street in a drunken or intoxicated condition.’ In that case.the evidence showed that the defendant was drinking, and he showed some signs of the effect of strong drink, but he was attending to his own business in an orderly manner, and had not lost control of his faculties. The court held that the evidence was not sufficient to sustain the charge,- and we approved the following definition of ‘drunk’ taken from the Standard Dictionary: ‘Under the influence of intoxicating liquor to such an extent as to have lost the normal control of one’s bodily and mental faculties, and, commonly, to evince a disposition to violence, quarrelsomeness and -bestiality’ Some of the common effects of being under the influence of intoxicating liquor, or drunk, are there given, to-wit: ‘A disposition to violence, quarrelsomeness and bestiality.’ But these are by no means the only resrdts of exhibitions that may be included in the definition.”
The justice of the peace who acquitted appellants on the charge of drunkenness may have concluded that appellants were not “in'a drunken or intoxicated condition,” as defined in the case from -which we have just quoted, but such finding would not have contradicted the testimony of the officers that they thought appellants, or some of them, were drinking. They might have been drinking without reaching a “drunken or intoxicated condition. ’ ’
We find no error, and the judgment will be affirmed. | [
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Smith, J.
This appeal presents a controversy between the widow of Willis Stephenson and certain of his heirs over a tract of land in Benton County. Various findings were made by the court, and the respective interests of the parties were adjudged. The court found that the widow of Stephenson was entitled to homestead and dower, and'that all the parties took their respective interests subject to these marital rights of the widow. The appeal is from the finding that the widow was entitled to homestead and dower.
The rig’hts of the parties are referable to the following deed, so much of it being copied as is relevant to its proper construction:
“Know all men by these presents: That we, James Smith and Sophronia Smith, his wife, for and in consideration of the sum of four hundred dollars, to us in hand paid by May, Lelia, Thaddeus W-, Willis and Annie and the heirs of Willis Stephenson, do hereby grant, bargain and sell unto the said heirs of Willis Stephenson and unto their heirs and assigns forever, the following lands, lying in the county of Benton and State of Arkansas, to-wit (Description by metes and bounds of the lands conveyed, same being 142 acres).
“To have and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging.
“And we hereby covenant with the said heirs of the said Willis Stephenson that we will forever warrant and defend the title to said lands against all claims whatever.
“And I, Sophronia Smith, wife of the said James Smith, for and in consideration of the said sum of money, do hereby release and relinquish unto the said heirs of the said Willis Stephenson all my right of dower in and to the said lands.
“Witness our hands and seals on this 23rd day of February, 1878.
“James x Smith, mark
“Sopronia Smith.”
It was the opinion of the court below that the deed was void for uncertainty, in that the grantees were not sufficiently designated, but that, inasmuch as Willis Stephenson had paid the consideration, his children therein named being all infants, and had for many years occupied the land, he had acquired the title by adverse possession. That, the deed being void for uncertainty, only the grantor could question Stephenson’s title, and the grantor was barred bv adverse possession. Upon this finding and the assumption that Stephenson was seized of the land at the time of his death, the court proceeded to adjudge the respective interests of his heirs, and held that all had taken subject to the. rights of his widow to homestead and dower.. Stephenson was survived by ten children or the descendants of children, and certain of these heirs had executed to one of the sons a conveyance of their interests, but this son had died, and his interest in the land was apportioned to the other heirs.
We do not set out all these facts which are recited in the decree herein appealed from, as we do not agree with the court below in his construction of the deed. We do not think the deed was void for uncertainty. On the contrary, it is our opinion that the deed was valid as a conveyance to the children of Willis Stephenson who were named in the deed.
It is insisted that, if the deed is not held void for uncertainty, as the court below held, it should be construed as a deed to all the children, or descendants of children, living at the time of the death of Willis Stephenson, which event occurred on May 8, 1911. But we do not concur in that view.
It is true that the undisputed proof shows that Willis Stephenson paid the consideration named in the deed, as his children then living who were named as grantees were infants of tender age; but it is very clear that he did not have the conveyance made to himself.
The ]habendum clause reads as follows: “To have - and to hold the same unto the said heirs of the said Willis Stephenson and unto their heirs and assigns forever, with all appurtenances thereunto belonging.”
We must look to the preamble or the premises of the deed to determine who the “said heirs of the said Willis Stephenson” were, who, with their heirs and assigns, were to have and to hold the land forever, with all appurtenances thereunto belonging.
These grantees are named in the premises as “May, Lelia, Thaddeus W., Willis and Annie and the heirs of Willis Stephenson.” The words, “and the heirs of Willis Stephenson,” must be construed as descriptive of the persons previously named, as if the deed had read, “who are.the heirs of .Willis Stephenson.”
By the use of the word “heirs,” children may have been intended; but these children are named, and were persons in being. Certainly, there was a conveyance to May, Lelia, Thaddeus W, Willis and Annie Stephenson, and, if there was in fact an intention that children thereafter born to Willis Stephenson, should be included, that intention was ineffective and unavailing, because they were not in being at that time, and a deed to a person not in being is void for uncertainty.
“A deed made of a present estate to a party not living at the time of its execution is void. Where there is a reasonable doubt of either of the parties being in esse at the time the deed is delivered, his existence must be shown as an affirmative fact to render the conveyance operative.” 1 Devlin on Real Estate (Deeds), 3rd ed., § 123.
But the deed here under review was not void on that account, because it- named as grantees the five living children of Willis Stephenson, and the rule in such cases is that the conveyance operates to pass the title to the persons in being, to the exclusion of after-born heirs.
In the case of Tharp v. Yarbrough, 11 Am. St. 439, a deed was made to the “heirs of Robert A. Tharp,” and it was contended that the word “heirs” should be ■construed as meaning “children.” In construing this deed the Supreme Court of Georgia said: “There seems to be no difficulty in reaching the conclusion that the word ‘heirs’ in this deed did mean ‘children;’ but did it mean only the three then in existence? or will it extend to those who were born afterwards? We think the judge below ruled correctly. Every deed must have parties. This deed expressly defines who are the parties to it, viz: Cicero A. Tharp of the one part, and the heirs of Robert A. Tharp of the other part. A deed must not only have parties to it, but they must necessarily be in existence at the time of its execution, unless, by its own terms, it provides a beneficial interest for parties yet to be born. If Mr. Tharp had conveyed to the heirs, or to the children, of his brother, now born, or who may hereafter be born, it would seem clear the latter would take an interest under the conveyance when they came into life, but he did not so convey.” See also Miller v. McAlister, 64 N. E. 254; Tucker v. Tucker, 78 Ky. 503; Lillard v. Rucker, 9 Yerger (Tenn.) 64; Hall v. Leonard, 1 Pickering (Mass.) 27; Morris v. Stephens, 46 Pa. St. 200; Baird v. Brookin, 12 L. R. A. 157; Faloon v. Simshauser, 130 Ill. 649, 22 N. E. 835; Hogg v. Odom, Dudley’s Report (Ga.) 185; Davis v. Hollingsworth, 84 Am. St. Rep. 233, and note on p. 236; Hollis v. Lawton, 73 Am. St. Rep. 114, and note on p. 119; Roberson v. Wampler, 1 L. R. A. (N. S.) 318, and note on p. 319; Duffield v. Dufield, Ann. Cas. 1916D, 859, and note on p. 864; City Bank v. Plank, 18 A. & E. Ann. Cas. 869, and note on p. 871; Tinder v. Tinder, 131 Ind. 381; Brann v. Elzey, 83 Ky. 440; Campbell v. Everhart, 52 S. E. 201; Huss v. Stephens, 51 Pa. St. 282.
It appears therefore that the- deed set out above was not void for uncertainty, but was valid as a conveyance to the living children of iWillis Stephenson there named, and they therefore took the title to the property conveyed. This being true, Willis Stephenson was never seized of the land, and his residence there with his children did not make it his homestead. This being true, his widow did not take either dower or homestead in the land, and the decree of the court below awarding her these estates must be reversed, and the cause will bo remanded with directions to the court below to enter a decree denying her those estates.
It follows from what we have said that we do not concur in the decree of the court below adjudging’ that all the children of Willis Stephenson took title as his heirs, but, inasmuch as there was no appeal from any part of the decree except that awarding homestead and dower to the widow, and no other question is presented for review, we do not disturb..that part of the decree.
The Chief Justice concurs in the reversal as to allowance of homestead and dower, but holds that the deed included after-born children. | [
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Mehaeey, J.
The Interstate Packing Company is a corporation of Winona, Minnesota, and C. A. Linaker was a merchant of Pine Bluff, Arkansas. On the 21st day of February, 1925, they entered into the following agreement :
“Agreement made February 21,1925, between Interstate Packing Company, a corporation, of Winona, Minnesota, party of tbe first part, herein called the seller, and C. A. Linaker, of Pine Bluff, Arkansas, party of tbe second part, herein called the buyer.
“The seller agrees to and does hereby sell to the buyer, and the buyer agrees to and does hereby buy from the seller, packinghouse products made by the seller, and consisting' of smoked and dry salt meats, fresh meats, lard, pickled goods and offal, in the amounts and upon terms and conditions and for prices as hereinafter set forth.
‘1 The period of this contract is and shall be for one year from date hereof, and it is agreed that the buyer shall take and the seller shall furnish hereunder not less than two carloads of said packinghouse products during each month of said period. The buyer agrees that he will each week advise the seller, in due time for shipment, of the variety and amount of each of said products to be shipped by the seller to him..
“Delivery by the seller to the carrier at Winona, Minnesota, of products sold hereunder, consigned to the buyer, shall be delivered to the buyer, but the seller shall pay freight from Winona, Minnesota, to Pine Bluff, Arkansas.
‘ ‘ The price which the buyer is to pay and the seller is to receive for the merchandise aforesaid is to be the current price therefor, based on Chicago market, as fixed by the seller to its customers generally each week, with freight added (subject to discount as hereinafter provided), and the seller shall each week advise the buyer of such prices, which shall control and apply to all shipments hereunder until a change in price by the seller and advice thereof to the buyer, provided that the seller shall have the right to advance or reduce the price of such merchandise at any time by wire in accordance with any sudden or unusual fluctuation in the Chicago market. From the prices above specified the buyer shall be entitled, as to all goods shipped hereunder for which he pays the drafts at maturity, to discounts as follows, which shall he credited to the buyer by the seller as and when the drafts against such shipments are paid, and the seller will, on or about the first day of each month, send buyer a statement of discount credits for the foregoing month: Two per cent, on smoked and dry salt meats and lard; five per cent, on pickled goods; fifty cents per hundred pounds on fresh meats and offal.
“When and as merchandise is shipped hereunder the seller will make on the buyer one draft for one-half the price of each shipment, payable in 15 days from date, and one draft for one-half such price, payable in 30 days from date, to which drafts the seller will attach invoice and bill of lading, the same to be transmitted and presented to buyer through usual banking channels, and buyer agrees to accept said drafts upon presentation and to pay the same at maturity, and title to merchandise shipped shall not pass from seller to buyer until payments of drafts, as aforesaid. Upon acceptance of such drafts, bill of lading is to be surrendered to buyer.
“Any failure on the part of the buyer to order and accept at least two carloads per month of said merchandise, or to-accept or to pay any draft drawn as aforesaid, may, at the option of the seller, be taken to be a repudiation of this contract, and the seller may, if it so elect, cancel this contract as for breach thereof on the part of the buyer. ’ ’
Under this agreement goods were shipped by appellee to C. A. Linaker, and drafts were sent.
Linaker died on the 24th day of August, 1925, and at that time drafts were due and unpaid and several thousand dollars worth of the products shipped hy appellee to Linaker were on hand.
The Interstate Packing* Company filed suit in the chancery court of Jefferson County, Arkansas, on December 16,1925, alleging that the National Bank of Arkansas, a corporation organized and existing as a national bank under the laws of the United States, and George H. Linaker were appointed by the probate court of Jefferson County administrators of the estate of C. A. Linaker, deceased; that, on August 25, plaintiff was the owner of certain meats which were in the former place of business of C. A. Linaker in Pine Bluff, Arkansas, giving a detailed description of the meats and the value of each item, the total value of which was $5,557.97. Plaintiffs alleged that the administrators and the National Bank of Arkansas and George H. Linaker individually took possession of the meats, which were of the value of $5,557.97, and that the National Bank of Arkansas and George II. Linaker received $5,557.97 for said goods, and that the identical money which was the purchase price of said goods is now in the hands of said defendants.
The prayer was for judgment against the administrators and against them as individuals for the above amount, with interest and cost, and they asked that a trust be impressed upon the funds in the hands of said defendants in favor of the plaintiffs to the amount of judgment prayed. And that the defendants be ordered to pay the same over to plaintiff.
The defendants answered, denying the material allegations in plaintiff’s complaint, and alleged that all of the property taken over by them as administrators of the estate of Linaker, deceased, was the actual property of said estate,'and has been handled by them in due course of administration. That, if the plaintiff has any claim against the estate of C. A. Linaker, it should be filed with (hese defendants as administrators of said estate as a claim against said estate. Defendants also filed motion for bond for cost, alleging that plaintiff was a foreign corporation. Defendants also filed a demurrer, and the court treated it as a motion to transfer to the circuit court, and transferred the cause to the circuit court of Jefferson County.
The plaintiff, on November 27, 1926, filed bond for cost.
The court made the following findings of fact:
“That, on the 21st day of February, 1925, the plaintiff, Interstate Packing Company, a corporation, of Win- 011a, Minnesota, engaged in the business of packing and selling packinghouse products, - entered into a contract with one C. A. Linaker, of Pine Bluff, Arkansas, wherein and whereby the Interstate Packing Company contracted to sell to the said C. A. Linaker certain packinghouse products, said contract being set forth as an exhibit to the deposition of P. A. Jacobson.
“That, under the'terms of said contract, merchandise shipped thereunder was delivered to the said C. A. Linaker only upon the acceptance of two drafts for each carload of merchandise shipped, one draft evidencing one-half of the estimated purchase price of the car, being payable in fifteen days from date, and the other draft for one-half of the purchase price of said car, being payable in thirty days from date. That, upon the acceptance of said drafts, the bill of lading evidencing the shipment was delivered to the said C. A. Linaker, who then resold same in the course of his business, but said goods were not listed upon his books as assets of C. A. Linaker, nor was the debt therefor listed as a liability of C. A. Linaker, until after same had been resold. That, by the terms of said contract, the title to said merchandise did not pass from the Interstate Packing Company to the said C. A. Linaker until the payment of said drafts.
“That, on the 24th day of July, 1925, the Interstate Packing Company shipped to said C. A. Linaker one carload of merchandise for the estimated price of $5,210.45, drawing two drafts, one in the sum of $2,605.22 and the other for the sum of $2,605.23. Both of said drafts were accepted by C. A. Linaker upon presentation, one being-accepted for payment due August 10, 1925, and the other for payment due August 23,1925. The first of said drafts, maturing August 10, 1925, was duly paid. The second of said drafts, maturing August 23, 1925, has never been paid.
“That, on the 11th day of August, 1925, the Interstate Packing Company shipped another carload of merchandise to the said C. A. Linaker for the estimated price of $7,180.88, drawing two drafts, each for the sum of $3,590.44, which, upon presentation to the said C. A. Linaker, were accepted for payment due August 26, 1925, and September 10, 1925, respectively. Neither of these drafts have ever been paid. That, upon the acceptance of the drafts hereinabove mentioned, both carloads of merchandise were delivered to C. A. Linaker, who placed said merchandise in his wareroom and proceeded to sell from the same in due course of business, carrying same upon his books in the manner above noted. That all of the goods in said two cars were branded and kept physically separate from any other goods in the warehouse of Linaker.
“That, on the 24th day of August, 1925, one day after default in the payment of-the draft for $2,605.23, which was due and payable August 23,1925, C. A. Linaker died intestate in Jefferson County, Arkansas. • That thereafter, on August 27, 1925, the National Bank of Arkansas and Gr. H. Linaker, defendants herein, were duly appointed joint administrators of the estate of the said C. A. Linaker, deceased, and qualified as such. That, at the time of their appointment and qualification, there was in the wareroom of the said C. A. Linaker merchandise included in the above shipments of the agreed value of $5,748.28. That the National Bank of Arkansas and Gr. IT. Linaker, as administrators of the estate of C. A. Linaker, deceased, in good faith took possession of said merchandise immediately, and -procured an order from the probate court authorizing them to sell said property as perishable property belonging to the estate óf C. A. Linaker, deceased, and proceeded forthwith to sell the same, for which they received the sum of $5,748.28.
“The court further finds that, on'the 24th day of August, 1925, a few hours after the death of C. A. Linaker, one M. 0. Moore, who had been in the employ of C. A. Linaker, immediately wired the Interstate Packing Company that C. A. Linaker was dead. That, within the nest two or three days, and prior to the actual sale of said merchandise, telegrams were interchanged between the Interstate Packing Company and the said M. 0. Moore, which were exhibited to the administrators prior to the sale, from which it appeared that the Interstate Packing Company was asserting a claim of ownership to said merchandise. That, other than sending these telegrams to the said M. 0. Moore, the Interstate Packing Company made no effort, prior to the sale, to assert its rights, instituted no legal proceedings to recover said property, and made no formal demand on the administrators for the possession thereof, except in so far as was contained in a telegram to M. 0. Moore, marked Exhibit. E to his deposition, directing him to immediately sell said property for the account of the Interstate Packing Company, and not confuse same with the Linaker estate. That, during the time said telegrams were interchanged, the said M. 0. Moore was not in the employ of'the Interstate Packing* Company, nor was he in the employ of the administrators, but he subsequently assisted in making the inventory of the merchandise and assisted the administrator in selling and disposing of said merchandise. That the proceeds of said sale have at all times since then been in the possession of the administrators, who have held the same, claiming said funds as a part of the general assets of the estate of C. A. Linaker, deceased.”
There were no exceptions 'filed to the finding of facts, but the defendants excepted to the conclusions of law. And their first contention is that the court erred in holding that, upon the default in the payment of the draft maturing* August 23,1925, and the draft maturing August 26, 1925, the Interstate Packing* Company was the owner of and entitled to the immediate possession of the merchandise taken over by the defendants.
The contract itself expressly provides: “Title.to merchandise shipped shall not pass from seller to buyer until payments of draft as aforesaid.” It therefore appears that the parties contracted that the seller should-retain title, and the title was therefore in the seller, according to the express agreement of the parties. Even under a sale without any condition, where the seller does not retain the title, he has a right, as long as the merchandise is in the possession of the buyer, to bring suit and create a lien, and, when this is done, this lien is superior to any lien or claim thereafter created. But, where one retains title to the property sold, he may take possession of it at1 any time after condition broken, whether from the original bu3rer or from any person to whom it has been transferred, unless the seller has consented to the transfer or sale.
This court has often held that, in conditional sales, although the seller has the right to retake the property whenever there is a failure to pay for it, or when there is a violation of the contract which gives him a right to take possession, still the buyer has such an interest in the property, even though the sale is conditional, as that he may sell it or mortgage it. His sale or mortgage of the property, however, does not defeat the right of the seller to retake the property, unless, as we have said, the seller has agreed to the sale or mortgage.
Counsel relies on the case of Roach v. Whitfield, 94 Ark. 448, 127 S. W. 722, 140 Am. St. Rep. 131. In that case there was a conflict in the testimony, that on behalf of the appellant tending* to prove that the sale was absolute and not on consignment, and was to be disposed of by the consignee as their agents. The testimoity on behalf of the appellee tended to prove that she shipped the goods under a. consignment, and she had a written consignment agreement that, in such cases, she retain title for the purpose of securing the purchase price oifly. The appellant asked the court to instruct the jury, among other things, that, even if they found from the evidence that the goods were shipped on consignment and the title thereto was retained and that such goods were, without fault of defendants, destroyed b3^ fire, yet, if they further found from the evidence that such goods were delivered to the defendants at a fixed price, to be b3? them retailed in clue course of trade as merchandise, at any price fixed by them, and that title was retained by the plaintiffs solefy as security for the purchase price, and that, upon the pay niont of purchase price, title was to vest in the defendants, then the loss must fall on the defendants. The court refused to give that instruction, and the court'held that that was error, and held that, under the facts in that case, the title was retained in appellant only for the purpose of security, but for no other purpose. The court stated further that the facts detailed tended to show that, when the goods consigned to appellees were received by them, they became the principal debtors to appellant. The title passed immediately to them on the payment of the purchase price. This is a statement by the court of what the facts in the particular case showed, and, these facts being true, the court said at least appellant was entitled to an instruction on the specific facts as set forth in the above testimony, telling them that, .if they found the facts to be as recited, the loss must fall on appellees.
We do not think that the above case is controlling here. In fact, the facts are not similar. In the present case, as we have already said, the contract entered into by the parties expressly provided that the seller should retain the title. Of course it will not be contended that appellee, if the buyer had lived, could not, at any time after default was made, have taken possession of 'the goods. Indeed, the appellants themselves say that, if it was a conditional sale, appellee would have had to repossess himself by replevin of such merchandise as was in the possession of Linaker, or would have had to sue for the unpaid purchase money and attach such merchandise, if any, remaining in his possession. In other words, if it were a conditional sale and any of the property was in the possession of the buyer, the seller could bring replevin and take the property, or he could elect to make the sale absolute and attach the property in the hands of the buyer. This latter course he could pursue if it had been an unconditional sale, as long as the property or any portion of it was in the hands of the vendee.
We think a case more nearly like this than the case above referred to is the case of Bryant v. Swafford Bros., 214 U. S. 279, 29 S. Ct. 614, 53 L. ed. 997. In that case the court said: “We think it clear that the contract under which the goods were delivered to the Newtons was one of conditional sale. ’ ’ Citing cases and continuing, the court said: “There is nothing in the nature of this contract which would forbid the parties from entering into it if it was valid by the laws of the State where made. ’ ’
The above case was in bankruptcy, and the court said that, in bankruptcy, the construction and validity of such a contract must be determined by the local laws of the State, and that such a contract is a conditional sale, and valid ■ without record in Arkansas, and it was further stated that the trustee had no higher rights than the bankrupt.
If this had been an unconditional sale of the merchandise, and the buyer had died and his administrators had taken charge of it, the seller could not have created a lien, because, under such circumstances, he only has a right to create a lien while in the hands of the vendee. But in this case the title to the merchandise was in the seller, and he had a right, of course, upon default, to retake it from the buyer. And the administrators in this case have no greater right than Linaker himself had. Moreover, the appellee wired, and, before there was any sale of the property, the administrators were advised of the claim of ownership by the seller, and they also knew that this merchandise was kept separate from the other merchandise of the buyer.
This case is distinguished from the case in 94 Ark. also, not only because the seller retained title and reserved the right upon default to declare a breach of the contract, but also because in this case the buyer not only did not keep these goods with his other merchandise, but he did not charge himself, but, as Moore testified, later kept the stock physically separate and listed the stock as assets of the packing company, and charg'ed the debt as a liability only upon the sale of it. That' Linaker considered it a consignment. Linaker certainly regarded it as a conditional sale. If he did not so regard it, there would be no reason for him keeping the stock separate and no rea son for his keeping the books in the manner in which he did.
“Under a conditional sale, by the terms of which the seller reserves the title td the goods until payment of the price, no property passes to the buyer, notwithstanding the delivery, until performance of the condition as to payment. Nevertheless the buyer acquires a defeasible interest in the property, which, before default, he may sell or mortgage, and which may be attached by his creditors. So, too, he may maintain an action against one who wrongfully invades his possession. The seller may sell or mortgage his interest in the goods or in the contract, or it may be attached by his creditors. The provision that .title shall remain in the seller is, however, for his benefit, and he may elect to treat the sale as absolute and as passing the property in the goods to the buyer.” 35 Cyc. 667.
The seller treats the sale as absolute when, instead of bringing suit for the possession of the property, he brings a suit for the debt and attaches the property. He can pursue this remedy or the other, because the retaining title to the property is for his benefit, and he may waive it if he wishes to do so. But, where property is sold and the seller retains title until paid for, such property as remains in his possession may be taken at any time if it is not paid for, and, where the property is kept separate, as in this ease, he may take it from the administrators of the buyer.
We think the court was correct in holding that the Interstate Packing Company was the owner and entitled to the immediate possession of the merchandise, and that the acts of the defendants amounted to conversion of said property, and that the proceeds received by said defendants represent the property which belonged to the Interstate Packing Company, and that it is therefore entitled to the proceeds of said sale in lieu of being .able to recover said property.
We do not deem it necessary to cite further authorities, because this court has repeatedly upheld contracts for conditional sale of property, and there can be no question but tliat this was, under the express terms of tlie contract, a conditional sale, and that the property was kejit separate, and the particular property purchased from the packing company and' sold by the administrators was identified as the property sold under this contract, and we think that the circuit court correctly declared the law, and the judgment is affirmed. | [
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Humphreys, J.
This is a suit for specific performance of a-contract to sell land. It was alleged in the bill filed in the Northern District of the Chancery Court of Prairie County by appellee against ÍW. S. Griffith, in his lifetime, that he entered into a written contract with W. S. Griffith for the sale of certain real estate in said county, which contract was signed by both of them, whereby it was agreed that W. S. Griffith should pay appellee $1,600 for the tract of land, of which $100, as earnest money, was deposited in the bank at Des Arc; and that the balance was to be paid one-third cash, one-third in one year, and one-third in two years, with interest at the rate of 8 per cent, per annum; that W. S. Griffith breached the contract by refusing to perform same, and that appellee sustained damages in the sum of $600 on account of said breach. The bill contained an alternative prayer for specific performance or for damages.
W. S. Griffith was a nonresident, and had $600 on deposit in the Bank of Des Arc, which was attached in the suit. "W. S. Griffith died after the institution of the suit, and the cause was revived in the name of Y. -O. Purvis, as special administrator of his estate, who filed ail answer denying the execution of the contract and praying for the return of the $600 which had been paid.
The cause was submitted upon the pleadings and testimony introduced by the parties, which resulted in a decree for specific performance, or, in lieu thereof, a judgment for damages in the sum of $600.
Prom that judgment an appeal has been duly prosecuted to this court.
The record reveals that the contract of sale and purchase of the land was verbal; that $100 was deposited in the bank at Des Arc, as earnest money; that appellee was to mail Griffith an abstract of title to the land, which he did; that Griffith agreed to return to Arkansas and close up the deal by accepting a deed, paying one-third of the purchase price to appellee in cash and executing notes and mortgages to him for the balance of the purchase money; that subsequently he became ill, and refused to return and consummate the deal.
Appellant contends for a reversal of the decree upon two grounds: first, that the contract was within the statute of frauds and not enforceable; and second, that the partial performance did not take the case out of the statute of frauds.
Appellee contends that appellant waived the statute of frauds as a defense by failing to plead the statute or to object to the testimony proving an oral contract; and also contends that the partial performance was sufficient to take the case out of the statute® of frauds.
(1). It was unnecessary to plead the statute of frauds to obtain the benefit thereof in the instant case. Appellee based his suit upon a written contract, the execution of which appellant denied; however, it devolved upon appellee to prove a valid contract in order to recover. McCorkle v. H. K. Cochran Co., 144 Ark. 269; Cook v. Cave, 163 Ark. 407; Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571. When appellee shifted the proof from the alleged written contract to the establishment of a verbal contract, it was incumbent upon him to show that tbe verbal contract was binding and enforceable upon appellant’s deceased.
(2). Appellee attempted to show that the verbal contract was binding and enforceable 'by showing a partial performance thereof. He introduced testimony revealing that $100 was deposited by appellant’s intestate, as earnest money, and that he mailed him an abstract of title to the land. This was not a sufficient partial performance to take the case out of the statute of frauds. Moore, v. Gordon, 44 Ark. 334; Stanford v. Sager, 141 Ark. 458.
On account of tbe error indicated the decree is reversed, and the cause is remanded. | [
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Hart, C. J.,
(after stating the facts). At the outset it may be stated that appellee first instituted proceedings against appellant before the Railroad Commission of Arkansas for an order requiring appellant to permit appellee to continue the joint use of the wye tracks at Hoxie, Arkansas, under the agreement of September 27, 1895. Upon a record which contains practically the same facts as the present one, the Arkansas Railroad Commission ordered appellant to permit appellee to continue the joint use of its wye tracks at Hoxie, Arkansas. Appellant prosecuted an appeal to the Pulaski Circuit Court, and that court confirmed the order of the-Arkansas Railroad Commission, upon the evidence and pleadings before said commission. Upon the appeal to this court, it was held that the action of the Railroad Commission amounted to the exercise of judicial functions, and that it had no such power. Hence it was held thatit could not determine the rights, of the two railroads under the contract of September 27,1895, relating to the joint use and maintenance of the wye tracks at Hoxie, Arkansas. It was pointed out that the parties must enforce their rights under the contract in the courts, and that the court having proper jurisdiction of the matter could, by appropriate orders, preserve the rights of the parties until the case was finally disposed of. Hence the judgment of the circuit court was reversed, and the cause was remanded with directions to it to quash the order of the Railroad Commission. St. Louis-San Francisco Ry. Co. v. Missouri Pacific Rd. Co., 156 Ark. 259, 245 S. W. 806.
The circuit court obeyed the mandate of this court, and subsequently suit was. commenced against appellant by appellee to compel the enforcement of its rights under the contract of September 27, 1895, and the prayer of the complaint is that appellant should he enjoined from interfering with the agreement existing at the time between the parties to this suit with reference to the wye tracks at Hoxie, Arkansas.
Counsel for appellant seek to reverse the decree under the general rule that one party to a continuing contract of mutual and dependent covenants, cannot require the other to perform executory stipulations while he fails or refuses to perform the contract on his part. Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341. Hence it is contended by counsel for appellant that the failure of appellee to maintain and keep in repair the south leg of the wye under the contract of September 27, 1895, releases appellant from compliance with the contract.
There are exceptions to this general rule, growing out of the nature of the thing to be done and the conduct of the parties. Under the terms of the contract of September 27,1895, it was. provided that, so long as the party of the first part, which was at that time the owner of the railroad now operated by appellee, shall maintain the south leg of the said wye, it shall be entitled to use both legs of the wye as well as the necessary tracks to enable it to transport engines and cars from the south to the north leg of the wye, or vice versa. The chancellor was justified in finding that appellee and its predecessor in title complied with this requirement of the contract until the first part of June, 1917. On this point a division engineer testified in positive terms that appellee and its predecessor in title had maintained the wye tracks under the contract from June, 1912, until June, 1917, and we do not think there is any satisfactory contradiction of his testimony. J. H. Quay, a section foreman' of appellant, testified that he had maintained the south leg of the wye for appellant during the years 1918 to 1920 and up to the time he was testifying. He said that he did this under instructions given him by his road-master. We think, however, the witness was mistaken on this point. No doubt he did the work under instructions from his roadmaster, but he was not doing it for appellant but for the United States Government until the 28th day of February, 1920. The division engineer testified positively that, during the period of government control, the United States maintained the wye tracks. Thus it will be seen that it cannot be claimed by appellant that appellee failed to maintain the south leg of the wye until at least after the 28th day of February, 1920.
The record shows that, before this time, appellant was demanding additional compensation from appellee for the use of the wye under the contract of September 27, 1895,. and appellee was at all times denying the right of appellant in this respect. The record also shows that the managers of the respective roads recognized, in April, 1918, that there was no chance of an agreement as to the construction to be placed upon the contract under consideration. It is true this was during the period of government control, but the same persons were retained as managers of the road during this period. In September, 1920, appellant gave notice to appellee of its intention to terminate said agreement. The matter has been- continually in process of litigation of some kind during these years. Appellee contended for its rights under the contract during- all this time and wrote to appellant that it would pay the cost of maintaining the south leg of the wye. It will 'be remembered that, according to appellant’s own evidence, it had taken charge of the tracks during the year of 1918 and ever since had maintained them. This action, together with the attendant circumstances, showed a tendency on its part to refuse to allow appellee to maintain the wye during these years, and it cannot now complain that appellee has failed to comply with the terms of the contract because the failure was caused by the refusal of appellant to allow appellee to repair and maintain the south leg of the wye. Its conduct in doing so, coupled with its repeated demands during these years to -appellee for an additional contract, warranted the court in finding that appellee was not guilty of such failure to perform the contract on its part as would release appellant from compliance with it.
The decree will therefore be affirmed. | [
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Humphreys, J.
Appellant brought suit in the chancery court of St. Francis County against appellee to set aside the execution of a written note for rent 'for the year 1921, on lands owned by Dr. W. A. Winter, as a voidable preference under § 60b of the Bankruptcy Act, as amended in 1910. The note was signed by Davenport Brothers, who had leased lands from the owner, Dr. W. A. Winter, and made payable to J. T. Fargason Company, on a written.request of Dr. Winter.
It was alleged in the bill that on March 7, 1921, the date the note was executed, Dr. W. A. Winter was insolvent ; that it was executed within four months of the date of the filing of Dr. Winter’s petition in bankruptcy; that the payee in the note was thereby enabled to obtain a greater per cent, of his debt than Dr. Winter’s other creditors of the same class; and that said company had reasonable cause to believe the execution and acceptance of the rent note would result in a preference in its behalf.
Appellee filed an answer denying the allegations of the bill.
The cause was submitted upon the pleading's and testimony introduced by the respective parties responsive to the issues, which resulted in a dismissal of the bill for the want of equity, from which is this • appeal,;
.After a careful reading of the testimony we have concluded that .the preponderance thereof reflects, that W. A- Winter was insolvent at the time he directed his lessee, Davenport Brothers, to execute the note to J. T. E’argason Company, covering the rents on Lis lands for the year 1921, and that said company had knowledge of sufficient facts to put it upon notice as to the financial condition of Dr. W. A. Winter at the time the note was executed.
Having reached this conclusion, the only remaining question to be determined is whether the transfer of the unmatured rents on the lands to J. T. Fargason Company, to be applied as part payment on valid mortgages upon the lands, constituted a preference under the bankruptcy act. The record reflects that Dr. W. A. Winter had executed two mortgages upon the lands, one to Mrs. S. A. Patrick for approximately $10,000, and one to J. T. Fargason Company for $11,032.45, which were subject to foreclosure when the rent note was executed. Both mortgages were about to be foreclosed when Davenport Brothers, the lessee of the lands, prevailed upon Dr. W. A. Winter to allow them to execute a rent note to J. T. Fargason Company, due the following fall,, covering the rents on the lands for 1921, to be applied, when collected, as payments upon said mortgages, and thereby prevent a foreclosure.
The effect of executing the note to J. T. Fargason Company was to transfer the rents to .it to be applied upon the mortgage indebtedness, and was tantamount to placing the mortgagee in possession of the mortgaged lands. The mortgagee has a right to the possession of the mortgaged property when default is made in the payment of the mortgage indebtedness, and, in this State, may maintain an action for the possession thereof. Reynolds v. C. & B. Co., 30 Ark. 520; Logan v. Bridge Co., 157 Ark. 525. It is also the law of this State that the mortgagee in possession is chargeable with the rents on the mortgaged property, and is required to credit them on .'the. mortgage, indebtedness. Green v. Maddox, 97 Ark. 397; Brickey v. Carter, 119 Ark. 543. As we understand the bankruptcy act, it in no wise interferes with or alters the status of the mortgagee under the State laws where the mortgaged property is situated. In re Hurley, 185 Fed. 851; Humphrey v. Tatum, 198 U. S. 91.
Appropriation of unmatured rents on mortgaged property to the payment of the secured indebtedness by the mortgagee in possession could not diminish the estate of the bankrupt to which the general creditors, are entitled. The trustee in bankruptcy, by proper proceedings, could sell the mortgaged property belonging to the bankrupt, subject to the mortgage indebtedness, and subject the equity therein to payment of the claims of general creditors, but the equity therein is all he could reach as against a mortgagee in possession. In the instant case the mortgagee was in constructive possession of the mortgaged property, and entitled to appropriate the rents to the payment of his mortgage indebtedness, at the time the petition in bankruptcy was filed. We do not think therefore that the transfer of the rents to the mortgagee, in the manner adopted, constituted a preference within the meaning of the bankruptcy act..'
■ The decree is affirmed. | [
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Smith, J.
Appellee, wbo is a physician, recovered judgment for the amount of a doctor’s bill for professional services rendered appellant’s brother. The statute of frauds was pleaded as a defense, and its applicability presents the principal question in the- case.
Tlie suit was begun in the court of a justice of.the peace, where judgment was rendered for the defendant, appellant here, and a motion was filed by her to dismiss the appeal in the circuit court for the reason that the appeal had not been prosecuted and perfected within the time and manner required by law. This motion was overruled, and upon a trial before the court sitting as a jury the judgment was rendered from which is this appeal.
Appellant insists in her brief that the appeal had not been perfected as required by law; but since the filing of the brief in which this question was raised the record has been amended by stipulation of the parties. From this stipulation it appears that judgment was rendered in the justice court on January 18, 1940, and that a transcript of the proceedings in the justice court, including affidavit and bond, for appeal, were filed with the clerk of the circuit court on February 7, 1940. The justice did not then attach a verifying certificate to the transcript, but this he did on September 30, 1941, when the motion to dismiss was heard.
Section 8475, Pope’s Digest, prescribes the prerequisites for an appeal from the judgment of a justice of the peace, and these are three in number. First, an affidavit must be filed to the effect that the appeal is not taken for the purpose of delay, but that justice may be done; Second, the appeal must be taken within thirty days after the judgment was rendered, and not thereafter; Third, a bond to perform the judgment must be given. However, the section of the digest next following — No. 8476 — provides that either party may appeal without giving bond, but that such appeal shall not operate as a suspension of the proceedings upon the judgment appealed from, and no certificate shall be given stating that an appeal has been allowed, and no execution issued upon the judgment shall be recalled.
All these jurisdictional requirements were complied with, and the motion to dismiss the appeal on account of the failure of the justice to attach a certificate to the transcript was properly overruled.
■ The statutes contemplate that proceedings in the court of a justice of the peace may be, and frequently are, informal. Sections 8481 and 8482, Pope’s Digest, are a part of the same act (Act 135 of the acts of 1873, pages 430 to 458), of which § 8475 was also a part, and by § 8481 it is provided that if the requirements of § 8475 are substantially complied with, “the cause shall be deemed to be in court and be subject to be tried anew upon its merits.” And when § 8475 has been complied with, § 8482 requires the justice to so amend his record as to preserve the appeal. Guy, McClellan & Co. v. Walker, 35 Ark. 212; Young v. King, 33 Ark. 745; Martin v. Tennison, 56 Ark. 291, 19 S. W. 922; Railway Co. v. Deane, 60 Ark. 524, 31 S. W. 42. The rule announced in these cases has been applied in many later ónes.
Appellant pleads the second paragraph of § 6059, Pope’s Digest, which is a part of our statute of frauds, and provides that “No action shall be brought ... To charge any person, upon special promise to answer for the debt, default or miscarriage of another, . . . unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.” Many cases have construed this section, a number of which are cited by the digestor in his note to this section.
The testimony out of which this question arises is to the following effect. Albert Vincent, who was appellant’s brother, became ill at her home. Their cousin, Hilda Cox, who resides with appellant, was sent to appellee’s office, and requested appellee to call on the sick man. There is a conflict in the testimony as to whether Hilda made this request as the agent of appellant or as agent of the sick man. Appellee testified that he was told that appellant had sent for him, and that he visited the sick man at her request. Appellee further testified that after he had called and had examined the sick man “She (appellant) asked how her brother was, and I said he was pretty sick, and she said, ‘Here is $2. It is not much. But it will help some, and take care of him the best you can. When it is over I will pay you the bill’.” Appellant admitted paying the $2, but testified that it was given to appellee to buy gasoline to contact the county health officer, which statement appellee categorically denied. Appellant denied having agreed to pay the bill, and was corroborated to some extent by the testimony of Hilda Cox. On the other hand, appellee was corroborated by testimony of a collecting agent who interviewed appellant in regard to the payment of this bill. The testimony is so conflicting that it may not be reconciled; but this conflict was resolved in appellee’s favor by the finding and the judgment of the court.
Appellant insists that the testimony of appellee shows nothing more than a mere promise to pay her brother’s bill, and that the promise was, therefore, a collateral agreement, and within the statute of frauds, and cases such as Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592, 115 S. W. 380, are cited for the reversal of the judgment. We think, however, that the testimony warranted the court in finding that appellant’s promise to pay was not a collateral — but an original — undertaking, and is ruled by cases such as Cauthron Lumber Co. v. Hall, 76 Ark. 1, 88 S. W. 594, where it was held that a contract whereby defendant undertook to pay for goods to be furnished his employees (and the rule would be the same in the case of an agreement to render services) is an original undertaking, and not within the statute of frauds as a promise to pay another’s debt. Here, as we have said, the testimony supports the finding that the agreement was not to pay the bill of the sick man, but was an original undertaking to pay for those services, which were rendered, not on the credit of the sick man, but on that of his sister, and in consideration of her promise to pay therefor.
In the reply brief the question is raised for the first time that there was no change of the venue from the court of the justice of the peace in which the suit was brought to 'that of the justice who tried the case. Two answers may be made to this contention. First, that no such point was made in appellant’s original brief. It was held in the case of Groves v. Keene, 105 Ark. 10, 150 S. W. 575, (to quote a headnote) that “Appellant can not raise in his reply brief a question not raised below nor in his original brief.” See, also, Commonwealth Public Service Co. v. Lindsay, 139 Ark. 283, 211 S. W. 9. A second answer is that appellant filed in the court of the justice who did try the case a written denial of liability. This was, of course, an entry of appearance, which dispenses with any inquiry as to the sufficiency of the process by which the suit was brought into the court where appellant’s answer was filed.
No error appears, and the judgment must be affirmed. It is so ordered. | [
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McHaney, J.
On March 18, 1925, the appellant issued and delivered to B. B. Alsobrook, son of appellee, a policy of life insurance, insuring the life of said B. B. Alsobrook in the sum of $2,000, in which appellee was named as beneficiary, which policy contained the following provision: “If the insured shall commit suicide within one year from the date hereof, while sane or insane, the company will be liable only for an amount equal to the premiums paid in cash thereunder.”
On Miarch 1,7, 1926, less than one year from the date of said policy, said B. B. Alsobrook, having theretofore been a mail carrier, was arrested by a United States Marshal on a warrant charging him with embezzlement of United States mail. This was about 6:30 in the morning. The marshal informed Alsobrook that he would take him to Pine Bluff on this warrant, and Alsobrook asked permission of tlie marshal to get a car to go in, stating- that he could do so in a few minutes, wliieli permission was granted by the marshal. Pie left the marshal, and went immediately to the room of his friend, Bale Garrett, and borrowed his car, stating- that he was going to Pine Bluff, and appeared to be in quite a hurry. A short time later he drove the car to the home of his friend, J. W. Crosley, and there borrowed a double-barrel breech-loading- sixteen gauge shotgun, stating* that he wanted the gun to go hunting, and was in quite a hurry, promising to bring- the gun back that evening. Crosley cautioned him about the gun, as it was loaded. Alsobrook was perfectly familiar with the gun, as he had often borrowed it before. The gun was placed in the rear end of the Ford touring car. Alsobrook was not seen thereafter until about 7 :30 that morning, when he was found on a by-road, which was not frequently traveled, not being- a regularly traveled road, lying beside the car, across the stock of the gun, with his head to the rear of the car, dead. Ilis face was bloody, and a Mr. Lea, who discovered him, although well acquainted with him, did not at first recognize him. He made an examination, and found that Alsobrook was shot in the mouth, the shot ranging from the roof of the mouth toward the back of the head, without any visible wounds or powder-burns on the outside of his mouth or his face anywhere; that the skull was torn to pieces by the shot, the back of his head being-soft and mushy, but the skin on the outside of his head was not broken, none of the shot passing- through the head to the outside; 'that one of his front teeth was missing. On an examination of the gun it was found to be the same gun he had borrowed from Mr. Crosley, the right-hand barrel of which had been fired, and the hammer on the other barrel cocked,' and that the barrel of the gun wa-s about 28 inches in length. It could not be told whether the roof of the mouth showed powder-burns, on account of the excessive amount of blood. The front door of the car was open,- and there were no tracks around the car except his own, and no sign to show that any one else had been there, that there had been a struggle-with a coid ending enemy, ryor were there any powder-burns on his clothing. The territory he was found in was hot good for squirrel hunting, and it was the closed season on quail. It was shown that Alsobro-ok was a man of a happy disposition, and the witnesses who saw him on this fateful morning agree that he showed no signs of worry or trouble. Expert evidence was introduced to show that powder from a sixteen-gauge shotgun will burn anywhere from six to eight feet from the. muzzle of the gun, and that the shot begin to scatter immediately after leaving the barrel; that the closer the barrel of the gun is to the object, the more the powder would burn, and the narrower the spread of the load. The expert answered a hypothetical question that, assuming that the entire load of the shot entered the roof of the mouth with no powder burn, wound or mark on the face, and the whole top of the head was soft, and stated that in his opinion the gun was in the deceased’s mouth at the time of its discharge.
At the conclusion of the evidence appellant requested the court to instruct the jury to find for the appellee in the amount of premiums paid by the insured, $96.12, and costs to the time of filing the answer, offering to confess judgment for that amount, and for the appellant for the costs incurred subsequent thereto, which the court refused to give, and submitted the case to the jury on appellee’s theory of an accidental death, which returned a verdict against appellant for $2,000, and it has appealed.
We think the court erred in refusing to give appellant’s requested instruction No. 1. Under the clause of the policy already quoted, the company’s liability was limited to the amount of premiums paid by the insured in case of suicide within one year from the date of the policy. We think the undisputed evidence, in fact all the evidence, clearly establishes the fact that the insured committed suicide, and that it overcame the presumption of law against suicide and the presumption that he was killed accidentally, rather than by suicide. As was said by this court in the case of Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742, cited with approval in New York Life Ins. Co. v. Watters, 154 Ark. 569-570, 243 S. W. 831: “In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was self-inflicted; it is presumed to have been accidental until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being*.” Here we think the contrary does appear, and that it is undisputably shown that death was intentionally self-inflicted. And, as was said in the case of Watters, supra, “after a careful consideration of the facts and circumstances in the instant case, we are unable to account for the death of the insured upon any other reasonable hypothesis than suicide. ’ ’ And, as was again said in the same case, “reasoning upon the undisputed physical facts in the case, we are unable to evolve any reasonable theory by which the insured could have been accidentally shot.”
It was shown conclusively, we think, that, unless the barrel of the gun had been in Alsobrook’s mouth at the time it was fired, he could not have received the wound he did receive without also receiving a wound on the outside of the face, and, if the gun were close enough, would have been burned by. the powder. We think the muzzle of the gun must, of necessity, have been in the insured’s mouth at the time it was fired. And, taking into consideration his location, the fact that no other person had been about there, the fact that he had .just been arrested, charged with a felony, and all the other facts and circumstances heretofore set out, we think the conclusion is irresistible, and much stronger even than the Watters case, that he committed suicide.
The judgment will therefore be reversed, and judgment will be rendered here against appellant for $96.12. | [
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Hart, J.,
(after stating the facts). At common law, judgment notwithstanding the verdict could only be granted before judgment was entered upon the verdict, and the motion was based upon the record proper alone. The granting or denying the motion therefore depended upon the pleadings, but it is claimed that, by judical relaxation of this rule in this State, if the evidence is undisputed, and shows as a matter of law that judgment should be granted, the court will grant the judgment notwithstanding a verdict in favor of the other party. Scharff Distilling Co. v. Dennis, 113 Ark. 221, and Coleman v. Utley, 153 Ark. 233.
Reliance is placed by counsel for the plaintiff upon § 6275 of C. & M. Digest, providing that, where special damages are given by statute, and it appears by the verdict of the jury that such special damages are recoverable, the court shall render judgment for them. We do not deem it necessary to decide whether or not this statute is applicable to cases of this sort. Even if it should be held applicable, the statutory damages must have been asked for before judgment was entered upon the verdict of the jury. In the instant case the motion was not made until after judgment was entered upon the verdict of the jury, and it was therefore too late, even if the statute is applicable.
We now come to the question of whether a new trial should have been granted under the general rules of practice. This cannot be done by the appellate court unless the evidence is practically conclusive against the verdict. It is the duty of the circuit court to grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence.
On the other hand, it is the duty of this court to uphold the verdict if there is any evidence to sustain the verdict under any view of the law applicable to the case. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428. Now it cannot be said that the undisputed evidence showed that the plaintiff was entitled to a verdict of $300. There was no dispute between the parties as to the amount of wages due the plaintiff and as to the fact that he was discharged by the defendant without being paid; but there was a sharp conflict in the evidence as to whether he asked for his wages to be sent to Delight, Arkansas, at the time he was discharged from the employment of the defendant. It is true that he so testified and that his testimony was corroborated by that of other witnesses.- On the other hand, the witnesses for the railroad company testified that he made no such request, and that the money was in due time sent to the station agent at North Little Rock, where the services were performed by the plaintiff, and that his wages would have been paid him if he had come there and requested payment. In other words, it appears from the testimony introduced by the defendant that he was not entitled to the penalty or statutory damages provided by § 6275 of Crawford & Moses’ Digest.
The circuit court denied the plaintiff’s motion for a new trial, and, for aught we know, may have done so on the ground that the weight of the evidence showed that the plaintiff was not entitled to recover anything except the amount of the wages due him. In this view of the matter it could not have made any difference that the jury returned a verdict for the plaintiff in an amount greater than his wages; for this was a matter which did not work to his prejudice and of which he could not complain.
It follows that the judgment of the circuit court must he affirmed. | [
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Hart, C. J.,
(after stating the facts). It is sought to uphold the judgment of the circuit court upon the ground that Buchanan did not file any motion for a new trial, and that there is therefore nothing presented for review here, under our rules of practice. We cannot agree with counsel for the defendants in this contention. This court has held that neither a motion for a new trial nor a bill of exceptions is necessary where the error sought to be reviewed appears from the judgment.record itself. Burns v. Harrington, 162 Ark. 162, 257 S. W. 729. In Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002, it was held that, where there'was no motion for a new trial in an action for mandamus, the consideration on appeal will bo. limited to errors on the face of the record.
In the case at bar the record itself recites that the defendants, although duty served with notice as required by the statute, wholly made default, and the case was submitted on the verified petition of the plaintiff. The plaintiff alleged that the defendants, commissioners of' the street improvement district, had wholly failed to file with the city clerk a statement showing all collections and money received and paid out, with proper vouchers for all such payments, as required under the provisions of § 5718 of Crawford & Moses’ Digest. This court has held that, under this section of the statute, boards of commissioners in municipal improvement districts are required to file annual statements with the city clerk in which city such improvements have been ordered made, showing all collections and money received and paid out, with proper vouchers for all such payments. Boullioun v. Little Rock, ante, p. 489. The complaint of the plaintiff and the judgment itself constitute the judgment roll, and show that the defendants failed to comply with the mandatory duty provided by the statute. Therefore the error appears from the face of the record, and no motion for a new trial was necessary.
In so holding, we are not unmindful that oral testimony was introduced. As we have already seen, it also recites that the defendants made default. Hence the only reasonable presumption is that .the oral testimony was introduced by the plaintiff in support of the allegations of his petition. The petition shows that it was duly Verified by the plaintiff. Hence proof was not necessary to establish its allegations. It would be unreasonable to hold that oral proof introduced by the plaintiff was for any other purpose than to establish the allegations of his complaint, and, no proof being necessary for-that purpose, the oral evidence had no place in the case; and the case stands here-as if there had been judgment upon the complaint after the defendants had made default. In this, state of the record, the error complained of appears upon the face of the record itself, and no motion for a new trial was necessary.
In this connection it may be stated that the plaintiff alleged that he was the owner of real property within the district, and had a right to enforce the performance of the duty required of the defendants under the statute. In Moses v. Kearney, Clerk, 31 Ark. 261, it was held that, where the writ of mandamus is sought for the enforcement of a public right, common to the whole community, it is not necessary that the relator should have a special interest in the matter, or be a public officer; the statute, however, requires that the proceeding shall be in the name of the State.
The result of our views is that the circuit court erred in not granting to the plaintiff the writ of mandamus as prayed for, and the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Smith, J.
Appellee brought suit under the Federal Employers’ Liability Act to recover damages on account of the alleged negligent killing of E. L. Eogers, while employed as a brakeman by the appellant railroad company, on the night of September 6, 1921.
Eogers was the head brakeman on a” freight train running from Stuttgart to Jonesboro, and his train had been ordered to take the passing track about one mile north of Stuttgart for the purpose of giving the right-of-way to a passenger train. Eogers was last seen alive by the engineer of the train, swinging on the ladder of a boxcar about five-lengths from the engine, with his lantern in his hand. At that time he was on the east or right side of the train, and his mangled body was found on the left or west side of the train, where he was next -seen by any of the witnesses who testified in the case. How, when or for what purpose Eogers crossed over the train or under it is -one of the controlling facts in the case.
It is the theory of the defendant railroad company that, in some unexplained way, Eogers fell or was knocked from the train while it was pulling in on the passing-track. In support -of this theory the defendant urges the following facts: The train whs 63 cars in length, and Eogers’ duty was at the head or front of the train, near the engine, and he had no duty to perform at the rear of the train, and it is not affirmatively shown that he was performing any duty there. As the train pulled in on the mssing track, it was discovered that there was a leak in the airline running under the cars, and Mitchell, the conductor, discovered a car where this condition existed, and directed Yeargan, one of the brakemen, to repair or adjust this leak. There 'is no affirmative testimony that there was any other leaking air valve in the train. Bogers had opened the switch to the passing-track, and was last seen near the engine, riding the train as it pulled into the passing-track. No member of the train crew saw him go to the rear end of the train, and no one knew that he had done so until his body was found. Indeed, it is the theory of the defendant railroad company that he liad not gone there at all, but had fallen from the train, or crossed under it, and had been run over and mangled, and that the train passed on over his body until the engine was near the north end of the passing-track, thus leaving Bogers’ body at the rear of the train when it stopped. In further support of this theory it is pointed out that Bogers’ foot was found 32 fail lengths north of the place where the body was found, thus indicating that it had been caught on the wheels and the amputated foot had been carried along the moving train until it finally fell from the wheel. Plaintiff admits that the foot was found the distance stated from the body, but insists that this fact does not tend to show that Bogers was not killed by the second movement of the train, that is, after the train had come into the passing-track and had started to pull out of this track on to the main line, and that the foot hung on the brakebeam or other attachment of the trucks until the train started to leave the next morning, when it was jostled loose and fell to. the ground, when the car was moved 32 rail lengths north of where the hodj^ was found.
The testimony shows that, when a freight train stops, it is the duty of the brakemen to look for hot boxes, leaking air valves, broken brakebeams, or other trouble with the train equipment, and it is the theory of the plaintiff that the leaking valve which Conductor Mitchell told brakeman Yeargan to repair was not the only leaking-air valve, and that, when Bogers causht the car near the enaiue. he went over to the west, or left, side of the train, and dropped off the car on which he was last seen riding. and there waited for the oars to pass by, as the train rolled through the passing-track, searching for a leak; that Yeargan repaired the leak pointed out to him by Mitchell, which was near the middle of the train, and Rogers, seeing Yeargan on the car where the known leak existed, permitted the train to pass on until another leak was discovered. The presence of a leak was discoverable by the hissing sound made. No leak was discovered by Rogers until about the fifteenth car from the rear of the train passed, and Rogers caught this car and rode it until the train stopped, and then went under the train from the west side of the train to repair the leak, as Yeargan had done to repair the one near the center of the train.
On behalf of the defendant railroad company it is insisted that this is all surmise and conjecture, and that there was no testimony upon which the jury could find the facts so to be. One reason for this insistence is that only one leak was found, and that was the one which Yeargan repaired.
We do not think, however, that this theory is mere surmise. On the contrary, there is substantial testimony upon which to base it. One significant fact is that, although it is insisted that only one leak was admitted to exist 'by the train crew who testified on behalf of the railroad company, there was great difficulty in moving the train on to the passing-track, and difficulty was also experienced in starting the train as it moved to pull out of this track, and the witnesses testified that this resulted from the brakes locking on account of escaping air. Another circumstance even more significant is that, when the body of Rogers was found, his hat and lantern were found near his body in the center of the track on which he was killed. There were no bruises about Rogers’ body above his waist, except a- small scratch on his forehead which did not break the skin. The hat, a straw one, ■ was undamaged, and the lantern, which was also undamaged, was setting upright, although it was extinguished. The earth was disturbed where the hat was found in a manner which looked as if it had been.done by one’s heel.
These circumstances tend strongly to refute the theory that Rogers had fallen between the cars, and the jury was warranted in finding that these circumstances support the theory that Rogers was engaged in repairing, or had just completed repairing, a leak under the car where he had been working.
It will be borne in mind that no one saw Rogers killed, yet he was killed, and the testimony establishes the fact that he was an efficient and faithful' servant, thoroughly cognizant of his duties, and thoroughly familiar with the rules under which trains operated, and one of his f ellow-brakemen testified that he was a man who always did his part.
• We are unable therefore to say that the finding by the jury that Rogers was, in fact, engaged in repairing a leak was mere surmise or conjecture.
In the case of St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, we said: “In actions for damages on account of negligence, plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred. ’ ’
It is very earnestly insisted that plaintiff’s instruction numbered 1, which summarized the theory upon which a recovery was sought, was erroneous, and prejudicial. It reads as follows: “In this case, if you find from a prenonderance of the evidence that the deceased, E. L. Rogers, was injured while in the employ of the defendant as a brakeman, assisting* in the operation of a freight train from Pine Bluff to Jonesboro, Arkansas, and that, while said train was standing on the sidetrack at Stuttgart. said E. L.‘Roa*ers, in the performance of his dutv, went between two of the cars in said train to fix the air line on said train, and that, while he was so engaged, the engineer carelessly and negligently, and without warning to the said E. L. Rogers that he was about so to do, started said train and ran the .same over the said E. L. Rogers and injured him, and that, as a result of said injuries, the said E. L. Rogers thereafter died, and that the said engineer thereby failed to exercise ordinary care to avoid injuring the said E. L. Rogers, and that the act of the engineer in starting said train (if you find from a preponderance of the evidence that he did so start the train) was the proximate cause of the injury, and that the deceased at the time was exercising ordinary care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff, and assess damages at such a sum as will, from the evidence, fully compensate for the injuries received.”
Specific objections were made to this instruction:
(1) . That there was no evidence tending to show that Rogers went between any two cars of the train to fix an air-line.
(2) . That there was no evidence tending to show that it was the duty of the engineer to warn Rogers before starting the train, other than by giving the signals shown to have been given.
(3) . That the failure to give the signals as shown . by the evidence would not have been the direct or proximate cause of the injury.
(4) . That there is no evidence to show that Rogers was exercising any care for his own safety.
(5) . That there is no evidence tending to show that there was any defect in any air-line.
A discussion of these objections will dispose of the princiual questions raised on this appeal.
We think it was not mere speculation or conjecture for the jury to find, from the facts herein stated, that Rogers, in the performance of his duty, had gone under a car to fix the air-line.
Upon the second objection to the instruction it may be said that the testimony shows that an operating rule of the railroad company prohibited the engineer from moving’ the train unless and until some member of the train crew signaled him so to do. Had Eogers not been killed, it would have been his duty to open the switch at the north end of the passing-track to admit the passage of the .train on to the main line, and it would have been the duty of the end brakeman to close this switch. The fireman himself opened this switch, being furnished a key thereto by the engineer for that purpose. No signal was, in fact, given to start the train, although the engineer and fireman testified that they looked down on the west side of the train, which was the fireman’s side, and saw a man with a lantern advancing towards the engine. This man was brakeman Yeargan, but the engineer and fireman supposed it was Eogers, and that he was coming to the end of the switch, and that they saw a motion of the lantern Yeargan carried which they mistook for a signal, although they virtually admitted, on their cross-examination, that they were mistaken in assuming that a signal was given. At any rate, Yeargan, the man seen advancing with the lantern, testified positively that he gave no signal,, so the jury was warranted in finding that no signal was given for the train to start. The testimony shows that there was trouble with the air-line. This was evidenced by the difficulty in moving the train, and the testimony further shows that the existence of such trouble would be registered on a gauge in the engine. After tibie train had been standing for ten or fifteen minutes, the engineer blew four blasts of the whistle, which was a signal to the crew that the engineer was awaiting orders, and after doing this, and after seeing Yeargan come up the track, the engineer blew two blasts of the whistle, which was a signal that he was about to move forward.
We think, from this testimony, -the jury was warranted in finding that there was trouble with the air-line, and that the engineer knew this fact, and should have known that an effort would be made to remedy this trouffie. Indeed, the fireman testified that, after waiting about ten 'minutes for a signal, he said to the engineer: “They have all been busy back there, and I will line the switch up,” and if it be true, as the jury might have found from the testimony recited, that the engineer knew that the train crew were engaged about the train, then the jury was warranted in finding that the engineer should have given warning that he was about to start the train, especially so if he had received no signal to start it.
As to the objection that the failure of the engineer to signal that he was about to start the train was not the proximate cause of the injury, it may be said that, if Rogers was, in fact, engaged in repairing a leak at the time he was killed, the starting of the train was the proximate cause of his death, as he had the right to assume that the engineer would not start the train until he was signaled so to do. Of course, if a signal had been given to start, obedience thereto would have exonerated the engineer from the charge of negligence, and the question which would then have been presented would have been whether the signal to start was negligently given. But, as the train started without any signal so to do, we think the jury was warranted in finding that this negligent act was the proximate cause of the injury.
As to the objection that there was no evidence that Rogers was exercising any care for his own safety, it may be said that the jury, in determining this question, might have concluded that Rogers was in the exercise of due care, in that he was performing a duty incumbent upon him as brakeman, and that it was not negligence for him to be engaged in the discharge of this duty, inasmuch as it was his duty to open the switch for the train to leave the passing-track, a fact known to the engineer, and that he had the right to assume that no other member of the train crew would attempt to discharge this duty of his without knowing why he did not do so himself.
As to the last objection, that there was no evidence that there was any defect in the air-line in the rear of the train, where Rogers was killed, we think it appears, from the testimony set out above, that the jury might have found -this was not mere speculation or conjecture, It is true, Conductor Mitchell and rear brakeman Crowder testified that there was no such defect, that the inspection made after the injury disclosed none, but their testimony at the trial is not in harmony with the testimony given by them on this subject in depositions taken before the trial, and we cannot say that it was arbitrary for the jury to refuse to accept as true their testimony at the trial, that there was no leak in the rear of the train for Eogers to fix. Besides, Eogers might have finished the job of adjusting the leak which called him. under' the train before he was killed.
The court gave an instruction on the question of contributory negligence, to which the defendant objected on the grounds that the instruction did not correctly define that defense, and also that no such issue had been raised by the pleadings. We do not think either objection is well taken. The instruction is in a form which has frequently been approved by this court, and we think no prejudicial error was committed in giving the instruction on that subject, although the defendant did not plead contributory negligence. The answer alleged that the negligence of Eogers was the sole cause of his injury. Of course, if this were true, there was no question of contributory negligence. But the jury might have found that the railroad company was guilty of negligence, in which event the question would naturally arise whether Eogers was not also guilty of negligence contributing to his injury, and it was not therefore improper for .the court to declare the law of that subject.
The defendant asked an instruction numbered 9 to the effect that, if the jury found that it was not the duty of the engineer to learn or know where Eogers was, and that, before starting the train, the engineer gave two distinct blasts of the whistle, and that such blasts were the usual and well-known signals that the train would start, and that ample time was given, after so blowing the whistle, for Eogers to have gotten into a place of safety, that there was no negligence on the part of the engineer in sfarting the train.
We think no error was committed in refusing this instruction. If the engineer had no right to start the train without a signal, and if it was negligence so to do, then it could not be said as a matter of law that merely blowing the whistle absolved the act of starting the train without a signal of its negligent character. It will be observed that the instruction did not impose the requirement that Rogers heard or should have heard the whistle.
An instruction numbered i3, requested by defendant, embodied this same idea; but this instruction which was given, was modified to impose the requirement that deceased heard the whistle, or, by the exercise of ordinary care for his own safety, should have heard it. We think no error was committed in thus modifying the instruction. Without this modification the engineer could move his train in violation of an operating rule of the company that he should not do so except upon signal, and be excused from the charge of negligence, if he, in fact, gave a signal that he was going to do so in time for the persons who knew the significance of the signal to .reach places-of safety Ly exercising reasonable care to do so, whether they heard the signals or not. This is not the law.
In instruction numbered 5, given at the request of the plaintiff, the jury was told, if they found for the plaintiff, that “you will also assess further damages for such a sum as will reasonably compensate for the physical pain and mental anguish suffered and endured by Rogers as a result of said accident, if any, from the time of the alleged injury until his death.”
The specific objection made to this instruction, in addition to the one that there was no evidence entitling plaintiff to recover, was that if, after Rogers was injured, he was conscious to any extent, such consciousness continued but for a few moments, and his expressions of pain and suffering were practi.callv contemporaneous with his injury and death, there could be no separate award on that account.
The court gave on this subject, at the request of defendant, an instruction numbered 10, reading as follows: “If you find from the evidence that the time between the injury and death, of Rogers was but a few minutes; that he was conscious during any part of such time, and experienced pain and suffering, but that this period and the pain and suffering were substantially contemporaneous with his death and were incident to -it; that the injuries sustained were such as to necessarily result in death, and that death did follow in close, natural and necessary sequence, notwithstanding there may have been moments of sensibility, then you cannot find any separate verdict or award any separate amount on account of such pain and suffering.”
This instruction numbered 10 conforms to the law as thus announced by the Supreme Court of the United States in actions for damages under the Federal Employers ’ Liability Act, in the case of St. L. I. M. & S. R. Co. v. Craft, 237 U. S. 648, 59 L. ed. 1160, 18 R. C. L., title Master and Servant, § 326, and it would, of course, be erroneous to give an instruction in conflict with it. We think, however, the two instructions may be read together, and that, when this is done, there is no conflict between them. The plaintiff’s instruction told the jury that there may be a recovery for conscious pain and suffering, and this is permitted'under the Federal statute. The defendant’s instruction numbered 10 modifies this statement by advising the jury that there can be no recovery if such pain and suffering is contemporaneous and incidental to • death. ’ The defendant’s instruction dealt only with the exception when such a recovery would be denied, and it will therefore be regarded as a modification of the plaintiff’s instruction. It would have been a better practice to have combined the two into a single instruction stating the rule and-the exception thereto, but this was not requested.
It is also insisted that there was no testimony to support the finding that Rogers suffered consoiouslv. But we are unable to say that this was not a question for the jury. Bogers lay mangled for some minutes before he was discovered. He was found by rear brakeman Crowder after that employee had left the caboose to. ascertain the cause of the delay in starting the train. When Crowder found Bogers, he reported Bogers’ condition to the conductor, who ordered Crowder to out loose a refrigerator car, or a freezer, as the train crew called it, near the head of the engine, and to back it down to where Bogers was for the purpose of'putting Bogers on the cot which had been procured, and carrying him back to Stuttgart for medical treatment. The testimony is to the effect that, when the train crew came up to Bogers, he appeared to be suffering. He was asked how he had got hurt, but he made no reply. The conductor testified as follows:' “When I first reached Bogers, and before I started to find Yeargan, he raised himself up to a sitting position, and I caught him by the shoulders and spoke to him, and asked him how he got hurt. He looked at me, but spoke no word. He sort of wrenched himself out of my hands and turned over on his right side. Then he raised up again to a sitting position. I spoke to him again, and again asked him how he got hurt. He just looked at me, and never did say a word. Then he turned over on his right side and exclaimed, ‘Oh, Lord!’ ”
Other members of the crew testified to substantially the same effect, and we cannot say therefore that there was no testimony that Bogers did not suffer any pain except the expiring agony of death.
At the conclusion of the argument the court gave an oral instruction, to which the defendant objected. The bill of exceptions recites that Mr. Pace, of counsel for plaintiff, “then requested the court, since objections had been made by Mr. Lamb, attorney for the defendant, to the oral statements to the jury by the court, that the court withdraw these statements from the jury and let the jury decide the case noon the written instructions that had heretofore been read to the jury. Thereupon the court agreed to do this, and said to the jury: ‘I will read you again the written instructions, which are the rules of law that shall govern you in your deliberations in this case, and they are the only instructions that you are to consider in the case.’ The court then read again the written instructions given in the case. Mr. Lamb then stated: ‘I want the oral instructions written out and read to the jury, and then have the court to tell the jury that they are not to consider them as part of the instructions in the case.’ The court said: ‘I have told them that the instructions as given them now are the only instructions that they are to consider in this case.’ Mr. Pace said: ‘You mean by that that these last instructions are the only ones that they are to consider in this case?’ The court said: ‘Yes, sir; and I also told them, in the last statement made, and I now tell them, that the instructions I just read to them, and the evidence in this .case, is the only guide they shall consider in arriving at their verdict in this case.’ After the jury retired, Mr. Lamb stated to the court: ‘And the court refuses to recall the jury and tell them that the oral instruction is specifically withdrawn?’ The court answered: ‘They were withdrawn bv the declaration of' the court to the jury heretofore made.’ ”
The defendant then excepted to the action of the court in refusing to recall the jury and state to them specifically that the oral instruction had been withdrawn.
We think it sufficiently appears, from the recitals of the record set out above, that the oral instruction given by the court had been withdrawn and that the case was submitted to the jury under the written instruction only, and that this removed anv prejudice there may have been in having given the oral instruction.
Numerous exceptions to the giving and to the refusal to give other instructions are argued; but, as they relate to questions which have been frequently nassed upon by this court, we do not discuss them. It suffices to say that we find ho error in the particulars stated.
The case .is a close one on the facts, but, considered in its entirety, we think that the inferences could be drawn from the testimony recited raising the issues herein discussed for the decision of the jury, and, as we find no prejudicial error, the judgment is affirmed. | [
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Grebnhaw, J.
Appellee, Dan Futrell, brought a replevin action against appellant, Bay Harper, in a justice court of Howard county, seeking to obtain possession of a 1939 model six-foot Frigidaire. No complaint was filed, the basis of the action being the affidavit executed by appellee stating, among other things, that he-was the owner thereof and entitled to its immediate possession, and that same was in the possession of appellant. Upon trial in the justice court appellee was awarded the possession of the refrigerator.
■ An appeal was prosecuted to the circuit court. No written pleadings were filed in this case by either party, other than the affidavit. The jury in circuit court returned a verdict in favor of appellee for the possession of the refrigerator or its value in the sum of $75, upon which judgment was entered. Motion for new trial was filed and overruled, from which is this appeal.
Evidence adduced on behalf of appellee showed that he was the owner of the refrigerator and sold it to appellant on May 10,1940, for the sum of $180.80, of which sum $30.80 covered the finance charges. A conditional sales contract was executed on that date whereby title was retained in appellee until the purchase price, including finance charges, was paid in full. Five dollars was paid on the purchase price on the date of the execution of the contract, and no further payments were ever made on the Frigidaire.
Appellant admitted purchasing the refrigerator from appellee, but denied executing the conditional sales contract, and testified that he purchased the refrigerator for the sum of $116 on March 23,1940, executing a check for $25 at that time in part payment, and that thereafter he paid the balance due in full, including sales tax, in two separate payments.
Alfred Glasgow, an employeé of appellee, testified that he saw appellant execute the conditional sales con tract and signed same as a witness. Expert testimony was offered to the effect that the signature on the conditional sales contract was not appellant’s signature, and similar testimony was offered to the effect that it was his signature.
The conditional sales contract in question was introduced in evidence, showing the purchase' price bf the refrigerator was $150 and the finance charges amounted to $30.80. It further shows that a down payment of $5 was made, leaving a balance due of $175.80, to be paid at the rate of $5.86 per month.
The contract provided that “Title to said property shall not pass to the purchaser until said amount is fully paid in cash.” It further provided that: “If the purchaser defaults in complying with the terms hereof, or the seller deems the above property in danger of misuse or confiscation, the seller or any sheriff or other officer of the law may take immediate possession of said property without demand. . . . The seller may resell said property so retaken at public or private sale without demand for performance. . . . upon such terms and in such manner as the seller may determine; . . . From the proceeds of any such sale the seller shall deduct all expenses for retaking, repairing and selling such property, including a reasonable attorney’s fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser.”
In his motion for a new trial appellant assigned a number of errors. He contends that the court erred in refusing to give his requested instruction No. 4, which reads as follows: “You are instructed that if you find from a preponderance or greater weight of the testimony that the defendant, Ray Harper, did in fact execute and deliver to plaintiff the contract in evidence, and you further find that the said contract bears a greater rate of interest, or charge for credit, than ten per centum per annum, the contract is void and your verdict should be for the defendant.”
The court did not err in refusing to give this instruction. This court has held that finance charges in con nection with the sale of property under a conditional sales contract are not paid for a loan of money, but are a part of the purchase price which the purchaser agreed to pay, and that there is no usury in a transaction of this kind. See Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. 2d 1111.
Appellant also assigns as reversible error the giving of instruction No. 1 over his general objection and exception. This instruction reads as follows: “You are instructed that if you find from a preponderance of the evidence that the defendant purchased the Frigidaire from the plaintiff and executed the purchaser’s agreement therefor, and you further find that he has not paid plaintiff the purchase price, then your verdict will be for the plaintiff for the possession of the Frigidaire or its value. ’ ’
The verdict of the jury reads as follows: “We, the jury, find for the plaintiff for the possession of the refrigerator or the sum of $75 as value thereof.” The attorney for appellant immediately upon the return of this verdict and before the jury was discharged from consideration of the case objected to the verdict for the reason that it did not fix the balance due under the conditional sales contract, as required by the statute. The court overruled his objection, and an exception was saved.
The statute in question, § 11388 of Pope’s Digest, reads as follows: “In any action in a justice court, or circuit court of this state, where it is attempted to foreclose any mortgage, deed of trust or to replevy, under such mortgage, deed of trust or other instrument, any personal property, the defendant or defendants in said action shall have the right to prove or show any payment or payments or set-off under such mortgage, deed of trust or other instrument, and judgment shall be rendered for the property or the balance due thereon, and the defendant may .pay the judgment for the balance due and costs within ten days and satisfy the judgment and retain the property.”
This statute is applicable in a case of this kind. Under its provisions it was error to instruct the jury that if they found for the plaintiff they would find for possession of the refrigerator or its value. The jury should have been instructed that if they found for the plaintiff for the possession of the refrigerator they should also find the balance due thereon, in which event appellant would have had the option of paying the balance due within ten days and retaining the refrigerator. Such an instruction was not given.
In the case of Shaffstall v. Downey, 87 Ark. 5, 112 S. W. 176, the jury returned the following verdict: “We, the jury, find in favor of the plaintiff a return of the property in question, to-wit: one bay mare or its value, $105, and we further find that the defendant is due the plaintiff $25.” Judgment was there entered in accordance with the verdict. This court, in reversing that case, held that the lower court erred in the form of judgment entered; that the plaintiff was entitled to possession of the mare only for the purpose of foreclosing the mortgage, and that judgment should have been rendered for the possession of the property or the balance due on the mortgage, in accordance with the provisions of § 6869 of Kirby’s Digest, now § 11388 of Pope’s Digest. See, also, Fore v. Chenault, 168 Ark. 747, 271 S. W. 704.
Instruction No. 1, given on behalf of the plaintiff over the general objection and exception of defendant, was an incorrect statement of the law and was inherently wrong, under the facts in this case, and therefore the general objection to this instruction was sufficient. In the case of Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. 2d 916, this court said: “It is also contended by appellee that a general objection to this instruction is not sufficient. We do not agree with appellee in this contention. If an instruction is inherently wrong, an incorx’ect statement of the law, as instruction number one in this case is, a general objection is sufficient.”
Appellee contends that he was not seeking to recover the property under the terms of the conditional sales contract, and that § 11388 is, therefore, not applicable. However, it is undisputed that appellee sold appellant this refrigerator, and that at the time of the sale all of the purchase price was not paid. Appellee introduced in evidence the conditional sales contract retaining title in him, and his right to recover was predicated upon that contract. Under these facts it is clear that the conditional sales contract was the basis of appellee’s cause of action, and, under § 11388 of Pope’s Digest, appellant was entitled to have the jury instructed to find the balance due on the purchase price of the Frigidaire in the event they found appellee was entitled to recover.
Having reached the conclusion that the giving of plaintiff’s instruction No. 1, and refusing to instruct the jury to find the balance due on the refrigerator in the event they found for plaintiff, constituted reversible error, we deem it unnecessary to discuss the other assignments of error relied on by appellant for a reversal of this case, as they are of such character that they no doubt will not arise upon a retrial.
The judgment is, therefore, reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellees brought this suit against appellant in the circuit court of Ckawford County to recover damages in the sum of $461.49 for a car of potatoes shipped from Wister, Oklahoma, to Minneapolis, Minnesota, instead of Indianapolis, Indiana, upon several alleged grounds of negligence, all of which were abandoned except the allegation that appellant negligently failed to divert the car to Indianapolis while enroute. To this ground of alleged negligence appellant inter posed the defense that the shipment was governed by rules of the Interstate Commerce Commission, which pro: vide that “a request for diversion or reconsignment must be m'ade or confirmed .in writing, and that orders for diversion or reconsignment which specify that either rate is to be protected will not be considered as obligating carriers to protect other than the lawful rate in these rules. ’ ’
The undisputed testimony in the case was to the effect that the request to divert the shipment was oral, and that there was no written confirmation thereof. Based upon this testimony, 'appellant asked for a peremptory instruction, which was refused, over appellant’s objection and exception. The cause was submitted to a jury upon the testimony and instructions, resulting in a verdict and consequent judgment in favor of appellees for the full amount sought to be recovered, from which an appeal has been duly prosecuted to this court.
Appellees attempt to sustain the judgment on the theory that the tariff contained in the rules of the Interstate Commerce Commission governing the diversion of carload shipments enroute does not apply to perishable products, such as potatoes, onions, etc. They say that fresh or green fruits, fresh or green vegetables (including potatoes and onions) and fresh berries and melons are. excepted specifically from the tariff or rules. We do not so interpret • the tariff or rules. The exception referred to by appellees relates to rates and charges and not to diversion of shipments enroute. A request for diversion in shipments must be either in writing or confirmed in writing.
In Keogh v. C. & N. W. R. Co., 260 U. S. 156, 43 S. Ct. 47, 67 L. ed. 183, in discussing the legal rights of a shipper against an interstate carrier, the Supreme Court of the United States said:
. “The rights, as defined by the tariff, cannot be varied or enlarged by either contract or tort of • the carrier (citing numerous authorities). This stringent rule prevails because otherwise the paramount purpose of Congress — prevention of unjust discrimination— might be defeated.”
In Missouri Pacific v. Wellborn & Walls, 170 Ark. 469, 280 S. W. 18, this court held (quoting syllabus):
“The rights of a shipper as against an interstate carrier are measured by the published tariff filed with the Interstate Commerce Commission, and the rights as defined by the tariff cannot be varied or enlarged by either the contract or tort of the carrier.”
On account of the error indicated the judgment is reyersed, and the cause is dismissed. | [
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McCullough, C. J.
This is an action at law instituted by appellees, E. A. Rolfe, Joe Campbell and Burt Gray, against appellant, F. W. Parker, to recover possession of a stationary engine and a lot of stave-mill machinery. Rolfe claims title to the engine and Campbell claims the other machinery involved in the action. Bach of them bases his respective claim upon an alleged reservation of title in a conditional sale of the property. The causes of action are entirely separate, but no objection was raised below and none is raised here as to that feature of the case. Gray does not claim title to any of the property nor to 'any interest therein, and there is no reason why he should have been made a party; however, there is no objection raised on that score. Counsel for appellant frankly disregards all technical objections and asks that the case be determined on its merits. There was a trial before the court sitting as a jury, and the finding was in favor of each of the appellees, Rolfe and Campbell.
Appellees Campbell and Gray were copartners, engaged in the operation of a stave-mill, and, as such copartners, were the owners of the stave-mill machinery (other than the engine) involved in the controversy. They purchased from Rolfe the engine in controversy under a conditional contract of sale whereby the title was retained by Rolfe until the purchase price should be paid.
In the year 1918 Campbell sold out his interest in the copartnership to Gray, and retired from the firm. There was a written contract between Campbell and Gray, describing the partnership property covered by the contract, which. consisted of a large quantity of staves and other manufactured timber on the yard, and also all of the mill machinery, fixtures, etc., described in detail, and a list of notes and accounts due to the copartnership. The contract recited a cash consideration of $15,000, payable $4,500 cash in hand and the balance in seven unequal installments, evidenced by notes, the last of which was for the sum of $500. The contract contained a recital that “it is understood that the property herein conveyed shall be and remain in the said J. M. Campbell until all of the said notes are fully paid, including interest upon the same.” The mill and other property were then situated at Cotton Plant, in Woodruff County, and afterwards Cray formed a partnership with appellant Parker, and the machinery in controversy and other remaining property of the old copartnership became the property of the new firm. It was moved to Louisiana and operated there for a time, and then brought back to Arkansas, and the mill was put in operation by Parker in Desha County, appellee Cray having passed out of the firm.
According to the testimony adduced, Cray made all the payments on his purchase from Campbell, except the last note for $500, which is still unpaid.
It is contended, in the first place, that the evidence is not sufficient to support a finding in favor of appellee Rolfe for the recovery of the engine. It must be conceded that the evidence is somewhat meagre, but we think it is sufficient to support the finding of the court. Rolfe did not testify himself, and the testimony on that branch of the case is confined to that of appellee Cray.
There seems to have been little stress laid in the trial below upon the question whether or not Rolfe had originally owned an interest, and sold it to Campbell or Cray, with reservation of title until the purchase price should be paid, but we think that the evidence is sufficient to establish these facts. Cray testified that the engine belonged to Rolfe, and that it had never been paid for. His testimony on this subject appears in the record as follows: “Q. The engine belongs to Judge Rolfe? A. Yes sir, I never did pay him for it. * * * Q. To whom did it belong? A. Mr. Rolfe. * * * Q. You told him (Parker) that Mr. Rolfe had a title to the engine? A- He knew it all the time, * * * Q. What is the value of the engine that belongs to Judge Bolfe? A. I promised to pay him $450 for it.” Appellant practically conceded his liability to Bolfe in the trial below, for, in his examination, he made this statement: “Well, somebody has got to pay Judge Bolfe, and I suppose I will have to pay it. I didn’t know it until I was notified by him. No — come to think of it — I found it out in Louisiana.”
The evidence being sufficient to support the judgment in Bolf’s favor, and, there being no error in the proceedings on that branch of the case, that judgment is affirmed.
The case of appellee Campbell against appellant for recovery of the machinery stands in a different attitude. The question of conditional sales of personal property by retention of title as security for the purchase money has been the subject of many decisions of this court, beginning with the case of Carroll v. Wiggins, 30 Ark. 402, and continuing down to the present time, including the very recent case of Brigham v. Thrailkill, 166 Ark. 548, and we have steadily adhered to the rule that the sale and delivery of personal property on condition that the title is not to pass until payment of the purchase price, does not vest the title in the vendee until the condition is performed, and that the retention of title is enforceable against the purchaser from a -subsequent vendee, even without notice. The substance of the rule and the theory upon which it is‘based was well stated by Chief Justice Cockrill in McIntosh v. Hill, 47 Ark. 363, as follows:
“Possession of personal property is only prim'a facie evidence of title, and the doctrine of caveat ernptor prevails notwithstanding the possession. The prima facie title must yield to the actual title when it is asserted, and the buyer who trusts to appearances must suffer the loss if they prove delusive. If the vendor is estopped from reclaiming his property from an innocent purchaser, there is no principle, as was said in Andrews v. Cox, supra, upon which we could stop,-short of holding that one who had borrowed or hired any personal prop erty might divest the true owner of his title, simply by assuming the power to sell. [We think that reason and the overwhelming weight of authority pronounce in favor of the right of the original vendor.’’
In the case of Simpson v. Shackleford, 49 Ark. 63, Judge Battle, speaking for the court,'said:
“The transaction between Butcher and the appellants was a conditioinal sale. No title to the mill passed to him.. Appellees only acquired the conditional title of Butcher. The fact that Butcher was permitted to remain in possession until sold did not estop appellants from claiming and taking possession after appellees purchased. They did not have a right to rely upon Butcher’s possession as conclusive evidence of his title-, and to say they were thereby induced to purchase. His possession was only prima facie evidence of title, and they had no right to treat and -act upon it as higher evidence. To protect themselves it was necessary for them to inquire and ascertain how Butcher held. When Butcher failed to pay the purchase money at the time he agreed to, appellants became entitled to the possession of the mill, even in the hands of a bona fide purchaser, and to sue for and recover it at any time during the period prescribed for the bringing of such suits by the statute of limitations.”
Now, the theory upon which the vendee is permitted to assert a superior claim over that of a purchaser from his vendee is that the legal title was originally in the vendor -and never passed out of him. But this rule necessarily implies that the legal title must be in the vendor. Unless one has the title already, he cannot retain it. The turning point in the present case therefore is whether or not Campbell ever had legal title which he could retain, subject to the condition of the final payment of the purchase price. The evidence is undisputed that, the title to the property in controversy was in a copartnership composed of Campbell and Gray. Neither of the partners had the legal title, but each owned an equity, Which was “only the right to share in the surplus remaining after the debts were paid and the partnership affairs adjusted.” Ringo v. Wing, 49 Ark. 457. It follows therefore that Campbell, having no legal title to the property in controversy, could not retain title as security for the purchase price. The contract between him and Gray was not either an acquisition or retention of the legal title, but' merely constituted a sale and transfer of his equity.in the partnership assets. This interest was extinguished by the sale to Gray, and the title held by the partnership became vested in Gray as the successor of the copartnership, and he had both the legal and equitable right to dispose of the property. The sale to Parker, or to the new firm composed of himself and Parker, constituted a transfer of title. The attempted reservation of title by Parker was ineffective, and the trial court erred in holding that he was entitled to recover possession.
The judgment in favor of appellee Campbell is therefore reversed, and his action dismissed. | [
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Wood, J.
Dewey Young was indicted in tbe Sevier Circuit Court for the crime of killing an unborn quick child. He was tried, convicted, and sentenced, by judg ment of the court to imprisonment in the 'State Peniten- _ tiary for a period of five years, from which judgment is this appeal.
1. The defendant entered a plea of former jeopardy. The district attorney and the counsel for appellant agree that the following are the facts concerning such plea: “About a year and a half ago the defendant was tried in the Howard County Circuit Court upon a charge of seduction growing out of the same state of facts, and the same witnesses who testified in that case will be used in the trial of this case, and the facts as developed in that case will be approximately the same as will be developed in this case. Hpon a trial of the issues in that case a verdict of not guilty was returned by the .jury.” The trial court niled correctly in overruling the plea of former acquittal. The statute under which the present indictment was lodged against the appellant provides as follows :
‘ ‘ The willful hilling of an unborn quick child by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter. ’ ’ Section 2357, C. & M. Digest.
The above statutory offense is wholly separate and distinct from the offense of seduction as defined in § 2414 of C. & M. Digest. Although the same testimony might be. adduced on the trial of the same party for the killing of an unborn child as was adduced at the trial on a charge of seduction, that is not the test, because, as we have stated, the crimes of seduction and killing of an -unborn quick child are entirely different. The proof to sustain the one would not sustain the other, and the accused might be acquitted on the one charge and convicted on the other, although .the same witnesses testified and the same facts were developed as far as relevant in each of the cases. In a charge of seduction it will be necessary for the State, in order to sustain the charge, to prove that the accused had sexual intercourse with the prosecutrix under an express promise of marriage. But no such proof would be essential to the crime, of killing an unborn quick child, although, in the development of the circumstances of the alleged killing of the unborn quick child, proof of sexual intercourse between the mother and the accused might become competent and relevant testimony. The court therefore did not err in overruling appellant’s plea of former jeopardy.
2. There are twenty-three assignments of error in the motion for a new trial. The appellant has not favored the court with a brief arguing these several grounds of his motion, but the Attorney G-eneral has made a complete and impartial abstract-of the record, and calls to our attention the several grounds of appellant’s motion for a new trial. Since this is a felony case, notwithstanding the fact that no brief has been filed for the appellant, we have examined the grounds of his motion for a new trial, and find that the court did not err in overruling such motion. The indictment was valid. It followed substantially the language of the statute. The charge of the court was full, fair, and correct. The rulings of the court on the admission of testimony were likewise correct, and there was. evidence to sustain the verdict.
The prosecuting attorney in his closing argument used the following language: “I dare say that everybody -within the sound of my voice will say that it is as plain a case as they ever heard. ’ ’ The defendant objected to the remark, and the court admonished the prosecuting attorney that his remarks were improper, and directed the jury to disregard them. The remarks were but the expression of the opinion of the prosecuting attorney. It is not at all probable that a sensible jury would be influenced by such an ad captandum argument. It occurs to us that such remarks were not calculated to prejudice the rights of the appellant, but, even if we were mistaken as to this, the admonition by the court that such remarks were improper and directing the jury to disregard them, removed all possibility of any prejudice being created in the minds of the jury against the appellant.
The record presents no new questions in criminal law that would be useful as a precedent, and therefore we do not discuss all the grounds of the motion for a new trial.
Since there is no error in the rulings of the trial court, its judgment must be affirmed. It is,so ordered. | [
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Hart, J?,
(after stating the facts). The first question to be decided is, does the party wall agreement between C. J. 'Saenger and E. P. Richardson, executed on the 14th day of May, 1913, constitute a covenant running with the land? The agreement was in writing, and provides for the erection of a party wall thirteen inches wide, one-half of which was to be on the lots of the respective parties, and was to be owned in common. Inasmuch as Saenger was to erect his store building first, it was provided that the party wall should be erected by him and constitute a part of his store building. When Richardson desired to erect a building on his lot, the party wall became a part of such structure, and he was immediately to nay for one-half of the cost of it. The agreement further provided that it was binding upon the heirs or assigns of both parties. While the authorities are in conflict with respect to the legal effect of agreements providing for the construction of party walls between adjacent landowners, the question is no longer an open one in this State.
• In the case of Rugg v. Lemley, 78 Ark. 65, it was held that, under an agreement of an adjacent proprietor to. pay part of the cost of a party wall when he commenced to use it, a charge is created in the nature of an equitable lien upon the lot upon which the wall is erected, which is enforceable in equity.
The court recognized that there was a conflict in the authorities, and, after due consideration, adopted the rule that, where the covenant is similar to the one in this case and contains a clear manifestation of an intent that it should run with the land and bind the parties and their assigns, such party wall agreement creates an equitable charge, easement, and servitude upon the lots upon which it is built. In short, it was held that agreements of this sort, when duly acted upon, create cross-easements in the respective owners of the adjacent lots with which the covenants in the agreements will run so as to bind the parties and their' assigns. The distinction between real and personal covenants is that the former relate to the realty, having for their main object some benefit to the realty and inuring to the benefit of and becoming binding upon subsequent grantees, while the latter do not run with the land.
In the case before us, the contract between Saenger and Richardson was not.merely personal to them. The wall erected on the boundary line between the two lots was intended to be, and was, a part of the freehold. It was erected for the use and benefit of future, as well as the present, owners of the lots. The agreement under which the party wall was built did not restrict the right to use the wall to E. P. Richardson and C. J. Saenger. On the other hand, it expressly provides that the entire agreement was made binding on the heirs and assigns of both parties. The wall was intended for the use and convenience of both lots. Each of the adjacent owners had an equal interest in the wall. It was as firmly attached to, and became as much a part of, each lot as any other part of the buildings ere'cted on them could be, and the benefits and burdens attaching to the wall followed the ownership of the respective lots.
We have not set out the written agreement providing for the construction of the party wall in full, but we have, set out the material portions thereof. It is clear, from the portions which we have specially referred to, that the agreement for the party wall contains a covenant running with the land; for a covenant runs with the land when either the liability to assume its burdens or the right to use its benefits passes to the assignees of the landowners.
The chancellor was right in holding that T. J. Sharum had no notice, actual or constructive, of the agreement providing for the erection of the party wall, at the time he took the two mortgages from Mitchell which are sought to be foreclosed in this suit. The agreement for the party wall was in writing, but was not acknowledged or recorded. Therefore Sharum had no constructive notice of its execution or contents.. Crawford & Moses ’ Digest, § 1536.
It is admitted that Sharum had no actual knowledge of the claim of Saenger arising out of the agreement between him and Richardson for the erection of the party wall. The fact that. he might have known that Saenger had built the wall and that afterwards Mitchell, the grantee of Richardson, had used it as one of the walls of his building on his lot, would not 'constitute notice. The reason is that it is not shown that Sharum knew that Mitchell did not contribute his share of the cost of the building of the party wall, when he erected his store building in the summer of-1920, and made the party wall one of the walls of his building.
In the absence of notice to the contrary, Sharum had a right to presume that Mitchell had paid his share in the cost of the wall, since the ' agreement provided ' expressly that he should make the payment immediately upon the completion of his building of which the party wall became a part. Kells v. Helm & Yerger, 56 Miss. 700.
It is true, as contended by counsel for appellant, that one-half of the party wall was upon the land of Mitchell, and this would put any one upon notice of any matters affecting his title that an inquiry would disclose. This court has repeatedly held that actual possession of land at tbe time of another’s purchase is sufficient to put the purchaser upon inquiry of the possessor’s title. In the application of this rule Sharum, as a purchaser from Mitchell, would have no right to require the removal of the wall as a trespass upon his realty.
In Hawkes v. Hoffman, 24 L. R. A. (N. S.) 1038, the Supreme Court of Washington held that the mere existence, at the time one purchases a lot, of a party wall resting partly thereon and in use by the owner of .the adjoining lot, is not notice of an obligation to contribute to its cost upon making use of it. The reason is that the rule imputes notice only of those facts that are naturally and reasonably connected with the facts known, and of which the known facts can be said to furnish a clue.
As we have already seen, the agreement of Richardson and his assigns to pay part of the cost of the party wall, when he commenced to use the wall, became a charge in the nature of an equitable lien upon the lot upon which the wall was erected, and was enforceable in equity. The party wall having become a part of the realty, the charge against it was in equity a lien for the purchase money, not only while the property was owned by Richardson, the vendee, but also by all subsequent purchasers having notice that the purchase money remains unpaid.
The principles from which courts of equity have proceeded in establishing this lien, in the nature of a trust, is, that a person who has got the estate of another ought not, in conscience, as between them, to be allowed to keep it and not pay the full consideration money. And third persons, having full knowledge that the estate has been so obtained, ought not to be permitted to keep it without making such payment, for it attaches to them also, as a matter of conscience and duty. Shall v. Biscoe, 18 Ark. 142; Day v. Gaines, 130 Ark. 167.
Mitchell built his store upon his lot in the summer of 1920, and used the party wall as one of the walls of it. As soon as he used the party wall, under the agreement of Ms grantor with Saenger, he became immediately bound to pay his part of the cost of it.
Saenger testified that, for some time, he was unable to agree with Mitchell about the cost of the party wall or that he was liable to pay any part of the same. During the -course of the negotiations he-frequently talked with Allbright, who was the cashier of the Bank of Hoxie, about the matter, and Allbright well knew that he claimed an equitable lien upon the lot for the payment of one-half of the- cost of the party wall. Allbright was the cashier of the Bank of Hoxie at this time, and also in December of the same year, when the mortgage of Mitchell to the bank in question was executed.
Notice to Allbright, who was the cashier of the bank, was notice to the bank.
The general rule is that the principal is affected with notice of all that -his agent knows in the line of Ms duty or within the scope of his powers. Peebles v. Columbian Woodmen, 111 Ark. 435.
A corporation must necessarily act through agents, and the general'rule is that knowledge -of an agent acquired in the ordinary discharge of his duties for the corporation is ordinarily to be imputed to the principal. Little Red River Levee Dist. No. 2 v. Garrett, 154 Ark. 76, and First Natl. Bank v. Duvall, 156 Ark. 377. Applying the principle decided by these cases to the facts of this 'case, it is manifest, we think, that Allbright, as cashier of the Bank of Hoxie, and in the discharge of his duties as such cashier, acquired knowledge of the terms of the party wall agreement and of the fact that neither Mitchell nor his grantor had paid for half of the party wall, as provided in the agreement. The knowledge acquired by the cashier was present in his mind at the time he took the mortgage on the lot in question from Mitchell to the Bank of Hoxie. That -such knowledge was in the cashier’s mind when the mortgage was executed-may be shown by circumstances as well as by dire’ct evidence.
As we have already seen, negotiations looking to a settlement of the equitable lien claimed by Saenger on the lot of Mitchell were pending during the period of the construction of the building by Mitchell in the summer of 1920, and for some time thereafter. During this time Saenger talked with the cashier of the bank about his lien and fully explained the nature of it to him. Finally, in October, 1920, Saenger reached an agreement with Mitchell whereby the value of the wall was placed at $1,068, and Mitchell executed to Saenger a number of promissory notes as evidence of the amount due. He paid two of these notes, amounting in the aggregate to $168. The balance of the amount due was unpaid. The notes given by Mitchell to Saenger were payable at the Bank of Hoxie, and were dated October 20, 1920. The mortgage of Saenger to the bank was executed on the 24th day of December, 1920. These facts: and circumstances clearly show that the knowledge of the equitable lien of Saenger existed in the mind of the cashier of the bank when the mortgage from Mitchell to the bank was executed.
It appears from the record that T. J. Sharum acquired the title of Mitchell in the lot in question in April, 1922, and counsel for appellant insist that this created a merger of the estates which extinguished the lien of Saenger. We do not think so. It results from the principles announced above that Saenger had no claim of personal liability against either Mitchell or Sharum. The reason is that neither of them was a party to the contract for the party wall, and became in no wise personally liable by the contract. The contract created a covenant running with the land, and Saenger had the right to enforce his equitable lien against the lot in the manner shown above; but he could not obtain a personal judgment against any of the parties to this suit for'the amount thereof. Saenger had nothing whatever to do with conveying the .land to Sharum, and we cannot see where the doctrine of merger has any application, in so far as he is concerned.
It follows that the decree will be affirmed. | [
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Holt, J.
On information charging that appellant, Joe Johnson, “did unlawfully, willfully and publicly exhibit contempt for the flag of the United States,” he was tried, convicted and his punishment assessed at “a fine of $50 and imprisonment in the county jail for a period of 24 hours.” For reversal here, appellant alleges that the evidence was not sufficient to warrant his conviction and that the trial court erred in refusing to so instruct the jury in accordance with instruction No. 1 requested by appellant.
Section 2941 of Pope’s Digest, upon which the information was based, provides in part “Whoever . . . shall in any manner ... or by word or act publicly exhibit contempt for the flag ... of the United States . . . shall be deemed guilty of a. misdemeanor and on conviction shall be punished by a fine not exceeding $100, or imprisonment for not more than thirty days, or both. ’ ’
The evidence, upon which the jury found appellant guilty, is to the following effect:
Mrs. Nell Cooper was.in charge of the Welfare Commissary at Marshall, Arkansas, when appellant came to procure commodities for himself, his wife and eight children.- We quote the following from her testimony: “He came in the commissary on the first day of the period, and we had quite a crowd in there, and I had been told that he was drawing for more people than he really had in family, and also that he wouldn’t salute the American flag, and I first asked him about a rumor that he was drawing for more than he had members in his family, and he says, ‘That is just talk, I do have that many.’ I thought it was hardly possible he would say he had more than he had, and I didn’t give much faith to the rumor. And I says, ‘It is also rumored that you don’t believe in saluting the flag. Is there anything in that?’ And I didn’t demand. I asked him — merely requested him. I says, ‘Just to quiet the rumor, salute that flag.’ And he said he would die before he would, and turned to the people there and says, ‘You can’t get anything here unless you salute the flag. It don’t have eyes and can’t see, and has no ears and can’t hear, and no mouth and can’t talk,’ and says, ‘It doesn’t mean anything to me. It is only a rag.’ And I says, ‘You can’t talk that way here.’ And he kept on talking, and I first told him I would call one of the boys and ask him to be put out, but he left. . . . He was-addressing the other people who were waiting for commodities. . . . When I asked him— I didn’t demand, but I asked him — he turned and walked directly under the flag, and was facing the people outside. . . . I don’t know whether he touched it or not, but his hand was in touching distance of the flag, and he reached toward the flag. ... It wasn’t any higher than his head. ... I know who was in the commissary. I was angry, and I couldn’t say who was there at the time.”
Ogle Horton testified (quoting from appellant’s reply brief): “I didn’t understand all the conversation. He got under the flag and reached up and got hold of it and says, ‘It don’t mean anything to me. It’s got no eyes and can’t see, no ears and can’t hear, no mouth and can’t speak.”
Appellant testified: “The Bible says not to bow to anything up in the Heaven or on the earth or in the earth, or anywhere. We are supposed to bow to God and 'God only. ... It says in the Bible not to even salute your friend, but to call him by name, says, ‘Claim thy friend by name.’ ” It was his conviction that to salute the flag or any other like emblem would be contrary to the Bible. He did not show disrespect for the flag. “I believe in everything it stands for.” He denied that he had spoken disrespectfully of the flag or had exhibited contempt for it in any manner.
The trial court very clearly and properly instructed the'jury that appellant could not bo convicted for refusing to salute the flag of the United States; that he was within his constitutional rights to refuse to salute the flag if he did not desire to do so. Appellant’s instruction No. 2,given by the court is in this language:
“You are instructed that before you can find the defendant guilty under this charge, you must find from the evidence and beyond a reasonable doubt that he did or said something or some things in an affirmative sense, manifesting a contempt for the flag; it is not sufficient that he merely refused or failed to salute the flag when directed to do so by the prosecuting witness, Mrs. Cooper, or failed or refused to do any other thing directed by her. To constitute the crime with which he is charged required some voluntary action or statement on his part in contempt of the flag.”
The question, therefore, presented here is not whether appellant was within his constitutional rights in refusing to salute the flag, but did the evidence warrant the jury in finding the appellant, guilty of “publicly exhibiting contempt for the United States flag” in violation of the provisions of the statute, supra.
It seems to us that it would be difficult to imagine a state of facts under which contempt for the flag could be more convincingly demonstrated in public than in the circumstances here. The strange and unnatural conduct of this man at the very time he was receiving, from the hands of a most generous government, supplies to aid him in sustaining a large family, may not be explained away on the grounds of ignorance or religious beliefs. It is one thing to be given the privilege of refusing to salute the flag', but quite another when one by word or act publicly exhibits contempt for the flag. Here appellant after refusing to salute the flag, as was his privilege, proceeded to address a large number of people and tell them that the flag meant nothing to him and was only a “rag.” Webster’s dictionary defines “rag” as “A waste piece of cloth torn or cut off, a shred or tatter, something' resembling or suggesting a rag or rags and considered of little worth or service; — used contemptuously, jocularly, or ironically as of a flag, newspaper, etc.” We think appellant’s statement clearly evinces contempt for the flag within the terms of the statute in question.
The Supreme Court of the United States in Minersville School District v. Gobitis, 310 U. S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375, 27 A. L. R. 1419, recently said: “The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. This court has had occasion to say that‘. . . the flag is the symbol of the Nation’s power, the emblem of freedom in its truest, best sense. . . ; it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.’ Halter v. Nebraska, 205 U. S. 34, 51 L. Ed. 696, 27 S. Ct. 419, 10 Ann. Cas. 525.
“The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities . ' . .”
It is our view on the testimony presented that appellant has violated the plain terms of the statute in question and the jury was warranted in finding him guilty as charged. Accordingly the judgment is affirmed. | [
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McHaney, J.
Appellant was indicted on a charge of murder in the first degree for the killing of Ellis Naoklie. He was convicted of murder in the second degree, and sentenced to twenty-one years in the penitentiary. By this appeal he seeks to reverse this case on the following assignment of error only:
“The court erred in allowing the witness, Mrs. Ellis Nacklie, to testify on rebuttal, in regard to deceased taking the defendant to St. Louis with him after the sale of said stock of goods, introducing him to the trade and trying to establish a credit for the defendant in St. Louis, and helping buy goods and merchandise for the store at Malvern. ’ ’
The record reflects that appellant had testified, on direct examination, that deceased had beat him out of about $1,500 in the sale of a merchandise 'business to him; that he misrepresented everything regarding the sale, and charged him twice for the same goods, did not give him any invoices, and that they fell out about that. On cross-examination he testified that there had been ill feeling between him and deceased ever since he purchased the business and store of deceased, and was asked, on cross-examination, if the deceased did not go with him to St. Louis, after the sale, and introduce him to some of the wholesale houses, and assist him to get a line of credit with them, which he answered in the negative. After the defendant had closed his case, the State was allowed, over objection of appellant, to ask Mrs. Nacklie the following question, and permit her to give the following answer:
“Q. You heard the statement of Harris that, when your husband was selling’, or after he sold out to Gust, he went to St. Louis, and your husband bought goods to send to Florida? A. No; he went to St. Louis to introduce him to the wholesale stores up there and to help him buy goods; we did not buy any goods for Florida; he was in the real estate business in Florida; we didn’t go in any business in Florida, and he didn’t buy any goods for himself.”
Appellant contends that this was error, in that it permitted the impeachment of appellant by contradicting him on an immaterial collateral matter, which was brought out by the State from appellant on cross-examination. If this were an immaterial collateral matter, appellant would be right in this contention, but, as we view it, it is neither immaterial nor collateral, as it tended to contradict appellant in his statement that bad feeling had existed between them on account of the sale of the store ever since it was consummated, and tended to clarify the question as to who was the probable aggressor in the fatal encounter.
In the case of Prewitt v. State, 150 Ark. 279, 234 S. W. 35, Prewitt was indicted, charged with the murder of one Hastings. -They had theretofore been good friends, but the trouble arose over an alleged remark that Prewitt had made about Mrs. Hastings, mother of the deceased, which he construed as reflecting on his mother, and which had been repeated to Mrs. Hastings by Mrs. Prewitt in the presence of Mrs. Harding. The defendant offered to prove by Mrs. Harding that she was present and heard the conversation between Mrs. Prewitt and Mrs. Hastings, and that it was to the effect that Mr. Prewitt had remarked about how often he saw Mrs. Hastings on the street, and how spry and youthful she appeared to be, and that the remark was a facetious compliment on Mrs. Hastings’ youthful appearance, and nothing in it susceptible of a construction derogatory to Mrs. Hastings’ character. The lower court refused to permit Mrs. Harding to so testify. Prewitt was permitted to testify that he told deceased that he had made no remark reflecting on his mother, and that he would be glad to explain and apologize, if deceased desired an apology. Prewitt was convicted, and, on appeal to this court, the case was reversed because of the refusal of the court to permit Mrs. Harding to testify, and this court said:
“In the very recent case of Avey v. State, 149 Ark. 642, 233 S. W. 765, we held that proof of a motive for the killing was not a collateral matter. We there said: 'This court has many times held that the State is not required to prove a motive to establish the guilt of one accused of homicide; but the court has also held that, as the absence of a motive is a circumstance tending to show innocence, the State may show the existence of a motive for taking the life of a decedent, to be considered with other facts and circumstances in determining the guilt or innocence of the accused.’ ”
So here the testimony of Mrs. Nacklie was not collateral, but was in contradiction of appellant’s statement that bad feeling had existed between them since the sale of the stock of goods. Moreover, appellant contends that he killed deceased in self-defense. He admits the killing of deceased, and the sole question then at issue was as to who was the probable aggressor, and this testimony of Mrs. Nacklie tended to throw light on this important point at issue.
We find no error in the admission of this testimony, and the judgment is accordingly affirmed. | [
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Hart, J.,
(after stating the facts). The court told the jury that it was the contention of Church that, at the time of the execution of the note sued on, he and Jones had a full and complete settlement of their accounts. That, on the other hand, Jones admitted the execution of the note, and that the amount sued for had not been paid; but he claimed that Church owed him more than the amount of the note, and denied that they had had a full settlement of their accounts at the time the note was executed. In other instructions the court submitted the respective theories of the parties to the jury.
The court gave to the jury instructions Nos. 3 and 4, which read as follows: “The burden of proof is on defendant to show by a preponderance of the evidence that the plaintiff owes him on his counterclaim, so in this case your verdict will be for the plaintiff for the amount of the note, less any credit you may find, from a preponderance of the evidence, to be due on said note, and, if you find that the plaintiff owes the defendant more than the amount of said note sued on, you will find for the defendant against the plaintiff for the amount you may find from the evidence the plaintiff owes the defendant in excess of the amount of the said note.
“No. 4. The burden of proof is on the party alleging things to be true, to establish it by preponderance of the evidence; therefore the plaintiff in this case says that there was a full settlement at the time of the execution of this note; they allege that to be true, therefore the burden would be on them to establish that to be true by a preponderance of the evidence.” •
It is the contention of counsel for appellant that the instructions are contradictory, and, for that reason, the judgment must be reversed. We cannot agree wilh counsel in this contention. Section 1195 of Crawford & Moses’ Digest defines a counterclaim as any cause of action in favor of the defendant against the plaintiff.
Section 6236 of the Digest provides that, in any case where a set-off or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear. This section was a part of our Civil Code, and § 1195, defining a counterclaim, was passed by the Legislature of 1917. Thus it will be seen that the pleading of a counterclaim, with the demand for relief, is, in effect, the institution of a cross-action for a recovery under the facts set up in the counterclaim. Although the matters set up in the counterclaim constitute a defense to plaintiff’s cause of action, it is also of a nature that entitles the defendant to affirmative relief, so that he might have brought an action on it in the first place. In short, pleading the counterclaim in this suit was, in effect, the instituting of a cross-action, and the part of the answer alleging it is in the nature of a complaint by the defendant against the plaintiff. As such, the defendant is entitled upon it to any relief consistent with the case made and embraced within the issue. This is the effect of our decision in Coats v. Milner, 134 Ark. 311. In that case the court said that the manifest purpose of the Legislature in defining a counterclaim was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of' the same or different contracts or whether they arise upon contract or arise out of some tort.
In the case before us, Jones admitted the execution of the note sued on and that there was a balance due upon the note in the amount sued for. Jones said that he executed the note in order to accommodate. Church, and that it was expressly understood that afterwards there should be a settlement of their affairs, and that tbe one owing the other would pay him. Jones sought affirmative relief against Church.
In this view of the matter we do not think that there was any necessary conflict between the two instructions. Tbe only disputed question of fact was whether or not Jones was entitled to recover on his counterclaim. The court placed the burden upon him in this respect in instruction No. 3; and, in instruction No. 4, intended to tell the jury that, if the plaintiff relied upon the fact that there had been a full settlement at the time tbe note was executed, as a defense to the counterclaim, the burden was on him to show it. This instruction evidently had reference to the trial of the issue on the counterclaim, and, if the defendant thought otherwise, he should have made a specific objection to the instruction. Tbe court had already told the jury. that Jones admitted tbe execution of the note, and that the amount sued on was due and unpaid, and he only defended the suit and asked for affirmative relief by way of counterclaim upon the theory that there was a balance due him in the settlement of their partnership affairs, and the note was executed for the accommodation of Church, and that he was entitled to an affirmative judgment against Church.
It is well settled in this State that the court will only reverse a judgment for prejudicial errors, and we are of the opinion that, in the absence of a specific objection, it cannot be said that the instruction was necessarily prejudicial.
It follows that tbe judgment will be affirmed. | [
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Mehaffy, J.
The appellees, plaintiffs below, filed a complaint in tbe circuit court, alleging tbe delivery to the appellant, defendant below, at North Little Rock, of a shipment of 242, head of cattle to be transported by the defendant to East St. Louis, Illinois. That the defendant accepted said cattle for shipment. It is alleged that some of the cattle in said shipment were weak and thin, and it was necessary that they be separated from the bulls and steers, and that the defendant had notice of these facts, hut that, on January 8, 1927, the cattle having been delivered on the first of January, while said cattle were in the custody of defendant, it carelessly and negligently turned said cattle together, thereby causing '24 of the said cows to be killed by the bulls and steers. Said cows that were killed were of the average value of $25 each, and, by reason of the negligence of the defendant, plaintiff prays judgment for $600.
Defendant filed answer, denying specifically each material allegation in the complaint.
There was a jury trial; and a verdict in favor of the plaintiff for $350, and judgment for that amount, from which this appeal is prosecuted.
The plaintiff’s testimony tended to show that the cattle were delivered to and accepted by the defendant on the first day of January; that they were all right, and none crippled; that the bulls and steers were put to themselves, and the yearlings ¡and small cows to ‘ themselves; that when Bennett, the plaintiff, was in North Little Rock, on the 8th or 9th of January, they were all mixed up; and a portion of them dead. Some of them trampled to death, some were hooked, and some of them had lost their calves. They were crippled up in every way they could be. That plaintiff arranged for six pens, and paid $15 per pen. That it was arranged with the stock foreman to keep the thin cattle separate. It is not good practice to put bulls and steers in a close pen with calves and weak cows. That 24 of them died as a result of-injuries. The cattle were dipped, and none died from dipping. When they were unloaded they were all put in pens together, but were cut out as'quickly as plaintiff could cut them out. The average pen holds a car of cattle. The steers and bulls were loaded together. There was a load of small yearlings in the. shipment. Some of them were thin and weak. The weather was cold at the time of dipping, and the cattle were held for two dip-pings. Some of them might have died from dipping, but those that were trampled, smashed, did not. Twenty-six were crippled. The cattle.came from Louisiana, a tick-infested area. The shipper signed the usual shipper’s uniform contract. The contract signed was the one prescribed by the Interstate Commerce Commission. The contract was here introduced, and plaintiff Bennett admitted that he signed it, and admitted making the affidavit required by the provisions of the Arkansas rules and regulations and the supplemental regulations issued by the Department of Agriculture for the movement of cattle from tick-infested areas.
After the cattle were unloaded they immediately cut out the weak, thin cattle, and put them to themselves. Did not rent any pens, but understood they were to have six pens. They had six carloads of cattle. The railroad company does not dip them, but they are dipped by the government. Witness later found them in four pens. One pen had weak cattle, and in the others they were all mixed up.
Another witness testified that the cause of the death of the 24 cattle was fighting’ and being ridden by big males. They were getting along all right until they were turned together. Does not think they died from dipping, and testified that the average cost of cattle was around $26. They .shipped the big and the strong and the weak all together. They were unloaded together, and, after unloaded, the stock foreman was requested to separate the cattle, or permission was requested from him to separate the cattle, and he directed them to go ahead and do it. It is not true that most .of the cattle that died were weak.
On the day after they came to North Little Bock the weak ones were separated from the steers and bulls. There was evidence of the cattle having been trampled. The evidence on behalf of the defendant tended to show that this was a mixed load of cattle, some big ones and some weak and poor. It was just a mixed shipment. That they were held for two dippings, from seven to twelve days. A government inspector does the dipping. The railroad company has nothing to do with it. They furnish the pens, and the shipper pays for the feed. After they had been there a day or two, the shipper asked if he could get pens to separate the cattle. Witness told him it was all right, but they would probably have some heavy shipments on Saturday, and if they did, they would have to put them back together, so they could have the pens for other stock. They were separated in seven or eight and sometimes nine pens. When they were separated, the weakest ones out of each car were put in a pen by themselves. They wouldn’t get anything to eat when with the other cattle. Some of the cattle in that pen died after the first and before the second dipping. It was cold and rainy. The cattle came on the first of January, and they were taken out on the 12th. They were dipped the second time on the 10th. On the night of the 7th six carloads of other cattle arrived there, and twelve loads on the morning of the 8th, for dipping. Defendant has 20 quarantine pens with sheds, and four open. After the cattle are dipped, they must be put in a covered pen. Every shipper of live stock signs a uniform live stock contract, the' one introduced here. The pens are locked, and the railroad employees'keep the keys, but they are under the jurisdiction of Federal officers. Eailroad employees transferred the cattle.
The testimony of the plaintiff in rebuttal was to the effect that the cattle were in four pens after they were rearranged by the railroad company. One pen contained, as nearly as they could pick them out, the weakest. The hurt and crippled ones were in another pen. They were shipped all together. They were getting along all right before the railroad company changed them up, and they didn’t die from those injuries. Some of the cattle died from being trampled.
The person who fed them testified that he found the cattle trampled up and crowded pretty had. It appears that there were too many in the pens. The hulls and steers were mixed up generally with the weak and thin cattle. The cattle that were down appeared to have been trampled and gored. Some of the cattle were weak and thin. • One pen of weak thin cattle were put together and kept together until morning, when they were all mixed up. It was not big steers that were killed. One of the steers died. At one time, while witness was feeding them, they were in as high as seven pens.
Appellant insists for reversal of this case on- the ground that the defendant acted as a person of ordinary prudence would have acted under the circumstances, and we think that the only question for this court to determine is whether there was any substantial evidence upon which the jury might have found that the injury to the cattle resulted from the negligence of the defendant. If there is such evidence of negligence, this would justify the jury in finding a verdict in favor of the plaintiff.
The plaintiff introduced testimony to show that, when they delivered the cattle to the railroad company, they were all right, and none of them crippled, and that the hulls and steers were picked out and put to themselves and the yearlings and small cows put to themselves, and that on the 8th or 9th they were fall mixed up, and a portion of them dead. The testimony shows that it is not safe to put the hulls and steers with the weak cattle and calves, and that, after they were delivered to the defendant, they 'were all mixed up, and there is no testimony tending to show that, even when the railroad company had to have some of its pens, the bulls and steers which caused the injury mig*ht not still have been kept to themselves, and not mixed up with the weak cattle. Whether or not there was any negligence in this respect was a question of fact for the jury, and its finding is conclusive on this court.
The evidence of negligence is rather meager, hut that is not la question for this court, if there is any substantial evidence to support the verdict, and we think there is some substantial evidence upon which the verdict of the jury could be based.
It is next contended that the court erred in its refusal to give instruction No. 1, requested by the defendant. That instruction is as follows. “The court instructs you that the defendant is not required to furnish separate pens to separate the weak and thin cattle from the strong; and if you find from the evidence in this case that the cattle were killed in the pens in North Little Rock through no carelessness or negligence on the part of the defendant, its agents or employees, then your verdict must be for the defendant. ”
The court refused to give the instruction as above set out and as requested by the defendant, but added, “unless you further find.that the defendant negligently turned the strong cattle in with the weak, causing the damage complained of.” We think the instruction as given by the court was correct. Whether the defendant was required to furnish separate pens to separate the weak from the strong or not, if it did do that, and then negligently turned the strong cattle in with the weak, causing the damage complained of, it would be liable, and there was no error in the modification of the instruction.
It is also contended that the court erred in its refusal to give instruction No. 2 requested by the defendant, which is as follows: “The court instructs you that, under the law and rules promulgated by the Board of Control of Agricultural Experiment Stations, the railroad company is not liable for damages where stock is injured and dies in quarantine pens in North Little Rock, through no carelessness or negligence of the defendant, its agents or employees, while being held to .be dipped, and if you find from the evidence in this case that the cattle died in said quarantine pens, while being held to be dipped, then your verdict must be for the defendant.”
The above instruction ignores the question of negligence, which defendant denies, the latter part of the instruction stating to them that, if they died in the pens while being held to be dipped, the defendant was not liable. That would be true if there was no negligence Which caused the injury. But if they were separated, and the defendant afterwards negligently put them together, and this negligence caused the injury and damages, the defendant would be liable.
Instruction No. 1, given at the request of the plaintiff, was as, follows: “The court instructs the jury that, under the law, it was the duty of the defendant- to use reasonable care in the handling of the cattle belonging to the plaintiff, and if it failed to use reasonable care in the handling of said cattle, and they were injured as a result thereof, then you should return a verdict in favor of the plaintiff.”
That submits the question squarely to the jury, and directs them, if the injury was caused by the negligence of the defendant, to find for the plaintiff; no matter what their duty was -with reference to furnishing pens or keeping cattle to be dipped, if they were guilty of negligence in mixing the cattle as they did, and that negligence caused the injury, they would be liable. If it was not guilty of negiigénce, there would be no liability. But, having undertaken to keep the cattle, and having been notified that the bulls and steers must be kept separate or injury would result, then if, after that notice, the defendant’s employees negligently or carelessly mixed the cattle, and that negligence or carelessness caused the injury, the carrier would be liable. And in all of the instructions given by the court the jury are told that, if the defendant was negligent, plaintiff could recover, and it was made perfectly clear to them that the defendant wias entitled to a verdict in its favor unless the proof showed negligence on the part of the defendant that caused the injury. They were properly instructed as to what constituted negligence, and in fact there is no controversy between the parties as to what constitutes negligence, both parties agreeing that, if the defendant failed to exercise the care and diligence that an ordinarily prudent man would exercise under the circumstances or under similar circumstances, they would be negligent. '
The jury were properly instructed. .It was made perfectly clear to the jury that, before the plaintiff could recover, the evidence must show that the defendant was guilty of negligence which caused the injury, and that if the evidence did not show negligence on the part of the defendant, plaintiff could not recover, And, as we have already said, the question of whether or not the defendant was guilty of negligence was a question of fact, and we think the evidence is sufficient to support the verdict, and the case is therefore affirmed. | [
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Wood, J.
The Mutual Aid Union, hereafter called appellant, is a mutual insurance association organized under the laws of Arkansas, with its principal office at Rogers, Arkansas. On the-first of March, 1915, Burl J. White, hereafter called appellee, made an application to appellant for a certificate of insurance on the life of Mrs. Martha J. Denton. Appellee signed the application, and named himself as beneficiary. A certificate of insurance was issued on the life of Mrs. Denton, in which the appellee was named as beneficiary. The insured died 'on the 29th of September, 1922. Under the terms Of the certificate the amount due thereon was $1,000. The appellant refused to pay this sum to the appellee, and he instituted this action against the appellant to recover same. The appellant defends the action on the ground that the appellee had no insurable interest in the life of Mrs. Denton. The appellee was not related by blood to the insured, but was her son-in-law. When the benefit certificate was issued, Mrs. Denton was indebted to the appellee in the sum of $200. She was living with appellee at the time the certificate was issued, and had a son about seventeen years old, who also lived'with the appellee. She had a bunch of cattle, and she and her son had to be fed. She had a farm of her. own, and appellee advanced her money to feed herself and boy and the cattle, and to farm her place. When appellant’s agent solicited the instirance, he was informed of the circumstances in regard to appellee’s mother-in-law, and that she was indebted to the appellee. .Mrs. Denton repaid what she owed appellee in the fall of 1915.
The above facts are undisputed. The appellant asked the court to instruct the jury to return a verdict in its favor, and also presented other prayers for instructions, to the .effect that appellee would not be entitled to recover under the policy unless, at the time of the death of the insured, she was indebted to the appellee and the appellee held the certificate as collateral security for such indebtedness; that the relation of son-in-law was not sufficient in itself to give appellee an insurable inter est in, the life of Ms mother-in-law, Mrs. Denton, and would not entitle him to recover in this action, although he had paid the assessments due on the certificates for a period of more than seven years, which payments had been accepted by the appellant; that the certificate in controversy, under the facts adduced, was a wagering or gambling contract, on which appellee could not recover anything.
The court refused to instruct the jury as prayed for by the appellant, to which ruling the appellant duly excepted. At the instance of the appellee, the court gave instructions to the effect that, if the jury found that the agent of the appellant soliciting the insurance knew at the time of taking the application that Mrs. Denton was indebted to the appellee, and was so indebted at the time of the issuance of the policy, the appellee had an insurable interest in her life, and that the policy was valid, and continued so, and was in force, at the time of her death, although the insured had, in the same year after the issuance of the policy, paid her indebtedness to the appellee; that the liability of the appellant depended on whether the appellee was a creditor of the insured at the time of the application for and issuance of the policy; that the mere fact that the appellee was her son-in-law would not entitle him to recover. The appellant duly excepted to the rulings of the court in the giving of these instructions. The jury returned a verdict in favor of the appellee in the sum of $1,000. Judgment was entered in his favor for that sum, from which is this appeal.
The verdict of the jury settled the issue that, at the time of the taking of the application for insurance and the issuance of the policy, appellant’s' agent who solicited the insurance had knowledge of the fact thát the insured was indebted to the appellee, and that he also knew that the insured was the mother-in-law of the appellee. ‘ . !
This court is'thorougMy committed to the doctrine that “the issuance of a policy to one who has no insurable interest in the life of the insured, but who pays tne premiums for the chance of collecting the policy, is invalid because it is a wagering contract, and against a sound public policy •* * * ; that the assignment of a policy of insurance to one having no insurable interest in the life of the insured, though issued to one having such insurable interest, will be ineffective and invalid if such assignment was made in pursuance of an agreement made at the time of the issuance of the policy.” McRae v. Warmack, 98 Ark. 52-56, and cases there cited.
The appellant contends that the doctrine of the above case and cases there cited rules the case in hand. But not so. In the above case Warmack was the nephew of Boswell, and was in no way dependent on Boswell. They entered into a. verbal agreement by which Boswell was to insure his life, upon which Warmack was to pay the premiums and take an assignment of the policies, one of which was to be paid to Warmack and the others to the estate of Boswell upon the latter’s death. In that case the agreement between Warmack and Boswell that the former should pay the premiums and take an assignment of one of the policies at the time of the issuance of same rendered the contract void from its inception. Warmack, being the nephew of Boswell, and in no way dependent upon Boswell, had no insurable interest .in ■Boswell’s life, and the issuance of a policy on the life of Boswell with Warmack as the beneficiary, or the assignment of such policy under agreement at the time that Warmack should pay the premium and receive the proceeds of the policy, was but a wagering contract, and void when made, because contrary to sound public policy. But in the above case we said: ‘ ‘ There are a great many authorities which hold that a policy which is valid at its inception is assignable like any other chose in action, and one should be permitted to dispose of a valid policy of insurance effected in good faith upon his own life.” We did not hold in the above case that a policy or contract of insurance, valid when made, would become void because of some subsequent condition or occurrence which, the parties, at the time of the making of the contract, did not have in mind, and did not express as a condition subsequent upon the happening of which the contract would be invalidated. Whatever may be the rule in other jurisdictions, our court is unmistakably committed to the doctrine that a contract of insurance, valid in its inception, is not afterwards rendered invalid 'because the beneficiary, after the assured ceased to pay the premiums, continued to pay the same until the death of the assured. Langford v. National, etc., Ins. Co., 116 Ark. 527-536.
In Atkins v. Cotter, 145 Ark. 326, we held that a partner has an insurable interest in the life of his copartner, and this interest does not terminate upon the. dissolution of the partnership. At page 335 we quoted from 2 Joyce on Insurance, § 902, as follows: “Althoug’h it was held at one time that in insurance on lives the insurable interest must exist at the time of the loss, it is now sufficient that there existed a valid interest át the time of effecting the insurance. The fact that such interest ceased before the death of the assured is immaterial, on the question of the right to recover, unless such be the necessary effect of the provisions of the. instrument itself.”
In Gordon v. Ware National Bank, 132 Fed. 444, 67 L. R. A. 5501, it is held: “A creditor has an insurable interest in the life of his debtor, and a policy on the latter’s life issued to him, or issued to one who has an insurable interest in the life of the debtor and subsequently assigned to him, is valid and enforceable in his hands.”
In 14 R. C. L., p. 924, § 101, it is said: “A creditor has .an insurable interest in the life of his debtor, and the better view seems to be that 'where, by a valid contract, a debtor insures his life, making his creditor beneficiary, the creditor paying all premiums, under no agreement for repayment, the creditor may hold the whole proceeds.” Numerous cases are cited in notes 10 and 11 to sustain the- doctrine of the text.
In Fitzgerald v. Rawlings, 114 Md. 470, 79 Atl. 915, 1912 Ann. Cases, page 650, it is said: ‘ ‘ The law is well settled in this .State that a creditor who, in pursuance of a bona fide effort to secure a payment of his debt, insures the life of his debtor and takes the policy in his own name, or for his own 'benefit, is entitled to the proceeds of the entire policy.”
In Amick v. Butler, 111 Ind. 578, a debtor owing $600 had his life insured for the benefit of his creditor in the sum of $2,000, the creditor paying all expenses, premiums and assessments. It was agreed that, if the debtor paid the debt and the expenses of the insurance, the policy should be made over to him. He died in about two years, without having paid anything. The creditor received the full amount of the insurance, and the administrator'of the debtor sued to recover the surplus over the amount of the debt. In holding that the creditor was entitled to the full amount of the policy, the court, among other things, said: ££It is universally allowable that a creditor may, in good faith, take insurance upon the life of his debtor, either.by procuring a policy in which he is designated as the beneficiary, or by assignment. We know of no authority to the contrary of this.”
The rationale of the doctrine of all these cases is that, if there be nothing in the circumstances surrounding the making of the contract of insurance to indicate that it was a speculative or wagering contract, which is condemned by.a sound public policy, then the parties to the contract have the right to make it, and, if it is valid when made, it does not become invalid because thereafter some contingency may arise which contingency would have rendered the contract void if it had existed at the time the contract was made. If a contract between an insurance company and the insured is not void because contrary to a sound public policy when it is made, then it does not become so because of- subsequent conditions, not expressed in the contract, which conditions would have rendered the contract void if in existence at the time it was made. ' ■ ' •
The undisputed facts show that, at the time this policy was issued, the amount thereof was not out of proportion to the amount of Mrs. Denton’s debt to the appellee, and also that there was no understanding between Mrs. Denton and the appellee that she was to reimburse him for the amount of the assessments or premiums paid by him. In short, there was nothing in the circumstances, or in the language of the policy itself, to indicate that it was a wagering contract or that it was not entered into in good faith between the parties. Therefore it occurs to us that, both upon principle and authority, the appellant is bound t-o fulfill its contract, which was valid in its inception, notwithstanding the debtor upon whose life it ran paid her debt to the appellee several years before her death. Appellee, during all these years that he kept the policy alive by the payment of assessments, received nothing from Mrs. Denton to reimburse him, and the policy was not issued .to him under a contract of indemnity or collateral security for his debt and the amount of the assessment paid by him. It was a straight contract to pay him the full amount that had accrued under the policy at the time of Mrs. Denton’s death. We see no sound reason why the appellant should not be required to perform its part of the contract. The appellee has performed his. In addition to the authorities cited, see American Ins. Co. v. Manees, 150 Ark. 315-318; People v. Columbian Woodmen, 111 Ark. 435; 25 Cyc. 702, 706-, 711 and 712; Ferguson v. Mass. Mutual Life Ins. Co., 32 Hun 306; Wurzburg v. New York Life Ins. Co., 203 S. W. 332; and other authorities cited in brief of appellee.
There is no error in the record, and the judgment is therefore affirmed. | [
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Grieein Smith, C. J.
February 20, 1942, Joe Hardin, as commissioner of revenues, filed with the circuit clerk for Mississippi county a certificate of indebtedness, “. ... in re, delinquent sales tax $384, July through December, 1941.” It was asserted that O. M. Morgan owed $307.20 on gross receipts from music machines operated by coins inserted in slots. Sec. 3 (e),. Act 386 of 1941, p. 1059. A penalty of 25% was added by the commissioner, amounting to $76.80. See. 9 (b) of Act 386.
March 28,1942, and by amendment June 24, the taxpayer petitioned Mississippi chancery court to enjoin Hale Jackson, as sheriff, and the commissioner of rev enues, from proceeding under an execution issued by the circuit clerk. It was also alleged that the certificate, as docketed, constituted a cloud upon petitioner’s title to real and personal property. Section 11, Act 386.
The facts are that the commissioner’s agents reported the tax obligation. Morgan had failed to file a return. Hé was notified by registered mail January 28, 1942, that the department would determine the tax and .at the expiration of twenty days issue a certificate of indebtedness. Section 10, Act 386. Morgan responded February 5 and asked to be heard. By letter February 6 the department directed the taxpayer to appear February 16. The letter contained the statement: “For your information, the commissioner will not go into the question of liability for the taxes, but simply the amount of the tax due. ’ ’
Morgan did not attend, the hearing. When default was ascertained, the commissioner made a finding as to the sum due, and the certificate was executed.
May 22, 1942, the department of revenues moved to quash service of summons and to dismiss, alleging the Mississippi chancery court was without jurisdiction, inasmuch as more than thirty days had intervened after the certificate had been filed, and before suit was brought. An answer was filed June 24.
Section 10 of Act 386 gives to a taxpayer who is aggrieved by action of the commissioner thirty days within which to appeal to the chancery court of Pulaski county, “where the matter shall be tried de n\ovo.” The statute, however, requires that the amount ascertained by the commissioner to be due shall be paid, with interest and penalty. Any sums found to have been wrongfully collected shall be repaid from a fund “ to be created by the commissioner out of moneys collected [under Act 386], to be known as the ‘special gross receipts refund account,’ to be maintained for such purposes, which account shall not exceed the sum of $10,000. ” It is then enacted that “No injunction shall issue to stay proceedings for assessment or collection of any taxes levied under this Act. ’ ’ There does not appear to have been an appropriation to facilitate use of the $10,000. But see Act 219 approved March 25, 1941.
Assuming (but we do not decide) that the general-assembly had power to prohibit recourse by injunction to stay “proceedings for assessment or collection of any taxes levied under the Act,” the interdiction could only have reference to taxes lawfully assessed and to lawful methods used in collection of taxes levied under the Act.
We think the legislature had a right to designate a period within which one alleged to owe the state on sales tax, or two percent on gross receipts, would be required to make his defense. - If the controversy goes only to the proposition that the transaction is not taxable, or, if taxable, the person assessed is not the party charged by law with payment, such issue is determinable by the chancery court of the county where it is sought to compel collection — that is, where the certificate, prima facie, creates a lien. If the issue relates only to the amount of a valid tax to be paid, then it is appropriate for the general assembly to require payment as a condition precedent to the right to litigate as to any alleged overcharge; and since the fund, when so paid, is transmitted to Little Rook, it is competent for the lawmaking body to fix the venue in Pulaski county.
Where payment has been made, and the suit is one to recover, then the certificate of indebtedness has performed its function, and there is no lien.
In the instant case action was not taken within thirty days; hence, the question cannot now be raised. It is true § 10 of Act 386, by its terms, requires suit to be filed in Pulaski chancery court within thirty days. Insofar as the time element is concerned, the limitation of thirty days applies with equal force to a litigant who seeks relief in his home county where the right to assess any tax under Act 386 is challenged, and to the litigant who only questions the amount of a tax that has been legally assessed, some part of which is due.
Respondent relies upon McCain v. Hammock, Chancellor, ante, p. 163, 161 S. W. 2d 192.
In the McCain-PIammock case limitation was not involved. It was sought by prohibition to restrain the chancery court of Bradley county from entertaining jurisdiction in respect of suits filed by plaintiffs who denied they were chargeable in any sense with sums the state sought to assess under provisions of Act 391 of 1941. Collection machinery called for issuance of a certificate of indebtedness, to be filed in the county of the residence of the taxpayer. Before the certificate was filed, McCain, as commissioner of labor to whom director of the employment security division was answerable, alleged the Bradley court was without jurisdiction to determine validity of taxes evidenced by the certificate the commissioner proposed to file. The statute allowed an aggrieved employer a right to review action of the director within ten days after an assessment had been filed, suit to be brought “in the chancery court having jurisdiction.”
It was held that the quoted language evidenced an intention by the general assembly to permit suits in any chancery court of the state, “depending upon the facts in each case.”
Respondent cites McCarroll, Commissioner of Revenues, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977. In that case the suit was brought in Pulaski county. The commissioner of revenues had notified the appellant he “intended to take action to collect $825.” It was held that a provision of Act 118 of 1929' prohibiting issuance of injunctions in favor of those from whom it was sought to collect income taxes was invalid and that the chancery court of Pulaski county had jurisdiction to hear the cause. It would probably have been more appropriate to say the venue was in Pulaski county.
In the instant case the record does not present the question of an illegal exaction within the meaning of Art. 16, § 13, of the constitution.
Because Morg'an did not question validity of the tax by suit in Mississippi county within thirty days (nor did he satisfy the demand and sue in Pulaski county within thirty days from the exaction of any excess amount collected) the writ is granted. | [
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Humphreys, J.
This suit was brought to recover a minimum annual royalty of $2 per acre under a five-year coal lease of an eighty-acre tract of land in Logan County, which was entered into by and between appellant and appellee on the 20th day of April, 1923. This land was owned by Ben Johns, when he died intestate, and the lessor, the appellee herein, administered upon the estate. The complaint alleged that appellant entered into possession of said land under the lease and paid the minimum royalty for two calendar years, but that, on April 1, 1926, it refused to pay the royalty under claim that the lease was void, although it retained possession of the land during the time.
Appellant interposed the defense to the action that the lease was void and not binding upon it because the lands were not assets in the hands of said administrator for the purpose of paying debts of the estate, under the provisions of § 67 of Crawford & Moses’ Digest, and that the administrator had no right, under § 120 of Crawford & Moses’ Digest, to lease same without first filing a petition with and obtaining an order from the probate court to do so. The two sections of the statute referred to are as follows:
‘ ‘ Section 67. Lands shall he assets in the hands of the executor or administrator, and shall he deemed in their possession and subject to their control for the payment of debts.”
“Section 120. Before the judge shall authorize the renting .of real estate it shall be the duty of such administrator or executor to present his petition in writing, verified by affidavit, showing the condition of such real estate and the reason why such application was not made in term time, and if, upon reading such petition, the said judge shall be satisfied that it shall be to the interest of the estate to rent out the real estate, he shall indorse an order upon such petition authorizing the renting out of the real estate for a time not exceeding one year, and such petition so indorsed shall be filed by the said judge in the office of the clerk of the proper county.”
A demurrer was filed and sustained to the answer, and, appellant electing to stand thereon, judgment was rendered against it in favor of appellee for $176 and interest at the rate of six per cent, per annum upon said sum from the first day of April, 1923, until paid, from which is this appeal. The court sustained the demurrer to the answer and rendered judgment against appellant upon the theory that a tenant has no right to question the validity of a lease under which he holds possession of the land and for which he pays rent to his landlord.
If it be conceded that the lease was void, and subject to rescission or cancellation at the will of either party, yet, according to the admitted facts, under the pleadings, appellant held possession of the land for three years, and paid royalties according to the contract for the first two years. By these acts the relationship of landlord and tenant was established between them, and the law will recognize and enforce the lease contract as if valid in all respects. The court said in the case of State v. Robinson, 143 Ark. 456, that:
“The briefs discuss at length the question of the validity of Mauldin’s contract, and the right- to maintain this action, if it is in fact invalid. But, if it were •conceded that Mauldin’s contract was void ah initio, * * * that fact could make no difference, for a tenancy existed under a contract which the parties mutually treated as valid. ’ ’
No error appearing, the judgment is affirmed. | [
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Wood, J.
This is the second appeal in this case. See 164 Ark. 156. The facts are correctly stated in appellants ’ brief as follows:
“On November 7, 1923, after having given proper notice, some of the appellees filed a petition in the county court, praying that Cypert Township be exempted from the provisions of act No. 239, as provided by § 11 of said act. The .appellants made themselves parties to the proceedings by filing a remonstrance, denying, among other things, that the petition for exemption, contained a majority of the qualified electors of the township. A hearing was had on November 12, 1923, and the court denied the prayer of the petitioners because their petition did not contain a majority of the qualified electors of the township. No appeal was taken from that order. Thereafter, on December 28, 1923, O. R. Root and thirty-nine others, after having given proper notice, filed their petition in the county court, seeldng the same relief as in the first instance. Thereafter, on January 7, 1924, J. E. O’Brien and twenty-nine others, qualified electors, and three othérs who were not electors, made themselves parties to the proceeding by filing a remonstrance and a motion to dismiss on the ground of former adjudication. In their remonstrance they set up that they were qualified electors of Cypert Township and landowners therein, and, as such, had an interest in the subject-matter of the petition, and asked to be made parties to the proceedings, and alleged that there were no good reasons why the township should be exempted from the provisions of the act and many good reasons why it should not be exempted; that they constitute a majority of the qualified electors, landowners and taxpayers of the township, and that they are fully satisfied with the provisions of the act, and favor a general stock law. They prayed that the petition for exemption be denied and that the stock law remain in full force and effect. During the term, A. J. Mote and eleven others, who signed the original petition for exemption, filed separate petitions, asking that their names be stricken from the petition for exemption and that they be counted as remonstrators and opposed to exemption. Mote stated that many farmers had planted crops on open lands in the township, relying on the stock law for protection, and that, if exemption were granted, their crops would soon be overrun and destroyed by live stock. The other petitioners stated that, after due consideration, they had reached the conclusion that it was not best for the township to be exempted from the provisions of the stock law, and that they desired their names stricken from the petition and counted among those opposing exemption. These petitions were subscribed and sworn to before officers authorized to administer oaths, on different dates from December 29, 1923, to August 14, 1924.
On August 15, 1924, the cause came on for hearing-on the merits, and the petitioners, except Mote and the eleven others whose names were on the original petition of December 11, 1923, moved the court to deny the petitions of Mote and the eleven others who were asking that their names be stricken from the petition for exemption, on the ground that they were parties to the proceedings in the nature of co-plaintiffs, and were not entitled to withdraw therefrom without the consent of their co-plaintiffs or by permission of the court.
The judgment of the court recites as follows: “The court finds that there were sixty-two qualified electors residing in Cypert Township on December 28, 1923, the date the petition for exemption herein was filed in the county court; that of said sixty-two, twelve qualified electors, namely, A. L. Carter, A. J. Mote, N. E. Walls, John Skelton, J. W. Mote, Jim Mote, A. Jackson, Mrs. H. H. Ramey, H. H. Ramey, D. O. Ramey, E. Walls, and S. H. Chapman, have this day filed herein individual petitions asking that their names be stricken from the petition for exemption and that they be counted as remonstrating against the granting of the petition; that the petition asking that said' township be exempted herein contains the names of forty of the sixty-two qualified electors of said township, which includes the twelve asking that their names be stricken therefrom.”
Upon these findings, the court denied the request of the twelve parties named above to have their names stricken from the petition for exemption, and entered a judgment granting the prayer of the petitioners for the exemption of Cypert Township for a period of five years from January 24, 1924, to which findings and judgment the remonstrators, including the twelve who were seeking to be made remonstrators, excepted, and proseeute this appeal.
The appellants contend that the court erred in overruling the petition of A, J. Mote and the eleven others to have their names stricken from the original petition for exemption of Cypert Township and asking that they be counted as remonstrants against the original petition which they had signed. Section 11 of act No. 239, Acts of 1923, p-. 479-485, involved in this action, provides: “After the adoption of this act as herein prescribed, if the qualified electors of any political township want said township exempted from its provisions, they may, after giving twenty days’ notice by publication, present a petition to the county court, signed by a majority of the qualified electors of said township, praying that said township be exempted from all or any part of the provisions of this act for a period of not more than five years, and, upon a hearing' in open court, if said petitions appear to have been signed by a majority of qualified electors, the court may enter an order exempting said township according to the prayer of the petition, and shall cause said order to be published. Said order of exemption may be rescinded or modified at any time upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption. ’’
It appears from the findings by the trial court that the petition for exemption of Cypert Township was signed by forty qualified electors, including Mote and the eleven others, who, when the cause came on for hearing on August 15, 1924, asked that their names be stricken from the original petition for exemption. The striking of these names from the original petition would leave the same signed by less than a majority of the qualified electors of the township, and would deprive the court of jurisdiction under the act to enter an order exempting Cypert Township from its provisions. The court did not err in holding that A. J. Mote and the eleven others could not have their names stricken from the petition and entered as remonstrants after the petition for exemption was filed and the cause came on for hearing. The stock-law act of White County is an exercise of the police power of the State, and the controlling principle here is announced in many local option cases under the three-mile local option liquor law.
In McCullough v. Blackwell, 51 Ark. 159, we said: “The question arising on the appeal is this: Where a petition to put the three-mile law in force has been acted upon by the county court, and an appeal from the order prosecuted to the' circuit court, has the petitioner the unqualified right to withdraw from the petition in the circuit court? The question is answered in the negative by the decisions in Williams v. Citizens, supra. Speaking of the right of a petitioner to withdraw from the petition in the county court — the court of first instance— it is said that, if the original signatures were obtained intelligently and without fraud, and have not been erased before presentation, or afterwards by leave of the court for cause, they fulfill the requirements of the statute. See Grinnell v. Adams, 34 Ohio St. 44; Hays v. Jones, 27 Ohio St. 219; Dutten v. Village of Hanover, 42 Ohio St. 215. The petition is in the nature of an election. When the county court has acted, the votes have been cast, and the election returns made, and an appeal does not invest the petitioner with the power to change his vote or to withdraw it, except for good cause, as is indicated in Williams v. Citizens, supra. While the cir cuit court tries the issue on appeal de novo, it can award or refuse a prohibitory order only upon the petition as signed when acted upon by the county court. No cause for striking from the petition the names to which objection was made was shown or offered. The remonstrants alleged that they were unduly obtained, but that the allegations of the remonstrance are not. evidence was decided in Williams v. Citizens, supra.”
And in the case of Bordwell v. Dills, 70 Ark. 175, among other things, we said: “Before the filing with the clerk, where petitioners adopt that method of presentation to the judge, the petition is in the power of the signers. Each signer may control his signature. It is not yet a petition in which the public is interested. The matter is as yet in fieri, so to speak. But, when the petition has been filed with the county clerk, it has been then delivered, presented to the court, made a court record. The public has now become interested in it. The jurisdiction of the subject-matter has now attached. In the absence of something in the statute permitting it, no individual signer, nor indeed all the signers, could thereafter withdraw or erase their names from the petition without leave of the court. And the court should not grant such leave without some good cause shown therefor. * * * The law makes no provisions for protests and remonstrances, for signing and countersigning. It only provides for the petition.” In addition to the eases cited in the above case, see Calvin v. Finch, 75 Ark. 154, and McClure v. Topf & Wright, 112 Ark. 342.
But counsel for appellants contend that this construction of the statute is contrary to the last clause of § 11, which is as follows: ‘ ‘ Said order of exemption may be rescinded or modified at any time, upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption.” This clause of § ll does not contemplate that those who have signed the petition for exemption provided for in the first part of the section and who have filed the same with the clerk of the county court, and thus given the court jurisdiction to hear the petition, shall thereafter withdraw and erase their names from the petition without leave of the court. Those who have signed the original petition for exemption will not thus be permitted “to march up the hill” to give the court jurisdiction, and then “march down again” to destroy such jurisdiction in the same proceeding. The signers of the original petition for exemption should not be allowed, as is said in Bordwell v. Dills, supra, “to play fast and loose with the interest of society.” “The law makes no provision for protests and remonstrances, for signing and countersigning.” The clause quoted, upon which counsel relies, does not permit a change of heart in the same proceeding after the jurisdiction of the court has attached by the filing of the petition for exemption. It only authorizes a petition for rescinding or modifying the order of exemption, and that must be signed by a majority and presented in the same manner as in the original petition for exemption.
The judgment of the circuit court is in all things correct, and it is therefore affirmed. | [
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Kirby, J.
This is the second appeal of this case, a .statement of which will be found in Waterworks Improvement Dist. v. Rainwater, 173 Ark. 523, 292 S. W. 989. It was held on the former appeal, tinder the facts proved, that the court should have entered judgment in favor of the improvement district upon the bond oif the depository bank and the sureties thereon for the sum of $4,000, with interest at 4 per cent, as provided in the contract between the bank and the improvement district.
The case was reversed and remanded, it being said in the opinion: ‘ ‘ The court erred in not rendering a verdict in accordance with the views expressed in this opinion, and the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.”
On the remand of the cause the defendants filed an amendment to their answer, setting up that .they became sureties upon the bond on the false representation of A. E. Waters, the president of the bank, that he was also signing said bond as a surety; that the plaintiffs knew their signatures were so procured, and accepted the bond without requiring Waters to sign it as a co-surety, thereby knowingly releasing him from any personal liability on the bond, without the knowledge, consent or acquiescence of the other sureties, and that they were thereby released and absolved from any liability or obligation under the bond.
Another amendment alleged that A. E. Waters was the real party at interest in securing the deposit of funds in the bank, of which he owned three-fourths of the stock} that he handled and negotiated all the transactions connected with it, had the bond prepared, and presented to the other sureties, representing that he w'ould sign same as surety and become jointly liable; that their signatures were procured upon such false representation, and they did not know that Waters was not a surety on said bond until the suit was filed. That he agreed with the defendants to become jointly liable, and fraudulently failed to sign the bond; that he was legally jointly bound by his conduct .with the other defendants, if there was any liability incurred by them on the bond, and that Waters .should be made a defendant, and if any judgment was rendered against the other sureties it should be rendered against him as well. Alleged the joint liability of Waters under the circumstances, and prayed that he be made a party defendant, and that the cause be continued until the next term, etc.
Appellee moved to strike from the files the amended .answers, because any judgment rendered thereon would be inconsistent with the opinion remanding the case, and because the alleged defenses attempted to be set up by the amendments to the answer were known or could have been known to the defendants before the cause was first tried, and because the matters alleged in the amendments stated no defenses to plaintiff’s complaint. Appellees also moved for judgment on the mandate for .the amount, which the court, on the former appeal, held the judgment should have been rendered for.
The -court sustained the motion to strike the amendments to the answer, and, appellants refusing to plead further, rendered judgment for $4,187.48, the amount due according to the opinion of the Supreme Court on the first appeal, and from this judgment this appeal is prosecuted.
Appellants insist that the court erred in striking-out the amendments to their answer, in not granting a new trial, and in rendering a judgment upon the motion against them on the mandate, without the introduction of any further testimony.
The direction in the opinion reversed the cause for the error of the lower court in not rendering a judgment in accordance with the views expressed therein, and remanded the cause for further proceeding's according- to law and not inconsistent with the opinion.
It is true the general rule in cases at law is, upon reversal, to remahd for a new trial, hut there was no direction specifically made for a new trial upon any or all of the issues involved in this case (Longer v. Carter, 102 Ark. 72, 143 S. W. 575; Morgan Engineering Co. v. Cache River Drain. Dist., 122 Ark. 491, 184 S. W. 57; Deason & Keith v. Rock, 149 Ark. 401, 232 S. W. 583, and the order was. not in fact a remand for a new trial in general, and the appellants were not entitled to inject into the case any new issues as grounds of defense which might have been and were not presented on the first trial. The principal of res judicata extends not only to the questions of fact and of law which were decided in the former trial, but also to the grounds, of recovery and defenses, which might have been, but weire not, presented. Howard-Sevier Road Imp. Dist. No. 1 v. Hunt, 166 Ark. 71, 265 S. W. 517; Newton v. Altheimer, 170 Ark. 371, 280 S. W. 641; Harrod v. St. L. I. M. & S. R. Co., 98 Ark. 596, 136 S. W. 974; Hollingsworth v. McAndrew, 79 Ark. 185; Hill v. Draper, 63 Ark. 143, 37 S. W. 574.
The amendments stricken out were not filed by permission of the court anyway, and might have been stricken out on that account. Ark. State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S. W. 449; Meador v. Weathers, 167 Ark. 264, 267 S. W. 787; Temple Cotton Oil Co. v. Davis, 167 Ark. 449, 268 S. W. 38; Road Dist. No. 6 v. Hall, 140 Ark. 241, 215 S. W. 262.
The matter alleged in the amendment attempted to be filed to the answer did not constitute a. defense to appellees’ cause of action anyway, and could have been stricken out under the allegations in the third paragraph in the motion to dismiss, which was in effect a general demurrer thereto..
■ The appellants, signed the bond, as appears from their signatures thereon, after the bank’s signature, by Waters as president, principal, and each of them must have known in so doing that Waters had not signed as a surety, and their answer admits that they knew this before the first trial. The most they could have expected from his being compelled to become a surety and held liable as such would have been contribution from him for the amount of the judgment recovered against and paid by them as sureties upon the bond upon which he should have become surety if their contention was tenable. This would not reduce their liability to appellee in any degree, and they are not precluded on account of this decision from prosecuting any cause for relief they may have or-may be. entitled to against the said Waters on that account.
We find no error in the record, and the judgment is affirmed. | [
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Smith, J.
Appellant sued, as administrator of the estate of C. M. Powell, to recover damages for the killing of his intestate by one of the trains operated by appellee railroad company. At the conclusion of all the evidence the court directed a verdict in favor of appellee, and from the judgment pronounced on this verdict is this appeal.
Inasmuch as the verdict was directed against appellant, we must give the evidence offered in his behalf its highest probative value; and, when thus viewed, the testimony may be summarized as follows:
The railroad tracks ran north and south through the town of Monette, and a street of the town crosses the railroad south of the depot. Powell, the deceased, was in 1 his street, on the west side of the track, and he started walking across the track. As he stepped upon the track, he was seen to stop for a short space of time, and was evidently oblivious of the approach of the train, which was coming from the south. No circumstance was offered in evidence which would have excused deceased from looking up and down the track as he started across and for a short time stood near one of the rails. Stott v. St. L. I. M. & S. R. Co., 79 Ark. 137; Tiffin v. St. L. I. M. & S. R. Co., 78 Ark. 55.
Powell was killed on the morning of November 3, 1920. The weather was not clear, but it was dry and dusty, and the approaching train threw up a cloud of dust. The engineer testified that he was keeping a lookout, and did not see Powell, and did not know that the train had struck him until after it had stopped at the depot, as Powell had come up on the track from the fireman’s side, and, by the time Powell had come near enough to the track to be in danger from the train, the engine so limited the engineer’s range of vision that he could not see Powell. The fireman did not testify.
Witnesses who saw the collision say that PoAvell stood still for a short time before being struck, Avhen he was seen to turn as if to leave the track, Avhen the engine struck him, knocking him sixteen or eighteen feet.
Powell lived for two days, and suffered consciously.
The train approached the station rapidly, and the bell was not rung nor was the whistle sounded.
Under the facts stated, PoAvell Avas guilty of negligence contributing to his death; but it does not follow necessarily that the right of his administrator to recover damages for his death is defeated on that account. Contributory negligence on the part of the person injured was formerly an absolute defense to suits for damages in cases of this character; but that rule was changed by act 156 of the General Acts of 1919, page 1-13, which appears as § 8575, O. & M. Digest, and reads as follows: “In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recov ery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided that, where such contributory negligence is shown on the part of the person injured or killed, the amount -of recovery shall be diminished in proportion to such contributory negligence. ”
Construing this statute in the case of St. L. S. F. R. Co. v. Kirkpatrick, 155 Ark. 632, we held that.the contributory negligence of the person injured did not defeat a recovery where such negligence was less than that of the operatives of the train inflicting the injury; and it is the opinion of the majority of the court, under the facts herein stated, that it was properly a question for the jury to compare the negligence of Powell 'with that of the operatives of the train, and that it cannot be said as a matter of law that Powell’s negligence was not less than that of the railroad.
Powell should have looked for the train, and, had he done so, he could have seen it; but a proper lookout should have been kept, and, had this been done, Powell would have been seen and the jury might have found that, had the bell been rung or the whistle sounded, he could have stepped aside and have averted his injury, even though the train could not have been stopped in time to avoid striking him.
The majority have concluded therefore that a verdict should not have been directed in favor of the railroad company, but that the jury should have been allowed to consider and to compare the negligence of Powell with that of the railroad, under instructions declaring the law that a recovery could be had if Powell’s negligence was found to be less than that of the railroad company, in which event the recovery should be diminished in proportion to such contributory negligence. St. L. S. F. R. Co. v. Kirkpatrick, supra; Davis v. Scott, 151 Ark. 34.
If is insisted that the administrator had no right to maintain this suit, for the reason that he had filed a final settlement at the time of the institution of the suit. This suit being- only for the benefit of the estate, an administrator only could sue for the damages recoverable on that account. But the fact that the administrator had filed his final settlement would not operate to defeat the suit and as divesting the administrator of his capacity to sue, unless this settlement had been approved and the administrator discharged, as the probate court' might well have continued the administration for the purpose of distributing any recovery by the administrator.
For the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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McHaney, J.
On and prior to May 29, 1940, appellant, Clifton Martin, and his brother, DeWitt Martin, were in the employ of E. L. Bruce Company and Jack G-alloway as termite exterminators. On said date and also on May 27 and 28, they were engaged in such extermination work on the Bynum residence in Dermott, Arkansas. At about 9:30 a. m. of the 29th, while engaged in sawing a floor joist in two for the purpose of removing the damaged portion thereof, DeWitt Martin’s arm came in contact with an electric house wire under the house where they were 'working, from which he received a charge of electricity which caused his death. Clifton Martin attempted to extricate his brother and received injury in doing so. Thereafter separate suits were filed by appellants, Clifton Martin and Mrs. Bertha Martin, the latter as administratrix of her husband’s estate, to recover damages for personal injuries received by Clifton and for the death of DeWitt, against their employers and appellee. Nonsuits were taken by appellants as to the employers. The negligence charged and relied on was that the primary and secondary wires of appellee were strung through the tops of trees between the transformer and the Bynum residence; that current was permitted to pass from the primary wires to the secondary because of limbs on said trees coming* in contact with both which would render the transformer useless; -that a certain ground wire on the third wire of the service lines was not; properly grounded; and that the injury to Clifton Martin and the death of DeWitt Martin were caused directly by an overcharge of electricity passing- over the wires leading to the Bynum residence. Appellee’s answer was a general denial and pleas of contributory negligence and assumed risk. Trial to a jury resulted in verdicts and judgments for appellee. This appeal followed.
A number of errors are assigned and argued for a reversal of these judgments which become unimportant, for the reason that, in our judgment., the court should have directed a verdict for appellee on the undisputed evidence and the physical facts and circumstances connected with the accident. These alleged errors, therefore, will not be discussed.
As before stated, appellant, Clifton Martin, and his brother were not in the employ of appellee. The house wires in the Bynum residence, including- the wire under the house on which DeWitt Martin was electrocuted, did not belong- to and were not installed by appellee. The service or secondary wires leading from the transformer and serving the Bynum residence also served some twelve to fifteen other residences in that vicinity, all of which received or had available exactly the same amount of current at all times as the Bynum residence. The primary or high tension wires carried 2,300' volts of electricity. The transformer stepped this current down to 110 volts for domestic service, and there is no testimony that the transformer was out of order or that it was not properly functioning. There is testimony that both the primary and secondary wires passed through the tops of two trees and were adjacent to and may have at times come in contact with some of the branches of these trees which were between the transformer and the Bynum residence, and it is appellants’ theory that the current from the high tension line was -shorted or diverted to the service-line by reason of contact with these limbs, causing an excess voltage on the service lines which killed DeWitt Martin and injured Clifton. Their expert witness said that it was possible for the current to be so diverted and that, in his opinion, that is what caused the injury. He said that a green tree limb was not a good conductor, but that, in his opinion, it was good enough to divert sufficient current to cause injury and death. This appears to be appellants’ whole case, except some reliance is placed on an alleged defective ground wire on the third wire of the service circuit. We think the evidence given by the expert is lacking in definiteness and certainty. It is more or less speculative and conjectural. His conclusions depend upon assumed facts, such as a limb being a conductor and that if it were, why would not the current be grounded by the tree itself; that the same limb would have to contact both the primary and secondary wires at the same time and the latter, at a point not insulated; and that the tree would not ground the current. It is undisputed that the- Martins were working in close quarters, the floor joists being about thirty inches above the ground; that they had been working about two hours before the accident; that they were both wet with perspiration, indicating a hot day; that their clothes were wet and muddy; that while the ground under the house was dry, their wet clothes had contacted the dirt; that DeWitt Martin was sawing the floor joist when his right arm came in contact with the house wire, he sitting on his heels with his knees and toes on the ground. Whether his arm came in contact with an uninsulated portion or bare spot on the house wire is in dispute. According to several reputable citizens, Clifton Martin stated in their presence, shortly after he had gotten his brother out from under the house, that his brother’s arm contacted a bare portion of the wire after he had warned him of its bare condition just before the accident. But Clifton denied that he made any such statement. Whether he did or not is unimportant here, for, as we view it, there is no substantial evidence that an excess voltage came over the service wires, but that the accident was caused by the ordinary and usual voltage. It is undisputed that none of the electrical equipment in the Bynum residence was disturbed. No' fuses were blown, no lights were burned out, no motors were damaged — nothing happened. The same is true as to all the other residences serviced by the same secondary circuit, or at least there is no evidence that any such equipment was damaged. It was shown, and we know it to be a fact, that if there is a greatly excess current coming in over house wires, all lights that are turned on will be burned out and the fuses blown. Appellants virtually admit, at least they do not deny, that the light globe on an extension cord used by them under the house, was still burning after the accident, thus conclusively showing there was no excess current sufficient to burn out the lights on the circuit.
It is well recognized that 110 volt current or even less will, under similar conditions as here shown to exist, cause death. It was so recognized and the authorities cited and quoted from in Oklahoma Gas & Elec. Co. v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550, where we reversed the judgment and dismissed the cause on an allegation of excessive current because of a defective transformer. There the deceased was working under the house on wet or moist ground, while here the deceased and his clothes were wet to the extent that the dirt clung to them and appeared to be muddy. Thus the body was a good conductor in either case, and when contact was made with the live wire, it caused a short circuit through his body causing death. In that case tests were made to deter mine whether excess voltage was passing through the secondary wires and it was found there was not. Here, while no similar test was made, the fact that there was no excess current is shown by the fact that no lights were burned out, not even the one they were using, no fuses blown, no electrical appliances injured, and no interruption of service in any home so served. In the Frisbie case a screwdriver held in the hand of deceased was fused by the force of the current of 110 volts. As we there said: “To say that appellee’s intestate came to his death by reason of appellant’s negligence would require speculation not only as to the amount of current which proved fatal, but also as to the method by which such alleged excess charge entered the house. Neither allegation is established by any direct testimony, and res ipsa loquitur cannot be applied as a rule of law in a case where it is shown that the result — in this case death —might have been brought about by one of two or more speculative theories, neither of which is included or excluded by any affirmative evidence.”
In Arkansas-Missouri Power Corporation v. Powell, 200 Ark. 309, 139 S. W. 2d 383, in reviewing the holding in the Frisbie case, we said: “In Oklahoma Gas & Electric Company v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550, recovery was denied under the res ipsa loquitur doctrine where appellee’s intestate was killed while working under a building. He came into contact with electricity of sufficient voltage and amperage to produce death within a very short period of time. As in the case at bar, the primary wires leading to the transformer through which electricity was supplied to the house under which Frisbie was working carried 2,300 volts. Frisbie was lying on his back on wet or moist ground and accidentally made contact with exposed wires while attempting to use a screwdriver. The tool was burned, and there was testimony that not less than 1,000 volts would have been required to produce the fused condition.
“The defendant showed that other residences and the administration building of the public school system were served from the transformer and there was no interruption of service.
“In the instant case it is shown that the ‘Y’ hut continued on the transformer; that there were no repairs, and that the voltage .when tested shortly after accident was 112.
“In the Frisbie case, Herzog’s Medical Jurisprudence is quoted as asserting that from 55 to 110 volts alternating current have frequently produced death, and may be regarded as dangerous.”
We are, therefore, of the opinion that this case is ruled adversely to appellants by both the Frisbie and the Powell cases, and that the court should have directed a-verdict for appellee at its request. Not having done so, and the jury having returned verdicts for appellee, the judgment in its favor so entered, must be affirmed. It is so ordered. | [
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Humphreys, J.
This suit was commenced by appellee against appellant in the chancery court of Union County for maintenance and support of herself and eighteen-year-old son, making necessary statutory allegations to obtain same. The gist of the complaint'is that appellant, her husband, voluntarily and without cause ceased to live with her on November 26, 1924, as his wife, and since that time has failed to care for and maintain her and their son as he should, out of his earnings of $350 per month as a locomotive engineer for the Chicago, Rock Island & Pacific Railway Company. She prayed for an allowance of $100 per month for the maintenance and support of herself and son.
Appellant filed an answer, denying the alleged canse of action and the extent of his earning capacity, and a cross-bill for an absolute divorce, upon the alleged ground that appellee had offered him indignities which rendered his condition in life intolerable; that she had been unjustly jealous of him for a number of years, and, on that account, had wrongfully accused him of being intimate with other women, and continually quarreled and nagged at him, so much so that he was forced to leave home to obtain any peace of mind and rest between his railroad runs.
Appellee filed a reply denying the alleged indignities set up in the cross-bill for divorce.
The cause was submitted to the court upon the pleadings and testimony adduced by the . respective parties, which resulted in a decree in favor of appellee for $37.50 per month for support and maintenance, the use of their home in El Dorado for her life, and a decree in favor of appellant from bed and board. Appellant has duly prosecuted an appeal from that part of the decree granting him a decree of divorce from bed and board instead of an absolute decree of divorce, and in allowing appellee $37.50 per month for the support of herself and son.
Appellant and appellee were married on November 11, 1894, and lived together, with the exception of about three months in 1922, until November 26, 1924, at which time they separated. Appellee remained in appellant’s home with her three sons, Neil, 31 years old, Roy, 24, and Howard, 18, and appellant moved to other quarters. After appellant left, home the two older sons paid board to their mother, and with that, with a little room rent which she collected for a time, and the contributions from her husband to herself and son, she maintained the home. Appellant’s contribution consisted largely in paying grocery bills and in purchasing clothing for and furnishing spending money to Howard. His earnings have dropped off considerably the last few years, and his per sonal expenses have increased since leaving home.
After the first separation, appellant and appellee remained apart for throe months, at which time a reconciliation took place, and they lived together in peace and harmony for awhile, but drifted back into the turbulent life they were living prior to the first separation. Strife existed between the father and oldest son to such an extent that it became impossible for them to live together in the home. Appellee took the side of her 31-year-old son, and insisted that her husband must go, if either left home. During* these latter 3>*ears there was little or no congeniality between appellant and appellee, and, as a result, there were many bickerings and frequent quarrels. Appellee became intensely jealous, charging appellant with infidelity. In fact, most of the quarreling resulted from the charges she made against him of intimacy with the women with whom he boarded when out on his railroad trips. He boarded where the other railroad men boarded. The charges she made against him were based largely upon rumor, and, so far as the record discloses, there was little or no foundation for them. Appellee went to the extent of having policemen raid the houses and hotels in which he stopped in an effort to ascertain the truth of the rumors. The record reflects that both parties were to blame, 'but, according to the weight of the testimony, appellee was to blame in a greater degree than appellant. The only disinterested witness who testified to the alleged ground for divorce was Mrs. Mae Bishop. She and her husband lived in the home of appellant and appellee from February, 1924, to April, 1925, and did light housekeeping. They were there when, the final separation occurred. Mrs. Bishop testified that she heard appellee tell appellant to get his trunk and -leave; that, after he left, appellee came into her room and said she did not care if he had gone, as she had three sons to support her; that she did not need him; that appellee fussed at appellant all the time that he was around the house.
Appellee herself testified that she had lost all her love for appellant, and the oldest son admitted that be disliked his father and quit speaking* to him.
It is apparent that the appellant and appellee can never live together as husband and wife again. They made an honest effort to do this, and failed. The marital relationship has been shattered beyond repair or redemption. No useful purpose could be served by granting the divorce to appellant from bed and board only. It is true that appellant was not blameless, but much that he did and said was due to provocation emanating from the jealous heart of appellee. She was to blame in a greater • degree than he for the irreparable situation. A divorce a vinculo matrimonii may be granted upon the same ground that divorce a mensa et thoro may be, and it should always be granted where the evidence warrants the granting of either, unless by granting the latter a reconciliation might be effected.
We think the chancery court correctly found that appellant was entitled to a divorce, but erred in granting him a divorce from bed and board only instead of an absolute one.
In the matter of the allowance of alimony we agree with the chancery court. A chancery court has the power to allow alimony to a wife against whom a decree of divorce is granted. The amount allowed should be governed by the circumstances of each particular case. Prior v. Prior, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; Shelfman v. Shelfman, 153 Ark. 110, 239 S. W. 728.
In the instant case appellant and appellee lived together for thirty years. Appellee bore him five children, three of whom are living and residing with their mother. She was decreed the house for life, and she will have to keep the taxes paid and make the necessary repairs upon the property. The station in which appellant and his family lived, when considered in connection with lfis earning capacity, justified the expenditure of ia considerable amount each month. They kept a servant most of the time. Although his earnings are less than they were, and his personal expenses have increased on account of the separation, it will work no great hardship on him to pay $37.50 a month, the amount allowed her by the chan eery court. It must be remembered that appellee has no ability to earn, having- contributed her life to the care of a large family and the many duties incident to housekeeping. Prom aught that appears, she performed her duty well until jealousy entered her heart and obsessed her mind. She at least had rumor, and a picture of another woman she found in appellant’s pocket, to support her change in attitude toward him. Had appellant been considerate and kind at all times, instead of inconsiderate and harsh, he might have disabused her mind of the effect produced by rumor and the discovery of the picture. It perhaps disclosed a lack of confidence on her part to search his pockets, but it only added fuel to the flame to carry the picture of another woman in his pocket. The circumstances detailed above warrant the allowance made by the chancellor.
The decree for alimony will be affirmed, but the decree from bed and board will be reversed, and the cause remanded, with directions to enter a decree for absolute divorce in favor of appellant.
Hart, C. J., and Kirby and Mehaeey, JJ., dissent from the allowance of alimony. | [
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Smith, J.
This cause was tried in the court below on the following agreed statement of facts :
“It is hereby agreed that L. A. Bland, the above-named defendant, purchased from the Williams Mill Manufacturing Company of Texarkana, Arkansas, one 27 H. P. Kruger Atlas engine with necessary equipment, on Feb. 6, 1920, and that said engine was to be shipped to L. A. Bland at Hoxie, Arkansas; and at that time the said Bland paid on the purchase price of said engine $500, and executed his notes for the balance purchase price, the vendor retaining title to said engine until the purchase price was fully paid; and later, and prior to the time said engine was shipped, the said Bland paid $370 more on the purchase price of said engine.
“That, without any knowledge on the part of the said Bland, the Williams Mill Manufacturing Company placed its said order received by it from the said Bland with the San Antonio Machine & Supply Company, of San Antonio, Texas, for shipment and delivery to L. A. Bland at Hoxie, Arkansas. That on May 4, 1920, the San Antonio Machine & ’Supply Company forwarded to their order, notify L. A. Bland, Hoxie, Arkansas, the above make gasoline engine, which was covered by Gr. H. & S. A. waybill No. 132, dated May 15, 1920. Said shipment was covered by Hoxie, Ark., freight bill F-9, the said shipment of machinery being what is known as shipper’s order, having been shipped by the San Antonio Machine & Supply Company to itself at Hoxie, Arkansas, and bill of lading and draft sent to the State National Bank of Texarkana, Arkansas, to be paid by the Williams Mill Manufacturing Company.
“That said shipment was, in June, 1920, received at Hoxie, Ark., and plaintiff’s agent notified the said Bland of its arrival, the notice stating only that there was due on said shipment the sum of $135.51 freight charges. That, upon receipt of said notice, the said Bland called at plaintiff’s office in Hoxie, Ark., paid the freight charges of $135.51, and plaintiff’s agent delivered said engine to him.
“That the said Bland had-no knowledge or information that said engine was the property of or claimed by the San Antonio Machine & Supply Company, or that there was charges against it of $1,073.25, as shown by the bill of lading and draft which was sent to Texarkana, Ark., or that said shipment was sent shipper’s order, until long after the delivery of said shipment to him, and that he did not pay the draft or surrender the draft and bill of lading at the time the engine and machinery was delivered to him.
“That the above-named plaintiffs have never been paid the amount of $1,073.25 due on said shipment by Bland or any one else, and, to avoid litigation, these plaintiffs paid the San Antonio Machine & Supply Company said sum, as they were demanding of plaintiffs the return of said shipment or the value thereof. And that said plaintiff received from the San Antonio Machine & Supply Company an assignment of all its rights in and to said claim and shipment, and any rights it might have in any cause of action against the defendant Bland.
“That the said Bland paid $870 on the purchase price of said engine to the Williams Mill Manufacturing Company, the concern from whom he bought same, before lie had any notice from, plaintiffs or any one else claimed or had an interest in said shipment; that the outstanding notes for the balance purchase price on said engine executed to the Williams Mill Manufacturing Company by the said Bland are now in the hand's of the State National Bank of Texarkana, Arkansas, who claim to be innocent purchasers of same for value.
“That the Williams Mill Manufacturing Company, about the time of the shipment above referred to, or shortly thereafter, became bankrupt, and all of its assets were taken charge of by the bankrupt court at Texarkana, Arkansas, and its notes, including the notes of the said Bland, were sold.
“That the plaintiffs have never offered or tendered to the defendant Bland the amount, of freight charges paid by him on said shipment.
“It is further stipulated and agreed that L. A. Bland has been in the possession of said engine ever since its delivery to him, as above stated, and is now in the possession of same.”
The plaintiff railroad company asked the court to make certain declarations of law, which, if made, would have entitled it to a judgment for the sum it had paid the San Antonio Machine & Supply Company, but the court refused these requests, and made the following finding of fact and declaration of law:
“And the court, after hearing argument of counsel, is of the opinion that the declaration of law requested by the plaintiff should not be declared as the law of this case, and finds, upon the theory and argument of the defendant, that the machinery in question was paid for by the defendant, L. A. Bland, to the Williams Mill Manufacturing Company, and that there was no privity of contract or obligation existing between the defendant and San Antonio Machine & Supply Company, and that the plaintiff delivered said machinery to the defendant voluntarily and accepted the freight therefor due it, and has not at any time tendered said freight back to the defendant, and that the plaintiff knew, or should have known, bill of lading shipper’s order was attached, and should have notified said defendant of such facts, in order that he might protect himself against the payment for said machinery twice, which would be the consequence of finding for the plaintiff in this cause.
“And that there was no tortious conversion of said property by the defendant for his own use, and that said machinery was delivered to the party to whom it was shipped, and that the notice given to the defendant by the plaintiff was merely to pay the freight, which he did, took the machinery in good faith, and not by any wrong, fraud or deception.”
Upon this finding the court rendered judgment in favor of the defendant, and the railroad company has prosecuted this appeal to reverse that judgment.
Appellant company cites cases which announce the law to be that, where a shipment is consigned shipper’s order, the title remains in the shipper until he orders a delivery of the goods, and that delivery can be made only on production and surrender of the bill of lading covering the shipment; and that, if . delivery is made without requiring the surrender of the bill of lading, the carrier is liable to the consignor, or to the person entitled to 'receive the shipment, for the value thereof, and that this is especially true where the shipper’s order bill of lading has attached to it a draft on the buyer, or where the bill of lading or shipping receipt contains the direction that a third person shall be notified of the arrival of the goods, the carrier is not authorized to treat the person to be notified as the consignee, and, if it delivers the goods to him without production and surrender of the bill of lading, it will be liable to the true owner of the goods for any loss resulting from such delivery. Sections 371 and 372, chapter on Carriers in 10 C. J., p. 259, and cases cited in the notes to the text.
Other cases are cited by the appellant to the effect that when, through mistake, fraud, or otherwise, the carrier has been induced to deliver goods to a person not entitled thereto, and he refuses to return them, the carrier may maintain an action against him for the recovery of the goods or for their value. If the carrier, after delivery to the wrong person, on demand, pays the consignee their full value, it may recover from the person the money so paid as paid to his use, where the delivery is made by mistake. Section 383, chapter on Carriers in 10 C. J., page 268, and cases there cited.
The principles of law stated have received recognition-by this court in the cases of Fordyce v. Dempsey, 72 Ark. 471; Arkansas Southern Ry. Co. v. German National Bank, 77 Ark. 482; and Tedford v. C. R. I. & Pac. ry. Co., 116 Ark. 198. But we have here a case where the delivery was not a mistake in the ordinary sense of that term, nor was the delivery induced by any fraud or other wrongful act of appellee. From his standpoint appellee was entitled to have the delivery made to him, as was done, upon payment of the freight. He had paid for the articles shipped, principally in cash, and the balance in negotiable notes, which are outstanding against him, if they have not already been paid. It affirmatively appears that appellee would not have recived the shipment if he had been advised that delivery would be made to him on condition only that he pay for the goods a second time. The carrier, of course, had the right to withhold delivery until the draft drawn by the consignor had been paid, but it did not do so. It made the mistake of making delivery without exacting payment, and some one must suffer as a consequence of this error. Who should bear this loss?
The instant case is not unlike the case of Long Island Rd. Co. v. Structural Concrete Co., 110 N. Y. Supp. 379, decided by the Supreme Court, Appellate term, where the court said: “On behalf of the plaintiff it is urged that the facts make out a case of conversion, on the principle that, where a common carrier delivers goods by mistake, the person to whom they are delivered is liable in conversion, citing Hutchinson on Carriers )3rd ed.), § 863. It is unnecessary to determine what would be the situation if the plaintiff had delivered the goods by mistake in the usual acceptance of that term, and the defendant had received them through mistake or in bad faith. But in this case it would appear that the carload was delivered intentionally by the plaintiff’s agents, and was received in good faith by the defendant, and that the goods were paid for by the defendant to the person from whom the defendant purchased the same. Under .such circumstances I think the loss should remain where it is, and that the trial justice was right in dismissing the complaint.”
Under the facts recited herein, the appellant railroad company would have the right to recover the sum which it was required to pay the consignor, but for the fact that it was its own mistake which caused the trouble. One of two innocent parties must suffer, and, under these circumstances, the loss was properly placed by the trial court on the one whose mistake was responsible for the loss, and that judgment is therefore affirmed. | [
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Mehaffy, J.
The appellee, plaintiff below, had obtained a judgment against L. L. Barham in June, 1924, on which execution was issued December 24, 1924, and no property could be found upon which to levy, the execution.
On February 5,1925, this suit was begun in the Crittenden Chancery Court against L. L. Barham, Alma E. Barham, C. E. Barham and V. Lee Brunson. Plaintiff alleged that L. L. Barham was the owner of certain described property, that he executed a deed of trust, but that said deed was without consideration, and that it was made with the intent to prevent plaintiff and other creditors of L. L. Barham from collecting their debts. Plaintiff alleged that on September 7, 1923, L. L. Barham purchased certain property, but had it conveyed to his wife, and it was also alleged that other property was purchased by L. L. Barham and deeds, made to his wife, and that all these deeds were made to the wife instead of to L. L. Barham for the purpose of hindering, delaying and defrauding the creditors of L. L. Barham. Plaintiff also alleged that L. L. Barham conveyed certain property to his daughter, V. Lee Brunson, for the purpose of defrauding creditors. It was sought to have these conveyances set aside as fraudulent and to subject the property to the payment of the judgment against L. L. Barham.
The answers of the defendants denied the material allegations of the complaint.
Plaintiff also alleged that certain other money was gotten 'by L. L. Barham and transferred to his wife, Alma E. Barham, in fraud of his creditors.
The defendant, L. L. Barham, testified, in substance, that Alma E. Barham was his wife, Y. Lee Brunson his daughter, and O. E. Barham his brother. That on December 21, 1923, he and his wife executed a deed of trust to C. E. Barham, conveying certain property in the town of Earle to secure the payment of a note to C. E. Barham. That C. E. Barham was in the lumber business at Marks, Mississippi, 'bought a lot, and erected a house for their mother, who is an invalid, and L. L. Barham was to pay one-half of the purchase price, and to pay the monthly bills incurred by his mother. Did not know the exact amount of the debt. The house was erected in 1917 and 1918 at a cost of about $4,000. Did not remember the price of the lot. He also testified that on September 7, 1923, W. W. Harrison conveyed certain property to Alma E. Barham. That Alma E. Barham and Mrs. Brunson opened a garage in the- town of Earle. Prior to that time Brunson, the husband of V. Lee Brunson, and. a man named Aldridge were in the garage business, and went into bankruptcy. Alma E. Barham and Y. Lee Brunson then opened a garage with a capital of $2,000. The money used by Alma E. Barham was got from her father. The money with which Alma E. Barham purchased the property was money that her father, gave her. The property where the gin is. belongs to Mrs. Barham. The money was borrowed from the Federal Reserve Bank in 'witness’ name. Witness insisted on his wife signing notes, but the cashier said it made no difference, and she did not sign them.
Witness’ wife bought other property from J. O. Blarham. Witness has not paid the money secured by the deed of trust to C. E. Barham, except two or three thousand dollars. Does not remember the date of the transfer of his stock in the Bank of Commerce to his son. It was in Novembei, 1923. Conveyed his stock in the Crittenden County Bank & Trust Company to his son. Was a director and vice president of the Bank of Commerce after his stock was transferred.
Alma E. Barham ‘owns, property purchased from Nesbitt and others. The contract was made in 1924. Witness’ wife furnished the money to make the payment.
Alma E. Barham also owns 160 acres south of Earle. This was bought in 1923, 80 acres of it, and the other early in 1924. She borrowed the money for the second 80-acre tract from the Joint Stock Loan Bank of Memphis. The money came from her father. She received between eight and ten thousand dollars from her father. Witness had been using part of it, and part of it was invested in Liberty 'bonds. Her money was in the Bank of Commerce at the time this property was purchased. Witness had authority to draw checks on Mrs. Barham’s account. Alma E. Barham owns the gin. She bought it from the Continental Gin Company for $5,700, and had paid $3,000 out of moneys received from the operation of the gin. Witness made a statement of his financial condition to the Bank of Commerce in August, 1924. Does not know whether the statement shows that he had notes and trade acceptances amounting to $33,100. Made the statement to J. C. Moore, and insisted on him getting witness’ wife to sign it. Told Mr. Moore that his wife owned the stuff. His wife’s property consisted of bank stock, various notes, the details of which witness does not remember. Did not read the ■ statement, and Mr. Moore filled it out. Signed it without reading it. Does not recall whether he had $31,100 of notes at that time or not. Does not recall that he had $2,800 in accounts receivable, and does not remember whether he made such statement. Did not have any live stock in 1924. In 1923 he possibly had 15 or 20 head, and sold them to various people.
The statement made by witness to the Bank of Commerce September 9, 1924, shows that he owns $8,000 stock in garage. Witness did not fill out the statement, and did not have the stock in the garage. Did not have anything in it. His wife owned it. While witness signed notes, he told Mr. Moore at the time it was his wife’s debt, and insisted on her signing it, but Mr. Moore said it was not necessary. Witness does not know how much he owed the 'bank at that time. Made a statement in 1923, but if he stated he owned anything in the garage it was wrong, for the garage was Alma E. Barham’s. Possibly made a statement in 1924 that he was farming 2,000 acres. Other real estate valued at $5,000 refers to property in the town of Earle. Witness has his home, worth $6,300, in block 64. Statement shows $15,000 machinery, but witness does not know whether he owned that much at that time. Alma E. Barham bought the farming implements from witness’ son and Albert Horner, and witness paid it for her out of her account; some money that her father gave her. Witness’ wife put $2,000 in the garage and $3,000 in farming implements, and put $2,500 in land she bought; $1,200 in the land she bought from Barham and $1,200 in the gin. The home was in witness ’ name.
Witness does not own any automobiles. .They, belong to his wife. He had three or four cars in 1924, but sold them. The mortgage to the Joint Stock Land Bank is $6,500, and there are no other outstanding mortgages against the real estate. Made statement of assets and liabilities in 1923, but does not remember having made one in 1922. The statement shows witness worked 2,000 acres in 1923, but that is not true. Statement shows witness owned real estate, including residence, of the value of $18,100. Shows bank stock and stock in garage at $17,200, but that is not correct.' Does not own the garage, and does not recall that that statement was made, and does not recall the total of the statement for 1923.
Witness made a deed to his daughter, and she has been in possession of the note since 1919 or 1920, and witness just failed to put the deed on record. Property witness had in 1923 was lost in the bank and in farming. Lost $20,000 in stock and deposits. Did not give his wife anything. Did not .give her deed to property. Deeds were made direct from parties to her. Prior to 1923 did not think Mrs. Barham had an account with the. Bank of Earle. She opened account in December, 1923. Witness had been using her money. They.kept Ms separate, but did not keep books. • Witness’ wife knew what her father had given her, and in 1920 witness ■ erected a garage building and sold it for $25,000. -At that time Mrs. Barham wanted her money, and they had a settlement, and she had around $10,000 then. She bought a section of land later and made about $6,000 profit. Witness’ wife'got a portion of the. earnings. Mrs. Alma E. Barham’s father is still living. Lives with witness. He is old and blind. Gave Alma E. Barham this money several years ago. He owned 160. acres of land in Miss-. issippi, and sold it and gave his daughter, Alma E. Bar-ham, $6,000. That dates bade to 1905 or 1906. Then, after witness moved to Crittenden County, Alma E. Barham’s father gave her some more money, $1,500 or $2,000. Up to that time witness’ wife.did not have any bank account. Witness had possession of .the money all the time, and when it was in the bank it was in witness’ name. The property was bought in witness’ name, but he always consulted his wife. Witness’ wife bought Liberty bonds in 1917, about $5,000 worth, and sold them in 1920 and put part of the money in the garage. Witness always assessed his wife’s property. Prior to 1923 she never had any personal property. Does not think the garage was ever assessed, and Liberty 'bonds did not have to be assessed.
Witness’ son looks after the gin, and signs Alma E. Barham’s name to most of the checks. Witness signs but few checks himself. Does not owe the Bank of Commerce $3,000. That is a part of the bank’s property. The agreement between the vice president and witness shows what the $3,000 was for. Witness had an agreement with the bank that the $3,000 was not an obligation, but that witness 'had title to the property for the bank.
W. F. McCorkle testified, in substance, that he is deputy State Bank Commissioner, and had charge of the records of the Bank of Commerce, at Earle. The bank failed November 29,1924. The record shows loan to L. L. Barham of $5,000 in August, 1924, note due November 12,1924. The proceeds of the note were deposited to the credit of Alma E. Barham. Note of $4,000 discounted June 5, 1924, due October, 1924, was deposited to the credit of L. L. Barham, less the discount, and the proceeds on the same day were charged to L. L. Barham’s account and credited to Alma E. Barham’s account. On December 15 L. L. Barham had to his credit a balance of $3.26. The Federal Reserve Bank has the $4,000 note. The collateral pledged to secure the $4,000 note is shown by notation. In addition to the $4,000 and $5,000 notes, Barham owed the bank $3,044.55.
Y. S. Fuqua testified that he is managing director of the Federal Reserve Bank of St. Louis, and was such in 1924. Received the $4,000 note executed by L. L. Barham to Bank of Commerce, and at the same time a statement signed by L. L. Barham, dated August 9,1924. In October, 1924, Nesbitt and others made a contract with L. L. Bar-ham to convey certain property at $40 an acre.
J. C. Moore testified, in substance, that he was connected with the Bank of Commerce of Earle until it closed. Had known L. L. Barham several years. Property known as Sallew property was conveyed to L. L. Barham. This property was conveyed to Barham, and he gave a note for the purchase price. But the payment shows that the note was not to be paid, but the property was held by Barham, and he was to make a deed to anybody the bank might designate. Witness did not think he put anything on the financial statement of Mr. Bar-ham except what he furnished him. Does not remember that Barham told him that Mrs. Barham owned the property. Does not recall that Barham wanted Mrs. Bar-ham to sign the statement.
J. R. Pugh, an attorney, testified, in substance, that in 1924 Barham came to his office with some negroes, and stated that they were selling property. Witness prepared a, contract, and, after the contract was prepared showing that L. L. Barham was the purchaser, L. L. Barham told witness that his wife was the purchaser, and he wanted the contract rewritten, and the deed was made later. It was made to Mrs. Barham. Does not remember how much was paid. Payments were made by check and by exchange. Barham gave witness a piece of Memphis exchange to Mrs. Alma E. Barham, and there was a check on the Parkin Bank by Mrs. Alma E. Barham.
W. W. Harris testified that he worked for Barham and Brunson as bookkeeper. Remembers Mrs. Barham receiving some money in 1923. She put in more money from the garage than she received.
J. C. Borum testified that he sold lots in Earle to Mrs. Barham in 1924. Was paid by check by Mrs. Bar-ham, but does not remember the signature. The negotiations on the part of Mrs. Barham were made by L. L. Barham. He told witness that Mrs. Barham was the purchaser. She executed a trust deed to secure payment of the balance.
B. B. Brunson testified that he began the garage business in 1919 with L. L. Barham as his partner. Partnership existed seven or eight months. Had a falling out, and dissolved, and then a man named Aldridge and witness continued the business for two years and went into bankruptcy. After that, witness and Mrs. Barham started the.business up. Witness and wife, who is the daughter of L. L. Barham, live in Earle, and own their property, and' put the improvements on it after the lot was given to the wife. Mrs. Barham furnished the money to start the garage business. .
The chancellor entered a decree, holding the transfers mentioned in pleadings and evidence fraudulent and void, except the conveyance to V. Lee Brunson of lot 4, block 64, was not void, and that V. Lee Brunson was the owner. Exceptions were saved, and appeal prosecuted to reverse said decree.
It is first insisted by the appellant that the court erred in declaring the deed of trust executed by L. L. Barham and wife to Harris, trustee for C. E. Barham, to be without consideration, fraudulent, and void. It is insisted that the court erred, and that no witness was called to contradict Barham’s statement. And that.the only reason that suspicion is cast upon the act is due to the fact that the conveyance is to the brother of L. L. Barham. Appellant cites and relies on the case of Martin v. Banks, 89 Ark. 77, 115 S. W. 928. But in the Martin case both Mr. and Mrs. Martin testified and showed that, at the time of their marriage, Mrs. Martin had $1,600 derived from her father’s estate. Martin failed in business, and went to work on a salary. Martin’s testimony and that of his wife was that he devoted his earnings to the support of his family and invested Mrs. Martin’s money for her. All of the investments were made in her name, and the property always kept in her name, and no mingling of her property with her husband’s.
In the instant case Barham himself testified that his wife got property from her father, and that it dates back to 1905 and 1906, and that she never had any account in the bank. She did not handle the money. Barham kept it and used it himself. It is true, he says, that he consulted his wife about investments, but it was all done in his name, and she never had any account in the bank or any money in her own name until about the time the judgment was obtained against Barham. Her father, from whom it is claimed she received the money, is old and practically blind, and lives with his daughter. Mr. Barham, in his testimony, says that his brother is in the lumber business at Marks, Mississippi, and bought a lot and erected a house for their mother, and that witness' agreed to pay one-half of it, and executed the deed of trust to secure the payment to his brother. But he also shows that the house was built in 1917 and 1918, and the deed of trust was made on December 21, 1923, about five or six years after the house was built. And the proof by Mr. Barham himself shows not only that, but that all of the business was conducted by him in his name prior to this judgment which it is sought to collect. His statements show that he was worth in the neighborhood of $70,000.
“A man must be just to creditors before he can be generous to relatives. Therefore, where an insolvent debtor makes a voluntary transfer of his property, which is not exempt under the law from his debts, to those who are near of kin, whether he intends it as a fraud or not, it operates as a fraud on his creditors, for the reason that such a transfer hinders, delays or defeats them in the collection of their claims.” Davis v. Cramer, 133 Ark. 224, 202 8. W. 239.
With reference to this particular transfer, while the evidence does not show when the lots were bought, nor for whom, nor how much they cost, nor in whose name they were held, it does show that the house was built in 1917 or 1918, and there is no reason or explanation of why it was not paid for at the time. Whether it is in the mother’s name or the brother’s, the evidence does not show. At any rate, an insolvent debtor could not take money which justly belonged to his creditors and build a house, nor could he make a valid conveyance of his property for such purpose and thereby hinder and delay his creditors.
“It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; and when they are voluntary they are prima facie fraudulent; and when-the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” Harris v. Smith, 133 Ark. 250, 202 S. W. 244.
It is also insisted by appellant that the court erred in declaring the title to the southwest quarter of the northwest quarter of section two and the southeast quarter of the northeast quarter of section three to be in L. L. Barham. This is the property about which Mr. Pugh testified and for -which he drew the contract. The contract was drawn in Mr. Barham’s name, and afterwards he testifies that objection was made because of that, and the deed was -made to Mrs. Barham. Mi. Barham himself testifies about this transfer. That it was bought some time early in 1924, and that his wife borrowed the money for the second 80-acre tract. And the other was paid by L. L. Barham with a draft on his wife’s account, and that this money came from her father. But this was in the latter part of 1923 and the early part of 1924, and the money, according to his testimony, that she had received from her father was received five or.six years before this, kept in his name all the time, and used and managed by him.
Transactions between husband and wife are scrutinized and examined with great care, and especially when the transactions affect the rights of creditors. Mrs. Bar-ham herself does not testify. Neither does the father, and the only testimony with reference to receiving the money is by Mr. Barham, and, as to whether this tract of land was that of L. L. Barham or his wife was a question of fact, and we think the decree of the chancellor is supported by the preponderance of the evidence.
It is next insisted by appellant that the court erred in finding that L. L. Barham was the owner of lots 26 and 27 in block 13. This property was purchased in September, 1924, from John C. Borum, and L. L. Bar-ham testifies that his wife borrowed the money, or he did for her, from the Federal Reserve Bank. It was borrowed in L. L. Barham’s name, the notes were signed by him, and, until recently before this purchase, Mrs. Barham had had no bank account, did not keep her money in her name, and whatever money she had was kept in the name of L. L. Barham. And we think the testimony justified the chancellor in finding that this property was the property of L. L. Barham.
The testimony of the witnesses, the - circumstances developed in the case, the relation of the parties and the credibility of tbe witnesses are all matters to be considered by tbe chancellor in determining- all questions of faet. And, where the findings of the chancellor axe not against the preponderance of the evidence, they will not he disturbed on appeal. Watkins v. Parker, 81 Ark. 609, 99 S. W. 1106; Hyner v. Bordeaux, 129 Ark. 120, 195 S. W. 3; McKinney v. New Rocky Grocery Co., ante, p. 463.
"While the trial in this court is de novo, yet the findings of a chancellor will not he disturbed unless they are against the preponderance of the evidence. And in this case we think the findings of the chancellor are supported 'by a preponderance of the evidence, and the decree-is therefore affirmed. | [
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McCulloch, C. J.
Appellants allege that George H. Evans, one of the appellees, was, on February 16,1923, the owner of a gas and oil lease on certain land in Ouachita County, and on that date assigned the same to appellants for a consideration named in • the deed of assignment. They allege that the value of the lease is the sum of $20,000, and that Evans had, prior to the execution of the assignment to appellants, assigned the lease to appellees Harpham and Brannen and deposited the same with a certain bank in Little Rock under an escrow agreement. The prayer of the complaint was that appellees Evans, Harpham and Brannen be restrained from carrying out the former assignment, and that appellants have 'specific performance of their contract of assignment. The allegations with respect to the prior assignment to Harpham and Brannen are as follows:
“The defendant Geo. H. Evans had, prior to the execution of the assignment aforesaid to plaintiff, executed a certain assignment to his codefendants, A. C. Harpham and Walter Brannen, which assignment had been deposited with and left in the custody of the England National Bank of Little Rock, Arkansas, under an escrow agreement. But plaintiffs allege that it was distinctly understood and agreed in plaintiffs’ contract with the said Evans that, upon compliance with the terms of his contract, the said Harpham assignment would be withdrawn and the escrow agreement canceled with the defendant, England National Bank.”
■Subsequently, appellants amended their complaint’ so as to allege that, since the filing of the original complaint, the Vitek Oil & Refining Company has asserted claim to the premises involved in the controversy, that the agent of said company had entered upon said land and had drilled a well and was now in operation thereof. The prayer was. that the Vitek Oil & Refining Company and Paul Vitek, its- agent, be joined as defendants, which was done. There was a demurrer to the complaint, which the court sustained, and appellants declined to plead further. The complaint was dismissed, and an appeal has been prosecuted to this -court.
The only phase of the case which we deem it necessary to discuss is that paragraph which alleges that there was a prior assignment of the lease to Harpham and Brannen, which said lease was placed in escrow. There is nothing in the allegations to show that the delivery in escrow was revocable or that the delivery was on conditions which have not been performed, therefore the effect of this paragraph is to set forth a prior conveyance of the property in controversy to other parties — to other parties who are now sought to be restrained from operating under the lease. A delivery in escrow is irrevocable until failure to perform the stipulated conditions. Brown v. Allbright, 110 Ark. 394. In order for appellants to have stated a cause of action, it should have been shown that the prior lease was not enforceable by reason of failure - of the assignees to perform the conditions of delivery in escrow, or for some other reason. For aught to the contrary, so far as the allegations of the complaint go, the assignment to Harpham and Brannen and the delivery thereof in escrow was binding on Evans and beyond his power to revoke, therefore it was superior to the attempted assignment to appellants. With that state of facts, appellants were not entitled either to a specific performance of- the contract or to an injunction restraining the prior assignees, -and their remedy must be confined to the recovery of damages for breach of the contract of assignment.
Affirmed. | [
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Mc’Haney, J.
Appellants were charged by separate informations with the crime of grand larceny for the stealing of an automobile wheel, tire and tube, the property of Charles Gibson of Lake City, Arkansas. Their cases were consolidated and tried together, which resulted in a verdict and judgment of guilty, and each was sentenced to a term of five years in the state penitentiary. One Cutter Ashabranner was also charged with the same offense. He entered a plea of guilty to the charge against him and became a witness for the state in the trial of appellants.
As to appellant, Nell Williams, it is urged that the court erred in instructing the jury that: “All persons being present, aiding, abetting, assisting or standing by, ready and consenting to aid, abet or assist in the per petration of a crime shall be deemed a principal and shall be indicted and punished as such.” Her counsel specifically objected and excepted thereto because, he says, it means “that one who stands by is guilty as an accessory when the instruction should read, ‘being present and aiding and abetting and assisting,’ ” and for the further reason she is charged as a principal and not an accessory before or after the fact. After deliberating some time, the jury returned a verdict of guilty against Fleeman, and asked that the “aiding and abetting” instruction as to Nell Williams be repeated. Thereupon, the court said: “All persons being present, aiding or abetting or ready and consenting to aid and abet in the commission of a crime shall be deemed a principal offender and shall be indicted and punished as such. Therefore, if you find from the case (no doubt meaning evidence or evidence in the case) beyond a reasonable doubt, that the defendant, Nell Williams, was present, aiding and abetting in the commission of a felony by the said Charles Fleeman, then and in that event she would be punished as such. If you have a reasonable doubt that she was not present, aiding and abetting the commission of a crime you should acquit her.” No objection was made or exception taken to the form of this instruction, but only because it was a repetition and the court was requested to repeat each of the instructions. It will be noticed that the “standing by” part of the instruction, as originally given, was not given by the court when the foreman requested it be repeated. As the jury was finally instructed, they had to find beyond a reasonable doubt that Nell Williams “was present, aiding and abetting in the commission of a felony by said Charles Fleeman” before they could find her guilty, and, if they had a reasonable doubt about it, they must acquit her. We, therefore, conclude that the instruction as repeated, being without objection or exception as to form or substance, is correct, and that it supersedes the instructions as first given, about which said appellant complains, and disposes of this assignment of error against her.
Moreover, we see no error in the instruction as originally given. Under § 25 of Initiated Act No. 3, Acts 1937, now § 3276 of Pope’s Digest, tlie former distinction between principals and accessories is abolished and under it all accessories before the fact shall be deemed principals. See Burns v. State, 197 Ark. 918, 125 S. W. 2d 463. While this section appears in the digest as 3276, appearing under the subject of “Perjury,” it should be § 2940 (a), under the heading of “Principals and Accessories.” Section 2937 provides: “All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted and punished as such. ’ ’ Such is, in effect, the instruction given by the court originally and was a correct declaration of law as fixed by said statutes. See, also, London v. State, ante, p. 767, 164 S. W. 2d 988.
The only other alleged error argued applies to both appellants, that is, the insufficiency of the evidence to sustain the verdicts and judgments. We cannot agree with appellants in this contention.
It is undisputed that both appellants were present when the larceny occurred, in fact, it was so conceded in oral argument. They, with Ashabranner, who pleaded guilty to the charge against him, had been riding over the country roads in three or four counties in northeast Arkansas for some two or three days, according to Ashabranner, apparently for the purpose of stealing tires, and a number of stolen tires were recovered by the officers in Mississippi county. Mr. Gibson identified his tire and tube from among those others so recovered. He also identified his wheel. The tire and tube were identified in several ways. It was a Cooper Soft Aire, an unusual brand of tire, had a boot in it to protect the tube from blowout and the tube had been patched with an Atlas hot patch. The garage owner who patched the tube in January for Mr. Gibson testified that he did so with an Atlas patch and put a small boot in the tire, both of the same kind as found in Mr. Gibson’s tire after it was recovered. Deputy Sheriff John Beinmiller of Mississippi county testified that he made the investigation when Mr. Gibson’s tire was stolen, and of other stolen tires, and that they recovered thirteen other tires and tubes, and arrested Ashabranner for these thefts. All these tires and tubes were taken to the trial of this case and Gibson’s tire was picked out of the lot by Ashabranner, in the absence of Gibson, as the latter had previously done. The wheel was found by Wes Mooneyham, a deputy sheriff in the eastern district of Craighead county, in a garage at the home of Russell Fleeman, near Tyronza,- in Poinsett county, who is a brother of appellant, Charles Fleeman. Mr. Gibson identified the wheel as his by its size and color, in that it matched the other wheels on his car and the color of the car itself. Also in this garage, which was locked with a new padlock, were found a lot of personal property and articles belonging to appellant, Charles Fleeman, and some things of appellant, Nell Williams, such as a picture of her, a marriage. certificate of a justice of the peace in New Mexico that he had united in marriage Nell Williams and one Paul Ward on December 20, 1938.
The admitted presence of both appellants at the commission of the larceny and the finding of articles of personal property in the place where the stolen property was found are sufficient to go to the jury as substantial evidence tending to connect appellants with the larceny. Appellants did not testify and they cannot be convicted on the evidence of the accomplice^ Ashabranner, “unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.” Section 4017, Pope’s Digest. The rule in this state is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is substantial corroborating evidence tending to connect the defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullen v. State, 193 Ark. 648, 102 S. W. 2d 92; Smith v. State, 199 Ark. 900, 136 S. W. 2d 673; McDougal v. State, 202 Ark. 936, 154 S. W. 2d 810.
We think the accomplice was sufficiently corroborated to take the case to the jury and that the verdict must be permitted to stand, even though the accomplice said Nell Williams took no actual part in the stealing, but sat in their car near-by. She knew what was being done. The jury had the right to draw the conclusion that she was not only present, knowing a crime was being committed, but stood by ready and consenting to aid and abet, and the fact that some of her personal belongings were found at the place where the stolen property was found further confirms the justifiable inference. The jury might reasonably have concluded that her presence in the car near-by was to aid, abet and assist by keeping a lookout for the actual thieves.
The evidence is sufficient,- and no error appearing, the judgment is affirmed. | [
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Grbenhaw, J.
Roy E. Kilgore, Deen W. Kilgore, Dail E. Kilgore, Fern J. Kilgore Nutt and Mrs, J. H. Kil gore filed suit in the Dallas circuit court against R. Collins Kilgore and General Motors Acceptance Corporation, seeking to recover damages arising out of an alleged breach of contract and for fraud and deception practiced upon plaintiffs by defendants.
The complaint alleged that plaintiffs and the defendant, R. Collins Kilgore, were engaged in business at Fordyce as partners, under the firm name of Kilgore Brothers, and in January, 1934, entered into a contract with General Motors Acceptance Corporation whereby it agreed to purchase commercial paper which they received in sale of Frigidaire products such as electric refrigerators, etc., it being agreed that General Motors Acceptance Corporation would retain five per cent, of the purchase price of commercial paper received on the sale of household equipment and ten per cent, of the purchase price of commercial paper received on sales of commercial equipment, to constitute a reserve fund as protection to General Motors Acceptance Corporation in the collection of the commercial paper purchased by it. It was further agreed that plaintiffs would indorse and guarantee payment of all commercial paper sold to General Motors Acceptance Corporation. The reserve fund was to be the property of Kilgore Brothers, and was to be held by General Motors Acceptance Corporation only as an additional indemnity against losses on commercial paper purchased by it from Kilgore Brothers. ,
Thereafter Kilgore Brothers obtained the agency for Frigidaire products in Hot Springs, and later obtained an agency in Memphis, Tennessee. R. Collins Kilgore was given power of attorney to act for the partnership in dealing with General Motors Acceptance Corporation and with McGregors, Inc., of Memphis, distributors of Frigidaire products to the respective agencies. It was alleged that financial difficulties ensued in the respective agencies, and that R. Collins Kilgore and General Motors Acceptance Corporation entered into a conspiracy to cheat and defraud plaintiffs out of the reserve fund, amounting to around $16,000, and by reason of false and fraudulent representations made by defendants, plaintiffs authorized the transfer of the accumulated reserve to R. Collins Kilgore, wlio, with General Motors Acceptance Corporation, it was alleged used it to enrich themselves at plaintiffs’ expense.
The complaint further alleg’ed that R. Collins Kilgore permitted General Motors Acceptance Corporation, without the consent or knowledge of plaintiffs, to deduct as much as 20 per cent, of the amount advanced to said agencies on contracts involving household transactions, and as much as 40 per cent, on contracts involving commercial equipment.
It was further alleged that “. . . General Motors Acceptance Corporation and Collins Kilgore conceived the idea, and conspired and agreed together to promote the organization of Collins Kilgore, Inc., for the ostensible purpose of carrying on the business of buying, selling and dealing generally in goods, wares and merchandise, wholesale and retail, especially in electrical refrigeration equipment in Memphis, Tennessee, but for the real purpose of deceiving and cheating (plaintiffs) and enriching themselves at the expense of these plaintiffs by obtaining sole and exclusive control and ownership of the reserve account owned by plaintiffs and held by the defendant, General Motors Acceptance Corporation, which amounted to approximately $16,000 at that time.”
Numerous other allegations of joint fraud and deception on the part of R. Collins Kilgore and General Motors Acceptance Corporation were set out, and it was alleged that by reason of the false representations and fraudulent conduct on the part of R. Collins Kilgore and General Motors Acceptance Corporation, the assets in the three agencies were dissipated, resulting in heavy losses to plaintiffs, including the $16,000 reserve fund.
General Motors Acceptance Corporation filed a motion to quash service of summons on it, for the reason that it has no branch office or other place of business in Dallas county, and that the defendant, R. Collins Kilgore, was not a bona fide defendant, and was made a defendant only for the purpose of bringing General Motors Acceptance Corporation within the jurisdiction of the Dallas circuit court. The motion was overruled. The record shows that summons was served upon R. Collins Kilgore in Dallas county, and service was had upon General Motors Acceptance Corporation by service of summons upon its agent designated for service of process in Pulaski county, where its office and place of business, as a foreign corporation duly authorized to do business in Arkansas, is located.
General Motors Acceptance Corporation has filed a petition in this court for a writ of prohibition, seeking to prohibit the trial of this case in the Dallas circuit court, and insists that the Dallas circuit court has no jurisdiction for the reason that a joint cause of action against R. Collins Kilgore and General IVIotors Acceptance Corporation was not alleged in the complaint.
Many of the allegations of the complaint are not pertinent to the issue involved upon petition for prohibition. It is conceded that if a case of joint liability has been alleged against R. Collins Kilgore and General Motors Acceptance Corporation the Dallas circuit court has jurisdiction, in which event prohibition would not lie. We have carefully studied the lengthy complaint filed in this case,' and have reached the conclusion that a joint cause of action has been alleged.
In Teal v. Thompson, 180 Ark. 63, 20 S. W. 2d 307, it was held that courts regard substance of pleadings rather than form, and in Wade v. Brocato, 192 Ark. 826, 95 S. W. 2d 94, it was stated that pleadings under the Code are liberally construed. In Harnwell v. Arkansas Rice Growers’ Cooperative Association, 169 Ark. 622, 276 S. W. 371, it was held that every reasonable intendment and presumption should be indulged in favor of a pleading.
Whether there is joint liability under the pleadings in this cause will depend upon the facts as developed in the trial. The lower court held that under the pleadings there was no joint liability of R. Collins Kilgore and General Motors Acceptance Corporation for breach of contract which would give the Dallas circuit court jurisdiction of General Motors Acceptance Corporation, but that a joint cause of action against them in tort was alleged. Giving the complaint a .liberal construction, under the rule that every reasonable intendment and presumption should be made in favor thereof, we are unable to say that a case of joint liability against R. Collins Kilgore and General Motors Acceptance Corporation in tort has not been alleged.
The petition for writ of prohibition is, therefore, denied. | [
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Hart, C. J.,
(after stating the facts). The decree of the chancery court was correct. A proper acknowledgment is an essential part of the execution of a con veyance of land, and it is competent for the grantor to show the falsity of a, certificate of acknowledgment. Where the grantor does not acknowledge the deed and the officer makes a certificate that the grantor did appear, the act of the officer is without authority of law, and void. No one can claim that an estate in land can be divested by forgery, and every one must be subject to the risk of forg’ery by officers authorized to take acknowledgments. Miles v. Jerry, 158 Ark. 314, 250 S. W. 34; and Wilson v. Biles, 171 Ark. 912, 287 S. W. 373.
A mortgage as to the homestead is void where the wife of the mortgagor did not join in the mortgage. Ferrell v. Wood, 149 Ark. 376, 232 S. W. 577, 16 A. L. R. 1033. In the present case, the wife testified in unequivocal terms that she did not sign the mortgage. The mortgage itself was introduced in evidence, and has been brought up to us for examination. It is plain from an examination of it that the same person signed both names to the mortgage. It is conceded that Joel Mitchell signed his own name to the mortgage, and an inspection of the mortgagé shows plainly that he must have signed the name of his wife to it. Then, too, admitted signatures of the wife appear in the record, and have been brought before us for examination. They show that the person who signed them did not sign the name of E. L. Mitchell to the mortgage. Under these circumstances we think the court was right in holding that Mrs. E. L. Mitchell did not sign the mortgage, and, the mortgage being on land which was the homestead of Joel Mitchell, it was void because she did not sign it.
It is next insisted by counsel for appellant that the judgment should be reversed because, after the mortgage was signed, the Legislature passed a curative act with regard to mortgages and deeds, which was held to be valid in Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485. That ease, however, does not help appellant any. A curative statute is only intended to cure defects in the execution of a mortgage, and cannot, in the very nature of things, render valid an act which was abso lutely void in the beginning. In short, if a party h)ad never signed a mortgage or deed, and it should be held that a curative act which was passed afterwards could have the effect of making the. mortgage or deed effective as far as the person who did not sign it is .concerned, this would.necessarily have the effect of depriving such person of his property without due process of law. The curative act in question did not purport to cure anything except defective instruments, and does not purport to render valid and effectual an act which had never been done.
It follows that the decree must 'be affirmed.
Hart, C. J.
Counsel for appellant earnestly insist that in our original opinion we misinterpreted the effect of the decision in Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485, and that our decision in this case is opposed to the principles therein decided. We do not think so.
In that case the .court had under consideration the effect of a curative statute as applied to the grantors of a deed. The Legislature, when enacting our homestead statute, could have dispensed with any requirement as to the wife signing it, and, this being so, it had the authority, where no vested rights are affected, to do the same by subsequent legislation. The right which a curative statute or healing’ act takes away in such a case is the right in the party to avoid his contract. Such legislative acts are sustainable only because they are supposed not to operate upon the deed or contract by changing it, but upon the mode of proof. Green v. Abraham, 43 Ark. 420, and Johnson v. Richardson, 44 Ark. 365.
In the Sanders case the grantors in the deed signed it, and intended to be bound by their act in doing so'. Hence it is said the curative act applied in so far as. their rights were concerned. There is a wide difference, however, between that case and the present one. Here the wife of the grantor did not sign the deed at all, and did not intend to be bound by its provisions. Here the signature to the deed was a forgery, and no subsequent act of the Legislature could malte valid aud binding an act which she had never done or attempted to do. This would render the act unconstitutional, if it should be so construed.
The petition for rehearing will be denied. | [
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Humphreys, J.
This is an appeal from an order ot the chancery court of St. Francis County refusing to confirm and setting aside a commissioner’s sale of certain land, made under a decree of foreclosure in this suit. The plaintiff in the suit was the Guaranty Bank & Trust Company, and appellee and his wife were the defendants. Appellee had executed a second mortgage, in which his wife joined, on said land to the Guaranty Bank & Trust Company to secure a number of notes, subject to a first mortgage thereon in favor of said trust company for $3,500. The Guaranty Bank & Trust Company duly assigned the first mortgage to the Prudential Insurance Company of America. The second mortgage contained a written waiver of his equity of redemption and of his wife’s dower and homestead interest in said land. Appellee made default in the payment of the notes secured by the second mortgage, and this suit was instituted to secure judgment against appellee upon the notes and to foreclose the second mortgage to pay same, subject to the first mortgage lien upon said land. Appellee did not appear in the suit, but made default, whereupon the chancery court rendered judgment against him in the sum of $1,062.06, with interest thereon at the rate of 10 per cent, per annum until the judgment should be paid, and decreed a foreclosure of the lien, and ordered a sale of the land, subject to the first mortgage lien, to pay said judgment. The decree contained the following paragraph:
“It is further considered, ordered, adjudged and decreed that, upon the report of sale and the confirmation thereof, all right and equity of redemption of the defendants, and each of them, 'and all right of dower and homestead of the said Anna Wylds, shall be forever barred and foreclosed.”
Appellant herein purchased said land at the commissioner’s sale, subject to the first mortgage owned by the Prudential Insurance Company of America, bidding therefor the amount of the judgment, interest and costs. After the sale, and, before the confirmation thereof, appellee filed a petition to set aside the sale and redeem tiie land. In keeping with his .offer to redeem the land he tendered the amount of the judgment, interest and costs into court.
Appellant contends the trial court erred in setting aside the sale, for the reason that appellee did not allege or prove any misconduct or gross irregularities in making the sale, or that appellant purchased the land for a grossly inadequate price. It is true that the sale was regularly made and free from fraud, and that appellee bid a fair price for the land, but the sale was, accordjing to the terms of the decree, a conditional one; the condition being that appellee might redeem the land from the sale before a confirmation thereof. This is the correct interpretation of the decree. It is unnecessary to determine whether the court erred in ordering a conditional sale of the land. The order of sale was final, and no appeal was taken therefrom. The appellant therefore bought the land subject to the condition in the decree, and must abide by appellee’s right to redeem the land at any time before the confirmation of the sale by paying the judgment, interest and costs. The doctrine of caveat emptor applies.
No error appearing, the decree is affirmed. | [
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Kirby, J.
Appellant and the Bank of DeQneen brought this suit to foreclose a mortgage on certain parts of block 8, Locke Heights Addition to the city of DeQueen, given by appellee and wife to secure three promissory notes to appellant, Claude Ogletree, amounting to $140.22, and by him transferred in due course to the Bank of DeQueen.
Appellees admitted the execution of the notes and mortgage; denied any indebtedness to either appellant or the bank. Alleged they had entered into a contract with appellant by which he undertook to build for them a four-room residence, furnish labor and materials for an agreed price, all of which had been paid, except the amount represented by the three notes referred to in the complaint, and for payment of which the mortgage foreclosure was sought. Alleged that the materials used in the building were of an inferior quality, and not in accordance with the specifications; that the workmanship was poor, the roof defective, the concrete pillars defective and unfit, and that, by reason of such breach and violation of the contract in the furnishing of inferior materials and workmanship and failure to construct the house in accordance with the contract, they had been damaged in the sum of $400, for which judgment was prayed.
Appellant replied, denying the allegations of the answer and cross-complaint, and praying for foreclosure of the mortgage as in the original complaint.
Upon the hearing the chancellor found in favor of the hank upon its complaint for foreclosure and against appellant upon the cross-complaint of appellees, and rendered judgment in their favor for $400 damages as against him, from which this appeal is prosecuted.
There was much testimony introduced, some of it tending to show that defective materials and workmanship were used in the construction of the house, that it was not built in accordance with the specifications, nor like a certain other house, which it was claimed should have been used as a pattern for its construction, and tending to show that damage had resulted to appellees on account thereof. We do not find it necessary to go into this matter in detail, however, since the only question here is whether appellees had a contract by which appellant w-as bound to the construction of their house.
He testified that he had made no contract with appellees for building the house, but only represented his brother, H. M. Ogletree, with whom the contract was made, in the negotiations before its execution. Said that his brother was a carpenter and builder, not well acquainted in the city, having but recently arrived, and he was helping* him as much as he could in securing contracts for his employment. That the building contract was made by appellees with his brother, H. M. Ogletree; that it was written, with specifications attached thereto, and signed by the parties, H. M. Ogle-tree and Greer W. Smith. Said that he arranged to get the money from the bank to enable appellees to pay the balance clue for the construction of the house upon its completion, having taken the notes secured by the mortgage and transferred same to the bank in order to procure it.
Appellee, Greer Smith, testified that he made a contract with Claude Ogletree for the construction of the house. That he had a copy of it, but had lost it. Being handed, instrument which appellant contended was the contract, he examined it, and admitted that it was his signature at the bottom of it, but stated that $1,117 was not in the contract that he signed, which was only for $1,000. Admitted that the writing signed by him was the original contract, with that exception. Said he made the contract with Claude Ogletree, notwithstanding it was signed by H. M. Ogletree, whom he first saw when the building was commenced. Knew that the work on the building was done by H. M. Ogletree and under his direction, and Claude Ogletree’s name was not signed to the contract.
H. M. Ogletree testified that he was a carpenter and contractor and construction foreman, and had been for 35 years; that he built Smith’s house under a written contract which Greer Smith signed, and was signed by him. This contract was offered in evidence, and was the same one about which Smith was questioned and admitted the execution of. He. said that certain extras were agreed on before the execution of the contract, amounting to $117, which was inserted in the contract before it was signed by the parties. Denied that there was any defective material used in the construction of said house, and said that it could not have been better built with the materials specified; that the leak was not due to the shingles, but to the plan of the house, the pitch of the roof, as other witnesses also testified.
Appellant also stated in his testimony that the change from $1,000 to $1,117 for the construction was made in the contract and inserted before it was signed by the parties, and that he was not,in partnership with his brother at the time of the execution of the contract and construction of the house, and had no interest whatever in it, except as indicated.
The chancellor’s finding that the contract for the building was made with appellant is contrary to the preponderance of the testimony. The duplicate or copy of the' building contract executed by appellee and H. M. Ogletree, introduced in evidence, and, which appellee admitted was signed by him, only claiming it had.been changed in the respect of increasing the contract price $117, was not and did not purport to have 'been signed or executed by appellant.
It was not alleged that appellant was in partnership with H. M. Ogletree when the contract was executed and the building constructed, and there is no testimony showing such to be the case.
Even though appellant be regarded as having negotiated the building contract, as the agent for his brother, who signed it, his principal was disclosed on its execution, and no claim is made of his not being’ bound thereby, and appellant could not be held liable on that account as agent thereunder. Meier v. Hart, 143 Ark. 539, 220 S. W. 819; Rittenhouse v. Bell, 106 Ark. 315, 153 S. W. 1111.
Parol contemporaneous evidence is inadmissible to contradict, vary or add to the terms of a valid and unambiguous written contract. Bradley Gin Co. v. Means, 94 Ark. 130, 126 S. W. 81; Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859; Armstrong v. Union Trust Co., 113 Ark. 509, 168 S. W. 1119; Luce v. Arkansas Brick & Mfg. Co., 125 Ark. 219, 188 S. W. 566.
Attempting to prove that the contract was in fact made with appellant, who did not execute it, would be a most material change, and, if the action be regarded as one to reform the contract by proof of its execution by the wrong party, as from'mistake or fraud, the rule requires that it must be done by clear, convincing and decisive testimony, and is in no wise met by the proof herein.
Whatever damages appellee may have been entitled to, if any, under his contract with H. M. Ogletree, appellant was in no wise liable to the payment thereof, and the court erred in holding otherwise.
The decree on the cross-complaint against appellant is therefore reversed, and cause dismissed for want of-equity. | [
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Woon, J.
On the 24th.of .February, 1921, the plaintiff below (appellee here) instituted this action in the chancery court of Ouachita County against the defendants below (appellants here). The appellee alleged that all parties to the action were residents of Ludington, Mason County, Michigan. The appellee seeks to recover a one-third interest in about four thousand acres of land situated in Ouachita County, Arkansas, about three thousand of which he alleged in his complaint were purchased by himself, Warren A. Cartier and William Eath, all of the city of Ludington, Michigan, under parol partnership agreement entered into between them in January, 1902, for the purpose of purchasing the lands, and that about one thousand acres were purchased by Cartier and Eath in their own names. The lands are described in the complaint. The appellee alleged that on the 5th .of June, 1912, Cartier and Eath, with the intent to defraud the appellee, negotiated a sale of the timber on the .lands with one T. S. Grayson of Magnolia, Arkansas, for the sum of $95,000. Cartier represented to the appellee that, on the 12th of June, 1912, he had received an offer of $67,500 for the lands; that Cartier and Eath made representations to the effect that the partnership would receive a good profit by accepting the offer, and that, if they failed to accept it, it would result in a great loss, because the price of the timber would go down, and it was subject to be destroyed by fire, which representations Cartier and Rath, knew to be false, and that they were made for the purpose of misleading the appellee; that the appellee had no special knowledge of the timber and lands, and relied upon these representations of Cartier and Rath, and joined with them in the execution of a deed to T. J. Gaughan for the express consideration of $67,500, which deed bore date of June 12, 1912, and was duly recorded June 17, 1912; that on June 12, 1921, Gaughan reconveyed the lands to Cartier for an alleged consideration of $95,000, which deed was also recorded on June 17, 1912; that on June 24,1912, Cartier conveyed to Rath an undivided half interest in all the lands for the consideration of $47,500, which deed was recorded July 3, 1912; that the sale of the timber by Cartier to Grayson, negotiated on June 5, was finally consummated and'the deed executed for the same on June 26, 1912, which deed, at' the request of Cartier and Rath, Grayson did not- have recorded; that,'after these transactions, Rath died, September 13, 1916, and appellant Ostendorf was named as executor of his will; that the will devised Ratli’s interest in the lands to the German Lutheran Synod of certain States, subject to a life estate in his wife; that these lands were- conveyed by the synod and his wife to Cartier on July 18, 1918, and Cartier, on the 8th of August, 1918, conveyed an undivided half interest to Lucy Rath for the alleged consideration of $5,000, all of which deeds were duly recorded in Ouachita County; that Cartier deliberately misled the appellee by representing that all the lands described in the complaint were to be included in the deed to Gaughan, whereas some 1,000 acres which had been purchased in the name of Cartier and Rath were not included in the deed, but were conveyed in a separate deed to Gaughan for an alleged consideration of $27,500 on June 12, 1912, which deed was also recorded on June 17, 1912; The appellee further alleged that he had no knowledge of the circumstances surrounding- the conveyances to Gaughan and the negotiations for sale of the timber to Grayson until these circumstances were brought to his knowledge by the rep rcsentatives of a certain oil company, during the latter days of September, 1919. The appellee further alleged that the title to the lands appeared in Cartier and Lucy Rath, and that they were about to sell the same, and would do so unless restrained; that they were indebted to the appellee in the sum of $5,000, balance due him from the partnership on account of the sale of the timber. Appellee prayed for an accounting of the partnership dealings and transactions,' that he have his proportion of the proceeds of the sale of timber found to be partnership funds, that Cartier and Mrs. Rath be required to convey their interest in the lands, and that the lands be partitioned according to the interests of the respective parties, and that they be enjoined from con.veying or incumbering the lands .in any manner, and for such other and further relief as in a court of equity he was entitled to.
The appellants denied that there was any partnership between Cartier, Rath, and the appellee. They admitted the purchase of a large body of the lands in controversy by them with the appellee, but alleged that these lands were not purchased by them as partners, but were held and purchased by them as tenants in common. They alleged that the certain other lands described in the complaint were afterwards purchased by Cartier and Rath as tenants in common, in which the appellee was not interested. They denied specifically all of the' allegations of the complaint as to fraud and as- to the partnership. They alleged that on the 25th of May," 1912, the appellee executed an option to Cartier agreeing to convey to him an undivided one-third interest in the lands within sixty days for the price of $23,333.33, less a commission of five per cent; that, before the expiration of the option, appellee agreed to, and did, accept the sum of $22,500 for an. undivided one-third ■ interest in the lands, and agreed to pay a commission of five per cent, on the sale;-that, on the 24th of June, appellee executed his receipt to Cartier-in full for the sale of the lands and-commission, in- the sum of $21,37-5. Appel lants alleged that appellee had knowledge of all the circumstances and facts concerning the conveyance of the. lands to Gaughan.- They admitted the purchase of the lands by Cartier from Gaughan, and the sale of the timber by him to Grayson, and stated that said lands, after the removal of the timber, could not have been disposed of on the market for $1 per acre; that the present value is speculative, depending on- the prospects for the discovery of gas and oil thereon. They denied that appellee had any interest in the lands, and denied that he was entitled to any accounting as of a partnership between appellee, Cartier and Rath. Appellants set up that plaintiff, in the year 1912, or soon- thereafter, had full knowledge of the matters' and things complained of in his complaint, or, by the exercise of reasonable diligence, could have had knowledge of all matters and things set forth in his complaint; and that his suit herein was not brought within three years after the discovery by him of the acts and things complained of, or. within three years of the time within which, by reasonable diligence, he might have had knowledge of the matters and things complained of.” There was a reply by the appellee to the answer which he asked to be taken as an amendment to his original complaint, hut the allegations of which we deem it unnecessary to set forth, as the issues are sufficiently stated in the complaint and answer.
The court, after hearing the evidence, which consisted of testimony taken in open court, and which was afterwards reduced to writing, duly authenticated and brought into the record, together with various documents, which were introduced in evidence, found that the.appellee was the owner of an undivided one-third interest in all the lands purchased in the names of Warren A. Cartier, William Rath and Andrew Hengstler _ during the years 1902 and 1903, and held by them as partners, amounting, in the aggregate, to about 3,000 acres; a decree was rendered in favor of the appellee to that effect, subject to a chárge of $1,477.93 as appellee’s part of the taxes and expenses incurred with, reference to thé lands in favor of the appellants.
This decree of the court was bottomed on the findings of fact that the lands were purchased by the appellee, Cartier and Eath, as partners and joint adventurers of appellee, and that afterward Cartier arid Eath, by fraud, deceit and misrepresentation practiced upon the appellee, induced him to join with them in the sale of the lands to Gaughan, and that the subsequent conveyances of the lands by Gaughan to Cartier and by Cartier to Eath of a half interest, and by Cartier, acting for himself and Eath, of the timber thereon to Grayson, were the result of the deceit and fraud practiced upon the appellee; that the real facts with reference to these conveyances were concealed from appellee, and that he was thereby defrauded out of a one-third undivided interest in all the lands described.
From the decree of the court the appellants have prosecuted their appeal, and the appellee has cross- ■ appealed.
The record of the testimony bearing upon the issues ■as to whether the lands were purchased, by appellee, Cartier, and Eath, as partners or joint adventurers, and whether Cartier and Eath perpetrated a fraud upon the appellee by which he was deprived of his interest in the lands, is voluminous. But the conclusion reached by a majority of the court on the issues of the statute of limitations and laches makes it unnecessary, to set out arid discuss the testimony bearing upon the other issues.
It appears from the evidence that, on the 25th of May, 1912, appellee executed an instrument to Cartier, giving Cartier an option to purchase appellee’s one-third interest in the 3,000 acres of land at the price of $23,333.33, less a ■commission of five per cent., the option to continue for sixty days. On June 12, 1912, appellee, Cartier and Eath and their wives joined in a deed conveying the lands in controversy to T. J. Gaughan for the consideration of $67,500, which deed was recorded on June 17, 1912. On June 24, 1912, appellee, executed a receipt in which he acknowledged he received from Cartier the sum of $21,375 in full for the sale, of lands owned jointly by appellee, Cartier and Bath, consisting of 3,000 acres in Onachita County. Nearly nine years therefore had elapsed from the date of these transactions which appellee claims were the result of fraud and misrepresentation practiced upon him by his partners or associates in the joint adventure, and by which he was induced to sell his interest in the lands in controversy. Appellee claims and testifies that he found out that a fraud had been perpetrated upon him soon after.oil had been discovered in that locality. One Omar Farrell told him about it. This was in 1919, at which time Farrell secured from appellee an oil and gas lease on 3,240' acres of the lands in controversy. Appellee also testified that he didn’t know the different ones who told him about it; that he filed this suit when he found it out. He was asked, “Did Mr. Omar Farrell get you to bring this lawsuit?” and answered, “He spoke to me about it; yes sir.”
The testimony of Omar Farrell was to the effect that he told the appellee about' the condition of the title in 1919. After he procured the lease from the appellee, he agreed with the appellee to bring this lawsuit in his name, and that he would bear the expenses of the litigation.
Judge Tate, the agent of the appellee and of Bath and Cartier, through whom the original negotiations for the purchase of the lands were conducted, and who looked after the lands for them after the purchase, in the paying of taxes, purchases, sales, etc., was asked in regard to the sale of the lands, among other questions, the following :
“Q. Did he (Hengstler) know.and was he aware of the fact that this land was going to be returned to Bath and Cartier? A. He certainly did, or knew about it afterwards; maybe he did or didn’t — I don’t know myself, I didn’t know myself right at the time. Q. You don’t know whether Hengstler knew what was being done at the time or not? A. I told him that I would put his lands' in and have them sold. Q. The deed that Hengstler signed showed that he was selling the land and all? A. Yes sir. Q. Yon do not know at all that lie (Hengstler) had any knowledge that Rath and Cartier were to get the land back by reconveyance from Mr. G-aughan? A. If he did not know it then, he acquired that knowledge afterwards. Q. How do yon know he acquired that knowledge? A. I wrote him. Q. Where is that letter? A. I don’t know. Q. How many days afterwards? A. Oh, about a week,-1 guess. Q. That has been eleven years ago? A. Yes sir; and he wrote me a letter and bragged about that trade. Q. Where is that letter? A. I don’t know. Q. You told him that Rath and Cartier were to get his land for nothing? A. I told him that he got the money and they got the land and paper. Q. You told him that Rath and Cartier got it back through Mr. Gaughan? A. Hengstler knew, all about it. Q. You are testifying as strong as you can for Rath and Cartier, and you represented Hengstler? A. I treated him exactly fair — I told him we got the money, and he congratulated me. Q. You told him that all he gut was one-third of the money that Rath and Cartier gut for the timber? A. No sir; I told him what it sold for. Q. You told him what the land for? A. I told him they took the lands and paper and we got the money. Q. What lands ? A. They got the lands back to hold with this paper as part of the security. Q. You told Mr. Hengstler that, in the different deeds here, that Rath and Cartier gut as much money as he did and gut the land in addition?. A. Yes sir; got it all, but the consideration was that -he and I get the money; he knew about that. Q. I asked you that question a while ago, and you evaded it. A. I did n ot intend to. ”
He further testified that cut-over lands in 1912 generally sold from fifty cents to one dollar per acre. The lands were hardly worth paying taxes on. Two-thirds of the lands was slashy creek bottoms, unfit for cultivation.
Cartier testified as follows:
“Q. You paid Mr. Hengstler for his interest in the land and timber out of what you gut for the timber, and you aud Rath got the land? A. That is the way it is —we got the land. Q. Did you tell Mr. Hengstler that you were making these different conveyances, and that you were paying him one-third of what you got out of the timber, and that you and Rath had gotten the land for nothing? A. To the best of my recollection I did after he received his money, $20,000, I told him that the land did not go, and asked him if he cared, and he says, ‘No, I am satisfied,! got an excess profit, and I am satisfied! Q. Why didn’t you tell him that beforehand? A. I had the option to do as I pleased. Q. You were all partners? A. No sir. ,Q. You felt that you had a perfect right to sell his land and timber and pay him for what you got out of the timber, and then not disclose the facts to him? A. When he gave me the option, I could do as I pleased as long as he got his money. Q. When he gave you the option, you did not have any idea of selling the timber to Grayson? A. There had been some negotiations, but nothing definite. Q. There was so little chance that you did not even mention it to him? A. Might have, but I don’t remember. Q. After-it was all done and you had sold his interest in the land and conveyed it around so you and Rath got all of the land and paid him out of his interest in the timber on his own land, then you told him that you done that? A. I think I did. Q. Why did you? A. To give him his interest in the land if he wanted to assume the liability.’ Q. You wanted him to have the land if he wanted to assume the liability? A. Yes sir. Q. W7hat liability was there to assume? A. To care for the land for ten years, which was covered by the timber deed, and take care of the cost, pay the taxes. Q. What has it cost to care for this land which was off of the market? A. Taxes on the land and the incidental expenses run up pretty close to $5,000.”
It is unnecessary to decide, and we do not decide, whether the lands, including the 3,000 acres purchased in the names of apnellee, Cartier and Rath, and the 1,000 acres purchased in the names of Cartier and Rath, were all purchased as partnership lands or under agreement for joint adventure. Nor is it necessary to decide whether Cartier and Eath defrauded the appellee in the manner in which they obtained the title to his lands. For, if it be conceded that Cartier and Eath perpetrated a fraud upon the appellee in the manner alleged in the complaint, nevertheless it is proved by a preponderance of the evidence, above set forth, that appellee had knowledge of the fraud soon after the documents were executed consummating the alleged fraudulent transaction of which he complained. The testimony of Tate and Cartier shows that he had such knowledge. Tate .testified that appellee had visited the lands in May, 1912, the month before they were sold to Gauglian, and had ascertained their value, and he and Cartier both testified that they informed appellee of the facts concerning the sale of the timber on the lands to Grayson. We are convinced, from the above testimony, that appellee had full knowledge of the facts soon after they occurred, which he-now claims constituted deceit and fraud on'the part-of Cartier and Eath, and which resulted in depriving* him of his interest in all the lands in controversy. Such being the case, appellee and cross-appellant is barred -from maintaining this action by the three-year statute of limitation, and also by laches.
In McGaughey v. Brown, 46 Ark. 25, we held (quoting syllabus): “Fraud in obtaining title to property will not suspend the operation of the statute of limitations against an action to set aside the title any longer than it is concealed from the knowledge of the plaintiff.”' See also McNeely v. Terry, 61 Ark. 527; Salinger v. Black, 68 Ark. 449; Meier v. Hart, 143 Ark. 539; 2 Wood on Limitations, p. 1381, § 276.
The statute of limitations was properly pleaded by the appellants, and it must avail in bar of appellee’s action. .Appellee and cross-appellant is also barred by laches. He is seeking affirmative relief in a court of chancery. Inasmuch as fraud renders a transaction voidable at the election of the person defrauded, the law requires that the exercise of this election shall he in a reasonable time after the discovery of the fraud. “A party who sets up a fraudulent misrepresentation of fact as a ground of relief or defense must not be guilty of laches.” Smith on Law of Frauds, p. 269, § 249. See Davis v. Harrell, 101 Ark. 230; Board of Levee Inspectors of Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467, and numerous other cases in 2 Crawford’s Dig’est, p. 1875, “Laches and Stale Demands.”
The testimony set out above shows that appellee and cross-appellant is guilty of laches. The court erred in its‘decree, and the same is therefore reversed, and the cause will be remanded with directions that the chancery court enter a decree dismissing appellee’s complaint. | [
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Mehaeey, J.
A tract of land, described in the notice of sale as: “Part Ny2 of section 22, township 2 south, range 7 west, containing 200 acres,” was sold at the collector’s sale on the second Monday in June, 1931, for the delinquent taxes due thereon for the year 1930. Not having been redeemed, the sale was certified by the county clerk to the state. On May 6, 1938, the Commissioner of State Lands issued to appellant a donation certificate for 80 acres of land described as follows: “S% NE14 of section 22, township 2 south, range 7 west, 80 acres,” the same being donated as a portion of the lands sold and forfeited to the state at the tax sale under the description first above set forth. Subsequently a donation deed was issued. The land was correctly described in the donation certificate, and under the same description in the donation deed, and both these instruments appear to be regular and valid on their face.
It appears that, after certifying, on October 24, 1935, the sale to the state of “Part N% of section 22, township 2 south, range 7 west, containing 200 acres,” the county clerk, on January 6,1938, made and filed with the State Land Commissioner an additional certificate showing that the land comprising the 200 acres was: South half of the northwest quarter, 80 acres; west half of the northeast quarter, 80 acres; southeast quarter of the northeast quarter, 40 acres. Total: 200 acres.
This information, was probably derived from an inspection of the tax books, which disclosed payment on all the section except the three tracts above described.
However, we think this additional certificate adds nothing to the validity of the tax sale, for the reason that the notice of sale described the land as “part N1/^,” and it was sold and certified to the state under that description.
Immediately after receiving the donation certificate, appellants took actual possession of the land, and fenced about 30 acres of it, built a residence and other structures, and put into cultivation about 20 acres of it, and has at all times since been in possession of it.
Appellee, as trustee for the owners of the original title to the land, filed this suit on November 15, 1940, to cancel the donation certificate and the deed • above referred to, and from the decree awarding that relief comes this appeal.
For the affirmance of this decree it is insisted first that appellant was in possession of the land as appellee’s tenant when he donated the land and received the land commissioner’s deed, and second, that the tax sale and the deed based thereon are void because of the insufficient and improper description under which the land was sold.
The decree contains no special finding,' and we do not know whether the first contention was sustained or not, but, in our opinion, the testimony does not sustain it. No such allegation was contained in the original complaint, and this issue was injected into the case by a subsequent amendment of the complaint.
The important and difficult question is whether the more than two years’ actual possession which appellant has had under his donation certificate and deed operates •to cure the invalidity of the sale arising out of the indefinite and improper description.
Section 6947 of 'Crawford & Moses ’ Digest reads as follows: “No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs or assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or Commissioner of State Lands, Highways and Improvements, for the nonpayment of taxes, or who may have purchased the same from the state by virtue of any act providing for the sale of lands forfeited to the state for the nonpayment of taxes, or who may hold such lands under a donation from the state, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor or grantor, was seized of possession of the lands in question within two years next before the commencement. of such suit or action. ’ ’
This section was taken from § 1 of an act approved January 10, 1857 (Acts 1857, p. 80), and it was'many times held, while it was in force, that possession under a donation certificate could not be taken into account, as two years’ possession under a deed based upon a donation certificate was required to make the act available to the occupant of the land.
But this section of Crawford & Moses’ Digest was amended by act No. 7 of the Acts of 1937, p. 20. The amendment added, after the phrase, “or who may hold such lands under a donation deed from the state,” the additional phrase, “or who shall have held two years actual adverse possession under a donation certificate from the state.” The effect of this amendment is, of course, to give one in possession under a donation certificate the same protection afforded one in possession under a donation deed. In other words, this two-year statute of limitations now applies in one case as well as in the other, and many cases have held that the statute was one of limitation, barring actions brought to question the validity of the tax sale under which the donee had possession. This Act of 1857, as amended by the Act of 1937, now appears as § 8925 of Pope’s Digest.
It has'been held in many cases that the sale of a tract of land for delinquent taxes under the description “part” is void for indefiniteness. These decisions have become rules of property, and we do not intend to impair their authority. Many such cases are cited in the briefs in this case, one of which is the case of Woodall v. Edwards, 83 Ark. 334, 104 S. W. 128. In that case the land was described in the notice of sale as “part NEW, section 30, 70 acres.” This acreage was in excess of the actual acreage of that quarter section, the balance having caved into the Mississippi river many years before. The land had for many years been assessed under that description, and the original owner had paid taxes prior to the delinquent year under that description.
In distinguishing that case from the case of Cooper v. Lee, 59 Ark. 460, 27 S. W. 970, that opinion states: “In Cooper v. Lee, 59 Ark. 460, a description of ‘N.N.E.’ of a section containing 87.19 acres in a tax sale was held void, and the court approved Judge Cooley’s statement of the purpose of the description of lands in tax proceedings: ‘First, that the owner may have information of the claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the nonpayment ; and third, that the purchaser may be able to obtain a- sufficient conveyance.’ The court said: ‘A description which is intelligible only to persons possessing more than average intelligence, or the use and understanding of which is confined to the locality in which the land lies, is not sufficient’.”
The opinion in the Woodall case, supra, states: “The description in the deed is as follows: ‘part NEW, section 30, T. 9 N., R. 9 E., containing 70 acres.’ This description followed the description in the assessment.”
The tax purchaser had been in possession under this deed more than two years, but for less than seven, and the opinion further states: “The two-year statute is the shortest limitation statute barring recovery of land. It applies to void tax sales as well as valid ones, yet it must not be extended to deeds void for uncertainty in description of the land conveyed. Such a deed cannot aid or explain possession, for it lacks an identification of any land. Neither the owner nor the public were bound to take' knowledge of any tax proceedings against land so described and the title alleged to be conveyed by such deed, and hence possession under it would confer nothing more than possession without any deed, and it would require seven years of adverse possession of the land to give title. ’ ’
The opinion in the case of Cooper v. Lee, supra, which the Woodall case cites, is not contrary to the holding in the Woodall ease.
The land sold for the nonpayment of the taxes in the case of Cooper v. Lee, was described as “N. NE., section 2, township 15, range 6, 87.19 acres.” Mr. Justice Riddick, in the Cooper case, after repeating the quotation from Cooley on Taxation which appears in many of our cases as to the necessity for, and the purpose of, an accurate description, said: “On the contrary, we hold that it was not a sufficient description, and that the sale of the land must be treated as a sale without notice, and therefore void.” In other words, the same rule was applied as would have been applicable had the land been described as “part,” inasmuch as neither description would sufficiently identify the land sold, and the sale in either case would have been void for lack of a proper description.
But, notwithstanding the express holding that the sale must be treated as a sale without notice, and therefore void, Mr. Justice Riddick further said:
“But it does not follow, because the sale was without notice and void, that the plaintiff can now recover. The defendant in his answer set up the two years’ statute of limitations, alleging that he had been in the actual, adverse and continuous possession of the land in controversy for over two years before the suit was brought, claiming to be the owner thereof under the deed executed to him in pursuance of said tax sale. It has never been seriously doubted that, in cases where the purchaser at a sale of land for the nonpayment of taxes takes actual possession of the land purchased, under a proper deed conveying said land to him, the Legislature may pre scribe a period of limitation after the expiration of wbicb the title of the original owner is barred. By the adverse possession of the purchaser the owner is excluded from the possession of his premises, and notified that an adverse claimant hostile to his interests, holds the land. Public policy, no less than justice to the tax purchaser, requires that he should bring his suit within a reasonable time, in order that all contested questions may be put at rest while the facts are recent and susceptible of proof. Cooley on Taxation (2d Ed.) 557. In this case it is not contended either that no taxes were due, or that they were paid before’ the sale, or that the land was. redeemed afterwards. The deed is in proper form, and correctly describes the land. The agreed statement of facts justified the court in finding that the defendant had held actual, continuous and adverse possession of the land under his deed for over two years before the commencement of this action. Under our statute this barred the right of the appellant to recover. Mansfield’s Digest, § 4475; Sims v. Cumby, 53 Ark. 418, 14 S. W. 623; Helena v. Horner, 58 Ark. 151, 23 S. W. 966; Cairo & Fulton R. Co. v. Parks, 32 Ark. 131.”
The clear implication of this opinion which we have just quoted is that, while the land was advertised and sold under a void description, the tax deed, based on this sale, containing an accurate description, was entitled and one constituting, color of title.
An examination of the transcript in that case discloses that the clerk’s tax deed described the land sold as “north y2 of northeast 44 of section three (3), township fifteen (15) south, range six (6) west.” In other words, although the sale was void because of the insufficient description, the grantee in the deed, based on that sale, containing an accurate description, was entitled to invoke the benefits of the statute now appearing as § 8925 of Pope’s Digest.
In the present case, while there was no sufficient description, and the sale of the land must be treated as a sale without notice, and therefore void, yet the land commissioner’s deed correctly described a portion of the land sold under tlie void description, and there was more than two years’ possession under the donation certificate and deed, based on this sale, and the donee is protected by the statute.
A statement in the opinion in the case of Cotton v. White, 131 Ark. 273, 199 S. W. 116, is apparently opposed to this view. Special Justice T. D. Crawford there said: “The court agrees with appellee’s contention that the description in the tax assessment of 1907 was void, and that it described no lands and that the tax sale was thereby rendered void, even though the land was correctly described in the state land commissioner’s deed. It is obvious that, under these circumstances, no title passed to the state by the forfeiture, and the lands could properly be placed on the tax books.”
It appears, however, that the court was not then considering the effect of two years’ possession under a deed constituting color of title, based upon a tax sale void for uncertainty of description; but was considering the question of when lands, which had forfeited to the state under a void description, might be placed back on the tax books under a correct description.
In Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213, there had been two years’ adverse possession under a tax deed which was held not to give title because the description of the lands in the deed was void and did not constitute color of title. The same holding was made for the same reason in the case of Dickinson v. Arkansas City Imp. Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170. See, also, Hershey v. Thompson, 50 Ark. 484, 8 S. W. 689. These holdings were reaffirmed in Woodall v. Edwards, supra. A more recent case to the same effect and one strongly relied upon by appellee is that of Sutton v. Lee, 181 Ark. 914, 28 S. W. 2d 697. The opinion in that case recites that the land was sold and certified to the state under a void description and that the purchaser from the state applied for a deed containing an accurate description, which the Land Commissioner refused to make; but made a deed under the same description under which the land had been sold and certified to the state— a void description.
So that in all those cases the two years’ possession had been tinder a deed which did not constitute color of title, because no lands were described in the deeds. In this instant ease the land commissioner did what the land commissioner in the case of Sutton v. Lee, supra, refused to do; that is, he conveyed to appellant under a correct description constituting color of title.
In the case of Finley v. Hogan, 60 Ark. 499, 30 S. W. 1045, and again in the case of Carpenter v. Smith, 76 Ark. 447, 88 S. W. 976, it was held that two years’ possession under a tax deed gave title although the taxes for which the land had been sold had been paid and the taxes for which the lands were sold were not due. This for the reason that the statute is one of limitations which bars a suit where there has been two years’ possession under a deed constituting color of title based upon a tax sale.
In the case of Ross v. Royal, 77 Ark. 324, 91 S. W. 178, Justice 'McCulloch pointed out the difference, in effect, between § 7114 of Kirby’s Digest (later appearing as § 10119 of Crawford & Moses’ Digest, and now appearing as § 13883 of Pope’s Digest), and § 6947 of C. &M.’s digest (now appearing as § 8925 of Pope’s Digest), the former being a statute limiting, for a period of two years, the time within which tax sales might be attacked, while the latter was a statute of limitations having no reference to the validity of a sale where the tax pur-, chaser had occupied the land for a period of two years under his deed (or donation certificate). In that case it was said: “The statute under consideration [§ 8925 of Pope’s Digest] is plainly a statute of limitation, and begins to run, not from the date of the sale, but from the date actual possession is taken under the deed. Haggart v. Ramey, 73 Ark. 344, 87 S. W. 703; McCain v. Smith, 65 Ark. 305, 45 S. W. 1057.” (Act No. 7 of the Acts of 1937, above referred to, modifies this opinion, as herein shown.) “Actual possession of land taken and held continuously for the statutory period of two years under a clerk’s tax deed or donation deed issued by tbe commissioner of state lands bars an action for recovery, whether the sale be merely irregular, or void on account of jurisdictional defects. ’ ’
Tbe case of Schuman v. Kerby, 203 Ark. 653, 158 S. W. 2d 35, is relied upon to support appellee’s contention tbat § 8925 of Pope’s Digest may not be applied where tbe land was advertised and sold under an indefinite and insufficient description, although tbe deed to tbe purchaser contained a correct description. In tbat case it was said: “This section, as it plainly appears and as it frequently has been held to be, is a statute of limitation, which, when its provisions are applicable, concludes all inquiry into tbe validity of a tax sale where tbe property sold was sufficiently described.”
Tbe point here considered was not there presented, as the city lots there sold for taxes bad been both advertised under a proper and sufficient description and bad been sold and conveyed under a proper and sufficient description by tbe state land commissioner, and no emphasis is to be placed upon tbe word “sold” appearing in tbe quotation above copied.
We have reached tbe conclusion, therefore, tbat. appellants are entitled to invoke tbe provisions of § 8925 of Pope’s Digest, and tbat appellee’s suit to cancel appellants’ deed is barred by tbat statute.
Tbe decree of tbe chancery court is reversed, and tbe cause remanded, with directions to vacate tbe decree cancelling appellants’ deed from tbe State Land Commissioner, and quieting tbe title in appellants. | [
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Humphreys, J.
Appellant filed the following complaint against appellee, omitting caption and verification, in the chancery court of the Northern District of Sharp County:
“Comes the plaintiff, McG-raw, Perkins & Webber Company, a corporation duly organized and existing under and by virtue of the laws of the State of Tennessee, and complaining of the defendant, Ben N. Tates, doing business as Ben N. Tates & Company, for its cause of action states: During the years shown on the attached statement marked Exhibit A is hereby made a part of this complaint. The defendant, Ben N. Tates, doing business as Ben N. Tates & Company in'Williford, Arkansas. During said period -of time plaintiff was engaged in doing business in Memphis, Tennessee, as a cotton factor. During said period of time said defendant has shipped to the plaintiff, as cotton factor, certain bales of cotton, also drew various drafts in writing on the plaintiff, which drafts' were accepted and paid by the plaintiff, said drafts being advances made by the factor on account of the shipment of said bales of' cotton by the defendant to the plaintiff. The account consists of various mutual items of debt and credit, involved the sale of numerous bales of cotton, and that the balance due thereon as of date July '20, 1923, is the sum of $1,271.65. An itemized account showing said drafts and bales of cotton shipped and charges by way of freight, storage, insurance and interest is attached to ' this complaint, marked Exhibit A and made a part thereof. Said account is complicated and intricate, and proof supporting the details of said account will be voluminous, intricate and too' complicated other than in a court of equity. In addition a gwusi-fiduciary relation existed between the plaintiff as cotton factor and defendant 'as customer, and plaintiff is, for that reason, entitled to an accounting in equity. Plaintiff further states that repeated demands have been made on defendant to pay the balance due on the above account, but he has wholly refused to pay same or any part thereof. Wherefore plaintiff prays judgment against defendant for the said sum of $1,271.65, with interest thereon from July 20, 1923, until paid, together with judgment for costs and all -other proper relief. ’ ’
An itemized 'account was attached to the complaint showing’ a balance of $1,271.65.
Appellee filed a demurrer to the complaint upon the ground that it failed to state an equitable cause of action. The court sustained the demurrer, and dismissed appellant’s complaint, from which is this appeal.
Appellant’s first contention for a reversal of the decree is that the complaint states a good cause of action in equity for two reasons:
(1). Because the account is intricate and complicated. (2). The gitasi-fiduciary relation existing between factor and principal. (Equity having jurisdiction of trusts 'and their enforcement).
(1). The account exhibited is itemized, containing items of credit and debit, and showing a balance due of $1,271.65. It is not very long, and we see nothing in it which can be characterized as intricate or complicated.
(2). It is true that courts of equity have jurisdiction over all trusts for the purpose of compelling an accounting, but, before exercising such jurisdiction, it must appear from the complaint • that an accounting is necessary to determine the amount due. There is nothing in the complaint quoted above showing that such a necessity exists.
Appellant’s last contention for a reversal of the decree is that the court erred in not treating the demurrer as a motion to transfer the cause to the law court. We think the complaint states a good cause of action at law, so the court should have treated the demurrer as a motion to transfer tlie cause, and should have accordingly transferred same to the circuit court.
On account of the error in not doing so the decree dismissing appellant’s complaint is reversed, and the cause is remanded, with instructions to transfer same to the circuit court. | [
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Humphreys, J.
This is an appeal from a judgment rendered 'in the circuit court of Howard County, dismissing the complaint of appellant. The questions involved on the appeal are whether certain evidence was improperly admitted by the trial court, and whether the testimony is sufficient to support the verdict and consequent judgment. The sole issue in the case was whether William Chamblin was authorized to indorse and collect from appellee a check for $150, payable to the order of Parker Brothers, drawn by appellant to pay for fruit trees ordered by appellant from Parker Brothers, through their sales agent, William Chamblin.
The written order for the trees Was given to Chamblin the first day of September, 1925. The order contained a provision that it should not become a binding contract unless and until accepted by Parker Brothers. It was never delivered by Chamblin to Parker Brothers, so the order was never accepted or filed. On the 8th day of September, 1925, Chamblin induced appellant to pay for the trees in advance by offering him a discount on the contract price. Plaintiff gave the check in question in payment of the trees. The check was collected by William Chamblin, and used by him personally. The check and indorsement thereon is as follows:
“Nashville, Ark., 9/8/25 No...............
“Bank of Nashville:
“Pay to the order of Parker Bros. $150 (one hundred and fifty dollars). (Paid).
“S. W. Atkinson.
Indorsed: “Parker Bros., by Wm. Chamblin.”
The record discloses, without dispute, that, for several years just prior to the transaction, William Chamblin was the general agent of Parker Brothers in the vicinity of Nashville, in Howard County, to take orders for fruit trees and other nursery stock for Parker Brothers, who were in the nursery business in Washington County, and to collect for the nursery stock in money or checks, but there is an entire absence of testimony to show that he had authority from Parker Brothers to indorse and cash checks made payable to them for the nursery stock at the time the check in question was given. Bell’s testimony tended to show that Parker Brothers authorized the Farmers’ Bank & Trust Company at Nashville to cash checks given to Parker Brothers, in payment of nursery stock, upon William Chamblin’s indorsement, while' Chamblin did business with that bank and before he commenced doing business with appellee bank.
We do not think Bell’s testimony admissible in an endeavor to show that such authority was conferred upon appellee bank, or that Parker Brothers authorized Chamblin to indorse checks made payable to them for nursery stock. The law applicable to cases of this character was clearly stated in two well-considered cases, one decided recently and the other several years ago, by this court, as follows: ‘‘The fact that an agent is authorized to make collections in checks, as well as in nioney, does not enlarge his authority to indorse checks so taken in the name of his principal.” Schaap v. First National Bank of Fort Smith, 137 Ark. 251, 208 S. W. 309; Wayne Tank & Pump Company v. Bank of Eureka Springs, 172 Ark. 775, 290 S. W. 370.
George Parker testified positively that his firm never gave authority to William Chamblin to indorse and cash checks payable to them which he received on orders for nursery stock.
Appellant and his son-in-law, A. W. Hale, testified that, when they approached C. F. Hill, cashier of appellee bank, to ascertain the bank’s authority for having cashed the check, Hill told them that it just assumed the authority. Hill did not deny making this statement to them.
Quite a number of the acts of Chamblin in behalf of Parker Brothers were introduced in evidence relative to business transactions with other parties, but it was not shown that Parker Brothers knew of the transactions or that they subsequently found out about them and ratified same. None of his acts were admissible in evidence unless traced to the knowledge of Parker Brothers. All such evidence should have been ruled out by the court. On account of the admission of Bell’s testimony and the transactions referred to with other parties which were not traced to the knowledge of Parker Brothers, the judgment is reversed, and the cause is remanded for a new trial. | [
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Wood, J.
This is an action by the administrator of the estate of B. H. Boswell, to recover the sum of $630.47 alleged to be due the administrator by H. G. Smith for the rent of a certain store building in Phillips County, Arkansas. The answer denied that the plaintiff was acting as administrator, and denied that the defendant leased from the plaintiff, as administrator, the storeroom in controversy. The defendant admitted that he occupied a certain building from March 1,1920, to March 1, 1923, which building belonged to Boswell in his lifetime. The defendant denied liability to the plaintiff.
The testimony on behalf 'of the plaintiff was to the effect- that he was the administrator of the Boswell estate; that the defendant was indebted to him as administrator in the sum of $630.47; that the plaintiff, as such administrator, rented to the -defendant the storeroom in controversy, and that the defendant knew that, in so doing, he was acting in the capacity of administrator; that the defendant went into possession of the building under written contract for the first year at a monthly .rental of $20, and, at the expiration of the first year, defendant continued in possession of the building, without any written agueement, at the same rental-until July, 1920, when the rent was increased to $25 per month. The plaintiff allowed the defendant to take -credit for a grocery bill at the time he made settlement with him for the rent in 1920. Plaintiff denied that he ever bought any g’oods or merchandise from the defendant for the estate of Boswell, and denied that he ever authorized the defendant to charge said estate with any merchandise sold to the plaintiff. The wife of the defendant is one of the heir-s of Boswell.
The defendant testified that he settled with the plaintiff for the rent of the storeroom in controversy in the fall of 1920 by giving the plaintiff a check for $600, which was indorsed “J. S. Campbell, administrator;” that, at the time of the settlement, with the consent of the plaintiff, the defendant took credit for the amount the plaintiff owed him at the store. The defendant had paid all that he owed the plaintiff except $29. Defendant executed the lease in 1916 for one year at -the monthly rental of $20. It was a year or more after the contract was entered into that the defendant agreed to pay $25 per month rent.
The plaintiff presented prayers for instructions to the effect that the defendant -could not, under the law, charge the estate of Boswell with any account of money due from the plaintiff personally to the defendant; that, if the defendant rented the premises from the plaintiff as administrator, then the defendant could not claim as a -credit on the rent any amount due from the plaintiff to the defendant. The court overruled these prayers, and modified the same hy adding thereto the words, “unless plaintiff had previously agreed to the same,” and gave the instructions as modified, to which rulings of the court the plaintiff duly excepted. The court also gave the following instruction: “If you find from the evidence that the plaintiff agreed that his store account should be applied towards the payment of the rent, then you are instructed that the plaintiff is entitled to recover the difference between the items of credit and amount of rent according to -the contract.” The plaintiff duly excepted to this instruction. The jury returned a verdict in favor of the defendant, and the court entered a judgment in his favor, from which judgment plaintiff duly prosecutes this appeal.
It will be observed that there is no allegation in the complaint to the effect that, during the time of the alleged contract between the appellant and the appellee for the rent of the store building in controversy, there were outstanding debts against the estate of Boswell, and that it was necessary for the administrator to take possession of the store building and rent the same for the purpose of paying such debts. In the absence of allegation and proof to that effect, the appellant was not entitled to an instruction telling the jury as a matter of law that the appellee would not have the right to offset or pay the account in controversy by crediting the claim with the amount of appellant’s account or indebtedness with the appellee. There was testimony to the effect that the wife of the appellant was one of the heirs of Boswell and that the wife of the appellee was another, and that, by mutual agreement between the heirs and the appellant and appellee, the store account of the appellant with the appellee would be used as an offset against appellant’s claim for rent or use of the building which appellee was occupying. There was' testimony to warrant a finding that the appellant was in charge of the building by consent of the heirs, not for the purpose of paying any debts of the estate of Boswell, but that he was in possession representing the heirs, and that, having such possession, he rented the storehouse to the appellee, and had settled the account by deducting from the same the amount that appellant was due the appellee on store account.
If this was the specific agreement between the appellant and the appellee, and there was proof to that effect, then the court did not err in refusing appellant’s prayers for instructions as asked, nor in modifying the same and giving the same as modified. We find no error in the instructions of the court. They correctly submitted the issues which, the testimony tended to prove. Section 67 C. & M. Digest. See Stuart v. Smiley, 46 Ark. 373, and cases there cited; Chowning v. Stanfield, 49 Ark. 87; Jones v. Jones, 107 Ark. 402.
The judgment is correct, and it is therefore affirmed. | [
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Wood, J.
This is an action brought by Melbourne M. Martin against Street Improvement District No. 324 of. the city of Little Rock, and George M. Heard, Mrs. Dixie F. Jackson and J. E. Lord, commissioners thereof. The plaintiff alleged that he entered into a contract with the defendants whereby they agreed to pay plaintiff the sum of $300 for services performed in the promotion and organization of the district; that the contract had been performed on the part of plaintiff and the defendants had refused to pay him for his services under the contract.
Two of the commissioners and certain property owners filed an answer for the district, in which they denied the material allegations of the complaint, and denied that the district was liable. Among other things, they set up that the act of 1913, upon which the plaintiff relies as authority for the contract upon which he bottoms his claim, was not intended to cover a promoter’s fee, especially when the same attorney had attended to the legal work of its organization. They set up that the appellant had received the sum of $522.90 as attorney for the district, which was paid to him with the under standing that it was the entire sum to be paid for the services he rendered the district; that the sum thus paid him was a reasonable compensation for his services.
The plaintiff introduced the contract, which, among other things, specified “that for and in consideration of work done in the promotion o;f Street Improvement District No. 324 by the party of the second part, the party of the first part hereby agrees to pay said party the sum of $300 for said services.” The plaintiff testified that, at a meeting of the board of commissioners of the district, at which all the members were present, the matter of his fee as attorney for the district and promotion work was discussed, and it was agreed by all members of the board to pay plaintiff $500 attorney’s fee and $300 for promotion work, consisting of circulating the petition, creating a sentiment for the improvement, etc.; that he was directed to prepare and did prepare written contracts, one of which is the contract upon which he bottoms his action.
Plaintiff stated that he asked for his services $1,000, and, by way of compromise, they agreed to give him two per cent, attorney’s fee, amounting to the sum of $500, and $300 for promotion, which was to be evidenced and was evidenced by two separate contracts. The witness then testified that, by his personal efforts, he created a sentiment for the district, and. walked from house to house for about thirty days until he got a majority in valuation to sign the petition. Among other things the witness said: “I not only procured the signatures that I have testified about, but I walked the streets, Rock Street, frequently late at night, seeing the property holders in this district, because it was a bitterly contested district; so much so that we were successful in carrying it only to Twentieth Street. * * * I experienced great difficulty in getting signatures on the petitions, and there were several I had to interview three or four times. I consented to go on with the legal work only in view of the fact that they would pay my promoter’s fee of $300, to which they agreed I was justly entitled.”
The plaintiff’s testimony as to the promoter’s contract for a fee of $300 was corroborated by Mrs. Dixie F. Jackson, one of the commissioners. There was testimony for the district to the effect that the drawing of the ordinances and petitions for the district and the improvement was the work of a lawyer, and two per cent, of the cost of the improvement, where such cost exceeded $25,000, or, in this case, $500, was a reasonable charge; that the attorney’s fee in an improvement district usually included the work of a lawyer in organizing the district. It was shown that the sum of from $10 to $25 was a reasonable fee for circulating a petition.
The cause was submitted to the court upon substantially the above facts. The court found generally against the plaintiff, and rendered judgment against him, from which is this appeal.
Section 6 of act No. 125, approved March 3, 1913, § 5741, C. & M. Digest, provides: “The commissioners of improvement districts are authorized to pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof. ’’ In Deane v. Moore, 112 Ark. 254-260, the commissioners of an improvement district sought to pay a party who circulated the petition for the improvement the sum of $100, under the authority of the above act. At the time the petition was circulated the act of March 3, 1913, supra, had not been passed, and we held that the charge of $100 for circulating the petition was not justified, saying: “The act of 1913, which authorized the board of improvement to pay a reasonable compensation to the persons who have done necessary preliminary work in the organization thereof, is not retroactive and does not authorize payment to the promoter of a district organized prior to the passage of the act.”
The appellant contends that the court, in the above case, holds, at least conversely, that the act of 1913 authorized payment to the promoter of a district organized after the passage of the act, but we did not, in the above case, undertake to determine whether the act authorized a promoter’s fee. That question was not presented. In that case it was merely conceded that, even if the act was valid, the charge for circulating a petition for the improvement before the passage of the act would not be authorized, because to so construe the act would make it retroactive. But, in the case at bar, the services for which the appellant charged, as evidenced by his contract, were rendered after the passage of the act, and the issue here necessarily involves the question whether compensation for promotion services is authorized by the act; for, unless the act authorized a contract for such services, the commissioners had no authority to enter into the contract with the appellant for the services rendered by him.
Section 27, art. 19, of the Constitution, authorizes local improvements in towns and cities under such regulations as may be prescribed by law, to be 'based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected. This provision of the Constitution contemplates an entirely voluntary action upon the part of the property owners. The Legislature has no right, under this provision of the Constitution, to authorize the commissioners to enter into a contract to pay promoters to urge property owners to create local improvements. “A promoter is one who, or that which, promotes, as urging on, encouraging, inciting, advancing,” etc. Standard Dictionary. The services of a promoter are incongruous with the idea that the property owners have voluntarily created the improvement.
In Thibault v. McHaney, 119 Ark. 188-201, it is said: “It is in the power of the Legislature to -provide for the preliminary expenses, that is, those expenses that have been incurred in the formation of the district, and in all such proceedings as were necessary, and as were had, in determining the feasibility of the improvement contemplated. * * * * Under the terms ‘ preliminary expenses’ would be included the cost incurred in litigation to determine whether or not the act creating the district was valid, and. attorney’s fees as counsel to the board in the preliminary work of organization, etc.; such costs as expenses for maps, plats, surveys of land, and for engineering expenses in preparing the plans and specifications. In other words, all expenses incident to the investigations by which it is sought to determine whether the value of the benefits to the lands by the improvement contemplated would exceed the cost of such improvement and thereby warrant its completion. ’ ’
The services of a promoter are not embraced in any of these. To authorize such services is tantamount to saying that property owners may employ an agent to persuade themselves to create an improvement, which the Constitution contemplates they shall do sit,o motu and without any inducement or incitement so to do by an agent or third party. The statute cannot be invoked as an authority for the allowance of a promoter’s fee for services such as is embraced in appellant’s contract with the district. The most that could be included therein would be the work of preparing the petitions and other expenses, such as are defined in Thibault v. McHaney, supra. See also, Elkins v. Huntington Mid. Highway Dist., 161 Ark. 570; Gould v. Sanford, 155 Ark. 304.
It is well settled that contracts for the payment of money to induce men to lobby for or against bills or ordinances, the compensation for such services contingent upon success, are contrary to a sound public policy. McDonald v. Buckstakk, 76 N. W. 476; 81 N. W. 309; 48 L. R. A. 294; Miller County Highway and Bridge Dist. v. Cook, 134 Ark. 328; Hyland v. Oregon Hassam Pav. Co., 144 Pac. 1160, L. R. A. 1915C, 823. The contract under consideration, in view of the provision of our Constitution, may be likened unto lobbying contracts and placed in the same category. Such contracts are contrary to a sound public policy, and void.
The judgment of the court therefore is correct, and it is affirmed. | [
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Smith, J.
On April 21, 1919, J. S. Alphin and wife executed to Vincent L. Hanson an oil and gas lease covering 1,947 acres of land in Union County, Arkansas. The lease described twenty-seven tracts otf land, which are widely scattered over the county, some being as much as thirty miles from others, arid, altogether, the lands were in eleven different townships.. The lease contained the grant of all rights usually found in such instruments, and reserved to the lessor “the equal one-eighth royalty or share of all oil produced and saved upon the premises, to be delivered at the well,” etc., and required the lesssee to pay $200 per annum, - payable quarterly, for the product of any well producing gas exclusively.
It was provided in the lease that, in case operations were not commenced and prosecuted with due diligence within one year, the grant should be void, but that for feiture might be prevented by the lessee paying quarterly, from year to year for five additional years, a rental of twenty-five cents per acre until drilling operations iare commenced, after which no rent was to be paid, and that “the completion of a well shall operate as full liquidation of all payments under this provision during the remainder of the term of this grant.” No rent was to be paid while drilling operations were being carried on in good faith, whether these operations were successful or not.
It was further provided that: “In case the party of the second part should bore and discover either oil or gas, then in that event this grant, incumbrance or conveyance shall be in full force and effect for twenty-five years from the time of the discovery of said product, and as much longer as oil or gas may be produced in p'aying quantities thereon; the party of the second part binding itself, after discovery of oil or gas in paying quantities, to prosecute diligently the work of production of oil or gas, and deliver the one-eighth of the oil as above provided and the payment of two hundred and no/100 dollars per annum for gas (if a g*as well) as above provided.” “This grant is not intended as a mere franchise, but is intended as a conveyance of property above described for the purpose herein mentioned, and it is so understood by both parties to this agreement. Lessee shall have the right to surrender this lease, or any portion thereof, by written notice to the lessor, describing the portion of above tracts that it elects to surrender, and the acreage rental hereinbefore set forth shall be reduced in proportion to acreage surrendered. ’ ’
In August, 1926, Alphin, the lessor, brought suit, in which he set out the above lease, and alleged that Hanson, the lessee, had sublet or assigned the -lease as to varmus portions of the lands there described, and these sublessees or assignees, twenty or more in number, were made parties defendant along with Hanson.
The complaint alleged an assignment of the lease in so far as the same covered or affected the west half of the southeast quarter of section 24, township 16 south, range 16 west, which, by mesne conveyances, was acquired by the Unity Petroleum Company, and that company had developed the eighty-acre tract described by drilling a well which was producing oil. It was alleged that, as to the remaining 1,867 acres, there had been no development or prosecution for oil or gas, and it was prayed that the lease be canceled as a cloud upon the title, except as to the eighty acres above described.
.Some of the defendants filed no answer or other pleading, and a decree by default was rendered against them.
Hanson and certain other of the defendants filed a demurrer to the complaint, upon the grounds that it did not state a cause of action entitling plaintiff to the relief prayed, and because “the complaint shows on its face that the oil and gas lease referred to in plaintiff’s complaint is a single and undivided contract, and that, before the term of years named in said lease had expired, oil and gas was being produced from said leased premises, and that, by the terms thereof, said oil and gas lease is to remain in force and effect so long as oil and gas are produced from the leased premises.” The demurrer to the complaint was overruled, and, defendants electing to stand on the demurrer, the relief prayed was granted.
Alphin also filed a suit against Fred G. Drummond et al., in which he alleged the execution by himself of a lease to I. Felsenthal similar to the one given Hanson, and that Felsenthal had assigned or sublet leases to various persons. The Felsenthal lease covered 1,710 acres, lying in seventeen different townships and comprising thirty-one different tracts of land, and these lands were as widely scattered as were the lands involved in the Hanson lease. It was alleged in the complaint that, of all the assignees or sublessees of Felsenthal, only the Woodley Petroleum Company had developed a well, this being on tbe southeast quarter of the northwést quarter of section 24, township 16 south, range 16 west, one of the tracts of land described in the Felsenthal lease.
The assignees or sublessees under the Felsenthal lease were made defendants, some of whom failed to answer, and, as against those who failed to answer, a decree was rendered by default, canceling the lease. Other defendants filed a demurrer similar to the one filed in the Hanson case, and, the demurrer being overruled, the defendants stood thereon, and a decree was rendered canceling their leases. The cases have been consolidated, and are presented here as a single appeal.
It is the insistence of appellants that the allegations of the complaint show such compliance with the provisions of each lease as to defeat the granting of the relief prayed, inasmuch as it is alleged in each complaint that one of the sublessees has developed a producing oil well.
Appellants rely upon the paragraph of each lease which provides that: “In case the party of the second part should bore and discover either oil or gas, then in that event this grant, incumbrance or conveyance shall be in full force and effect for twenty-five years from the time of the discovery of said product, and as much longer as oil or gas may be produced in paying quantities thereon.” Appellants interpret this language of the leases as showing that the parties contemplated that, if oil Was discovered, the lessee should have twenty-five years longer in which to explore other tracts of land embraced in the lease than that upon which the original discovery well should be drilled. It is. pointed out by appellants that the complaint does not allege that the drilling of additional wells is necessary to prevent draining’ the oil from under the lands described in the lease by other wells adjacent to these lands. In addition to the insistence that appellants have substantially complied with the requirements of the leases, it is also urged that, if there has been any breach, it is only partial, and that the lessor is therefor remitted to an action at law for damages.
Appellants cite numerous cases to sustain their contentions, but, upon the question of substantial perforan ance of the requirements of the leases, they rely chiefly upon the decision of this court in the case of Hughes v. Cordell, 174 Ark. 757, 296 S. W. 735. It is the opinion of the majority, however, that the Hughes case is not controlling here. That case did quote with approval a syllabus from the case of Dulce v. Stewart (Tex. Civ. App.), 230 S. W. 485, reading as follows: “Where owner •leased ias an entirety and by lease required lesseés to develop the land for oil, without providing for development of any particular acre or tract thereof, the development of a portion of the land' by a sublessee accrued to the benefit of the lessee, precluding the owner from declaring lease forfeited as to another portion held by lessee or successors for nondevelopment thereof.” But it will be remembered that the lease in that case covered a tract of land containing only 90.26 acres. The original lease in that case was made February 16, 1920, and on September 27, 1922, the lessee contracted for the drilling of a well on a sixteen-acre tract constituting a part of the ninety-acre tract, and the first well was brought in on January 14, 19'23, and seven wells were drilled altogether on the sixteen-acre tract. In that case the plaintiff, Hughes, sought to treat the assignment of a portion of the land as an abandonment of the unassigned portion, but the court held that the original lease of the ninety-acre tract was an entirety, and that the subleases were for the purpose of development of a portion thereof, and that the development of a portion of the land by a sublessee accrued to the benefit of the. original lessee, precluding the owner from declaring the lease forfeited as to another portion for non-development.
There is no purpose here to impair the authority of that case, but it is thought that it would be an extension of it if it were held to apply to the facts of this case.
In the case of Duke v. Stewart, supra, from which we quoted, and which we followed in the case of Hughes v. Cordell, it was also said: “On the facts before it the trial court properly instructed a verdict for defendants, and this judgment is affirmed without prejudice as to the rights of appellants or their assigns to bring a new suit or suits, should the holders under this original lease fail to perform the obligations imposed upon them by this contract;” citing the case of Fisher v. Crescent Oil Co., (Tex. Civ. App.), 178 S. W. 905. The obligation there referred to was that of prosecuting the work of development, and the case of Fisher v. Crescent Oil Co., there cited, is illuminating on the exact question here in issue. The first syllabus in that case reads as follows:
“Complainant, in consideration of $6,400, conveyed all the oil and other minerals in certain land described, with the right of entry to drill and operate for oil, reserving one-eighth of all the oil produced,'the lease to be void if the lessees did not commence operations by a certain date, and providing that, if oil was discovered, the lease should be in effect for 25 years thereafter, which conditions extended to the heirs and assigns of the parties. The lessees assigned to two different assignees, one of whom, within the time prescribed, brought in. a producing oil well, which failed in about a year, after which the casing was drawn out, and the other of whom drilled a well, which proved to be dry. Held, in the lessor’s suit against the second assignee to cancel the lease, that the discovery of oil by one of the assignees executed the contract and vested rights under the entire lease -for the 25 years specified, but required the lessees to continue operations' during such term, and that their failure to operate would work a forfeiture, though a temporary cessation of work would not.”
The 25-year clause in that case -reads as follows: “In case the parties of the second part shall bore and discover either oil, gas or other minerals, then in that event this grant, incumbrance or conveyance shall be in full force and effect for twenty-five years from the time of discovery of said product, and as much longer as oil, water, gas or other minerals can be produced in paying quantities thereon.”
It thus appears that the 25-year clause in that case is almost identical with the 25-year clause in the instant case, and, while the court held that the discovery of oil by a sublessee vested rights under the entire lease for 25 years, yet it also held that the lessees were required to continue operations 'during said term, and that their failure to operate would work a forfeiture, although a temporary cessation of the work would not.
It was not the intention of this court, in the case of Hughes v. Cordell, supra, to extend the doctrine of the eases there cited and followed, and it is now held that, while the development of a portion of a lease inures to the benefit of the original lessee, that fact does not relieve the original lessee from the duty of proceeding with the development of the tract as an entirety in- the manner contemplated b3r the express and implied covenants of the lease. The question therefore arises whether the drilling of one well on each lease complied with and discharged the obligation of the original lessee to continue to develop the lands for oil or gas, or might wait twenty-five years before doing so.
If appellants are correct in their, interpretation of the contract, they have, for the period of twenty-five years from the date of the drilling in of the respective discovery wells, discharged their obligations to the lessor, and during this time will not be required to pay even the annual rental of twenty-five cents per acre, for a producing well has been brought in under each lease, nor are they required to surrender any. portion of the lands on which they conclude drilling would not be profitable, as the lease contract authorizes them to do.
As has been said, the lands here involved are widely scattered, and the drilling of. the wells which are producing oil has not determined whether oil might not be discovered under other lands. It is true, as appellants assert,' that the complaint does not allege that there is a drainage of oil from under these lands by wells which have been drilled by other persons, but it is true also that, unless appellants explore for oil, the lands may remain undeveloped as long as the lease is outstanding.
The leases were made in 1919, and suits to cancel them were brought in August, 1926. One of the producing wells was drilled in April, 1923, and the other in. May of that year, so that more than three years elapsed after the last well had been brought in before the institution of the consolidated suits, and, under the allegations of the complaint, nothing has been done towards the further development of the land during that interval.
In the case of Millar v. Mauney, 150 Ark. 161, 234 S. W. 498, it was’said:
“The contract set up in the complaint does' not create the ordinary relation of landlord and tenant. It is not a contract by which the lessees are to occupy the property for residence, mercantile, manufacturing or agricultural purposes, and in which the lessor, landlord, receives a certain stipulated sum for one month or for one year for the use of the premises leased. But it is a contract for the exploration and development of the leased lands ‘for diamonds and other precious stones and valuable minerals.’ As compensation for thé use of his lands for such purposes, the lessor receives, by way of rental or royalty, a certain percentage of the output from the development of the leased property. In other words, this is strictly a lease for ‘mining purposes,’ such as was under consideration by this court in the case of Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837. In that case we said: ‘In the construction of mineral leases such as is involved in this case, the authorities uniformly hold that there is an implied obligation on the part of the lessee to proceed with the search and also with the development of the land with reasonable diligence, according to the usual course of such business, and that a failure to do so amounts, in effect, to an abandonment, and works a forfeiture of the lease.’ And further: ‘According to the uniform holding of the authorities, the law will read into this lease a covenant on the part of the lessee that it will, with due and proper diligence, search the land described in the lease for minerals and with due and proper diligence develop the same. This implied covenant is in effect a condition upon which the lease was made; á failure or refusal to perform that condition results in a forfeiture of the lease.’ ”
After reviewing a number of authorities, including several prior decisions of this court, it was there further said:
“If the conduct of the lessees in contracts of this nature is such as to show that they do not intend, in good faith, to perform the covenants by which they are bound, then they have, in legal effect, rescinded those covenants and released the lessors from the obligations of the contract, and the latter are justified likewise' in treating the contract as rescinded.” And this case is also authority for holding that an action may be brought in equity to cancel a lease under such circumstances.
Through the industry of counsel many of, and possibly'all, the leading cases bearing on the question here under review have been cited and discussed. We do not review these cases or attempt to distinguish them, for to do so would unduly protract this opinion, as the authorities are not harmonious. The majority are content, under the allegations of the /complaint, to say that appellants have not, except as to the two tracts upon which producing wells have been developed, prosecuted the work of development which the original lease contracts contemplated, after bringing in the discovery wells. As supporting this view, the following cases may be cited: Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S. W. 837; Mansfield Gas Co. v. Parkhill, 114 Ark. 419, 169 S. W. 957; Mauney v. Millar, 150 Ark. 161, 234 S. W. 498; Murdoch v. Sure Oil Co., 171 Ark. 61, 283 S. W. 4; Brewster v. Lanyon Zinc Co. (C. C. A.), 140 Fed. 801; Papoose Oil Co. v. Rainey, 89 Okla. 110, 213 Pac. 882; Fox Petroleum Co. v. Booker, 123 Okla. 276, 253 Pac. 33; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Brown v. Union Oil Co., 114 Kan. 166, 270 Pac. 286; W. T. Waggoner Estate v. Sigler Oil Co. (Tex. Com. App.) 284 S. W. 291; White v. Green River Gas Co. (C. C. A.), 8 Fed. (2d) 261; Id. 270 U. S. 660, 46 Sup. Ct. Rep. 356, 70 L. ed. 786; McCamey v. Freel, 121 Kan. 189, 246 Pac. 500.
Upon the question of the remission of appellee to an action at law for a suit for damages for a partial breach of the contract, it may be said that the original lessee has, by assigning and subletting various portions of the leases, made many leases out of the various tracts of land, and no one of these assignees or sublessees could be held responsible for the dereliction of other assignees or sublessees. Indeed, two of them have complied with their subleases by developing the land, and they could not be sued for damages, nor would it be equitable to cancel their leases because of the default of others.
In the case of Millar v. Mauney, supra, it was held (to quote the third syllabus) that, “Where a lessee in a mining lease, the consideration of which is a royalty to be paid, has, after a reasonable time, failed to begin and to continue the work of development and exploration provided in the contract, the lessor has three remedies, viz: (1) he may sue in equity to cancel the contract and recover incidental damages; (2) he may sue at law for damages for breach of the contract; or (3) he may treat the contract as rescinded, and sue at law to recover possession of the property leased.”
The majority are of the opinion, upon the authority of the cases previously cited herein, that appellants have failed, beyond a reasonable time, to begin the work of exploration and development as provided in the original leases, after drilling the discovery wells, and that the cancellation of such portions of the original leases as had not been explored was properly decreed.
A case which contains an exhaustive review of the authorities and which is thought to sustain the decrees here appealed from is that of Brewster v. Lanyon Zinc Co., 140 Fed. 801. This is a decision of the Circuit Court of Appeals of the Eighth Circuit, the opinion being delivered by Mr. Justice Van Deventer, then a circuit judge.
It is therefore the opinion of the majority — in which view the writer does not concur — that the decrees of the court below are correct, and should therefore be affirmed, and it is so ordered. | [
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McCulloch, C. J.
This appeal involves a contest of the last will and testament of Mrs. Addie Godwin Rogers, who resided at Arkansas City, in Desha County, and died on April 25,1922, at the age of about fifty-five years. Mrs. Rogers had been twice married — first to Henry Townshend, a prominent citizen of Arkansas City, who died about ten years ago, and the last time to Mr. F. M. Rogers, a prominent member of the bar of Arkansas City, who died about a year before her death.
Mrs. Rogers had no children, and her next of kin at the time of her death were her brother and sister, Lennie Godwin and Bets ye Godwin Moore, and her nieces, Dorothy Dickinson Sloan and Eunice Dickinson, the children of her deceased sister, Mrs. J. W. Dickinson, all of whom are contestants, and also her nephew, John A. Dickinson, who was one of the beneficiaries under the will.
Mrs. Rogers appears to have had an estate of about $57,000, and in her will she left $10,000 in money and bonds to her nephew, John A. Dickinson, and the remainder of her estate, both real and personal, to Evelyn Newman, who was not related to Mrs. Rogers, either by consanguinity or affinity. It appears, however, from the testimony, that Evelyn Newman, the chief beneficiary under the will, and who, at the time of the death of Mrs. Rogers, was a child about fifteen years, old,, was the daughter of friends of Mrs. Rogers who resided in a town in an adjoining county. The evidence shows beyond dispute that Mrs. Rogers became very fond of the child during the latter’s infancy, and showed the utmost devotion to her as long as she lived.
The will was offered for probate in the probate court of Desha County, and there admitted, and an appeal was prosecuted to the circuit court.
Appellants contest the will on the ground that Mrs. Rogers lacked sufficient mental capacity to execute a will, and that the execution of the instrument was induced by undue influence. Appellants attempted to prove at the trial that Mrs. Rogers was a paranoiac, laboring under a delusion that one of her nieces was neglectful of her and was unappreciative of what she (Mrs. Rogers) had done for her, and that her niece’s conduct towards her was not considerate or respectful. There was a great volume of testimony introduced— experts on insanity, and many persons who were intimately acquainted with Mrs. Rogers — and there was testimony of a substantial nature tending to show that Mrs. Rogers was a paranoiac, suffering from the delusion mentioned above, but there was substantial evidence to the contrary, .and we must treat the verdict of the jury as settling that issue. In fact, it may be said that the great preponderance of the testimony appears to support the conclusion that Mrs. Rogers was not lacking in mental capacity. We do not discover any evidence of a substantial nature tending to show undue influence, and that issue was not submitted to the jury.
The motion for .a new trial contains forty-eight assignments of error relating to every phase of the trial —the rulings of the court concerning the introduction of evidence, the court’s charge to the jury, alleged misconduct of the trial judge, one of the litigants, a juror, and counsel in the ease. Some of these assignments are of the same nature, and need not be discussed separately; others we find are not properly raised in the record. Hence we will discuss only such assignments as are properly raised and deemed important.
It is contended that the court erred in refusing to permit Mrs. D. U. Browning, a witness introduced by appellants, to testify concerning certain statements of Mrs. Dickinson, a sister of the testatrix. One of the excluded statements of the witness was that Mrs. Dickinson often warned the witness.to take no offense at what Mrs. Rogers did or said, as she used morphine, and was not responsible. Another of the excluded statements of the witness was that she knew that Mrs. Rogers was addicted to the use of morphine because Mrs. Dickinson had told her so. Another statement of the witness related to what Mrs. Dickinson wrote to witness while she was in Hot Springs. The will in question was executed by Mrs. Rogers at Arkansas City on December 30, 1921, and, according to the testimony, the testatrix had been ill and under treatment for several months before that time. Mrs. Rogers came to Little Rock, and stayed with her sister, Mrs. Dickinson, during a portion of her illness, and Mrs. Dickinson accompanied her to Hot Springs, where she went for treatment. Mrs. Dickinson died suddenly in the autumn of 1921, while she was at Hot Springs with Mrs. Rogers, her sister. The statements of Mrs. Browning related to what Mrs. Dickinson had said to her, about that time, concerning the habits and condition of the testatrix. We are of the opinion that this testimony was hearsay and clearly incompetent.
Mrs. Demarke, a lady residing in Arkansas City, and an acquaintance of long standing of Mrs. Rogers, was introduced by appellee as a witness,' and she testified that she had been intimately acquainted with Mrs. Rogers for a long time and up to her death, and that she had seen her frequently just before she went to the hospital where she died, and that Mrs. Rogers was a very bright, alert woman, and took an active interest in all the affairs of the community, and was a woman of fine business qualifications. Counsel for appellee asked Mrs. Demarke the question, “How was Mrs. Rogers received in Arkansas City?” and the witness made this reply, “Everybody liked her and was fond of her.” Objection was made by appellants and overruled by the court, and the ruling is now assigned as error. If it will bé conceded that the testimony is of sufficient importance to form the basis of an assignment of error, we do not think there was any error in permitting the witness to answer the question. The whole basis of the contest was that Mrs. ■Rogers was a paranoiac, that she was a “quarrelsome, querulous and complaining person,” and testimony was introduced by experts that this was an indication of mental unsoundness of the type attributed to the testatrix. It was competent to show by this witness that Mrs. Rogers was not a woman of that type and temperament, but that, on the contrary, she was an affable woman, who was popular among her intimate friends, and that the people in the town where she lived were all fond of her.
It is next contended that the court erred in permitting a witness, Miss Rose, who was a nurse in the hospital in New Orleans where Mrs. Rogers died, to state, by comparison with other persons with whom the witness came in contact professionally, her opinion of the mental capacity -and strength of the testatrix, Mrs. Rogers. Conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Rogers’ .mental capacity at the time she was in the hospital, which was a short time after the execution of the will, and while she'was attended professionally hy the nurse, who was shown to he a person of long experience and who had opportunities of judging the mental capacity of Mrs. Rogers. There was no error in allowing the witness to testify on this subject, and the form of the question was not prejudicial.
The contestee, Evelyn Newman, was introduced as a witness in her own behalf, -and testified concerning the intimate relations between herself and Mrs. Rogers since her own early recollection. She related many evidences of Mrs. Rogers’ generosity and affection for her and her tender solicitude. She ' was permitted, over objections of appellants, to exhibit to the jury photographs of herself and Mrs. Rogers, taken with each of the latter’s husbands, one of the pictures being taken when the witness was a very small child. The tendency of these photographs was to show the intimate relations between the witness and Mrs. Rogers, and they had some probative force in that direction, but they were merely cumulative of the -positive^statements of the witness with reference to the attitude of Mrs. Rogers towards her. The contention of appellants was that the disposition made by Mrs. Rogers of her property was an unusual and unnatural one, and the contestee had the right to meet that theory by testimony showing the -affection of the testatrix for the chief beneficiary under her will. The photographs were, as before stated, merely corroborative of what the witness testified, and, we think, were competent for that purpose.
It is next contended that the court erred in permitting appellee to introduce numerous letters written by Mrs. Rogers to Mrs. Newman, the mother of the contestee, while she was in the hospital at New Orleans. These letters were all written shortly after the execution of the will. The letters discussed personal affairs, such ás the condition of health of the testatrix and the details of her life in the hospital, and also dealt with many ordinary affairs of life. Some of the letters also discussed the conduct of a niece of the testatrix, one of the appellants, concerning a request for a piano. Appellee sought to introduce these letters for the purpose of throwing light upon the mental condition of the testatrix. We think the letters were competent for that purpose. Mason v. Bowen, 122 Ark. 407.
There are several assignments of error with respect to the refusal of the court to permit'appellant’s counsel to propound certain questions to witnesses, and in some of those instances the record has not been perfected by showing what the witnesses would have stated if permitted to answer. In another instance, where such ■ an error is assigned, the record shows that the court, after first holding that the testimony was incompetent, changed the ruling and allowed the testimony to be introduced. In some other instances it is conceded in the argument that there was no prejudicial error.
There are numerous assignments of error with respect to the court’s charge in giving instructions requested by appellee and refusing to give certain instructions requested by appellants. These assignments are too numerous and lengthy for discussion in this opinion, for our conclusion is that the instructions on the issue of mental capacity all conformed to the law as settled by this court in McCulloch v. Campbell, 49 Ark. 361; Taylor v. McClintock, 87 Ark. 243. The only criticism that can be justly made of the court’s charge is that some of the instructions are open to the objection that they are slightly argumentative, but there was no objection made on that ground. Unless an instruction is obviously on the weight of the evidence, the mere fact that it contains statements bearing an argumentative tendency does not call for a reversal, unless the objection is specifically pointed out to the trial court.
Error of the court is assigned in refusing to give the following instruction:
“2. The jury are instructed that in any circumstances a niece is a natural object of an aunt’s bounty. In the absence of a will or. other testamentary disposition of property, a niece takes the property of an aunt or an uncle as against persons unrelated to the decedent, and against all others except those nearer than a niece or nephew in blood to the decedent. The effect of a will is to change the manner in which the law distributes the estate of a decedent. In this case, if there were no valid will, the property of Mrs. Addie Godwin Rogers would be distributed under the law, one-third to her sister, Betsie Godwin Moore; one-third to her brother, Lennie Godwin, and the remaining third share and share alike between Dorothy Dickinson Sloan, Eunice Dickinson and John Allen Dickinson, children of her deceased sister, Mrs. Eunice Dickinson. If the jury believed from the evidence that Mrs. Addie Godwin Rogers, the aunt of Mrs. Sloan, conceived the idea that Mrs. Sloan was not nice to her, was unappreciative of what she (Mrs. Rogers) had done for her, or that Mrs. Sloan was neglectful of her; if there was no evidence upon which Mrs. Rogers could have based such a belief ; if, in fact, Mrs. Sloan was nice to Mrs. Rogers, was appreciative of what Mrs. Rogers had done for her, and was careful to provide for the comfort of Mrs. Rogers, the jury may find that there was an insane delusion on the part of Mrs. Rogers with respect to her niece, and, if the jury further finds there was such insane delusion, and that, in making the will propounded in this case, Mrs. Rogers was influenced by such insane delusion with respect to its provisions as they relate to Mrs. Sloan, they must find against the will.”
One of the objections to this instruction, and which, we think, justified the court in refusing it, is that it is argumentative. Another reason, and a more emphatic one, why it was proper to refuse it, is that its language constituted a charge on the weight of the evidence, in telling the jury that, if the conception of the testatrix with respect to the conduct of the niece was without evidence to base it upon, “the jury may find that there was an insane delusion on the part of Mrs. Rogers with respect to her mece.” The effect of this language was to tell the jury that the mere fact that the testatrix conceived the idea, based upon no evidence, was sufficient to justify a finding of an insane delusion. The court was therefore correct in refusing to give that instruction.
All of the assignments of error in the motion for a new trial with respect to misconduct are without support, except the bare statements in the motion. It devolved on the complaining parties to prove this misconduct. It is argued that the burden of proof as to misconduct of the litigant, the attorneys and the trial judge himself, should not be placed on the complaining party. We think that the distinction sought to be made by counsel is unfounded; for, wherever it is sought to impeach the verdict of the jury on account of any misconduct, before the court is justified in setting aside the verdict, there ought to be some proof made, either directly or by circumstances, to establish the alleged misconduct.
It is also argued that the court erred in not postponing the hearing in order to procure the attendance of the court stenographer, but there is no showing in the bill of exceptions that the stenographer was absent. The court adjourned over for about twenty days to hear the motion for new trial, but declined to grant further postponement. This was a matter of discretion for the court, which does not appear to have been abused.
We find no error in the record, and the judgment is therefore affirmed. | [
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Griffin Smith, C. J.
V. R. Brownfield died July 19, 1935. His wife (appellee here) was made administratrix of his estate.
Brownfield was vice-president and cashier of First National Bank at Greenwood, and became associated with I. H. Nakdimen. In 1921 Browning and Nakdimen orally contracted to operate Greenwood Motor Company, a Ford agency. Later a writing was executed, the two partners to share equally in profits. Brownfield agreed to make annual reports. Nakdimen’s connection with the business was not generally known until July, 1935.
Brownfield, in 1932, borrowed $4,273.80 from Mrs. E. R. Bruton for partnership purposes. He executed a note signed “Greenwood Motor Company, by Y. R. Brownfield.” Eight thousand six hundred dollars was similarly borrowed from Dr. R. O. Bruton. Payments aggregating $722.50 were made on the note in favor of Mrs. Bruton, in eight installments from September 14, 1933, to April 27, 1934. From January 4, 1933, to June 28,1935, forty-one payments amounting to $6,721.58 were made on the obligation due Dr. Bruton.
March 5, 1937, judgments were rendered by Sebastian circuit court against Nakdimen in favor of Mrs. Bruton for $5,353.86, and in favor of Dr. Bruton for $4,496.99. On appeal Nakdimen contended the trial court erred in overruling his motion to require the administratrix of Brownfield’s estate to be made a party to the Bruton suits. The judgments were affirmed. Nakdimen v. Bruton et al., 196 Ark. 1179, 112 S. W. 2d 974.
August 13, 1937, Nakdimen sued Margaret Brownfield as administratrix, alleging that Y. R. Brownfield, until his death, had conducted the partnership business, having exercised supervision of account books. and all financial transactions. It was asserted that when Brownfield died, the administratrix took charge of all records and assets. Nakdimen averred he had no personal knowledge of the manner in which the business had been conducted, except such information as had been gained through conversations with Brownfield, and that Brownfield had personally withdrawn $16,343.24, while payments of only $5,000 had been made to him. It was asserted the difference in Nakdimen’s favor was $5,671.62, for which judgment was asked. An accounting was prayed.
A demurrer was sustained April 20, 1938, on the ground that the court was without jurisdiction.
In an amended complaint of April 29, 1938, Nakdimen omitted his prayer for judgment in a specific amount, hut repeated the demand for an accounting. He alleged the partnership was indebted to him in a sum unknown.
The defendant’s answer of October 10, 1938, was a general denial, coupled with the assertion that when Brownfield died the partnership was indebted to him in an unknown sum. Books, papers, all records and assets, were delivered to Nakdimen. Limitation was pleaded. The answer contained a petition that Nakdimen, as surviving partner, be required to account.
In a substituted answer of July 15, 1941, laches ivas pleaded, in addition to limitation and want of jurisdiction. There was an allegation that after Brownfield’s death the administratrix made demand upon Nakdimen for $10,000, represented by note. It was paid without question. Insistence is that when Nakdimen made this payment in 1935 he had full information regarding partnership accounts.
A final amendment to Nakdimen’s complaint was filed July 25, 1941. Regarding' the Bruton judgments, Nakdimen alleged that all assets of the partnership in his hands had been paid in satisfaction of obligations. In addition, he was compelled to advance $1,306 from private funds. Contribution for half this amount was demanded. Still another allegation was that Brownfield paid C. E. Osborn $1,401 from partnership funds for a lot in Greenwood, purchased for the firm. The administratrix had listed this property as an asset of Brownfield ’s estate. The property forfeited for taxes and was purchased by H. S. Nakdimen (appellant’s son) as trustee.
J. C. Davis was employed by Nakdimen to make an audit of the motor company’s business. He found all can- celled checks, but no ledger, journal, or cash book. Davis testified that when the cancelled checks were found he did not look for additional data “. . . because assets of the company could be more accurately determined from the checks than from anything else.”
Davis testified he received fullest cooperation from the administratrix, and added: “Even if I had found journals and ledgers, I would have taken the cancelled checks in preference to book entries any time.” There was nothing, he said, to prevent Nakdimen from ascertaining the true status. In September, 1935, he showed Nakdimen what the partnership owed him, “to the penny.” When asked if there were other books or records that would be of value in ascertaining the facts, Davis replied, “I don’t think there are any.”
In 1933 or 1934 the Greenwood Motor Company was sold to Bud Williamson, but it continued in business under the old name. This occurred about eighteen months before Brownfield died. Appellee insists that all records pertaining to the partnership business were delivered to Kagy, First National Bank cashier, who represented Nakdimen.
There is no evidence that Nakdimen presented an account to the administratrix. The first action seems to have been a proceeding for debt, based upon the Davis audit. Thereafter the complaint was amended in an effort to confer chancery jurisdiction by the demand for an accounting.
As a matter of law, Nakdimen, as surviving partner, was charged with the duty of accounting to Brownfield’s estate. Death dissolved the partnership. Luke v. Rhodes, 117 Ark. 600, 176 S. W. 111.
In view of testimony given by Davis as auditor and witness for Nakdimen, to the effect that all existing records were in the surviving partner’s hands and had been for several years, there is no information the administratrix can give. It is not alleged that Mrs. Brownfield had personal knowledge regarding any of the transactions. The demand for an accounting*, therefore, is designed to procure chancery court approval of the audit Davis made for Nakdimen. Jurisdiction could not be invoked for this purpose alone. Nor is it sufficient to say that title to the lot should be quieted. H. S. Nakdimen is admittedly his father’s agent. The lot was sold on execution to satisfy a partnership debt, and is held by H. S. Nakdimen as trustee. No claim to it has been made on behalf of Brownfield’s estate.
The decree is affirmed.
Profits of $20,000 had accrued to the partnership business. Nakdimen took his half in cash and borrowed Brownfield’s $10,000 share. | [
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Smith, J.
'The decree from which this appeal comes contains findings of fact the correctness of which is not questioned, except as to certain details which we think are unimportant, and from which we quote the material facts, which are as follows:
The suit was brought by Bowman & Brown, who are dealers in seed rice, against C.. 0. Wofford, the First National Bank of Jonesboro, and R. S. Morris, as receiver of the bank, to recover the purchase price of a quantity of seed rice sold by the plaintiffs to Wofford in the year 1926. The plaintiffs claim the sale was made to the bank direct, but the court found that the sale was made to Woff ord upon the promise of the bank to advance Wofford the money to pay for the rice. The rice was purchased for the purpose of being planted by Wofford on four rice farms which Wofford was operating, substantially for the use and benefit of the bank, as well as for himself, under separate contracts, one of which covered each of the farms.
The bank furnished Wofford the money necessary to grow the crops of rice, and. had done so prior to 1926, and it was the intention of the parties, including the bank, that payment should be made to Bowman- & Brown in cash for the rice immediately after its delivery, and it is admitted that the bank would have paid for the rice, or have furnished the money for that purpose, but for the fact that it failed, and was taken in charge by a receiver before the payment was made. The bank made advances on the rice crops before its doors were closed. After the failure of the 'bank it was necessary to make other advances to mature and gather the crops, and the receiver himself made certain advances. Other advances were made by three other creditors of Wofford in making’ the crops, under an arrangement made by the receiver after taking charge of the bank, and all parties.concede the priority of the claims of these three last-mentioned creditors.
Wofford was a member of the Rice Growers’ Association, and had a contract with that organization whereby he was required to deliver his rice to1 it for -sale. The court permitted this contract to be performed, and the rice was delivered to and sold by the association, which made a report showing the net proceeds of the sale, and this money is now, in effect, a fund in court, to be distributed as ordered by the court.
The court found the amount dué Bowman & Brown for the rice was $2,726.80, with interest, and that the bank and its receiver had made advances against the rice crop aggregating $30,709'.62, and that the bank had, as security for its advances, the lien of a landlord on the crop of rice grown on one of the farms and chattel mortgages on the other crops of rice. The court deducted from the net proceeds of the sale of the rice, as reported by the Bice Growers’ Association, the advances by the three preferred creditors, and directed that the balance be apportioned between the bank and its receiver, on the one hand, and Bowman & Brown, on the other, in proportion to the advances each had made to enable Wofford to make and gather the crop.
It was ascertained that the indebtedness due Bowman & Brown for the seed rice was .0986 per cent, of the total cost of producing and marketing the rice, and it was ordered that that per cent, of the net proceeds of the rice be paid them, and that as to the balance they have judgment against the bank and its receiver, with the proviso, “that, as against the bank and its receiver, no execution may issue, but said judgment shall participate in dividends and distributions with other general debts and obligations of the bank. ’ ’ From this decree all parties have appealed.
It is immaterial whether the bank agreed to pay for the rice or to furnish Wofford money for that purpose, as the fact is undisputed that, if the bank did not promise to pay Bowman & Brown, the rice was sold upon the faith of the promise of the bank that the rice would be paid for. It is true that the bank has liens upon the rice crop, while Bowman & Brown have no lien, but it was the theory of the court below that the bank was surety for Wofford, and had securities for the repayment of advances to Wofford sufficient to indemnify it for its advances to him in making the crop, and that therefore the rights of Bowman & Brown should be worked out through these securities.
The question of remedy is unimportant here, as we have, in effect, a fund in court, and the question is how •to disburse this fund so as to administer equity. 38 C. J., § 28, page 1382.
The court below found all the indebtedness which had been incurred in producing the rice, and decreed that the persons to whom the indebtedness was due should be paid out of the proceeds of the sale of the rice a per cent, equaling the proportion which a particular indebtedness bore to the whole indebtedness.
It is the insistence of the bank and its receiver' that; as Bowman & Brown had no lien on the rice crop, they should be treated as common creditors of the bank and be required to prove their demand and accept the dividends paid all other common creditors. On behalf of Bowman & Brown it is insisted that they should be paid the entire balance of the purchase price of the rice due them, for the reason that no crop would have been made but for the seed rice which they furnished.
We are of the opinion, however, that the findings and directions of the court below more nearly conform to the equity of the case than do either of tlie contentions of the litigants. We think it would no.t be equitable to permit the bank or its receiver to appropriate the entire proceeds of the rice crop, nor would it be equitable to permit Bowman & Brown to receive a larger per cent, of the proceeds of the rice crop than the amount their advances bore to the total sum advanced.
The bank was Wofford’s surety, and it held securities against the rice crop, and the equities of Bowman & Brown must be worked out through these securities. It is permissible to do this where the equities of the parties require that it should be done.
In the case of Whitehead v. Henderson, 67 Ark. 200, 56 S. W. 1065, it was said:
“ ‘The general doctrine,’ says the Supreme Court of the United States, ‘that a creditor has a right to claim the benefit of a security given by his debtor to a surety for the latter’s indemnity, and which may be used, if necessary, for the payment of the debt, is not questioned. The security in such case is in the nature of trust property, and the right of the creditor arises from the natural justice of allowing him to have applied to the discharge of his demand the property deposited with the surety for that purpose, if required by the default of the prineipal.’ Chamberlain v. St. Paul, &c., R. Co., 92 U. S. 299, 306, 23 L. ed. 715; 1 Story Eq. Jur., § 502, and authorities there cited.”
Had the bank paid Bowman & Brown for the rice as it agreed to do, and no doubt would have done had its doors not been closed, it would have had as security therefor its lien as a landlord and its chattel mortgages on the rice, but these would have been without value had not some one furnished the seed rice to make the crop, and Bowman & Brown performed that service. In furnishing the seed rice, Bowman & Brown did not intend to become general creditors of the bank, as the transaction was intended to be a cash one. We conclude therefore that equity has been administered.
Cross-appellants insist that the court erred in casting up the amounts which the bank should have as its contribution to the production of the rice crop. One of the items for which the court allowed the bank credit was that of $5,700 for the rent of one of the farms for the year 1926. It appears that the bank had aeqMred one of the farms cultivated by Wofford through a mortgage foreclosure, and had contracted to sell it to Wofford upon certain conditions. The contract provided that Wofford' should pay an annual rental of $5,700 for a period of years and should perform certain other conditions, and that, if all these payments were made and conditions performed, the bank agreed to execute a deed to Wofford for the-land, but that the annual payment of $5,700 which Wofford agreed to make should be treated as rent until all payments were made and other conditions performed.
A contract of this Mud creates the relation of landlord and tenant until the conditions are performed, whereupon the right to a deed accrues. Frazier v. Nicks, 172 Ark. 1139, 292 S. W. 368, 51 A. L. R. 1287; Solomon v. Keesee, 156 Ark. 387, 246 S. W. 469; Martin v. Allen, 154 Ark. 612, 243 S. W. 802; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002, 135 Am. St. 183; Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468; Block v. Smith, 61 Ark. 266, 32 S. W. 1070; Madden v. Wheeler, 140 Ark. 55, 215 S. W. 699; Smith v. Berkau, 123 Ark. 90, 184 S. W. 429.
These conditions have not all been performed. Most of the annual payments have not accrued and have not been paid, and the relation of landlord and tenant, which the contract created, therefore continued and was the relation between Wofford and the bank during the year 1926. The agreed rental was $5,700, and it was proper therefore to include this rent as one of the items entering into the cost of the production of the rice. This was the view of the court below, and we think it was correct.
We are of the opinion that the decree of the court below upon the whole case was-correct, and it is therefore affirmed. | [
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Smith, J.
This appeal involves the constitutionality of act 345 of the Acts of the General Assembly of 1923. General Acts 1923, p. 282.
The title to this act is as follows: “An act to be entitled, an act to levy a sale or gross income tax of one-tenth of one per centum, or one dollar ($1) on each one thousand ($1,000) dollars, on the gross incomes of every resident of the 'State of Arkansas and by natural persons not residents of this -State who shall have received one thousand dollars or more per annum from and after March 31, 1923, to be levied and collected annually, beginning April 1, 1924, for the sole use and benefit of the-public-schools of Arkansas, and for other purposes.”
A portion of § 1 of this act reads as follows: “A tax is hereby imposed upon every resident of the State of Arkansas, which shall be levied, collected and paid annually upon and with respect to his or her entire gross income as herein defined, at rates as follows: One-tenth of one per centum, or one dollar on each one thousand dollars, and at that rate of one-tenth of one per cent. on each and every dollar over and above one thousand dollars -from the gross income from all property owned and from every business, trade, profession or occupation carried on in this State, and a like tax is hereby imposed and shall be levied and collected and paid annually to the State -Comptroller of this State by natural persons not residents of this State.”
Section 2 of the act defines the term “gross income,” as employed in § 1 of the -act, as follows: “The term ‘gross income’ includes gains, profits and income derived from salaries, wages or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, business, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities or the transaction of any business carried on for gain or profit, or gains, or profits, and income derived from any source whatever, including gains or profits or incomes derived through estates or trusts by the beneficiaries thereof, whether as distributed or as distributable shares, income from property acquired by gift, bequest, devise or descent. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer.”
The appellees in this case, who were the plaintiffs below, are residents and citizens of this State, and have earned incomes upon which they will be required to pay taxes if the act under review is valid. The income of one plaintiff had been earned as a manager of an insurance company; that of another from rents received on real estate; a third earned wages as a locomotive engineer; while the fourth had derived profits -from his business as a merchant, and these plaintiffs seek by this suit to enjoin the 'State Comptroller from attempting to enforce the payment of the tax imposed by act 345 on their respective incomes. The court below held the act unconstitutional, and granted the relief prayed, and this appeal is prosecuted to reverse that decree.
It is quite obvious that the incomes of the plaintiffs are subject to the tax, if the act itself is valid. The act is all-comprehending. It includes gains, profits and income derived from salaries, wages or compensation for personal service, of whatever kind and in whatever form paid. It includes income derived from professions, vocations, trades, business, commerce, or sales, or dealings in property whether real or personal, growing out of the ownership or use of or interest in such property. It includes also incomes from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits. And, after thus including all apparent' sources of income, there was added, out of a superabundance of caution that no source of income might be overlooked, the inclusive words, “and income derived from any source whatever.”
The tax authorized by this act, whatever else may be said of it, is both an occupation tax and an income tax, because income derived from all pursuits or callings are taxed, except certain exempted incomes enumerated in § 4 of the act, and which need not be recited here.
It is not a privilege tax, and cannot be sustained as such, because no attempt is made to distinguish between occupations which are of common right and those which might be designated as privileges, and taxed as such. All are alike subject to the tax.
The act makes no attempt to restrict the imposition of the tax to such occupations as might be taxed as privileges, but imposes the tax as a unit on the entire income of every person subject to its provisions, without regard to the source of the income, and the act must therefore stand or fall in its entirety, as its provisions are not separable. The act proposes a scheme of taxation which is either valid or void, as no separation of the sources of the income was contemplated by the Legislature. Oliver v. Southern Trust Co., 138. Ark. 389; Nixon v. Allen, 150 Ark. 244.
The tax in question is a State tax, and is levied’ for the use and benefit of the public schools of the State, and the first question presented is whether the State can levy such a tax for any State purpose. If the conclusion is reached that such a tax cannot he levied for State purposes, it will be unnecessary to consider any of the other objections interposed to the act.
In approaching the consideration of this question, it may be said that we do not have to search the Constitution for express authority to levy the tax. The power to levy it exists an an inherent right, unless the Constitution has denied the right to the State to levy taxes of this character.
The question is by no means new in this State. The question arose very early in the history of the State, and was first decided in the case of Stevens and Woods v. State, 2 Ark. 291, and was considered in other early cases. We do not stop to review these cases, but will first consider the case of Baker v. State, 44 Ark. 134, because it was the first case to arise under our present Constitution, and these earlier cases were there reviewed.
In the case of Baker v. State, supra, the appellant had been indicted for “unlawfully engaging in business as an agent for the sale of sewing machines” without obtaining the licence required by the act which he was charged with having violated. It was pointed out in the Baker case that there was some apparent conflct in the early eases on this subject, and, on that account, the court was urged to take the subject up anew and consider it de novo, but the court declined to do this for the reason, there stated, that this confusion had been recognized and considered in the case of Washington v. State, 13 Ark. 752, and the earlier cases were there reconciled. Chief Justice Cookrill, in delivering the opinion in the Baker case, said: “In an attempt to extricate itself from this difficulty, the court held (in the Washington case) that there was no restraint upon the power of the Legislature to authorize counties and towns to regulate or tax callings and pursuits, but there was a restriction in that regard upon legislation for the purpose of raising a State revenue. This distinction has never been questioned by this court, but has been recognized and approved from time to time. McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Id. 625; Barton v. Little Rock, 33 Id. 442; Little Rock v. Board, etc., 42 Id. 160.”
After recognizing the Washington case as having definitely decided the question that the Legislature might authorize counties and towns to regulate or tax callings or pursuits for the purpose of raising revenue, but that there was a restriction in that regard upon legislation for the purpose of raising State revenue, Chief Justice Cockrill took occasion to say that the decisions reviewed did not limit the power of legislation for State purposes to the taxing of such privileges as were technically known as such at the common law, that is to say, that the Legislature has a discretion to adjudge what are privileges, and such callings and pursuits as may be classed as privileges may be taxed for State purposes, but the court there clearly decided that, unless a particular calling or pursuit might be classed as a privilege, it was not subject to taxation for State purposes.
Upon the authority of the case of Baker v. State, supra, this court has consistently held that cities and towns may, when so authorized by the Legislature, tax callings and pursuits to raise revenue for municipal purposes, such taxes being commonly designated as occupation taxes. Among other cases in which it was so held are: Little Rock v. Prather, 46 Ark. 471; Fort Smith v. Scruggs, 70 Ark. 549; LaPrairie v. Hot Springs, 124 Ark. 346; Davis v. Hot Springs, 141 Ark. 521; Pine Bluff Transfer Co. v. Nichol, 140 Ark. 130.
And, upon the authority of Baker v. State, supra, this court has, with equal consistency, held that the State could not impose such taxes for State purposes. Among the cases so holding are: State v. Washmood, 58 Ark. 609; Standard Oil Co. v. Brodie, 153 Ark. 114; State v. Handlin, 100 Ark. 175.
The reason for the distinction uniformly drawn by this court for upholding the tax in one case and for declaring it invalid in the other, goes hack to the Washinton case, supra, where the apparent conflict in the still earlier cases was reconciled, as Judge Cockrill said in the Baker case, and the reason upon which the reconciliation of the cases was made was simply this: The Constitution had taken away from the State the right to tax occupations which are of common right for State purposes, and had left the State the right to tax only those callings or pursuits which might be classed as privileges, whereas no such limitation had been placed against the cities and towns.
The State might tax callings and occupations which are of common right, had the Constitution not denied the State this power; but the Legislature has the right to confer this power on the cities and towns of the State, because the right to do so has not been withheld by the Constitution.
It was just here that this court, in the Washington case, speaking through Watkins, Chief Justice, reconciled the apparent conflct in the earlier cases. The decision in the Washington case was rendered while the State’s first Constitution — that of 1836 — was in force.
Section 2 of the article on revenue in the Constitution of 1836 reads as follows: “All property subject to taxation shall be taxed according to its value — that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value. Provided, the General Assembly shall have power to tax merchants, hawkers, peddlers and privileges in such manner as may, from time to time, be prescribed by law.”
It is quite obvious that this is substantially the same as :§ 5, of article 16, of our present Constitution, except that § 5, of article 16, of the present Constitution, after declaring the basis of taxation and the privileges' which might be taxed, also enumerated the classes of property which should be exempt from taxation. The por tion of § 5, of article 16, of the present Constitution relevant to the decision of the question here under consideration reads as follows: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, provided the General Assembly shall have power from time to time to tax hawkers, peddlers, ferries, exhibitions and privileges in such manner as may be deemed proper.”
A comparison of this section with the one quoted from the Constitution of 1836 shows that one was taken from the other, the difference being that the Constitution of 1836 included merchants, whereas the Constitution of 1874 does not include merchants; and the Constitution of 1836 did not include ferries or exhibitions, whereas the Constitution of 1874 does include them.
These are the provisions of the Constitution of 1836 which the court had under consideration when Chief Justice Watkins said, for the court, in the Washington case: .“But the imposition of taxes, granting of licenses by counties or towns, may be authorized or regulated by legislation, and that legislation is not necessarily controlled or limited by the provisions of the Constitution in regard to State revenues.”
This conclusion resulted from the rule of construction first adopted by this court in the case of State v. Ashley, 1 Ark. 513, and since continuously followed by this court in the construction both of the Constitution and of statutes, that the expression of one thing in the Constitution is the exclusion of another, and, as was also said in Colby v. Lawson, 5 Ark. 303, quoting from State v. Ashley, supra, there are two ways of imposing a constitutional restriction, viz., by express negation, and by affirmation which implies a negation.
The Constitution defined what might be taxed by the State, and thus excluded what was not enumerated. No such limitation was imposed on the right to tax for county or municipal purposes, and the Legislature may therefore confer this right on the counties and municipalities of the State.
The question here involved was again considered by this court in the case of State v. Washmood, 58 Ark. 609, where Chief Justice Bunn, speaking for a unanimous court, said: “If the tax was intended to be a tax levied upon the association or companies represented by the agents named, the question of the validity of the section would, at least, be an open one, but one which it is unnecessary for us to discuss in this connection. If, however, the intention of the Legislature, in enacting said § 5591, was to impose a tax upon the agent therein named, the tax would be an occupation tax, and, being a State tax, as expressed, it would be in violation of the Constitution of the State, as has been settled by numerous decisions of the court (Citing cases).”
The court then proceeded to consider whether the tax there sought to be enforced had been imposed upon the associations and companies for the privilege of carrying on their business in the State, or was intended as a tax upon the agents of such associations and companies, and, having reached the conclusion that the tax which the appellant in that case was resisting was not a tax upon the right of the companies to carry on their business in this State, but upon the agent of the company, the court said: “It was therefore an occupation tax, and, being a State tax also, the section authorizing it is in conflict with the Constitution.’’
In the case of Standard Oil Co. of Louisiana v. Brodie, 153 Ark. 114, the principles involved in this case were again under consideration. In that case a tax had been imposed on the sale of gasoline, and we there said: “It is conceded in all quarters that, if the imposition (of the tax on gasoline) is, in effect, a property tax, it is void. ’ ’ The tax was upheld, and in doing so we there further said: “It is easy to discover in the language (of the act) an intention on the part of the law makers to impose a tax, not on property, but on a privilege, so as to bring the enactment within constitutional limits. The tax is not imposed on the sale or purchase of gasoline, nor on the gasoline itself, nor even on the use of the gasoline. On the contrary, the final and essential element in the imposition of the tax is that the gasoline purchased must be used in propelling a certain kind of vehicle over the public highways. In the final analysis of this language it comes down to the point that the thing which is really taxed is the use of the vehicle of the character described upon the public highway, and the extent of the use is measured by the quantity of fuel consumed, and the tax is imposed according to the extent of the use as thus measured.”
In the Brodie case we again reviewed the Washington and the Baker cases, supra, and of the Washington case we there said: “The substance of that decision is that the constitutional provision mentioned is a restriction upon the power of taxation of privileges, and that it does not authorize taxation upon a privilege which was a common right of every citizen” for State purposes.
And upon the review of the Baker case we there said: “We understand the effect of this decision to be that the restriction is not to the privileges specifically mentioned in the Constitution, nor privileges which were ‘technically known as such at the common law,’ but that the restriction relates merely to privileges which were matters of common right. This being true, there is nothing in the provision of the Constitution referred to which prohibits taxation for State purposes of the use of the public roads. While the public highways are for the common use of all, they belong to the public, and it is within the power of the Legislature either to regulate or to tax the privilege of using them. The power was declared in express terms by Judge Biddick in the Scruggs case, supra.”
These decisions apparently settled the law as definitely as repeated decisions of the same question can settle anything, that the State cannot tax, for revenue pur poses, occupations which are of common right; but it is said that the case of Floyd v. Miller Lumber Co., 160 Ark. 17, unsettled those decisions and gave a new interpretation to the section of the Constitution quoted above. Has this been done?
It may well be .said that the decision in the Floyd ease is somewhat anomalous, but the apparent anomaly results from the fact that the justices participating in the decisions of the case entertained views which were conflicting and which they were unable to reconcile. Such a result is always unfortunate, but is not always avoidable, and there are a number of such cases in our own reports as well as in those of all other appellate courts. A recent example of this kind is the case of Mashburn v. North Ark. Road Imp. Dist. No. 3, 167 Ark. 58.
There were four opinions in the Floyd case, one by Justice Humphreys, another by the Chief Justice, in which this writer concurred, a third by Justice Hart, and a dissenting opinion by Justice Wood.
These opinions expressed views which were so conflicting that they could not be reconciled, and it takes a consideration of them all to determine what was decided in that case. It may be said that the opinion was a composite one, and, to extract the points decided, it is necessary to determine what points were agreed upon for the different reasons expressed by the respective judges. The only point expressly decided by a constitutional majority of the court was that the tax — a severance tax —was not a property tax.
The opinion delivered by Justice Humphreys was a sweeping one, and the effect of his view was that the State could tax any occupation which the Legislature saw fit to make taxable. He applied to such tax the rule announced by Justice Riddick for this court in the case of Fort Smith v. Scruggs, 70 Ark. 549, and it must be conceded that, under his view, a fair income tax would be constitutional. But that view was not accepted by the majority of the court.
In the opinion of the Chief Justice he reviewed the decisions of this court in the cases of Washington v. State, Baker v. State, State v. Washmood, and Standard Oil Co. v. Brodie, and the review of these cases was summarized by him as follows: “The effect of these decisions undoubtedly is that the State cannot tax occupations generally, but must find its power to tax outside of this restriction. The power was found in the Baker case and in the gasoline case in the right to tax the franchise of corporations as a privilege tax, and to tax the use of public highways. Whether or not other exceptions outside of the constitutional restriction can be found remains to be .seen in the future. I am unable to discover any ground for taking the operation of this statute, as applied to individuals, out of the restrictions prescribed in the Constitution.”
After thus declaring himself, the Chief Justice took up the interpretation of the Scruggs case as announced in the opinion of Justice Humphreys, and said: “The opinion of Judge Riddick in Fort Smith v. Scruggs, 70 Ark. 549, affords no support to the view that the Legislature can impose, for State revenue purposes, a tax on occupations. That was a case where the tax was imposed by a municipality, and it is undisputed that the State may delegate to counties and municipalities the power to levy any tax not prohibited by the Constitution. Baker v. State, supra. The business of severing timber or minerals from the soil for commercial purposes is purely an occupation and the State cannot tax it as against individuals. Timber and minerals attached to the soil are individual property, as much so as anything else, and the business of severing for commercial purposes is a lawful business, of the pursuit of which no individual can be deprived. Therefore it falls within the restriction found in the Constitution. Penn. Coal Co. v. Mahon, 260 U. S. 393.”
After announcing this view of the law, the Chief Justice expressed the opinion that the statute there under review could be upheld against corporations as being in the nature of a tax on the franchise of the corporations engaged in the occupations there taxed.
Justice Hart, for reasons which he there fully stated, and which need not be recopied here, reached the conclusion that the tax was valid against both individuals, and corporations. He stated that, through the development of a country, occupations which had been of common right might cease to be such and might become proper subjects for regulation by the State in the exercise of its police power, and announced his final conclusion in the following language: “Upon further consideration of the case, upon rehearing, I have reached the conclusion that the occupations taxed in the act may be termed privileges under the common law and taxed as such under our Constitution. There has been no precise limit to the police power of the State, as construed by this court.”
Had the entire court reached the view announced by Justice Hart, in summing up his views, the decision would have been a unanimous one, and most of what was said by the various judges would have been obiter, as there was, and is, no difference of opinion about the right of the State to tax privileges for State purposes; the conflict of opinion arose over the question whether the business of severing products from the soil constituted a privilege.
In his dissenting opinion, Justice Wood recited that in certain States it had been held that “a privilege is whatever business, pursuit, occupation or vocation affecting the public the Legislature chooses to declare and tax as such.” After mentioning cases so holding, he proceeded to say: “Our court, from a very early period in its history, has taken a different view, by holding that it is not within the power of the Legislature, under our Constitution, to declare and tax as a privilege, for State revenue, those pursuits and occupations which every one may follow as a matter of common right. The doctrine of our court is that these pursuits and occupations which are matters of common right cannot be taxed as privileges for State revenue. It is within the power of the Legislature, under our 'Constitution, to authorize counties and towns to regulate or tax callings and pursuits, but this cannot be done by towns or counties for the purpose of raising State revenue, nor by the Legislature itself for that purpose. Of course, if pursuits or occupations which are matters of common right are conducted in a manner which injuriously affects the public interest, they maybe required to pay a license fee for purposes of regulation under the police power. See Stevens v. State, 2 Ark. 291; Gibson v. Pulaski County, 2 Ark. 309; Washington v. State, 13 Ark. 752; McGehee v. Mathis, 21 Ark. 40; Straub v. Gordon, 27 Ark. 625; Barton v. Little Rock, 33 Ark. 442; Little Rock v. Board. 42 Ark. 160; Baker v. State, 44 Ark. 134; State v. Washmood, 58 Ark. 609. Under the doctrine of stare decisis, these cases have become the settled law of this State, and, until they are overruled, which up to this hour has not been done, this court cannot consistently hold that it is within the power of the Legislature to declare and tax as privileges, for State revenue, pursuits and occupations which are matters of common right. To so hold would be to overrule all these cases, and, if they are to be overruled at all, it should be done expressly, and not by implication. Therefore, even if the tax under review were an occupation tax, it would be unconstitutional and void, under these numerous decisions of our court.’’
In view of these expressions of opinion appearing in the case of Floyd v. Miller Lumber Co., we think it cannot be said that the cases of Washington v. State, Baker v. State, State v. Washmood, and Standard Oil Co. v. Brodie, supra, have been overruled or their authority impaired by the case of Floyd v. Miller Lumber Co., and, unless they have been overruled, the State is without power to impose an income tax or an occupation tax for State purpses, and the court below was therefore correct in holding that act unconstitutional, and decree is affirmed. | [
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Mehaffy, J.
The Otto V. Martin Construction Company filed in the Sebastian Circuit Court the following complaint:
“Comes now the Otto V. Martin Construction Company and, for its cause of action against the defendant, states:
“1. That the plaintiff is a corporation duly organized and existing under the laws of the State of Oklahoma, and has been domesticated and secured authority for the purpose of transacting business within the State of Arkansas, and that the defendant is a corporation organized and existing under the laws of the State of Ohio, and has a branch office for the purpose of transacting business within this State.
“2. That on the 8th day of September, 1923, the plaintiff purchased a certain steam roller from the defendant, for which he was to pay the sum of $700 f. o. b. cars at Memphis, Tennessee; that at the time of mailing said purchase he paid the sum of $350 to apply thereon, and. was to pay the remaining $350 on October 1 and November 1, 1923, in equal installments; that the defendant, through its agents and representatives, represented that said steam roller was in first-class operating condition and as good as mew, with the exception of certain parts, which had been stolen, and which said defendant was to replace; that said roller was boug'ht with the distinct understanding between plaintiff and defendant that it was for immediate use upon certain highway construction work in which plaintiff was at that time engaged.
“3. That, when said steam roller reached Fort Smith, Arkansas, it was found to be old, dilapidated, and wholly worthless for the purposes for which the plaintiff intended to use it, and for the purposes which the defendant, through its agents,' knew the plaintiff intended to use it, and that, after notice of its condition to the defendant, it failed, neglected and refused to furnish the parts which it had agreed to furnish to recondition the roller,, or to refund to plaintiff the advanced payments made by it to the defendant on the purchase price of said roller, and for freight and other expenses incurred by it in connection therewith, which resulted in its damages and injury in the following sums, to wit:
1. Amount paid to apply on the purchase price...$350.00
2. To Breslin Boiler Works......................................................... 259.61
3. For freight on same........................................................................ 270.00
Making a total of..........................................................................................$879.61
“That, as a result of the failure of said defendant to furnish said parts in accordance with the terms of their contract and 'agreement, said plaintiff was unable to have the use of said steam roller at the time and for the purposes for which it was purchased, and was therefore required to and did rent a steam roller for the months of November and December, 1923, and January and February, 1924, for which he was required to pay rental of $200 per month, or an aggregate amount of $800, and that, by reason of the matters and things hereinabove referred to, said plaintiff was further damaged by the actions and breaches of the defendant in said sum.”
Plaintiff asked judgment against the defendant for the sum of $1,679.61, and costs.
The appellants owned a second-hand 10-ton steam roller, which was near Pontotoc, in the State of Mississippi. Appellee desired to purchase a steam roller, and, after some negotiations, E. W. Clark, agent of appellee, was sent to examine the roller, but did not go to Pontotoc, but went to Memphis] and did not examine the roller, but entered into a written contract of purchase, with one Berryhill, the sales agent of appellant, at Memphis. Said contract was signed, subject to the approval of Martin. Martin was called by telephone, and approved the contract, and a few days thereafter it was approved by appellant’s executive officer, F. W. Faber, secretary and treasurer. The roller was shipped from Pontotoc, Mississippi, to Fort Smith, Arkansas. The contract referred to is as follows:
“The following described goods, subject to the guaranty and conditions on the back of this order:
“1 Erie steam 10-ton tandem roller (used) just as it stands at Pontotoc, Miss., with exception of parts that have been stolen. We are to repair these. At $700.
“We hereby agree to receive the goods above specified and to settle for same with the Galion Iron Works and Manufacturing Company, Galion, Ohio, by the payment of seven hundred and no/100 dollars as follows: $350 in cash, and balance in warrants, notes or orders, drawn and executed according to law, and bearing 6 per cent, interest from date until paid.
“One note or order for $175, due October 1, 1923.
“One note or order for $175, due November 1, 1923.
“It is understood and agreed that all notes, orders, warrants, checks, drafts, money orders, or other evidences of payment shall be drawn to the order of the Galion Iron Works & Manufacturing Company.
“It is further mutually stipulated and agreed that the title and ownership of all property covered by this contract is to be and remain in said the Galion Iron Works .& Manufacturing Company, its successors 'and assigns, until the purchase price thereof, -with interest as above provided for, has been paid in full. In case any notes or warrants are given in settlement, the title and ownership of all of said property is to be and remain in the Galion Iron Works & Manufacturing Company, its successors or assigns, until each and all of such notes or warrants, or extensions or renewals thereof, or any part thereof, including all protest fees and expenses, have been paid.
“We hereby acknowledge an exact carbon copy of this order, which is not affected by any verbal agree ment, but which embodies the entire understanding, and is not subject to countermand.
“Otto Y. Martin Const. Oo.
“E. W. Clark.
“Accepted by the Galion Iron Works & Mfg. Co., Galion Ohio. F. W. Faber, Secretary-Treasurer.”
Following pencil notation: “Paid Ck. for $350 as cash payment. Galion Iron Works & Mfg. Co. By Fred Berryhill.”
On the back:
“ Conditions. All 'agreements are subject to strikes, accidents, or other causes for delay over which we have no control. All claims for defective or broken goods must be made in writing within thirty days after receipt of same. All claims for goods broken or damaged in transit, or shortage in shipment, must be reported • promptly, and said report must be accompanied by the freight receipt, properly noted by local freight agent at point of destination, showing shortage or damage, or both.
“Guaranty. The goods specified on.the reverse side of this order are guaranteed to be thoroughly serviceable and practical for the purpose for which they are designed.
“If found defective in either material or workmanship, we agree to replace such defective parts free of charge, f. o. b. factory. Claims for defective parts must be made within one year from date of sale.
“The Galion-Iron Works & Mfg. Co.
“Galion, Ohio.”
The plaintiff’s testimony tended to show that the roller was being used at the time; that a new one like it would icost from $3,600 to $4,000, and that appellant, m its statements to appellee, estimated this roller to be 60 per cent, as good as new. That it needed some parts, but that it was in good condition. There were no leaks, and it carried from 100 to 110 pounds of steam. The price of the roller was $700, $350 of which was paid in cash and two notes given for the balance. It was reported to Martin that the condition of the roller had been fully described to him, that it was a good buy, and Martin did not see the roller until it was. delivered in Fort Smith, on board the cars; that the roller was ready to start operation, and that neither Clark, the representative sent by appellee to examine the engine, nor Berry-hill, the representative of appellant, ever saw the roller. Clark was a foreman of appellee, and Martin himself confirmed the contract. Martin did not see the roller for three months. It was sent to a machine shop, and Martin saw it in the shop in January. He testified that it was then a mass of junk. He did not get the parts referred to in the contract. He tried to get them, but the roller was out of date, and they did not make the piarts any more. Appellee never did get the parts necessary to put the machine in a condition necessary for operation. Could not get the parts. Paid $259.61 to put the boiler in condition, but could not get the rest of it. Took the matter up with defendant, and defendant sent a representative to Fort Smith in February,.. 1924. ^Representative went with Martin to the machine shop and looked over the roller, and said he did not want Martin to think that the Galion Iron Works does things that way. That Mr. Berryhill had never seen the roller; one of his agents has taken it in, and that he would see that it is fixed up right away, and get the parts. Appel-, lee never did get the parts, however. They do not make them any more. The roller was not made by the Galion Iron Works, but made by another person.
Numbers of letters and telegrams were introduced, and appellee wrote appellant that it was their intention to purchase necessary parts unless they heard from the appellant immediately. That he had been at the expense of something like $200, and yet the matter was unadjusted.
On February 22, 1923, there was a letter from appellee to appellant in which it was stated that they had been “ expecting to receive a shipment of parts for the second-hand Erie roller bought from your Memphis branch the l'atter part of 1923, this arrangement being made by yonr Mr. McDonald on his recent inspection here. Will yon help us to get this roller in working condition at the earliest possible moment?”
Witness testified that he got no reply to this letter; tried to get the parts himself; incurred an expense of $270 in freight and expense of $259,61 in repairing the boiler. He refused to pay this, and told Breslin to sell the boiler for junk; it could not be used; the frame was broken. Witness then testified, over the objection of appellant, that he had to rent a roller at $200 a month. The roller reached Fort Smith probably the latter part of October, 1923. Witness himself did not examine it. He saw the roller the first time when he went with McDonald, February, 1924.
Clark was not present, and witness testified that he did not know where he was. He was with plaintiff about a year ago.
The proof on the part of appellant tended to show that Faber was an executive officer, and had everything to do with making contracts and notes, and he had to approve or disapprove orders, notes or other collateral. When he approved an order it became an obligation. He received written order in evidence in this case, and this order contained the following: “We hereby acknowledge an exact carbon copy of this order, which is not affected by any verbal agreement, but which embodies the entire understanding, and is not subject to countermand.”.
Appellant received the notes; still holds them; had correspondence with plaintiff; received a letter on December 28 concerning the notes; appellant was urging the payment of the notes. That the roller was sold to appellee-as a used roller, and just as it stood at Pontotoc. Agreed to replace all stolen parts, and did replace them.
He testified that there was no report by anybody having authority that the roller Was in first-class condition and as good as new. The contract as set forth in the general order embodies all the terms and conditions, and was approved by the executive officer, and no salesman has any ¡authority to make any verbal statement. Had no knowledge as to the uses to which plaintiff desired to apply the roller. After the order was received, appellant proceeded to replace all parts that were stolen. Had no business relations whatever with the Breslin Iron Works Company. The notes have never been paid. Berryhill took charge of the Memphis office from September 1, 1923, as appellant’s sales representative.
■ We do not think it necessary to set out the testimony any further, except as attention may be called to it hereafter when necessary in the discussion of the questions raised.
The first contention of appellant is that the court erred in admitting letters, telegrams and oral evidence varying and contradicting and adding to the written agreement, and urges that the objection refers especially to a letter dated the 9th of June, 1923. It is contended that that letter, being written three months before the contract wias made, is nothing more nor less thap a part of the. negotiations which ultimately resulted in the making of a contract, and that there is no ambiguity or doubt about the contract, and that appellee did not rely on the letter, because he sent his agent, Clark, to Mississippi and Tennessee to see the roller. It is argued that, since Clark was sent to Memphis to see the roller in operation, this was sufficient to prove that plaintiff did not rely on the letter of June 9.
Appellant cites and relies on Goodwin v. Baker, 129 Ark. 513, 197 S. W. 10. While the court held in that case that prior negotiations leading up to the written contract are merged, and that evidence of a contemporaneous parol agreement is not competent to vary the terms of the written agreement, yet it was said in that case:
“While the terms of the contract cannot be-extended by parol evidence, such evidence may be admitted to show the circumstances under which the contract wtas executed, in order' to construe the language thereof. * * * Courts may acquaint themselves with the per sons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to' the things described. •’
The letter referred to .stated where the boiler was situated, what the.appellant gave for it, and also stated the price of a new boiler to be $3,600 to $4,000, and that they estimated this roller to be 60 per cent, as good as new, and further described the boiler as being in good condition, with no leaks, and that it carried from 100 to 110 pounds of steam.
This evidence did not contradict or vary the terms of the written contract. Moreover, another telegram dated July 25, 1923, was not objected to, and it read as follows:
“We assure you that ¡condition of tandem roller has been fully described to you. It is a good buy, and upon receipt of your check for $350 and $350 with six per cent, interest, to be paid within ninety days, will ship roller per instructions your telegrams. Your inspector would be welcomed. ’ ’
This telegram was admitted, as we have said, without objection. Or rather, objection was made and withdrawn. This said that the condition of the tandem roller has been fully described, evidently referring to the description in the letter of July 9.
The next case cited and relied on by appellant is Graves v. Bodcam Limber Co., 129 Ark. 354, 196 S. W. 800. In that case the court reiterates the doctrine that negotiations leading up to the written contract are merged therein, and parol agreements are not competent to vary the terms of the written agreement. In the first place, this letter did not vary the terms of the written agreement. This court has said:
“It follows that, where the parties have by bill of sale, as in this case, or any other instrument, reduced the contract of sale to writing, and have not provided for any warranty, or have incorporated express warranties, no parol evidence can be heard to show in the first .case that there was a warranty, or in the second, that there were other or wider warranties than those expressed. The written instruments are held to contain everything of a contractual character which the parties finally intended should be binding, regardless of all previous negotiations. * * * Deceits, and false representations, intentionally made, regarding material matters, for the purpose of misleading another to his injury, are not contracts in any direct sense. Every one may be presumed, indeed, to agree that he will regulate his conduct by the laws of his country and the rules of fair dealing, and will abide the consequences of failure and detection. But in no other sense are they contracts. They are torts, for which heretofore lay actions on the case for deceit. * * * They differ from warranties in two very material points. The latter cannot, when the contract of sale has 'been reduced to writing, be supplied by parol proof. The former can be shown by parol, for they are torts outside the contract. Warranties bind, if untrue, without any regard to the good faith of the warrantor. This arises from their contractual character. He takes the risk of their truth, and means to bind himself to make a recompense if they are not. But false representations must not only mislead, but must have been made fraudulently and with that intent. * * * He will not be excused for want of candor and good faith with regard to such matters, and will be held responsible for false representations, not made in good faith, believing them to be true. He is bound only to a fair exercise of his own judgment in behalf of the other party, and not for an honest mistake.”
The court, in speaking of instructions, continued: “The eighth instruction remedies the defect, and is, in effect, what the former would have been with the addition above suggested. It might well have been given.” Hanger v. Evins & Shinn, 38 Ark. 337.
This letter was competent, not to vary the terms of the written contract, ¡but to show false representations, deceit and fraud, and this, as held in the case to which we have referred, is not a contract, but a tort. And this evidence did not vary the terms of the contract, but was introduced for the purpose of showing the circumstances under which the sale was made and under which the contract was made, and to show fraud.
Appellant refers to Harrower v. Insurance Co., 144 Ark. 279, 222 S. W. 39. This case reaffirms the doctrine, about which there is no dispute, that prior oral agreements and antecedent writings forming* part of the negotiations for a contract become merged in the -subsequent written contract, and. are incompetent as evidence for the purpose of' enlarging the scope of such written contract.
The letters introduced in this case were not for- the purpose of enlarging -the scope of the written contract, but for the purpose of showing false representations and deceit.
It is contended by the appellant that there is no evidence of any misrepresentations made by the defendant’s agent, Berryhill. Berryhill made the contract with Clark, made the agreement, and on the agreement made was a guaranty that the goods were thoroughly serviceable and practical for the purpose for which they are designed. And Martin testified that Berryhill told him, in a conversation, that the roller was ready to start operation.
“Parol evidence is always admissible to show that an instrument was obtained by fraud or duress, and so to avoid it. In the absence of misrepresentation, fraud, or deceit, a party to a transaction is bound by the writing evidencing the agreement, though he was in fact ignorant of its contents. * * * So, where one has been induced by false representations to indorse a note, parol evidence is admissible to prove that fact. Similarly, parol evidence is admissible to show that -a person was induced to enter a written contract to purchase goods by false -and fraudulent representations as to their quality. * * * Likewise, the rule that parol representations are not admissible to vary the terms of .a written agreement has no application to representations which amount to a fraud practiced in procuring subscriptions to corporate stock. * * * It is a plain fraud to secure the execution of an instrument by representations differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its .terms, regardless of the contemporaneous agreement without which it would never have been -signed at all.” 10 R. C. L. 1058.
“As a general rule, a person whose rights or liabilities are affected by a written contract may introduce parol evidence to show accident, mistake or fraud, whereby the writing fails to express the actual agreement, and to prove.the modification necessary to be made, whether such variation consists in limiting- the scope of the contract, or in enlarging and extending it so as to embrace land or -other subject-matter which has been omitted through the fraud or mistake. The extrinsic evidence rule should not be invoked as a shield for fraud, or be applied so as to work injustice.” 10 R. C. L. 1056.
The appellant’s next contention is that the court erred in giving, at plaintiff’s request, number 1-a. The instruction reads as follows:
“You are instructed that, if you find from a preponderance of the testimony that defendant, through its representatives, as an inducement, made false or fraudulent statements to plaintiff as to the condition of the roller in question, and that the plaintiff believed said false o.r fraudulent statements, and would not have signed the contract of purchase but for same, then and in that event he would not be -bound by the terms of said contract or order, but would have the right to refuse to accept the property and -sue for whatever damages, if any, is shown that it incurred on account of same.”
This is an action for fraud and false representations inducing the contract, and the instruction above quoted is correct.
The appellant argues that the statement in plaintiff’s complaint, “that, as a result of the failure of said defendant to furnish said parts in accordance with the terms of their contract and agreement, and that he was thereby damaged,” shows conclusively that the complaint was based solely on the written contract. Appellant, however, overlooks that part of the complaint which states: “That, when said steam roller reached Fort Smith, it was found to be old, dilapidated and wholly worthless for the purposes for which plaintiff intended to use the same, and for the purposes which the defendant, through its agents, knew the plaintiff intended to use it,” etc.
When you consider this allegation in the complaint, together with the representations made, not only by letters but by the contract itself, it shows very clearly that the suit was brought on the false representations. The guaranty on the contract said that the goods were gmaranteed to be thoroughly serviceable and practical for the purpose for which they are designed. But the complaint alleges that appellant knew the purposes for which they were designed, and that they were wholly unfit for that. The appellant’s argument made and authorities cited under this claim of error are all based on the theory that the suit was on the contract, and that a party would not be allowed to repudiate or rescind it and sue on it at the same time.
Appellant’s next contention is that the court erred in giving instruction number two. This instruction, however, could not have operated to the prejudice of appellant, because the jury returned a verdict only for $350 that plaintiff had paid and the freight that he had paid.
It is appellant’s next contention that its instruction number five should have 'been given. The complaint is that the court erred in adding to the instruction “unless defendant is precluded from so doing by other instructions.”
The instruction requested was properly refused, because it told the jury that, if the defendant supplied the stolen parts, it was entitled to recover on the two notes.
As we have already stated, the suit is based on. deceit or false statements, and not on the contract. If the contract was induced by false and fraudulent representations, or deceit, then the appellant would not be entitled to recover simply by supplying the stolen parts. And we think the court therefore did not err in refusing to give this instruction.
It is earnestly contended by appellant that the court should have directed a verdict in favor of the defendant for the amount claimed in the two notes. We do not agree with the appellant in this contention. The plaintiff based his action on and directed his proof to the proposition that false representations had been made by the defendant, which induced the purchase of the property. There is sufficient proof on this issue to go to the jury. It is not a question here as to whether we should find for one party or the other under the proof, and not a question of the preponderance of the evidence, but the rule is, if there is any substantial evidence to support the verdict, it will not be disturbed by this court, and there is some substantial evidence to support the verdict.
Appellant argues that the plaintiff furnished no evidence to show the condition of the roller at the time it was delivered to the plaintiff by delivery to the carrier at Pontotoc, Mississippi. There is no direct evidence that the roller was worthless at that time. That is, nobody examined it and then testified as to its condition, but the testimony or evidence as to the condition of it after it reached Fort Smith, if true, shows that its condition must have been the same when shipped from Pontotoc. In other words, it could not have been in good condition, or the condition which appellant said it was in at the time it was shipped from Pontotoc, and then have been in the condition which the evidence shows it was in when it reached Fort Smith. No notice of defects was required, because the suit is based on the claim that the roller was completely worn out and worthless.
As to the proposition that no notice was served on appellant as to the uses for which the roller was intended, we think the proof is ample that appellant knew the purpose for which it was to be used, and sold it for that purpose. In fact, it was alleged by the appellant that-it was, at the time of the contract, being used in Mississippi for the same purpose. The letter of June 9 states that it is on a road being used in road construction in Mississippi ; and we think the testimony in the case, while not very convincing, is sufficient to sustain the verdict, and that the court properly instructed the jury, and the judgment is therefore affirmed. | [
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Hart, J.,
(after stating the facts). In the case of Allen v. State, 32 Ark. 241, this court held that our statute providing for the suspension from office by the circuit court of any county or township officer against whom an indictment has been found for any of the crimes mentioned in the statute, until the charge is tried, is not unconstitutional.
In Sumpter v. State, 81 Ark. 60, an earnest effort was made to induce the court to overrule its decision in that case. The court declined to do so, and, in a well considered opinion, reaffirmed the rule established by its former decision.
Section 10335 of Crawford & Moses’ Digest provides that, when an indictment shall be filed against any county or township officer for certain crimes, including e criminal conduct amounting to a felony,’ such circuit court shall immediately suspend such officer from his office until the indictment is tried, provided the suspension shall not 0 extend beyond the next term after the indictment shall be filed, unless the cause is continued on application of the defendant.
This court had this section of the statute under consideration in the case of Jones v. State, 104 Ark. 261, where it was held that the indicted officer may be suspended for any criminal conduct amounting to a felony, whether ' amounting to official misconduct or not. In short, the court held that the phrase, “criminal conduct amounting to a felony, ’ ’ may also be applied to individual and personal acts not connected with the office. In that case the suspended officer was indicted for murder in the first degree, and the judgment of .suspension was affirmed.
It will be noted that the defendant was acquitted of the felony charge against him, and it is urged that, on this account, he is entitled to recover his salary during the period of time he was' suspended from office. "We think it is clear that he cannot recover.
In the case of Allen v. State, supra, the court said: “Offices are not regarded in this country as grants or contracts, the obligation of which cannot be impaired, but rather as trusts or agencies for the public. They .are within the power of the Legislature, except so far as the Constitution may forbid interference with them. Coffin v. State ex rel. Norton, 7 Ind. 157.”
In the case of Sumpter v. State, supra, the court quoted with approval from a decision of the .Supreme Court of the United States, to the effect that the nature of the relation of a public officer to the public is inconsistent with either a property or contract right, and that the salary is not compensation for services secured by contract, but compensation for services actually rendered. The general rule is that, if the office is vacant, it becomes, as to the suspended person, for the time being, as though it did not exist, and as to the public, the person appointed to fill the last vacancy is the sole incumbent of the office. Steubenville v. Culp (Ohio), 43 Am. Rep. 417; Shannon v. Portsmouth, 54 N. H. 183; Westberg v. Kansas City, 64 Mo. 493; Howard v. St. Louis, 88 Mo. 656, and Barbour v. U. S., 17 Ct. of Claims (U. S.) 149.
It follows that the judgment will be affirmed. | [
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McCulloch, C. J.
Appellant sued appellee to recover the sum of $212.50, alleged to be due for services rendered under contract. He alleged in his complaint that appellee entered into a contract with him to pay him fifteen dollars per month for feeding and caring for stock on appellee’s farm for a period of one year, and also for certain other items alleged to be due for other services performed — for two days spent in hunting a mule, and for two days’ work on the public road in place of appellee, and for certain services performed as a blacksmith. Appellee filed an answer denying that he had contracted with appellant to pay him by the month for looking after stock on his farm, or that he was indebted to appellant for the other items set forth in his complaint.
Appellant testified at the trial that he and appellee met in front of the postoffice at Alma, and that appellee entered into an oral contract with him to work on appellee’s farm for twelve months at fifteen dollars per month,, to feed and care for the stock. He testified that he uerformed the services according to the contract, and had not been paid therefor. Appellant did not testify concerning the other items set forth in his complaint, but, on cross-examination, stated that appellee paid him' five cents per hour more than he paid other hands on the place. Other witnesses introduced by appellant’ testified that they heard the alleged contract between the parties, and that appellant’s version of the contract was correct.
Appellee testified asa witness in the case, and denied that he had hired appellant to work on his farm or to pay him by the month. He testified, in substance, that appellant went on his (appellee’s) farm under an agreement to make a share-crop, and that he agreed to pay appellant twenty-five cents per hour for all work performed while not working in his own crop, and that this was five cents per hour more than he paid other hands on the place, and that this extra amount was for appellant caring for the stock in the pasture or changing them from one pasture to another. He stated that he furnished two mules to appellant to work in the crop, and that appellant did not care for the other mules on the place.
The jury returned a verdict in favor of appellant for the recovery of $180. Appellee filed a motion for a new trial, and, on the hearing of the motion, the court held that the motion should be sustained unless appellant would enter a remittitur down to fifty dollars, which appellant refused to do, and the court then made an order setting aside the verdict and granting a new trial. Appellant took an appeal to this court, and filed a stipulation in accordance with the statute (Crawford & Moses’ Digest, § 2129) consenting that, “if the order be affirmed, judgment absolute shall be rendered against the appellant. ’ ’
There was a sharp conflict in the testimony upon the issues presented in the pleadings, and it was within the province of the jury, in the first instance, and with the court in passing upon the motion for a new trial, to determine the weight of the evidence. In neither case will this court on appeal disregard the finding of the jury or court on conflicting evidence. We have decided that, on appeal from an order of court granting a new trial, “this court will not reverse the ruling of the lower court, in setting aside a verdict, where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance.” Taylor v. Grant Lumber Co., 94 Ark. 566; Blackwood v. Eades, 98 Ark. 304; McDonnell v. St. L. S. W. Ry. Co., 98 Ark. 334.
There was a sharp conflict in the testimony, appellant contending that the contract was for payment for services at fifteen dollars per month for a year, whereas appellee testified that, under the contract, he was only to pay appellee by the hour for extra services rendered. The court, in effect, found against the contention of appellant that, under the contract, he was entitled to compensation by the month, but that he had earned a certain amount of compensation under the contract for payment for services by the hour, as contended for by appellee, and, in accordance with this finding, the court offered to overrule the motion for a new trial if appellant would enter a remittitur, which was refused. There was nothing left then for the court to do, under its findings that the verdict was against the preponderance of the evidence, except to set aside the verdict and grant a new trial.
It is contended by counsel for appellant that the excessiveness of the verdict was waived by not being specified in the motion for a new trial. This contention is based upon the statute ('Crawford & Moses’ Digest, § 1311), which provides that excessive damages “appear-, ing to have been given under the influence, of passion or prejudice” may be assigned as grounds for a new trial. The question of excessive damages is not involved, for this is a suit on a contract for services rendered. It is a question of the sufficiency of the evidence, and this was duly assigned in the motion for a new trial.
It follows from what we have said that the order of the court granting a new trial should not be disturbed, there being a conflict in the testimony. The order is therefore affirmed, and judgment absolute will be rendered here against appellant’s right to recover in the action. | [
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Hart, J.
James Nicholson and S. J. Tanner instituted this action in the circuit court against O. C. Hayes and Ida Bell to recover damages for the breach of a lease contract of two town, lots for the term of five years.
The defendants denied any breach of the contract on their part, and set up facts entitling them to a refor mation of the contract. On their motion the case was transferred to the chancery court and tried there.
The record shows that, on the first day of January, 19'23, O. C. Hayes and Mrs. Ida Bell leased to James Nicholson and S. J. Tanner lots one and two, in block three, in the town of Norphlet, in Union County, Arkansas, for the period of five years, for the consideration of $50 per month. The lease was signed by the grantors and duly acknowledged by them on the same day. • On the 8th day of March, 1923, the lease was duly filed for record.
It was the contention of O. C. Hayes and Mrs. Ida Bell that they leased to Nicholson and Tanner only 30 feet on the back end of the lots in question; that, by mistake on their part and fraud on the part of the lessees, the whole of said lots was described in the lease. They introduced testimony to support their claim, which will be stated in the opinion.
On the other hand, the evidence for Nicholson and Tanner tends to show that the description in the lease was correct.
The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of the plaintiffs should be dismissed for want of equity, and that the defendants should have a reformation of the lease so as to recover only 30' feet off of and across the west end of the lots in question, and that said lease should be canceled as to the remaining portion of said lots. The case is here on appeal.
The rule in this State is that, to justify a reformation of a written instrument, there must have been a mutual mistake, or a mistake on the part of one party coupled with fraud on the part of the other, and that, if parol evidence is relied upon to establish the ground of reformation, it must be clear, unequivocal and decisive. Welch v. Welch, 132 Ark. 227, and Cain v. Collier, 135 Ark. 293.
'The lease in question was signed by O. C. Hayes and Mrs'. Ida Bell on the first day of January, 1923, and was duly acknowledged by them on the same day.
According to the testimony of James Nicholson and S. J. Tanner, the lease correctly expressed the agreement of the parties. They expressly denied having leased only a portion of the lots, and denied having told any one that they had done so. They exhibited several receipts for the rent, and these receipts recited that it was the monthly rental for lots one and two, in block three, in the town of Norphlet. They demanded possession of all of said lots, and, upon the refusal of the defendants to give them possession, they brought suit to recover the amount of rent which they had already paid and for damages for a breach of the lease contract by the lessors. . '
O. C. Hayes was the principal witness for the defendants. According to his testimony, he only agreed to rent to the plaintiffs 30 feet off of the west end of the lots in question. The front or east end of the lots was already occupied by tenants of thé lessors. The lot of Hayes had a frame building on the front part of it, in which Charley Morrison conducted a grocery store, and dry goods and gents’ furnishing business. Morrison had been conducting the business in this, store for several years, and occupied it at the time the lease in question was executed. He paid rent in the sum of $75 per month. On another part of the same lot was a little restaurant, and Hayes was receiving $35 per month for it at the time the lease in question was executed.
Mrs. Bell had two business houses on the front end of her lot. She received $75 per month for the larger house and $12.50 for the smaller. Both of these houses were occupied by their respective tenants at the time the lease contract was made. There was no building on the part of the lots rented to the plaintiffs. The plaintiffs told Hayes that they contemplated building on the back end of the two lots. There was an oil boom in the town of Norphlet at the time. It was agreed that there should be an alley left between the buildings which the plaintiffs contemplated erecting and those already erected on the front part of the lots. This alley was to be left so that occupants of the buildings might have a place to unload wagons hauling goods to their stores, or business houses.
The lease was written by the plaintiff, James Nicholson, and Hayes did not read it over, because Nicholson told him that it only covered 30 feet off of the end of the lots which was vacant, ánd Hayes relied on this statement, because he had been a party to lease contracts with Nicholson before, and Nicholson had written them according to agreement.
Mrs. Ida Bell was also a witness for the defendants. According to her testimony, the contract was made by Hayes, and she did not read it over because she was told that it only covered 30 feet on the west end of the lots, and that it did not include the buildings on the front end. She had confidence in the statement to her in this respect, and, on that account, did not read the lease. Her daughter was present when she executed the lease, and corroborated her testimony in every respect.
The justice of the peace who took the acknowledgments of O. C. Hayes and Mrs. Ida Bell to the lease testified that the plaintiffs distinctly stated that the lease only covered 30 feet off of the west end of the lots, and that the plaintiffs, relying on this statement, did not read the lease.
According to the testimony of Charley Morrison, he conducted a grocery, dry goods and men’s furnishing business in a frame building on the east end of the lot in question owned by O. C. Hayes, and that he had possession of such building at the time the lease in question was executed. He paid $75 per month rent. James Nicholson told him at one time.that he had leased the back part of the lots belonging to O. C. Hayes and Mrs. Ida Bell, and that he contemplated building on the leased ground.
Tom Foster, who also was a tenant on the front end of said lots, stated that he paid $35 per month for the building occupied by him, and that James Nicholson had told him that he had leased 30 feet back of the stores on the two lots in question.
This testimony makes a clear and convincing case in favor of • Hayes and Mrs. Bell. It is true that the testimony of these parties is contradicted by that of Nicholson and Tanner- but their testimony - is corroborated, not only by four other witnesses, but by the attendant circumstances. The undisputed testimony shows that the front end of the lots was occupied by buildings which were rented in the aggregate for $192 per month. These stores wére occupied by their respective tenants at the time the lease was 'executed. The lessees paid the rent for three months without attempting to oust these tenants, or to in any manner question their right to occupy the buildings as tenants of the lessors. The rent paid by them amounted to nearly four times as much as the rent specified in the lease. These are very strong circumstances tending to show that there was no intention on the part of the lessors to lease the whole of the lots in question.
The justice of the peace who took the acknowledgments corroborated in every respect the testimony of Hayes and Mrs. Bell, to the effect that they only .leased to the plaintiffs 30 feet on the west end of the lots, and that it was expressly understood between the parties that there should be an alley left between this 30 feet and the buildings on the front end of the lots, so that the tenants might have a place Oto unload merchandise 'for their respective business houses.
A daughter of Mr.s. Bell also testified that she was present when her mother signed the lease, and that Nicholson expressly stated that it only covered 30 feet of the vacant end of the lots, and for this reason her mother signed the lease without reading it. Two tenants of Hayes and Mrs. Bell testified that Nicholson told them, after the lease was executed, that it only covered 30 feet on the vacant end of the lots.
It follows that the decree will be affirmed. | [
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Smith, J.
It appears from the testimony in this ease that the Federal Government purchased, the State Highway Department installed and the appellant railway company maintains, electric traffic barriers at the point where highway No. 70 crosses appellant’s railroad track near the town of Wheatley. This point is only a short distance from appellant’s depot in Wheatley. The testimony does not explain, but it is generally known, what the purpose of the barriers is, and how they operate. The railroad tracks run north and south and the highway east aiid west, and the crossing is at- a right angle. There are barriers on both sides of the railroad track, which are raised to obstruct the highway as trains approach the highway traveling either north or south. The barriers are about 150 feet apart. The movement of the trains throws an electric switch, which raises the barriers, and they remain up until the train has proceeded and run on to another switch, which breaks the electric connection and the barriers are automatically lowered.
According to the testimony of appellee, and that of a companion who was driving with him in a truck, they approached this crossing at about 4:30 p. m., driving east. When they reached the railroad track the red light suspended in the center of the road over the tracks was burning and the barriers were up. A freight train was switching near this crossing, and this movement turned the lights off and on and raised and lowered the barriers as its operation connected or disconnected the electric current. When the barriers were down the traffic lights were green; when they were up the lights were red.
When appellee reached the first barrier on the west side of the track, he brought his truck to a full stop, as the barrier was up and the red light was showing. He waited until the light changed to green which is the “Go ahead” signal, and the barriers were lowered. He drove safely across the railroad track, but just as he reached the barrier on the east side it rose and the truck struck it and was deflected off the highway, and appellee sustained the injury to compensate which this suit was brought. The crossing was plainly in the view of the operatives of the train, but they gave no warning or signal by blowing the whistle or ringing the bell, or otherwise, that the engine of the train was about to make a movement which would result in the electrical connection which would raise the barriers and obstruct the traffic.
The railway company filed an answer, in which it “denied every material allegation contained in the complaint of plaintiff,” and, further answering, alleged “that if the plaintiff suffered any injuries or damage, the same was due to his own negligence. ’ ’
For some reason not explained in the record the defendant railway company did not appear at the trial, and the case was submitted to the jury under instructions of which no complaint is made.
The errors assigned in the motion for a new trial are that the verdict is contrary to the law; is contrary to the evidence; and is contrary to the law and the evidence, and that the court should have instructed a verdict for the defendant.
No complaint is made of the erection and mainténance of the barriers, and it is not questioned that they were operating properly and as it was intended that they should operate. Obviously, they were erected and maintained for the protection of the traveling public, and they would have afforded that protection had the operatives of the train not been unmindful of the fact that traffic would move on the highway and across the railroad track when the green light extended an invitation so to do.
There was a verdict and judgment for the plaintiff, from which is this appeal.
Whatever the truth may be, the undisputed testimony is to the effect that appellee was injured without fault or carelessness on his part as a result of the negligent failure of the operatives of the train, to give notice and warning that it was about to move, ’thereby making the electric connection which would raise the barriers. Appellee stopped on the red lights, a,s it was his duty to do, and did not proceed across the tracks until the green light came on and gave assurance that he might cross in safety, but, without warning, according to the testimony offered by appellee, the movement of the train restored the electric connection and the barriers were raised just before appellee could drive the 150 feet intervening between the barriers and in time to strike the truck or to cause the truck to strike the barriers. In other words, the appellee was trapped without warning between the barriers.
Citation of authority is unnecessary to support the finding of the jury that appellant was negligent in the operation of the barriers. However, numerous cases are cited in the brief of appellee like that of Sgier v. Philadelphia & R. Ry. Co., 260 Pa. 343, 103 Atl. 730, where it was said by the Supreme Court of Pennsylvania that a railroad must exercise reasonable care in operating safety gates so as to protect travelers on the highway from the cars and from the gates, and like also the case of Director General of Railroads v. State, for Use of Hurst, 135 Md. 496, 109 Atl. 321, where it was said by the Court of Appeals of Maryland that whether a railroad was negligent in suddenly dropping safety gates on an automobile driver, after he had entered upon a crossing, so as to cause him to lose control of the automobile and collide with a train, was a question of fact for the jury. See, also, Evans v. Lake Shore & Michigan Southern R. Co., 88 Mich. 442, 50. N. W. 386, 14 L. R. A. 223, and numerous other cases cited in Yol. 3, Elliott on Railroads (3d Ed.), § 1650, under the title “Signboards and gates at crossing.”
Here, the questions of fact presented by the testimony were submitted to and passed upon by the jury, and the testimony supports the finding that appellee’s injury was due to the negligence of the railway company in moving its train without warning.
No error'appears, and the judgment must be affirmed. It is so ordered. | [
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McHaney, J.
Appellants are the widow and all the heirs at law of W. D. Henderson, deceased, except appellee, Hoyette Henderson, who is also a son of W. D. Henderson by the appellee, Mae Henderson, the second wife of said W. D. Henderson. Appellants brought this action against appellees to cancel W. D. Henderson’s deed to 150 acres of land to them, dated June 21, 1939, and recorded July 24, 1940. The grounds alleged for cancellation are that the deed was ante-dated and was not executed until on or about the date it was recorded, or, if executed on the date it bears, it was not delivered until July 24, 1940, and being the homestead of himself and wife, Roxie Henderson, it was void because not signed and acknowledged by her.
The facts are that W. D. Henderson had been married three times and had seven children, five by the first wife, one by appellee, Mae, and one by appellant, Roxie. In May, 1939, he filed suit for divorce against Mae, which resultecl in a decree in his favor on June 20, 1939, he having made a previous property settlement with her for a consideration of $1,000 paid in cash. On July 6, 1939, he married appellant, Roxie. Their married life was not altogether harmonious and some time prior to June 3, 1940, he filed suit for divorce against Roxie. On the latter date the court made an order requiring him to pay Roxie suit money and lying in expenses of $250, she being enciente at the time. No decree of divorce was ever obtained in this case, and he died January 18, 1941.
As stated above, the deed in question was dated June 21, 1939, the day following his divorce from Mae and was to her and their son Hoyette. If the deed were executed and delivered on that date or at any time between that date and July 6,1939, the date of his marriage to Roxie, it is conceded to be a valid conveyance of the land described which was his homestead. If it were either executed or delivered after July 6, it is invalid and void because not signed and acknowledged by his wife, Roxie. This was the question presented to the trial court, and, while expressing some doubt about it, the deed was sustained and the complaint dismissed for want of equity.
The same question is presented by this appeal. The question is purely one of fact, even though the parties appear to disagree as to the qucmtum of proof required to cancel the deed. Appellant says that only a preponderance of the evidence is required to show either that the deed was'not executed on June 21, 1939, or that it was not delivered on that date, and cites Thomas v. Langley, 200 Ark. 220, 138 S. W. 2d 380, to support his contention. This case does not support appellant as to the date of the execution of the deed. That case involved only the question of delivery and the decree canceling the deed because of nondelivery was affirmed because not against the preponderance of the evidence. None of the provisions of the deed was involved. Here the date of the deed is also involved. In the recent case of Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253, coming from the same court and with the same counsel for appellant as here, we said: “Before we would be warranted in setting aside the solemn recitals in a deed, a written instrument signed and acknowledged, the quantum of testimony required must rise above a preponderance of the testimony. To do this the evidence must, be clear, cogent and convincing. A mere preponderance is not sufficient.” The date of a deed is one of its “solemn recitals.” It might be, frequently is, and is here the most important recital. See, also, Foster v. Dierks Lumber & Coal Co., 175 Ark. 73, 298 S. W. 495; Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d 574.
So we conclude that the clear and convincing evidence rule applies not only to the date a deed bears, but to all other of its recitals, and before a court of equity would be justified in canceling a deed because of any of its recitals, the evidence must be clear, satisfactory and convincing.
With this rule in view, we are unable to say the court erred in its decree. Some doubt was expressed by the court and there are some facts and circumstances not necessary to detail, that throw some doubt on the date and delivery of the deed. On the other hand, there is the testimony of the lawyer scrivener and the lawyer notary that the deed was drawn and acknowledged on the date recited. On the question of delivery, there is the positive testimony of Hoyette Henderson and his mother to support the court’s finding. While we, too, have some doubt about it, we are unwilling to overturn the decree on the weight and sufficiency of the evidence.
Affirmed. | [
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Hart, C.-J.
The record shows that the petition filed to set aside the judgment of the probate court admitting the will of ~W. E. Graham, deceased, to probate, was filed more than one year after said will was admitted to probate in common form.
In Jenkins v. Jenkins, 144 Ark. 417, 222 S. W. 714, it was held that a judgment admitting a will to probate in common form, as was done in the case at ibar, is a final order or judgment, 'from which an appeal lies within twelve months after rendition thereof. It walsi further held that an infant heir will not be permitted to appeal from the probate in. common form of his ancestor’s will after the year provided by statute to appeal has expired, the statute containing no saving clause in favor of infants. In this connection it may be stated that the statute relating to appeals from the probate of wills contains no saving clause in favor of nonresidents or persons absent from the State or under disabilities. See also Morris v. Raymond, 132 Ark. 450, 201 S. W. 116. In the recent case of Dunn v. Bradley (Ark.), 299 S. W. 370, it was held that a probate court is a court of record, and its judgment, under the statute, is, after the lapse of the term, a final judgment until vacated or set aside in some manner authorized by law.
The force of these decisions is recognized by counsel for appellant in the case at bar, but it is claimed that the order of the probate court in question should be set aside because the probate of the will was obtained by fraud practiced upon the court. The fraud alleged in the petition is that the testator did not have the mental capacity to execute a will at the time the purported will was signed by him. It is further alleged that the instrument so probated was the result of undue influence upon the testator by his father, W. B. Graham, one of the principal beneficiaries in the will. It is alleged that the undue influence consisted in W. B. Graham falsely representing to his son that Renaldo Earl Graham was not his -son, but was the offspring of the adulterous conduct of his mother, Sadie Graham, while she was living with the testator as his wife. Even a court of equity could not set aside a will on the grounds alleged. The reason is that equity has no jurisdiction to set aside a will for fraud in obtaining it. Ewell v. Tidwell, 20 Ark. 136. In Gray v. Parks, 94 Ark. 39, 135 S. W. 1023, it was again held that a court of equity has no jurisdiction to determine the validity of a will. The court said that the remedy at law for setting aside a will on account of any fraud or undue influence in procuring it was complete. The reason is that, under our Constitution, such jurisdiction is vested in probate courts. This rule was recognized in Dunn v. Bradley, supra, where it was held that equity had jurisdiction to set aside the judgment of a probate court admitting a will to probate only where fraud was practiced upon the court in obtaining the judgment.
In a case-note to 18 Ann. Cas., at page 807, it is said that it is a well established rule that, in the absence of statutory provisions therefor, a court of equity has no jurisdiction to set aside a will or its probate on the ground of fraud, and many cases are cited in support of the text.
In Broderick’s Will, 21 Wall. (U. S.) 503, a comprehensive statement of the reasons for the rule was given by Mr. Justice Bradley as follows:
“Whatever may have been the original ground of this rule (perhaps something in the peculiar constitution of the English courts), the most satisfactory ground for its continued prevalence is that the constitution of a succession to a deceased person’s estate partakes, in some degree, of the nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded, as upon res judicata, by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and consequently that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injus tice and fraud, and that the result attained should be firm and perpetual. The courts invested with this jurisdiction should have ample powers both of process and investigation, and sufficient opportunity should be given to check and revise proceedings tainted with mistake, fraud, or illegality. These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings. And one of the principal reasons assigned by the equity courts for not entertaining bills on questions of probate is that the probate courts themselves have all the power and machinery necessary to give full and adequate relief. ’ ’
Again, it is contended that a fraud was practiced upon the court in obtaining the probate of the will by concealing from the court that Renaldo Earl Graham was a child of the testator, and that he and his mother were not residents of the State of Arkansas, and knew nothing about the application for the probate of the will by W. B. Graham. We have copied the will in our statement of facts, and item 2 expressly states that he gives to his wife, Sadie Graham, one cent, and to her child, Renaldo Earl Graham, born to her while she and the testator were husband and wife, the sum of one dollar, in full of all demands against his estate. Item 4 of the will gives to W. B. Graham and L. 0. Graham, a brother of the testator, the rest of his property. Thus it will be seen that the will on its face shows the existence of Renaldo Graham, and the will of the testator that he should not participate in his estate. Then, too, there appears in the record a petition filed by Renaldo Earl Graham in the probate court, which admitted the will to probate, for a guardian to be appointed for said minor. The petition states that he is a minor of the age of eleven years, and resides .with his mother in the city of Birmingham, in the State of Alabama. It is also alleged that Walter Graham was appointed executor of the estate of Earl Graham, deceased, and that he appears to be unfriendly to the child, Renaldo Earl Graham. This petition was filed on tlie 17th clay of May, 1926. The will was admitted to probate by order of the probate court, on June 15,1925. Thus it will be seen that the petition for the appointment of a guardian was filed with the probate court before the expiration of a year from the time that the will was admitted to probate. Under these circumstances, it cannot be said that the existence of the minor was concealed from the probate court, and that fraud in this respect was practiced upon the court in procuring- the will to be admitted to probate.
The principal contention of counsel for the appellant is that the order of the probate court admitting- the will to probate was void because it does not contain an affirmative statement of all the facts requisite to admit a will to probate. The will was dated at Midland, Arkansas, September 25, 1917, and purports to have been witnessed b3r Alvin McNabb and Ezra Meeks. The affidavit of Alvin McNabb appears in the record to prove the will. Ezra Meeks had died, and proof was made of his signature. At most it could only be said that the order admitting the will to probate is erroneous, and not void. No appeal was taken from the oidor admitting- the will to probate within the time prescribed by law, and this becomes a collateral attack on the judgment. It is well settled in this State that the probate court is a court of superior jurisdiction, and, within its jurisdictional rights, its judgments import absolute verit.v, the same as other superior courts. The rule in such cases is that, where the record is silent with respect to amr fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction. Apel v. Kelsey, 52 Ark. 341, 12 S. W. 703, 20 Am. St. Rep. 183; Flowers v. Reece, 92 Ark. 611, 123 S. W. 773, and cases cited; and Massey v. Doke, 123 Ark. 211, 185 S. W. 271.
This rule with respect to probate courts being, in general, courts of superior jurisdiction, is also recognized, but it is contended that the facts alleged in the petition bring the case within the exemption to the rule. In Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490, the court quoted with approval from Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. ed. 959, the following:.
“Bid, where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such oases upon the record.”
In the application the court said that the power to remove the disabilities of minors is a special power conferred upon the circuit court, and is to be exercised in a summary manner and. not according to the course of the common law. Hence it was held that the order removing the disabilities in that case was void because it did not show that they were residents of the county in which the circuit court making’1 the drder was held. Again, in Oliver v. Routh, 123 Ark. 189, 184 S. W. 843, it was held that the authority of the probate court to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court by statute, and such power is to be exercised in a special manner, and not according to the course of the common lawr. Hence it was said that, in all such cases, the facts essential to the exercise of the special jurisdiction must appear from the record.
Again, in Ex parte Tipton, 123 Ark. 389, 184 S. W. 798, the court said that, under our Constitution relative to homesteads, it was intended to preserve for the minor the homestead exemption of the parents after their death and to prevent the sale thereof for the debts of the parents during the minority of the children. Hence it was held that the probate sale of the homestead by the-guardian, in cases where there were debts, is absolutely void. In other words, the court held that the jurisdiction of the probate court to sell the homestead of the minor should show that there were no debts, and that, the record being silent on that point, the order of sale was void. The reason is that, when the provision of our Constitution relative to the exemption of homesteads from sale for the payment of debts was considered in connection with our previous decisions on the question, the court considered that the probate court was acting in the premises upon the performance of prescribed conditions, and that the record should affirmatively show that there were no debts. In short, it was held that a finding that there were no debts was a condition precedent to the exercise of jurisdiction by the probate court in the sale of homesteads, and that the facts essential to the exercise of the jurisdiction must appear upon the face of the record.
In the case at bar the probate court, in admitting the will to probate, was acting under the powers given it by the Constitution, and over a question within its ordinary jurisdiction and upon the performance of prescribed conditions. Hence it was not necessary that all the facts upon which the court acted should appear upon the face of the record. If the court acted erroneously in the premises, the remedy would be by appeal; but, under the principles of law above announced, it could not be said that the judgment was absolutely void. The matters involved in the appeal and in the application for a writ of certiorari to quash the judgment of the probate court have been decided adversely to the contention of counsel for appellant in Dunn v. Bradley, supra, and no useful purpose could be served by again entering into a review of our former decisions cited and referred to in that case.
The result of our views is that the judgment of the circuit court in each case was correct, and will therefore be affirmed. | [
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Smith, J.
At the September, 1924 term of the' Franklin Circuit Court for the Ozark District there was pending against petitioner, Walter Stroud, three indictments, one charging him as an accessory before the fact to the -crime of arson, another with the -crime of forgery, and the third with the crime of embezzlement, committed while petitioner was assistant cashier of the Bank of Ratcliff. There was also pending at the same time, in the same court, five indictments against W. D. Stroud, a brother of petitioner, and there were three indictments against another brother, making eleven indictments in all, and each was for a felony charge. These cases were all set for trial on Monday, September 8, and no order of court had been made indicating which -case would be first -called for trial, or in what order the cases would be tried. Just prior to the September term of court petitioner, for himself and his two brothers, wrote a letter to the clerk of the circuit court, inclosing a list of witnesses for whom he wished subpoenas to be issue.
On September 8 W. D. Stroud was placed on trial on the charge of being an accessory before the fact to the crime of arson, and, at the conclusion of the trial, on Wednesday of that week, he -was convicted. On Thursday a brother was placed on trial on the same charge, and, at the conclusion of his trial, on Saturday of the same week, he too was convicted.
Two weeks later, and during the same term of court, petitioner was cited and fined for contempt. Upon the hearing of this charge the court made the following finding of fact, after having heard the testimony offered: Petitioner had caused 167 witnesses to he subpoenaed and had caused his brother to be subpoenaed in each other’s cases. A large number of these witnesses were never sworn nor put under the rule, and were not called as witnesses. Upon petitioner’s examination he testified that a large number of witnesses had been subpoenaed to testify as character witnesses, but it appeared from his examination that many of these witnesses could have given no relevant or material testimony on that issue, and that there were still other witnesses for whom petitioner was unable to give any reason for having subpoenas issued. Upon this finding the court adjudged petitioner guilty of contempt, and „ assessed a fine against him in the sum of $250, and the record upon which this was done has been brought before us by certiorari for review.
In Rapalje on Contempts, § 21, civil and criminal contempts are defined and distinguished in the following language: “Civil contempts are those quasi con-tempts which consist in failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court; while criminal contempts are all those acts in disrespect of the court or of its process, or which obstruct the administration of justice, or tend to bring the court into disrepute, such as disorderly conduct, insulting behavior in the presence or immediate vicinity of the court, or acts of violence which interrupt its proceedings; also disobedience or resistance of the process of the court, interference with property in the custody of the law, misconduct of officers of the court,” etc.
Assuming that the testimony heard by the court sustains the finding of fact made, we are of the opinion that the court erred in adjudging petitioner to be in contempt of court. Certainly his conduct does not come within the definition above quoted. There was no defiance of any order of court. The parties were endeavoring to ■prepare for trial, and they were tried at the time and in the order in which the State elected to proceed.
It may have been that an unnecessary number of witnesses were subpoenaed, but the case does not even present the question of a violation of any rule on that subject (Aikin v. State, 58 Ark. 544), and we need not consider what action, if any, the court might have taken to prevent the abuse of the right to have process for witnesses. But, if it be conceded that there was an abuse of the right of an accused person to have compulsory process to procure the attendance of witnesses in his behalf, this would not constitute contempt of court.
In Johnson v. State, 87 Ark. 45, the trial court found that the plaintiff’s attorney had filed a number of vexatious motions in the cause, which had been overruled, and thereafter another motion was filed which the court regarded as frivolous, its purport being that the court was related within the prohibited degree of consanguinity to one of the attorneys for a cross-complainant in the case, and that said attorney had a contingent interest in any recovery which might be had, and that the judge of the court was therefore, disqualified. Upon filing this motion plaintiff’s attorney, after citations, was fined for contempt. The proceedings was brought before this court for review on certiorari, where the judgment of the court below was set aside and quashed; and, in the opinion in that case, this court said: ‘‘ There is a recital, however, that petitioner had previously filed in the case and argued before the court other vexatious motions. When these motions were filed the judgment does not recite, nor does it declare, that petitioner had been guilty of contempt in filing any of them. The mere filing and presentation of a motion or repeated motions which, are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The' court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vaxation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court’s order, so as to amount to an obstruction of the administration of justice. ’ ’
This case is reported in 18 L. R. A. (N. S.) 619, and in 15 Ann. Cas. 531. In the annotator’s note in 18 L. R. A. (N. S.) it is said that a careful search of the authorities had failed to disclose any other decision on the question of contempt in filing" repeated motions which were not presented in a contemptuous or disrespectful manner and contained nothing which, of itself, constituted contempt. But we think the principle announced in the Johnson case, supra, is conclusive here, 'and that the court’s action in fining petitioner for contempt was unauthorized by law, and that judgment is therefore set aside and quashed. | [
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Humphreys, J.
Appellant brought this suit in the chancery court of Clark County to foreclose a mortgage lien on a .certain one hundred acre tract of land in said county against the mortgagors, James and Lula Bell, and to redeem said land from a foreclosure sale for benefit assessments due the Boss Drainage District from appellee, O. Ó. Meeks, who purchased the land from the grantee, John F. Bevill, of said Boss Drainage District, after it purchased and obtained a deed to the land at its tax or benefit assessment sale.
In addition to setting out appellant’s note and mortgage, and the failure of the Bells to pay the indebtedness, and a prayer for foreclosure, it was alleged in the complaint that the sale by the Boss Drainage District for the delinquent assessments of 1921 was void, because the notice named James Bell as the supposed owner, whereas, at the time of the institution of the foreclosure suit of the Boss Drainage District, a second mortgage, which the Bells had given to the Saunders Mercantile Company and the Citizens’ National Bank, had been foreclosed, and the land ordered sold by Fred Dillard, who was appointed commissioner to make the sale. In other words, it was alleged that, by virtue of his appointment, Fred Dillard, as commissioner, should have been named as the supposed owner in the notice given by the Boss Drainage District in the enforcement of its lien for delinquent assessments.
Appellee filed an answer, claiming ownership to the land by virtue of mesne 'conveyances from the Boss Drainage District, who purchased the land at its foreclosure sale for delinquent assessments of 1921, and denying the alleged invalidity of its tax or assessment sale.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree upholding the validity of the tax or benefit assessment sale of the Boss Drainage District and a dismissal of appellant’s complaint for the want of equity, from which is this appeal.
The facts contained in the record are undisputed. On February 20, 1919, James Bell, jointly with his wife, executed a mortgage on said land to secure an indebtedness James Bell owed appellant, amounting to $2,000. Thereafter they executed a second mortgage on said lands to the Saunders Mercantile Company and the Citizens’ National Bank to secure money Bell borrowed from them. Suit was brought in said court to foreclose the second mortgage, subject to appellants’ mortgage, appellant being made a party thereto, and a decree of foreclosure was rendered and entered on June 8, 1922, in which James and Lula Bell were given until the first day of October, 1922, to pay the debt to the Citizens ’ National Bank and 'Saunders Mercantile Company. James and Lula Bell remained in possession óf the lands during the entire- year of 1922. They did not live upon it, but cultivated it and kept it until they gathered their crop. On June 17, 1922, the Boss Drainage District brought its suit to foreclose its lien for delinquent assessments for 1921, in accordance with the special act No. 92 of the Acts of the General Assembly of 1917 creating the district. The proceeding was quasi in rem, and named James Bell as the supposed owner of the land. The act required that the supposed owner of the land be named in the notice to sell same in the foreclosure proceeding to enforce a lien for delinquent assessments. A decree was rendered in that case on October 3, 1922, ordering that the lands in the Boss Drainage District upon which the delinquent assessments of 1921 had not been paid should be sold by Fred Dillard as commissioner. The district purchased the land at the sale, and the court subsequently confirmed the commissioner’s sale and ordered that he make a deed to the Boss Drainage District, which he did. The drainage district then sold the land to John F. Bevill, and Bevill afterwards sold it to appellee, O. 0: Meeks.
Appellant contends for a reversal of the decree dismissing its complaint because the lands were sold by the Boss Drainage District in a proceeding enforcing its claim for delinquent assessments of 1921 upon constructive service, in which James Bell was named as the supposed owner thereof, instead of naming Fred'Dillard as the supposed owner, who was appointed by the court to sell the land in the foreclosure decree rendered on the 8th day of June, 1922, in favor of the Citizens’ National Bank and the Saunders Mercantile Company against James and Lula Bell. It is argued that the legal title to the land was placed in the commissioner by the decree of June 8, 1922, in trust for the future purchaser, and that he was the supposed owner on June 17, when the drainage district brought this suit to foreclose its claim for delinquent assessments of 1921. The decree of June 8, 1922, did not attempt to transfer the title in the land out of Bell and plaice it in the commissioner.. It simply ordered a sale of the land to satisfy the lien in favor of the Saunders Mercantile Company and the Citizens’ National Bank, if Bell did not pay the debt on or before October 1, 1922. Bell was left in possession of the land, and was in possession thereof, -with a right to remain there and pay the debt, at the time the drainage district brought its suit. There is nothing in the record to indicate that the commissioners of the Boss Drainage District believed, or had reason to believe, that Bell was not the supposed owner. ’ They had every reason to believe that he was the supposed owner, as he was the original owner and still in possession of the land at the time it instituted the suit to collect the delinquent assessments. We think the rule announced in the case of Simpson v. Reinman, 146 Ark. 428, 227 S. W. 15, and in the Security Mortgage Co. v. Herron, 174 Ark. 698, 296 S. W. 363, delivered July 4,1927, rules the issue involved here. The notice met the requirements of the statute under which the district was created, according to the rule announced in both those cases.
No error appearing, the decree is affirmed. | [
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Wood, J.
Tbe appellant appeals from a judgment convicting bim of tbe crime of seduction. He assigns seventeen separate grounds for reversal, in bis motion for a new trial, and groups these assignments, for argument in bis brief, under tbe following beads:
1. Error of tbe court in tbe manner in which tbe court’s examination of witnesses was conducted.
2. Error of the court in permitting incompetent testimony.
3. Error of the court in permitting improper argument of counsel.
4. Error of the court in granting instructions.
5. The evidence was not sufficient to sustain the verdict.
We will dispose of these in the order mentioned.
First. The prosecuting witness testified that she had sexual intercourse with the appellant because she loved him and had confidence in him, and because he promised to marry her. She stated that she had sexual intercourse with him more than once; that, when she discovered that she was pregnant, she communicated that fact to the appellant, and that he said, “We will have to get rid of it,” and told her that he was not able to marry then, and persuaded her to take medicine, if he would get it, to get rid of the child. After answering repeated questions on cross-examination with reference to her association with another boy while she was going to school, she stated, in answer to a question, that the first act of sexual intercourse with the appellant was about eighteen months prior to the trial. She stated that she didn’t remember the date exactly. Counsel for appellant then asked her the following question: “Do you know what took place at this time?” and she answered, “I do, but I don’t want to state it.” Thereupon the prosecuting attorney stated, “That is an impertinent question.” 'She was then asked where it took place, and stated that she didn’t remember — somewhere between Shiloh and her home. The question was then repeated, “Do you know what took place at that time?” The prosecuting attorney objected, and the court sustained the objection. The appellant duly excepted to the ruling of the court.
There was’ no prejudicial error in.this ruling of the court. The witness had already testified as to the first alleged act of sexual intercourse and detailed fully the circumstances as to the time and place of its occurrence. Then when she stated that she didn’t remember exactly the date, she was asked the further question, “What took place at that time?” and, in making his objection, the prosecuting attorney stated that the question was “impertinent.” Then, after the witness had answered further that she didn’t remember where the alleged act took place — somewhere between Shiloh and her home— the question, “Do you know what took place at that time?” was repeated. The district attorney objected,' whereupon the court sustained the objection.
Counsel for appellant contends that the court sustained the objection on the ground that the question was impertinent, meaning that counsel for appellant was impertinent or impolite to the witness. But it occurs to us that the court sustained the objection on the ground that the fullest latitude had already been allowed to counsel for appellant in developing the circumstances as to the time and place of the first act of sexual intercourse, and that therefore the further question as to what took place at that time was impertinent in the sense that it was unnecessary and improper to continue the 'Cross-examination along this line. It was within the discretion of the court to refuse to permit questions of the same purport as those already asked to be repeated. There was no abuse of the court’s discretion.
Second. Appellant next contends that the court erred in allowing the testimony of Tressie Hosey, Will Hosey and Parker Davidson. Tressie Hosey testified that she was a sister of Lottie Hosey, the prosecutrix, and also of Mrs. Dose Spicer. She heard part of a conversation between her sister, Mrs. Spicer, and the appellant on the first .Sunday in-June, 1923, in which the appellant stated that if he ever married he would marry Lottie. She further stated that appellant had been going with her sister Lottie, who was then in school, and that he was going with her at that time. This testimony was relevant to the issue. It tended to prove the intimacy of the relationship that existed between the appellant and the prosecutrix, and was competent both on the issue as to the alleged intercourse and as to whether it took place under a promise of marriage. It tended to corroborate the testimony of the prosecutrix on these issues.
Will Hosey testified as follows: “About the last of June a year ago we were talking about young people, and Ellis up and told me he was going to marry Lottie, and asked me, ‘Reckon the old man would care?’ No objection was made to the testimony of Will Hosey. Moreover, it was competent, for the reasons above given ■with reference to the testimony of Tressie Hosey.
Parker Davidson, a witness for the State, on being recalled testified as follows: “Q. Did you know, or were you able to know from the course of the conversation you had with him, who he had reference to? A. I could not say, because I had not lived there in eighteen months. Q. Did you know who he was going with? A. I heard about Lottie Hosey. Q. Did you also have a conversation with him in Parker’s grocery store about Miss Hosey? A. I don’t know whether I did or not; the only conversation I had anyways near telling me about his circumstances was there at the old bank build-in. Q. For the purpose of refreshing your memory, isn’t it true you had a conversation with Ellis in the grocery store, in which he told you he had got in trouble with Lottie, and you advised him to carry out his promise, and you thought at first the conversation was heard by Mrs. Hodge and her daughter? A. No, I don’t think so. Court: Do you know? A. The only conversation he had with me was at the bank. Q. Who was that with reference to ? A. He said he had to marry or leave the country. He did not tell me it was Lottie or who it was. They had told me he was going with Lottie.”
The court admitted the testimony on the ground that it was a declaration against interest, and was subject to explanation if it was made.
The rule that declarations against interest are admissible is not applicable in criminal cases unless such declarations are in the nature of a confession of guilt, or unless they are a part of the res gestae. It occurs to us that the testimony was admissible on the ground that, taken as a whole, it tended to show that the conversation between appellant and Davidson had reference to the prosecutrix, and was in the nature of a confession that he had had sexual intercourse with her and had promised to marry her, and would have to carry out this promise or leave the country. Witness had previously testified that he knew appellant and Lottie Hosey, the prosecutrix. He was asked what statement, if any, appellant made to him about marrying her, and answered, “There was a bunch of boys standing there in front of the old bank building, and I just made the remark to the boys about when was they going to get married, and Ellis said that he was going to have to marry or leave the country.” Witness also stated that he knew that Lottie Hosey was ruined.
The testimony was relevant as tending to corroborate the testimony of the prosecutrix both as to the promise of marriage and the alleged act of sexual intercourse.
Third. In his remarks to the jury, June H. Morrell, a specially employed attorney for the State, while commenting upon the testimony of the prosecuting witness, among other things stated: “Why, gentlemen of the jury, this is the plainest case I ever saw. The prosecuting witness testified as to the act of the intercourse, and further testified that Ellis Greathouse was the father of her child, and he has not denied it.” The appellant objected to the argument of counsel, and the court sustained the objection and instructed the jury that the argument was improper; and that they should pay no attention to it.
The prosecuting attorney, in his closing argument, while referring to and discussing the letters that the prosecutrix had received from the defendant, among other things said: “Gentlemen of the jury, Sam McConnell has a great big stack of letters written by the prosecuting’ witness to the defendant, lying there on the table within three feet of where I am standing, and he has not offered to introduce a single one of them.” The defend ant .objected to this statement, whereupon the court remarked, ‘ ‘ The statement was improper, and the jury will not consider the same.” The remarks of the attorneys representing the State were improper, and, in the absence of instructions of the court to the effect that the remarks were improper and that the jury would not consider them, the cause would have to be reversed on account of such improper argument. Curtis v. State, 89 Ark. 394; Holder v. Jones, 58 Ark. 481; Hall v. Jones, 129 Ark. 18. But the instructions of the court were sufficient to eliminate any prejudicial effect that the improper argument otherwise might have left in the minds of the jury. McFalls v. State, 66 Ark. 21.
Fourth: Among other instructions, the court gave the following: “Instruction No. 2. While it is necessary that the prosecuting witness be corroborated both as to the promise of marriage and the act of intercourse, the amount of such corroboration is a matter solely for the jury, and is sufficient if there is any, circumstantial or otherwise, provided you believe from the testimony the defendant guilty, beyond a reasonable doubt. And in determining the corroboration you may take into consideration their associations; statements made by the defendant, if any; letters, if any; the birth of the child; and such other facts and circumstances which, in your opinion, tend to shed light upon the facts of the case.” The appellant objected generally and specifically to the giving of the above instruction.
The instruction was not phrased as aptly as it might have been, but, when the charge of the court is considered as a whole, as it must be, the instruction complained of was not calculated to confuse or mislead the jury, and was not an erroneous declaration of law, and the giving of same was not error for which the judgment should be reversed.
At the instance of the appellant, the court gave the following instructions:
“No. 5. You are instructed that, before vou can convict the defendant in this case, you must find from the evidence, beyond a- reasonable doubt, first, that the defendant had sexual intercourse with the prosecuting witness in Howard County, within three years next before the finding of the indictment; second, that such carnal knowledge was obtained by virtue of an express promise of marriage, made to her at the time of or prior to the intercourse; and you cannot convict the defendant unless both of these facts are corroborated by other and independent evidence.
“No. 7. You are instructed that you cannot convict ■the defendant unless the prosecuting withness is corroborated by some other testimony, both as to the act of intercourse and as to the promise of marriage prior to the act of intercourse.”
When instruction No. 2, given at the instance of the State, is read in connection with instructions Nos. 5 and 7, supra, it is clear that the charge of the court as a whole conformed to the law as announced by this court in numerous cases. Jackson v. State, 154 Ark. 120; Lasker v. State, 77 Ark. 468; Nichols v. State, 92 Ark. 412; Brooks v. State, 126 Ark. 98. The concluding paragraph of instruction No. 2 is not argumentative. It simply told the jury that they might take into consideration the statements made by defendant, if any, the letters, if any, the birth of the child, and other facts and circumstances in evidence which, in their opinion, tended to shed light upon the facts in the case. The instruction would have been in better form if these matters had not been specifically enumerated, but there was testimony tending to prove each one of the particular facts mentioned, and therefore the instruction did not assume the existence of facts which there was no testimony tending to prove. As we have already stated, instruction No. 2, when taken in connection with all the other instructions of the court’s charge, could not have misled the jury to the prejudice of the appellant. The charge as a whole was a correct pronouncement of the law applicable to the facts of this case.
Fifth: It could serve no useful purpose to set out and discuss the testimony in detail on the issue as to whether there was legally sufficient evidence to sustain the verdict. The prosecutrix testified as to the act of sexual intercourse and that it was upon the promise of marriage, and there was testimony tending to corroborate her testimony both as to the act of sexual intercourse and the promise of marriage. The evidence therefore was legally sufficient to sustain the verdict. The judgment is correct, and it must be affirmed. | [
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(xrieein Smith, C. J.
Appellants question correctness of a decree finding that J. T. Shelton and E. B. Taylor were owners of 64.86 acres in Lafayette and Miller counties lying west and northwest of a fence constructed by Shelton in 1928. -
In 1938 P. M. Allen claimed and fenced the property, whereupon suit in ejectment was brought by Shelton and Taylor in Lafayette county against Raymond A. Jacobs, Mrs. M. A. Jacobs, Mrs. Gertrude Jacobs Meleton, and P. M. Allen.
Although in 1924 J. T. Shelton and his son, Gr. T., contracted with Annie L. Dobson to purchase 300 acres as to which a part seems to be included in the area which forms the subject-matter of this áppeal, appellees elected to rest their claim upon adverse possession. It is agreed there have been accretions. Appellees insist appellants had notice for more than seven years that the acreage in question was claimed by Shelton. It is also averred there was acquiescence.
R. Y. Hall, engineer, and W. L. King, surveyor, testified regarding river changes, natural and artificial markers, and other matters. Maps or charts were prepared, four by Hall and one by King. There are substantial differences between the drawings and testimony of these'witnesses.
King referred to field notes lie had made and to a rough plat showing parts of fractional sections twenty-seven, twenty-eight, thirty-three, and thirty-four, township eighteen south, range twenty-six west. They cornered at a point 2,600 feet south of the indicated present south bank of Red river where, in relation to the lands contended for, the stream’s bend describes an inverted “U.” These corners are 2,350 feet east of a point on the east bank of the river within the “IT,” and 2,937 feet west of a point on the bank where the flow is northwest. Thence the stream gradually curves west, then southwest, and then south.
Appellees maintain that when the Sheltons contracted in 1924 to purchase from Annie L. Dobson, Mrs. Dobson and her husband went with' J. T. Shelton and pointed out boundaries of the lands described. Shelton claims he then went into possession. Further insistence is that there was a fence immediately north of land owned by Marcus A. Jacobs in section thirty-three (Miller county) extending from an area referred to as the “blue hole” along the southern and eastern banks of what had formerly been Red river, but what is’now commonly referred to as Old river. It is-claimed the fence extended to where Red river cut through its banks in 1915 and created a new channel.
Appellants admit the Shelton contract of 1924 and say that the lands were in sections twenty-seven and thirty-four, east and south of Old river in Lafayette county. One reference is to “. . . a part of section twenty-seven at the north end for a quarter of a mile [which] then abutted upon Red river.” Appellants say they and their predecessors in title- have owned lands in section thirty-three touching Red river for many years, and that they were such owners when the Sheltons contracted with Mrs. Dobson for acreage in sections twenty- - seven and thirty-four.
Appellees predicate their claim upon J. T. -Shelton’s contention that in 1928 certain adjustments of differences were made, and thereafter, they say, it was generally understood that Shelton claimed the lands. There is testimony that north of Jacobs’ holdings a fence was built from the blue hole to the cutoff of 1915, extending along the southern and eastern bank of Old river. In 1928 Mrs. Jacobs (owner of the land in Duke’s Bend east of the cutoff) sold timber from it to a man named Gibson. Shelton and Gibson could not agree on lines, and, according to appellees, “. . . by mutual consent the fence was moved on the eastern and northern sides of the Jacobs lands to the center of Old river.” The fence is described in the margin.
Appellees emphasize, that when the fence was reconstructed the Sheltons yielded lands equal in area to half the bed of Old river north and east of the Jacobs boundaries. However, it is reiterated that the enclosure soon. thereafter completed embraced lands pointed to by Mrs. Dobson in 1924 as within boundaries of three hundred acres the Sheltons took possession of, less the relatively small amount between the east bank and center of Old river. Shelton’s testimony regarding the agreement reached when the fence was moved is unequivocal, although he disclaimed an intent to appro priate any of the Jacobs lands. For ten years, says Shelton, he and his tenants “sprouted off” new land as it accreted, leveled it, and converted a part into meadows. "Cotton and corn were planted and harvested; also beggarweed and hegari. During winter months
The contention is stressed that the fence was substantial, consisting of four strands of barbed wire attached to posts appropriately set, or to trees when convenient. It was intended as a “line fence,” rather than a temporary expediency to turn cattle. Its definite character was understood by all; nor was its utility questioned until 1938,' when Allen, who is referred to as manager and general agent for the Jacobs family, dismantled it. There is this statement in appellee’s brief:
“After each overflow either Allen and his tenants, or Shelton and his tenants, would repair damages. As the river moved westward or southward [the fence was thus rebuilt, extending] into the running waters of Red river. ’ ’
In 1930 Anna L. Dobson, by deed, conveyed to the Sheltons the lands described in the 1924 contract. Included were “All of fractional south half of section twenty-eight — that is, all of said fractional subdivision lying on the southerly side of Old river in what is known as Smith’s bend; all of fractional north half of section thirty-three — that is, all of said fractional subdivision lying on the northerly side of the existing channel of Red river in what is known as Smith’s bend; all of fractional west half of the northwest quarter of section thirty-four — that is, all of said fractional subdivision lying on the easterly side of Old river; also all of fractional east half of the northwest quarter of section thirty-four — that is, all of said fractional subdivision lying on the easterly side of Old river.”
These descriptions constitute a tongue of land extending from the northwest corner of section thirty-three east to the northeast corner of the northwest corner of section thirty-four — a mile and a half — as shown by the map of township eighteen south, range twenty-six west, in Lafayette county.' .
A description of the land in dispute starts at a point 160 feet north and 340 feet east of the northwest corner of fractional northeast quarter of the northeast quarter of fractional section thirty-three. Thence, by various courses, it proceeds to a point on the east bank of Red river, “. . . thence in a northwesterly direction with the meanderings of the east bank of Red river to a point 160 feet north of the north line of section thirty-three, thence east 2,310 to the point of beginning.”
The north line of the land described in the complaint extends in a westerly direction 1,970 feet (2,310 feet, less' 340) or approximately thirty chains west from the northwest corner of the northeast quarter of the northeast quarter of section thirty-three. The distance from the northwest corner of the northeast quarter of the northeast quarter of section thirty-three to the northwest corner of section thirty-three is approximately sixty chains. Thus it will be seen that all of the lands described in the complaint as to which there is controversy falls within the bounds of those parts of sections twenty-eight and thirty-three conveyed by Dobson to the Sheltons.
In the cross complaint the land described is “. . . all that part of section thirty-three in township eighteen south, range twenty-six west, which lies in the bend and north and west of the center line of the channel or bend of the river as it existed prior to the cutoff of 1915, and south of the present channel of Red river as it flowed between the counties of Miller and Lafayette.”
• Appellants’ exhibit “A” to Hall’s testimony contains the notation: “Red river, 1842: from original field notes.” The land runs through the south half of section twenty-eight, northwesterly through the southeast quarter of section twenty-nine, southeasterly through the northeast quarter of section thirty-two, and easterly and northeasterly through the north half of section thirty-three, with the two river channels approximately 1,000 feet apart at the east end. The eastern cutoff was through the area marked ‘‘ cutoff 1915 ’ ’ in the southeast .quarter of section twenty-eight and the northeast quarter of section thirty-three.
Effect of the cutoff was to separate the lands Shelton and his son later bought in sections twenty-eight and thirty-three from similar lands in section thirty-four. The Jacobs lands were south of these holdings in section thirty-three, separated therefrom by the original river.
Appellants say that as a result of the 1915 avulsion the then main channel of Eed river filled with silt, in consequence of which the Dobson and Jacobs lands became contiguous and have remained so ever since.
The court did not make findings distinguishing between original lands and accretions; but it is evident that during changing river channels land around and west of where sections twenty-seven, twenty-eight, thirty-three, and thirty-four cornered was not destroyed, although Hall disagrees with King as to location of the corners.
Hall’s survey was made from the Miller county side of the river: King’s from the Lafayette county side. The result is a difference of about 700 feet — that is, the corners as ascertained by Hall are 700 feet farther east than the corners designated by King. Testimony given by King and the plat to which he referred are based on the original U. S. government survey of fractional sections twenty-seven, twenty-eight, twenty-nine, thirty-two, thirty-three, and thirty-four, township eighteen south, range twenty-six west, east of Eed river. The survey was made by John W. Garretson in November, 1845. It is on file in the state land office, and as to some of the records there we take judicial notice. Lands in the so-called “tongue,” mentioned by witnesses, is in sections twenty-eight, twenty-nine, thirty-two, thirty-three, and twenty-seven, although the property sold by Dobson to the Sheltons did not extend to sections twenty-nine and thirty-two.
Hall’s testimony and plats are based on the original U. S. government survey of fractional section thirty-three “on the southerly and westerly side of Eed river,” made by Israel M. Moore in December, 1841, and during January and February, 1842.
These are separate surveys and are independent of each other. An extension of the lines of either boundary of what was the “thread of the stream” of Red river in 1841 would be incorrect in respect of the other survey, except where the thread of the stream has shifted on account of erosion. Evidence shows that the thread of the stream remained in practically the same position from 1841 until 1915. The avulsion of 1915 does not appear to have changed boundary lines between counties or individuals.
Appellants think the acreage in question accreted to the Jacobs lands in Duke’s bend in Miller county, building from the south to the north, extending beyond the channel of Red river as it existed in 1842. The flow, or force of the water in passing through the cutoff from its break south in section twenty-eight was southwestward across lands later purchased by the Sheltons from Dobson. The water reentered Red river at a point in the northeastern part of section thirty-three. From the south or southwestern end of the cutoff in section thirty-three to the second cutoff farther west in section thirty-two, there was no avulsion and therefore no change of lines.
Due to a failure of witnesses to mark points on maps and plats which they seemingly indicated by gestures, it is impossible to accurately quote salient parts of the evidence. An example of the character of testimony is shown in the footnote.
Irrespective of record titles as shown by exhibits and testimony, the chancellor’s finding that Shelton had held adversely for more than seven years is not against the weight of evidence. Witnesses were interrogated by the court at a time when maps were in use, and it must be assumed that facts indicated, but which in print are hardly more than inferences, were understood and accepted.
The decree is affirmed on appeal and on cross appeal.
Taylor’s interest was that of lessee, he having contracted in 1935 for a five-year period.
The original suit was dismissed, then filed in Miller county. The defendants cross complained, alleging they were owners of lands which are described in a quotation appearing in the body of this opinion. The cause was transferred to chancery.
Appellees argue that prior to 1915 the lands were located in an irregular “S” formed by Red river, meandered by the government in 1842: — “The upper loop or semicircle of the ‘S’ ran far to the west and enclosed lands known as Smith’s bend located in Lafayette county. The lower loop, or semicircle of the ‘S,’ [extended] east and enclosed lands known as Duke’s bend in Miller county. Prior to 1924 Annie L. Dobson owned the lands in Smith’s bend, and in 1924 sold [by contract with bond for title] to J. T. and G. T. Shelton. In 1915 there was a cutoff in Lafayette county on the east side of Smith’s bend, [approximately] 700 feet west of the corner[s] of [fractional] sections 27, 28, 33, and 34. The [cut through] caused the river at this point to abruptly turn in a southerly direction. The river flowed through this cutoff -southward into the old channel of Red river, (reversing the channel) to a second cutoff which occurred' the same year on the west side of Duke’s bend. Between 1915 and 1924 the old channel east of the cutoff across Smith’s bend filled in. By reason of the abrupt turn, or ‘elbow,’ at the north end of the cutoff, the current’s force caused the river to cave on the north and west sides and accretions to form on the east side, until by 1924 the river had moved in a westerly direction a quarter of a mile. Accretions formed to a line which covered and included the lands involved in this litigation. In the same year (1915) there was a cutoff at the western end of Duke’s bend through which the river flowed from the northern cutoff going south. This cutoff, however, is not involved.”
Marcus A. Jacobs died in 1904, leaving his wife, Mrs. M. A. Jacobs, and two children: Raymond A. Jacobs, and Gertrude Jacobs Méleton.
Continuing, the conditions described are: “Beginning with what is known as the blue hole [the fence] continued along the channel of Old river (which, since 1915, had become filled with soil)- to a sassafras post located northwest and west thereof in the center of the channel; thence along the center of Old river to a cottonwood tree at the eastern edge of the cutoff. In the same yéar (1928) J. T. Shelton built a new fence from the cottonwood tree south along the east bluff [or] bank of the cutoff and the east bluff [or] bank of Old river (through which the cutoff waters originally flowed) to and into the running waters of Red river as it was then located.”
“Hegari” is a plant used for forage. It is also spelled “higear.” the enclosure was used as a pasture.
While King was testifying he was asked, “How did the river act there about 1915?” Answer: “Well, all I’ve got to' go by is just the old banks: the evidence is there. I presume it cut through from this point right here.” Question by the court: “Does the cut show for itself?” A. “Yes, this bank here, that old 1915 hank. .There is a pecan tree and an old house on that, so the river there did cut this. You see, this is old virgin bank and the dwelling house was there. In 1927 this was the river line right here, right around here.” [Other testimony is equally difficult to associate with a known point on map or plat.] | [
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Hart, C. J.,
(after stating the facts). In the beginning it may be stated that, under our Constitution, a county court is the general fiscal agent of the county, and has, in general, power to do all things necessary to the management of its internal affairs. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 572, Ann. Cas. 1917B 438; and Martin v. State, 171 Ark. 576, 286 S. W. 873. Bearing* this in mind, the particular question raised by this appeal is whether or not the county court is bound, under any circumstances, on the application of the holder of warrants outstanding at the time Amendment No. 11 was adopted, to issue interest-bearing bonds in payment therefor;- or, in short, whether the discretion given the county court, as heretofore held by this court, is the subject of judicial review. In deciding this question we deem it proper to review, in a brief way, our previous decisions construing the Amendment and the rules of interpretation which the court has endeavored to apply.
From the early history of the court to the present time, in determining the intention of the framers'of a constitutional amendment, the court has kept in view the Constitution as it stood at the time the amendment was made, the evil to he remedied by this amendment, and the amendment proposed by which the evil is to be remedied. State v. Scott, 9 Ark. 270; Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269; Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 783; Combs v. Gray, 170 Ark. 956, 281 S. W. 915; Pioneer Construction Co. v. Madison County, 174 Ark. 298, 296 S. W. 729; and Polk County v. Mena Star Co., ante p. 76. In other words, it is the duty of courts to give effect to all provisions of an amendment and harmonize them by construing the language used according to its natural and ordinary meaning, to the end that the object and purposes sought by the framers of the amendment may be accomplished.
Amendment No. 11 is very broad in its scope, and evidently contemplated a radical departure from the existing way of managing the fiscal affairs of 'Counties, and manifestly intended to place them on a cash basis and to keep them so. When its whole scope and purpose is considered, it is evident that it was intended to provide for the payment of county warrants outstanding at the time the amendment was adopted as well as to keep the counties within the amount realized from the maximum tax levy for county purposes in their yearly expenditures for running the county government in the future. So it will be readily seen that, in order to harmonize the provisions of the amendment and at the same time to remedy the defects in the Constitution on the same subject, grave and perplexing difficulties necessarily arose in the minds of the officers whose duty it became to carry into effect the provisions of the amendment, and in many instances these perplexities and doubts could only be settled by an appeal to the courts. In turn it has given the courts great concern to interpret the amendment in such a way as to carry out the object and purposes of the framers of it by giving the' language used its ordinary meaning and by giving some effect to every provision of the amendment without emphasizing or giving undue prominence to any part of its provisions.
In construing the amendment the court has recognized that, under our Constitution, counties are civil divisions of the State for political and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government. Cole v. White County, 32 Ark. 45; and Pulaski County v. Reeve, 42 Ark. 54.
The court has also recognized that the only means of payment of the debts contracted by counties is by levy of taxes on property in the county, as provided for in the Constitution. Keeping this in view, we have held that the quorum court, which is presided over by .the county judge, may make an annual levy up to its constitutional limit for county purposes, and that the county court may set apart so much of this levy for the building of a new courthouse as may be spared from meeting other governmental expenses in running the county. The court has said that, where the county court, in good faith, finds, upon an investigation of the fiscal affairs of the county, that there will be a margin left, if spread over a series of years, sufficient to meet the annual payments for the construction of a courthouse,such contract will be a valid one, and the annual payments will be considered allocated or appropriated to the construction of a courthouse, and cannot be used for any other purpose: The court said that this will not amount to an appropriation of the annual payments out of a specific fund, because all payments must be made-out of the county general revenue fund, but they are set apart or appropriated for the specific purpose of building a courthouse and cannot be diverted from the purpose for which it is levied. Kirk v. High, 169 Ark. 162, 273 S. W. 389; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006; and Lake v. Tatum, ante p. 90.
In Pioneer Construction Co. v. Madison County, 174 Ark. 298, 296 S. W. 729, a holder of the county warrants of Madison County brought before us the question of whether or not-Amendment No. 11 should be interpreted as making it mandatory in all cases upon county courts to issue interest-bearing bonds where there was a valid outstanding indebtedness of the county at the time the amendment was adopted. This case involved the consideration of the proviso in Amendment No. 11, which reads as follows:
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing’ certificates of indebtedness, or bonds with interest coupons, for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law, until such indebtedness is paid.”'
It was contended that the word “may” should be construed as “must,” under the rule of construction in Washington County v. Davis, 162 Ark. 335, 258 S. W. 324, that, whenever the rights of the public or third persons depend upon the exercise of a power or the performance of a duty to which the word “may” refers, it should be construed to mean “shall.” We recognized that the word “may” is construed as “shall” or “must” where the context or subject-matter compels such construction, but we held that the word “may,” as used in the proviso to Amendment No. 11, gave a discretion to be exercised by the county court in the issue of interest-bearing bonds to pay the indebtedness of the county existing at the time the amendment was adopted.
Again, in Polk County v. Mena Star Co., ante p. 76, the court had under review whether or not the county court of Polk County had abused its discretion in refusing to issue bonds in payment of valid warrants outstanding at the time of the adoption of Amendment No. 11. tinder the facts of that case it was shown that the county court was, in good faith, endeavoring to pay such outstanding warrants out of the five-mill tax levy for general county purposes, and that it was actually making material progress in the payment of such outstanding warrants. The evidence showed that, if the affairs of the county were economically and judiciously administered, the warrants outstanding at the time of the adoption of Amendment No. 11 could be paid within a reasonable time under a five-mill tax levy for general county purposes, and that, at the same time, the annual budget of the -county for the expenses of administering its affairs and running its government could also be met. Under these circumstances we held that the county court did not abuse its discretion in refusing to issue bonds under Amendment No. 11 and to make an additional tax levy of not exceeding three mills with which to pay them.
In the case at bar we have an entirely new phase of the question presented to us. The record contains an affirmative showing, upon undisputed facts, that the ordinary governmental expenses of the county will require a maximum tax levy of five mills annually, or, in other words, that the annual budget of the county for its governmental expenses will absorb all of • the maximum levy for taxation which can be made under the Constitution for general county purposes. This, will leave nothing for the payment of the warrants outstanding at the time of the adoption of the amendment. Thus it will be seen that one of the objects of the amendment will be defeated, if it be held that the county court, at will, may refuse to issue bonds, under any circumstances, for the payment of the county indebtedness existing at the time of the adoption of the amendment. In all cases involving the interpretation of the amendment we have recognized that there were two controlling purposes in the minds of the framers of the amendment. One of them was to pay the running expenses of the county government cut of the taxes levied annually, for county purposes, and not to permit the county, under any circumstances, to go in debt beyond the amount of money they could derive from the maximum amount that could be levied under the Constitution for general county purposes. The other object was to provide for the payment of the existing indebtedness at the time of the adoption of the amendment. As we have already seen, the question of issuing interest-bearing’ bonds or not for the ¡payment of this outstanding indebtedness was left to the discretion of the county court; but the discretion given the county court was not one to be exercised at will, but it was subject to judicial review. Under the facts of this particular case it became the imperative duty of the county court to use the power eonf erred upon it under the provision of Amendment No. 11 to carry out the intention of the framers of the amendment, and its action in failing to do so is the subject of judicial review. The principle here decided was recognized in Julius v. The Bishop, 42 Law Times Reps. 546. In that case the court had under consideration the words “it shall be lawful,” and said that they were words making that legal and possible which there would be no rig'ht or authority to do. Continuing, the Lord Chancellor said:
“They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen’s Bench to decide on an application for a mandamus.”
We think the quotation from that case is applicable to the question which has to be considered in the case at bar, and are of the opinion that, when the facts of this particular case are read in the light of our former decisions interpreting the amendment, and considered in the light of what we have here said, the county court abused its discretion, and that its action was arbitrary in law. The circuit court should have issued a writ of mandamus to compel it to issue interest-bearing bonds in payment of tbe indebtedness of tbe county existing at tbe time of tbe adoption of Amendment No. 11. Therefore tbe judgment of the circuit court will be reversed, and tbe cause will be remanded with directions to tbe circuit court to grant tbe writ of mandamus as prayed for, and for further proceedings according to law. It is so ordered.
Humphreys, J., not participating.
Smith, J., dissenting. | [
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Humphreys, J.
This is an appeal from a judgment of conviction for speeding in the circuit court of Hot Spring County, on appeal from the mayor’s court of the city of Malvern. Two charges were preferred against appellant in the mayor’s court, this one for speeding, and another for transporting liquor. Appellant’s brother, Cash Ward, and one Bill Hughen were charged jointly with him in the transporting case.
Appellant and his co-defendants were convicted in the mayor’s court upon the charge of transporting liquor, and appellant was also convicted upon the charge of speeding. Each case was duly appealed to the circuit court of said county, and separately docketed. Bill Hughen entered a plea of guilty in the circuit court to the charge of transporting, and was fined. Appellant and his brother were tried upon the transporting charge and acquitted, on November 5, 1923. On November 7, 1923, the charge of speeding pending against appellant was continued for the term, by consent of the parties. On July 21, 1924, it was discovered by the court that, in entering the judgment of acquittal in the transporting charge against appellant and his brother, on November 5, 1923, the clerk had written the word “speeding” following the word “transporting” in the caption of the judgment. When the discovery was made, the court, on his own motion, without a petition by appellee and without notice to appellant or his attorney, made a finding that the clerk erroneously inserted the word “speeding” in the caption of the judgment of acquittal, and ordered the word “speeding” stricken from the caption. The word “speeding” did not appear in the body of the judgment of acquittal. On the following day the court notified appellant’s attorneys of his action in striking the word “speeding” from the caption of the judgment of acquittal for transporting liquor, whereupon the attorneys moved the court to strike the order finding that the clerk erroneously inserted the word “speeding,”' because the correction was made without petition by appellee and without notice to appellant, and entered a plea of former acquittal, making the judgment of acquittal as entered on November 5, 1923, the basis thereof. The court overruled the plea of former acquittal, over appellant’s objection and exception.
The only assignment of error relied upon by appellant in his argument for a reversal of the judgment is the trial court’s action in refusing to sustain his plea of former acquittal. His contention is that the court had no right to make the order without a petition being filed by appellee requesting it, and without notice to appellant. He did not challenge the correctness of the finding of the court that the clerk had erroneously inserted the word “speeding” in the caption of the judgment of acquittal. If the word “speeding” was erroneously inserted by the clerk in the caption, appellant was not prejudiced by the order striking said word. Unless prejudiced by the nunc pro tuno order entered by the court, appellant was in no position to ask the court to strike the order. After the word “speeding” was stricken from the caption, the judgment of acquittal, on its face, did not embrace the charge of speeding and was not available in support of appellant’s plea of former acquittal. There was no. merit in appellant’s motion to strike the correcting order unless he had alleged and offered to prove that the court erred in finding that the insertion of the word ‘ ‘ speeding ’ ’ by the clerk was erroneous. As stated above, appellant did not challenge the correctness of the court’s finding, but simply relied upon the fact that it was entered by the court without petition and notice, hence no prejudice resulted to appellant on account of the nunc pro tunc order.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellant is the owner of a tract of land in Crawford County, Arkansas, through which, by order of the county court, a public highway was laid out and constructed, and in doing so 3y2 acres of his land were taken. He presented his claim in apt time to the county court for damages in the sum of $1,350 caused by the taking of said land and for damages to the remaining land. The county court disallowed his claim, and an appeal was taken to the circuit court, where it was tried before the court without a jury. The court found “that the plaintiff had been damaged by the opening of the road complained of, by the taking of the land used for the road, by the irregular shape and isolated position of the smaller piece of land cut off from the larger, and by the unfenced condition in which the land was left after the opening of the road. That the plaintiff’s land was benefited by the building of the road in the particulars set forth in the testimony of defendant’s witnesses. That the benefits so testified by defendant’s witnesses are special and peculiar benefits as a matter of- law, and that the defendant has a right to have such benefits set-off against the value of the land as well as against the damage to the land not taken. That the damage to the land not taken plus the value of the land taken exceed benefits to the remaining land by the sum of $250,’’-for which amount judgment was entered in appellant’s favor.
The proof shows that the road was. laid out through appellant’s farm so as to cut off a three-acre triangular piece on the south side of the road, and a one-half acre triangular piece on the north side, and that the value of these two separate pieces of land has been reduced by virtue of being detached from the main body of land one-half its original value, and the proof on the part of appellant was ito the effect that the value of the bottom land, of which the three-acre tract was a part, was $135 or $140 per acre, whereas the upland was worth about $50 an acre.
The proof on the part of appellee tended to show that the building of this road through the farm had materially ■ increased the value of the farm. One witness stated that the increased value of the land .by reason of the building of the highway was from $500 to $1,000 more than it was before; that this land was peculiarly benefited in that it made it a mile and one-half nearer to Alma, both because of the highway and the new bridge across the creek adjacent to the farm. The witnesses on behalf of appellee testified that the whole country was. benefited by reason of the construction of the highway, but that the property adjacent to the highway was specially benefited thereby. Counsel for appellee has not favored us with a brief in its behalf.
It is the contention of counsel for appellant that the circuit court erred in offsetting the increased value of the land by reason of the improvement against the damages suffered by reason of the land actually taken, and it is urged that § 5231 of C. & M. Digest prescribes the rule in this regard, that is, that the damages shall be ascertained without deduction for benefits to the property of the owner. This section reads as follows:
“On presentation of the petition and proof of notice of publication as aforesaid, and the county court being satisfied that proper notice has ibeen given in accordance with the provisions of said act, said court shall appoint three disinterested citizens of the county as viewers, who shall also be a jury to assess and determine the compensation to be paid in money for the property sought to be appropriated, without deduction for benefits to any property of the owners; and they shall also assess and determine what'damages each owner of the lands over which the road is to run shall suffer by the opening and constructing of said road.”
It will be noticed that this section applies to the old system in effect prior to 'act of May 31, 1911, now § 5249, C. & M. Digest. We think § 5231 has no application to this case, as it is not the system resorted to in the laying out and establishing this highway, or any change «therein. The county court made the opening order of this road under § 5249, C. & M. Digest, and the claim was filed in pursuance of the provisions of such section, and the appeal to the circuit court was prosecuted by authority thereof. It will therefore be seen that, even though both statutes exist, and that either method of procedure might have been resorted to, the procedure provided by the later statute was followed by both parties, and the method of determining the damages provided by § 5231 can have no application here. The act of 1911 does not prohibit the court from taking into consideration, in determining the landowner’s damages, the value of' the benefits received by such owner from the improvement. In this respect it differs from § 5231 and also with the eminent domain statute fixing the measure of damages for rights-of-way for railroads, and other corporations, as, by § 3998, C. & M. Digest, the damages shall be determined and assessed irrespective of any benefit such owner may receive from the improvement.
Section 9 of article 12 of our Constitution provides that: “No property, nor right-of-way, shall be appro priated to the use of auy corporation until full compensation therefor shall be' first made to; the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit of - any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.”
And § 22 of article 2 of the Constitution prohibits the taking of private 'property for public use without just compensation. It will therefore be seen that the acquisition of property for right-of-way or other purposes cannot be taken by a pifivate corporation, such as a railroad company, without payment therefor in money, and that benefits by reason of the construction of the improvement cannot be considered.
This court has held that the word “corporation,” as used in § 9, article 12, refers to private corporations, and that when land is appropriated for the use of the public it is not “appropriated to the use ,of any corporation,” as set out in the above section. Paragould v. Milner, 114 Ark. 334, 170 S. W. 78. In that case the city of Paragould, a municipal corporation, sought to condemn a strip of land, privately owned, for the purpose of widening a street. It was stipulated that witnesses would testify, if permitted to do so, that the benefits to the property left after the strip was condemned would exceed the value of the property appropriated by $300. The court refused to permit such offered testimony, and it also instructed the jury, over the city’s objection, that they “should not take into consideration any betterment that may accrue to the defendant by reason of this proposed improvement,” and that “you cannot pay a man for his property in betterment,” etc. This court reversed the case, and held to the effect, as already stated, that the word “corporations,” as used in the section of the Constitution, did not apply to a municipal corporation, and that, quoting the first syllabus, “where the public use for which a portion of a landowner’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner will he held in such case to have received just compensation in benefits.” It was further held in that case that the benefits to be considered must be those which are local, peculiar, and special to the owner’s land.
It was further held, in Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334, that § 22 of article 2 of the Constitution, providing that “private property shall not be taken, appropriated or damaged for public use, without just compensation therefor,” relates entirely to the owner’s right to compensation, hut not to the remedy therefor. And that a drainage district may take private property for its right-of-way under the State’s right of eminent domain, and that it may exercise such right without notice to the owner, and without giving a hearing upon that question. See also Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260.
In Cribbs v. Benedict, 64 Ark. 555-559, 44 S. W. 707, 708, this court said:
“Where the Constitution is silent .upon the subject, the decisions of the courts present diverse views upon the right to consider, by way of compensation for a portion of his land taken for public use, the benefits thereby accruing to the remainder. Lewis, Em. Dom., § 465. The view which seems to us to accord with reason, and which is supported by high authority, is that, where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar, and special to the owner’s land, who has been required to yield a portion pro bono publico.”
This ease was cited and quoted from with approval in Paragould v. Milner, supra, and in the more recent case of Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62, where a- strip of Weidemeyer’s land had been condemned by the city of Little Bock for the opening of Broadway Street. It was again held that the benefit accruing to the remaining portion of Weidemeyer’s land exceeded the value of the strip taken, and compensation was properly denied. In that case the lower court directed a verdict for the city, on the ground that the benefit to be derived by the improvement to be made exceeded the value of the property taken for such improvement, and this court sustained such instructed verdict. We are unable to make any distinction between that case and the one now before us as to the principle of law now under consideration. If it applies to the opening of a city street through city property, why should the same rule not apply to the opening or laying out of a rural road through rural property?
The Constitution and statutory provisions of this State with reference to the taking of private property by railroads and other private corporations, as well as the decisions of this court relating, thereto, are wholly different from the statute now under consideration. There is no provision either in the Constitution or the statute prohibiting the offsetting of benefits against damages in 'cases of this kind, and we therefore conclude that the circuit court did not err in taking these special, local and peculiar benefits to this tract of land into consideration in arriving at the judgment in this case.
It is next insisted by counsel for appellant that the benefits testified to by the -witnesses for appellee were all such benefits as accrued to the general public, and were therefore not special, local or peculiar to this particular land, and therefore cannot be taken into consideration in the reduction of damages. We cannot agree with counsel in this contention. The proof shows that the value of appellant’s land has been greatly increased by reason of this road lying adjacent to his land, and that his farm in its present condition is worth from $500 to $1,000 more than it was' before the construction of this road. Under the rule announced in Weidemeyer v. Little Rock, supra, these benefits may be offset against the damages. The circuit court found that the damage to the land not taken plus the value of the land taken exceed the benefits to the remaining land by the sum of $250. There is substantial testimony to support this finding of the court, and, under the rule above announced, the judgment must he affirmed. •
Mehaffy, J., dissents. | [
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