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Battle, J.
On the second day of January, 1905, F. M: Daniel and 316 other adult inhabitants, residing within three miles of the public schoolhouse in the town of Mammoth Spring,' in Fulton County, in this State, presented a petition to the Fulton County Court, asking that an order be made prohibiting the sale or giving away of vinous, spirituous or intoxicating liquors of any kind, including alcohol, or any compound or preparation thereof com'monly called bitters, within three miles of the schoolhouse,. for the period provided by law.
The county court denied the petition. An appeal was taken by the petitioners to the Fulton Circuit Court, and it granted the order asked, except as To duration, providing that it should continue until the 31st day of January, 1906.
Six hundred and three adult inhabitants resided within the territory affected by the order of the circuit court, Three hundred and seventeen of them signed the petition. Twenty-one of them signed a petition asking that their names be stricken from the petition of the 317; the reason given for the request being that the boys and old men residing within the three miles could get whisky in the State of Missouri. The question in this case is, ought the names of the twenty-one to háve been stricken from the petition of the 317?
In Bordwell v. Dills, 70 Ark. 175, this court held that petitioners for the prohibition of the sale of liquor, whose signatures have 'been “obtained intelligently and without fraud, and háve not been erased before presentation,” cannot withdraw their namés from the petition after it has been filed, without leave of the court for good cause shown. The court said in that case: “In the absence of something in the statute permitting it, no individual signer, nor, indeed, all the signers, could thereafter [filing] withdraw their names from the petition without leave of the court. And the court should not grant such leave without good cause shown therefor. He who voluntarily sets on foot a proceeding for the enforcement of a salutary police regulation in any community should not be permitted to capriciously undo his work. He should not be allowed to play, fast and loose with the interests of 'society.”
The petition of the twenty-one was filed after the original petition. Their names had not been erased from the latter petition. The reason given for their request was not good. They knew when they signed the original petition that boys and old men residing in the proposed prohibition district could buy whisky in the State of Missouri. The Missouri boundary lines had not been changed; neither had the reasons for prohibition changed. Their change of mind was capricious, and, as said in Bordwell v. Dills, they should not be permitted to capriciously undo their work.
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) The court committed an error in giving instruction No. 7. By it the jury were told that they might' convict the defendant if they were satisfied, beyond a reasonable doubt, by the confession alone, or in connection with all other testimony in the case, that he was guilty of the crime charged. The confession alone is insufficient to sustain a conviction. There must be other proof of the commission of the offense. Kirby’s Digest, § 2385.
It is not essential that the corpus delicti be established by proof entirely independent of the confession, and the instruction to that effect asked by the defendant was properly refused. Meisenheimer v. State, 73 Ark. 407.
The judgment is therefore reversed, and the cause remanded for a new trial. | [
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McCulloch, J.,
(after stating the facts.) There'is no dispute whatever about the facts of this case. It is clear that the form of the policy does not, if its language be held to embrace all of the cotton in the warehouse, express the real agreement and intention of the parties thereto — appellee and the agent of appellant who wrote and delivered the policy and received the premium therefor. They both give the same testimony concerning the .transaction, and both say that they intended to insure, not all the cotton in the warehouse, but only that part of it which appellee held on storage for farmers who held warehouse tickets showing-that their cotton was insured.
The only question is whether the contract can be reformed so as to express the real intention and agreement of the parties, whether it is a mistake from which a court of equity will grant relief. An insurance policy may, either before or after the loss, be reformed so as to conform to the real agreement of the parties. Phoenix Ins. Co. v. State, 76 Ark. 180.
It is contended on behalf of appellant that, as the parties employed the language which they intended, and only mistook its effect, it was a mistake of law, against which a court of equity should not grant relief by reformation of the policy. It is well, settled that ignorance of the law furnishes no ground to vary or set aside the solemn act of the parties to a contract in reducing it to writing, and that courts of equity will not relieve against a plain mistake of law, unaccompanied by other grounds for so doing. Judge Story, after stating this general doctrine, names certain exceptions, and says: “It is relaxed in cases where there is a total ignorance of title, founded on mistake of a plain and settled principle of law, and in cases of imposition, undue influence, misplaced confidence and surprise.” 1 Story, Eq. Jurisprudence, § 137. “The true conclusion,” says Prof.-Bispham, “as to the general rule, would seem to be that equity will not interfere in the case of a pure mistake of law; but that any additional circumstance will readily be laid hold of by the court, as constituting sufficient grounds for interposition.” Bispham’s Equity, § 188.
In Pomeroy’s Equity Jurisprudence it is said: “Whatever be the effect of a mistake, pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of the transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, 'aided, or accompanied by inequitable conduct of the other parties. It is not necessary that such inequitable conduct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accom'panied by, incorrect or misleading statements or acts of the other party.” 2 Pomeroy, Eq. Jurisprudence, § 847; Snell v. Insurance Co., 98 U. S. 85. Snell v. Insurance Co., 98 U. S. 85, was a suit to reform an insurance policy, after the loss of the property by fire, the facts being as follows: Keith, a member of a firm who were owners of a lot of cotton, applied for insurance to the agent of the company, stating to the agent the facts concerning ownership, etc., of the cotton, whereupon the policy was written in the name of Keith individually, and was accepted by him upon the representation and agreement of the agent that the entire interest of the firm was protected by the policy. The court, after stating the general doctrine that “a mere mistake' of law does not, in the absence of other circumstances, constitute any grounds for reformation of a written contract,” granted the relief, and said: “In the case under consideration, the alleged mistake is proved to the entire satisfaction of the court. It is equally clear that the assent of Keith to the insurance being made in his name was superinduced by the misrepresentation of the company's agent that insurance in that form would fully protect the interest of the firm in the cotton. We assume, as we must from the evidence, that this representation was not made with any intention to mislead or entrap the assured. It is, however, evident that Keith relied upon that representation, and, not unreasonably, relied upon the larger experience -and greater knowledge of the insurance agent in all matters concerning the proper mode of consummating, by written agreement, contracts of insurance according to the understanding of the parties. He trusted the insurance agents with the preparation of a written agreement which should ■ correctly express the meaning of the contracting parties. He is not chargeable with negligence because he rested in the belief that the policy would be prepared in conformity with the contract.”
The same exception to the rule is stated in the case of Griswold v. Hazard, 141 U. S. 260.
. Mr. Beach, in his work on Modern Equity Jurisprudence (vol. 2, § 540) lays down this rule: “Where parties have made an agreement, and there is no allegation of any mistake in it, and in reducing it to writing they, by mistake, either because they did not understand the meaning of the words used, or the legal effect thereof, failed to embody their intention in the instrument, equity will grant relief by reforming the instrument and compelling the parties to perform their agreement as they made it; and it matters not whether such a mistake be called one of law or of fact.” Pitcher v. Hennessey, 48 N. Y. 415; Oliver v. Mutual Com. Ins. Co., 2 Curtis, 277.
In Lawrence County Bank v. Arndt, 69 Ark. 406, where the officers of a private corporation, intending only to bind the corporation, were induced to sign their names to a note, adding after their names the respective offices held by them in the corporation, by the representation of the payee of the note that they would not be individually liable, .the court said: “The note sued upon was prepared by the cashier of the bank, and was signed by the makers in the manner directed by him.upon the representation made by him to the effect that they would not be individually liable, and that the note as signed was the obligation of the Manufacturing Company. They relied upon such representation, and they did not act unreasonably in doing so, because his vocation and experience were such as to enable him to better understand how such paper should be drawn and executed to accomplish the desired result, and to express the obligation the makers thereof intended to assume. They and the bank believed .that the note was not their individual obligation, but the note of the Manufacturing Company. As evidence of this fact, each appended to his signature the name of the office he héld in the Manufacturing Company. The conduct of the agents of the bank superinduced this mistake, and they accepted the note as obligation of the Manufacturing Company. Under such circumstances, a court of equity cannot deny relief without aiding the bank to take unconscionable advantage of a mistake for which its agents were chiefly responsible.”
In the present case the insured relied upon the superior knowledge of the insurance agent, who knew all the facts concerning the location of the property, the method of handling and keeping account of same and the particular class of cotton upon which insurance was desired. He had a right to so rely.
The language of the policy is peculiarly the language of the insurer. The policy is prepared by the insurer, and must be accepted, if at all, by the insured as prepared, without change, and when he does so upon representation of the authorized agent of the company that it covers certain property agreed to be insured, then a court of equity should reform it if not in accordance with the agreement and intention of the parties. Such circumstances form a distinct exception, as held by the authorities herein cited, to the general rule that mistakes purely of law will not be corrected by reformation of written instruments. Nor does it alter the rule that the original mistake occurred before the issuance of this policy, many years ago, when this kind of insurance first came into use in that locality. It was nevertheless caused by reliance upon the superior knowledge of appellant’s agent at the time of the issuance of the policy, and on account of it the policy failed to express the real intention of either party.
But it is urged that the authority of the agent was limited, and he was not authorized to issue a policy such as is claimed this should have been. This view is not sustained by the facts. Bridewell, as agent for the company, kept policies for execution and delivery, passed upon applications, received premiums, countersigned and issued policies, and was therefore a general agent for such purposes. Having the conceded power to issue a policy on all the cotton in the warehouse, he undoubtedly had the authority to issue a policy on any portion of it. Insurance Co. v. Brodie, 52 Ark. 11; Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187; German-American Insurance Co. v. Humphreys, 62 Ark. 348.
The method of bookkeeping practiced by appellee appears to have been in' literal compliance with the express terms of the policy and was sufficient. That clause- of the policy cannot be reformed, as asked by appellant, as the proof does not show that there was any agreement concerning this feature of the insurance, other than that expressed in the policy.
All alleged defects in the proof of loss were waived by denial of liability and refusal to pay, based on other grounds. Planters’ Mut. Ins. Assoc. v. Hamilton, ante p. 27, and cases cited.
Thus far I have expressed the view of the majority of the court, but, speaking for myself alone, I find other reasons for reforming the policy and holding the appellant liable for the amount claimed. The alleged mistake was no more than a mistake in the description of the property intended to be covered by the policy of insurance.
In the case of Knight v. Glasscock, 51 Ark. 390, where the parties to an agreement for-sale of land used the language intended in the description of the land, but made a mistake as to its effect in properly describing the land, this court' held that a court of equity should reform the contract so as to -conform to the real intention of the parties. I see no reason why the same rule should not be' applied in this case.
It is my opinion also that the policy needed no reformation, and that parol testimony would have been admissible to identify and establish the subject-matter of the contract. The language of the .policy does not in express terms describe necessarily all the cotton in the warehouse. The language is “$2,000. On cotton in bales,” etc., in the warehouse, and it is only by implication that it can be said to describe all the cotton in the warehouse. It is a well-settled rule of evidence that parol evidence is always admissible to identify the subject-matter of a'written contract. 17 Cyc. pp. 724-728 and cases cited; 2 Parsons on Contracts, p. 549; Aetna Ins. Co. v. Strout, 16 Ind. App. 160; Franklin, etc., Ins. Co. v. Drake, 2 B. Mon. 47; Weber v. Illing, 66 Wis. 79; Goff v. Pope, 83 N. C. 123; Bigelow v. Capen, 145 Mass. 270; Pierce v. Parker, 4 Metc. 80. The following is stated to be the law on this subject: “The general rule that parol evidence is not admissible to vary or contradict a written instrument precludes the admission of evidence to identify the subject-matter of a contract or the property described therein, when such evidence is inconsistent with what appears in the writing. But where a portion of the description is erroneous,' the fact may'be shown by parol evidence, and the property intended to be described may be identified, as this amounts' merely to the rejection of the' false reference in the description, pursuant to the well-settled rule of interpretation, falsa demonstratio non nocet.'’ 17 Cyc. p. 734, and citing cases.
The Supreme Court of Massachusetts in the case of Bigelow v. Capen, supra, said: “Parol proof of extrinsic circumstances may be admitted to apply a description to the subject-matter- of a contract. - If it appears that the description is not in all respects accurate, it may to a certain extent be rejected, and what remains alone regarded, if that be sufficient to identify it.”
There is no reason why this rule should not apply to an insurance policy, as well as to any other contract, and if was so applied in some of the cases cited above. Aetna Ins. Co. v. Strout, supra; Franklin Ins. Co. v. Drake, supra.
Applying this rule to the facts of this case, it would be no contradiction of the terms of the policy to show by parol evidence that not all the cotton in the warehouse was insured by the policy, but only a certain portion of it. Of course, it would be different if the policy in terms read to cover all the cotton in the warehouse. Then it would be a contradiction to show that only a part was insured.
No error is found in-the decree of the chancellor, and the same is in all things affirmed.
Battle, J., dissents. | [
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McCulloch, J.
Appellee, W. J. Cochran, sued appellant, St. Louis Southwestern Railway Company, for damages resulting to him as parent frqrn the death of his child 22 months of age, alleged to have been negligently run over and killed by appellant in the operation of its train.
Appellant answered, denying the allegations of negligence, and alleged that the plaintiff was guilty of negligence in permitting the child to go upon the railroad track unattended. The court, over the objection of the defendant, gave the following, among other, instructions upon request of the plaintiff, viz.:
“2. The jury are instructed that if they believe from the evidence that the plaintiff, the father of the child, was in fault, and that the child, while wrongfully on defendant’s track, was killed by defendant’s train, but that the defendant’s agents were aware, or by the use of ordinary diligence might have been aware, of the fact that the child was on the track in time to avoid injuring him, by reasonable diligence, the failure to use such diligence alone must be considered the proximate cause of the injury.
“5- The jury are instructed that it was the duty' of the defendant, through its engineer and fireman, to keep a constant lookout for persons on the track. It is not necessary, under the circumstances in proof in this case, that both the engineer and fireman, from their respective positions on the; engine, should have kept such lookout; but to meet this requirement it is necessary that either the fireman or engineer -keep such constant lookout for persons on its track. And if you believe from all the facts and circumstances detailed in evidence that such constant lookout was not kept by either the fireman or engineer at the time and place of the injury complained of, and that by reason of such neglect to keep said lookout deceased, John. Franklin Cochran, was killed as alleged in plaintiff’s complaint, your verdict will be for the plaintiff.”
The defendant asked instructions to the effect that if plaintiff was guilty of contributory negligence in permitting the child to go upon the track unattended, he could not recover unless the servants of defendant failed to exercise care to avoid the injury after they discovered the perilous position of the child; but the court modified them by adding language permitting the jury to find for the plaintiff, notwithstanding his contributory negligence, if by use of ordinary care the servants of the plaintiff could have discovered the perilous position of the child in time to have avoided the injury.
A child of tender years cannot be guilty of negligence, nor can the contributory negligence of the parent be imputed to it, so as to prevent a recovery in a suit brought by the child to recover damages for injury caused by the negligent act of another. But the father may, in a suit brought for his own benefit for the negligent killing of his child, be chargeable with negligence contributing to the injury. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1; St. Louis, I. M. & S. Ry. Co. v. Colum, 72 Ark. 1.
The court instructed the jury that, notwithstanding the contributory negligence of the plaintiff, he could recover if defendant’s servants in charge of the train were aware of the presence of the child upon the track, or by the exercise of ordinary care ■could have discovered its presence in time to have avoided the injury. This was erroneous.
It 'lias been repeatedly held by this court that the act' of April 8, 1891, known as the “lookout statute,” is not applicable in suits for injury to persons upon a railroad track whese the person injured was guilty of contributory negligence. Johnson v. Stewart, 62 Ark. 164; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245; Martin v. L. R. & Ft. S. Ry. Co., 62 Ark. 156; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364; St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380.
The statute is applicable to a suit by a child of such tender age as to lack sufficient discretion to be chargeable with negligence (St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 177); but not to suits brought by parents for their own benefits on account of injury to children of tender years where their own negligence contributed to the injury. St. Louis, I. M. & S. Ry. Co. v. Leathers, supra; St. Louis, I. M. & S. Ry. Co. v. Dawson, supra; St. Louis, I. M. & S. Ry. Co. v. Colum, supra.
“The true rule, which no amount of amplification can simplify, is that whenever the negligence of the plaintiff contributes proximately to cause the injury of which he complains, the defendant is not liable,” unless the defendant discovered the peril in time to avoid the injury by the use of ordinary care. Johnson v. Stewart, supra.
For the errors indicated, the judgment is therefore reversed, and the cause remanded for a new trial. | [
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McCulloch, J.,
(after stating the facts.) The defense put forth by the defendant was that the manner of the plaintiff’s injury was one of the ordinary dangers connected with and incident to the service which he was employed to perform, and that by virtue of his employment he assumed the risk; or that the injury resulted directly from the negligence of the plaintiff. Numerous exceptions were saved to the giving of instructions asked by the plaintiffs, and the refusal of certain instructions asked by the defendant. We do not deem it necessary to set forth and discuss all the instructions asked or given. The court correctly put the case before the jury upon the issue of negligence of defendant and contributory negligence on the part of the plaintiff.
Counsel for appellant especially complain at the following instruction, on the question of assumed risk, given on motion of plaintiff:
“7. If you find from the evidence that the foreman or superintendent directed plaintiff to oil the machinery while in operation, and the plaintiff requested him to stop the machinery for such purpose, and the foreman or superintendent refused to do so, but told plaintiff that it was not dangerous, or that he would not get hurt, then plaintiff would be relieved of any assumed risk, and would not be guilty of contributory negligence in obeying such direction, unless the danger was so patent that no person of ordinary prudence and care would have obeyed such direction, or unless, in the manner of obeying such direction and oiling said machinery, plaintiff acted as an ordinarily prudent person would not have done under the circumstances.”
It is urged that this instruction is defective as a definition of assumption of risk because it leaves out of consideration the fact that plaintiff might have actually known of the location of the set screw and appreciated the danger in oiling the machinery while in motion, even though the danger was not so “patent that no person of ordinary prudence and care would have obeyed such direction.” The instruction seems open to this objection, and, standing alone, would have been erroneous. But the deficiency in this instruction is supplied by others on the subject given at the request of appellant.
The court gave the following at the request of the defendant :
“9. If you find from the evidence that the plaintiff was employed to perform certain work and labor about the boll reel, at its oil mill, and one of his duties was to oil .its parts, you are instructed that he assumed the ordinary risks incident to this employment and also all- dangers which were obvious and apparent ; and if he continued in his work having knowledge, or by the exercise of reasonable care might have known the dangers involved, he is deemed to have assumed the risks, and to have waived any claim for damages against the defendant in case of personal injury. The true test is, not whether he did comprehend the danger, but whether he ought to have comprehended it, and he is chargeable with knowledge of such danger as he might have known and comprehended by the exercise of ordinary care; and, though the work of oiling the bearings of the boll reel might have been 'dangerous, he assumed all dangers and risks incident thereto.”
This instruction was more favorable to defendant than the law of the case warrants. The doctrine of assumed risk in such cases is so exhaustively treated in the case of Choctaw, O. & G. Rd. Co. v. Jones, ante, p. 367, recently decided by this court, and the principles therein announced so completely control this case, that we do not deem it necessary to renew the discussion here. It is clearly pointed out in the case just cited that the defense of assumed risk is based upon the voluntary and conscious exposure to the danger by the servant. When acting under the direct commands of the master, before the servant can be said to have assumed the risk, it must be found that he knew of the danger and appreciated it. It is not correct to say, in the language of the instruction just quoted, that “he is chargeable with knowledge of such dangers as he-might have known and comprehended by the exercise of ordinary care,” and assumed all the risk incident to the service he was performing. The instruction would have been applicable to a state of fact where the servant was proceeding in the discharge of his regular duties in the ordinary way, but not where he was proceeding under the command of the master, and in the face of a danger not incident to his ordinary duties. It entirely ignored the claim of plaintiff that he was, under the special direction of the foreman, oiling the machinery while in motion, and was assured by the foreman that it was safe to do so. However, the appellant can not complain that the instruction was more favorable than it was entitled to under the proof.
It is earnestly insisted by counsel for appellant that the evidence is. not sufficient to sustain the verdict, but we think it was sufficient. The contention of the plaintiff was that the defendant, through its foreman, was guilty of negligence in sending him up into the moving machinery where, in oiling it according to the command of his superior, his sleeve was caught by the set screw; and the injury resulted in consequence. He testified to the facts in support of this claim, and the j ury accepted his contention, and found in his favor. The gravamen of the charge of negligence against defendant was that it sent plaintiff into the moving machinery. The placing of the set screw was not claimed to be an act of negligence, nor is it claimed that the machinery was defective on that account. It was merely one of the conditions of the injury. The master was bound to know of the structural parts of the machinery furnished to the servant, and it was a question for the jury to determine whether 'it'was negligence to send the servant into the moving machinery for the purpose of oiling it. The defendant denied the charge of negli gence, denied that plaintiff was directed to oil the machinery while in motion, or that there was any set screw on the shaft. It introduced testimony in support of its contention, but the jury found for the plaintiff against what seems to be a preponderance of the testimony. It was for the jury to find from the evidence whether plaintiff acted under direction of defendant’s foreman, and whether it was negligence to do so under the circumstances, whether the set screw was in the position named, and whether the dangers of obeying the orders -of the foreman were so obvious and so patent that the plaintiff was guilty of contributory negligence in obeying them. The jury necessarily passed upon all these questions, and we can not say that the evidence was not sufficient to support the finding.
Judgment affirmed. | [
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Battle, J.
J. H. Skillern, as receiver of the assets of the Howard County Bank, an insolvent bank, brought an action against the Arkansas Woolen Mills, a corporation organized under the laws of this State, to recover the amount due on four promissory notes purporting to be exécuted by the defendant, and the sum of $908.25 paid on checks, purporting to be drawn by the defendant on the bank. The defendant answered, and denied that it executed the notes, and that it was indebted to the bank on any note or for money advanced to it on checks in any sum whatever. The defendant recovered judgment.
The defendant owned a mill, and in May, 1901, leased the entire “plant” to D. P. Terry, who was the cashier and managing officer of the bank, James J. Gebhart, and Ike Bowenberg, for the remainder of the year 1901. The lessees took possession of the mill, and operated it in the name of the lessor for their own account, and for their personal benefit. They kept an account with the bank in the name of the lessor, and transacted their business in its name. They overdrew the amount to their credit, and at the instance of Terry, one of the lessees and the cashier of the bank, and without authority of the defendant, executed the notes sued on for the balance due the bank at different times. The indebtedness of $908.25 was contracted in the same manner. The bank, through its cashier, and managing officer, had notice of all the foregoing facts as they occurred, and was not misled. The. defendant is not estopped from taking advantage of them, and is not indebted to the bank by reason of them.
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McCulloch, J.,
(after 'stating the facts.) 1. This is an action for frapd and deceit alleged to have been practiced by appellant upon appellee in the purchase of shares of corporation stock from the latter. The complaint is framed upon that theory. It is therein alleged that the defendant made false and fraudulent representations as to certain facts, and falsely and fraudulently concealed certain facts, and that plaintiff, “believing that all had been fully and fairly disclosed by defendant, agreed to sell and •did sell to defendant his stock” at the par value thereof, and that the actual value at that time was far greater than its par value, and that defendant at the time had a contract for resale of the stock at a far greater price. The undisputed evidence — the testimony of plaintiff himself — showed that plaintiff sold his stock •outright to the defendant, but plaintiff claimed that he was induced to do so by his reliance upon false representations and fraudulent concealments made by defendant.
The court, in express words, so characterized the action in ■one of its instructions given at the request of the defendant, and told the jury that, “before the plaintiff would be entitled to recover, he must prove by a fair preponderance of the evidence the alleged" false representations,” that they were known by the defendant to be false, and were relied upon by plaintiff. Yet the court in other instructions allowed the case to go to the jury upon an entire different theory, i. e., that the defendant was acting as agent of the plaintiff in the sale of the stock, and had fraudulently concealed the price received for it, and failed to account to plaintiff, his principal, for the full price -received. The two theories are inconsistent with each other, and these instructions are conflicting, for, if the defendant bought the stock outright from plaintiff, he could not have then been the agent of plaintiff for the sale of the stock, and could not be held to account, in an action for damages, for the price he received on a resale of the stock, though he would be liable in such action for damages resulting from his acts of fraud and deceit, the measure of which would be the difference between the price paid to the plaintiff for his stock and the actual value thereof at the time, if the latter exceeded the former. 4 Suth. Dam. § § 1171, 1172; Potter v. Necedah Lumber Co., 105 Wis. 25.
Instruction number one given by the court 'is-as follows: “If you find from the evidence in this case that the plaintiff gave to the defendant general authority to sell or dispose of his (plaintiff’s) stock along with his (defendant’s) in the Montreal Coal Company.; that thereafter defendant, while the plaintiff was absent from the State, at Battle Creek, Michigan, entered into a contract with a third party for the sale of the entire issued capital stock of said coal company at the price of approximately $33,000 for the $24,000 of said issued capital stock, and, after having made said contract, he (defendant) attempted to acquire and did acquire the stock of the plaintiff for a less sum of money than he had contracted to and did sell the same for, you will find for the plaintiff in the sum equal to the difference between what defendant paid Williams for his- (Williams’s) stock and what he (defendant) got for said stock, unless you further find from the evidence in the case that defendant, before acquiring plaintiff’s stock, explained fully ‘to plaintiff his (defendant’s) contract of sale of said stock to such third party, or that the plaintiff knew, or in the exercise of a due degree of caution ought to have known the facts in regard to the contract for the sale of the stock.”
This instruction, aside from erroneously putting the case before the jury upon a theory inconsistent with the pleadings and proof, is incorrect in that it cuts off, as a matter of law, all right of the defendant to purchase the stock from plaintiff because of the fact alone of the latter having previously authorized him to sell the stock, regardless of any severance of the relation of principal and agent, and regardless of the question whether plaintiff was then, relying upon defendant Tor a full disclosure of all the facts or had the right to so rely.
Even though the relation of principal and agent subsisted between the parties, they had the power to dissolve that relation.. If they did so, and the circumstances and further transactions between them were such as to absolve the quondam agent from disclosure of facts coming to his knowledge, then he could with propriety deal with the former principal without making such disclosure. These are questions of fact for trial juries, to determine, and not matters of law for the court. Upon the statement of facts made by the defendant, he had the right to have these questions passed upon by the jury, but the instruction just quoted entirely eliminated them from consideration.
The fourth instruction given by the court is open to the same objection, and was erroneous. The second was ■ erroneous, because it declared the wrong measure of damages according to the rule hereinbefore announced.
2. The court gave, over the objection of the defendant, the following instructions:
“The court tells you, as a matter of law, that if you find from the evidence in this case that McDonough telegraphed Williams an offer to pay for his (Williams’s) stock, and Williams received such telegraphed offer, and, before McDonough withdrew such offer, Williams telegraphed McDonough an acceptance of such offer, and you believe said offer or acceptance was not modified, then a contract was thereby made between McDonough and Williams for the sale of Williams’s stock at par to Mc-Donough, and all that occurred thereafter between McDonough and Williams, as shown by the testimony in this case, except the mere fact of the actual transfer of the stock, is immaterial to this case, and should be disregarded utterly by you, unless you believe that what occurred thereafter tends to explain the sale of stock; and the mere fact of the actual transfer is only material as showing compliance with the contract of sale into which Williams entered.
The ground of appellant’s objection to this instruction is chat there was evidence tending to show that, after plaintiff sent the message from St. Eouis agreeing to sell the stock at par. he received information of the alleged fraud and deception, and. after receipt of such information, he proceeded to perform the contract, thereby waiving the alleged fraud.
The question therefore arises: Can the vendor in an executory contract for the sale of corporation stock or other personal property, who has been induced by fraud and deceit to enter into the contract, and who subsequently performs the contract by delivering the property and receiving the purchase price after discovery of the fraud, maintain an action for damages for the fraud ? It seems clear to us, upon principle, that he cannot, though a search of the adjudged cases reveals a paucity of authority on the precise question. Authority is not, however, entirely lacking to sustain the proposition that the fraud is waived under such circumstances. Thompson v. Libby, 36 Minn. 287; Thweatt v. McLeod, 56 Ala. 375; Gilmer v. Ware, 19 Ala. 252; Schmidt v. Mesmer, 116 Cal. 267; Western Elec. Co. v. Hart, 103 Mich. 477; Edwards v. Roberts, 7 Sm. & Mar. 544.
In Thompson v. Libby, supra, Judge Mitchell, speaking for the court, says:
“If the contract be executed in whole or part before the fraud is discovered, it is well settled that the purchaser need not rescind, but may retain the property, and also bring his action for damages on account of the deceit. But to allow a purchaser who has discovered the fraud while the contract is still wholly executory to go on and execute it, and then sue for the fraud, looks very much like permitting him to speculate upon the fraud of the other party. It is virtually to allow a man to recover for self-inflicted injuries. The fraud is really consummated, and the damages incurred, by the acceptance of the property and paying for it. And if this is done after the fraud is discovered, the purchaser cannot say that he sustained this damage by reason of the fraud. It seems to us that if a party discovers the fraud before he enters upon the performance of the contract, he must • decide whether he will go on under it or rescind. He cannot say it is a good contract for the purpose of authorizing him to accept, the property, but not binding on him as to the price to be paid for it.”
An executory contract which has been procured by fraud is not binding upon the party against whom the fraud has been perpetrated. He may, after discovering the fraud, either perform it or rescind it; and if with knowledge of the fraud he elects to perform it, this is equivalent to his making a new contract, and to permit him under those circumstances to recover for a fraud would be to do violence to every rule upon which compensatory damages are allowed. We are aware that there are some cases which appear to hold to the contrary, but upon examination they will generally be found to be cases where the contract had been executed wholly or in part when the fraud was discovered, or where the fraudulent representations were treated as warranties, and damages awarded for breaches thereof. Whitney v. Allaire, 1 N. Y. 305; Johnson v. Culver, 116 Ind. 278; Nauman v. Oberle, 90 Mo. 666. Of course, where the representation to a purchaser amounts to a warranty of title, value or quantity, he may, without waiving the breach of the warranty, execute the contract and sue for the breach. The case of Haven v. Neal, 43 Minn. 315, is sometimes quoted as holding that performance of an executory contract after discovery of the fraud is not a waiver of the right to sue for the fraud, but in that case the contract had been partly executed when the fraud was discovered.
We hold that no action can be maintained for the damages where the contract is executed after the discovery of the fraud, and the court erred in so instructing the jury and in excluding evidence tending to establish the fact that appellee knew of the alleged fraud when he consummated the sale by transfer of the stock.
The court gave other instructions to the effect that plaintiff could not recover if he had information of the alleged fraud, but he qualified each by a proviso that the jury must first find that the contract of sale was modified. By this qualification the court doubtless had reference to the question whether the contract was changed from a stipulation for sale partly on credit to a sale for cash. The terms of the contract of sale were evidenced by the written letters and telegrams, and it was the duty of the court to construe the contract and declare its terms to the jury, but •.whether this change amounted to a modification of the contract or not, it was still executory until the sale was completed by the transfer of the shares of stock.
3. The court erred in excluding evidence offered by appellant tending to show the value of the corporation stock at the time of the sale. The rule hereinbefore declared as to the measure of damages rendered it competent to show the value of the property sold. If the stock was worth no more than the price received by appellant for it, then he was not damaged. 4 Suth. Dam., § § 1711, 1712; Potter v. Necedah Lumber Co., supra.
4. Appellant challenged the legal sufficiency of the evidence by a request for peremptory instruction to the jury to return a verdict in his favor, and we are now asked to dismiss the case for the same reason, instead of remanding it for a new trial. We are not prepared to say that the evidence is not sufficient to sustain ' a verdict for the plaintiff under proper instructions. It is clear from the evidence that the final transaction between the parties was a sale by plaintiff to defendant of his stock, not a sale by the defendant as agent of plaintiff, and that the defendant was not acting as plaintiff’s agent in the resale'to Bache. Therefore, as before stated,, the evidence is not sufficient to hold the defendant in damages to account as agent of the plaintiff for the amount he received for the stock in the resale to Bache. But there is evidence tending to establish a relation of trust and confidence between the parties extending up to the final consummation of the transfer of stock by plaintiff to defendant. It is therefore a question of fact for a jury to determine, under proper instructions, whether, notwithstanding the severance of the relation of principal and agent, the confidential relation continued up to the time of the sale, and, if so, whether the plaintiff, on account of that relation, relied upon the defendant to disclose information concerning the prospective resale to Bache at a higher price than the par value, and whether the defendant, knowing of such reliance, concealed the information from plaintiff or from Ball and Boone when he knew they were the trusted advisers of plaintiff, and consummated a purchase of plaintiff’s stock at par in view of a certain resale at a much higher price. These are inferences of fact which the jury could have drawn from the evidence, and we cannot say that the evidence was insufficient to warrant an inference favorable to plaintiff’s contention, so as to entitle him to a verdict.
There was no evidence that the defendant misrepresented the financial condition of the company either to the plaintiff or to Messrs. Ball and Boone, or that he misrepresented the urgent attitude of the creditors of the concern, and that issue should have been withdrawn from the consideration of the jury.
5. Many exceptions were saved below to alleged misconduct of plaintiff’s counsel during the progress of the trial; but, as the cause must be reversed for the reasons already stated, we assume that the conduct complained of will not occur again in the trial anew, and we do not deem it necessary to discuss these exceptions, or to determine whether appellant was prejudiced thereby, further than to say that the remarks were improper, and should not have been indulged in.
For the errors indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Riddick, J.
This is an action by the Little Rock Trust Company against E. H. Lake and E. H. Smith for the balance of $1,134.18 due on a promissory note. This note for the sum of $5,000 was executed on the 6th day of September, 1902, and was made payable to the Bank of Little Rock, or order, on the first day of October following. The signature to the note is as follows: “El Dorado Compress Co., by E. H. Lake, Pres’t, E. H. Smith, Sec’y.” The names of E. H. Lake and E. H. Smith were also written by them on the back of the note. When the note was delivered to the cashier of the bank, he at once transferred the, note to the Little Rock Trust Company, which paid the bank the face value thereof in currency, and the bank gave credit therefor as directed by the makers. To further secure the payment of the note, certain shares of the stock of the El Dorado Company were pledged with the note.
There was a judgment in the circuit court against both o'f the defendants for the balance due on the note. They appealed, and now contend that the judgment should be reversed.
In our opinion the court did not err in refusing to hear evidence tending to show that the value of the compress company stock pledged as collateral security for the payment of the note had depreciated while in the hands of the holders of the note. This evidence was immaterial unless the holder of the note and stock was under obligation to sell the stock if the debt was not paid at the maturity of the note. But there was nothing in the contract by which the stock was pledged that made it the duty of the bank or the trust company to sell such stock, and they were under no obligation to do so. The contract not only did not require the bank or trust company to sell the stock, but they were never requested or notified by defendants to sell it. Under these circumstances, it is very clear that plaintiff is not liable to defendant for any depreciation in the value of such stock, and the evidence tending to show depreciation was properly excluded. Culver v. Wilkerson, 145 U. S. 205; Granite Bank v. Richardson, 7 Metc. (Mass.) 407; Jones on Pledges, § 606.
The next and main contention of counsel for appellant is that • the defendant Smith never indorsed' the note until after it was delivered to the bank, and that, as he received no part of the money paid for the note, his indorsement was without consideration. If the undisputed evidence showed that this indorsement was made by Smith after the note was delivered, there would be much force in this contention, but there was conflict in the evidence on this point. The cashier of the bank and several other witnesses testified that, although this note .was dated September 6, 1902, it was not delivered to the bank until two days later, and that, when delivered and accepted by the bank, the names of E. H. Lake and E. H. Smith were both indorsed on the back of the note. The presiding judge told the jury that the liability of Smith in the action depended on the question of whether or not he signed the note before it was accepted by the bank. The jury were instructed that, if Smith signed the note before it was delivered to the bank, he was liable as one of the makers; but that, if the signature of Smith was not indorsed on the note until after it had been accepted by the bank and the money advanced on it, they should find in favor of the defendant Smith. The question submitted to the jury was whether Smith wrote his name on the note before or after its delivery to the bank. The verdict shows that the jury found that it was placed on the note before it was delivered to the bank. This finding is not only supported by the witnesses who testified for the plaintiff, but it is also in accordance with the agreement which defendant Lake testified that he made with the bank before the note was executed. Lake testified that when he went to the bank to borrow the five thousand dollars he told the cashier that he would give a note signed by the El Dorado Compress Company with 1600 shares of the compress company’s stock attached as collateral, and that he and E. H. Smith would indorse the note. Now, why were he and Smith to indorse this note? Evidently, to add to the value of the note, and to induce the bank to lend money on it. But this court has repeatedly held that when one, in order to give the maker of a note credit with the payee, writes his name on the back of the note before delivery and acceptance thereof by the payee, he, so far as the holder of such note is concerned, is to be considered a joint maker of the note, and liable as such. Heise v. Bumpass, 40 Ark. 546; Killian v. Ashley, 24 Ark. 511.
The fact that Lake used the word “indorse,” and told the bank that he and Smith would “indorse” the note, does not take this case out of the rule announced in the cases above cited, for an agreement to indorse the note before delivery to the payee in order to induce the payee to lend money on the note is, in effect, an agreement to become a joint maker of the note. There is a-sharp conflict in the evidence as to whether Smith indorsed this note before or after its delivery to the bank, but that question was settled by the finding of the jury.
We find n'o error in the instructions, and the judgment is therefore affirmed. | [
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McCulloch, J.
This suit was originally commenced at law in the circuit court of Mississippi County by appellee, C. H. Gaylord, against appellants, Wilson and Beall, to recover possession of the tract of land in controversy, and damages in the sum of $1,000 for timber alleged to have been cut by defendants. On motion of defendants, the cause was transferred to the chancery court, and a final hearing there resulted in a decree in favor of the plaintiff for recovery of the land and the value of the timber cut by the defendants.
. Appellee, in his complaint, set forth the following claim of title, under which he claimed to be the owner of the land:
(1) United States to the State of Arkansas, swamp land grant, September 28, 1850.
(2) State of Arkansas to John T. Hanks, certificate of entry, 1858.
(3) Deed from commissioner in chancery to plaintiff under sale made pursuant to the decree of the chancery court of Mississippi County in suit of Board of Directors of St. Francis Levee District against FI. and F. Iiigginson, condemning the land for sale to pay levee taxes of 1893.
Defendant Wilson filed a separate answer, admitting that he was in possession of the land as alleged, but denying that plaintiff was owner thereof. He claimed, in his answer, title to the land under a patent issued March 9, 1859, by the State of Arkansas to L. L. Johnson and John C. Palmer as assignees of John T. Flanks, and deeds from the heirs of Johnson and Palmer; but the record does not show that any^evidence was introduced in support of his alleged claim of title. So the case rests upon the strength of the title of the plaintiff, who must succeed, if at all, upon that, and not upon the weakness of defendant's title. Nix v. Pfeifer, 73 Ark. 199; St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 387.
The plaintiff, to make out his title, shows a conveyance made to him by a commissioner in chancery pursuant to a decree of that court rendered in 1894 in a suit brought against H. and F. Higginson by the Board of Directors of St. Francis Levee District to enforce payment of the levee taxes of 1893. It is not proved, however, that the Higginsons ever had title to the land. This decree and the sale thereunder establish no more than that the titl»e possessed by the Higginsons passed to the plaintiff by virtue of his purchase under the decree. The suit was by the board of directors against H. and F. Higginson in personam, and affected the rights of no persons who were not parties to that proceeding. The suit was brought against the Higginsons as defendants, and the decree was, in terms, a personal one against them for the amount of the levee taxes, penalty and cost, and a lien on the land was declared therefor. A decree in a personal action binds only the parties thereto and their privies, and a sale thereunder passes only such title as the parties thereto had at the time of the decree or sale. Kirby’s Digest, § 6321; Wilson v. Spring, 38 Ark. 192; Thomas v. Hinkle, 35 Ark. 450; McConnell v. Day, 61 Ark. 464; Roulston v. Hall, 66 Ark. 305; Greenstreet v. Thornton, 60 Ark. 374; 17 Am. & Eng. Enc. Law, p. 1010; Eldred v. Johnson, 75 Ark. 1; Hassall v. Wilcox, 130 U. S. 493.
In Greenstreet v. Thornton, supra, this court, speaking of a suit to enforce payment of a local improvement tax on real estate in a city, said:
“Where it is not alleged that the owner is unknown, and the proceedings are against a certain person named as defendant, and alleged to be the owner of the property, then, whether there .be actual service upon him, or only constructive service in the manner designated by the statute, it is notice to him only, and the decree affects only his interest in the land, whatever it may be, and no one else is bound' by it.” Waples, Proc. in Rem. § 628; Windsor v. McVeigh, 93 U. S. 274; Hassall v. Wilcox, 130 U. S. 493.
The proof was insufficient to establish title in the plaintiff. Reversed and remanded, with direction to enter a decree dismissing the complaint. | [
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Battle, J.
Louis Rohr sued Kenefick-Hainmond Company for damages on account of personal injuries caused by a blast and received by him. Sometime in June, 1903, defendant was engaged in constructing a railway through Boone County, in this State, for the St. Louis, Iron Mountain & Southern Railway Company. Plaintiff was in its employment. At the particular place where he received the injuries of which he complains, construction work was being done on the line of the road, which ran along the side of a mountain about 250 yards from the valley below. Laborers in the employment of the defendant were engaged in making a cut. Two sets of men were drilling holes into the earth and rock for the reception of powder for blasting. A portable boiler was used to furnish steam to operate the drills. It was stationed in the valley about 250 yards from the drills; and plaintiff and an assistant operated the same. On account of the character of the ground, trees and underbrush intervening, plaintiff at the boiler and the men at the drills could not see each other. When a drill hole was finished, Mike Moraierty, one of the defendant’s employees, charged it with powder, and he testified that he then hallooed “Fire!” as a signal to those at the boiler that the blast was about to be fired. But plaintiff testified that he never heard it. Anyhow, rules and regulations were adopted requiring it to be given for the protection of those at the boiler, and to allow them time to get out of danger; and it was the duty of Moraierty to give it in such a manner as it would be heard. Be this as it may, the blast was fired, and the plaintiff was injured by rocks thrown upon him by the explosion. Upon these facts the jury impaneled to try the issues in this case returned a verdict in favor of the plaintiff, and the defendant appealed.
In many of the instructions given by the court, the jury were told that the appellee was not entitled to recover if his injuries were' caused by the negligence of a fellow-servant, but failed to tell them what is necessary to constitute a fellow-servant in cases like this, except as follows:
“In determining who are fellow-servants, I instruct you that the true inquiry in each case is, was the accident one of the natural and normal risks in the ordinary course of business ? If so, then there is no common-law liability on the part of the employer. If not, there is such liability, and the-inquiry, except as it bears on the evidence in this case, is not one of grades and departments.”
This instruction was given over the objections of the appellant. It is vague, and should not have been given.
In instructions given as to the right of appellee to recover on account of injuries caused by the negligence of fellow-servants the jury were left to decide who are such persons. The court erred in so doing. Appellant requested an instruction upon this subject, and the court is not excusable for overlooking the same.
Inasmuch as this cause will be remanded, we will undertake to show who are fellow-servants in cases like this. In Railway Company v. Triplett, 54 Ark. 289, 296, the court, in speaking of this class of persons and the risks assumed by a servant and for which the master is not liable, said: “The true reason on which the rule is based, as shown by the great weight of authority, is that a person who voluntarily engages in the service of another presumably assumes all the risk ordinarily incident to that service, and fixes his compensation with a view to such risks. * * * If this be the principle underlying the rule, it would seem that the question which forms a test in any case is one of risk. And that where one servant is shown to have been injured by. another, the question is, not whether the two servants were fellow-servants in any technical sense of the term, but whether the injury zvas within the risk ordinarily incident to the service undertaken.”
According to Railway Company v. Triplett, supra, persons employed by the same master to accomplish one common object and so related in their labors performed in the service of the master as ordinarily to be exposed to injuries caused by each other’s negligence are fellow-servants. There are still such persons under the laws of this State in cases in which the statutes have not defined who they are. For a further discussion of this subject, see Railway Company v. Triplett, supra; St. Louis Southwestern Railway Company v. Henson, 61 Ark. 302; St. Louis, Iron Mountain & Southern Railway Co. v. Brown, 67 Ark. 295, 302.
The court further instructed the jury, in part, over the •objections of the appellant, as follows:
“I instruct you that if you find from a preponderance of the evidence that the defendants, Kenefick and Hammond, placed the plaintiff, Louis Rohr, at the boiler as proved, and that while he was •engaged in the labors they caused, through other laborers in their employment, an explosion of powder in a hole drilled for that purpose, and that he did not know of, and could not have known of, the existence of the intended explosion, and that they did not provide for him an adequate and sufficient warning, and that he was not warned, and that by reason of the failure to so warn him he was injured by the explosion, then I instruct you that the defendants, Kenefick and Hammond, had not provided for the plaintiff a reasonably safe place; and if you so find, your verdict will be for the plaintiff. You will so find, even if you find that another employee did not do his full duty, and this employee was a fellow-servant with plaintiff.”
In Railway Company v. Triplett, 54 Ark. 299, it was held that a master may adopt such rules and regulations for the protection of his servants as would be sufficient for that purpose when faithfully observed by his employees, and when the circumstances are such that a reasonably prudent person might rely upon rules and regulations to afford protection; and that if he “sees proper to rely upon such methods of protection to'his servants, and the occasion demands it, he should also adopt such measures as may be reasonably necessary to secure the observance of such rules.”
In the case at bar, the master adopted a rule or regulation for the protection of his servants by requiring a certain signal to be given in time to warn. Whether it was reasonable and sufficient was a question of law to be decided by the court, and not by the jury. Railway v. Adcock, 52 Ark. 406; Railway Co. v. Hardy, 55 Ark. 134; Railway Co. v. Hammond, 58 Ark. 324; Western Union Telegraph Co. v. Love Banks Co., 73 Ark. 205, 208; Little Rock & M. Railway Co. v. Barry, 84 Fed. Rep. 944. But the court, in instructing the jury as before stated, left them to decide whether the rule adopted was sufficient. In this the court erred.
Reverse for the errors indicated, and remand for a new trial. | [
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Riddick, J.
In 1902 Walter Henry took out a. policy of insurance on his life for the sum of $3,000. The policy was made payable on the death of Henry to his executors, administrators or assigns. At the time this policy was taken out Henry was a. widower with three minor children, the eldest being about thirteen yearsof age. Mrs. M. E. Bledsoe,the mother of his deceased wife, lived with him, and assisted in caring for his children. He died in 1903. A day or two before his death he wrote on the policy the words, “Pay the within policy to M. E. Bledsoe,” signed his name to it, and then delivered the policy to Mrs. Bledsoe. His intention was no doubt to assign the policy to her that the proceeds thereof might be used in*the support of herself and his three children, which he placed in her care.
At the time of his death, and when this assignment of the policy was made, Henry was insolvent. Afterwards the administrator of his estate brought this action to set aside this transfer of the policy by Henry to Mrs. Bledsoe, and to recover the amount of the policy from the insurance company. Pie asked that the assignment be set aside on two grounds; first, on the ground that -it was procured through fraud and undue influence of Mrs. Bledsoe upon Henry at a time when, by reason of mental and physical weakness, he was incapable of understanding the nature or effect of the act done; second, he asked that it be set aside on the ground that the assignment was a conveyance of the property of Henry without consideration, and therefore fraudulent and void as to the creditors of Henry.
Mrs Bledsoe appeared, and. filed an answer, in which she denied the fraud, and alleged that the assignment of the policy was made to her in trust for the use and benefit of the children of Henry, and for the purpose of educating and maintaining them.
Thereafter the Shibley & Wood Grocery Co., a creditor of Henry, filed a petition in its own behalf, and in behalf of all the other creditors of Henry, asking to be allowed to interplead in the action on the ground that the estate of Henry was insolvent, and that the assignment of the policy was fraudulent and void as to creditors; but the court refused to permit the company to become a party, and denied its petition. No appeal was taken from this judgment.
The insurance company paid the amount of the policy into court, and asked to be discharged from further liability.
On the final hearing the chancellor held that Henry had the right to insure his life and assign the policy to his mother-in-law, Mrs. Bledsoe, for the use of herself and his children, and he dismissed the complaint for want of equity. The plaintiff appealed.
The fir.st question presented for our decision is whether the administrator can challenge the validity of the assignment of this policy on the ground that it is fraudulent as to creditors. There is no evidence tending to show that Mrs. Bledsoe or any one else perpetrated any fraud upon Henry, or induced him by undue influence to make this assignment. If the assignment had been procured through fraud perpetrated upon Henry by Mrs. Bledsoe, neither Henry nor his administrator would have been bound by it. But the evidence shows that Henry, when he recognized that the end of life was near, made this transfer of his policy of his own volition, and for the purpose of enabling his mother-in-law to maintain and care for his minor children that he left in her care; and that it was done without solicitation on the part of Mrs. Bledsoe. If there was any fraud, it was the fraud of Henry against his creditors.
If we concede, then, that this assignment was fraudulent as to creditors, for the reason that it was made without consideration at a time when Henry was insolvent, that would amount to nothing in this proceeding unless the administrator can attack the transfer on that ground; for, while one of the creditors filed a petition to be made a party, this petition was rejected, no appeal was taken, and the only party asking relief before us is the administrator of Henry. But it is well-settled law in this State that voluntary conveyances made in fraud of the rights of creditors are valid and binding between the parties thereto, their heirs, executors, and administrators. Anderson v. Dunn, 19 Ark. 650; Jordan v. Fenno, 13 Ark. 595.
A recent statute has changed the law on this subject as to conveyances of real estate made without consideration in fraud of creditors, and provides that the administrator or executor may recover land so conveyed by the decedent for the benefit of the heirs. Kirby’s Digest, § 81. But that statute does not refer to transfers of personal property, and the law as to the fraudulent conveyances of such property remains as it was before the statute. We are therefore of the opinion that the administrator of Henry cannot object to the assignment of -this policy on the ground that Henry was insolvent, and that it was fraudulent as to his creditors.
But it is said that Mrs. Bledsoe had no insurable interest in the life of Henry, and that the assignment was void for that reason. The law does not allow one having no interest in the life of another to speculate upon that life by taking out a policy of insurance upon it; and if Mrs. Bledsoe had taken out this policy on the life of Henry in her own name, there might be some question as to whether she had such an interest in his life as would support the policy. But every person has an insurable interest in his own life; and, as Henry had the right to take out a policy on his own life, payable to his administrator or assigns, it is not disputed that this policy was valid. The policy being valid and belonging to Henry, he had, on the approach of death, the same right to give and transfer this property to any one in whose welfare he felt an interest as he had to dispose of any other property that he owned. Gordon v. Ware National Bank, 132 Fed. Rep. 444; Lamont v. Grand Lodge, 31 Fed. Rep. 177; New York Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591; Mutual Life Ins. Co. v. Allen, 138 Mass. 24.
There is no pretense that this assignment was made as a cover for a wager policy. Moreover, the assignment was made to the mother-in-law of Henry with the intention that she should become on his death the custodian of his minor children, and under such circumstances she had an insurable interest in his life.
As before stated, the question of whether this transfer was void as to creditors cannot be considered in this proceeding, the creditoi's not being parties here; and, leaving-that out, we entertain no doubt that the assignment of the policy to' Mrs. Bledsoe was valid both in form and legal effect.
On the whole case, we are of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Battle, J.
Chapman & Dewey Land Company, a corporation organized under the laws of the State of Missouri, brought a suit against Charles PI. Bigelow, N. P. Bigelow, L. T. Walker and F. PI. Hartshorn to quiet title to certain lands, and for that purpose to have declared void and of no effect certain conveyances under which the defendants claim title thereto.
Plaintiff claims title under an act of Congress entitled “An act to enable the State of Arkansas and other States to reclaim the Swamp Lands withiji their limits,” approved September 28, 1850. It alleges that, in pursuance of the provisions of this act, surveyed sections and parts of fractional sections in fractional township twelve north of the base line, in range six east of the fifth principal meridian, and in township twelve north of the base line, in range seven east of the fifth principal meridian, and in Poinsett County, in this State, were duly selected, approved and patented to the State of Arkansas as a part of the Swamp Land Grant; that certain of these lands were conve)red by the State of Arkansas, on the 12th day of June, 1871, to Moses S. Beach; that plaintiff acquired, and is the owner of, these lands so conveyed to Beach, as well as certain other of the lands which were deeded to the State of Arkansas by the United States; that many of the legal subdivisions of sections so acquired by plaintiff were bounded by a large body of non-navigable water called in the official surveys of the United States and field notes thereof as the “Sunk Lands,” “St. Francis River Sunk Lands,” the “Hatchie Coon Sunk Lands,” and the “Cutoff Lake;” that the legal subdivisions so bounding were fractional, and in the survey were meandered along such body of water. The plaintiff thereupon claims the lands lying under this body of water; and these are the lands in controversy in this suit to which it (plaintiff) seeks a decree to quiet its title as against the defendants. Plaintiff alleges that these lands are wild, unimproved and unoccupied, and that the defendants are claiming them under certain deeds; and asks that these deeds be declared void, invalid, and of no force whatever. -
The defendants answered, and denied that the so-called “Sunk Land” was a body of water, or that it is shown to be by the surveys of the United States or the field notes; but alleged that it was sometimes temporarily flooded with water, and was land bearing “trees and vegetables, willow and cypress;” and that the meandered lines run as alleged by plaintiff were run as boundaries, and not for the purpose of finding the number of acres in the sections or legal subdivisions “for which purchasers would have to pay when the Government might dispose of the land.”
The chancery court, after hearing the evidence adduced by all the parties, dismissed the complaint for want of equity, and rendered judgment in favor of the defendants for costs; and the plaintiff appealed.
We have attempted to state briefly so much of the pleadings in the case as presents the issue for our consideration. Before noticing the facts, we will consider the law of the case.
In Hardin v. Jordan, 140 U. S. 371, the court, after an extensive review of authorities, held that, “by the common law, under a grant of lands bounded on a lake or pond which is not tide-water and is navigable, the grantee takes to the centre of the lake or pond, ratably with other riparian proprietors, if there be such.”
Horne v. Smith, 159 U. S. 40, was an action to recover the possession of certain lots. “Plaintiff’s title rests on a patent from the United States, dated March 20, 1885, conveying-'lot numbered seven of section twenty-three, and the lots numbered one and two of section twenty-six, in township twenty-nine south, of range thirty-eight east of Tallahassee meridian in Florida, containing one hundred and seventy acres and forty-two hundredths of an acre, according to the official plat of the survey of the said lands returned to the General Land Office by the surveyor general.’ The official plat of township 29 was in evidence, which showed that sections 23 and 26 were fractional sections bordering on the Indian River. On this plat a meander line runs through the sections from north to south, the Indian River being on the west thereof. The east line of the sections is, so far as these 'ots are concerned, the ordinary straight line of government sur veys. In the south half of the southeast quarter of section 23 is lot 7. The area of that lot is given as 73.06 acres. The northeast quarter of section 26 is divided into lots 1 and 2. The area of lot 1 is 54.90 acres, and of lot 2, 42.53 acres. The boundary lines of these three lots are all straight with the exception of the meander line on the west. The length of the section line between lot 7 and lot 1, extending from the east section line to the meander line on the west, is stated to be 30.55 chains. Along the course of this meander line, as shown on the plat, runs, according to the testimony, a bayou or savannah opening into Indian River, and west of this bayou, and between it and the main waters of the river, is a body of land extending in width a distance of a ‘mile or a mile and a quarter, and amounting to some 600 acres. This is a body of low land, in some places, however, from four to six feet above the level of the river, and covered with a growth of live oak trees, many of them three and four feet in diameter. ■ It was not land formed by accretion since the survey.”
Mr. Justice Brewer, in delivering the opinion of the court, said: “But the question in this case is whether the boundary of these lots is the bayou or the main body of the river. That a water line runs along the course of the meander line cannot, of course, in the face of the plat and survey, be questioned, but that the meander line of the plat is the water line of the bayou, rather than that of the main body of the river, is evident from these facts. In the first place, the area of the lots is given; and when that area is stated to be 170 acres, it is obvious that no survey was intended of over 700 acres. In the second place, the meander line, as shown on the plat, is, so far as these lots are concerned, wholly within the east half of sections 23 and 26, while the water line of the main body of the river is a mile or a mile and a quarter west thereof, in sections 22 and 27. Again, the distance from the east line of the section to the meander line is given, which is less than a quarter of a mile, while the distance from such east line to the main body of the river must be in the neighborhood of a mile and a half. Further, the description in the patent is of certain lots in sections 23 and 26, and, manifestly, that was not intended to include land in sections 22 and 27. These considerations are conclusive that the water line which was surveyed, and made the boundary of the lots, was the water line of the bayou or savannah, and there has been simply an omission to make any survey of the tract west of the bayou, and between it and the main body of the Indian River.”
Again he says: “But it is said that, because the water mentioned on the plat is called Indian River, the boundary must be taken as the water line of the river, and cannot be that of any intermediate bayou. * * * In the case before us, obviously', the surveyors surveyed only to this bayou, and called that the river.”
French-Glenn Live Stock Company v. Springer, 185 U. S. 47, was an action to recover possession of a certain tract of land. “To support its contention, the plaintiff in error put in evidence, at the trial, an official plat of the government survey of township 26 south, range 31 east of the Willamette meridian, showing the township rendered fractional by abutting upon the meander line along the south side of Malheur Lake, which plat appears to have been approved by the Land Department and filed in the .local land office on September 17, 1877. The plat shows lots 3 and 4,' section 34, and lots 1 and 2, section 35, as bounded on the north by the meander line of Malheur Lake.” The plaintiff in error purchased these lots of the State of Oregon. He contended that he bought in reliance upon the plats and patents which showed the meander line of the lake, and that “such plats and patents must be deemed to conclusively establish that the lake was the northern boundar-y of the land, so far as the rights of riparian grantees are concerned.” The court held, that' “while, if there was a lake abutting on or to the north of the lots, the plaintiff would take all land between the meander line and the water, and all accretions, it was competent for the defendant to show that there was not, at the time of the survey nor since, any such lake, and to contend that in such a state of facts there could be no intervening land, and no accretion by reliction.”
In Niles v. Cedar Point Club, 175 U. S. 300, the facts are, in part, as follows: “In the years 1834 and 1835 Ambrose Rice, a deptUy' surveyor, surveyed and subdivided into sections and quarter sections fractional township 9 south, in range 9 east, and townships 9 and 10 south, in range 10 east, the same being situated in the northern part of Ohio and adjacent to Lake, Erie. From his field notes, duly certified to the surveyor general of that land district, the latter prepared a correct plat of the townships, showing the subdivisions thereof, and marking all the actual survey lines and the errors designated by said survey. By the field notes and plat, certain sections appear to be fractional, the line on the north being meandered in a general direction from the northwest to the southeast. The tract to the north of this line was described as ‘flag marsh’ and ‘impassable marsh and water.'
* * * * * * * *
“In 1881 John B. Marston, under instructions from the General Land Office, surveyed and subdivided into sections and quarter sections the area marked upon the surveyor general’s plat, above referred to, as ‘flag marsh’ and ‘impassable marsh and water.’ * * * Disclosing the condition of these lands, paragraphs. 16 and 17 of the statement of facts are as follows:
“ ‘At the time of the making of the survey by Ambrose Rice the waters of Lake Erie were above their ordinary stage, and there was more than the usual volume of water standing upon the land in controversy herein and flowing to and upon the same from the large bodies of land now in Ottowa, Wood and Lucas counties, respectively, having their drainage to and through the said premises in controversy herein.
“ ‘17. The general character, description and condition of the said land surveyed by said Marston was by him correctly set forth under the title ‘General Description’ in the field notes of the said survey so as aforesaid by him certified to the Commissioner of the General Land Office.
“ ‘That concerning the portion of said survey in township 9 south, range 9 east, reciting, towit:
“ ‘The surface of that part of this fractional township comprised in this survey is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Many parts of it, particularly in the south and west parts, are mown for a kind of a coarse hay. Other parts are filled with bogs and pond holes that do not dry in summer. It receives the natural drainage from the woods on the south and west, which, without any well-defined channel, finds its way across the marsh to the lake. Again, in heavy gales of wind it is subject to inundations from the lake, which, upon subsidence of the gale or change of direction in the wind, slowly finds its way out again into the lake. It is bounded along the lake by a sand beach averaging 1 chain in width and 3 feet in height.
“ ‘That concerning the portion of said survey in township 9 south, range 10 east, reciting, towit:
“ ‘The surface of this fractional township is covered with a deep marsh of grass, canes or reeds, wild rice, etc. Much of the south part can be mown for marsh hay, being in a measure drained by a canal that has been constructed in the township south. Other parts are filled with bogs and pond holes that'do not dry in summer. It receives the drainage from the woods on the south and west, which spreads over the entire surface and without any positive channel finds its way to the lake. Again, the township is subject to inundations from the lake during heavy gales of wind, which, upon the termination of the gale or a change in the direction of the wind, slowly finds its way back into the lake.’ ”
We should -have stated before this that “in July, 1844 (before the Marston survey was made), patents for several of the fractional sections facing on the marsh were issued to Margaret Bailey, under whom the appellant claims; that the patents each recite the number of acres granted, and each states that the tract is a fractional section, ‘according to the official plat of the survey of said lands returned to the general land office by the surveyor general, which said tract has been purchased by the said Margaret Bailey.’ ” After the Marston survey the lands surveyed by him were patented by the United States, and the title so conveyed passed by subsequent deeds to the appellee. The controversy in the case was between the appellant, claiming it by virtue of its contiguity to other lands conveyed to his grantors by the United States before the Marston survey, and the appellee, who claims under- a patent of the United States. The appellee’s title was sustained.
Mr. Justice Brewer, delivering the opinion of the court, said: “Generally, these meandered lines are lines which course the banks of navigable streams or other navigable waters. Here it appears distinctly from the field notes and the plat that the surveyor, Rice, stopped his survey at this ‘marsh’ as he called it. These surveys were approved, and a plat prepared, which was based upon the survey and field notes, and showed the limits of the tracts which were for sale. The patents, referring in terms to the survey and plat, clearly disclose that the Government was not intending to and did not convey any land which was a part of the marsh. ‘The patent itself does not contain all the particulars of the survey, but the grant of the lands is recited to be according to the official plat of the survey of said lands, returned to the general land office by the surveyor general, thereby adopting the plat as part of the instrument.’ * * * In James v. Howell, 41 Ohio State, 696, 707, the Supreme Court of Ohio, speaking of these very patents and this marsh, said: ‘The meander line along the southerly border of the marsh was, in fact, intended to be the boundary line of the fractional sections.’ ”
Again he says: “It is impossible to hold that the lower courts erred in the conclusion that this marsh was not to be regarded as land continuously submerged, either under Lake Erie, a navigable lake, and in that case belonging to the State of Ohio, * * * or under a pond or other similar body of non-navigable inland waters, and therefore generally the property of riparian owners. It was called a marsh by Rice, the first surveyor, is so styled on the plat, and the conditions, as disclosed by the agreed statement, indicate that it was a body of low swampy land, partly boggy and partly dry, sometimes subject to inundations from Lake Erie or the overflow of the adjacent streams, but not permanently covered with water.
s¡í ;jí sjs
“But it is urged that the fact that a meandered line was run amounts to a determination by the land department that the surveyed fractional sections bordered upon a body of water, navigable of non-navigable, and that, therefore, the purchaser of these fractional sections was entitled to riparian rights; and this in face of the express declaration of the field notes and plat that that which was lying beyond the surveyed sections was ‘flag marsh,’ or ‘impassable marsh and water.’ But there is no such-magic in a meandered line. All that can be said of it is that it is an irregular line which bounds a body of land, and beyond that boundary there may be found forest or prairie, land or water, Government or Indian reservation.”
In suits to quiet title the plaintiff is not entitled to recover unless he be in possession, or his title be equitable, or, having the legal title, the land be wild and unoccupied. Mathews v. Marks, 44 Ark. 436; St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 387. The lands in controversy are wild and unoccupied. The possession of them follows the title. Hence appellant must succeed, if at all, as in actions of ejectment, upon the strength of its own title, and cannot rely upon the weakness of its adversary’s, and the burden is on it to show title. Lawrence v. Zimpleman, 37 Ark. 644, 647; Kelley v. Laconia Levee District, 74 Ark. 202; St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 387.
Appellant claims the land in controversy by virtue of the contiguity of certain- lands, acquired by it from the United States, through the State of Arkansas and other grantors, to what is called “Sunk Lands” and “Cutoff Lake.” This “Sunk Land,” from appellant’s land on one side to the St. Francis River, a navigable stream, on the other, is three, four and six miles wide. In this area there are over ten thousand acres. The field notes and plat introduced as evidence show the condition of only those sections, and that was on the 30th of May, 1849. John W. Garretson, who surveyed the sub-divisional lines and meanders of township 12 north, range 6 east, made this note in his record of surveys:
“May 30, 1894. The water is at a medium stage at this time, and it is utterly impossible to get to the part of the south boundary of section 36, T. 13 N., R. 6 E., which was run by Mr. James M. Danley. The Hatchie Coon Sunk Lands, on the west side of which I closed the meanders in Sec. 2, T. 12 N., R. 6. E., is so deep at this time that it cannot be waded. The east boundaries of Secs. 24 and 25, T. 12 N., R. 6 E., I passed in December, 1848, in a canoe; there was water then on them from 8 to 10 feet deep, and no timber except groups of willow and small cypress trees, such as grow in the main Sunk Lands of the St. Francis River. Mr. Samuel Johnson, it seems, established corners in this lake, as it is called, on the north side of the right-hand chute of Little River, which right-hand chute- is very similar to the ground through which the lines, viz.: east boundary of Secs. 24 and 25, T. 12 N., R. 6 E., run. I have stated this much in order to show the utter impossibility of running lines or meanders from any corners on the above-named boundaries, only at the dryest season of the year. The part-of the ground through which east boundary of Secs. 24 and 25 lies is called Cutoff Lake, and the south boundary of Sec. 36, T. 13 N., R. 6 E., could not be reached by Mr. Samuel Johnson, who run the east boundary of T. 12 N., R. 6 E., at the time he run said boundary.
“John W. Garrgtson,
“Deputy Surveyor.''’
He indirectly says the lands mentioned could be surveyed at the dryest season of the year, and says that two of the sections had on them “groups of willow and small cypress trees.”
The maps introduced as evidence in the hearing of this cause show that fractional sections 6, 7, 18, 19, 30, 35 and 36 form the western boundary of what is called “Sunk Lands,” in controversy. James Anthony, an experienced and skilled civil engineer, testified that in 1876 he found that the Government meander lines of these sections followed the old steamboat channel, known as the “Old River,” which at one time was navigable. The fact that the meander lines followed the channel of Old River is prima facie evidence that it was the water line of these sections when the meander lines were run, and was the stream meandered.
The official maps show that Cutoff Lake was the water boundary of fractional sections 35 and 36.
What lay beyond these water lines or boundaries in what is called “Sunk Lands”? These sections were surveyed by the Government about 1848 or 1849. They were conveyed by the United States to the State of Arkansas by two patents, dated, respectively, July 29, 1832, and September 27, 1858; and the State conveyed all of them, except sections 6 and 7, on the 12th of June, 1871, to Moses S. Beach, from whom appellant deraigns title. On these various dates there is no direct evidence to show the condition of the lands in controversy. Claiming them by virtue of its riparian rights, the burden is upon appellants, if it succeeds at all, to show their condition. It has failed to do so.
James Anthony, who has known the land since 1874, three years after the State of Arkansas conveyed lands to Moses S. Beach, as before stated, testified as follows:
“Timber grows all over the land; cypress and cottonwood on the outskirts of that land, both on the river and on the meander line. The center of the land in sections 10, 15, west half of 11, west half of 14, is the highest land in that country, comparing it with both sides of the river, and it is known as ‘Gum Island,’ and the timber on these lands, this 10, 15, west half of it, and west half of. 14, is oak, some cottonwood, red gum, mulberry, some hickory and [the land] is also covered with a dense undergrowth of spice wood. Between these lands, which I have said are known as ‘Gum Island,’ and the land within the meander line, known as “Hatchie Coon,” the country is low, swampy and in some places going as wide as a thousand and twelve hundred feet between high land and high land and narrowing down in places to seventy-five and one hundred’feet wide. I have followed the meander line through»4, 3 and 2, about which Mr. Briggs and Mr. Odom testified. I made those meander lines. As to the difference in the timber and land on one side of that line and the other, the' timber on the ‘Hatchie Coon’ property is oak and gum, and on the south, in between the two islands, cypress principally and some little cottonwood. I have known that country since 1874. It is known as the ‘Sunk Lands.’ It is possible at times to walk across that country. The best crossing is through 6, 12, 11, and 10, and through 9. There is an old wagon road that goes through there, and there used to be a ferry. By 6 I mean section 6 in 12-7.”
Asked as to the nature of the country south of this crossing, with reference to the possibility of being crossed by team or horses or by foot, the witness said: ‘Well, what you call by foot, yon mean across this country anywheres, as far as wagons are concerned, you would have to leave these middle sections out, and then you could cross through 35, 34 and 33 with wagon or otherwise. It could not be crossed on foot in the south half of 24 and the south half of 22. By wading you can cross anywhere. There is water in section 23. There may be a little flag in T4. The flag openings commence in the northeast corner of 2; they go down through section 2 to the east half of section it, and the east half of 14, and from the south line of section 14 they turn due west, running out between sections 14 and 23 and 15 and 22, and are here known as ‘Lead Fork Slough.’ In section 26 there is what is known as the ‘Scatters.’ That is more or less over the section. There are bunches of timber covering 25 or 30 acres, and these bunches of timber are surrounded by flag openings. There may also be a little of that in 25, but very little. 25 is pretty high ground; it is ash and oak. 25 is known as ‘Ash Camp.’ ”
This testimony is strongly corroborated by the testimony of other witnesses.
Were the lands in controversy higher in 1874 and since then than they were in 1848, when the United States survey was made, or in 1852 or 1858 when the United States conveyed to this State? T. L. Davis testified that “there is sediment always forming, .and after every overflow there is sediment found, and the land is gradually rising up.” F. H. Varner testified that he has resided not far from this land ever since 1844 (four years before any survey was made); that low places, filled with water, are gradually filling up, but further than this the land has not been elevated. John M. Briggs testified that he does not think that the land has filled up or been elevated any at all; that the overflows wash out these low places, and prevent them filling; that nearly everywhere on what is known as “Sunk Lands” on top of the ground there is an ore-like substance in pieces as heavy as a pound to five pounds. This clearly indicates that the lands have not been materially elevated by sediment deposited on top of the ground. If it was, the ore would be covered. The pfeponderance of the evidence, we think, shows that the elevation of the “Sunk Lands” has not changed.
According to the opinion of the court in Horne v. Smith, 159 U. S. 40, and Niles v. Cedar Point Club, 175 U. S. 300, we do not think that the appellant acquired the lands in controversy by virtue of his riparian rights, or is the owner thereof, and so decide. Like the land in controversy in Niles v. Cedar Point Club, supra, they are low swampy lands, checked by bayous, subject to inundation, and reclaimable, to some extent, for agricultural purposes; and not such lands as can be acquired by virtue of riparian rights for fishing and other water purposes.
Appellant offered a letter of the Secretary of the Interior of the United States to the Commissioner of the General Land Office as evidence, and the court refused to receive or allow it to be read. The letter was a mere expression of opinion as to the lands in controversy. There was no contest before his department as to such lánds which called for decision. There were no parties before him seeking for an adjudication. There were no issues to be decided. No one interested had an opportunity to be heard. The letter was of no binding force or effect upon any one, and was properly excluded.
Decree affirmed.
McCulloch, J., dissents. | [
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Humphreys, J.
Appellant, Ross Drainage District of Clark County, presented a claim against the appellee, Clark County, to the county court of said county in the sum of $4,300.35 for the construction of bridges built across certain public highways in constructing the drainage ditches in said district. The county court refused to allow the claim, from which an appeal was prosecuted to the Clark Circuit Court. In the circuit court the issues were tried by the court sitting as a jury, which resulted in a judgment disallowing the claim, from which an appeal has been duly prosecuted to this court.
Special act No. 92 of the General Assembly of Arkansas, 1917, creating the drainage district in question, contained no provision requiring the drainage district to build bridges over ditches dug by it across public highways in the construction of its drainage system. A test case as to whether the district or the county should build bridges over the ditches where they crossed public highways resulted in a ruling by this court, on appeal, that said drainage district could not be required to build bridges over the ditches cut across the public highways, in the absence of a provision in the act requiring it to do so. Board of Directors of Ross Drainage Dist. v. State, 147 Ark. 91. During the pendency of the test case the president of the board of directors of said district entered into the following written contract with the county judge of said county, in vacation, and the prosecuting attorney of' the Eighth Judicial District of Arkansas, which included Clark County, to-wit (omitting formal parts): “This agreement, executed on this, the day and date hereinafter mentioned, by and between Clark County, Arkansas, as represented by J. T. Green and Luke Monroe, respectively county judge of said county and prosecuting attorney of the Eighth Judicial District of Arkansas, and hereinafter referrred to as the county, party of the first part, and Ross Drainage District, of said county, acting by and through W. E. Miller, president of the board of directors, and hereinafter referred to as the district, party of the second part, witnesseth:
“Whereas, the improvement under way by said district crosses certain county roads of said county, and act 92 of the General Assembly of 1917, under which said district is operating, does not specify whether or not the district shall bridge the ditch where same crossed such public roads. And whereas, as the district has already built- one such bridge and the county one, and a third bridge must soon be constructed; and whereas, in view of the further fact that the county will at once institute legal proceedings to determine whether or not the district should construct such bridges; it is therefore agreed between the parties hereto as follows, to-wit:
“The district will proceed to construct the bridge, the necessity for which is now imminent, and, in the event the courts finally hold that it is not the duty of the district to do such bridging, the county agrees that it will reimburse the district for the said bridge heretofore built by it and for such other bridging, bridge or bridges which the district shall hereafter build or contract. Provided, if the courts hold that it is the duty of the district to do such bridging, or build such bridges, the district agrees to reimburse the county for the bridge heretofore constructed by the county as hereinbefore mentioned. It being the intention of this agreement that such obligation or obligations be discharged by the county or district as may be decided by the courts.”
The drainage district proceeded, under the contract, to construct bridges over the drainage canals aforesaid at a total cost of $4,300.35. The bridges constructed were between 30 and 60 feet in length, and, under' the statute law of this State, are denominated bridges of the second class. The statute law provides that when bridges of the second class are ordered built at the expense of the county, plans and specifications therefor must be adopted and posted in accordance with the requirements of the statute, and contracts for building same must be let at public outcry at the courthouse door to the lowest and best responsible bidder. Const. of Ark., art. 19, § 16; Crawford & Moses’ Dig., §§ 827-829. The contract upon which the claim presented was based was made by the county judge in vacation, and was never ratified by the county court. The bridges were not constructed in accordance with the requirements of the statute. The bridges having been constructed without authority, the claim was properly disallowed; otherwise any one might, without authority, construct a bridge on a public highway, whether needed or not, and compel the county to pay for it. The record does not reflect that the county court ever accepted the bridges, or that the county took charge of them and.permitted the public to use them as public bridges. So we are not called upon to determine in this case whether the county would have become liable had it accepted and permitted the public to use the bridges. The only question presented for determination on this appeal is whether a claim presented for the construction of bridges based upon an unauthorized contract can be collected from the county. This question was settled in the negative in the case of Howard County v. Lambright, 72 Ark. 330.
No error appearing; the judgment of the circuit court is affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Clark Circuit Court to recover damages in the stun of $5,000 on account of personal injuries received from falling sacks of feedstuff in one of the rooms of appellee’s grain elevator at Arkadelphia, through the alleged negligence of appellee in stacking the said feed-stuff and leaving the same stacked to such height and in such manner as to cause same to fall from its own weight upon appellant while engaged in cleaning the floor of said room, which work was in the line of his duty. Appellee filed an answer denying that it negligently stacked the feedstuff, or that it left same stacked in a negligent manner, and interposing the further defenses of assumed risk and contributory negligence by appellant. The cause was submitted upon the pleadings and evidence, at the conclusion of which the court peremptorily instructed a verdict for appellee, over the objection and exception of appellant. From the directed verdict, and the judgment rendered in accordance therewith, an appeal has been duly prosecuted to this court.
The evidence, stated in its most favorable view to appellant, was, in substance, as follows: Appellant, a man twenty years of age, was employed by appellee to truck sacks of feedstuff, which were stacked in ware-rooms at appellee’s elevator in Arkadelphia, into cars on the outside of the 'building for the purpose of shipment, and also to clean up rice hulls which had been spilled on the floor in said rooms. He had nothing to do with taking the sacks down from the pile. This was done by .another or other employees. After the sacks had been removed from the stack, appellant would assist in loading them on his truck and then push the load out to the car, and after unloading it would come back for another load. On the morning of the injury, which occurred about nine o’clock, after appellant had been engaged for an hour in trucking sacks of rice hulls out of the room in which the injury- occurred, the foreman took him away from this work and sent him, for about 30 minutes, to another part of the mill. He was then sent back to the room to clean up the spilled rice hulls from the floor1. While bent over, scooping up the hulls, several sacks fell off the pile and inflicted the injury complained of. In unstacking the piles the custom was to begin at the top and unstack them towards the bottom, leaving them in the shape of stairsteps. In this particular room, on this occasion, the stacks had been removed in such way as to leave those standing perpendicular. In fact, the stacks bulged out to some extent towards the top. At the time the injury occurred appellant had been working for appellee in the same capacity for about three months, and was familiar with the manner of stacking and unstacking the sack; of feedstuff. He knew the manner in which the sacks should be removed from the stacks in the several ware-rooms, and the manner in which the stacks should be left when only a part of the sacks were removed. The stacks were open to the view of any one entering the several warerooms.
Appellant insists that under the allegation of the complaint and proof adduced a disputed question of fact as to whether appellee was negligent in stacking or unstacking the sacks was presented for determination by the jury. Appellee, on the other hand, contends that the only allegation of negligence in the complaint was that the sacks were negligently stacked, and that the undisputed proof shows that the sacks were properly stacked. The allegation in the complaint was broad enough not only to include negligent stacking, but also negligent unstacking of said sacks. Part of the allegation is that appellee left the stacks of sacks in such manner as to cause same to fall from their own weight. Upon the question of negligence on the part of appellee it was therefore improper to.take the case from the jury, unless the undisputed evidence showed that appellant assumed the risk. Appellant insists that the court erred in holding that the undisputed facts showed that he had assumed the risk incident to falling sacks' occasioned through the negligence of his employer, appellee. An employee of ordinary intelligence, experienced in the line of his duty, and not working under the immediate direction of a superior, assumes the risk of dangers incident to conditions produced through the negligence of his employer which are obvious and imminent and which he must necessarily have known and appreciated in the exercise of ordinary care for his own safety in the performance of his duties. St. L. S. W. R. Co. v. Compton, 135 Ark. 563; Hunt v. Dell, 147 Ark. 94; Scott v. Wis consin & Ark. Lbr. Co., 148 Ark. 66; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232.
The evidence reflects that appellee was familiar with the place where he was working, and that the condition in which the sacks were left through the negligence of the employees of appellee was obvious and imminent to any one working aground the stacks of sacks. In fact, the danger was so patent and open that it might have been observed by casual observation. The stack as left was not only perpendicular, but it was leaning or bulging out at the top. The record does not indicate that appellant was too young or inexperienced to appreciate the dangers incident to the condition in which the stack was left after a part of the sacks had been removed. Appellant was 20 years of age at the time the injury occurred, and had been in the employ of appellee as a trucker for about three months, and understood how the foodstuff should be stacked and unstacked with a view to the safety of the employees. The condition complained of, which produced the injury, being perfectly obvious and of such simple character that one of ordinary intelligence and experience would necessarily have known and appreciated the dangers incident thereto, the court correctly declared, as a matter of law, that appellant assumed the risk.
No error appearing, the judgment is affirmed. | [
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Hart, J.
B. L. Williams and other owners of real property in the Northern District of Arkansas County, Ark., filed their complaint against the board of commissioners of Arkansas County Courthouse Improvement District to restrain the issue of bonds and other action providing for the erection of a courthouse at Stuggart, m said district and county, and the payment thereof by local assessments on the real property in said district.
The complainants urge that the district is illegal on several grounds, 'but the main reliance is that the erection of a county courthouse cannot be made the subject of a local improvement.
The chancery court sustained a demurrer to the bill. The plaintiffs declining to plead further, their bill was dismissed for want of equity, and they have appealed to this court.
Arkansas County was divided into two judicial districts known as the Northern and Southern Districts of Arkansas County. DeWitt was the county seat of the county and was named as the seat of justice for the Southern District. Stuttgart was named as the seat of justice for the Northern District. Acts of 1913, p. 192.
Act 442 of the Legislature of 1921 creates the Arkansas County Courthouse Improvement District. Special Acts of Arkansas, 1921, p. 914.
Sec. 3 provides that the district is formed for the purpose of purchasing a building site and constructing and equipping a building in the city of Stuttgart to be occupied by the officials of Arkansas County as a county courthouse.
Sec. 12 provides that the commissioners shall make an assessment of benefits of all the lands within the Northern District of Arkansas County for the purpose of making said improvement.
Sec. 14 provides that said assessment shall be a charge against the real property of said district for such an amount as may be necessary to complete the improvement and pay all the expenses of the district.
Sec. 21 provides that in order to hasten the work the commissioners may borrow money, issue bonds, and pledge the assessment of benefits for the payment of the principal and interest.
■Sec. 29 authorizes the commissioners and the county judge to enter into an agreement for the use and occupancy of the building by county officials. It provides that such rental shall not exceed two 'mills per annum of the assessed value of all the real and personal property in the county. The section further provides for setting aside two mills out of the county general tax for the payment of said rent, and that such tax shall be payable only in lawful money of the United States.
Under the act, the question arises whether the Northern District of Arkansas County can be organized into an improvement district for the purpose of erecting a courthouse for the use of said district.
Counsel for the commissioners of the district rely upon our cases holding that local improvement districts may be organized for the purpose of improving roads and building bridges and wharfs. Sallee v. Dalton, 138 Ark. 549, and cases cited; Shibley v. Ft. Smith & Van Buren District, 96 Ark. 410; Com’rs. of Broadway-Main Street Bridge Dist. v. Quapaw Club, 145 Ark, 279, and Solomon v. Wharf Imp. Dist. No. 1, 145 Ark. 126.
We do not think these cases are any authority for the organization of such a local improvement district as the one in question. The question of what shall be considered a local improvement is determined by the nature and character of the improvement itself. Of course every local improvement must be for a public and not for a mere private purpose. Moreover, local assessments are a species of taxation, and there must be some special or peculiar benefit to the property upon which the assessment of benefits is .made. We have held that roads, bridges and wharfs may be the subjects of local improvements because the adjoining property will be especially and peculiarly benefited and that the benefit to the public is merely incidental. That the improvement will benefit adjoining property more than that at a distance is not conclusive as to the nature of the improvement. The primary purpose and effect of a local improvement must be to benefit the adjoining property, although it may incidentally benefit the public.
The definition in Crane v. Siloam Springs, 67 Ark. 30, is, “if we look for the technical or legal meaning of the phrase ‘local improvement,’ we find it to be a public improvement, which, although it may incidentally benefit the public at large, is made primarily for the accommodation and convenience of the inhabitants of a particular locality, and which is of such a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement.”
The nature and character of the improvement in question shows that it is not a local improvement within the definition above given. This court has held that a county may be divided into judicial districts, but that the expense of maintaining two judicial districts in a county is necessarily a county expense, and that the revenue to pay it can be raised only by a county tax. The court further said that such a tax to be valid must be levied at a uniform rate upon all the taxable property of the county. Hutchinson v. Ozark Land Co., 57 Ark. 554.
Again, the 'court said that all the affairs of the two districts are concerns of the county, and that the expenses incurred in both, whether in the holding of courts or otherwise, constitute demands against the county. So it was held that the expense of maintaining two judicial districts in a county is a county expense.
Carrying out this idea in the case of Law v. Falls, 109 Ark. 395, the court held that, a seat of justice having been established at Dardanelle and the courthouse having been destroyed by fire, the county court had the authority to direct the erection of a new building for the use of the courts of the district.
The Legislature of 1913 made the city of Stuttgart the seat of justice for the Northern District of Arkansas County. If the expense of holding the courts and otherwise maintaining two judicial districts in a county is a county expense, it would seem that it necessarily follows that the erection of a courthouse for the use of such district would also be a county expense. Of course the establishment of a seat of justice in a certain town adds to the material prosperity of the town and the surrounding country. This fact arises, however, because the seat of justice is established there and the kind and character of building to be used as a courthouse only incidentally adds to the value of the real property in the surrounding country. The establishment of a seat of justice is a governmental purpose, and the erection of a courthouse within which to carry it on also partakes of the same character. :
' In the case of building roads, bridges and wharfs, the primary object to be accomplished is the benefit of the adjoining property, and the benefit to the public is merely incidental. The establishment of a seat of justice and the erection of a courthouse within which to carry on governmental functions is essentially different. The primary object to be accomplished is to carry on the county government for the protection of the life, liberty, and property of the inhabitants, and the benefit to the property owners is merely incidental. Therefore the- expense must be borne by the whole public and cannot be charged against the real property of a portion thereof.
In discussing what may be a local improvement in Crame v. Siloam Springs, 67 Ark. 30, Judge Riddick, speaking for the court, said: “In coming to this conclusion, we do not overlook or disregard the word ‘local’ in the phrase ‘local improvements.’ On the contrary, we attach much importance to it. The use of this phrase limits the power to authorize assessments in cities and towns to those public improvements-which are local in their nature, and intended for the convenience and ac commodation of the local public, or some portion thereof, and which confer a special benefit upon the real property assessed. It distinguishes such improvements from those that are not local, but intended for the benefit of the general public. Not every improvement in a town or city is a local improvement. A county courthouse or capitol. for the State might be an improvement in a town or city, and in some eases a very desirable improvement, but, being designed and intended for the use and convenience of the general public of the county or State, it would not be a ‘local improvement,’ within the meaning of our Constitution; or, if such a structure could in any sense be considered a local improvement, it would not be to the full extent of the cost. A town or city hall would probably come within the same category, for, while intended for the convenience of the local community, it would not usually be an improvement of such a nature as to confer a special benefit upon local real'estate or the owners thereof, and therefore not a local improvement within the meaning of the law. A consideration of these and other illustrations which could be made, we think, clearly shows the meaning and purpose of the phrase ‘local improvements’ as used in our Constitution.”
It is true.that the precise question in that case was whether the whole area of a city could be laid off into' an improvement district for the purpose of constructing and maintaining a general system of waterworks. The court held that this could be done, and the language just quoted was pertinent to a discussion of that question. It shows that the idea of the court was that where the primary purpose and effect is to benefit the public it is not a local improvement, although it may incidentally benefit property in a particular locality.
On the other hand, if the primary object of the local improvement is for the use and benefit of the property owners in the proposed district, it is a local improvement, although the public may be incidentally benefited. In the 'ease of roads, bridges and wharfs the idea of first importance is to benefit the property included in the proposed district, and the district is not formed for the purpose of benefiting the public.
On the other hand, in the case of the erection of a courthouse the idea of paramount importance is to provide offices for the county officers, a place for the public records to be kept, and where the courts may be held. Therefore, we think that the act creating the improvement district in question for the purpose of erecting a county courthouse is unconstitutional, and that the property owners might enjoin the assessment and collection of the tax against their real estate under its provisions.
It follows that the decree will be reversed and the cause will be remanded, with directions to the chancery court to overrule the demurrer and grant the injunction prayed for in the complaint. | [
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McCulloch, C. J.
Appellant’s husband, W. T. Murphy, was a locomotive engineer, engaged in railroad service on the line of the Missouri Pacific Railroad Company, then under government control, and while in such service and working in the line of his duty at Cotter, Arkansas, he received personal injuries from which death ensued.
Appellant and her husband resided in Baxter County, Arkansas, and letters of administration were issued to her upon the estate of said decedent, and she instituted an action in the circuit court of Pulaski County against the Director General of Railroads to recover damages on account of -the death of said decedent, alleging that it was caused by negligence in the operation of the railroad. Damages in the sum of $1,000 were sought on account of the pain and suffering of the deceased, and damages in the sum of $9,000 were asked as compensation for the next of kin.
There was a judgment in favor of appellant as such administratrix for the recovery of $500 on the first count for damages, and for the recovery of $7,500 on the second count.
Appellee is a daughter of said decedent, and she instituted the present action in the chancery court of Pu laski County against appellant to recover a share of the amount collected under said judgment.
Appellee set forth in her complaint the pleadings in the original action instituted by appellant as administratrix against the Director General of Railroads, and she alleged that she was one of the children and distributees of the estate of said decedent and was entitled to an equal share of said amount so recovered.
Appellant filed her answer in the cause, disputing the right of appellee to share in the amount so recovered, and the record contains a recital that the cause was heard upon an agreement that “the copies of the complaint and judgment entry set forth in plaintiff’s complaint are correct, and the facts set forth in defendant’s answer are true.”
The answer1 of appellant recites the fact that there are four living children of said deceased, W. T. Murphy, one of whom is an infant nine years of age, and the other three, including appellee, are adults, and that appellee is a married woman, twenty-six years of age, who was, at the time of the death of said W. T. Murphy, and for about ten years prior thereto, living apart from said decedent and was not dependent on said decedent, nor was she receiving any contributions of any kind from him.
It was the contention of appellee below, as here, that the recovery of the funds in controversy was secured in an action under the statute of this State which is generally referred to as having been patterned after Lord Campbell’s Act (Crawford & Moses’ Digest, §§ 1074, 1075), which provides that the recovery secured thereunder “shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate.”
The lower court sustained the contention of appellee and rendered a decree in her1 favor for a child’s part, or one-fourth, of the sum recovered by appellant, after deducting the-widow’s share of one-third.
The contention of appellant is that said decedent was, at the time of the injury which caused his death, engaged in the operation of a locomotive while used in interstate commerce, and that the recovery was had either under the Federal employers’ liability act or under a statute of this State other than the one under which appellee seeks recovery, which provides a different method of distribution of the funds thus secured. Crawford & Moses’ Digest, § 7138, et seq., Acts of 1911, p. 55.
The first question, therefore, which we must determine is, which one of the statutes the original cause of action and the recovery were predicated upon, for if the funds were recovered under the Federal statute, they must be distributed according to the terms of that statute (Taylor v. Taylor, 232 U. S. 362); and if under one of the statutes of this State, the amount recovered must be distributed according to the statute which authorizes the recovery.
The original complaint and the judgment of the court thereon were incorporated in the complaint in the present action. The complaint in the former action did not contain an allegation to the effect that Murphy was engaged in interstate commerce at the time of his injury, nor did it contain any allegation indicating that he was not so engaged. The complaint may be treated as silent on that subject. The action was brought by the- personal representative of the decedent, which was authorized by either of the three statutes now under consideration, and under the complaint as unamended there might have been a recovery either under the State statutes or the Federal statute, according to the facts disclosed in the proof. St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240.
The facts of the case, as recited in the answer of appellant, which is conceded to state the facts correctly, are that Murphy was engaged in interstate commerce at the time of his injury. But, even accepting the allegations of the original complaint itself as denoting the character of the accident, it was one not based on §§ 3074 and 1075, Crawford & Moses’ Digest, but it was based on the more recent statute referred to above. Crawford & Moses’ Digest, § 7138, et seq.
The later statute, just mentioned, related to wbat we have denominated as railroad hazards, and we have construed the statute to include “every employee who, when injured, was performing some work in the line of his duty, directly connected with and incident to the use and operation of a railroad.” St. L. I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377; St. L. I. M. & S. Ry. Co. v. Wisemem, 119 Ark. 477.
It was alleged in the original complaint that Murphy, at the time of his injury, was in the employ of the defendant, “not operating any engine, but on said date was assisting Engineer Schultz to disconnect engine 2395 at Cotter, and on account of defects in said engine the radiator rod was blown out of said" engine, striking said Murphy in the back of the head, breaking his skull,” etc.
This allegation brings the cause of action within the last statute referred to as interpreted by the cases cited above. It is clear, therefore, that the other statute of this State (the one patterned after Lord Campbell’s Act) has no application, and we need not determine what the distribution would be under that statute.
The act of 1911, supra, contains- a provision in the last section to the effect that the act shall not be held “to limit the duty of common carriers by railroad, or impair the rights of their employees in -the existing laws of the State.” This provision may be conceded to show an intention on the part of the Legislature not to repeal any statute then in existence except those repugnant to the terms of the later statute, but that statute necessarily operated as a repeal of any other statute conferring a right of action under the facts set forth in this statute. The two statutes are inconsistent to that extent, and the last one repeals the first to that extent. This is necessarily so, for the remedies of the two statutes are entirely different and for the benefit of different persons.
It is unnecessary to determine whether the original recovery should be treated as one under1 the Federal statute, or as one under the statute of this State last mentioned. It might have been under either of those statutes, according to the fact whether or not the employee was engaged in interstate commerce.
The Federal statutes have been interpreted by the Supreme Court of the United States to authorize a distribution of the amount recovered only to the next of kin mentioned who are injured by the wrongful or negligent act. That court has repeatedly held that the statute was intended to afford compensation only to those who sustain injuries resulting from the death of the decedent, and that the distribution must be limited to that class. Michigan Central R. Co. v. Vreeland, 227 U. S. 59; Gulf, C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173; Taylor v. Taylor, supra; Central of Vermont R. R. v. White, 238 U. S. 507.
That part of our statute which describes the persons on whom the right of action is conferred, and the beneficiaries thereunder, is in almost the same language as that of the Federal statute. It provides that common carriers by railroad “shall be liable for all damages to any person suffering injury while he is employed by such carrier, or, in the case of the death of such employee, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employee; if none, then to such employee’s parents; if none, then to the next of kin of such employee, for such injury or death resulting in whole or in part from the negligence,” etc. Crawford & Moses’ Digest, sec. 7138. There are one or two slight changes in the statute from the language employed in the Federal statute, but it is evident that the writer of our statute had before him the Federal statute and used it as a model. When the whole statute is read together, it is clear that it was intended to cover the same subject as that covered by the Federal statute so far as it affects causes of action of the kind described other than while the employee was engaged in interstate commerce.
The more explicit interpretation of the Federal statute by the Supreme Court of the United States, beginning with the Yreeland case, su/pru, came after the adoption of the statute by the lawmakers of this State, and the doctrine of borrowed interpretation cannot, perhaps, be invoked, but we have no doubt of the correctness of the subsequent interpretation of the Federal statute, and our statute is, of course, subject to the same interpretation. That statute does not contain any express provision or direction with reference to the distribution of the fund, as is the case with respect to our statute patterned, after Lord Campbell’s Act. But it does clearly appear from the statute that the recovery is for the benefit of the person or class of persons who suffer injury on account of the death caused by the wrongful act, and, in the absence of an express provision to the contrary in the statute itself, the only reasonable interpretation is that the participation in the distribution of the fund must be limited to those who are to be compensated for the injury.
We are therefore of the opinion that under this statute appellee is not entitled to participate in the distribution of the fund in controversy, for it is undisputed that she sustained no pecuniary injury by the wrongful act which caused the death of her father. According to the agreed statement of facts, she was not dependent on her father, and she was not receiving any contributions from him or expecting any, but on the contrary she was married and living with her husband, apart from her father.
The judgment is therefore reversed, and the cause is dismissed. | [
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Hart, J.,
(after stating the facts). It is first insisted by counsel for the defendant that the judgment should be reversed because the court erred in refusing to allow the defendant to testify to certain facts before the jury. The defendant Huddleston, while on the witness stand, was asked from whom he got the information in regard to Steuart. The court sustained an objection to the question, and the defendant excepted to the ruling of the court and offered to state as a witness that he had heard the rumor about Steuart having killed his father just as he had stated it to the witnesses for five years, and that he had simply'repeated what had been current rumor in the community for several years.
Counsel for the defendant insists that he was liable only for the damage caused by his own remarks, and that the offered testimony was admissible in mitigation of damages. Counsel invoke the rule laid down in Simonson v. Lovewell, 118 Ark. 81, to the effect that in awarding compensatory damages the jury might consider the fact that plaintiff bore the reputation of being a defaulter, or that his reputation for morality was bad in mitigation of damages. This principle had no application in the case at bar. Steuart’s reputation for morality or immorality could not be established by showing that the remarks made by Huddleston were current rumor in the community. Of course Huddleston was only liable for the damages caused by his making the remarks, and was not liable for damages caused by other persons making the same remarks; but the instructions given by the court to the jury fixed the damages to the amount shown by the evidence in the case and thus confined the damages to the remarks made by Huddleston, for none other were proved to the jury. It follows that this assignment of error was not well taken.
It is next insisted that the court erred in giving one of plaintiff's instructions on the question of self-defense. It is insisted that 'Steuart followed Huddleston into Ballard’s store and that the instruction ignored the duty devolving upon Steuart to attempt in good faith t'o with draw or abandon the difficulty before he could invoke the doctrine of self-defense. It is well settled that the court can not cover all the phases of a case in one instruction, and the record shows that when counsel made the objection now complained of to this instruction, the trial court told them that if they would prepare an instruction on self-defense, fully defining it he would give it. This counsel declined to do, and we do not think the court under the circumstances erred in giving the instruction complained of.
It is next insisted that the court erred in instructing the jury on the measure of damages. We do not deem it necessary to set the instruction out. It is sufficient to say that it is in accordance with our previous decisions on the question. Townsley v. Yentsch, 98 Ark. 313; Taylor v. Gumpert, 96 Ark. 354; and Murray v. Galbraith, 95 Ark. 199.
It is next insisted that the court erred in giving instruction No. 8, which is as follows: “The court instructs the jury that the plaintiff was entitled to act upon appearances, and, if the language and conduct of Huddleston Was such as to induce in the mind of a reasonable man, under all the circumstances then existing and viewed from the standpoint of Steuart, a fear that death or great bodily harm was about to be inflicted by Huddles-ton upon him, it does not matter if such danger was real or only apparent, and, if Steuart acted in necessary self-defense from real and honest conviction as to the character of the danger, if any, your verdict should be for Steuart on the cross-complaint; even though he was mistaken as to the extent of danger. ’ ’
A specific objection was made to this instruction on the ground that the plaintiff must have acted without fault or carelessness on his part before he could invoke the doctrine of self-defense. In this contention we think counsel are correct. It is true that the defendant’s standpoint is the proper one from which to view the immineney of the danger, but such belief on the part of the defendant must be an honest belief, and not due to his own negli gence. Mere honesty, however, is not in itself sufficient. The defendant must be free from fault or carelessness. If his belief is due to his own negligence, his honesty is not sufficient to justify the assault as having been done in self-defense. Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 594; Hoard v. State, 80 Ark. 87; Pickett v. State, 91 Ark. 570, and Dean v. State, 139 Ark. 434. It may be said in this connection that the negligence which will prevent a homicide from being justifiable is negligence on the part of the slayer in making his self-defense, and not some prior negligence. Elder v. State, 69 Ark. 648.
It will be noted that, although specifically requested to do so, the court refused to incorporate into the instruction that the defendant must have acted without fault or carelessness on his part before he could justify the assault as having been done in self-defense. This ruling of the court necessarily resulted to the prejudice of the defendant. Under the instruction as given the jury might have found for Steuart on the theory that he honestly believed that he was about to receive great bodily harm at the hands of Huddleston, regardless of the fact of whether he was negligent or not in forming that 'belief. This is not the law. As we have just seen, he must have acted without fault or carelessness on his own part.
For the error in giving instruction No. 8, as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial. | [
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Hart, J.
(after stating the facts). It is earnestly insisted by counsel for appellant that the evidence is not legally sufficient to sustain the verdict. At the request of appellant, the court instructed the jury that if it believed from the evidence that the contract was that the engine should be in first-class condition except the missing parts, and that the evidence showed it was not in first-class condition, appellant would have a right not to accept it, and might recover the amount it had paid *m the purchase price together with the freight.
On the part of appellees the jury was instructed, that if it believed from the evidence that the contract was, that appellees would furnish whatever parts that were missing, and which were necessary to put the engine in first-class condition, and that appellees stood ready to carry out the contract on their part, and appellant refused to allow them to do so, then the verdict should be for appellees on their counterclaim for the sum of $1,000 due on the purchase price.
The court further instructed the jury that, if it believed from the evidence that the engine was in such defective condition that it could not have been put in first-class condition, then appellant would have the right to reject the same without waiting for appellees to repair it, and appellant was entitled to recover.
No exceptions were saved to the giving of these instructions, and they substantially submitted to the jury the respective theories of the parties to this lawsuit.
We cannot agree with counsel for appellant in their contention that there was no legal evidence to support the verdict. One of the witnesses for appellees testified that if they had been allowed to put in the repairs that they ordered, on the engine, it would have been in good condition and would have lasted appellant a good long time. He said that the engine was not burned out on the inside, and that the cylinders did not need reboring. He was sent up there to repair the engine and was prevented from repairing it by appellant. He had had ten years ’ experience in installing machinery of this kind and seeing that it operated in a satisfactory manner.
Wingfield, the manager of appellees, also testified that the engine was in good condition and ready for operation when the missing parts were attached to it; that he ordered the missing parts to be shipped to appellant at its place of business, and sent an experienced machinist up there to attach the parts to the engine.
It is true that the evidence for appellant showed that the engine was in very bad condition, and could not have been put in condition for use except temporarily. The jury, however, were the judges of the credibility of the witnesses, and under the settled rules of this court we cannot review its finding where there is any evidence of a substantial character to support it. In other words, the question of the preponderance of the evidence is a matter for the jury trying the case, and we have no concern with it on appeal. It is our duty to uphold the verdict where there is legal evidence to support it, and the evidence for appellees, if believed by the jury, entitled them to recover the balance of the purchase price on the engine.
Counsel for appellant also assign as error the refusal of the court to instruct the jury that if it found that appellees, or their agent, notified appellant that the machinery could not be put in first-class condition, appellant had a right to reject the same, and the jury should find for appellant.
This instruction was predicated upon an affidavit made by F. B. Cooper, the agent of the International Harvester Company, who was sent by that company at the request of appellees to attach the missing parts to the engine.
At the request of appellant he made an ex parte affidavit to the effect that the engine could not be put in first-class condition. He was not the agent of appellees for any purpose except to install the engine. Hence he could not bind appellees by an ex parte affidavit as to the condition of the engine. Cooper testified as a witness in the case, and it was proper to introduce the affidavit for the purpose of contradicting his testimony given at the trial and thereby attacking his credibility as a witness.
It is also insisted by counsel for appellant that the court erred in refusing to instruct the jury that, if it found that the repair of the engine was not made within a reasonable time after the agreement to repair it, it should find for the appellant.
There was no error in refusing <to give this instruotion. Appellees ordered the missing parts for the engine from the International Harvester Company and got that company to send an experienced man to attach the parts to the engine. This was done within a short time after the engine was sold to appellant. Appellant refused to receive the parts or to permit Cooper to attach them to the engine, on the ground that the engine was in such defective condition that it could not be placed in first-class condition for that season’s ginning. There was no issue on the failure of appellees in making repairs on the engine within a reasonable time, and on this account the court did not err in refusing this instruction.
The respective theories of appellant and appellees were submitted to the jury in instructions to which no objections were made or exceptions saved, and, there being evidence to support the verdict, the judgment must be affirmed. | [
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Humphreys, J.
Appellant, A. A. Evans, filed a bill against appellee, Pearl Hoyt, in her capacity as administratrix of the estate of F. C. Hoyt, deceased, in the Independence Chancery Court, seeking to charge the estate with a large amount growing out of a partnership business for the purchase and sale of farm products, conducted under the name of F. C. Hoyt & Co., at Newark, Ark., which, was owned by E. C. Hoyt and appellant. The bill, in substance, alleged that A. A. Evans financed the concern and F. C. Hoyt managed it; that the partners were to share the profits and losses equally; that the business covered the years 1915, 1916, 1917, 1918, and until December, 1919, at which time F. 0. Hoyt died; that the firm account was carried in the firm name in the First National Bank, at Newark, Ark., that in the conduct of the business F. C. Hoyt drew about 175 checks on the firm account for his individual use which were not charged on the books of the company against him; 'that F. 0. Hoyt also used moneys belonging to the partnership to operate an individual business, and to purchase individual property, which was not charged to him on the books of the company; that he also used hay and feed belonging to the company for his individual purposes, which was not charged to him. A list of all the checks, giving the date, payee and amount of each, together with all the other items claimed, was filed as an exhibit to and made a part of the bill. The prayer of the bill was to charge the estate with the various sums and amounts used by F. C. Hoyt individually out of the partnership funds, and that a master be appointed to state an account between them.
Appellee filed an answer, denying each and every material allegation of the complaint. As additional defenses, she alleged settlements between appellant and her intestate from time to time during the period the business was conducted, and that appellant received from her intestate, or from the firm business, from time to time, sums aggregating more than appellant’s interest or share in said business. On the 10th day of December, 1921, appellee, by permission of the court, amended her answer by including an allegation to the effect that the bill had not been verified as required by law, and that a verified statement of the account sued on had not been presented to appellee, as administratrix, as required by law, and upon that ground praying that the bill of appellant be dismissed. Immediately thereafter, according to the record, the parties announced ready for trial, and the court treated the amendment to the answer as a motion to dismiss the hill, sustained the motion and dismissed the bill upon the ground that a verified statement of the account had not been filed in the action or presented to the appellee as required by law. From the decree dismissing the bill an appeal lias been duly prosecuted to this court.
Appellant insists that liis claim was not that character of demand embraced in section 101 of Crawford & Moses’ Digest which must be authenticated by the affidavit of the claimant before suit could be brought upon it in the courts of this State. Section 101 of Crawford & Moses’ Digest, in so far as it requires the claimant himself to verify a demand presented against an estate, is as follows: “The claimant shall append to his demand an affidavit of its justice, which may be made by himself or an agent, attorney or other person. If made by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due.” The statute is dealing with the probation of claims against estates of deceased persons, and necessarily includes only claims susceptible to probate. The statute includes only specific money demands, due or to become due, and does not cover “inchoate and contingent” claims. Walker v. Byers, 14 Ark. 246. Appellant’s insistence is that the claim sought to be recovered in the instant case was not for a specific money demand, but was dependent upon an accounting between the parties, and hence an inchoate contingent claim, and for that reason did not require authentication or verification as a prerequisite to the assertion of same in the courts of this State. Appellee’s insistence is that the action brought is for the purpose of enforcing specific claims or items against the estate. A careful analysis and consideration of the bill has convinced us that it is an action for a partnership settlement, and not for the purpose of enforcing a specific money claim. It alleged that appellant and appellee’s intestate were partners; that appellee’s intestate withdrew a large amount of money from the partnership fund for individual purposes with which he failed to charge himself on the books of the firm kept by him. The prayer of the bill was for the appointment of a master to state an account between appellant and appellee’s intestate, and not for a judgment for any specific amount. The answer filed by appellee treated the bill as on'e for a partnership settlement. The allegations therein clearly indicate this, especially the allegation in reference to the settlements from time to time during the conduct of the partnership business, and also the allegation to the effect that appellant received from appellee’s intestate, or from said firm business, from time to time, sums aggregating more than his interest or share in said business. The prayer of her answer not only asked for a dismissal of appellant’s bill, but that it be treated as a cross-complaint and that the estate represented by her be allowed such amount as the court might find due her intestate. Our conclusion is that section 101 of Crawford & Moses’ Digest, defining the mode of exhibiting demands against estates, has no application to actions between partner's for partnership settlements. No money claim or demand can exist in favor of one partner against another until there has been a partnership settlement and some amount found due from one to the other. This is evident from the fact that a surviving partner has a right to wind up the affairs of the partnership without the intervention of proceedings in court. Until the affairs of the partnership are wound up, the state of the accjount between them is inchoate and contingent. Such claims are excepted from the requirements of the section of the statute pertaining to the presentation of claims against an estate to an executor or administrator.
The case of Walker v. Byers, 14 Ark. 246, cited and relied upon by appellee as controlling’ in the instant case, with reference to the necessity of authenticating the claim, is inapplicable, for the reason that the partner ship in that case had been dissolved and an account had been stated. Not- so in the instant case; the action is for a partnership settlement.
For the reasons given, the decree dismissing appellant’s bill is reversed and the canse remanded with directions to overrule the motion and reinstate the case. | [
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Hart, J.
The Watkins Hardware Company brought this suit in the circuit court against B. Hope and Early, Jones & Lybrand, a partnership composed of J. H. Early, J. E. Jones and L. H. Lybrand, to recover the sum of $1,524.43 for goods, wares and merchandise.
The firm of Early & Jones was the principal contractor for the construction of a highway in Polk County, Ark., and B. Hope was a subcontractor. The firm of Early & Jones, by a contract in writing, made itself responsible to the Watkins Hardware Company for the account of B. Hope. The latter purchased hardware from the Watkins Hardware Company to the amount of $1,524.43, which was due and unpaid at the time this suit was brought. Subsequently $1,216.61 was paid on the account, leaving .a balance due at the time of the trial of the case of $307.88.
On the 12th day of October, 1920, J. H. Early and J. E. Jones entered into a contract with L. H. Lybrand whereby he became a member of the film and interested in the construction of the road to be improved by the firm in Polk County, Ark. The written contract,. after reciting that Lybrand had purchased a one-third interest in the firm and in the aforementioned contract recites that Lybrand assumes ‘ ‘ a one-third of the liabilities and indebtedness of said firm, and an itemized statement of all money, debts, mules and. horses, machinery and tools and all other property owned by said firm, Early & Jones, up to date, hereto attached and made a part hereof,” etc.
The contract of the firm with the road improvement district is attached to the contract of partnership and forms a part of it. See. 8 of the partnership contract reads as follows: “It is further agreed and understood by the parties hereto that all machinery, tools, horses and mules, money and chattels, and liabilities incurred and indebtedness owed under the former firm of Early & Jones is hereby assumed jointly by the firm of Early, Jones & Lybrand.”
The defendant, Lybrand, offered to introduce in evidence a list of the debts owed by Early & Jones at the time he was received into the partnership and to testify that he only contracted to pay the indebtedness of the old firm which was exhibited to him at that time.
The court sustained an objection to this testimony offered by the defendant and directed the jury to return a verdict for the plaintiff.
L. H. Lybrand was the only member of the firm served with summons, and judgment was rendered against him in favor of the plaintiff in the sum of $307.80. To reverse that judgment, Lybrand has duly prosecuted an appeal to this court.
Lybrand seeks to reverse the judgment on the ground that he was only liable for the debts of the firm of Early & Jones which were exhibited to him at the time he entered into the contract of partnership with them, and that it was competent to prove by parol evidence that the debt sued on was not included in the list of debts of the firm so exhibited to him.
We can not agree with the defendant in his contention. The first clause of the contract which is recited above shows that Lybrand assumed one-third of the lia bilities and indebtedness of the firm of Early & Jones. It is true that the contract refers to a statement of all the money, debts, machinery, tools and all other property owned by the firm. This, however, does not mean the debts owed by the firm, bnt it means the debts that were due the firm. This is shown by the eighth clause of the contract which is copied above. It in plain terms provides that all the property of the firm is to be owned jointly and that all the indebtedness and Labilities of the former firm of Early & Jones was assumed by the firm of Early, Jones & Lybrand. The contract was complete in itself. It includes everything necessary to make a complete contract and there is nothing in its terms to indicate that it was not intended to express the whole agreement between the parties.
Therefore, the court properly held that all prior negotiations leading up to the written contract were merged therein and that the written contract could not be varied or modified by parol evidence. Goodwin v. Baker, 129 Ark. 513; Armstrong v. Union Trust Co., 113 Ark. 509; Cherokee Const. Co. v. Prairie Creek C. M. Co., 102 Ark. 428; and Zearing v. Crawford, McGregor & Camby Co., 102 Ark. 575.
The list of indebtedness which Early & Jones exhibited to Lybrand was only a matter of inducement for the latter to enter into the contract of partnership. It was only one of the matters in the course of negotiation and did not form a part of the contract of partnership itself. Therefore, the court properly held that the plain import of the language used in the written agreement could not be varied by parol evidence. The amount of indebtedness was undisputed, and the court properly directed the jury to return a verdict in favor of the plaintiff against the defendant, Lybrand, for that amount.
Therefore, the judgment will be affirmed. | [
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McCulloch, C. J.
This is an action instituted by appellees against appellant to recover treble damages for the cutting of timber on a certain tract of land in Hot Spring County, owned by all of the parties to the suit as tenants in common, appellees being the owners of an undivided one-eighth interest, and appellants being the owner of an undivided three-fourths interest. Appellant was in possession of the land and cut the timber without obtaining the consent of the other owners.
Appellant testified that he cut the timber for the purpose of clearing the land for cultivation, and it was undisputed that the stumpage value of the timber cut and removed was six hundred dollars, the interest of appellees being seventy-five dollars.
The court instructed the jury, over the objections of appellant, that if the jury found that appellant “knew that the plaintiff owned an interest therein,” then the verdict should be for the plaintiff for treble damages. The jury returned a verdict in favor of appellees, assessing damages in the sum of two hundred twenty-three dollars, which was three times the value of the timber cut and removed by appellant.
The court based its instruction allowing the recovery of treble damages on the following statute:
“If any person shall cut down, injure, destroy or carry away any tree placed or growing for use or shade, or any timber, rails, or wood, standing, being or growing on the land of another person, or shall dig up, quarry or carry away any stone, ground, clay, turf, mold, fruit or plants, or shall cut down or carry away any grass, grain, com, cotton, tobacco, hemp or flax, in which he has no interest or right, standing or being on any land not his own, or shall wilfully break the glass, or any part of it, in any building not his own, every person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed or carried away, with costs.” Crawford & Moses’ Digest, § 10320.
We are of the opinion that the statute quoted above has no application to a case where timber is cut by the owner of an interest in the land. The statute authorizes the recovery of damages for trespass committed by a stranger. On land owned by several persons as tenants in common, neither of the owners is a trespasser. There is, of con rse, a remedy in the law for any wrongful act committed by either of the tenants against the rights and in terests of others. Where one of the owners wrongfully commits waste by cutting the timber, or otherwise, the other owners have a remedy for recovery of the actual damages; or where the removed timber is converted into finished product and sold, there may be a recovery for the value of such finished product, less the cost of manufacture.
In the present instance it is not contended that the net value of the commodities manufactured from the timber amounted to more than the stumpage, and, as before stated, it is undisputed that the stumpage was four dollars per acre, or seventy-five dollars for the interest of appellees. It is also conceded that appellant is entitled to a credit of two dollars as against appellees, and this credit was allowed in the verdict of the jury. According to the undisputed evidence, therefore, appellees were entitled to a judgment against appellant for the sum of seventy-three dollars, and no more.
Counsel for appellees contend that the motion for a new trial was not filed in time, and for that reason the assignments of error are not available on this appeal.
It appears from the record that this cause was tried and the judgment rendered on July 22,1921, and that four days later a motion for a new trial was filed; that the court took the motion under advisement until an adjourned day of the same term, and that on November 4, 1921, the motion was overruled and an appeal was granted.' The contention of appellees is that the motion was filed out of time and should therefore not be considered.
The statute (Crawford & Moses’ Digest, § 1314) provides that applications for a new trial must be made within three days after the verdict, unless the court, for cause shown, permits the motion to be filed on a later day of the term.
Where a motion filed out of time is considered by the court and overruled, this court will indulge the presumption that the motion was filed with the permission of the court. Fordyce v. Hardin, 54 Ark. 554.
The eourt had the power to consider a motion at any time during the term, and the record shows that the court heard the motion at the same term and overruled it.
The judgment is therefore reversed, and judgment will he entered here in favor of appellees for the sum of seventy-three dollars and costs of the trial helow. | [
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Hart, J.
Willie Albert Taylor brought this suit in equity against Frank B. Taylor, from whom she had previously obtained a divorce, to have set apart to her on-third of Ms real and personal property, under § 3511 of Crawford & Moses’ Digest.
The complaint alleges that the plaintiff obtained a decree of divorce from her husband on June 6, 1914, in the chancery court of Jefferson County, Ark., but that the decree was not entered of record during the term at wMch the divorce was granted. It is alleged that the court of its own motion at a subsequent term entered a decree nunc pro tunc.
A certified copy of the record in the divorce proceedings is made an exhibit to the present suit. Plaintiff asked for a divorce from her husband on the ground of ill treatment. She alleges in her complaint that no property was accumulated during the marriage. She asked for an absolute divorce from her husband, and for such sum for1 her support as the court might deem proper.
No defense to the suit was made by the husband. The decree recites that, after hearing the evidence, the court was of the opinion that the prayer of the plaintiff’s complaint should be granted. It was decreed that the bonds of matrimony existing between the plaintiff, Willie Albert Taylor, and the defendant, Frank B. Taylor, should be set aside and that both should be restored to all the rights and privileges of unmarried persona. There was no appeal from this decree.
In the present case there was a finding and decree in favor of the defendant, and the plaintiff has appealed.
The plaintiff obtained a divorce from the defendant on the ground of ill treatment, and her sole ground for a reversal of the present decree is that she is entitled by independent proceedings to secure the division of property given her under § 3511 of Crawford & Moses’ Digest. It will be borne in mind that she is not seeking a restoration of her own property under the first part of the section, but is seeking one-third of the land whereof her husband was seized of an estate of inheritance during the marriage. The first part of the section providing for a restoration of the property which either party obtained from or through the other during the marriage seems to have been borrowed from Kentucky. In construing the Kentucky statute, the court said that it did not require that the decree of divorce should order the property to be restored; but that the statute seems to have contemplated that the latter order should be based upon the former and consequently that it might be made afterwards. In short, it was held that the section was designed to regulate the mode of enforcing the right of restoration of property acquired during the marriage. Williams v. Gooch, 3 Met. (Ky.) 486.
Again, in a case note to 11 L. R. A. (N. S.) 103, it is said that where the institution of community property of husband and wife exists and there is a statute providing for its division in connection with divorce proceedings, the general rule is that where the community property is not referred to in the decree of divorce, the parties become, as to such property, tenants in common. Hence she may recover it in a separate proceeding. We do not think that either of that class of cases controls here.
In the first class of cases, the statute provides a remedy for the restoration of property obtained by one spouse from the other during the marriage. It does not affect the title to the property, but simply restores it.
In the latter class of cases, when the divorce is granted it causes a dissolution of the marital rights in relation to the community property, and the wife is entitled to her share of such property and also to her own separate property, if any she had.
So it will be seen that in -each class of cases there is a restoration or division of property between parties who have a vested interest in it. The statutory estate given to the wife when she obtains a divorce from her husband is in the nature of dower. The statute provides that, when the wife is granted a divorce against the husband, she shall be entitled to' one-third of the husband’s personal property absolutely and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, for her life, unless, etc. The concluding part of the section provides that such decree shall be a bar to all claim of dower in and to any of the lands or personalty of the husband then owned or thereafter acquired on the part of his wife divorced by the decree of the court. This was but declaratory of the common law as it already existed in this State. .
In Barrett v. Failing, 111 U. S. 523, it was said that, unless provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties dissolving the bonds of matrimony put an end to all obligations of either party to the other, and that a valid divorce from the bonds of matrimony for the fault of either party cuts off the wife’s right of dower, and the husband’s tenancy by the curtesy, unless expressly or impliedly preserved by the statute.
This case was cited in Wood v. Wood, 59 Ark. 441, where it was held that divorce from the bonds of matrimony bars the wife’s right of dower. The question involved in this appeal was touched upon, but not decided in that case. There the former wife had filed a bill of review to set aside a decree of divorce from the bonds of matrimony obtained by her husband.. She contended as a part of her relief that a third part of. the estate of her divorced husband should be set apart to her, according to the terms of the statute under consideration in this case. With respect to her contention the court said: “But she did not assign the failure to do so as error in her bill of review, and seek to have it corrected. On the contrary, she sought to have the decree of divorce from the bonds of matrimony set aside, and thereby to surrender the right to one-third of her husband’s estate, if she was entitled to it, and for a divorce from bed and board and for alimony against appellee. She therefore has no right to complain in this court that she did not recover that which she neither asked for nor desired. Appellant did not undertake to show, in her original or amended bill for divorce, that she was entitled tc tne benefits of the act of March 2, 1891. Her original bill was filed before it was passed, and it was not amended thereafter in that respect. For the purpose of showing that she was entitled to considerable alimony, she alleged in the original bill that the defendant was not worth less than $200,000, but did not say in what his estate consisted, or that it was within the jurisdiction of the court. No information is given to show that the court had jurisdiction, by reason of the quality and location of the property, to set apart to her one-third of it under the act. It might have been real estate situated in another State. Nothing appears in the record, outside of the evidence, to show that the court committed an error of law in failing to divide the estate of the husband in accordance with the act. ’ ’
It seems, from the reasoning of the court in that case, that our statute allows one-third of the husband’s estate to be assigned to the wife when she obtains a divorce, and not afterwards. She would have no interest in the nature of dower in her husband’s estate after the divorce was granted, and if she could enforce the right by independent proceedings after the divorce was granted great confusion and uncertainty would result. After a divorce from the bonds of matrimony the husband might marry again, and, under § 3514 of Crawford & Moses’ Digest, in the event Of his death, his widow would be endowed of a one-third part of all the lands whereof he was seized of an estate by inheritance at any time during the marriage, unless the same had been relinquished in legal form.
So-it will be seen that if the first wife is entitled to maintain a. separate suit for one-third of her husband’s property under § 3511, this would to an extent repeal § 3514 of Crawford & Moses’ Digest with respect to dower. The title to the lands owned by the husband during the period of his marriage with his first wife would still be in him after he married again, and, in the event of his death before the statute of limitations barred his divorced wife from her recovery, the widow and the divorced wife would each under the respective statutes be entitled to dower in the same lands. This the lawmakers evidently did not intend. They manifestly intended to change the comm on-law rule that a divorce from the bonds of matrimony barred dower and to give the wife an estate in the nature of dower when a decree of divorce was granted in her favor'. If she did not ask and obtain the relief when the decree of divorce was granted, to her the matter became res juMcata.
This holding is in accordance with the general rule that in subsequent proceedings in the same court for the settlement of property rights between parties the matters which were or might have been litigated in the first suit are res judicatae. Livingston v. New England Mtg. Security Co., 77 Ark. 379, and Taylor v. King, 135 Ark. 43.
Again, it is contended by counsel for the plaintiff that she is entitled to the relief prayed for in this case because she was not present when the divorce decree was entered nunc pro tunc by the court on its own motion. There might be some ground for this contention if the plaintiff was seeking to set aside that decree. She does not seek to have that decree set aside, but on the contrary seeks to uphold it. It was for her benefit, and she can not consider it valid for one purpose and invalid for another. She must accept or reject it in its entirety.
As stated in Wood v. Wood, supra, she has no right to complain in this court that she did not obtain relief which she neither asked nor desired in the chancery court.
It follows that the decree must be affirmed. | [
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McCulloch, C. J.
This appeal involves a controversy between parties who respectively assert liens on a crop of cotton grown during the year 1917 on a certain plantation in Chicot County.
Robert Johnson was a tenant of appellees Trulock & Evans, under a contract that he would pay one-fourth of the crop as rent, and his share of the crop was twenty-eight bales after deducting the one-fourth delivered for rent. His share of the crop, when gathered and marketed, brought $3,142.11, and the account of appellees Trulock & Evans against him for money and supplies aggregated $3,518.93, which was $376.82 in excess of the amount of the proceeds of his share of the crop. Tru lock & Evans assert a lien on the crop for the full amount of the account.
Appellant’s intestate, J. T. Smith, was a local merchant, and in July, 1917, took a mortgage on Johnson’s crop and sold him merchandise to the extent of $961, for which a lien on the crop is asserted in the present action.
This action was instituted by appellant’s intestate, and a portion of the crop was taken under attachment. The chancery court sustained the superior lien of Trulock & Evans for the full amount of their account, which left nothing upon which appellant’s intestate could as-, sert a lien.
The cause was heard below upon the accounts of the parties and the testimony of Evans, one of the appellees, who, stated in his testimony that the items of the Trulock & Evans account were correct and that the whole of the account was for supplies furnished to Johnson to make and gather the crop, and that everything furnished was necessary to enable Johnson to make and gather the crop'.
The accounts of the respective parties are conceded to be correct so far as they represented the items of advances made to Johnson, and the only controversy in the case is whether or not the whole of the advances made ¡by Trulock . & Evans was necessary to enable Johnson to make and gather the crop.
It appears from the accounts exhibited with thé pleadings that up to November 24,1917, Trulock & Evans had furnished Johnson money and supplies amounting, in the aggregate, to $1,879.20, and had received about three-fourths of the crop, which overpaid the account. The account shows that on and after that date Trulock & Evans furnished Johnson money and supplies to the extent of $1,639.73.
Counsel for appellant concede that the account up to November 24 represented items for advances which were necessary to make and gather the crop, but they contend that the large amount furnished thereafter was not shown to be necessary to gather the crop, and that that part of the account does not constitute a lien on the crop as against the mortgage lien of appellant.
The amount of the account furnished after November 24, and after about three-fourths of the crop had been gathered, does indeed seem to be unreasonable on its face, but there is no testimony bearing upon that feature of the case except that of Evans himself, and he stated positively and unequivocally that each item furnished was necessary to enable the tenant to make and gather the crop. Counsel for appellant did not cross-examine him at all, and he was not asked to go into details concerning any of the items of the account. He was not asked to explain why so large an amount was necessary. He was not asked concerning the condition of the crop nor the lateness of the season nor the size of the tenant’s family for the purpose of ascertaining how much was necessary for him to be furnished. In other words, learned counsel saw fit to rest their client’s case solely upon the apparent unreasonableness of the account upon its face.
It is true that we are not bound by the uncontradicted statements of Evans, who was one of the interested parties, but where there is no contradiction of his testimony and no effort to have him explain the account and the circumstances under which it was furnished, we do not feel that we would be justified in disregarding his positive statements, which counsel themselves did not attempt to break down by cross-examination.
The statute (Crawford & Moses’ Digest, § 6890) gives a landlord, in addition to his lien for rent, a lien on the crop for all “necessary supplies, either of money, provisions, clothing, stock, or other necessary articles,” to enable the tenant to make and gather the crop. The lien is not confined to advances to enable the tenant merely to make the crop; it also, covers supplies furnished for gathering the crop.
A landlord asserting a lien must bring himself within the terms of the statute in order to enforce the lien against a third person. Few v. Mitchell, 80 Ark. 243; Kaufman v. Underwood, 83 Ark. 118. It devolves upon the landlord in such a ease to prove that the supplies 'furnished were reasonably necessary to enable the tenant to make or gather his crop, and it is usually a question of fact in each case for the determination of the trial court or jury whether or not the advances ao furnished were reasonably necessary for that purpose. Bourland v. McKnight, 79 Ark. 427; Earl v. Malone, 80 Ark. 218.
In the present case we are unable to say that the apparent unreasonableness of the amount of the account for supplies furnished during the gathering season was sufficient to overcome the positive statements of one of the witnesses to the effect that each item was necessary to enable the tenant to gather the crop. In that state of the proof the finding of the chancellor on that issue should not be disturbed.
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Smith, J.
Appellees were plaintiffs below, and filed a complaint containing substantially the following allegations: Plaintiffs are the owners of lands situated in Road Improvement District No. 3, a district organized pursuant to the provisions of act No. 338 of the Acts of 1915 (Acts 1915, page 1400), commonly known as the Alexander law, §§ 5399 et seq., C. & M. Digest. The order of the county court creating said district was made and entered on the 31st day of August, 1917. Said district was organized for the purpose of constructing the following hard roads: A road from McCrory west two miles; a road from McCrory so,uth two miles; a road from McCrory north two miles; a road from Mc-Crory east to the Cross County line, a distance of nine miles. For the purpose of constructing said roads, all the lands in the district were taxed on the basis of the estimated betterments resulting from the whole improvement. Betterments against the plaintiffs’ lands were assessed upon the assumption that the entire improve-, ment would be completed, as were all othér lands in the district. After the betterments had been so assessed, the commissioners of the district sold bonds aggregating $150,000, with the proceeds of which the roads north, south and west of McCrory were constructed, but only two miles of the road east of McCrory have been constructed, and seven miles of that road have been only partially constructed. That the dump is partially thrown up, but. the road is not in condition for use, and no benefit has accrued or will result from the partial work already done.
Plaintiffs are informed and believe that the district has exhausted its resources, and has no funds on hand, and no power to raise funds for completing the seven miles of unfinished road. The law limits the cost of the improvements to thirty per cent, of the total assessed value of the lands in the district for State and county purposes, and the cost of the work already done has reached this limit. The cost of constructing that part of the road which is already completed far exceeds the original estimate of the cost of such work. The improvement already completed is better in character and amount than called for 'by tbe original plans, and tbe benefits accruing from tbe completed improvement to tbe lands adjacent thereto far exceed the benefits assessed against said lands.
Plaintiffs allege that, by reason of the fact that the road contiguous to their lands was not in fact constructed and cannot be constructed for lack of funds and inability under the law to raise additional funds, no benefits will accrue to their lands, and that, as a matter of fact, the incomplete work of throwing up a partial dump has rendered the travel over it much more difficult, and is therefore a damage rather than a benefit. They further allege that building certain roads better than those called for by the plans exhausted the district’s funds before all the roads were built, and thus has brought about an inequality in the assessment of benefits as a whole which should be rectified by the commissioners of the district. Plaintiffs allege that, in anticipation of the completion of the improvement, they had paid taxes for two years, and had just recently ascertained that the district is without funds to complete the proposed improvement, and immediately upon obtaining that information they filed an application with the commissioners of the district for a reassessment of benefits, pursuant to § 18 of the act under which the district was organized; but the commissioners have failed and refused to readjust the assessments of benefits. Plaintiffs allege the payment of assessments for the years 1919 and 1920, and that other assessments extending over a period of twenty years are outstanding against their lands and will constitute liens thereon, in satisfaction of which the lands will be sold if relief is not afforded. Plaintiffs made no objection to the payment of their 1919 and 1920 assessments because they then assumed the plans of the district would be completed by building all the roads therein called for. It is further alleged that they have no remedy at law; that the commissioners refused to reassess the benefits; that the county clerk has extended, and the collector is now collecting, said assessments, and the said collector will, in due course, return the lands of these plaintiffs as delinquent if said assessments are not paid, and the lands will be sold. The complaint concludes with the following prayer: “Wherefore the plaintiffs pray for an order from this honorable court to the board of commissioners of the defendant road improvement district, directing them to make a reassessment of benefits on all the lands included in the district, pursuant to the authority conferred on said board by % 18 of the act under which it was established; and for an order restraining the county clerk from extending any road tax against the plaintiffs’ lands, and the collector from collecting any such tax, based on the present assessment of benefits against said lands; and for an order directing the board of commissioners to charge the plaintiffs’ lands with such sum as the tax for 1919 and 1920 would have amounted to on the basis of the readjusted assessment of benefits, and credit said lands with the amount of tax actually paid for said years. And the plantiffs hereby offer to give a good and sufficient bond, to be approved by the court, conditioned that the plaintiffs will pay the full amount of road tax that shall be found to be due from their lands, respectively, when the reassessment of benefits shall have been made, as soon as the amount of such tax is ascertained, which tax the plaintiffs hereby offer to pay. And the plaintiffs pray for such other, further and general relief as the facts may entitle them to, and to equity shall seem meet and proper.”
To the complaint the defendants filed a demurrer, which was overruled, and, as defendants refused to plead further, an order of the court was entered directing a reassessment of the betterments, pursuant to § 18 of said act No. 338 (§ 5430, C. & M. Digest), and enjoining the collection of the tax on the lands described in the complaint.
No bond was filed with the complaint; and no bond was required under the order of the court.
The defendant road district excepted, and has appealed.
Two questions are discussed and presented for our decision: First, may the chancery court order the commissioners to make a reassessment of the property? Second: Can the collection of taxes he enjoined without filing a bond, conditioned as required by § 5460, C. & M. Digest?
We think the chancery court had jurisdiction of this suit, upon the ground that it involves the enforcement of liens upon real estate. Bowman Engineering Co. v. Arkansas & Missouri Highway District, 151 Ark. 47.
In opposition to this view, the case of Johnston v. Conway, 151 Ark. 398, is pressed upon us. In that case the chancery court had itself made an assessment of betterments to pay a judgment due a contractor for the construction of a municipal improvement, and in doing so levied an assessment against the property in the district which exceeded the benefits accruing to the; property by reason of the improvement. We there held that the property owners could not be required to pay an assessment against their property for the cost of an improvement which exceeded the benefits accruing to the property by reason of such improvement. In the same case we also held that an assessment of benefits in a local improvement district, and any revision or readjustment thereof must be made by the board of assessors of the district in the manner prescribed by law, and that the chancery court was without jurisdiction to make such assessments for that purpose. The decree in that cause was reversed because it contravened both the legal propositions just stated.
Here the chancery court made no attempt to reassess the lands, but ordered that action to be done by the commissioners as assessors for the district, and the court has not, in the instant case, ordered an assessment made in excess of that authorized by law.
It is true that in the case of Johnston v. Conway, supra, we said a creditor of the district had an ample remedy at law to enforce any right he had, and that his remedy was not by action through the chancery court, and upon the remand of the cause leave was given, if the parties were so advised, to transfer the cause to the law court.
Without questioning the correctness of the directions there contained, under the facts there recited, it does not follow that a similar order must be entered in this case. We think the plaintiffs had a remedy at law by mandamus to compel the reassessment of benefits; but we are also of opinion that the relief to which plaintiffs are entitled may be worked out under the directions of the chancery court.
There are two sections of this Alexander road law which deal with the question of reassessments. The first of these is § 17 5429, C. & M. Digest), which authorizes a reassessment to conform to alterations in the plan of the improvement; and the section contains a proviso that if the district has issued bonds or other negotiable evidences of indebtedness, the total amount of the assessed benefits shall not be diminished.
The other- section, and the one under which the court ordered the commissioners to proceed, is numbered 18, (§ 5430, C. & M. Digest), and reads as follows: “§ 5430. The board of commissioners may, not oftener than once a year, order a reassessment of benefits, which shall be made, advertised, revised and confirmed as in the case of the original assessment and with like effect; but if the district shall have issued interest-bearing evidence of the debt, the total amount of the assessed benefits shall never be diminished.”
These sections were construed by this court in the case of Earle Road Improvement District No. 6 of Crittenden County v. Johnson, 145 Ark. 438. The road district in that case, as in this, was organized under the Alexander road law. At the 1919 Regular Session of the General Assembly a curative act was passed validating the organization of this district No. 6. In addition, this act (act No. 55 of the Regular Session of the General As sembly, Road Acts, volume 1, page 36) contained a section numbered 11 which provided that the commissioners of district No. 6, and those of three other districts, all organized under the Alexander law, might, “not of tener than once a year, require the assessors to reassess the benefits in said respective districts.” The same section also provided that the commissioners of road districts Nos. 7, 8 and 9 (which were districts created by another section of the act of which section 11 was a part) might, “not of tener than once a year, reassess the benefits in their respective districts; but in the event the respective districts shall have incurred indebtedness or issued bonds, the total of assessed benefits shall never be diminished.’ ’
Construing section 11 of this act No. 55 we there said: “A reasonable interpretation of the language of the statute is that it was intended to confer upon the commissioners of the district authority to order a general reassessment of the property under the restriction that the total amount of benefits should not be diminished below the amount of the obligations of the district. This interpretation of the statute is madé clear when we consider it in the light of certain sections of the general statute under which this district was originally organized.”
The court then proceeded to construe §§ 17 and 18 of the Alexander road law, in which connection it was said: “Section 17 provides, in substance, that when, by reason of a change of plans, the previous assessment of benefits has become inequitable, a new assessment may be made, and section 18 provides that the commissioners ‘may, not oftener than once a year, order a reassessment of benefits, which shall be made, advertised, revised and confirmed as in the case of the original assessment and with like effect.’ Section 18 cannot be construed as mere authority to correct inequalities in the original assessment, for that subject is fully covered by section 17. Obviously, the framers of the statute meant to create additional power in section 18 and to authorize something more than mere correction of inequalities. They meant, in other words, that there conld be a complete reassessment of the benefits to the property, with the proviso that the total amount of benefits as originally assessed should not be diminished so as to reduce the amount below the obligations of the district.
“Section 11 of the new statute, which is now under consideration, conforms' to section 18 of the general statute and authorizes a general reassessment. The term ‘reassessment’ necessarily implies a new assessment or to assess again, and it does not refer to particualr pieces of property, but to all the property in the district. ’ ’
Upon this interpretation the court announced its conclusion to be that the commissioners of the district were acting within their legal powers in ordering a reassessment.
It is true that in the case from which we have just quoted there was a special act, and we have set out its provisions ; but it appears that the special act did not substantially enlarge the powers conferred on the commissioners by the general statute; and we conclude here, as we did there, that the commissioners have the legal power to order a reassessment, and under the allegations of the complaint it is their duty to do so.
It does not follow, however, that the injunction in this cause was properly granted. Upon the contrary, we think it was prematurely ordered. This reassessment has been ordered, but it has not yet been made. It must be “made, advertised, revised and confirmed as in the case of the original assessment and with like effect;” and, inasmuch as interest-bearing evidences of debt have been issued, the total amount of the assessed benefits may not be diminished. Section 5430, C. & M. Digest.
The existing assessment must therefore be permitted to stand until the reassessment has been made and has become final. The outstanding obligations of the district are based upon the original assessment, and the proceedings to collect thereunder could not be enjoined until that assessment has been fully superseded by another assessment which meets the requirements of the law permitting the reassessment to be made.
It follows therefore that, while the court properly ordered a reassessment, the order restraining the collection of assessments was prematurely made and must be dissolved.
Section 5460, C. & M. Digest (which was § 41 of the Alexander road law), provides that “no injunction or process shall issue to stay the work on any road, or the collection of any tax thereunder, * * * unless the party applying therefor shall first enter into bond with good and sufficient security, to be approved by the court or judge granting same, and payable to the board of commissioners for the benefit of said district in double the.amount already expended on the establishment of the district and outstanding contracts, said bond to be conditioned for the payment of such amount, if said injunction is wrongfully granted, nor shall any injunction be granted except on ten days’ written notice to the president of the board of commissioners, which notice shall state the time and place of the intended application for said injunction. Any injunction issued by any court, unless the foregoing terms have been complied with, shall be void.”
It is obvious that the provisions of the section just quoted apply to suits which seek to stay the' construction of an improvement, or which questions the general right to collect the taxes due the district, and that it does not apply to the suit of individual property owners who seek a correction of their own assessments or an' adjustment or reassessment of the general benefits.
Moreover, as we have said, the injunction, in this case prematurely issued, and, as it must be dissolved, there is no occasion for a bond, even though the section quoted applied to suits of this character.
It follows therefore that, under the case made by the pleadings, the plaintiffs are entitled to have a reas sessment of benefits by the commissioners; but until that reassessment has been made the collection of the old assessments should not be suspended, and the injunction ordering this done is dissolved. | [
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McCulloch, J.,
(after stating the facts.) Did Williamson have the right of appeal from the order of the county court granting ferry license to appellants?
Section 33, article 7, of the Constitution provides that “appeals from all judgments of county courts * * * may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.”
The statute provides that “appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court at any time within six months after the rendition of same * * * by the party aggrieved filing an affidavit,” etc. Kirby’s Digest, § 1487.
The question then arises, who, in the meaning of the. statute, is “the party aggrieved” at the judgment appealed from? Is it any person who objects to its enforcement and who manifests that objection by appearing within six months and filing an affidavit for appeal, or is it necessarily a party to the judgment against whom the court has decided?
This court has held that in proceedings to set in force the three-mile prohibition law one who had not appeared before judgment and applied to be made a party could not appeal from the judgment. Holmes v. Morgan, 52 Ark. 99; Holford v. Kirkland, 71 Ark. 48. And that one not a party to the proceeding in the county court wherein a contract is made for building a county jail and the bond of the contractor approved can not appeal from the judgment. Armstrong v. Truitt, 53 Ark. 287. It has also held, prior to the adoption of the present Constitution, that citizens who have not made themselves parties to a proceeding in which an allowance against the county is sought can not appeal from the judgment of allowance. Chicot County v. Tilghman, 26 Ark. 461; Austin v. Crawford County, 30 Ark. 578. In Johnson v. Williams, 28 Ark. 479, an effort was made by the heirs of a decedent to appeal from a judgment of the probate court allowing a claim against the estate of such decedent, and the right to appeal was denied because the heirs were not parties to the proceeding; and in Arnett v. McCain, 47 Ark. 411; the right of heirs to appeal from an order of the probate court directing the administrator to sell lands of.the ancestor for payment' of debts was denied on the same ground.
Learned counsel for appellee rely upon the case of Ouachita Baptist College v. Scott, 64 Ark. 349, as sustaining the right of appeal without having been a party to the proceedings. In that case an appeal was taken by the heirs of a testator from a judgment of the probate court admitting the last will and testament to probate in common form without notice to the heirs, and the court held that the appeal could be taken by -the heirs who had not been made parties to the proceedings. The decision was put on the ground that adversary rights were involved in the judgment admitting the will to probate, that no other method was under the law afforded the heirs for contesting the will, and that the conclusion reached met the requirements of the constitutional provision which declares that “any person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive, in his person, property or character.” There is, however, a broad distinction between the rights involved in that case and in the case at bar. In that case private rights were involved, and were adversely adjudicated by admitting the will to probate, and no other remedy was open under the law than by allowing an appeal. The appellants, in that case, were “entitled to their day in court,” and in no other way could they secure' it. But in the case at bar no adverse private rights were directly adjudicated. The granting of a ferry license is not the adjudication of private rights, though such rights may incidentally grow out of the license granted. The county court, in granting a ferry license, does so for the benefit of the public, though the individual who obtains the license receives an incidental benefit, and private rights -grow up under it. It is true that, in granting a license to Turner and Thomas, the court indirectly and incidentally created competition for Williamson in his business as ferry keeper, but the judgment granting the license was not such a direct adjudication of his rights as made him “the party aggrieved.” The county court had the power, under certain conditions named in the statute, to grant more than one ferry license at the same place, and because it did so it can not be said that the judgment was an adjudication of the rights of the party who first obtained license, unless he made himself a party before rendition of the judgment.
The judgment of the circuit court is therefore reversed, and the appeal from the county court of Izard County dismissed. | [
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Battle, J.
This action was brought by J. W. Cobb against R. H. Williams, C. A. Ryan, G. R. Thompson, and I. E. Johnson, to recover money which he alleged was obtained by them through fraudulent acts and representations. The defendants answered, and denied the material allegations of plaintiff’s complaint, and alleged that plaintiff “had parted with his money on a bet or wager upon an unlawful game; and that in betting his money he did so with the purpose and intent of wrongfully and fraudulently winning the money of the person against whom he was betting, and that if there was any fraud or conspiracy in the transaction he was a participant therein.”
The issues were tried by a jury, and witnesses in behalf of plaintiff testified substantially as follows:
Cobb, the plaintiff, testified: “That he is a resident of Corrigan, Texas, proprietor of a saloon, livery stable and feed store, and had been acquainted with the defendant, I. E. Johnson, seven or eight years. The defendant, Johnson, as Cobb supposed, was a painter by occupation, but for several years had been engaged in taking orders for suits of clothes and selling men’s furnishings.
“It was in August, 1902, that Johnson approached witness, and opened to him the foot race proposition, claiming that he had a life-long acquaintance, whom he had befriended when they were schoolmates, and who promised Johnson that, if the future afforded an opportunity, he would do him a kindness in return. Johnson then related to Cobb that his friend, Harry Price, had been running races for a club of Colorado millionaires who were engaged in athletics merely for the sport, and that he had won considerable money for the club. But he also confided to him that he had been matched with a Montana man, who Price knew could beat him, and, inasmuch as the club was to lose its money in any event, the manager of the club had proposed to furnish money for some outsider to bet against the club’s man, namely $6,000, which was the purse for which the race was to be run. It was proposed that Cobb should go to Colorado Springs, and handle the money. He at first refused, but was finally persuaded to go. The reason given for Cobb’s services being in demand was that he was known to be a man of means, and his wagering such large sums would excite no comment, whereas persons of limited means would be subject to inquiries.
“Cobb was then made acquainted with the runner, Harry Price, whose report of the proposed race dovetailed with the statements of Johnson. Price represented that he knew he would be defeated by the Montana man, and that he and the manager of the club might as well have the money as a stranger. It was made plain to Cobb that he was not to hazard any money of his own, but only such sums as were furnished him by Thompson, manager of the club. Cobb protested that he knew nothing about the matter, but was willing to go out there with his friend, Johnson.
“The runner, Harry Price, then left, claiming he was going back to Colorado Springs, and also stating that he had given the millionaire club, as an excuse for leaving, that he was visiting a sick sister in Missouri, under cover of which excuse he came to Texas to see Johnson, and have a talk with him.
“Cobb armed himself with a letter of introduction from his bankers, and, thus equipped, he and Johnson started for Colorado Springs. At Port Worth Ben Ansel, another runner, who had started to meet Plarry Price, joined them, and together they went to Colorado Springs. There they met Harry Price, .and were introduced to G. R. Thompson, manager of the club. The supposed manager of the club corroborated what had previously been stated to Cobb by Johnson and Price, and also stated that Price had volunteered to secure the services of Johnson, an old friend and schoolmate, to come out and bet the money. Said the club members were very wealthy, and what they would lose would make no difference, and that he had explained to them that Plarry would be beaten in the next race, but they were determined to bet on him in any event.
“Cobb states repeatedly in his testimony that it was a new sort of business to him, that he knew nothing about racing or betting. The next morning Cobb was introduced to several of the supposed club members, including Ryan and Williams. Thompson proposed before this meeting, however, that the race be arranged for $5,000 or $10,000 stakes, and gave Cobb $2,500 to put up as a forfeit. Some of the club members arriving about this time, Thompson introduced the witness, and said to the clubmen that these were men from Texas, coming to match a race. He also explained that part of the members were absent. Inquiry was made as to how much of a race was wanted, and it was proposed to make it for $10,000. Thompson agreed, and $2,500 a side was put up as a forfeit. Drinks were then had, and Thompson handed Ben Ansel $5,000, which Ansel turned over to witness with directions to bet it, which the witness proceeded to do. Adjournments were had from time to time, at which intervals money was handed to the witness to bet. It was then„ suggested that most of the club members were up at Ogden, Utah, on some mining business, and they seemed to feel it was necessary to see a man named Washburn (afterwards identified by witness as the defendant, R. H. Williams), and after some parley it was agreed that the party should go to Ogden, Ryan agreeing to pay the expenses. To Ogden they went, and for the first time it was suggested to the appellee that he should make a showing of some money. It was stated to him that he would not need it, but that it was necessary to make a showing with.
“After persuasion of the appellants and their associates, the appellee went to the bank at Salt Lake, and drew for $10,000. Within a day or two the bank notified appellee that the money was there for him, and then appellee went up to Ogden, and met the man Washburn, who proved to be really the defendant R. H. Williams. A number of other members of the club were also at Ogden. More money was given to the appellee, and he was introduced to a man named Burns, one called “The Honey Grove Kid,” and others. Cobb bet the money given him, and presently some confusion was caused by one of the clubmen claiming that he had paid in a $500 bill to the stakeholder for a fifty, and asked that the money in the purse be counted to verify his statement. Thompson, the stakeholder, demurred to this, insisting that the purse was all right, but giving Cobb to understand that he did not dare count the purse because the money in it had been bet over and over again, and a count would show a shortage. (This part of the acting occurred at about the same place in every transaction.) Spme confusion was caused by this demand that the money be counted, and Johnson suggested to Cobb that they had better get away, and as they left Cobb remarked to Johnson, ‘Them fellows are going to have him count the money, all right, and I don’t blame them; I would, too,’ and that the affair would be all off. But presently Ben Ansel joined them, and reported they had agreed to put the purse in the bank, and count it after everything was decided. The next morning, Thompson, the stakeholder, came to Cobb’s room, and seemed to be in great distress, claiming they were short $7,500 of the purse money, and wanting to know what to do about it. He asked Johnson if he had any money, and Johnson answered that he had bet every cent he had. Thompson then turned to Cobb, who declared that he would not put up any money, and for them to say nothing to him about it. Thompson then said that, if that was the case, he might as well skip for Missouri, as, if the fellows counted the money, he was gone, and then Johnson begged the witness to furnish the money, which presently he did.
“The race was then run, and Ben Ansel, who was supposed to win for Cobb, Price and Thompson, the manager, while safely ahead in the race, fell down. (This always occurred in all of their races.) Thompson then said to Johnson, ‘For God’s sake, go and get them to have a new race,’ and appealed to Cobb to help Johnson get a new race. Presently Ansel got up, not having been killed by his fall. Then the witness remarked that the race was hot fair, this man having fallen down. A new race was then spoken of, and it was finally agreed to put up $20,000 more in addition to the $80,000 already supposed to be up, making a total purse of $100,000, for which they would run a new race twenty or thirty days hence, when Ansel should recover, the winner to take the whole purse; also that the runners were to run clear through, and not fall down, or that, if one did fall down, the race was to be off. Johnson and Thompson, the manager, agreed to raise the $20,000 for the new race. On the way. back to the hotel Thompson related to witness that he had a friend in Missouri, whom he could get the money from, and Johnson also said that he had a sister in Missouri he could get two or three thousand dollars from, and then they inquired of witness whether if they were a little short he would help them out. He then repeated to them that he had not come up here for anything like that, and wished he had not got into it, but if they lacked a little he would help.
“Cobb and Johnson then returned to Colorado Springs. There Johnson remained, ostensibly to see his friends, Price and the manager, Thompson. Ansel and the witness, Cobb, took their departure for Texas, the witness returning to his home. Some fifteen days later witness received a letter from Johnson, saying they would be ready for the other race on the first. The place where the second race was to be run had not been determined, but was finally settled at Aurora, Mo.
“Johnson came to Corrigan to visit Cobb, and represented to him that he had only been able to raise $2,000, and Thompson had only raised $1,000, and that everything was off unless the witness Cobb could get up the remaining $17,000, at the same time assuring him it would be all right. The witness says he studied about it. That he already had $10,000 in it, and had full faith in his friend, Johnson, who claimed he knew Harry Price well, and what he could do, and that Ben could beat Harry, and that everything was all right. The witness then went to Houston, got the $17,000, and in company with Johnson went to Aurora, Mo,, where he met the same party he had met in Utah and Colorado Springs, with the addition of the defendant Ryan, and some others. After reaching their hotel at Aurora, Thompson came in, and asked if witness was going to help them out. Witness told him he had the money, but was a little doubtful about it; that he was afraid something was wrong. Thompson replied that he knew Ansel could beat, and that witness need not doubt a thing in the world, to go ahead and put his money up, and he would assure-him his money was all right and safe. Thompson gave witness the $3,000, and witness added $17,000 to it, and put it up.
“In this race Price again won.
“H. M. Lary, a banker, testified that he was induced to participate in a footrace which was at Hot Springs, Ark., early in November, 1902. The enterprise was first tendered to him by one Dr. Goddard and Lucius Hindman at the home of witness in Hillsboro, Texas. They made substantially the same representations to Gary that they made to Cobb, stating that the club was going to lose a lot of money, and that he (witness) was needed for the purpose of betting money to be furnished him by others. He was to risk none of his money, and was to receive 25 per cent, of the winnings. He was also requested to carry along bankable paper for the purpose of 'making a showing.’ The runners in this case were Hindman and Clark, Hindman being the runner for the club, and Clark was supposed to be able to beat him. After negotiations for a week or ten days, the witness and Hindman started for Colorado Springs, and were joined at Fort Worth by Clark. Upon arrival at Colorado Springs, Hindman stated that the other boys were over in Utah, and that they had better go up there. Hindman and his associates were to pay all expenses, and Lary was to do nothing further than bet such money as was furnished him. He carried with him letters of credit and drafts issued by the First National Bank of West Texas, and made arrangements to wire for any amount of money he wanted. Not being able to have himself identified at the bank, the witness declined to remain long enough to have money sent him by express, and then Scott (really the appellant, R. H. Williams) told him that unless he had the money, the matter had better be off. It was so declared, and the witness returned home. After his return to his home, negotiations were opened again by Hindman, with the proposition that they should go to Hot Springs, Ark., where the millionaire club was supposed to be temporarily sojourning. He traveled to Hot Springs in company with Goddard and Clark. Hindman joined them at Hot Springs on their arrival November 2, and they remained here three or four days, during which time the witness had $10,000 placed to his credit in a Hot Springs bank. The witness became impatient at the delay of three or four days, and was finally told by Scott (Williams) that he would have to bet some money of his own. The witness refused, and told him the proposition was he was to be given $3,000 to start with, and when that was furnished to him he was ready to bet it. Scott was the stakeholder. A race was arranged for $5,000 a side, and $2,000 of the $3,000 furnished witness was put up as a forfeit. Witness was finally induced to put into the purse $5,000 of his own money, upon the assurance of the appellants that it would be handed back to him. The man Clark claimed to have the money to return to him, but Clark afterwards bet the money that witness supposed was to be handed back to him. The witness’ suspicions became somewhat aroused then, and he went back to his hotel, and was followed by his friend Hindman, who told him that they were about to get in trouble. Previous to this, some one had claimed that in summing up the money he was short $500, and insisted upon Scott counting it to see if there was not a mistake, and as a lot of it'had been taken out and re-bet, it was a terrible catastrophe witness was about to get in, as he expressed it, and he went back to the hotel, saying he was done with it, and they might count it. He was followed by Hindman, Goddard and Clark, who showed him the fix witness was about to get Scott in, saying it was a pity to send him to the penitentiary, Goddard saying Scott was his cousin. Hindman protested his great friendship for the witness, and wanted the witness to go back, and make the $5,000 forfeit good, which required $3,000 in addition to the $2,000 originally staked. Witness then submitted the matter to Clark as to whether or not he could beat the other fellow, and whether he aimed to do it, etc., and Clark reassured him to the extent that witness went to the bank, got the $3,000, and the race was had. Hindman and Clark were the racers, and Clark was safely ahead ten or twelve feet and within forty feet of the finish, when unfortunately he fell down. He appeared to be badly hurt, and the others were greatly excited and regretful over it, and would not have had the fall for $50,000, etc. The witness was thus swindled out of $8,100. There were no spectators at the race, the appellants intimating that it would have an ill effect upon their moral standing for it to be known that they were engaged in any sort of sporting. The usual proposal of another race was made to witness. Scott and Plindman agreed to get $10,000, and run the race over at Dallas, Texas. They separated, and the witness returned home, and, as he could not be induced to finance the second race, it was never held.
“The witness, upon cross-examination, emphasizes the proposition that he was not to bet a dollar of his money. Admits he understood the stake money was being bet over and over. Upon being pressed as to whether he understood his money would be lost, if it was lost, witness said there was no understanding that it would be lost. The understanding was positive that Clark was to beat Hindman, and that the club had no showing, and no one figured on losing at all. Witness also testified that he told the gentlemen that he would not bet his money against another man’s-trick, and that he had never agreed to bet a cent until they took it out and agreed to return it to him, that he had confidence in Clark, and it was agreed his money was to be taken out of the bag and given to him, and he would give it to witness. Witness-understood the race was a sure thing in his favor.
“J. H. Guinn testified to a similar transaction participated in by R. H. Williams, Clark and others, in which he lost $2,000, but the race in his case was never run, due to the fact that he only had $2,000 in Hot Springs, and returned to his home in-Arkansas City, Kansas, for the purpose of raising $7,000 more. He was induced to put his $2,000 in, just as the others, by Gibson, one of the footracers, showing him he had $5,000, and would return it to him immediately after the witness- put in his $2,000. Gibson then accepted a bet, and put all of his money in. The usual claim of somebody having bet $500 .more than was accounted for was made, and the usual disturbance and demand for count was had. After the witness went home to raise more money, one-of his friends, whom he approached, being wiser than witness, informed him that he was being swindled. This resulted in his friend, Gibson, who had inveigled him into the scheme, being forced to confess all of the details, and he admitted to witness that it was a fake game, that he was carried down there for the purpose of robbing him, but that he did not think that $2,000 would hurt the witness, and that was the last seen by witness of his friend Gibson.”
The court instructed the jury to return a verdict in favor of the plaintiff for the amount sued for, which they did: and judgment was rendered accordingly.
Defendants insist that, in the transactions detailed by the witness Cobb, the plaintiff is in pari delicto with them, and cannot' recover. This is their only defense.
In what wrong or crime were the plaintiff and defendants in pari delicto? If any; it was a conspiracy by the defendants to defraud the plaintiff and to steal his money; to obtain by deceit and falsehood the money of plaintiff by inducing him to believe that a foot race was to be run, and that they were actually wager ing their money, one against the other, upon it, and to induce him to believe he was betting upon a foot race. He did not particir pate in this conspiracy, and could not possibly have done so. He did put the money in the hands of one of their number as a wager upon one of the racers with the assurance that he would be sure to win. But the race was never run. Two men ran, but, according to a previous understanding, the one upon whom he. staked his money fell down, and the other passed out ahead, and was declared the winner. He did not bet upon such a race. There was no trial of the speed of the racers, which is necessary to constitute a race. There was no uncertain event to constitute a wager. It was determined and understood what the result of the pretended race would be before it was made. By fraud and deceit they caused him to make a pretended wager, and robbed him of his money, pretending that he had lost it. He might have intended to wager, if he had the opportunity, but intention without any act to carry it into effect does not constitute a crime or a wrong; and he was not in pari delicto with the defendants.
Webb v. Fulchire, 3 Iredell, Law, 485, 40 Am. Dec. 419, is similar to this case in some respects.- In that case the bet was that the plaintiff could not tell which of three cups covered a certain ball. The defendant put ’the ball under a particular one of the cups. The plaintiff selected that cup, as the one under which the ball was. The defendant raised that cup, and v the ball was not there. “The ball was, by deceit, not put under the cup, as the defendant had made the plaintiff believe, and under which belief he had drawn him into the wager; or that, after it was so placed, it was privily and artfully removed, either before or at the time the cup was raised.” Chief Justice RuRRin, speaking for the court, said: “Such a transaction cannot for a moment be regarded as a wager, depending on a future and uncertain event; but it was only a pretended wager, to be determined by a contingency in show only, but in fact by a trick in jugglery by one of the parties, practiced upon the unknowing and unsuspecting simplicity and credulity of the other. Surety, the artless fool, who seems to have been alike bereft of his senses and his money, is not to be deemed a partaker in the same crime, in pari delicto, with the juggling knave who gulled and fleeced him. The whole was a downright and undeniable cheat; and the plaintiff parted with his money under the mistaken belief that it had been fairly won from him', and, therefore, may recover it back.” See Wright v. Stewart, 130 Fed. Rep. 905.
This case and Webb v. Fulchire, supra, while the facts are unlike, are based -upon the same principle. '
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Battle, J.
John Russell, William Russell, Frank Russell, and Walter G. Russell brought an action against Charlie May, Lula May, -John'Bell, and Martha Bell, to recover possession of certain lands. They allege that William Russell was the owner of the lands in his lifetime; and that he died intestate on the 31st day of January, 1900, leaving them his only heirs, and.Malissa Russell, his widow, him surviving; and that Malissa Russell died sometime in September, 1900.
The defendants answered, and denied that the plaintiffs are the owners of the lands, or entitled to the possession thereof; and alleged that William Russell was the owner of the lands, but that he conveyed the same to his wife, Malissa Russell, on the 27th day of January, 1900, and departed this life on or about the 31st day of January, 1900; and that Malissa Russell died, leaving them, the defendants, her only heirs.
The issues were tried by the court, a jury being waived. The court found for the defendants, and rendered judgment in their favor for the land. No bill of exceptions was filed. The following is a copy of the judgment rendered:
“Come all the parties in person and by their respective attorneys, and, a jury being waived, the issues are submitted to the court, sitting as a jury, and the court, after hearing the evidence and argument of counsel, is of opinion and finds the facts to be as follows: That the plaintiffs are the only heirs at law of William Russell, deceased; that on the 27th day of January, 1900, the said William Russell was the owner in fee of the lands described in the plaintiffs’ complaint, towit: the west half of the southwest quarter of section 32, township 8 south, range 22 west, in Clark County, Ark., and the north half of the northeast quarter of section 6, township 9 south, range 22 west, in Pike County, Arkansas; that on the said 27th day of January, 1900, the said William Russell executed two deeds conveying said lands to Malissa Russell, his wife; that, after signing and acknowledging said deeds, the grantor left them with the notary public before whom they were acknowledged, with instructions to have them recorded, and paid him the money to pay for the recording, and to give them to no one but himself, and stated that he would return in a few days and get them. The said William Russell died on the 31st day of January, 1900, and never returned for the deeds. The notary public, on or before the 30th day of January, 1900, mailed the deeds above referred to to the recorders of the proper counties for record, and they were received by the said recorders on the 6th day of February, 1900, and recorded on that day. After they were returned to the notary public, they were. on the ioth day of February, 1900, delivered by him to the grantee, Mrs. Malissa Russell. The said Malissa Russell did not know of the existence of the deeds until they were delivered to her by the notary public. The court finds that the said deed_s_^are genuine, and not forgeries, and that it was the intention of the' said William Russell, when he executed the said deeds and caused the same to be recorded, to convey to his wife, Malissa Russell, a good and perfect title to the said lands above described. The court further finds that the defendants are the sole heirs at law of the said Malissa Russell, and hold under her, and that the said Malissa Russell died in September, 1900.
“The court declares the law to be as follows: ’ That, under the proof and facts in this case as are herein found, the making, acknowledging and having the deeds in question recorded vested a perfect title to the lands in controversy in the said Malissa Russell,- and that the delivery of the deeds was sufficient to pass the title.' That; the said Malissa Russell being the wife of the said William Russell, and the conveyances being beneficial to her, no formal acceptance thereof was necessary to pass to her the title, nor was it necessary for her to know of the conveyance before the death of the grantor.
“It is therefore considered, brdered and adjudged by the court that the defendant, Charlie May, is the owner and entitled to retain and keep the possession of the lands sued for herein, and that the’ plaintiff pay all of the costs of this action.”
The plaintiffs appealed. They contend that the statement of facts made by the court in the judgment shows that there was neither a delivery of the deed by William Russell, nor an acceptance thereof’ by Malissa Russell, and that the deed was of no effect.
A delivery of a deed is essential to its validity. It cannot take effect without delivery, and what' is a delivery depends upon the intention of the grantor. Any disposal of a deed, accompanied by acts, words, or circumstances which clearly indicate that the grantor intends that it shall take effect as a conveyance, is a sufficient delivery. 2 Jones on the Law of Real Property and Conveyancing, § § 1217-1224, and cases cited.
In this case the grantor and grantee were husband and wife. The court found from the evidence that the grantor intended to convey the land to his wife by executing the deeds and causing the same to be recorded.- It is evident'that he did not intend to do a meaningless and useless act when he caused the deeds to be recorded. Being the husband, of the grantee, it was his duty to provide for her and protect her interests. Causing the deeds to be recorded and directing that they should be delivered to him was a discharge of that duty. The recording was prima facie evidence of delivery, and the order to deliver the deeds to him did not remove that presumption, as the court found from the evidence not shown in the record that it was his intention to convey to his wife a good and perfect title to the land. The order to deliver the deeds to him was not inconsistent with that intention, it being his duty to protect and advance the interests of his wife, and the order to deliver being’ appropriate means to that end.
An acceptance of the deed by the grantee is also essential to its validity. If it is beneficial to the grantee, and imposes upon him no burdens, an acceptance may be inferred. If it be executed in pursuance of a previous understanding with the grantee, and is beneficial to him, an acceptance is presumed. In this case the deed was unquestionably beneficial to the grantee. But it is said that she did .not know of the existence of the deeds until after the death of her husband, and that this fact .disproves the acceptance. This does not necessarily follow. The confidential relation of husband and wife existed between the grantor and grantee, and it would have been natural for him to inform her of his intentions in advance, and for his wife to express her approval; and it by no means follows that she did hot accept because she did not know of th.e existence of the deeds until’ after the death of the grantor, which’was on the fourth day after their execution.
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Wood, J.
This appeal seeks to reverse a judgment against appellant recovered by appellee for the alleged negligent killing of a certain hog.
The proof showed that the hog was killed by one of appellant’s cars. And there was evidence from which the jury might have found that the motorman in charge of the car was negligent. But there is no evidence that the negligence of the motorman was the proximate cause of the injury. There is no proof that the motorman saw or could have seen the hog in time, by the use of ordinary care, to have prevented striking it. There was proof that the track was straight, and that the motorman might have seen a hog, had it been on the track in front of him. But there is no proof that the hog came on the track in front 'of the motorman in time for him to have stopped the car before striking it, had he seen it and used all the means in his power to that end. On the contrary, it was in evidence that the motorman remarked at the time “that the hog jumped on the track right in front of the car.” This was objected to, but the declaration, was a part of the res gestae and proper testimony. Carr v. State, 43 Ark. 99; St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333. This was the only •evidence as to how the hog got on the track.
• The hog was outside the “stock limit,” and it was not therefore contributory negligence for it to be running at large. Little Rock & F. S. Ry. Co. v. Finley, 37 Ark. 562; Little Rock Traction & El. Co. v. Morrison, 69 Ark. 289.
The' burden was upon the appellee to show that the hog was killed through the negligence of the appellant. She has failed to prove this; for, under the proof in this record, there is nothing to show that the hog would not have been killed, even if the motorman had been keeping the proper lookout, and had used every means available on a properly equipped car to avoid it.
Sec. 6773, Kirby’s Digest, making all railroads responsible for all damages to property caused by the running of trains in this State, is not applicable to street railways. They do not run trains, in the sense in which the term was intended by the law-makers. The whole act, February 3, 1875, shows that the Legislature did not have in mind street railways. This court, since Little Rock & F. S. Rd. Co. v. Payne, 33 Ark. 816, has often .held under this statute that where stock is.killed by the running of trains there is a presumption that such killing was through the ‘ negligence of. the company operating such trains. St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I. M. & S. Ry. Co. v. Bragg, 66 Ark. 248; Little Rock & F. S. Ry. Co. v. Wilson, 66 Ark. 414; St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32. ‘But no such presumption prevails in the case of street railways. In such cases it is not a question of presumption, but a matter of proof. Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 572. Doubtless, the presumption that is indulged under the statute applicable to railroads running trains was invoked below, ■.as it has. been here, to uphold this verdict, which is otherwise ‘without proof to support it.
The court should have given the first instruction asked by appellant. The court did not err in refusing requests fourth and sixth. The latter part of the fourth instruction as requested was abstract, there being no evidence- that the motorman dis covered the hog before the injury occurred. The fourth as modified was objectionable because it was abstract, there being no evidence to support it. The instruction given to the jury after the case had been submitted was in bad form, if not erroneous and prejudicial. Southern Ins. Co. v. White, 58 Ark. 277. But it is unnecessary to determine whether it was reversible errof. We assume it will not be repeated on another trial. For the error indicated the judgment is reversed, and the cause is remanded for new trial.
The first, fourth and sixth instructions asked by the defendant and refused by the court are as follows:
"First: You are instructed to find for the defendant.”
"Fourth: You are instructed that before you can find for the plaintiff you must find from the evidence that the hog went upon the track and was seen by the motorman of the car when the car was a sufficient distance away to have permitted him, by the exercise of ordinary care and prudence, to stop the car before striking the hog. If you find from the evidence that the motorman exercised ordinary and reasonable care to avoid the accident after he discovered the danger to the hog, and was unable to do so, then your verdict will be for the defendant.”
"Sixth: If you find from the evidence that plaintiff was guilty of negligence in failing to properly care for and guard her hogs, and that such negligence directly contributed to cause the injury complained of, your verdict should be for the defendant, unless you further find that defendant’s employees in charge of the car became aware of the danger to the hog in time to have avoided injuring it by the exercise of proper care, and failed to use such care.”
The fourth instruction, with the court’s modification indicated by the black letters, is as follows:
“You are instructed that before you can find for the plaintiff you must find from the evidence that the hog went upon the track and was seen by the motorman of the car, or could have been seen by him In the use of ordinary care In operating the car,, when the car was a sufficient distance away to have permitted him by the exercise of ordinary care and prudence to stop the car before striking the hog. If you find from the evidence that the motorman exercised ordinary and reasonable care to avoid the accident after he discovered the danger to the hog, and was unable to do so, then your verdict will be for the defendant.”
The instruction given by the court after the case was submitted was as follows:
“Gentlemen, this is a case peculiarly within the province of the jury to decide. The facts are as fully before you as they can be put before any jury. The law is plain and simple. The amount is small. It costs the county more to try this case than is involved to either of the litigants, and it is the earnest desire of the court that you decide this case, if you can, without giving up your honest and conscientious conviction.” (Reporter.) | [
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Battle, J.
Barnard & Leas Manufacturing Company instituted a suit against M. J. Smith and E. E. Smith, in the Izard Chancery Court. Its complaint is as follows:
“The plaintiff, the Barnard & Leas Manufacturing Company, a corporation, duly organized under the laws of the State of Illinois, and doing business as manufacturer of mill machinery and builder of mills at the city of Moline, in the county of Rock Island, in the State aforesaid, for its cause of action against the defendants, M. J. Smith and E. E. Smith, states: That on the nth day of March, 1903, the plaintiff entered into a contract with the defendants, which contract was reduced to writing and signed by the parties. A copy of said contract is herewith filed as an exhibit hereto marked ‘A/ and plaintiff asks that said contract be taken as part of this complaint.
“Plaintiff states that under the provisions of said contract the plaintiff agreed to furnish the defendants the following described machinery, towit:
1 double stand Willford Moline Roller Mills 9x24 Cor. Drive E.
2 double stand Willford Moline Roller Mills 9x24 Smoothe, Drive E.
1 - No. 15 Plan sifter Scalper, 4, Sec., with 4 sieves.
1 No. 1 Iiorz. Adj. Bran Duster.
8 Elevator Heads for 16 x 0^/2 pulley.
8 Elevator Boots for 16 x á^/2 pulley.
672 ft. 4-in. by 3-ply cotton belt.
504 3^x3 Improved Empire Cups, tin.
1000 Reliance Elevator Bolts, láxa-
los ft. 7-inch Single Leather Belt.
8 Boot Shafts for 16x4^4 pulley.
8 Elevator Head Pulleys, 16x4^2, bore 1 15-16.
60 ft. 4-inch by 4-ply Rubber.
5 Second-PIand Round Reels, 28x7, with new cloth.
1 G. T. Smith Centrifugal, with new cloth.
“All of the above six reels are now in warehouse at Spring-' field, Mo., and shall be in good condition, cleaned and made to' present a new appearance.
I Pulley 24 x 4 x I n-15 Bran Duster.
1 Pulley 11 x 3 x 1 11-15 Bran Sifter Scalper.
1 Pulley 20 x 4 x 1 11-15 7 Centrifugal Reel.
16 ft. No. 62 link belt.
“To be placed in, connected and used with the flouring mill owned and being operated by the defendants, near the town of Melbourne, Izard County, Arkansas, situated on the following described parcel of land:
“Part of the N. W. J4 of the N. E. J4 of Section 12 and part of the S. W. J4 of the S. E. )4 of section 1, township 16 north, range 9 west, beginning north 48 degrees, 4 chains and 6 J4 links from W. T. Kendrick’s lot on W. O. 14 inches, thence 48 degrees, 3 chains and 80 links with meridian variations, thence N. 32 %. and west 4 chains and 63 links to the center of Mill Creek, thence beginning at the beginning Cor. at W. O., thence N. 40 ¿4 and W. 3 chains and 85 links to the center of Mill Creek to intersect the line at the N. E. corner of said land.
“The plaintiff states that the price of said machinery is two thousand dollars, but it was agreed by and between the parties that in part payment for said machinery the plaintiff would accept from the defendants 1 No. 2 plan sifter, then in the mill of the defendants, to be delivered free on board of cars, sound and in good condition, and that by reason of said last-named agreement the sum of three hundred and fifty dollars, the reasonable value of said plan sifter, was abated, leaving amount to he paid by the defendants to plaintiff the sum of sixteen hundred and fifty ($1,650) dollars.
“The plaintiff further states that the defendants were by the terms of said contract to pay all freight charges on said machinery, furnish all millwright and other labor necessary to place said machinery in complete operation. The plaintiff was, if. required to do so, to furnish a foreman millwright or expert miller while sitting or starting said machinery at $4 per day, with board and traveling expenses to said mill from Springfield, Mo., and return.
“The defendants, in addition to delivering the plan sifter, aboye mentioned, were to pay to-the plaintiff the sum of sixteen hundred and fifty ($1,650) dollars, in installments as follows:
“Fifty dollars cash on closing contract; two hundred and fifty dollars cash upon receipt by defendants of bills of lading for machinery; three hundred dollars cash when mill should be completed and demonstrated to be as guarantied; five hundred and twenty-five dollars eight months after shipment of machinery; and five hundred and twenty-five dollars in eighteen months after shipment of machinery. It was further agreed the two deferred payments of five hundred and twenty-five dollars each should be evidenced by the promissory notes of the defendants. Said notes to'bear interest at the rate of 7 per cent, per annum from date, and were to be secured by a first deed of trust on the machinery, mill,' mill building of the defendants, and the real estate upon which it is situated.
“It was further agreed that, in case the defendants failed to make settlement as set out in said contract, the whole of the purchase price of said machinery should immediately become due and payable, and- the plaintiff might, enter upon the premises and remove said machine^ without being liable as trespasser or for damages to the premises.
' “The plaintiff further states that in pursuance of the contract above set out all of the machinery above mentioned as sold by plaintiff to defendants was in due time shipped to the defendants, addressed at Guión, Arkansas, the station on the St. Louis, Iron Mountain & Southern Railway designated by the defendants as most convenient for them to receive the same; that proper bills of lading were by due course" of mail delivered to the defendants ; that said machinery arrived at said station within a reasonable time'and in good condition, as required by the terms of the contract; that said machinery was accepted by the defendants, and the larger and most valuable parts thereof were removed and put iii their millhouse, some twelve miles distant from the said railroad station. The plaintiff states that, notwithstanding the exact compliance with the terms of the contract upon the part of the plaintiff by furnishing and shipping of each and every article of said machinery in strict accordance with the terms of the contract, the plaintiff’s readiness and willingness to furnish a foreman millwright or expert miller to place said machinery and demonstrate the capacity of the said mill upon request of defendants, as stipulated in contract, the defendants hold possession of the machinery aforesaid, have failed and refused to deliver the plan sifter of the value of $350 to the plaintiff, have failed and refused to pay the sum of $250 upon receipt of bills of lading for the machinery, have failed and refused to furnish the millwright and other labor to place said machinery so that its capacity can be demonstrated; have failed and refused to execute the notes and deed of trust for the two deferred payments; and have failed and refused to comply with any of the stipulations of their said contract with the plaintiff.
“The plaintiff states that, by reason of defendants’ failure to comply with any part of their contract, the sum of $1,650, which the defendants agreed to pay in money and secure by deed of trust, together with the sum of $350, the reasonable value of the plan sifter, which defendants agreed to deliver to plaintiff, in all the sum of $2,000, have become due under the terms of the contract.
“The plaintiff is informed, believes and is advised to say that, by reason of the contract between the parties above set out, The compliance with the terms thereof on the part of the plaintiff, the acceptance and removal of the machinery by the defendants, their retaining possession thereof, their agreement in writing to execute a deed of trust upon the property as above set out, their refusal to perform any part of their contract, constitute an equitable lien in favor of the plaintiff on the property, machinery, mill, mill building and real estate hereinbefore described. Wherefore the plaintiff prays judgment against defendants, M. J. Smith and E. E. Smith, for the sum of $350, the reasonable value of the plan sifter which defendants refuse to deliver to the plaintiff, according to their contract, and the further sum of $1,650, the amount to be paid in money, and now due altogether the sum of $2,000, with 7 per cent, interest thereon; that plaintiff’s lien on the machinery, mill, mill building, and real estate hereinbefore described be declared and foreclosed; that defendant’s equity of redemption in and to said property be forever barred, and, if the amounts aforesaid be not paid within a time fixed by the court, that said property be sold at such time and upon such terms as the courf may direct, and finally for all proper relief.
“Feeix M. HaneEy, Attorney for Plaintiff
The defendants answered as follows:
“They admit * * * that the defendants entered into a contract with plaintiff on the nth day of March, 1903, by which defendants purchased from plaintiff the machinery set out in plaintiff’s complaint, but said defendants deny that the price of said machinery was or is the sum of $2,000, as alleged in plaintiff’s complaint, and defendants aver that it was agreed that defendants should pay plaintiff the sum of $1,650 for said machinery and a certain plan sifter then in the mill of and belonging to the defendants at Melbourne, Arkansas, valued at the sum of $150.
■ • “Further answering, defendants deny that they are liable on the contract set out in plaintiff’s complaint, or that plaintiff is entitled to have a lien on property of defendants mentioned in plaintiff’s complaint, by reason of said contract, because they say that it was agreed by and between said plaintiff and defendants in said written contract that the plaintiff should furnish to the defendants, with the other machinery which they agreed to furnish,'* five second-hand' round reels 28x7 with new cloth, and one G. T. Smith centrifugal with new cloth, and that all of said reels should be in good condition, cleaned and made to present a new appearance, all of which will more fully appear by reference to the copy of the contract exhibited with plaintiff’s complaint. And defendants aver that plaintiffs failed and refused to comply with its contract in this regard, and -say that the reels furnished by plaintiff were not in good condition, and did not present a new appearance, but defendants allege and charge the facts to be that the reels furnished by plaintiff were in bad condition, were greasy and soiled, and had the appearance of being old, and showed long use, and that some of said reels were broken, and could not have been used without repair, and that none of said reels and cloths were in. a condition to be used without cleaning and repairing, and for this reason defendants refused to accept said machinery as soon as they became informed of the condition of the same, and that they promptly informed plaintiff of their objections, and refused to receive the same, and requested plaintiff to furnish the machinery as it had agreed, and in the condition agreed in said written contract, which plaintiff has refused and failed to do.
“Wherefore defendants say that they are not liable on the contracts sued on in tihs case, and that, by reason of said breach of said contract by said plaintiff, it has acquired no lien on said property of defendants, and they therefore pray that the complaint of plaintiff be dismissed, for their costs and for other relief.”
In a counterclaim, defendants claim that they were damaged, by reason of the failure of plaintiff to comply with its contract, in the aggregate sum of $1,543.50, and asked for a judgment against it for that amount.
Defendants did not ask for a rescission of the contract or offer to restore the property purchased by them, but on the contrary seek to recover damages of the plaintiff by reason of the alleged violation of their contract.
Upon hearing the cause upon the evidence adduced, the court found that the plaintiff was not entitled to recover on its complaint, because the evidence shows that plaintiff failed to furnish the six reels in the condition it agreed to do, and dismissed the complaint. And the court found upon the counterclaim that defendants had been damaged by the failure of plaintiff to comply with its contract as follows:
To amount paid for freight.....................$129.20
For amount paid for hauling machinery.......... 72.00
For cash paid on machinery...................... 50.00
Damage on loss of running machinery.......... 240.00
Total........................$491.20
And rendered judgment against plaintiff in favor of defendants for $491.20.
The defendants were not entitled to recover these damages by reason of the following provisions of their contract with plaintiff:
“The second party (defendants) to pay all freights and express charges on machinery and connections from Moline and factory where made, second party to deliver the same from cars to mill floors.
“The first party (plaintiff) agrees to ship said machinery as near the first day of April, A. D. 1903, as possible, barring strikes, accidents, or other causes of delay beyond its reasonable control. First party shall not be held liable for any pecuniary damages either for delays in shipment or in starting said mill, demonstrating results, or for defective material, other than to make good within a reasonable time said defects.”
The only question presented by the complaint and answer is: Were the six reels in good condition,-cleaned and made to present a new appearance when shipped to the defendants? The evidence upon this issue is conflicting. The writer and Mr. Justice McCurroch are of the opinion that the preponderance of it shows that they were shipped in such condition, except probably they needed revarnishing, which cost about twelve dollars. The other two judges, members of this court, who are present, are of the contrary opinion. This leaves the finding of the chancellor upon this question in full force, the court being equally divided, and relieves the defendants of the obligation to pay for the six reels, which, if according to-the contract, would have been worth $300.
In part payment for the machinery the defendants agreed to deliver to plaintiff, free and on board of cars, in sound and good condition a No. 2 plan sifter, then in defendant’s mill, worth $150, which they failed and refused to do. In addition to this, they agreed to pay to plaintiff $1,650 for the machinery, and 7 per cent, per annum interest on $1,050 of this amount from the time defendant’s mill was completed. Defendants paid $50, leaving $1,600 and the value of the plan sifter, $150, less $300 the value of the six reels, interest at the rate of 7 per cent, per annum on $1,050 of this amount, and 6 per cent, per annum on the remainder, from the commencement of this suit (it not appearing from the evidence when defendant’s mill was completed) still due and owing to the plaintiff, for the payment of which it is entitled to-a lien on the machinery, mill, mill building of the defendants, and the real estate upon which it is situate, and to the foreclosure thereof.
The decree of the trial court, except as to the reels, is therefore reversed, and the cause is remanded with instructions to the court to render a decree in accordance with this opinion. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by the railway company from a judgment against it for $150 damages caused a passenger for carrying him a mile and a half beyond his station. It is admitted that the train overshot the station, and carried the plaintiff some distance beyond it. According to witnesses for plaintiff, he was carried a mile and a half or two miles beyond the station, while the testimony for the defendant tends to show that the distance beyond the station at which he was put off was only half a mile. The defendant does not deny that plaintiff is entitled to some damages, but contends that the court erred" in instructing the jury as to the measure of the damages, and that the verdict is excessive. The court told the jury that, among elements of damages, they might allow plaintiff damages for the humiliation he might have undergone by such treatment caused by the-wrongful acts of the defendant’s agent in carrying him by his station.” Now, the effect of this instruction is that it gave the jury the authority to allow damages to plaintiff for humiliation, if they saw proper to do so, when there was no evidence to sustain such a finding. The mere fact that a passenger is accidentally or carelessly carried by a station, while it may cause him inconvenience and annoyance, involves no reflection on or insult to him, and furnishes no reason why he should feel humiliated. But this is all that is shown here, for the employees in charge, while they may have been careless, were guilty of no rude or offensive conduct, and this instruction should not have submitted the matter of humiliation to the jury as a possible element in the case.
Counsel for appellee contends that this instruction, was not erroneous because it does not assume that the appellee was humiliated, but submits that question to the jury for them to determine. But it is improper to submit a question to the jury that has no-evidence to support it. The instruction does not assume that the plaintiff was humiliated, but it assumes that there were facts in evidence tending to show that he was humiliated, and from which the jury might properly find that he was humiliated.
As before stated, there were no such facts, and, as under this instruction, the jury may have allowed a sum for the humiliation of plaintiff, and thus increased the damages, the judgment must be a reversal, and a new trial granted. It is so ordered. | [
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Wood, J.,
(after stating the facts.) The motion in arrest should have been sustained. The alleged forgery was óf a bank check. In the absence of statute, such an instrument must be set forth according to its tenor. The object of the rule is to enable the court to determine whether it is a writing that can be forged. 2 Bish. Cr. Proc. § 403. The mere substance or effect of the forged writing will not suffice, unless the instrument is lost or destroyed, is in the possession of the defendant, or otherwise wholly inaccessible to the pleader. Where such is the case, the disabling fact should be alleged. Then the substance will suffice. 2 Bish. Cr. Proc. 403, 404. “Where the law requires,” says Mr. Bishop, “the words to be laid by their tenor, the indictment must introduce them in one of the ways which denote this; it will not suffice merely to set them out accurately in fact. And if the case is within any class of the exceptions, as that the instrument is lost, or is in the hands of the defendant, * * * the excusing thing must be stated, or the indictment will be defective.” 1 Bish. Cr. Proc. § § 561, 562. The indictment for forgery should always set forth the forged or counterfeit instrument by facsimile copy when practicable. The rules of correct pleading certainly require this. State v. Bonney, 34 Me. 383; State v. Twitty, 2 Hawks (N. C.), 248.
2. As the cause must be remanded for new trial, it will be necessary to pass upon other questions presented. The’ plea of former conviction is not well taken. It is grand larceny under our statute to steal the check described in this indictment. Kirby’s Digest, § § 1821-4 inclusive. The check under consideration was of the value of more than ten dollars to its payee, James Frizzell. It did not require any indorsement by him to enable him to draw the money’ on it. One convicted for this offense could not plead former jeopardy if he were afterwards indicted and put upon trial for forging the same check. The two offenses have nothing in common. • They are not the same. One convicted for grand larceny could not be put in jeopardy by afterwards being put on trial for forgery.
3. As the present indictment will have to be quashed, and as the matter will doubtless be referred to another grand jury, the district attorney, in case of another indictment, will doubtless conform his pleading strictly to the proof. Therefore, we need not pass upon the question of variance. It is no't improper to say, however, that an indorsement on a note or check does not constitute in law a part of the note, and need not be set out in an indictment for forgery of such note’ or check. But if the indictment is “for the forgery of the indorsement, it must be set out, accompanied with such averments as will make the offense affirmatively appear.” 2 Bish. Crim. Proc. § 410; McDonnell v State, 58 Ark. 242.
4. The court erred in excluding evidence tending to show that Robert F. Frizzell, who was the manager of James Frizzell, and who had authority to indorse his name on checks, had been in the habit of giving money and checks to ajppellant for six months prior to this occurrence, and had authorized appellant to write the name of James Frizzell on checks before. This testimony was competent, as tending to show the intent with which the alleged criminal act was done. It tended to show the rela tion between the appellant and the agent of James Frizzell from whom the check was taken. The testimony tended to support the theory of appellant as to how he came into the possession of the check, and as to how the indorsement was made. It was not in the nature of self-manufactured evidence.
It was not competent to ask Frizzell if he had not been asked before the committing magistrate as-to whether or not he had been in the habit of giving appellant checks as appellant claimed he had given him this one, and whether or not he had given appellant this check, and what his answers were. Frizzell had not answered these questions before the committing magistrate, and there was nothing in these upon which to lay the foundation for his impeachment. These questions had no relevancy in the case, and were properly excluded.
5. It follows from what we have said that the court erred in giving the third instruction on its own motion. There was no charge of forging an indorsement on the check, and no proof that the check itself was forged. Hence under the present indictment there could have been no uttering of a forged instrument.
It is unnecessary to pass upon the second instruction asked for appellant and refused. What we have already said sufficiently indicates what the law is upon the questions covered by this refused request. The judgment is reversed, and the cause is remanded for a new trial. | [
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McCulloch, J.
The plaintiff, Dizette Christinet, brought an action of replevin before a justice of the peace of Pulaski County against the Gaskill-Mundy Carnival Company and Frank W. Gaskill to recover possession of a contrivance called “Cycle Dazzle Track” or its value, alleged to be $100, and damages in the sum of $25 for detention of the same. An order of delivery was issued and served, and the defendants gave bond to retain possession of the property. Judgment was rendered by the justice of the peace in favor of the plaintiff for recovery of said property or its value, $100, and damages in the sum of $25, and the defendant appealed to the circuit court.
In the circuit court the plaintiff, by leave of court and over the objection of the defendants, filed an amended complaint, in which she alleged the value of the article sued for to be $175, that it had been damaged by defendants in the sum of $113.46, and that plaintiff had sustained damages in the sum of $1,537.50 for the detention thereof.
A trial was had upon the amended complaint, which resulted in a verdict in favor of the plaintiff for the recovery of the property or its value, $61.54, damages to same in sum of $113.46, and damages for detention in the sum of $320, and judgment was rendered accordingly.
The defendant filed a motion for new trial, and also a motion to dismiss the cause on the alleged ground that the cause of action was not within the jurisdiction of the court. Thereupon the plaintiff was permitted to remit the judgment for damages to the property down to $100, and also the damages for detention down to $40, and both the motions of defendants were overruled, and they appealed to this court.
Jurisdiction of courts is defined to -be “the power to hear and determine a cause.” 1 Freeman on Judgments, § 118.
The jurisdiction of justices of the peace in actions for damages to personal property is limited to $100 in amount, and on appeal to the circuit court the jurisdiction of that court is limited to that amount, because the circuit court thereby acquires, only such jurisdiction as the justice of the peace had. Little Rock, M. R. & T. Ry. Co. v. Manees, 44 Ark. 100; Whitesides v. Kershaw, 44 Ark. 377; Bunch v. Potts, 57 Ark. 257.
It is urged, however, that, as the court had jurisdiction originally, the defect in jurisdiction by reason of the excessive amount claimed in the amended complaint was cured by the remittitur entered after judgment. The cause of action set forth in the amended complaint was for an amount in excess of the jurisdiction of, the court, and the court therefore had not “the power to hear and determine the cause.” It matters not that the court rendered judgment only for an amount which was within its jurisdiction; if the amount stated in the complaint was above the jurisdictional amount, the judgment was void because' of the lack of power in the court to render it.
In the case of Little Rock, M. R. & T. Ry. Co. v. Manees, supra, suit was brought before a justice of the peace to recover damages to personal property laid in the sum of $125, and in a trial in the circuit court on appeal that court rendered judgment for $100, which sum is within the jurisdiction of the justice, but this court held that the court was without jurisdiction, and vacated the judgment, and dismissed the cause.
In the first place, the court erred in allowing an amendment which raised the amount in controversy beyond its jurisdiction, and the final judgment of the court was void because it was rendered upon a cause of action which it did not have jurisdiction to hear and determine. The court should either have rejected the amendment or dismissed the cause for want of jurisdiction. It could not proceed to judgment upon the cause of action stated in the amendment. The remittitur after judgment did not give force to the void judgment. Works on Courts & Jurisdiction, p 67; Pritchard v. Bartholomew, 45 Ind. 219; Bickett v. Garner, 21 Ohio St. 659; Cross v. Eaton, 48 Mich. 184.
Where an amount in excess of the jurisdiction of the court is stated in the original complaint, and judgment therefor prayed, jurisdiction can not be afterwards conferred by amendment reducing the amount; but where jurisdiction is rightfully conferred, as in this case, by the original statement of a cause of action of which the court had jurisdiction, the allowance of an amendment increasing the amount beyond the jurisdiction is an error which may be corrected by rejection or withdrawal of the amendment, leaving the cause resting upon the statements of the original complaint. The distinction lies in the fact that in the one case the court never acquired jurisdiction at all, and none is conferred by an amendment reducing the amount claimed, and in the other the court acquired jurisdiction upon the cause of action originally stated, and the rejection or withdrawal of an improper amendment preserves the jurisdiction.
The judgment is therefore reversed, and the cause remanded with leave to the plaintiff to withdraw the amendment and proceed to trial upon the original complaint; otherwise, that the cause be dismissed. | [
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Battle, J.
This suit was brought by E. Bonner against the Board of Directors of the St. Francis Levee District to quiet title to certain lands. He alleges in his complaint that the defendant purchased at a sale on the 24th day of January, 1898, for unpaid levee taxes, and by virtue of its purchase acquired a deed thereto, and on the second Monday in June, 1898, he purchased the same lands at a sale for State and county taxes. He asked “that his title be declared superior to defendant’s claim of title, and that it be quieted, and the deed to the defendant be canceled, or, if the court should find that defendant had the best title, that defendant be required to refund to plaintiff all sums of money paid out on account of taxes both to the State of Arkansas and to the Board of Directors of the St. Francis Levee District, together with interest from date of such payments.”
After hearing the evidence the court found that the sale to plaintiff was void, and that he had paid the taxes on the lands,, which, together with interest, amounted to $101.50, and declared a lien in his favor for that amount, but taxed plaintiff with all the costs.
The tax books, as originally made and delivered to the collector of St. Francis County, showed that the south half of sections 34 and 35, in township 6 north, and in range 5 east, had been listed in the name of A. H. Chatfield, as entire tracts, and that taxes were extended against each tract of 320 acres; that the total taxes on each tract were $7.20, the tax rate being two and one-quarter mills on the dollar. Some one paid the taxes on the S. Yz of the S. J2 of said sections 34 and 35, and the taxes on the N. Ya of the S. J2 of each of said sections were not paid before the sale of the same therefor. The N. Y* of the S. Y¿ of each of said sections was returned delinquent for taxes of 1897, and was sold at the tax sale on the second Monday in June, 1898, and purchased by the plaintiff. These are the lands in controversy.
The statutes of this State provide that real property, belonging to the same owner, shall be assessed by section, or the largest subdivision of which the same is capable; and that “in all cases, when practicable, and the land is owned by one person, or one or more persons jointly, description of lands, both on the tax books and delinquent lists, shall be in tracts not less than one hundred and sixty acres,” and that lands shall be described on the delinquent lists as they are described on the tax books; and impliedly that they shall be sold at tax sale in the same manner. Kirby’s Digest, § § 6976, 7024, 7083 and 7085. The effect of these statutes is to prohibit the collector or other person changing the assessment of lands after the tax books have been delivered to the proper officer. The assessor only is authorized to make the assessment.
The south halves of sections thirty-four and thirty-five were each assessed as a whole. The value of no particular part was fixed, and from the assessment it could not be ascertained. One part may be worth more than another. For the purposes of taxation they could not be subdivided except by re-assessment. The offer of the north half of the south half of the sections, as separate tracts, for sale, was without authority, and the sale was void.
The lands in controversy continued subject to taxation after they were acquired by the St. Francis Levee District. School District of Ft. Smith v. Howe, 62 Ark. 481; Brodie v. Fitzgerald, 57 Ark. 445.
The decree of the chancery court is approved, except as to costs. Plaintiff, having asked for a decree to quiet title or for taxes and interest, and recovered the latter, is entitled to costs of the chancery and supreme courts; and it is ordered that he recover the same.
Appellee insisted in his brief that the lands were not subject to taxation, being “public property and exclusively for public purposes,” within Const. 1874, art. 16, § 5 (Rep.) | [
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McCulloch, J.,
(after stating the facts.) 1. Counsel urge that the court erred in refusing the third instruction asked by ■defendant, that, “if no motive be shown, it is a circumstance in favor of the defendant’s innocence, to be considered by the jury.” In criminal prosecutions it is competent to introduce testimony ■of facts and circumstances tending to show a motive or absence of motive for the commission of the crime by the accused, as tending, with more or less force, to establish his guilt or innocence. It is not improper for the court to instruct the jury that they may consider such testimony for that purpose. But this should be done in connection with all other facts and circumstances proved, and it is not proper for the court in the instructions to single out the proof of motive or absence of motive and tell the jury that they may consider that as a circumstance in favor of his guilt or innocence. Especially is this true where the language of the instruction is not guarded by a further instruction in the same connection that the jury are the exclusive judges of the weight and sufficiency of such testimony. . By giving the instruction in the form asked, the court would have placed undue weight upon the proof of absence of motive, thus invading the province of the jury. It would have been error for the'court to single out the question of motive for the crime and point to it as a proper subject of consideration as an evidence of defendant’s guilt, and it would have been equally erroneous and improper to point to the want of motive as an evidence of his innocence. We find no error in this ruling of the court.
Nor do we find any prejudicial errors in the remarks of the court to the jury in declining to accept the conditional verdict offered. The learned judge should have contented himself with declining to accept the imperfect verdict, without any remarks or reference to the course which the defendant’s counsel could take in the future; but we think that there is nothing in his remarks calculated to prejudice the rights of the defendant before the jury. Especially is this true in view of his remarks to the jury a few minutes later.
2. Counsel press, as grounds for reversal, other alleged errors of the court, some of which were not preserved in the motion for new trial. This is true of the exception to the testimony introduced by the State showing, as a motive for the crime, the ill-will of defendant towards his wife’s father. It is urged that this was too remote to serve as a motive, but the exception to this ruling of the court is not brought forward in the motion for new trial.
It is contended that certain members of the trial jury were allowed to separate from their fellow jurors during the progress of the trial, but we think that the testimony introduced on the hearing of the motion for new trial shows that these jurors were not subjected to any improper influences. One of the jurors is shown to have left the jury box during the progress of selecting the jury (after he had been accepted as a juror) and occupied for a short while a seat among the audience. This was before the completion of the jury and presentation of the case, and it is not shown that this juror was subjected to any improper influence. The separation of the juror at that time and under those circumstances was not sufficient to cast upon the State the burden of showing that he was not exposed to improper influence. This occurred in the presence of' the court and whilst the jury was being selected, and we can not say that he erred in his conclusion that the rights of the defendant had not been prejudiced by this indiscretion on the part of the juror..
3. Appellant’s motion in arrest of judgment on the ground of present insanity did not state statutory grounds for arrest of judgment, but-should have been treated as a motion to stay sentence, and, as such, the court erred in overruling it. The statute reads as follows: “He may also show that he is insane. If the court is of opinion that there is reasonable ground for believing he is insane, the question of his sanity shall be determined, by a jury of twelve qualified jurors, to be summoned and impaneled as directed by the court. If the jury do not find him insane, judgment shall be pronounced. If they find him insane, he must be kept in confinement, either in the county jail or lunatic asylum, until, in the opinion of the court, he becomes sane, when judgment shall be pronounced.” Kirby’s Digest, § 2240. The fact that a plea of insanity has been interposed as a defense to the crime charged in the indictment and a verdict of guilty returned does not bar a plea of insanity at the time of the trial or at the time of sentence. Either plea may be offered after trial and verdict. The verdict of the jury was conclusive only of his sanity at the time of the commission of the homicide. State v. Helm, 69 Ark, 167, 61 S. W. 915; Linton v. State, 72 Ark. 532, 81 S. W. 608.
Upon suggestion of the insanity of appellant, and reasonable grounds appearing for believing him to be insane, the court should have impaneled a jury to inquire into his condition. The testimony as to the mental condition of appellant at the time the homicide was committed was conflicting, though none of the testimony was directed to his condition at the time of the trial and verdict. The jury,.by the verdict first brought into court, demanding that an “investigation by experts be made into defendant’s condition,” demonstrated that after hearing all the evidence they had some misgivings as to his sanity, though a short time later they said by their verdict that they believed beyond a reasonable doubt that he was sane when he committed the homicide. We think, from this, that there were sufficient grounds for believing him to be insane, and that the court should have impaneled a jury to inquire into his condition.
Finding no prejudicial error in the trial, the verdict will not be disturbed, but the cause is reversed and remanded, with directions to the court before sentence to impanel a jury to inquire into the sanity of appellant.
Opinion delivered July 15, 1905. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment assessing a fine against a non-resident for herding, grazing, and permitting his cattle to run at large in the Northern District of Sharp County. ' The evidence was amply sufficient to support the judgment, and we see nothing in the charge .of the court prejudicial to the defendant, unless it be in the third instruction given by the court, which is set out in the statement of facts. That instruction told the jury that if the cattle of the defendant were being herded or grazed or permitted to run at large in this State, and he, while in Arkansas, procured, participated in or assented to the same,” then it would be the duty of the jury to convict him. The only doubt about this instruction is presented by the word “assented” therein. If the cattle of defendant, without being driven or induced by any act on his part, had come into this State, and were grazing here of their own accord, we do not think that the mere fact that he acquiesced or made no objection thereto would make out a case against him, under the statute. Beattie v. State, 73 Ark. 428.
But, taking all the instructions together, we are of the opinion that the word “assented” was used by the court in the sense of “consented,” In other words, we think that the meaning of this part of the instruction was that if the cattle of the defendant were being herded or permitted to run at large in the county named, and he consented thereto, he was guilty. This instruction told the jury in substance that if the cattle of the defendant were herded or permitted to run at large in the district in this State named in the indictment, with the knowledge and consent of the defendant, he was guilty, and this we think was in accordance with the law. Kirby’s Digest, § 7830; Smith v. State, 71 Ark. 478.
Opinion delivered May 21, 1905.
The evidence on the part of the State, if true, showed clearly that defendant was guilty, while, if the testimony of the defendant was believed, the jury could not have convicted him under any view» of the instructions given by the court. For this reason, while we think the word “assented” in the instruction was not the best word to use, we do not think it was prejudicial, under the evidence in this case. There were other objections raised, but on the whole case we are of the opinion that no prejudicial error was committed.
The judgment is therefore affirmed. | [
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McCulloch, J.,
(after stating the facts.) The court erred in its reasons stated for refusing to enter judgment against the defendant corporation. The allegations of the complaint were, in the absence of a motion to require them to be made more specific, sufficient to warrant a judgment thereon. The corporation is named in the complaint as one of the defendants, and it is therein alleged that the property “is now in the office of the Carpenter Investment Company, and is being illegally held by I. W. Ingram, C. M. Farmer and John G. Quertermous-, who are three out of four owners of the Carpenter Investment Company.” The corporation retained possession of the property by joining in the execution of a bond undertaking to perform the judgment of the court. If more specific allegations were to be required to the effect that the corporation was in possession of the property and wrongfully withholding the same from the plaintiff, the defect should have been met by a motion asking that the complaint be made more specific.
Tt does not follow, however, that the plaintiff was entitled to a judgment by default against the corporation. The answer filed by its codefendants tendered an issue which was a good defense to the action. They disclaimed any title in themselves, as individuals, but set up title and right of' possession in the corporation. Replevin is a possessory action, and the plaintiff in all such actions must recover, if at all, upon the strength of his own title, and not upqn the weakness of his adversary’s title. These defendants, in effect, while disclaiming any title in themselves as individuals, alleged that they held possession for the true owner, the Carpenter Investment Company. This was a good defense, and the answer inured to the benefit of the corporation, as it stated a defense common to all the defendants. Lowe v. Walker, ante p. 103; Fletcher v. Bank of Lonoke, 71 Ark. 1.
A trial should have been had upon the issue' thus tendered. But the refusal of the court to render judgment by default against one of the defendants was not a final judgment from which an appeal would lie, and the appeal taken by the plaintiff was premature. The action is still pending in the circuit court, and the appeal must be dismissed at the cost of appellant. Gates v. Solomon, 73 Ark. 8.
It is so ordered. | [
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McCulloch, J.,
(after stating the facts.) Upon the threshold of the case here, appellants present the question that the cause of action stated in the complaint, and the relief prayed for, are not within the jurisdiction of a court of equity, and that for that reason the complaint should have been dismissed. Conceding that, the complaint stated no grounds for the exercise of equity jurisdiction, the cross-complaint of the defendants, in seeking to restrain the plaintiff from obstructing the streets and alleys upon which the lots and blocks owned by defendants abutted, stated a cause of action clearly cognizable in equity (Davies v. Epstein, ante, p. 221; Texarkana v. Leach, 66 Ark. 40; Packet Co. v. Sorrels, 50 Ark. 466), and thus supplied the defects in jurisdiction. Radcliffe v. Scruggs, 46 Ark. 96; Crease v. Lawrence, 48 Ark. 312.
Where the court of equity rightfully assumes jurisdiction for one purpose, it may grant all the relief, either legal or equitable, to which any of the parties show themselves entitled in the subject-matter of the controversy. Crease v. Lawrence, supra; Hankins v. Layne, 48 Ark. 544; Apperson v. Burgett, 33 Ark. 328; Conger v. Cotton, 37 Ark. 286; Bonner v. Little, 38 Ark. 397.
There remain two questions to dispose of, viz.: the claim of title of the Dickinsons, appellants, under the tax deeds and by adverse possession for the statutory period of limitation, and the right of appellants to require the opening of the streets and alleys laid out on the plat of the three additions.
The tax sale of 1896, and the deed executed pursuant thereto, describing the land as “part E. Y%. N. E. Id. sec. 32. T. 12 S. R. 1 W.,” were void because of the imperfect and uncertain description. Schattler v. Cassinelli, 56 Ark. 172; Cooper v. Lee, 59 Ark. 460; Little Rock & Fort Smith Ry. Co. v. Huggins, 64 Ark. 432; Rhodes v. Covington, 69 Ark. 357.
Nor does the two years statute of limitation run under a deed containing such description. A deed failing to describe the land is equivalent to'no deed at all. In order to put this statute in operation, the adverse holding must be under a deed purporting to convey the land pursuant to a tax sale. The deed under which appellants claim to have held does not purport to convey the title to any land, because none is described therein. Rhodes v. Covington, supra.
The second tax deed under which appellants claim title is void for a different reason. Conceding that the description “Erl. E. J/¡, N. E. pi, sec. 32, T. 12 S., R. 1 W.,” where the section is not in fact fractional, is sufficient to describe the whole of the east half of the northeast quarter, the record shows that appellee paid taxes for the same year on part of the same subdivision, and, this being true, a sale of the tract for the whole of the taxes assessed, when part of the taxes thereon had been paid, renders the sale void. A tax sale made for an excessive amount is void. Goodrum v. Ayers, 56 Ark. 93; Cooper v. Freeman, 61 Ark. 36; Kirker v. Daniels, 73 Ark. 263.
Appellant’s plea of the statute of limitation under this deed can not be sustained, for the reason that they were in possession of the land as tenants of appellee, and the possession was not adverse. They could not acquire title by limitation while occupying the lands as tenants of appellee. Possession thus held was not adverse to the rights of the landlord.
Did appellants have the right to require the opening of the streets and alleys indicated on the plats of the several additions ?
In the recent case of Davies v. Epstein, supra, we approved the generally established doctrine that “an owner of land, by laying out a town upon it, platting it into blocks and lots intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.” It is equally well established that “merely laying out grounds, or merely platting and surveying them, without actually throwing them open to public use or actually selling lots with reference to the plat, will not, as a general rule, show a dedication.” Holly Grove v. Smith, 63 Ark. 5; Elliott on Roads, § 117; United States v. Chicago, 7 How. 185.
In the case at bar none of the streets and alleys were actually thrown open to use, and no sales of lots to third parties are shown .to have been made. However, we think that the fact that lots and blocks are still owned by the several alleged dedicators, or their privies, is of the same force in effectuating the' dedication inter sese as if sales of lots had been made to third parties. Either may object to a revocation of-the dedication, if the objection be manifested in apt time.
The question presented now is not so much that of the original intention on the part of the owners to dedicate to the public use, but whether the dedication has been revoked by the dedicators by an abandonment of the scheme in furtherance of which the original dedication was intended. None of the lots and blocks having been sold to third parties, and, the streets and alleys never having been thrown open to public use, neither the public nor any third parties have rights in the dedication. It therefore remained within the power of the owners to revoke the dedication. Elliott on Roads, § 150; Holly Grove v. Smith, supra; People v. Underhill, 144 N. Y. 316; Steinauer v. Tell City, 146 Ind. 490.
The revocation may be accomplished either by an affirmative act in recalling it, or by an abandonment of the scheme. The question of abandonment is one of fact, and may be said to occur where the object of the use for which the property is dedicated wholly fails. Bayard v. Hargrove, 45 Ga. 342; Board of Education v. Edson, 18 Ohio St. 221; Campbell v. Kansas City, 102 Mo. 326; Board Com’rs Mahoning County v. Young, 59 Fed. 96; State v. Travis County, 85 Tex. 435.
It has been often said that the fact of dedication depends wholly upon the intent, as manifested by open and visible acts, to appropriate the land to public use; and it is equally true that the fact of revocation by abandonment depends upon the intent, as manifested by open and visible acts, to abandon the purpose in furtherance of which the dedication was designed. Now in this case not a single lot has been sold in this “paper city,” nor a single one of the streets thrown open to public use. For more than twenty years since the alleged dedication no effort has been liiade by the owners or any one else, so far as the proof discloses, to bring the land within the limits of the incorporated town of Arkansas City. On the contrary, the land has been continuously fenced and cultivated as a farm. Where the fences were washed away by overflow, they were rebuilt, and the platted streets again obstructed thereby. The conclusion is irresistible from these circumstances that the whole scheme for making the additions to the town of Arkansas City has failed, and has been abandoned. It is true that one of the appellants testifies that he expects,'at some time, to sell the lots and to have the territory added to the town, but there it nothing in the testimony to warrant a definite or reasonable expectation that such scheme may soon be accomplished. It appears to be more a hope for future results rather than a definite present intention to bring about the result. There is nothing shown to manifest such intent until the parties had disagreed about the terms of renting the lands again for farm purposes, and this suit resulted. It was then too late, after the abandonment of the scheme, for either of the owners to insist upon a dismemberment of the farm property by throwing open the streets and alleys intersecting it.
Opinion delivered March 24, 1906.
We think the chancellor was correct in holding that the alleged dedication was not still in force, and that appellants could not demand the opening of the platted streets, avenues and alleys.
It is contended by appellants that no title passed to the streets and alleys on which the lots and -blocks of appellee abutted because the conveyances under which appellee holds describes the property conveyed only by lot and block numbers.
A conveyance of lots and blocks, describing them by numbers only, passes the fee to center of the streets and alleys on which they abut, subject only to the rights of the public to use the same as highways; and when the streets are vacated or the use abandoned, they revert to the owners of abutting lots. Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrels, 50 Ark. 466; Thomsen v. McCormick, 136 Ill. 135; Bayard v. Hargrove, 45 Ga. 342; Harrison v. Augusta Factory, 73 Ga. 447; Elliott on Roads, § 886; Banks v. Ogden, 2 Wall. 57; 13 Cyc. p. 492.
It follows that, the dedication never'having been in anyway accepted by the public, and having been revoked by abandonment of the scheme for converting the lands into additions to the adjacent town, the title to the streets, avenues and alleys passed to the owners of abutting platted lots and blocks as grantees of the original dedicators. That is to say, they own to the center of the platted streets, etc., and of course where they own the lots on both sides it carries the title to the whole street.
This applies also, of course, to appellants as owners of some of the lots and blocks and their'title to the center of the streets on which their' lots abut is not disputed. Nor is their right to reasonable means of ingress and egress to and from their property disputed. That is expressly recognized, and not involved in this litigation. It is only their right to have the streets and alleys, as such, thrown open to use which is denied by appellee, and which by this decision is denied to them.
The decree is therefore affirmed. | [
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McCulloch, J.
The petitioners, James E. Collins and others, were appellants in the case of Collins v. Paepcke-Leicht Lumber Company, 74 Ark. 81, decided by this court on January 28, 1905, a day of the November term, 1904, and they now present their petition alleging that the Hon. M. L. Hawkins, Chancellor of the Chicot Chancery Court, has refused to enter and carry out the judgment and mandate of this court, and they pray that a peremptory writ of mandamus be issued, compelling him to do so.
The judgment of this court recites the finding that “said chancery court erred in dismissing the plaintiffs’ complaint for want of equity, whereas said chancery court should have granted the plaintiffs relief as to an undivided half of the lands in controversy,” and the decree. was reversed and remanded with directions to the chancery court to “enter a decree for appellants for an undivided half of the lands in controversy, and for further proceedings to be therein had in accordance with the opinion herein delivered.” The opinion of the court merely held that appellants were entitled to an undivided half of the lands sued for.
It appears from the petition and response that at the April term, 1905, of the Chicot Chancery Court, the mandate of this court having been filed, the petitioners filed an additional plea by the way of amendment to their complaint, alleging that since the institution of the suit the defendant, Paepcke-Leicht Lumber Company, had cut and removed a large quantity of valuable timber from said land, and they asked that a master be appointed to hear testimony and state an account of the amount and value of timber so cut and removed by defendant. The defendant at the same time filed a motion, asking the court to enter a decree in favor of the petitioners for an undivided half of the lands in accordance with the mandate of this court, and the chancellor thereupon refused to grant the prayer of petitioners for the appointment of a master, but entered a decree in their favor for an undivided half of the land. We are now asked to issue the writ, of mandamus, requiring the chancellor to take cognizance of plaintiffs’ said amendment to their complaint, and to appoint a master to take an account of the timber cut.
The judgment of this court became final with the close of the term during which it was rendered, and we have no power to' modify or enlarge it. It must speak for itself.
An inspection of the record in the case discloses the fact that, while the original complaint alleges that the defendant had cut a large quantity of timber, and the answer denies that allegation, no proof on that issue was taken by either party. Neither the lower court nor this court made any express finding as to timber cut. Whether the final judgment of this court bars the right of the plaintiffs to assert a claim against the defendant for timber cut during the pendency of the suit is a question we need not decide, as it is not properly before us for decision. It is relief which did not fall within the judgment of this court, and we cannot, therefore, compel the chancellor by mandamus to grant it. The relief asked for is not such as was, under the decision of this court, warranted by the proof in the case; and if the plaintiffs be entitled to it at all, the decision of the question by the chancellor is not one that will be controlled by mandamus. The chancellor decided that they were not entitled to the further relief, and refused to grant the prayer of the amended complaint. If he cómmittted an error in that decision, it can only be corrected by appeal. The judicial discretion of inferior courts cannot be controlled by mandamus. Ex parte Johnson, 25 Ark. 614; McMillen v. Smith, 26 Ark. 613; County Court v. Robinson, 27 Ark. 116; Hempstead County v. Grave, 44 Ark. 317; Winter v. Simpson, 42 Ark. 410.
The prayer of the petition is denied. | [
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McCulloch, J.,
(after stating the facts.) The policy sued on contained a clause providing that “if the property insured now is or shall become incumbered by mortgage or otherwise, * * * or if the interest of the member in said property, or any part thereof, now is, or shall become, any other or less than a perfect legal and equitable title and ownership, free from all liens whatever, except as stated in'writing hereon, * * * then, and in every such case, this contract shall be absolutely null and void.” The defendant, among other defenses, pleaded a violation of the above condition of the policy by appellant, and to sustain the plea introduced testimony showing that at the time the policy was issued, and ■ at the time of the fire, the dwelling house insured was incumbered by a mortgage executed by appellant and his wife to one Margaret C. Powell to secure a note of $500. The mortgage was not filed for record until after the fire. Appellant admitted the execution of the mortgage and note, but testified that the property was his homestead, and that his wife signed, but did not appear before the officer, nor acknowledge the execution of the mortgage, and that the officer had falsely certified the acknowledgment at his (appellant’s) request. The mortgage bears date of January 21, 1899, and the policy of insurance was issued September 27, 1899, to cover a period of three years from that date. J. D. Powell, uncle of appellant and husband of Margaret C. Powell, testified that, he lent the sum of $500 to appellant, and took the note therefor, payable to his wife, and the mortgage securing same; that his health was poor, and he caused the note and mortgage to be executed in her name as a provision for her in the event of his death, and that he delivered the same to her several months after date of the mortgage.
Appellant contends that the mortgage was void, and did not constitute an incumbrance within the meaning of the policy, because (1) it was not recorded, and (2) was not acknowledged by his wife, the dwelling house being his homestead.
An unrecorded mortgage is good between the parties, and constitutes a valid lien, except against subsequent purchasers or lienors. Main v. Alexander, 9 Ark. 112; Ford v. Burks, 37 Ark. 91; Martin v. Ogden, 41 Ark. 186; Leonhard v. Flood, 68 Ark. 162.
The lien constituted an incumbrance against which the insurer sought to protect itself by the condition inserted in the policy. Packard v. Agawam Mutual Ins. Co., 68 Mass. 334; Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio St. 479.
The defect in the mortgage by reason of the failure of the wife of the mortgagor to appear before the officer and acknowledge the same was cured by act of the Legislature approved March 13, 1899 (Kirby’s Digest, '§ 785). Hill v. Yarborough, 62 Ark. 325; Williamson v. Lazarus, 66 Ark. 226.
Appellant insists that the curative statute has no application because the proof shows that the mortgage was not delivered to Margaret C. Powell, the mortgagee, by her husband until after the passage of the statute in question. The mortgage was executed and delivered, before the passage of the statute, to her husband. It was given for her benefit, and, having been delivered to her husband, her acceptance is presumed. Kerr v. Birnie, 25 Ark. 225; Eastham v. Powell, 51 Ark. 530; Breathwit v. Bank of Fordyce, 60 Ark. 26; 13 Cyc. p. 565, and cases cited.
The foregoing facts were undisputed, and the court properly directed the jury to return a verdict in favor of the defendant.
Affirmed. | [
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McCulloch, J.,
(after stating the facts.) The mortgage was executed under seal, and contained an express covenant to pay the debt. Therefore the period of limitation within which foreclosure suit could be commenced was, under the statute then in force, ten years from the accrual of the right of action. New England Mortgage Security Co. v. Reding, 65 Ark. 489; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.
The suit was originally commenced within the statutory period. . But, even if it had not been brought within the time required, in order to take advantage of the statute of limitation, it must have been specially pleaded in the foreclosure suit. The decree in that suit; if valid at all, cut off all defenses which might have been pleaded therein. Church v. Gallic, 75 Ark. 507; Ward v. Derrick, 57 Ark. 500.
The order of court dropping the case from the docket, with leave to reinstate, was not a dismissal or discontinuance of the suit. A dismissal or discontinuance, though not a final determination of the controversy, is a final ending of that particular suit. Anderson, Dict. s. v. “Dismiss,” p. 364; “Discontinuance,” p. 360; “Nonsuit,” p. 712; 14 Cyc. p. 391.
The order made by the court in this case expressly negatives any intention to finally terminate the suit, and the effect of the order was merely to suspend it. The court retained jurisdiction over the parties and subject-matter of the action. Randolph v. Nichol, 74 Ark. 93, 84 S. W. 1037; 2 Black on Judg. § 912; Weaver v. Ruhm (Tenn.), 47 S. W. 171; Sharpe’s Ex’or v. Rockwood, 78 Va. 32.
If,, however, the order be treated as' a dismissal or nonsuit, it was without prejudice to the right to bring another suit. The issuance and service of summons was tantamount to commencement of a new suit, and, having been done within one year after the dismissal, the statute bar did not attach. Kirby’s Digest, § 5083.
If it be so treated, the decree was not void because of the failure to make appellant, as subsequent purchaser, a party, so as to cut off his equity of redemption. His only rights in the property, as against the mortgagee, was an equity of redemption. He may still exercise that right, the property not having been sold, but he has not offered to do so. On the contrary, he disputes the subsisting validity of the mortgage, and seeks to cancel it. This he cannot do. The suit having been commenced against the mortgagors within the period of limitation, the statute bar did not attach. Less v. English, 75 Ark. 288; Dickinson v. Duckworth, 74 Ark. 138.
This brings us to the question whether or not the order of reinstatement and the final decree were rendered without notice and void, treating the suit as being either reinstated or commenced anew.
The court expressly found tha. the defendants Richard C. Rudwick and Mary J. Rudwick had been duly summoned, and such finding is recited in the .decree. . The summons rar against both of said defendants, by name, and the sheriff certified in his return that he had duly served the same upon “the within-named Richard C. Rudwick and Mary J. Rind.” No explanation of .this vaiiance is given in the record; and, this being a collateral attack upon the decree, we must presume in favor of the court’s exercise of jurisdiction over the parties where it is not shown by proof aliunde that the writ was not in fact served on both of the defendants. Boyd v. Roane, 49 Ark. 397; Hill v. State, 50 Ark. 458; Porter v. Dooley, 66 Ark. 1; Porter v. Tollman, 68 Ark. 211.
We find no error in the decree, and the same is affirmed. | [
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Wood, J.,
(after stating the facts.) 1. “The true doctrine,” says Mr. Pomeroy, “to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in the complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, or defective, such insufficiency pertaining, however, to the form rather than the substance, the proper mode of correction is not by demurrer, nor by excluding the evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.” Pomeroy, Code. Rem. (4 Ed.) § 549.
The complaint was in bad form, but, taking it altogether, it charges that the negligence of the agents and servants of appellant which caused the collision and resultant death of Doughty was the negligence of appellant. In other words, it, in effect, charges that the death of Doughty was brought about by the negligence of appellant, in that its agents and servants by their negligence and carelessness caused a collision of trains which produced his death. The charge that Doughty’s death was caused by the negligence of the company through the negligence and carelessness of its agents and servants in causing collision of trains necessarily involved the idea that the alleged negligent act was not the act of fellow-servants. For if the act of a fellow- servant, appellant, in a legal sense, was not negligent and not liable. Little Rock & F. S. Rd. Co. v. Duffey, 35 Ark. 602; Fones v. Phillips, 39 Ark. 17; St. Louis, I. M. & S. Railway v. Shackelford, 42 Ark. 417; St. Louis, I. M. & S. Railway v. Harper, 44 Ark. 524; St. Louis, I. M. & S. Railway v. Morgart, 45 Ark. 318; St. Louis, I. M. & S. Railway v. Gaines, 46 Ark. 555; Railway Company v. Triplett, 54 Ark. 289; Railway Company v. Torrey, 58 Ark. 217; St. Louis S. W. Railway v. Henson, 61 Ark. 306; K. C., F. S. & M. Ry. Co. v. Becker, 63 Ark. 477; St. Louis, I. M. & S. Railway Co. v. Brown, 67 Ark. 306.
It therefore devolved upon appellee to show that the alleged negligent act complained of was done by a class of servants for whose negligence appellant was liable, before recovery could be had under this complaint. But, under the liberal rules of the reformed procedure, we are of the opinion that the allegations of the complaint, while loose and inartistic in language and form, were yet sufficient to admit such proof. If the allegations were deemed insufficient, in that they failed to show the particular acts of the particular agent which constituted the negligence of the company, a motion to make more specific was-the remedy. Bushey v. Reynolds, 31 Ark. 657; Fordyce v. Merrill, 49 Ark. 277; Murrell v. Henry, 70 Ark. 161.
“In construing a pleading for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Kirby’s Digest, § 6130. Applying this statutory rule to the case in hand, it seems to us reasonably clear that the complaint states a cause of action.
If we concede that the complaint fails to state a cause of action, because it fails to show, either by positive averment, or by statement of facts from which such inference is inevitable, that the negligence complained of was the negligence of other than fellow-servants, still the appellant’s demurrer cannot avail here. Dor, instead of resting on its demurrer, it answered over, and accepted the issue on this, the only ground upon which the complaint was demurrable, if at all. The answer contains the following language: “If his (Doughty’s) death resulted from the negligent act or omission of any one, such act or omission of duty was an act of a fellow-servant, for which this defendant was not liable.” Thus the appellant treats the complaint as if it set up that the negligenpe complained of was the negligence of other than fellow-servants, and denies same, in effect by. alleging that the “negligent act or omission was an act of a fellow-servant.”
“A defect in pleading is aided jf the adverse party plead over to or answer the defective pleading in such a manner that an omission or informality therein is expressly or impliedly supplied, or rendered formal or intelligible.” 1 Chit. Pl. 671; Bliss, Code Pl. §-437; Pindall v. Trevor, 30 Ark. 249; Davis v. Hare, 32 Ark. 386; Webb v. Davis, 37 Ark. 551; Ogden v. Ogden, 60 Ark. 70.
2. The train upon which Doughty was killed was a regular mixed local train from Hot Springs to Little Rock. It was going east, and collided with an extra or irregular train going west, about one mile from Little Rock Station, about 2:3o p. m. The engineer upon the regular train received his orders as to that train at Butterfield Station. Under the rules of the company for running of trains, a regular train had the right of way of the track over all extra trains. At Hot Springs Junction, three miles south of Little Rock, defendant company maintained a regular registering station, where all trains were required by it to stop and see that all overdue trains had arrived, registered and passed, and it was the duty of the conductor in charge of each train to stop at this registering station and register his train.» Levi Greer, the conductor on the train upon which deceased was fireman, stopped his train at this junction, and, after remaining there two or three minutes, ordered the engineer on said train to pull out. There was no telegraph station or depot agent or other employee at the junction to give orders to passing trains, and there was no effort made by the conductor or any one else to stop the train after it left the junction before the collision. Signals for the handling of the train were received from the conductor through the fireman or brakeman. The air brakes on the train were working all right. The chief dispatcher of the district was located at Little Rock. All trains in the district were in his charge. He originated the running orders of the trains, and the actual running of the train was under the direction of a conductor. But the engineer also received orders from the dispatcher for the running of trains, and was equally responsible for their safety. Regular trains were run on schedule time. On this occasion the regular train was behind time. When the collision occurred, Doughty was killed, and his body was lying, when first found, in the gang-way of the engine, where he was required to stand while putting coal from the tender into the fire box.
It is manifest from these facts, which are undisputed, that the collision was the result of the negligence of either the conductors in not -observing orders, if properly given, for the running of the trains, or of the train dispatcher in not giving proper orders. It was impossible for this collision, under the proof, to have occurred in any other way. The engineer was not negligent, and Doughty, the fireman, was not negligent, for he was found dead at his post. Then how else could it have happened, save through the negligence of the train dispatcher in giving improper orders for the running of these colliding trains, or of the conductors, one or both, in running their trains in disobedience to orders, if proper orders were given ? The orders that were given were not permitted to be read to the jury, over the objection of appellant. Appellant therefore will not be permitted to complain that the orders were not read, or that such orders would have exonerated its servants from the charge of negligence. No presumptions will be indulged in its favor in this respect, when it was instrumental in preventing the orders from going before the °jury.
The conductor of the regular train, if running under proper orders, was certainly negligent in not observing that the extra had not reached Hot Springs Junction when his train arrived there. And, if he was not negligent in failing to observe this fact, then the conductor on the extra was negligent in failing to keep his train out of the way of the regular; or, if neither of these was negligent in the discharge of their duties, then the •dispatcher should have so ordered the running of these trains as to have made the collision impossible. The injury complained of here was caused in- the operation of appellant’s road, over which it had entire control. The deceased was without fault. While the burden was upon the appellee to show that the injury complained of was caused by the negligence of appellant, that burden has been discharged by showing that the injury was caused in a collision of trains, by agents of appellant who were not fellow-servants, and under circumstances om which the conclusion of negligence necessarily arises. In Holbrook v. Utica, etc., Rd. Co., 12 N. Y. 236, it is said: “If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumotion of negligence immediately arises.”
“The true rule,” says Mr. Elliott, “would seem to be that when the injury and circumstances attending it are so unusual, and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.” 4 Elliott, Railroads, § 1644; Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479.
3. Plaintiff’s instructions numbered 1, 2, 3 and 5 told the jury (1) that if deceased was injured by the negligence of two or more co-employees, one of whom was not a fellow-servant, plaintiff could recover; (2) that the train dispatcher was not a fellow-servant of deceased, and if he was negligent in ordering the movement of trains whereby deceased was injured, or in failing to give proper orders, plaintiff could recover; (3) that the conductor, under certain conditions, was not a fellow-servant of deceased, and if he was guilty of negligence which caused the death of deceased, plaintiff could recover; and (5) that the act of a vice-principal was the act of the master.
It is conceded that, in the abstract, these instructions were correct, but, as applied to this case, it is contended there was no evidence upon which they coul4! be based.
The train dispatcher and the conductor, under the proof, were not fellow-servants of Doughty. Kirby’s Digest, § 6658. And it follows from what we have just said that there was no prejudicial error in the giving of any of these instructions.
The fourth instruction given at the request of the appellee was as follows: “The court instructs the jury that the servant has a right to presume the master will do its duty, and he is not necessarily required to keep a lookout for an approaching train on the track where the train on which he was a fireman had the right of track; and if you believe from the evidence in this case that the defendant company ordered the movement of its trains, whereby the train on which the deceased was fireman collided' with an extra train of the defendant company, which extra train' was, under the rules of said company, required to keep out of the way of the train on which the deceased was fireman, then the defendant would be guilty of negligence.” It is contended by appellant that the court erred in giving this instruction, and in refusing to give its requests‘for instructions numbered six, seven and eleven, which told the jury that if they should find from the evidence that by reason of a curve in the track it was impossible for the engineer to keep an efficient lookout upon the track, it then devolved upon the fireman to keep such lookout; and if he failed to perform that duty, and such failure contributed to his death, their verdict would be for the defendant. Conceding that there was evidence upon which to base appellant’s requests, the court did not err in refusing them. It was not contributory negligence, as matter of law, for the fireman to have failed to keep a lookout on a curve where it was impossible for the engineer to keep an efficient lookout. Whether such failure was contributory negligence would be a question of fact for the jury. The “lookout statute” (Kirby’s Digest, § 6607) and decisions construing same relied upon by appellant are not applicable to a case of this kind. That statute was designed for the benefit and protection of “persons and property upon the tracks” of railroads. The statute has reference, not to the railroads themselves, or their employees while operating trains, but to third persons.
The requests were erroneous, also, for the reason that they cast the burden upon appellee to exonerate the deceased fireman from the charge of contributory negligence. Contributory negligence, as has been repeatedly held by this court, will not be presumed; it is a matter of defense, and, when alleged, must be proved by the defendant, unless the evidence developed by the plaintiff shows it. Texas & St. L. Ry. v. Orr, 46 Ark. 182; Little Rock & F. S. Ry. v. Atkins, 46 Ark. 436; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 348; Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 475; Jones v. Malvern Lumber Co., 58 Ark. 125; Hot Springs St. R. Co. v. Hildreth, 72 Ark. 572.
Furthermore, there was no evidence of contributory negligence. Doughty was found where his duties primarily required him to be, in order to keep up the fire in the engine. For'aught that appears to the contrary, the position of his dead body indicated that he was killed while in the discharge of duty. There was no proof by the engineer that Doughty had been ordered by him in an emergency to keep a lookout, and that he had failed to respond. There was no proof whatever that Doughty at the time he was killed was not doing his duty. There was no evidence therefore upon which to base a charge of contributory negligence, and the instruction upon the subject after the close of the argument was more favorable to appellant than the evidence warranted. That instruction was as follows:
“In view of the fact that counsel in their argument before ' the jury have often referred to the statutory duty of keeping a lookout, I will say this to you:
“The statutory duty requiring ‘all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the tracks’ does not necessarily apply in this case. It is for you to say whether the deceased, at the time of his injury, was in the exercise of ordinary care and caution in the discharge of his duties; and if at the time of his injury he was in the exercise of ordinary care and caution, he would not be guilty of contributory negligence, although he was at the time of his injury not keeping a lookout.”
There was no error in giving appellee’s fourth request. It is the company’s duty to exercise ordinary care in operating its trains, and to provide its servants a safe field for operation. Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 474; Ry. Co. v. Jagerman, 59 Ark. 98; Jones v. K. C., Ft. S. & M. Ry. Co., 77 S. W. 895.
The court left it to the jury to say whether the fireman should have been keeping a lookout, which, as we have said, in the absence of proof tending to show that he Was not keeping a lookout, was more favorable to appellant than it had the right to ask.
4. The verdict was not excessive. Doughty had a wife and one child. Fie was twenty-six years and nine months old. His’expectancy was 36.41 years. .He was industrious, sober, of good moral character, and had graduated in the common school. His wages were from $75 to $85 per month, and he had been, twice before promoted by the defendant, and was in the regular line of promotion. An engineer received about twice the wages of a fireman. He was frugal in his habits, and of affectionate disposition. He turned his earnings over to his wife for the support of the family. His child was two years of age. According to the rule announced by this court in St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563, and the verdicts approved in many other cases where the facts in favor of appellees were certainly no stronger than in the case at bar, we do not see our way clear to reduce this verdict. Railway Company v. Harrell, 58 Ark. 454; St. Louis & N. A. Rd. Co. v. Mathis, 76 Ark. 184; St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 227; St. Louis, I. M. & S. Ry. Co. v. Cleere, 76 Ark. 377; St. Louis, I. M. & S. Ry. Co. v. Grant, 73 Ark. 579. See, also, cases from other States cited in brief for appellee.
5. Appellee, upon the undisputed facts, was entitled to a verdict. The remarks of counsel in argument therefore, if erroneous, could have no other effect than to increase the verdict. It is unnecessary to set out and discuss at length the remarks of counsel objected to by appellant. We are of the opinion that some of the remarks were improper, and that the court should have excluded them. But, in view of the argument made by the attorney for appellant, which was not warranted by the proof, to which the most objectionable of the remarks by appellee’s counsel are shown to be in reply, and as we have concluded that the verdict was not excessive, we are of the opinion that the remarks, even though erroneous, were not prejudicial.
Affirm the judgment. | [
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Riddick, J.
In June, 1902, Thomas J. Stewart was the owner of a sawmill and other machinery connected therewith. He sold this property to the Longview Lumber Company, a corporation doing business at Prescott, Ark., for the sum of $2,000, and took the notes of the company therefor. Shortly afterwards Stewart sold the same company certain mules, horses, and wagons for the sum of $800, and took the notes of the company for the price thereof. The company at once sold this property to Wm. M. Howell, who had been connected with the company as secretary, and who, in connection with his brother, George Howell, president of the company, represented the company in making the purchase from Stewart. Some four or five months afterwards the company failed and quit business, without paying any part of .its debt to Stewart, and leaving a large part of its other debts unpaid.
Stewart brought this action in equity against Wm. M. Howell ánd the Lumber Company, alleging that the sale of the property to Howell was fraudulent, and asking that he have judgment against the company for his debt, and that the property be sold and proceeds applied to the payment of the judgment.
.The. property was attached and sold under an order of the judge in vacation. On the hearing the chancellor found in favor of the plaintiff, and gave a decree accordingly.
The appeal of Howell brings before us for decision the ques-tion- whether the sale of the property by the lumber-company to Howell was fraudulent and void as to creditors. We may say at the outset that the contention of- Stewart that this transfer was .made to defeat his vendor’s lien upon the property is not sound, -for the reason that he had no such lien. Stewart did not reserve any lien upon this property, and our statute gives the vendor of personal property no lien upon the property for the payment of the purchase price. The statute, it is true, does not permit the vendee to claim such property as exempt against an execution issued on a judgment in favor of the vendor for the purchase money. But that provision of the law creates no lien, ánd, if the -company had continued to own this property until its failure, plaintiff would have had no more right against it than any other •creditor of the company.
Plaintiff’s right to question this transfer by the company to Howell does not rest on the fact that he sold this property to the company, but on the fact that he is a creditor of the company, and that the company cannot dispose of its property in fraud of its creditors. The'question, then, as before stated, is, was this transfer void as to creditors ? At the time this purchase was made by the company from Stewart, the company was in failing'circumstances, heavily in debt and on the verge of insolvency, if not actually insolvent. At the time this purchase was made George Howell was the president of the company, and had been so since its organization. The defendant Wm. M. Howell had been its secretary, with a salary of three thousand dollars; and, though .there is conflict in the evidence on this point, we think that it shows that he was also a stockholder in the company. Counsel contend with much force that the books support the testimony of defendant that he was not a stockholder, for the reason that they do not show any receipt from him for the stock which a memorandum on the book states was issued in his name. But the same thing might be said of the other stockholders; and if that argument was sound, then there were no stockholders in this company. The testimony of the president, his brother, is direct and positive that Wm. Howell was a stockholder, and that this property was turned over to him in part liquidation of his interest in the company. We do not agree with counsel that the testimony of this witness shows animosity towards the defendant, his brother. On the contrary, the answer he filed as president of the company and his testimony convince us that he was willing to shield his brother, as far as the truth would permit. His testimony is supported by the testimony of Mr. Greeson, the attorney of the company, and by'the fact that his brother, the defendant, was secretary of the company With a salary of three thousand per annum. The defendant himself admitted that this position could be filled only by a stockholder, and in order to avoid the force of this admission stated that he was only acting secretary. ' But the testimony shows to the contrary, that he was elected secretary, and entered upon and continued to discharge the duties of the office up to the time of this purchase. The evidence shows that before this purchase some friction had developed between these two brothers, and some difference of opinion existed between them as to the management of the company. As a result thereof, it was agreed between them that Wm. Howell should retire, and that the company would pay him for his interest in the company. But the company was badly in debt, and had no money. To avoid this difficulty, it was agreed between the two brothers that the company would purchase the mill property and stock from Stewart, and turn it over to Wm. Howell in payment pro tanto for his interest in the company, or, to use the expression of George Howell, “to liquidate the stock interest of Wm. Howell in the company.”
At the time this was done the company, though a going concern, was, as before stated, either insolvent or on the verge of insolvency. A few months afterwards it failed, leaving debts amounting to many times more than the value of its assets. Under such circumstances it is very clear that the company had no right, as against its creditors, to turn over its assets to one of its stockholders in that way. The company did business and secured credit on the basis of the property which it owned. It, in effect, represented to its creditors that this property would be used to pay the debts of the company. It is, as remarked by Sir George Jessel, M. R., wholly inconsistent with this .representation that it should turn its property over to its stockholders and pay the creditors nothing. In re National Funds Assurance Company, 10 Ch. Div. 118-127; Thompson on Corp. § 2054.
If the company had kept this property which it purchased from Stewart, or if it had sold it for a valuable consideration, Stewart would have had no right to complain. But when it sold it to one of its stockholders in payment for his stock in the company, which was at the time worthless, it, so far as the creditors were concerned, gave away property to which they had the right to look for payment of claims against the company, and the transaction was fraudulent and void as to them.
It is said that if that be so the property should pass to the trustee in bankruptcy. That might be true if any such claim had been made by the trustee; but no such issue is presented, and we do not know that any such trustee has been appointed for this company.
On the whole case, we are of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Hart, J.
Bill. Goodman was indicted, tried, and convicted in the circuit court of Greene County, Ark., of the crime of having in his possession a still .without registering the same with the proper United States officer, in violation of act 324, approved March 23, 1921. General Acts of 1921, p. 372.
The evidence showed that the offense was' committed on Indian Hill Island, which is situated in St. Francis River where that river is the dividing line .between thf> Stales .of. Arkansas and .Missouri,, and that Indian..Hill. Island is in the State of Missouri in that part of St. Francis River opposite Greene County, Arkansas.
The defendant relies for a reversal of the judgment and sentence of conviction on the ground that the offense was committed on an island wit!)in the boundaries of the State of Missouri, and that the circuit court of Greene County, Ark., had no jurisdiction.
It is the contention of the State that the Arkansas circuit court had concurrent jurisdiction of the crime, with the criminal courts of the State of Missouri, on the ground that the alleged crime was committed .at a plaice on the St. Francis River opposite Greene County, Ark., altlioug-h it was wichin the boundaries of the State of Missouri.
The enabling acts under which the States of Missouri and Arkansas were admitted each contain a provision that they may have concurrent jurisdiction on the rivers forming a common boundary line between said States.
In 1911 the Legislatures of both the States of Missouri and Arkansas passed acts which gave, their respective courts concurrent criminal jurisdiction on the St. Francis River where it is the boundary line between the two States. The terms of these acts are set out in Brown v. State, 109 Ark. 373. There, in construing these acts, the court held that, although the actual physical boundary line between Greene County, Arkansas, and Dunklin County, Missouri, is the middle of the main channel of the river, yet the courts of each State have concurrent jurisdiction over crimes committed on the St. Francis River, and upheld the conviction of Brown for gaming on a boat two or three hundred feet east of the middle of the main channel of the St. Francis River, which was within the territorial limits of the State of Missouri.
In Wedding v. Meyler, 192 U. S. 573, the court, with reference to such enabling acts of Congress, said that when.it is enacted by the sovereign power that new States, when formed by that power, shall have, a certain juris diction, those States as they come into existence fall within the range of the enactment and have the jurisdiction.
It is the contention of the Attorney General that this doctrine applies to permanent objects or places on the Missouri side of the main channel of the St. Francis River. This contention is contrary to the text-writers and adjudicated 'Cases on the question.
In Rorer on Interstate Law, 2 Ed. p. 437, it is said that when by the Constitutions and laws of two adjoining States they have for a boundary between them the main channel of a navigable river, and also have concurrent jurisdiction over the whole river in its entire width from shore to shore, yet their courts have no jurisdiction over objects of a fixed and permanent nature situated beyond the main channel and within the territorial boundary of the other State. Continuing, the learned author said:
“But in the very nature of things jurisdiction of permanent objects is exclusive in the State on whose side of the main channel they are situated. Concurrent jurisdiction of the abutting States over permanent objects, as islands situated in the river, or permanent erections at either shore, would be utterly impracticable in the administrative affairs of the State, as rendering owners and residents of such property liable to taxation, and other liabilities and duties of citizenship and ownership, to each of the States. Hence it can never be intended in law that jurisdiction which is concurrent over a river is concurrent also over islands and other permanently fixed objects therein. Nor does the reason of the law of concurrent jurisdiction apply to such objects whose true location in reference to the. center of the main channel can always be known or ascertained; but it was to obviate the difficulty of showing on which side thereof occurrences of judicial cognizance had taken place that concurrent jurisdiction was resorted to.in law. ”
In Roberts v. Fullerton, 117 Wis. 222, 65 L. R. A. 953. Judge Marsh add, a great and distinguished judge, in discussing the question, said:
“It was competent for the national Legislature, in the formation of the States, to extend the laws of each for certain purposes over territory of the other. That was done, the jurisdiction on boundary waters being extended as to each State from shore to shore, while the boundary line 'between them was placed at the main channel of the river. That necessarily forms the boundary between them as to sovereign rights of ownership. Sovereign rights as regards ownership of the bed of the Mississippi river or anything permanently affixed thereto coincides with territorial boundaries. Therein, as to everything of a tangible character forming a part of the land, whether above the water or below the water, the jurisdiction of each State is exclusive. It would seem that its authority must be the same as regards sovereign property rights incident to sovereign ownership of the land covered by water.”
Again, the learned judge said:
“It has been decided in many jurisdictions, including that of the Supreme 'Court of the United States, that ‘'concurrent jurisdiction on the river’ extends only to the water and to floatable |objeots therein, not ho bridges, dams on any other objects of a permanent nature. If any such object be located upon the Wisconsin side of the main channel of a boundary river so as to constitute a nuisance, it must, accordingly, be deemed not only wholly within the territorial limits of Wisconsin, but within its exclusive jurisdiction. Mississippi & M. R. Co. v. Ward, 2 Black 485, 17 L. Ed. 311; Gilbert v. Moline Water Power & Mfg. Co., 19 Iowa 319; Dunleith & D. Bridge Co. v. Dubuque County, 55 Iowa 558, 8 N. W. 443; Buck v. Ellenbolt, 84 Iowa 394, 15 L. R. A. 187, 51 N. W. 22; Iowa v. Illinois, 147 U. S. 1, 37 L. Ed. 55, 13 Sup. Ct. Rep. 239. The rule laid down in those cases has been uniformly accepted by all courts as sound. The effect thereof is that there is no such thing as concurrent ownership, so to speak, of territory, or incidents thereof, between the shores of a river diyided by the boundary line between this State and the State of Minnesota. ’ ’
In discussing the question in Wedding v. Meyler, 192 U. S. 573, the court said:
“The conveniences and inconveniences of concurrent jurisdiction both are obvious and do not need to be stated. We have nothing to do with them when the law-making power has spoken. To avoid misunderstanding it may be well to add that the concurrent jurisdiction given is jurisdiction ‘on’ the river, and does not extend to permanent structures attached to the river bed and within the boundary of one of the other States.”
Having reached the conclusion that the acts in question do not, for any purpose, extend the jurisdiction of the criminal courts of the State of Arkansas on the Missouri side of the main channel of the St. Francis River over islands which are of a permanent nature and part of the land of the State of Missouri, it follows that the circuit court of Greene County, Ark., had no jurisdiction to try the defendant for an offense committed on an island within the territorial limits of the State of 'Missouri.
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.
This' suit was brought to foreclose a mortgage, which had been properly assigned to appellee but which had been defectively acknowledged, in that the word “consideration” was omitted in the officer’s certificate. The mortgage was executed on September 13, 1915, by O. H. Munyon and his wife, and secured a note for $2,000, due three years after date. Appellant, Lee Flannagan, filed a motion to be made a party defendant; and an order to that effect was made without objection. Flannagan filed an answer alleging ownership of the land described in the mortgage sought to be foreclosed, and deraigned title thereto' through mesne conveyances set out in the answer as follows: Munyon conveyed to Grandjean, who conveyed to Lansford, who conveyed to Flannagan. These were all warranty deeds, and the ones from Grandjean to Lansford and from Lansford. to Flannagan covenanted that the land was free from all incumbrances. The deed from Munyon to Grandjean, however, contained the following exception: “Except a mortgage to A. C. Watson for $2,000, dated September 30, 1915, and to run three years after date, iat 7 per cent., due September 30, 1916, and annually thereafter.”
The court held that this recital was binding upon Flannagan, as it appeared in his chain of title, and ordered the foreclosure of the mortgage; and this appeal is from that decree.
We think the court committed no error in its ruling. In the case of Clapp Bros. & Co. v. Halliday Bros., 48 Ark. 258, a second mortgage recited the existence of a prior one and directed the mortgagee in the second mortgage to apply the proceeds of certain of the property mortgaged to the payment of the first mortgage. This first mortgage was defective in that the word ‘£ consideration ’ ’ was omitted in the officer’s certificate of acknowledgment. The question of priority arose between the mortgagees, which the court disposed of in the following language: “By accepting a mortgage which recited the first mortgage, and provided for its payment, the plaintiffs had estopped themselves to deny the existence of that mortgage and the validity of its lien. Jones on Chattel Mortgages, 2 Ed., § 488.”
In that case it was also determined that the mortgagee in the second mortgage was not personally liable for the debt secured by the first mortgage, although he had appropriated proceeds of the sale of certain cotton covered 'by both mortgages. This was held on the theory that the second mortgagee had not expressly assumed to pay the prior mortgage,- but had merely taken his mortgage subject to the prior incumbrance, and the second mortgagee was required to pay only the value of the cotton converted. Sunny South Lbr. v. Neimeyer Lbr. Co., 63 Ark. 268; Ghio v. Byrne, 59 Ark. 280; Millington v. Hill, Fontaine & Co., 47 Ark. 301; Madden v. Suddarth, 144 Ark. 79.
The application of these oases to the instant case is denied because the recital of the outstanding incumbrance is not contained in the deed to Flannagan. The deed to him contains, as has been said, a covenant that the land was free from all incumbrances. But the deed which does contain the recital of the incumbrance subject to which the deed was made is in the line of Flannagan’s title, and he was therefore affected with notice of it, and it was his duty to inquire whether the incumbrance had been discharged. Gaines v. Summers, 50 Ark. 327; Abbott v. Parker, 103 Ark. 429; Madden v. Suddarth, supra; Star Lime & Zinc Mining Co. v. Arkansas National Bank, 146 Ark. 246. In other words, the deed through which Flannagan claims was made subject to the mortgage, and as Flannagan’s title is deraigned through this deed he is affected with notice of its recitals.and takes subject thereto.
The case of Clapp Bros. & Co. v. Halliday Bros., supra, is authority for saying that there is no obligation on the part of any one claiming through the deed from Munyon to Grandjean to pay the incumbrance therein recognized as existing against the land; but such purchasers took subject to that incumbrance.
In bar of this action it is alleged that there is a suit pending in Oklahoma on the note secured by the mortgage here sought to be foreclosed. And so there was at the time of the institution of this suit. But before the rendition of the. decree here appealed from the suit in Oklahoma was dismissed; and that suffices. Grider v. Apperson, 32 Ark. 332; Moore & Co. v. Emerick, 38 Ark. 203.
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Smith, J.
Senate joint resolution No. 1, passed- at the 1921 session of the General Assembly, proposed an amendment to the Constitution of the State. The resolution was agreed to by a majority of all the members elected to each House, and this assent was regularly entered on the journals of the Senate and of the House. The resolution was transmitted to the Governor, and by him disapproved. The General Assembly adjourned before the Governor acted on the resolution, and there was therefore no action by the General Assembly after the attempted veto.
Appellant, who is a citizen and taxpayer of the State, brought this suit to enjoin the Secretary of State from incurring the expense of publishing the proposed amendment and from submitting the same to the vote of the people.
In his answer the Secretary of State denied the authority of the Governor to veto a resolution of the General Assembly proposing an amendment to the Consti tution, and alleged that the Governor’s attempt to do so was futile. The court below accepted that view and dismissed the complaint, and by this appeal we are asked to determine whether the Governor had that authority; No other question is presented.
Section 22 of article 19 of the Constitution reads as follows: “Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each House, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county where a newspaper' is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and, if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”
Article 19 is designated “Miscellaneous Provisions,” and received this designation, no doubt, because of the variety of 'subjects covered by it. It is significant that the section quoted does not appear in article 5 of the Constitution, which deals with the legislative department. When analyzed, it appears that the 'Constitutional requirements for amending the Constitution are that either house of the General Assembly may propose amendments if the proposed amendment is agreed to by a majority of all the members elected to each house.
The section on that subject is silent as to how the amendment may be proposed; but this is ordinarily done by resolution. The proposed amendment, in whatever manner offered, shall be entered on the journals with the' yeas and nays, and, having received the requisité •vote, it is then published and submitted to the electors for approval or rejection, and, if a majority of the electors voting at such election adopt such amendment, the same becomes a part of the Constitution. It appears therefore that the General Assembly proposes, while the electors approve or reject. No mention of the- Governor is made; and if there is any function for him to perform, other provisions of the Constitution must be looked to to ascertain what duty he is called upon to discharge.
Article 6 of the Constitution deals with the executive department of the Government, and section 15 thereof defines the veto power of the Governor. It reads as follows: “Every bill which shall have passed both houses of- the General Assembly shall be presented to the Governor ; if he approves it, he shall sign it; but if he shall not approve it, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon their journal and proceed to reconsider it. If, after such reconsideration, a majority of the whole number elected to that house shall agree to pass the bill, it shall be sent with the objections to the other house, by which likewise it shall be reconsidered; and, if approved by a majority of the whole number elected to that house, it shall be a law; but in such cases the vote of both houses shall be determined by ‘yeas and nays’, and the names of the members voting for or against the bill shall be entered on the journals. If any bill shall not be returned by the Governor within five days, Sundays excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their1 adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”
It is quite obvious that this section has no relation to proposals for amending the Constitution. The veto ■power there referred to relates expressly and solely to ¡bills which become laws when approved by the Governor, or when retained by him without action beyond the time there limited for his action, or when passed by the two houses over his veto. It may be here noted that the vote essential to pass a bill over the Governor’s veto — a majority of all the members elected to each house — is the vote required by section 22 of article 19 for proposing an amendment to the Constitution for the action of the electors.
We must therefore look further for some provision of the Constitution defining the duty of the Governor in regard to submitting amendments to the Constitution, if that instrument imposes any duty upon him. The only other provision of the Constitution which may, with any plausibility, be said to impose some duty on the Governor in this behalf is section 16 of article 6, which reads as follows: “Every order or resolution in which the concurrence of both houses of the General Assembly may be necessary, except on questions of adjournment, shall be presented to the Governor, and, before it shall take effect, be approved by him; or, being disapproved, shall be repassed by both houses, according to the rules and limitations prescribed in the case of a bill.”
There is, however, a statute which does confer the veto power upon the Governor, of which we shall later have more to say. This is section 3 of' an act approved April 2, 1879 (Acts 1879, p. 128), and appearing in C. & M. Digest as § 1469.
Article 5' of the Constitution of the United States deals with proposed amendments to that instrument. In that respect it corresponds to section 22 of article 19 of our Constitution. It imposes no duty upon the President in regard to such proposals.
The second paragraph of section 7 of article 1 of the Constitution of the United States deals with the President’s power of veto. It is very similar to section 15 of article 6 of our Constitution dealing with the same subject. The principal point of difference is that a two- thirds vote is required, to pass a bill over the President’s veto; whereas a majority of all the members elected to each house of the General Assembly suffices to pass'' a bill over the veto of the Governor. The phraseology and structural similarity between the two section is very striking.
The last paragraph of this section of the Federal Constitution is so nearly identical with section 16 of article 6 of our Constitution as to leave no doubt that our section is a borrowed one, taken almost literally from the Federal Constitution, except as to the vote required to pass an order or resolution over the veto of the President in the one case and that of the Governor in the other.
It also appears that the sections of the Federal Constitution above referred to have served as patterns for numerous other State Constitutions, the relevant portions of which are quoted in the brief of counsel for the State, and in numerous instances those sections have been copied into the Constitutions of other States as literally as is tire case in our own Constitution.
Section 16 of article 6 of our Constitution, being, in effect and in fact, borrowed law, the decisions of the Supreme Court of the United States apply with peculiar effect in its interpretation, according to a well known canon of construction. Hildreth v. Taylor, 117 Ark. 465; Hanson v. Hodges, 109 Ark. 479.
In the case of Hollingsworth v. Virginia, 3 Dall. 378, the question was raised that the Eleventh Amendment to the Federal Constitution had not been properly submitted because the resolution of Congress proposing the amendment was never submitted to the President for his approval. Of that case the Supreme Court of the United States, in the case Hawke v. Smith, 253 U. S. 221, had this to say: “At an early day this court settled that the submission of a constitutional amendment did not require the action of the President. The question arose over the adoption of the Eleventh Amendment. Hollings worth v. Virginia, 3 Dall. 378. In that case it was contended that the amendment had not been proposed in the manner provided in the Constitution, as an inspection of the original roll showed that it had never been submit-ed to the President for his approval in accordance with article 1, § 7, of the Constitution. The Attorney General answered that the case of amendments is a substantive act, unconnected with the ordinary business of legislation, and not within the policy or terms of the Constitution investing the President with a qualified negative on the acts and resolutions of Congress. In a foot-note to this argument of the Attorney General, Justice Chase said: ‘There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution. ’ The court by a unanimous judgment held that the amendment was constitutionally adopted.”
It appears that in only one instance has a proposed amendment to the Federal Constitution ever been submitted to the President for his approval, and some interesting history in regard to that occurrence is recited in the opinion of the Supreme Court of North Dakota in the case of State ex rel. Wineman v. Dahl, 34 L. R. A. 97, 6 N. D. 81, 68 N. W. 418, as follows: “The amendments (to the Federal Constitution) which were made in 1789, 1803, and 1866 were carried through without the action of the President. In 1865 the slavery amendments were inadvertently submitted to the Executive, and approved by him. On discovering this fact, Senator Trumbull of Illinois, chairman of the judiciary committee, introduced a resolution declaring its submission to him to have been an inadvertent act, and that his approval was unnecessary and of no effect. The. resolution also asserted that that case should not constitute a precedent for the future. It was adopted without division.”
Counsel for the Secretary of State cite the decisions of the courts of last resort of a number of States holding that the Governor has no function to perform in the matter of submitting constitutional amendments to the people for their action. There are points of similarity, and of difference as well, between the Constitutions of those States and the Constitution of our own which we will not stop to point out. A case typical of numerous others is that of Warfield v. Vandiver, 101 Maryland 78, 60 Atl. 538. This case is annotated in 4 A. & E. Ann. Cas. 692. The thought running through all these cases, and controlling in each of them, is that, in proposing amendments to the Constitution, the Legislature is not exercising its legislative power. "We have been cited to no case holding to the contrary. The editor’s note to the annotated case of Warfield v. Vandiver, supra, is that “the rule announced in the reported case, that proposed constitutional amendments need not be submitted to the Governor for his approval, has been followed by the courts of the various States apparently without dissent.” (Citing numerous cases).
The decisions of this court accord with the rule announced in the note quoted. The decision of this court in the case of the State v. Cox, 8 Ark. 436, was handed down at a time when the General Assembly had the power to propose and to adopt amendments to the Constitution, but the court there said: “The General Assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it possesses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people, and is unlimited in its power save by the Constitution of the United States.” In the recent case of Whittemore v. Terral, 140 Ark. 493, the court held that the action of the Legislature, pursuant to the power conferred by the Federal Constitution, ratifying a. proposed amendment to that Constitution, was not the enactment of a law.
Much reliance is placed by counsel for appellant on the act of 1879 hereinabove referred to. It is pointed out that this act was passed at the session of the General Assembly which convened just five years after the adoption of the Constitution, and that seven members of this session of the General Assembly had been members of the Constitutional Convention. It is said, therefore, that great weight should be given to the construction which the General Assembly gave the Constitution by the passage of this act. It is also pointed out that the invariable custom since the adoption of the Constitution has been to submit to the Governor for his action all legislative proposals to amend the Constitution; and it is insisted that this long-continued and practical 'construction of the Constitution should be given great weight in its construction.
In answer to all this, it may first be said that the Constitution cannot be thus amended.
In reply to this practical construction of the Constitution which we are asked to follow, it is pointed out, through reference to the various published acts of the General Assembly, that, although section 16 of article 6 expressly excepts resolutions pertaining to adjournment from submission to the Governor, the practice has been to so submit them. Citation is also made to numerous non-legislative resolutions which have been customarily submitted to the Governor for his approval.
Further answering the argument in regard to the effect to be given to the construction of the Constitution by the General Assembly of 1879 by the passage of the act regulating the mode of proposing and voting upon amendments to the Constitution, and the acts of the officers of the State who have proceeded under that act, it is pointed out that the same General Assembly proposed the first amendment to the Constitution, and it did so in a resolution which has since been followed.' It is as follows:
“Resolved, by the House of Representatives of the General Assembly of the State of Arkansas (a majority of all the members elected to each house agreeing thereto) :
“That the following article shall be proposed as an amendment to the Constitution of the State of Arkansas, which, when agreed to by a majority of all the members elected to each house and adopted by a majority of the electors of the State voting at the next general election for Senators and Representatives, shall become a part of the said Constitution, namely:”
This resolution properly construes the Constitution and meets its requirements. It became a proposal when agreed to by a majority of all the members elected to each house of the General Assembly, and was to become a part of the Constitution if adopted by a majority of the electors of the State voting at the ensuing general election for Senators and Representatives.
The legislative act was ministerial. It authorized the submission of the proposal to the only body having authority to adopt or reject it. That was the electors voting at the next ensuing general election for Senators and Representatives. However, the insistence in regard to the effect to be given this act of 1879 as a practical construction of the Constitution by a Legislature composed in part of members who sat in the Constitutional Convention, may be disposed of here, as was a similar contention in the case of Griffin v. Rhoton, 85 Ark. 89, where it was said: “It is insisted that the first Legislature which convened after the adoption of the Constitution of 1874, and which was composed of many members of the convention who dominated its purposes, by passing a statute (act February 1, 1875) carrying out this provision as to other officers, construed it as not including the office of prosecuting attorney, and that we should follow that legislative construction. The rule permitting the consideration by the courts, in construing constitutional provisions, legislative constructions of the same provisions has been frequently approved by this court. State v. Sorrels, 15 Ark. 675; Vahlberg v. Keaton, 51 Ark. 534; Ex parte Reynolds, 52 Ark. 330; Sumpter v. Duffie, 80 Ark. 369. But, as was said by Chief Justice Cockrill in Ex parte Reynolds, supra, such matters are not entitled to controlling weight. It is only when an examination of the Constitution leaves a doubt that the judges are warranted in looking to these extraneous matters for aid.”.
It would be entirely superfluous to have the Governor to act in approving proposals for constitutional amendments. His action in so doing could not be anything more than a mere recommendation to the electors and would not render less necessary their approval at the ensuing election.
This quite obvious statement emphasizes the fact that the proposals for constitutional amendments are not within the purview of section 16 of article 6 of the Constitution. because the orders and resolutions there contemplated are those which “shall take effect” when approved by the Governor or, being disapproved, shall not take effect unless repassed by both houses according to the rules and limitations prescribed in the case of a bill.
This subject has been considered in opinions of such erudition that the temptation to quote from them is resisted only'because of the great length to which it would protract this opinion. The reasoning of the Court of Appeals of Maryland in the case of Warfield v. Vandiver, supra, is in line with that of the numerous decisions from other States cited in the briefs of counsel, and we quote only a short excerpt from that opinion as follows: “The people are the source of power. It is they who make and abrogate written Constitutions, and when in the organic law which they have chosen for themselves they have designated the General Assembly, consisting of a Senate and a House of Delegates, and nothing more, to be the agency for propounding amendments to the Constitution, no executive has the right to step in between that agency and the people themselves and to say that without his approval they shall not be permitted to express their views on measures amendatory of the organic law. Unless the express language of the Constitution has unequivocally clothed the Governor with such an authority, in relation to proposed constitutional amendments, as is the case in Delaware, but in no other State, it cannot be borrowed from some other provision pertaining to a wholly different subject.”
We conclude that the veto of the Governor was ineffective, and the decree of the court below dismissing appellant’s complaint is affirmed. | [
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Smith, J.
Appellee became a passenger on one of appellant’s local freight trains at the town of Ferguson, with a ticket to the town of Mellwood. When the train arrived at the intervening station of Lundell, it stopped with the caboose some distance from the station platform. Lundell was a small station at which no depot was maintained, but tickets were sold there, and a passenger train each way each day stopped there regularly. Another passenger train stopped there when flagged. Appellee left the train at Lundell and went to a store of a customer, to whom he sold goods. This store was near the railroad and just off the right-of-way. Before leaving the.train, appellee asked the brakeman if the train would stop a second time with the caboose at the station platform, and the brakeman answered that it would. There was also testimony that it was the custom to stop the train with the caboose opposite the platform before the train pulled out of the station. The members of the train crew testified, however, that there was no such custom except when there were passengers to be received or discharged, and that on the occasion in question there was no passenger to or from Lundell, and the conductor testified that, before giving- the signal for the train to pull out of Lundell, he looked and saw that there was no one standing at the platform to take passage on the train. Appellee admits that he was not standing at the platform when the train was set in motion, but he reached the platform before the caboose passed that point, and the train did not stop as appellee had been told it would do. Appellee had some grips and other baggage in the caboose, and when it came by him he undertook-to swing on at the'rear steps of the caboose, but his hand slipped and he fell and broke his arm and sustained other injuries, to compensate which he brought this suit and Avas- awarded damages in the sum of $500, from which is this appeal.
Appellee was a commercial traveler, and testified that Lundell was in his territory, and that for a period of six years and a half he had beén making that point, and that he generally used this local freight train in doing so, and that it had always been the custom for the train to stop at the platform. There was testimony corroborating appellee, although, as has been said, the testimony on the question of this custom was not undis puted, and the brakeman denied having told appellee that the train would stop a second time, and there was testimony also on the part of the railroad company that the brakeman had no authority to make statements in regard to the movement of the train.
Several instructions requested by the railroad company were refused, among which was one for a directed verdict in its favor. Other instructions were given, however, at the request of both appellee and the railroad company. We do not set out or discuss all these requested instructions, as we find it unnecessary to do so to announce the law applicable to the issues joined.
The theory on which the cause was submitted clearly appears from an instruction numbered 10 requested by the railroad, and which we .do set out. As requested, this instruction reads as follows: “The court instructs you that the uncontradicted evidence in this case shows that the conductor was in charge of the . train upon which plaintiff was riding; that he alone had authority to govern the movement of said train, and that the brakeman would not and could not know, without being advised by the conductor, what would be the movement of the train. So the court tells you that the brakeman had no authority to make any statement as to whether the train would or would not stop at Lundell the second time, and that the defendant would not be bound by any statement made by the brakeman, as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman.” The court struck out the last clause of the instruction reading as follows: “as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman,” and, in lieu thereof, added the following: “unless the statement of the brakeman was in accord with the custom, if any, of the defendant in stopping their trains at Lundell.”
It thus appears that the court accepted the view of appellant that appellee had no right to rely on the state ment made by the brakeman in regard to the movement of the train unless his statement conformed to the customs of the railroad.
We think no error was committed in modifying the instruction in the manner indicated. Indeed, after its modification, it was still more favorable than appellant was entitled to have it. It is true the brakeman was shown to have no authority to direct the movement of the train except as he received orders to that effect from the conductor. But the brakeman’s statement to appellee did not relate to any order in regard to the movement of the train which he (the brakeman) had agreed to give. He merely stated to appellee what the custom was in regard to stopping the train and what would be done that day. The brakeman would have no authority to agree what movement the train would make, but we do not have that question before us. If the brakeman knew under what orders the train would move, or what the custom in regard to its movement was, we see no reason why, when he had imparted this information to a passenger, the passenger might not rely on it. Simmons v. Lusk, 128 Ark. 336; Railroad Co. v. Adcock, 52 Ark. 406.
Under the instructions given the jury was required to find that the statement made by the brakeman in regard to the movement of the train accorded with the custom of stopping trains at Lundell, and, as we have said, the railroad company had no right to complain of the law as thus declared. K. C. S. R. Co. v. Worthington, 101 Ark. 128; L. & N. R. R. Co. v. Johnson, 79 Ala. 436; 3 Hutchinson on Carriers, p. 1392; 2 White’s Personal Injuries on Railroads, § 686; 2 Rorer on Railroads, p. 1097.
Appellant requested an instruction to the effect that, if appellee left the train for any purpose not connected with his trip, and attempted to board the train after it was set in motion without any invitation so to do from a member of the train crew, the railroad would not be liable. This and other instructions to the same effect were asked, and were properly refused as asked, but they were so modified as to permit the jury to take into account the alleged custom to stop the caboose at the platform in determining whether appellee had lost his character as a passenger.
We think no error was committed in thus modifying the instructions. It is true appellee was not a passenger for Lundell, but we do not think that the jury should, on that account, have been told that, as a matter of law, appellee had lost his character as a passenger if he got off the train there for any purpose not connected with his trip. We have held that a passenger is not compelled to continuously remain aboard a train until he reaches his destination, and that he may, at regular stopping places, leave the train for refreshments, exercise, or other matters of convenience or necessity, provided he exercise proper care in doing so. St. L., I. M. & S. R. Co. v. Glossup, 88 Ark. 225; Ark. Cent. Rd. Co. v. Bennett, 82 Ark. 393; 3 Michie on Carriers, § 2739.
The testimony shows that the train was moving very slowly as it passed the platform where appellee was standing, and the court refused to declare, as a matter of law, that appellee was guilty of contributory negligence in attempting to board the train while it was in motion, but submitted that question to the jury. No error was committed in this respect, as we have repeatedly held that it could not be declared negligence as a matter of law for one to board a train, or to alight from it, while it was passing the place where it should stop, to permit him to board it or alight from it, unless the attending circumstances show so clearly that he acted imprudently that reasonable minds could fairly arrive at no other conclusion, and that otherwise it is a question for a jury to determine whether the attempt to board or leave a train while in motion is one of negligence. K. C. S. R. Co. v. Worthington, 101 Ark. 128; St. L., I. M. & S. R. Co. v. Rush, 86 Ark. 325.
At appellant’s request the court charged the jury that, if appellant was negligent and appellee was equally negligent, to find for the railroad company. In addi tion, the court told the jury that the contributory negligence of a person injured by the operation of a train • wouid not defeat a recovery where the negligence of the person injured was of less degree than that of the employees of the railroad causing the injury complained of, but that in such event the amount of recovery should be diminished in proportion to the contributory negligence. This was instruction “B.” But the court gave another instruction designated as “E” and reading as follows: “If the jury find for the plaintiff, they should assess his damages at a sum that will, in their judgment, be a just and fair compensation for the mental and physical pain caused by the injury, and in addition any expense he may have incurred in attempting to effect a cure, as well as any losses sustained by reason of loss of earning capacity on account of said injuries.” Objection was made to this instruction upon the ground that it was in conflict with instruction “B” and permitted a recovery to compensate all the damage sustained by appellee, although his own negligence may have contributed to his injury. We think the instructions are not open to this objection when they are read together, as all instructions should be. Instruction “ E ” told the jury what the elements of damage were, and instruction “B” dealt with the diminution of those damages if there was a finding of contributory negligence, and, when read together, they correctly declare the law. Central Coal & Coke Co. v. Burns, 149 Ark. 533.
We take occasion, however,; to say that a better practice would be to include both directions in a single instruction, to first tell the jury what the elements of damage are, and then to state the effect of contributory negligence if the testimony establishes it.
No prejudicial error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Logan Circuit Court for the northern district to recover damages on appellee’s common-law liability for failure to furnish cars at the Hall Mine switch, about two miles from Paris, in said county, for the purpose of shipping coal from appellant’s mine, near the Hall Mine switch, within a reasonable time after being requested to do so. A demurrer was filed to the complaint, which, upon hearing, was sustained by the court, over the objection and exception of appellant. The order sustaining the demurrer was in the following language: “Demurrer is by the court sustained; plaintiff at the time excepts and declines to plead further, and prays an appeal to the Supreme Court, which is granted, and 90 days given to file bill of exceptions herein.”
Appellee insists that the appeal from the ruling on the demurrer was premature, as the order was not a final judgment. The appellate jurisdiction of this court is confined to final orders, judgments and determinations of inferior courts of the State. So appeals from interlocutory orders are premature. Crawford & Moses’ Digest, § 2129.
In the case of Moody v. Jonesboro, L. C. & E. R. Co., 83 Ark. 371, it appeared in the order of the court that the demurrer to the answer was overruled in part and sustained in part, and that the plaintiff excepted to the ruling of the court, and elected to stand upon his demurrer, and prayed an appeal to the Supreme Court of Arkansas, which was granted. In passing upon the question as to whether the order was final or merely interlocutory, the court said: “The appeal in this case was premature, as no final judgment was rendered. The plaintiff filed a demurrer to the answer1 of defendant, which the court sustained as to certain defenses set up in the answer and overruled to other defenses contained therein. But no judgment was rendered disposing of the action in any way, not even a judgment for costs was rendered. ” •
In the case of Davis v. Receiver St. L. & S. F. R. Co., 117 Ark. 393, the court said: “When the court (referring to the trial court) sustained the demurrer, the plaintiff had his election to amend his complaint, or to rest and permit final judgment to be rendered dismissing his complaint and then appeal.” In the case of State v. Greenville Stone & Gravel Co., 122 Ark. 151, in holding that an appeal was premature, the court said: “An order sustaining a demurrer to the complaint is in effect a holding that the complaint is of no avail and, it seems, is as near a final order as could be conceived, that is not so in fact; yet we have often, and in some very recent cases, held that, ‘where the trial court sustained a demurrer to a complaint without entering any further order or judgment, its action was not final and the order cannot be appealed from.’ ”
In the instant case it will appear by reference to the order that no final judgment was rendered dismissing the complaint; also that no judgment for costs was rendered against appellant. It was clearly an interlocutory order, unless the use of the language to the effect that appellant refused to plead further amounted to a final disposition of the case. We think this language a mere recital of the attitude of appellant, and in no sense an act or order of the court. Certainly the language could not have greater effect than the language embraced in the swpra, to the effect that the plaintiff elected to stand upon his demurrer. One statement seems to be no order in the case of Moody v. Jonesboro, L. C. & E. R. Co., stronger than the other, and greater effect should not be given to one than the other. As no judgment was in words rendered disposing of the cause of action, or language used in the. order importing that it was a final disposition of the case, the appeal was premature. The appeal is therefore dismissed without prejudice. | [
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Battle, J.
G. W. Fulford filed a complaint and brought an action before a justice of the peace against Joe Hlass, and alleged that he entered into a contract with the defendant on the 22d day of March, 1902, and agreed to cultivate thirty-six acres of defendant’s land, and to plant twenty acres thereof in cotton and the remainder in corn, and that defendant should have one-half of the cotton and corn when raised and gathered, the cotton to be delivered at the gin, and the corn at defendant’s crib; and that defendant agreed to furnish plaintiff team and tools needed to cultivate the land and one hand to assist in gathering the corn, and to furnish supplies. Plaintiff alleged that the defendant complied with his agreement until the crops were partly made, when he refused to furnish the team or supplies, to plaintiff’s damage in the sum of $225.
Defendant answered and admitted the contract, but denied that he had failed to comply with it, and alleged that plaintiff had violated it; and pleaded a counterclaim and set-off.
The plaintiff recovered a judgment, and the defendant appealed to the circuit court.
In the trial in the ‘circuit court the witnesses, on motion of the defendant, were excluded from the court room during the progress of the trial, except James Fulford, who was, on motion of plaintiff, allowed to remain in the court room. The record does not show that there was or was not any reason for excepting him. To the action of the court the defendant excepted.
The plaintiff offered to read as evidence, in the trial, the following contract:
“Russellville, Ark., March 22, 1902.
“This agreement, made and entered into by and between J, Hlass and G. W. Fulford, witnesseth that the said Hlass has rented to the said Fulford his farm of 36 acres on Norristown Mountain in Pope County, Arkansas, for the year 1902, 20 acres, to be cultivated in cotton and the remainder in corn, all to be cultivated'.in a husbandlike manner by the said Fulford; and the said Fulford agrees to pay one-half of the crop, the corn to be put in the crib, and the cotton to be delivered at the gin. The said Hlass'agrees to furnish teams, tools and one hand to gather the corn; the tools and teams to be used by the said Fulford in his own crop on other land, and he to use his own team also in both crops. The said Fulford to give possession the 1st day of January, 1903, without further notice. The said Hlass to furnish supplies to said Fulford to live upon while cultivating the crop, and to take his pay out of the proceeds of Fulford’s share of the same. . .
[Signed]
“Joseph Hrass,
his
“G. W. x Fureord,
“mark.
[Attest]
“R. W. Horrand.”
his - ■
“J. M. x Cardwerr "
mark:'
The defendant objected to the reading of this contract as evidence, because it differed from the contract sued on. The objection was overruled, the contract was read, and the defendant excepted.
The evidence adduced tended to show that plaintiff planted a crop under his contract, and while it was growing and before maturity he abandoned it, but as to whether he was forced to do so by the defendant failing to perform his part of the contract it is conflicting.
The undisputed testimony shows that the crop was not in a condition to gather on the 24th of November, 1902, when this action was commenced.
At the instance of the defendant the court instructed the jury as follows:
“If you find that, by reason of defendant’s failure to comply with his contract, plaintiff was prevented from making and gathering crop, and this suit was begun before the crop was gathered, and before it was in condition to be gathered, his measure of damages would be the value of his work up to the time of his abandonment.” This instruction seems to have been conceded by the parties to be the law of the case.
There was no evidence adduced to prove the value of his work.
The court gave many instructions orally, but they were substantially covered by instructions given in writing.
The jury, after allowing the defendant’s claim for $80, returned a verdict in favor of plaintiff for $5.
As it does not affirmatively appear that the court abused its discretion in allowing James Fulford to be present and remain in the court room during the progress of the tfial, the presumption is that he was for good cause allowed to remain.
There is no variance between the contract sued on and the contract read as evidence. Caldwell, although his name was signed to the contract, was not a party to it. He did not agree to do anything. The contract was between the plaintiff and defendant.
As the oral instructions were substantially covered by instructions in writing, the manner of giving them could not have been prejudicial.
There was no evidence to sustain the verdict of the jury.'
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment ordering lands sold for the purpose of partition. It was alleged in the complaint that the lands could not be par-; titioned in kind without great prejudice to the owners thereof. The defendant filed no answer, and the chancellor, without referring the question to commissioners, found from the allegations in the complaint alone that partition could not be made in kind without great prejudice, and ordered a sale, and the question before 11s is whether'tlie undénied allegation in ttj,e complaint is sufficient-to justify the court in making the’order for a sale of the premises.' We'may admit that the ‘court'had jurisdiction, ‘and that the order was not void; but this is a direct attack by appeal, and the 'question is, was there error in'th'e proceeding?
The question is not free from doubt. As the Code provides that material allegations in a complaint which are riot denied by the ariswer are to be taken as true, and asmo answer was filéd in this case, wé were first inclined to’the opinion that the judgtrieni of the chancellor was right.
'But the procedure in proceedings for partition is regulated by statute in this State. An examination of the statute will show that the failure of the defendant to answer does 'not dispense with the necessity of further proof, for it provides that, if default be made, .“the petitioner shall nevertheless make out his cáse by exhibiting to the court the evidences of his title.” Kirby’s Digest, § 5775- Again the statute provides that, if judgment for partition fee rendered, no sale shall be made unless the commissioners áppointed to make partition report that partition of the land cannot be made without'great prejudice to the owners thereof; If they maleé such report, “the court may, if satisfied that the report is just and correct,” order a sale of the premises for partition. Kirby’s Digest, § § 5779-5785-
Now, while the procedure required by this statute must be followed by the law courts in partition proceedings before thern— for in the absence of the statute such courts would have no jurisdiction to entertain such cases — with the courts of equity this is not altogether true, for it was long ago decided that these statutes do riot take away the original jurisdiction of the chancery courts. The remedy provided by the statute is cumulátive only. Patton v. Wagner, 19 Ark. 233. For this reason, we do not think the mere failure of the chancery court in this case to appoint corn-missioners to ascertain' whether the land could be divided rendered its judgfnent void. Iri cases where there is doubt as to whether partition can be made we think it is well to appoint commissioners who can examine the premises artd ascertain the facts and make report. But there may be cases- where the facts show plainly that no partitiori in kind could' be made without prejudice to the owners. For instance, suppose a brick store and the lot on which it is located is owned by several parties jointly. In such a case, where proper allegations are made-in the complaint, we think that the chancellor might well hear the evidence and make the order for a sale without a reference or the appointment of commissioners. But, while it was not absolutely necessary for the court to appoint commissioners to ascertain whether partition could be made without a sale, we think that the court should have required some further showing.before ordering the sale. We have already called attention to the fact that our statute in reference to partition does not allow the failure of the defendant to answer to dispense with proof on the part of the plaintiff. Now, at common law, while courts of equity had jurisdiction to order a partition of land, they had no power to order a sale of the land for that purpose, unless by consent. Freeman’s Cotenancy & Partition, § 15; 15 Enc. Plead. & Prac. § 813. Some of the American courts hold that courts of equity in this country have that power, independent of statute. But the order to sell the premises, says Mr. Freeman, “should not be made until the court has entered its interlocutory judgment determining that the parties are entitled to partition, and has also, after making the proper inquiries, decided that a partition cannot be made without prejudice to the owners. An order of sale, where the record fails to show the existence of these preliminary steps, cannot support a sale made thereunder, when exceptions are taken and interposed to its confirmation.” Freeman on Cotenancy & Partition, § 543.
The prayer of the complaint in this case seems to recognize the fact that some investigation should be made as to whether a sale was necessary, for it asks “that the lands be partitioned as the law in such cases provides, and, if not susceptible of division, that the same be sold,” etc. In other words, it asks for a sale only in event it be found that a partition in kind cannot be made without prejudice. Something more under our statute than the allegations of the complaint should be required to show this. The finding that a sale is necessary should be based on the consent of parties, the report of commissioner's, or upon evidence heard by. the chancellor.
'The fact that Mr. Danaher, as trustee, held a vendor’s lien on the land did not make him a necessary party to the proceedings for partition. The proceedings for partition did not affect- his lien. Besides, the court ordered the sale made subject to his lien.
We are of the opinion that the chancellor in this case should have referred the matter to commissioners, as provided by statute, or should have himself heard evidence and determined whether the lands could be partitioned in kind or not. We therefore conclude that so much of the decree as directed a sale of the land in this case is erroneous. The judgment as to the sale is therefore reversed, with an order that the court hear evidence or refer the question to commissioners to examine the lands and determine whether partition in kind can be made without prejudice, and for other proceedings. | [
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Riddick, J.
This is an appeal from a judgment of the Garland Chancery Court enjoining the defendants, M. G. Thompson and others, from instituting any prosecution against the defendant, S. C. Van Lear, under the statute prohibiting physicians from soliciting patients through paid agents or drummers, and enjoining them from otherwise interfering with the business and practice of the plaintiff.
The facts are as follows: In 1903 the Legislature passed an act forbidding physicians and surgeons engaged in the practice of medicine to. solicit patients by agents. Acts 1903, p. 342. Congress, which claims jurisdiction over a portion of the Hot Springs Reservation, has also provided by statute that physicians, before prescribing the waters of the springs, shall be registered .with the Superintendent of the Reservation, but that no physician shall be allowed to register who was engaged in soliciting patronage through the medium of paid agents. Act of Congress of April 20, 1904, § 4.
To aid the officers of the law to enforce these provisions against the practice of soliciting patients by hired agents, a number of the physicians of Hot Springs formed an Association, called the “Visitors’ Protective Association.” The meetings of this association were public, membership in it was open to all physicians of the city, and it was supported by the voluntary contributions of its members. The chief purpose of the association, as before stated, was to aid in suppressing the practice among certain physicians of soliciting patients by hired agents or by “drumming,” as it was called; the members of the association believing that this method of securing patronage was not only illegal and unprofessional, but that it was highly injurious both to the profession and the general public. The efforts of the association to suppress this evil were not directed especially against plaintiff or any particular physician or school of medicine. On the contrary, the agent or detective of the association, employed to look up evidence against physicians violating the statutes, was instructed to investigate and report to the officers of the law evidence against every physician who was guilty of such practice, without regard to who he was, or whether he was a member of the association or not.
The evidence shows that the plaintiff, Van Tear, was not permitted to register with the Superintendent of the Hot Springs Reservation as one of the physicians authorized to use the waters of the hot springs, or to prescribe the use thereof by his patients. The reason. for this refusal to permit the plaintiff to register was that he was suspected of having solicited patients by hired agents, though it was not shown that the defendants were responsible for this act of the Federal authorities. But the agent of defendants employed to look up evidence against physicians, it seems, discovered evidence against Van Tear, tending to show that he was guilty of hiring agents to solicit patients for him, and that he was prescribing the waters of the springs to his patients without being registered, and he reported this evidence to the officers, which resulted in prosecutions against Van Lear, and injury to his business as a physician. Van Lear thereupon brought this action in equity against M. G. Thompson and other members of the association to enjoin them from further prosecutions or interference with his business.
On the hearing the chancellor held that the law prohibiting physicians from soliciting patronage by hired agents was unconstitutional and void. He further held that the act of the State Legislature ceding jurisdiction to the United States over part of the Hot Springs Reservation was void on the ground that Congress had no authority to accept such jurisdiction, and that Congress could not legislate and make penal the act of a physician in prescribing the hot waters of the Reservation for his' patients. This appeal brings his decision before us for review.
As to the jurisdiction of Congress over the Hot Springs Reservation and its right to enact laws regulating the use of the waters thereof by physicians, that of course presents- a question on which this court would follow the decisions of the Federal Courts. But we do not find it necessary to decide that question in this case; for if the statute of the State Legislature prohibiting physicians from soliciting patients through paid agents be valid, it seems clear that the injunction ought not to have been granted in this case. For, if that was a valid statute, the purposes for which the defendants were associated were clearly legal. If soliciting patients by physicians through hired agents was unlawful, then this association was formed for the purpose of upholding the law and preventing its violation, and there would be no reason why an injunction should be granted, even if their agents made occasional mistakes, and prosecuted innocent parties. The case would not be different if the act of Congress assuming jurisdiction over the reservation was invalid, for the State laws would then be in force there; and, as the purpose of the association was lawful, the fact that the agent of these defendants may have, when he found evidence against the plaintiff showing that he was guilty of violating the law, commenced the prosecution against him in the Federal instead of a State court would not justify the issuance of an injunction to stop such prosecutions, for the remedy of plaintiff at law in such a case was clear and adequate. He had nothing to do but to take an appeal and be discharged, on showing that the law under which he was prosecuted in the Federal courts was invalid. Taylor v. Pine Bluff, 34 Ark. 603; In re Sawyer, 124 U. S. 200; Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207; Davis v. American Society, 75 N. Y. 362; High on Injunctions, § 68.
So, as before stated, the main question is whether the State law is a valid law or not. Counsel for appellee has argued with much earnestness that laws of this kind are unwise, and he quotes from Herbert Spencer, who says in his Social Statics that there are no sound reasons why the principles of free trade should not be extended to medical advice and practice. The drift of the argument of Mr. Spencer can be understood from the following extract therefrom: “All measures which tend to put ignorance upon a par with wisdom inevitably check the growth of wisdom. Acts of parliament to save silly people from the evil which putting faith in empirics may entail on them do this, and are therefore bad. It is best to let the foolish man suffer the penalty of his foolishness. For the pain, he must bear it as he can; for the experience, he must treasure it up, and act more rationally in the future. To others as well as to himself will his case be a warning. And by multiplication of such warnings there can not fail to be generated a caution corresponding to the danger to be shunned.” Social Statics, 205.
There is, no doubt, some truth in the assertion that it is not best for the law to give too much aid, for people should be taught self-reliance. But this argument is one that should be addressed to the Legislature, and not the courts. If followed to its logical end,, it would result in allowing every one to practice medicine who wished to do so, and that is in effect what the author contends should be done. But, however well that may sound as a theoretical proposition, it does not work well in actual practice if we judge by the statutes of the different States, for there is hardly a State in the Union that does not regulate the practice of medicine by requiring some showing of qualification before a license to practice is granted. The tendency is towards raising the standard for admission to practice, rather than lowering it.
But, as before stated, those are questions for the Legislature, and not for the courts. The Legislature has acted in this mat •ter, and, whether the law be wise or foolish, the courts must enforce it if it be valid. Whether or not it is a valid law is the only question we can consider. The learned chancellor in a well-written opinion held that it was not a valid law, for the reason that in his judgment it was an unwarranted interference with the rights of physicians. But we are not able to concur in this conclusion. Under its police power the State has the right to prohibit things that are hurtful to' the comfort, safety and welfare of society. It is now well settled that in the exercise of this power the State may regulate the practice of medicine and surgery. Gosnell v. State, 52 Ark. 228; Richardson v. State, 47 Ark. 562; Dent v. West Va., 129 U. S. 114; Hawker v. New York, 170 U. S. 189; State v. Edmunds, 101 N. W. 431; Cooley’s Const. Lim. 745; 22 Am. & Eng. Enc. Law (2 Ed.), 780. The law in question concerns the public health, over which the police power has the fullest sway; for, health being the sine qua non of all personal enjoyment, it is not only the right, but the duty, of the State to pass such laws as may be necessary for the preservation of the health of the people. 22 Am. & Eng. Enc. Law (2 Ed.), 922.
Counsel for plaintiff quotes Oliver Wendell Holmes as saying that “if the whole materia medica was sunk to the bottom of the sea, it would be all the better for mankind, and all the worse for the fishes.” We do not dispute that statement, for there may be some truth in it, and it is possible that the Legislature had something of the kind in mind when it passed this act. It may have thought that people are too much inclined to imagine themselves in ill health, too prone to consult doctors, and take medicine anyway, without being urged to do so by hired agents. If it is true, as the “eminent medical authority” quoted by counsel says, “that out of twenty-four serious cases of disease three could not be cured by the best remedies, three others might be benefited, and the rest would get well anyway” — if this be true, is it not better, as a rule, to “throw physic to the dogs,” and let Nature take her course? Now, it is probable that the conscientious physician would give that advice to his patient, in a case where he needed no medicine. But it is not likely that a physician would hire an agent to drum up patients for him only to say to them: “Go thy way; thou dost not need a physician.” A physician who has secured a patient by means of a hired agent has paid out a certain sum to obtain his patient, and is under a strong temptation to put him through a course of treatment, whether he needs it or not, in order to get his money back and make a profit on his investment. And therein lies a danger to the public from such a practice. When a physician obtains patients in that way, he, in effect, buys them', just as if he said to the agent, “I will pay you a certain sum for every patient you send me,” or “I will pay you a certain fee out of the money I receive from each patient you send me.” Now, we do not think prudent people would wish to submit to the advice of a physician who had paid out money to get them under his treatment. To be successful, the agent would necessarily have to keep his interest in the transaction secret from the patient, and it can be easily seen that such a method of securing patients would very often result in imposition and fraud on the patient and in inducing many people to take treatment who did not need it.
As we have stated, even persons of good health are often too prone to imagine themselves in need of medicine. If it is unsafe to allow such persons to be solicited by hired agents to take what they do not need, how much worse is it to expose the sick to such influences! A man or woman who is laboring under a bodily disease is, other things being equal, more easily imposed upon than one who possesses a sound mind in a sound body. The mind of the sick man, like his body, is in an abnormal condition. He is inclined to grasp at shadows and to pursue the wind, and is easily misled into paying money for medical treatment that he does not need. The man who is induced by an agent to buy goods of a merchant can see the goods and judge of their quality before paying his money. But the sick man must take the treatment for which he pays as a matter of faith. As to whether he will be benefited or not, he can only conjecture. He can only judge of the value of the treatment to which' he submits by its subsequent results, and not even then with any great degree of accuracy, for the causes which lead to health or disease are often obscure. They elude even the trained mind of the physician, and much more easily that of the patient.
The objections which we have stated to this method of securing patients, the temptations to which it would subject the physician, and the. danger to which it would expose the patient, show a wide distinction between the case of a merchant who drums for custom by hired agents and that of a physician who seeks patronage in the same way. The business of the physician directly affects the public health, and it does not follow, because the merchant, the manufacturer and others may solicit trade through hired agents, that a physician may do the same thing. The Legislature has forbidden the physician to do so, and there are, in our opinion, sound reasons upon which to base the distinction. The law thus undertakes to protect the physician from the temptation and the patients from the danger to which they would be exposed by such a practice. When we consider how easy it would be in many cases for the professional drummer to impose upon sick people, and even upon those who are well, and induce them to submit to treatment they do not need; when we consider that a physician who had paid for a patient would be under a strong temptation to make a profit out of his investment, and to give and charge for treatment whether the patient needed it or not; when we consider the fraud and imposition that would be encouraged by such a method of securing patients — we easily reach the conclusion that the law wisely prohibits a physician from seeking patronage by means of paid agents.
It seems to us to be a regulation clearly within the power of the Legislature to impose upon those who practice medicine, and that this statute is valid, at least to that extent.
As we are of the opinion that the defendants were acting under a valid law, it follows that they were engaged in a lawful undertaking, and that there were no grounds for an injunction against them. It is therefore unnecessary for us to consider whether, if.the law had been invalid, an injunction should have been refused on the ground that there was an adequate remedy at law.
For the reason stated, we are of the opinion that the chancellor erred in granting the injunction. Judgment reversed, with an order to dismiss the complaint for want of equity. | [
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Riddick, J.
This is an action by Walter Shiver to enjoin the officers of the incorporated town of Hope from tearing down fences and enclosures and opening up an alley through block No. * four, all of which is owned by plaintiff except two small lots which do not abut on the alley which the town claims extends through the block. The part of the block owned by the plaintiff has with the alley been inclosed by a fence constructed by the plaintiff for over seven years before he commenced this action, and he claims that if any such alley ever existed the town has lost the right to open it by statute of limitations and adverse possession thereof on the part of the plaintiff. But we think the preponderance of the evidence shows that the possession on the part of the plaintiff was by permission of the town council, and that plaintiff acquired no rights against the town by such possession.
The main question in the case, as we see it, is whether any such alley was ever dedicated to the public by the owners of the land, for there is no pretense that the public acquired the alley in any other way. The chancellor found that no such alley had ever been dedicated, and that it did not exist, and his judgment, enjoining the town officers from proceeding to open it without proper condemnation proceedings, was based on that finding.
The first contention of appellant on that point is that no such question was raised by the pleadings, and that the chancellor had no right to dispose of the case on such an issue. But, while it is true that the complaint does not deny that such an alley had been dedicated, yet this issue was raised by the defendants. Their answer was not confined to a denial of the adverse possession alleged by plaintiff, but it went further and alleged that the alley in question was shown on the original plat of the town of Hope, and that it “had been recognized and treated as such by the plaintiff and all other persons since the incorporation of the town” down to the bringing of this action. The defendants not only alleged that the alley had been dedicated in this way, but they • introduced evidence to prove it, and by so doing put the question in issue. Having themselves introduced evidence and invited the decision of the court on this point, it is too late now to make objection on that ground, for the pleadings will be treated as amended so as to conform to the evidence and the judgment.
The evidence shows that the town of Hope was incorporated in 1875, and the territory in which the block is located was annexed to the town in 1876. A plat of the town accompanied the petition for annexation, which was filed in the county court. The court at the time named made the order of annexation, and also approved the plat, and ordered it recorded as the.official plat pf the town, which was done. The testimony, of this witness, whose depositions was read for the town, shows that Allen & Marquand were at that time the owners of this land, and that thqy adopted and approved this plat by conveying lots in accordance therewith and by referring to the plat for the more definite description and location of the lots. The block in question is shown on the plat as block four, divided into twelve lots and with the alley across it. These lots, according to the deposition of the witness referred to, were afterwards sold in accordance to the plat. They are, as shown by the abstract furnished by this witness, described in the deed to plaintiff as lots in block four of the town of Hope, giving the number of each lot as shown on the plat, though no express reference to the plat is made in the deed to plaintiff. These acts of the owners of the land show an intention to dedicate the streets and alleys shown on this plat.
The acts of the town council in assuming control over them show an acceptance. In other words, if the evidence by which the facts above stated were established, was competent, a dedication is shown; for it is well established that when the owner of land makes a plat thereof, or adopts one made by some one else, and sells lots by reference to the maps, this amounts to a dedication of the streets and public ways shown on the map. 9 Am. & Eng. Enc. Law, 57, 59, and cases cited.
But there is a question as to the competency of this evidence. It was objected to by plaintiff as incompetent, and the chancellor seems to have disregarded it in arriving at his conclusion. This witness, as before stated, testified that Allen & Marquand were the owners of this land at the time the town was located, and that they subsequently made conveyances of the lots shown on the plat, and referred in their deeds to the plat for description of the lot. The witness filed an abstract showing title in Allen & Marquand, and showing that the plaintiff derived his title through them. But the deeds in which such references were made were not introduced, nor was there any showing made that these deeds or a recorded copy thereof could not be obtained. We are therefore of the opinion that this evidence was incompetent. Heaving that evidence out of consideration, no dedication is shown, for the mere fact that certain parties who did not own this land had made a plat and had it recorded did not constitute a dedication against the owner of the land. And, as there was no competent evidence that the owners of the land had ever adopted the plat or conveyed lots with reference to it, there was no evidence of a dedication by them, or as against them.
The case then stands in this attitude: Plaintiff brought suit against the officers of the town to enjoin them from opening this alley, alleging that he had held adverse possession thereof for over seven years. The town denied that the possession was adverse, and alleged that an alley was shown on the original plat of the town, and that its existence had been known and recognized by all persons including plaintiff since that' date. Evidence, about the competency of which there is no doubt, showed that in 1876, when the territory in which plaintiff’s block is located was annexed to the town, a plat of the town was filed with the petition in the county court. The court ordered this plat recorded as a correct plat of the town, and it was recorded. The plats show the town laid off into blocks, lots, streets and alleys, and the alley in question across block four owned by plaintiff appears thereon. Plaintiff himself afterwards recognized the existence of the alley by applying to the town council for permission to inclose it with his lots. True, he denies that he did this, but, as before stated, we think the preponderance of the evidence is clearly against him on this point. An order granting him permission to close the alley on condition that he open it whenever directed to do so by the council appears on the record of the proceedings of the town council for 21st of June, 1892, and the evidence shows that this order was made at his request.
Now, plaintiff is asking for an injunction, and the burden is ■on him to make out his case by showing that no such alley existed. But he confined his evidence to the question of adverse possession only, while the evidence on the part of the town not only' shows that his possession was permissive and not adverse, but it shows that, by his action in asking permission of the council to close the alley and by his promise to reopen it when directed,' he admitted that there was such an alley.- There is nothing todisprové the existence of the alley to the contrary, and we are of the opinion'that plaintiff failed to make out a case for an injunction.
While alleys, considered as public ways, are intended mainly for the convenience of the abutting lot owners, yet there are many other uses therefor besides travel in which the public are interested, such as for the laying of sewerage and water mains and the erection of telephone, telegraph and electric light poles, and for this reason our statute places them and other ways under 'the control of the municipal authorities, when located.
The fact that the opening of this alley may -necessitate the destruction of shade and fruit-trees belonging to plaintiff and cause him some injury is not sufficient reason to justify the courts in interfering by injunction.
The judgment is reversed, and the cause remanded with an order to dismiss the complaint' for want of equity. | [
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Wood, J.,
(after stating the facts.) Appellant urges for reversal, that it was not shown that each of the locators under whom appellee claims was a citizen of' the United States when the location was made. Mr. Lindley, in his work on Mines, after a review of cases, says: “The following conclusions are clearly deducible from the current of judicial authority:
“1. An alien may locate or purchase a mining claim, and until ‘inquest of office’ may hold and dispose of same in like manner as a citizen.
“2. Proceedings to obtain patents are in the nature of ‘inquest of office,’ and in such proceedings citizenship is a necessary and material fact to be alleged and proved.” Lindley on Mines, p. 407, § 234. He also states at p. 402, § 233, that “the following principles have been established by the weight of authority: 1. That a location made by an alien, if otherwise valid, creates in him an estate which can be divested only at the instigation of the Government in a proceeding to which it is either directly or indirectly a party,” etc.
In a late case in the United States Supreme Court it is held that grantees of public land take by purchase, and that a location by an alien is voidable only, not void, and free from attack by any one except the Government. McKinley Creek Mining Co. v. Alaska United Mining Co., 183 U. S. 563. But, inasmuch as the proceeding in the case at bar was based upon the adverse claim of appellee to the application by appellant for a patent (under section 2326, Rev. Stat. U. S.), the objection that the locators through whom appellee claims were aliens was properly made, for this was in right and on behalf of the Government. Manuel v. Wulff, 152 U. S. 505; Barringer & Adams, Laws of Mines, etc., 205. The objection, however, cannot avail appellants, for the reason that the court below found “that each of said locators was a citizen of the United States,” and the decree recites “that the depositions in the cause were those of Luke Mat-lock, J. F. Dudley, Henry Shepherd, and Z. Shepherd,” but the transcript which appellant has caused to be filed in this court fails to set forth the depositions of the witnesses Henry Shepherd and Z. Shepherd. This being true, every question of fact that was essential, under the pleadings, to sustain the decree, we must assume, was established by the absent evidence. Simpson v. Talbot, 72 Ark. 185; Hershy v. Baer, 45 Ark. 240.
2. This court held in Worthen v. Sidway, 72 Ark. 215, that under the Revised Statutes of the United States, § 2331, the location of a mining claim “must be distinctly marked on the ground so that its boundaries can be readily traced.” Appellant contends that appellee has failed to comply with the requirements of the law in this respect, but the chancellor found that the location “was in manner and form required by law,” and we must assume, for the reason heretofore stated, that there was evidence to support his finding as to the manner of the location.
3. Likewise, as to the contention that appellee and his grantors had not done the assessment work which the law requires, in order to give him the possessory right to the land in controversy, all the foregoing are questions of fact which the missing depositions we must assume established.
4. On the question of the statute of limitations, which appellant urges here, it is sufficient to say that no such issue was raised in the court below, and it cannot be raised here for the first time. O’Reilly v. Campbell, 116 U. S. 418. Indeed, the only question presented by the pleadings and proof, so far as this record discloses, was the validity and priority of the alleged locations. The question of whether the necessary assessment work had been done, or possession held so as to give title by limitations did not arise and could not arise until it was first determined thaft some one was in possession under a valid location. And the court only passed upon the question of whether or not the location under which appellee claims was valid, and prior in time to that under which appellant claimed.
Finding no error, the decree is affirmed. | [
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McCulloch, J.
The main question presented by this appeal is whether or not the Governor' is authorized by the Constitution of the State to appoint a special judge of a court of common pleas to try a case in which the judge of that court is disqualified.
The Constitution provides that the judge of the county court shall be the judge of the probate court, and that “the General Assembly may authorize the judge of the county court of any one or more counties to hold severally a quarterly court of common pleas in their respective counties, which shall be a court of record with such jurisdiction,” etc. Const. 1874, art. 7, § § 32, 34-
Section 36, art. 7, of the Constitution reads as follows:
“Whenever the judge of the county or probate court may be disqualified in any cause or causes pending in his court, he shall certify the facts to the Governor of the State, who shall thereupon commission a special judge to preside in such cause or causes during the time said disqualification may continue, or until such cause or causes may be finally disposed of.”
We think that the framers of the Constitution intended, in the foregoing section, to confer upon the Governor of the State the power to appoint special judges to try all cases in which the county judge is disqualified, pending in either of the three courts over which he presides. If, in the foregoing section, all express reference to the probate court had been omitted, there would be no grounds for serious hesitation over the question, as the construction just announced would be perfectly plain. But when we consider the fact that the Constitution provides methods of election or appointment of judges of all other courts in cases of disqualification of the regular judges, and that provision is made in no other section for the selection of special judges of the common pleas courts, we think it is equally manifest that this section was intended as authority for appointment of special judges of that court. The fact that both county and probate courts are expressly mentioned in this section, and the common pleas court omitted, may be accounted for upon -the theory that, as the first-named two courts were put into operation by force of the Constitution itself, .whilst the establishment of the last-named court was left optional with the Legislature, it was not deemed important to expressly mention the last-named court. Be that as it may, however, we entertain no doubt that such appointments are authorized by this section of the Constitution.
It is also urged that the record of the common pleas court does not affirmatively show that the special judge was commissioned to preside in this case. We find, however, upon inspection of the record as found in the transcript here, that it affirmatively appears that the regular judge announced and certified his disqualification in this case, and that the special judge was duly appointed by the Governor to preside in the cases in which the regular judge was disqualified, and took the oath of office and proceeded to try this case. We think the record is sufficient to disclose the authority of the special judge to preside in the case, and that his judgment was inválid.
The circuit court erred, however, in rendering judgment for the full value of the maps as stated in the complaint. The case was before the circuit court on appeal for trial de novo, and when the plaintiff, who was appellant from the court of common pleas, refused to plead further after his plea to the jurisdiction had been overruled, his appeal should have been dismissed, or, on motion of the appellees, a trial should have been had. Instead of doing either, the circuit court affirmed the judgment of the common pleas court, and rendered judgment against the appellant and the sureties on his bond. Appellant does not complain here of the judgment of the court in that regard, except that it was for an excessive amount. The defendants had a special ownership in the property sued for to the extent of the amount due them, $75.35, and no more. They were not entitled to recover more than that sum from the owner, and in their several answers they only asked for judgment for that amount.
Inasmuch as appellant does not complain of the judgment except as to its excessiveness in amount, the same will be affirmed upo'n the entry within 10 days by appellees of a remittitur down to said sum of $75.35; otherwise, the judgment will be reversed, and the cause remanded for further proceedings. | [
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Battle, J.
The grand jury of White County indicted B. H. Ward for carnally knowing and unlawfully abusing Eva Wood-son, a female under the age of sixteen years. He was convicted and his punishment assessed at imprisonment in the penitentiary for the period of one year.
The record in this court shows that the State failed to prove the county in which the offense was committed. This is a jurisdictional fact, and must be proved by the State. It is necessary to prove it in order to convict the defendant of a criminal offense. Sullivant v. State, 8 Ark. 400; Holeman v. State, 13 Ark. 105; Reed v. State, 16 Ark. 499; McQuistian v. State, 25 Ark. 435; Frazier v. State, 56 Ark. 242; Jones v. State, 58 Ark. 390; 22 Enc. Pleading & Practice, 827, and cases cited.
In his argument before the jury the prosecuting attorney said, “You will have to brand the prosecuting witness, Eva Wood-son, as an infamous liar and a perjurer before you can acquit the defendant.” This remark was highly improper.
• For failure to prove the venue, the judgment is reversed, and the cause is remanded for a new trial.
Riddick, J., dissents. | [
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Battle, J.
Ike Stevenson applies to this court for a writ of certiorari, commanding the clerk of the circuit-court for the Fort Smith District of Sebastian County to transmit to this court a certified transcript of all the proceedings mentioned in his application, and to quash, vacate and set aside the judgment of that court revoking his license to sell liquor in the city of Ft. Smith, in that county, in the year 1905; and filed a transcript of such proceedings, which is certified by said clerk, and admitted and received by all parties as correct. From this transcript it appears that A. A. McDonald signed, swore to, and filed a com plaint or petition in the Sebastian County Court for the Ft.. Smith District of that county, in which he stated as follows: “That he is a citizen and taxpayer in the said county and district, and' as such is interested in the good morals of, and the enforcement, of law in, said district; that said Ike Stevenson did, upon the 9th day of January, 1905, file an application to the county court for said district to sell liquor in said city of Ft. Smith, said county and district; that attached to said application was an agreement that said Ike Stevenson would not violate the laws of the State of Arkansas by allowing gambling in his said place of business,' nor by selling liquor on Sunday; that license was issued to said Ike Stevenson upon his having signed said agreement; and that Ike Stevenson has violated said agreement in that he has, contrary to law, kept his said saloon open to afford ingress and egress, and has sold on Sunday beers and liquors of various kinds at various times, and particularly on Sunday, June 25, 1905; and asked that such license be revoked.” Thereupon a summons, directed to the sheriff of Sebastian County, commanding him to summons Ike Stevenson to appear before the Sebastian County Court for the Ft. Smith District, on the second day of November, 1905, to show cause why his salo.on license should not be revoked, according to the petition of A. A. McDonald, was issued.
The summons was served, and Stevenson, after filing several motions and a demurrer, which were overruled, answered and . alleged that the agreement refered to in said petition or complaint of A. A. McDonald was not voluntarily signed by. him, but was signed under protest and coercion; that he presented a proper and legal application, as required and provided by law, to obtain a license as a retail liquor dealer, but the county judge refused to grant him license unless he would sign the said agreement; that defendant protested that he had fully complied with the law, and was entitled to license, but was informed by the court that it would be refused him unless he signed the said agreement, and, being so coerced, signed the same. .And, further answering, defendant denied that he did on the 25th day of June, 1905, contrary to law, keep his said saloon open to afford ingress and egress thereto, or that on Sunday, June 25, 1905, he sold beers or liquors. *
This cause came on to be heard by the county court, evidence was adduced, and the court found “that the allegations in said petition to revoke the saloon or dramshop license of Ike Stevenson are true; that the defendant, Ike Stevenson, did upon the 31st day of December, 1904, file his said application in the county court to keep a dramshop at No. 8 North Sixth street in the city of Fort Smith for the year ending December 31, 1905; and that at the same time he voluntarily filed his written agreement that, if he should violate the laws regulating the sale of intoxicating liquors on Sunday, he would consent that his license to keep said dramshop should be revoked; that pursuant to said agreement, which was required of all applicants, a license was issued to the defendant, which contained the condition that, if he should violate his said agreement or the laws of Arkansas regulating the sale of intoxicating liquor, his said license should be revoked; that, contrary to the law and his express agreement and promise to the county court and to the conditions upon which his said license was issued and accepted, the defendant did, on Sunday, the 25th day of June, 1905, keep open his said saloon or dramshop, thereby affording ingress and egress thereto, and did on the same day sell intoxicating liquors;” and the court revoked his license.
Stevenson appealed to the circuit court, and there renewed his motions and demurrer, which were overruled. The cause then came on for hearing, and was heard upon the evidence adduced by both parties, and the court found that the defendant, Stevenson, “did on Sunday the 25th day of June, 1905, keep open for ingress, and egress his place of business where he had license to retail liquors, and did, on said day, at the said saloon and his place of business, sell vinous, malt and spirituous liquors, and that his license should be revoked;” and revoked his license.
Without deciding whether an appeal is the proper remedy in this case, and assuming that a petition for certiorari is appropriate, we find that the record failed to show that petitioner is entitled to that relief. He insists that the complaint filed by McDonald, his answer to the same, and the judgment of the court, do not show that the county court had jurisdiction. In this case the record shows that evidence was adduced in the county and circuit courts, but does not show what it was. It is alleged in the complaint of McDonald that the license to Stevenson was upon an agreement he made with the county court, and that he had violated it. The county court found from the evidence that these allegations are true, and that it was stipulated in this agreement that, if he violated it, his license should be revoked by the county court. It does not appear that it was or was not agreed what proceedings should be had in order to revoke the license as in Belt v. Paul, infra, p. 211. If the agreement provided what proceedings should be had to revoke the license, it seems that that ought to be sufficient, as he certainly knew the terms of his agreement, and would have the right to waive any statement as to its contents. As the proceedings in the county and circuit courts, and the jurisdiction to revoke, obviously depended upon the agreement, all the evidence in respect thereto adduced ought to be made a part of the record and shown, in order to enable us to determine whether the county court had jurisdiction in the premises. Los Angeles v. Young, 118 Cal. 295; Stone v. Miller, 60 Iowa, 243; 4 Encyclopedia of Pleading & Practice, pp. 262-265 and cases cited; 6 Cyc. 827.
This does not appear in the petition, and it is therefore dismissed. | [
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Battle, J.,
(after stating the facts.) In the impaneling of the jury in the case the trial court refused'to allow the Waters-Pierce Oil Company to peremptorily challenge three jurors. The appellant insists that the court erred. But we do not think so. The statutes expressly provide in civil cases that “each party shall have three peremptory challenges;” and that where there are several persons on the same side] the challenge of one shall be the challenge of all. All the defendants are not entitled in the aggregate to more than three peremptory- challenges. The statutes do not provide that they shall; in any case, be entitled to more. Kirby’s Digest, § § 4534-4540.
During the progress of the trial the following questions were asked E. R. Russell, a witness, and answered by him, over the objections of the Waters-Pierce Oil Company: “Why did you (Oil Company) get that rotary pump?” He answered, “The one we (Oil Company) had there would not do.” He was then asked: “Had you and him (Humphrey, employee of Arkansas ■Gas Company) had any conversation about getting a rotary pump for the purpose of delivering this oil into this tank?” He answered: “He asked me if I had anything to empty this barrel with.” Plaintiff asked him: “State whether or not it is true that you got that pump for the purpose of delivering gasoline into this tank put in by Humphrey?” And he answered: “I don’t remember now whether we got it for that purpose or not.” There is no reason given in the answer to these questions for purchasing the rotary pump, except the one the Oil Company had would not do, and no opinion as to the relative merits of the siphon and the rotary pump was expressed. We' do not think that the testimony was prejudicial.
A witness was allowed to testify over the objections of the Oil Company as to an agreement of that Company with the Arkansas Gas Company to deliver gasoline into the tanks of the latter wherever its plants were used in this State, and wherever the former had an agent. This was for the purpose of showing that gasoline was dangerous, and required careful handling. This was an undisputed fact, and the testimony was not prejudicial.
The appellant says:
“The court also, erred in permitting counsel to ask John Humphrey about filling the tank on Saturday evening before; and to ask him what occurred there. He was asked: ‘Was Murray there?’ and answered: ‘Yes.’ He was also asked: ‘Did you undertake to empty that or put it into the tank ?’ and he answered: ‘Yes.’ He was then asked: ‘How?’ The court also permitted the plaintiff to ask this witness, and the latter to answer, questions as to the situation and condition of the tank and connections on the Saturday evening before the explosion, and where Murray was, and what he did. Witness, in answer to question, said:, ‘He (meaning Murray) came down and took the pipé out of my hands and undertook to siphon it.’ And he was asked: ‘What were you doing with the hose?’ and he answered: T just had my hands on the hose. Had the goose-neck stuck in that opening there, and he came down and grabbed hold of it, and as soon as I saw what he started to do I grabbed it away. Meanwhile I hallooed to the man above, and he had pulled the hose out of the tank/ He was then asked: ‘Did you say anything about the manner of filling that tank at that time, and how it should be filled; state to the jury?’ The witness answered: ‘When he undertook to siphon it after taking the nozzle out of the opening away from me, I saw what he was doing, I grabbed it away from him, and I got very angry aboht it, because I thought he knew better. I told him never to undertake to siphon gasoline out of one of those barrels into the storage tank. I told him he couldn’t control the flow; that he had his tank upon a high elevation, and it wasn’t safe to do it. I told him to do it no more. I told him it wasn’t safe at all; that he could not control the flow was the main thing. I knew that we could put it in there by the use of a rotary pump, and thought they were using it. I gave Murray instructions to use the rotary pump. Counsel then asked: ‘State what you said?’ and the witness answered: T thought he was using it; that’s how I come to tell him not to try and siphon it when he took it from me.’ He said: ‘The pump won’t work.’ I said: ‘Then we will not put any in there, but we will let the barrel stay on the sidewalk and let it remain there until Monday morning.’ I said: ' ‘We won’t fill it by siphon,’ and for him never to undertake to fill the tank that way because it wasn’t safe, because he couldn’t control the flow of gasoline. He was then asked: ‘Did you tell him how to fill it?’ and the witness answered: ‘With the rotary pump always, because he could control it; that the slower he pumped, the slower it would flow.’ Counsel asked: ‘Did you tell him to use anything else ?’ The witness answered:' ‘A metal funnel.’ This witness was asked: ‘Didn’t you mean by that that this was the only place by which it could get out if it went in at that pipe? To which he answered: ‘Yes.’” This testimony was inadmissible. But the effect of it was to show that the witness was of the opinion that the rotary pump was safer chan the siphon, because the flow of the gasoline in the former could be controlled, and it could not be in the latter, and'for this reason the former should be used. This was the only objection he urged against the use of the siphon. He testified to the same effect, and that he had tested the siphon,' and found it impracticable. This was competent. We think the incompetent testimony was not prejudicial.
Appellant complains because the court refused to instruct the jury to return a verdict in its favor. The court instructéd the jury as follows:
“The mere fact of an explosion, and that plaintiff was injured thereby, is not sufficient to warant a verdict against the AVatersPierce Oil Company. Before you can find a verdict against it, you may also find by a fair preponderance of the evidence that Murray was guilty of negligence in the manner in which he delivered the gasoline into the pipe in the receiving box, and that his negligence in so delivering it, without the intervention of any other independent agency, caused or contributed to the injury; and unless the plaintiff has established by a fair preponderance of the evidence each of these facts, your verdict must be for the defendant, AVaters-Pierce Oil Company.
“Even if you should believe from the evidence that Murray was guilty of negligence in the manner in which he delivered the gasoline into the pipe in the receiving box on Exchange street, still, you could not find against the defendant, AVaters-Pierce Oil Company, unless you could further find by a fair preponderance of the evidence that the gasoline, escaping because of his negligence, got down into the area and caused the explosion; and if the plaintiff has failed to establish either of these facts by a fair preponderance of the evidence, your verdict must be for the defendant, AVaters-Pierce Oil Company.”
“The jury are also instructed that if they believe and find from the evidence that either the defendant the Arkansas Gas Company, or the defendants Chambers & AValker, employed witness Harris to watch the open, upright pipe attached to the tank in question while gasoline was being poured into said tank through the receiving box and pipe by the witness Murray, and to observe whether the gasoline flowed out of said upright pipe; that as a matter of fact the gasoline which caused the explosion and resulted in injury to plaintiff did flow out of said upright pipe, without the knowledge of said Murray, while gasoline was being passed into said receiving box and pipe by the said Murray on the 24th day of December, 1902, and the said Harris negligently failed to observe the same, or,_ if he observed the same, failed to notify the said Murray in time to enable him to stop the flow of gasoline into said receiving box and pipe, and thereby prevent said overflow and resulting explosion, then the said Murray was not guilty of negligence, and you should find a verdict for the AVaters-Pierce Oil Company.”
Before the jury could have returned a verdict in favor of appellee, J. C. Burrows, against the appellant, Waters-Pierce Oil Company, according to these instructions, it was necessary for them to find that the stream of gasoline that ran over the granitoid pavement through the engine room on the premises leased by Chambers & Walker, known as the Turf Exchange, was caused by Murray transferring gasoline into the pipe in the receiving tank in a negligent and careless manner. They obviously so found, and there was evidence sufficient to sustain their verdict in this court. They So found under instructions given at the request of appellant, and it cannot legally complain in this court of the court’s refusal to instruct the jury to return a verdict in its favo*
Numerous instructions were given to the jury, and exceptions to many of them were saved.'
Instructions were asked by appellant and refused by the court. Construed as a whole,, as they should be, we find no reversible error in those given. .The instructions refused, so far as they are correct and were applicable, were included in instructions that were given.
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) 1. Appellant assigns as error the refusal of the trial court to give the following instruction:
“You are instructed that the defendant is justified in observing the usual holidays; and if you find that the delay in delivering the message sued on was due in any degree to the observance by the defendant of January 1 as a holiday, to that extent you will hold the defendant free from blame.”
The rules of the company provide that on holidays the office hours shall be from 8 to 10 a. m. and from 4 to 6 p. m. Texarkana being the repeating station for messages en route to Texas,' an operator remains on duty all day to keep the repeater in order, and the message in question was received at 1145 p. m. by this operator, who placed it on a hook in the office, and no effort was made to deliver it to the sendee until the return of the delivery clerk to the offi'e about 4:45 p. m.
A telegraph company may fix reasonable hours for the receipt and delivery of messages, and the question whether such regulation is reasonable or unreasonable is one of law for the court to declare. Western Union Telegraph Co. v. Love-Banks Co., 73 Ark. 205.
The regulation shown in this case to have been promulgated by the company, fixing office hours on holidays, seems to be reasonable, and it would have been the duty of the court, if requested, to have so declared to the jury. But the instruction in question does not embody any such declaration. It says nothing about reasonableness of the regulation, but tells the jury broadly that the company was free from blame if the delay was due to observance of the holiday. It was misleading, as the jury might have understood from it that observance of the holiday excused the company from diligence in delivering the message. Under the law the company was bound to exercise due diligence, consistent with its reasonable rules, in seeking to make a delivery of the message, and was liable for any negligence in this regard. Appellant can not, without having asked for a proper instruction on the subject, complain of the refusal of the court to give an improper one.
2. It is contended that the evidence was not sufficient to sustain the charge of negligence against appellant, and that the delay in delivery of the message was due solely to the negligent failure of the 'sender to give a sufficient address of the sendee. This-was a question of. fact for the jury, and we think the evidence was sufficient to warrant the finding. The sender may have been guilty of negligence in failing to give a specific address, but the company accepted the address, and undertook to transmit it and to exercise due diligence in promptly delivering it. The deficiency in the address was a proper matter for the jury to consider, and doubtless they did consider it in determining whether diligence was exercised in searching for the addressee to deliver the message. But a finding of negligence on the part of the sender in this respect would not have excused the company from a negligent failure to deliver. The proof shows that the plaintiff was living with her husband, J. A. Ford, only a few blocks from the telegraph office in the business portion of'the city of Texarkana. The name of J. A. Ford appeared in the telephone directory and upon a sign over the door of his place of business. The whereabouts of plaintiff were ascertained the next day, and the message delivered to her by the messenger through inquiry at her husband’s place of business. Her name, stated in the face of the message, indicated that she was a married woman. The jury could rightfully conclude that due diligence required the servants of the company to inquire for plaintiff of a man bearing the name of Ford who was so accessible by telephone as her husband was shown to have been. We can not say that the jury were not warranted in finding negligence under these circumstances.
3. Learned counsel next contend that there can be no recovery in this case because the message was sent from a point in Missouri where the law does not authorize recovery of damages for mental anguish unaccompanied by physical suffering. An instruction to this effect was asked by appellant and refused by the court. The statutes of this State provide that “all telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all' actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company.” Kirby’s Digest, § 7947. The cause of action arose in this State by reason of the negligent act in failing to promptly deliver the message having occurred here. The authorities on. this question are not entirely harmonious, but we think the weight of authority supports the view that the law of this State as to the measure of damages should control, and this view is consonant with sound reason. 2 Wharton, Conflict of Law, p. 1085; Harrison v. W. U. Tel. Co. (S. C.), 51 S. E. 119; Gray v. W. U. Tel. Co., 108 Tenn. 39; Howard v. W. U. Tel. Co. (Ky.), 84 S. W. 764; W. U. Tel. Co. v. James, 162 U. S. 650.
It will be observed that our statute does not make the right to recover such damages depend upon any contractual relation existing between the telegraph company and the person injured by its negligence, but declares in broad terms that all telegraph companies doing business in the State shall be liable for'mental anguish for negligence in receiving, transmitting or delivering messages. In fact, the right of an addressee to recover'damages at ail is not based upon contract, as none exists. “The true view,” says Mr. Thompson, “which seems to sustain the right of action in the receiver of the message, or in the person addressed, where it is not delivered, is one which elevates the question above the plane of mere privity of contract, and places it where it belongs, upon the public duty which the telegraph company owes to any person beneficially interested in the message, whether the sender, or his principal, where he is agent, or the receiver or his principal, where he is the agent.” Thompson on Electricity, § 427.
While this precise question was not presented in the case of Peay v. W. U. Tel. Co., 64 Ark. 538, the effect of that decision was to sustain the right of recovery in the case at bar. The Peay case was decided before the enactment of the present statute allowing recovery for mental anguish unaccompanied by physical injury, and the court, declining to follow the so-called Texas rule, held that no recovery could be had. In that case the message was sent from a point in the State of Kentucky, where such damages were allowable; so, if the doctrine contended for now by appellant is declared to be the law, the Kentucky rule should have been enforced in the Peay case, and the recovery for mental anguish allowed. While, as said before, this question was not discussed in the Peay case, and may have been overlooked by both court and counsel, yet the effect of the decision serves to negative any intention on the part of the lawmakers to adopt the Texas doctrine in full. The present statute was obviously enacted by the Legislature in order to change the rule announced in the Peay case as to the right to recover such damages; and, if we indulge in any speculation at all as to the motive and intention of the lawmakers, we must say that the statute was passed with a full knowledge of the decision of this court holding that no such damages were recoverable in this State for negligence in delivering a message here which had been sent from a State where such damages were allowed.
A somewhat similar question came before the court, recently ’in the case of Arkansas Southern Ry. Co. v. German National Bank, ante p. 482, in construing the effect of the statute 'of this State applicable to a shipment of freight from another State, prohibiting the delivery by a carrier of freight without sur render of the bill of lading. The freight was shipped from a point in Louisiana to a point in Arkansas, and delivered here without surrender of the bill of lading. Damages were sought to be recovered on the ground that the delivery was a violation of the statute. The court held that the statute was applicable and enforcible, though the contract of affreightment was made in another State. The court quoted with approval the following language of the Supreme Court of the United States in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133: “A carrier exercising his calling within a particular State, although engaged in the business, is answerable, according to the law of the State, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law.”
We need not, and do not, decide what would be the effect of the statute if the act of negligence complained of had occurred in the State of Missouri whence the message was sent. That question does not arise in this case. But we do hold that where the act of negligence occurred here, and the injury was sustained here, the statute is enforcible, and gives the right to recover damages for mental anguish, even though such damages are not recoverable in the State whence the message was sent.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from the judgment of the chancery court of Ashley County refusing to hold a deed void on account of the nonperformance of an alleged condition subsequent. The plaintiff alleged that the deed as executed contained a condition that made it void if a certain railroad from the Mississippi River to Hamburg, Arkansas, was not completed on or before the 1st day of January, 1899. The defendant denied that there was ever any such condition in the deed. If the deed contained the words “to be completed by January 1, 1899,” which plaintiff says he interlined in the printed form, that part of the deed would read as follows: The grantors, in ' consideration of one dollar “and in further consideration of the building, equipping and putting in operation a line of railroad from a point on the Mississippi River in Chicot or Desha County to Hamburg, Ashley County, Arkansas, to be completed by January 1, 1899, have granted, bargained, sold and conveyed,” etc.
The words in italics are those which plaintiff alleges that he interlined in the deed, and which he claimed were subsequently erased by some one to him unknown.
There are two questions presented: First, were these words “to be completed by January 1, 1899,” in the deed when executed? Second, if'so, do they, when taken in connection with the other provisions of the deed, amount to a condition subsequent? The evidence bearing on the question as to whether the words referred to were in the deed is quite conflicting. But it is unnecessary for us to set this evidence out or to discuss it, for it is not shown that the grantee erased those words; and if we treat them as in the deed, they do not amount to a condition subse•quent.
Conditions subsequent that defeat the estate conveyed by the deed are not favored in law. The words of the deed must clearly show a condition subsequent, or the courts will take it that none was intended; and when the terms of the grant will admit of any other reasonable interpretation, they will not be held to create an estate on condition. Now, if we treat the deed as containing the words referred to, there are still no words of condition in the deed, and no words indicating that the estate should be forfeited if the road was not completed at the date named. These words then import nothing more than a covenant which, upon the acceptance of the deed by the grantee, became binding upon him, and for the breach of which the grantor may recover damages suffered thereby, but the deed remains valid. Stone v. Houghton, 139 Mass. 175; Episcopal City Mission v. Appleton, 117 Mass. 326; Studdard v. Wells, 120 Mo. 25; Bray v. Hussey, 83 Me. 329; Stanley v. Colt, 5 Wall. (U. S.), 119; 1 Jones on Conveyancing, § 632, and cases there cited.
Again, if this provision be treated as a condition subsequent, the facts here show that it was waived. A condition may be "waived by acts as well as by express release. Any acts on the part of the grantor which are inconsistent' with a claim of forfeiture are evidence of a waiver of the condition. Thus, where lands were granted to a railroad company upon condition that the road should be completed by a certain time, and after the company’s failure to do this the grantor suffered the company to go on and incur further expense in constructing the road without making objection, it was held that the condition was waived. Ludlow v. N. Y. & H. R. R. Co., 12 Barb. 440; Duryee v. Mayor of New York, 96 N. Y. 477; Sharon Iron Co. v. Erie, 41 Pa. St. 341; 1 Jones on Conveyancing, § 699.
Now, the deed in this case was not executed until the 2d day of December, 1898, and the évidence shows that at that time it was known that the road could not be completed on the 1st day of January, following. If plaintiff intended to insist on the condition which he claims was in his deed that the road should be completed by the date named-, it was strange that he put himself to the trouble and expense of executing the deed, for at the time he did so it was known that the road could not be completed by the date named in the deed. But plaintiff not only delivered the deed to the bank, but he made no complaint when the road was not completed, and allowed the bank to hold the deed, and without any protest on the part of plaintiff the deed was delivered to the defendant over ten months after plaintiff claims that the estate conveyed by it had been forfeited. A great part of the work on the road was done after the date on .which plaintiff claims that the forfeiture took place, without objection on the part of plaintiff and without notice to the bank not to deliver the deed. These acts of the plaintiff are inconsistent with his claim of forfeiture, and tend strongly to show that, if there was any condition in the deed, it was waived.
On the whole case, we are of the opinion that the judgment of the chancellor is right, and should be affirmed. It is so ordered. | [
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Wood, J.,
(after stating the facts.) As the questions are mainly of fact, we will not set out and discuss the evidence in detail.
The proof shows that appellee delayed an unreasonable time after the execution of the contract to furnish the materials for the completion of appellant’s building. But, according to the rule announced in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, and the facts of this record, appellee is not liable for special damages for injury to appellant’s building during the delay, nor for the amount paid for labor. The measure of appellant’s damage, under the proof, is the rental value of the building during the time appellant was deprived of the úse of it by reason of the delay in its completion caused by the failure of appellee to furnish the materials within a reasonable time fox the execution of the contract. Hooks Smelting Co. v. Planters’ Compress Co., supra. If no time was specified, a reasonable time was contemplated, in the course of appellee’s business, for it to perform its contract. Liston v. Chapman & Dewey Land Co., ante p. 116.
The preponderance of the evidence shows that it delayed at least a month and a half beyond a reasonable time. The evidence showed that the rental value of the completed building during this time would have been $125 per month. Appellant therefore was entitled to have appellee’s claim against him reduced to the extent of $187-.50. The decree of the court will be modified' in this’ respect, and as thus modified affirmed. The appellee will pay the cost of this appeal.
McCulloch, J., disqualified. | [
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Wood, J.
i. On the questions of fact as to whether or not the .materials were furnished to the contractor, and went into the building of Long, our conclusion is that the court’s findings are not clearly against the weight of the evidence.
2. Appellant, Long, inter alia, testified that the contract price with Humphreys for the erection of the hotel building was $6,600. The building actually cost $9,637.34. All this amount was paid for material and labor that went into the building. Witness sáw that payment was made to the material furnishers and the laborers. None of this amount was paid to the contractor except some small sums for labor that he actually did on the building, amounting to about $60. Appellant contends that under this proof appellee has no lien.
Section 4970 of Kirby’s Digest gives every person who shall furnish any material for any building under any contract with the owner, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of the act, a lien upon such building.
Section 4975, Kirby’s Digest, provides that “nothing herein contained shall be so construed as to give contractors, subcontractors, or laborers, or material furnishers liens for any greater amount in the aggregate than that contracted for between the employer and contractor; provided, that the owner, employer or builder shall pay no money to the contractor until all laborers and mechanics employed on the same and all material furnishers shall have been paid for work done and material furnished.”
Section 4979 provides: “The liens for work and labor done or things furnished as specified in this act shall be upon an equal footing, without reference to the date of the filing of the account or lien; and in all cases where such a sale shall be ordered and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same, without reference to the date of the filing of the account or lien, shall be paid pro rata on the respective liens; provided, such account or lien shall have been filed and suit brought as provided by this act.”
There is a provision making it the duty of the contractor, whenever any lien is filed by any one but himself, and suit is brought, to defend against the action, and the owner in the meantime may withhold from the contractor the amount of such lien; and, if judgment be recovered against the owner, he shall be entitled to deduct the amount of such judgment from any amount due by him to the contractor. Section 4978, Kirby’s Digest. Under another provision the owner may at any time apply to the contractor or subcontractor for a list of all parties doing work or furnishing materials for the building and the amount due to each.” Section 4980.
The provisions of the statute show that the claims of the contractor are subordinated to the claims of laborers and material-men, following what is known as the Pennsylvania, rather than the New York, system. Boisot on Mech. Lien, § 225.
Appellee, having complied with the law as to notice and the filing of its account with the circuit clerk (which is not denied), and having shown that it furnished the materials to the contractor which went into appellant’s building, and that the amount charged for such materials is léss than the contract price, and has not been paid, establishes prima facie its right to a lien, and casts upon appellant the burden of showing to the contrary.
As we construe the provisions of the statute, every person who furnished materials to the contractor that went into appellant’s building, and who had complied with the law for preserving his lien, had a lien for the amount of the materials furnished, and this lien was on an equal footing with all other liens under the contract. If such liens were equal to or less than the contract price, they had to be discharged by payment in full; if they exceeded the contract price, they had to be prorated. So, appellee, having complied with the law as to notice and the filing of its claim with the circuit clerk, could not be defeated of its lien by any payments that appellant may have made to other bona tide lien claimants, under the contract. Appellant could not discriminate between, those who were entitled to liens under the original contract. He could not pay one and refuse another. To discharge appellee’s claim for a lien, it was necessary to include it in any payment that was made of the bona tide claims under the contract. It could not be ignored entirely and defeated by the payment of other claims in full that had .accrued under the contract, where the amount of these claims exceeded the contract price. In such case appellee’s claim would be entitled to its pro rata. To the extent that Barton v. Grand Lodge, 71 Ark. 35, may be in conflict with this, it is overruled.
But it is not contended that appellee’s claim for a lien was discharged by payment, either in full or pro rata. The defense here is, no lien. To make this defense good, it was necessary for appellant to allege and prove that, after the abandonment of the contract by the contractor, appellant had paid out an amount in excess of the original contract price, in order to complete the building according to the plans and specifications of the original contract. He would have to show that the amount thus paid was independent of the contract.
Now, at the time of the abandonment of the contract by Humphreys, the contractor, appellant had expended $4,908. He expended $9,637.34 in all. The difference between these sums, towit, $4,729.34, is the amount expended after the contract was abandoned. If any of this $4,729.34 was for paying off claims that had accrued under the contract before it was abandoned, appellant would not be entitled to credit for such amount. life should be allowed credit for only the sums he paid out independently of the contract, and after the contract was abandoned, in order to complete his building as originally designed. Such amounts he would be compelled to pay, or else leave his building unfinished. None of the original lienholders under the contract could be paid until these amounts were first satisfied. When the aggregate of these sums is taken from the contract price, the residue is for the holders of liens under the contract.
It is clear that the cause was tried below upon an erroneous theory. The court erred in allowing appellee the full amount of his claim after deducting certain credits. But we are unable to ascertain from the proof before us just what amount should be allowed. As was said by Judge Cockriee in Meher v. Cole, 50 Ark. 361: “Too much is left to inference for this court to be able to undertake to adjust the rights of the parties with any hope of approximating the equities of the cause. Both sides are at fault.’,’
In furtherance of justice we think that the judgment should be reversed, the cause remanded and reopened, so that the parties may amend their pleadings, if desired, and take proof, and have the case determined upon the principles here announced. Carmack v. Lovett, 44 Ark. 180.
So ordered. | [
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Riddick, J.
This is an appeal from a judgment convicting the defendant, Ed Scott, of the crime of perjury, and sentencing him to imprisonment in the penitentiary for the period of one year as punishment therefor.
The facts are that Ed„ Scott had been previously indicted for an assault with intent to kill one Garfield Cook by cutting him with a knife.. On the trial of that case he took the stand as a witness in his own behalf, and testified that he made no assault, and had no knife with him at the time. He was afterwards indicted for perjury, the indictment being based on his testimony that he had no knife¿n his hand, and that he said nothing and did nothing to Cook at the time he was alleged to have assaulted him.
No objection was made on the trial to the indictment in this case, and it seems to us to be according to the usual form and sufficient. Counsel for defendant says that the court erred in failing to charge the jury that a conviction for perjury cannot be had save on the testimony of two credible witnesses, or on that of one witness corroborated by other evidence, showing that the statements of defendant on oath for which he was indicted were in fact false. But defendant asked no such instruction. The cases he cites from Texas which hold that it is a fatal error for the court to omit giving such an instruction, even though not requested, are in conflict with the general rule and with the decisions in this State, and cannot be followed here. As the defendant asked for no instruction on that point, he has, under our practice, no right to complain that the court did not give it. White v. McCracken, 60 Ark. 613; Fordyce v. Jackson, 56 Ark. 602.
Counsel for defendant did request the court to instruct the jury that if the defendant was so far from Cook at the time he was alleged to have assaulted him with a knife that he could not cut or harm him with the knife, then defendant could not be convicted of perjury, although he testified falsely that he had no knife at that time. The court refused to give an instruction to this effect, and counsel contend that this was error. But, in order to convict the defendant of having committed perjury in that case, it was not necessary to show that he was guilty of the assault charged in that case. He was charged in that case with having committed an assault with a knife. It was then material to know whether or not he had a knife at that time. He testified that he had no knife, and now contends that, even if this testimony was false, it was not material because the prosecution for an assault would' have failed on another point. But, to quote the language of the Court of Appeals of New York, “it does not lie with the perjurer to say that if he had sworn the truth, the case for other reasons would have failed.” Wood v. People, 59 N. Y. 123. In that case the court met the same argument made by counsel for appellant in this case by saying: “This argument assumes that testimony, in order to be material, must relate not only to the issue in the cause, but to an issue which might be fully maintained by the party tendering it; in other words, that if the testimony relates to a fact or circumstances which is material as part of an entire case, the accused may escape conviction if he can show'that another essential fact could not have been found. If a person swears falsely in respect to any fact relevant to the issue being tried, then we think he is guilty of perjury, although the case failed from defect of proof of another fact, and although the other fact alleged had no existence.”
This decision, we think, was clearly correct. It is a matter of no moment in this case whether defendant was guilty or innocent of the assault charged against him in the other case, for it was certainly material in that case to know whether he had a knife at the time the assault was alleged to have been committed with a knife. If he willfully testified falsely in that case that he had no knife, then he committed perjury, whether he was guilty of the assault or not, and the circuit court properly so held. Robertson v. State, 54 Ark. 604; Rex v. Rhodes, 2 Raymond (Eng.)., 887; Wood v. People, 59 N. Y. 117; 2 Bishop, New Crim. Law, § 1032.
The case of Leak v. State, 61 Ark. .599, cited by counsel for defendant, does seem at first glance to support his contention, but the facts in that case were very different from those here, and we cannot accept it as authority for the contention made here, which is clearly contrary to well-established law.
The evidence was amply sufficient to support the verdict, and, finding no error, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) The liquor in controversy was kept in a prohibited district, and was being sold contrary to law. That brought it within the ban of section 5137 of Kirby’s Digest. It was wholly immaterial as to who owned the liquor, or what his purpose concerning it was. The statute is directed against the liquor itself that may be “kept in or shipped .into any prohibited district to be sold contrary to law.” When it is shown, as it is here, that the liquor is being sold contrary to law, the nuisance exists, and it boots not the owner to say that it was being sold without his knowledge and against his will. The fact remains that the agent whom the owner entrusted with the liquor was selling it contrary to law. The proceeding is in rem. The liquor is the offender, so to speak; it is contraband, and to be destroyed when it is being used, no matter by whom, contrary, to law. Black on Int. Liq. § 352; Com. v. Certain Intoxicating Liquors, 107 Mass. 396; State v. Intoxicating Liquors, 55 Vt. 82.
Affirm. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment in favor of Rhoda Nuckolls against J. T. Miller for $2,000 for slander and libel. Several grounds are urged in the brief of the appellant why the judgment should be reversed, and which we shall, now notice.
Fir-st, as to certain remarks made by the presiding judge during the progress of the trial, and as to his rulings in admitting evidence offered by the plaintiff and excluding evidence offered by the defendant, it is sufficient to say that these objections, are not sufficiently set forth in the motion for new trial, and must be treated as waived. No reference whatever is made to the remarks of the presiding judge in the motion for new trial, and the reference to the error in admitting and refusing evidence is as follows:
“The court erred in admitting testimony introduced by plaintiff over defendant’s objection, as shown by the stenographer’s transcript thereof.”
“The court erred in refusing, the testimony offered by defendant as shown by the stenographer’s transcript thereof.”
It will be seen that the particular ruling made by the court for which the new trial is asked is not shown by the motion. The attention of the court is not called to the particular error complained of, and the assignment is too indefinite. Edmonds v. State, 34 Ark. 721; Choctaw & M. Rd. Co. v. Goset, 70 Id. 427.
The first instruction given by the court does not, in our opinion, state the law correctly, for it tells the jury that they should find for the plaintiff if they find from the evidence that defendant did utter and publish concerning the plaintiff the words set out in the complaint as a basis of her action for slander, or if he used such words as amount to charging the plaintiff with fornication, or with having been guilty of fornication, or did utter or publish words of or concerning the plaintiff which in their common acceptation amount to such a charge.
Now, it will be noticed that the part of this instruction which we have quoted, in effect, told the jury to find for the plaintiff if the words used by defendant amounted to charging plaintiff with having been guilty of fornication, without regard to whether such words were substantially the same as those set out in the complaint or not. Under this instruction, it would have been the duty of the jury to find for plaintiff if the evidence had showed that defendant had said of the plaintiff — an unmarried woman— that she had permitted a man to have sexual intercourse with her, though no such words were set out in the complaint, for such words would in effect charge the plaintiff with fornication. But in an action for slander the plaintiff must prove that the defendant used substantially the same words as those alleged in the complaint. It is not sufficient to prove that the defendant made the same charge against the plaintiff in words substantially different from those alleged, even though of equivalent and similar import. 18 Am. & Eng. Enc. Law, 1078.
Nor do we think that it necessarily follows that the defect in this instruction was cured by the fact that the law was correctly stated in another instruction given at the request of the defendant, for the two instructions are to a certain extent contradictory. But a consideration of the evidence has convinced us that it does not show that the defendant uttered any words tending to charge plaintiff with having committed fornication except those set out in the complaint. There is evidence tending to show that the defendant did. utter about plaintiff words substantially the same as those set out in the complaint. For instance, the complaint alleged that he said, “There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls,’ ” and the witness testified that he said, “There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls’ child.” The addition of the word “child” to that stated in the complaint did not alter the meaning. Again the complaint alleged that defendant said, “Miss Rhoda Nuckolls has given birth to a child, and it was secretly buried at Hopewell,” and the evidence showed the same words except those referring to the burial. But the words not proved were not essential to make out the defamatory .charge. The substance of the charge was that defendant had said that “Miss Rhoda Nuckolls had given birth to a child,” and, these words being shown, the others were immaterial, for the words proved, of themselves, amount to a charge of fornication, when uttered about a single woman. 18 Am. & Eng. Enc. Law, 1070.
Now, as there was evidence tending to show that the defendant uttered the words set out in the complaint, and as the evidence does not show that he used any other language which could be taken as charging her with fornication, we do not think that the jury could have been, misled by^ the erroneous part of this instruction. They must have found that the defendant uttered the language set out in the complaint; otherwise, their finding should, under the instructions, have been for defendant. We are therefore of the opinion that no prejudice resulted from this instruction, though, theoretically considered, it is not accurate.
Counsel contend with much force that the writing on which the second cause of action was based was a privileged communication, and that it cannot be made the basis of an action of libel. It may be true that when a communication is made to an officer with the intention to aid him in the detection of crime, the courts will not compel the officer to disclose the name of the informer. It was so held in Worthington v. Scribner, 109 Mass. 487. When such communication is in a writing filed before the proper officer as the basis of a criminal prosecution, such as an affidavit showing the commission of a crime, then no action for libel can be based upon any pertinent matter therein contained. The remedy of the party charged, if he have any, is for malicious prosecution. The statement, being made in the 'course of a judicial proceeding, cannot be made the basis of an action for slander or libel, whether malicious or not. Shock v. McChesny, 2 Am. Dec. 415; Hastings v. Lark, 34 Am. Dec. 330; 18 Am. & Eng. Enc. Law, 1023, and cases cited. But in this case the libelous matter is not contained in any affidavit or paper filed in a judicial proceeding. It is not a statement of fact within the knowledge of the defendant-who made it, but is only a statement of certain rumors concerning the birth of a child, its concealment and burial, which he claims to have made to the justice of the pea.ce that the justice might order an investigation to ascertain the facts. It is the duty of every one to assist in the detection of crime; and if he knows facts that tend to show that a crime has been committed, it is not only proper, but it is his duty, to communicate them to the proper officer. But, while such statements are privileged, the weight of authority seems to show that they are not absolutely privileged, for charges of that kind should not be made recklessly and maliciously, but in good faith with an honest desire to promote justice. If made in good faith, they are privileged; but, on the other hand, if made maliciously, and with no probable cause to believe them to be true, they are not privileged. This point was directly decided in the old case of Bunton v. Worly, 4 Bibb (Ky.), 38, 7 Am. Dec. 735, where it was held that words spoken to a justice on application for a warrant for felony may be made the basis of an action for slander, when not made in good faith. See also, O’Donaghue v. McGovern, 23 Wend. 25; Howard v. Thompson, 21 Wend. 238, 34 Am. Dec. 238; Sands v. Robison, 51 Am. Dec. 132; Hancock v. Blackwell, 139 Mo. 440; Pierce v. Oard, 23 Neb. 828; Ogden on Libel & Slander, 220; Newell on Slander & Libel, 500; 18 Am. & Eng. Enc. Law, 1038. There are a few cases that seem to hold that communications of this kind to an officer are absolutely privileged. Johnson v. Evans, 2 Esp. 32; Vogel v. Guay, 110 U. S. 311. The first case mentioned above is a very old case. The last one was decided by the Supreme Court of the United States. But the decision in that case was based mainly on the ground that it*was a communication made to a State’s attorney, or public prosecutor of crimes, in order to ascertain whether certain facts •constituted a crime. The court held that the communication was as much privileged as if it had been made to an attorney hired by him. While these cases do seem to some extent to sustain the .contention of appellant, the weight of authority as before stated, ■seerlis to show that a communication of the kind under consideration here is privileged only when made in good faith, .but not when made recklessly, with the intention to gratify personal malice towards the plaintiff or his family. This is certainly true where, as in this case, the informant does not state facts, but mere rumors, which he might easily have ascertained to be untrue. It is doubtful if he was under any duty to voluntarily repeat mere rumors of that kind affecting the character of an unmarried woman, even to an officer of the law; and if he did so maliciously, an action would lie. The instruction given on this point was, we think, proper; and; when the instructions are considered as a whole in the light of the evidence, we find no reversible error.
Again, it is said that the judgment should be reversed on account of improper argument of counsel for plaintiff, who said to the jury in his closing argument: “Di\ Miller should thank God that the people of that community allowed him still to live.” On objection being made, the court quietly said to the attorney not to make improper remarks. Afterwards the attorney said: “A man who is guilty of such heinous crime ought not to be permitted to live in this county.” On objection being made, the court mildly said to the attorney that the remark was improper, to which counsel for plaintiff responded: “Your honor, I say, if he is guilty, he is not fit to live in this county, and I stand on that proposition.” The court overruled the objection to this remark. It will be noticed that the presiding judge sustained the objection to all the remarks of counsel except the last. It is true that his language does not appear to have been very emphatic, but the tone of the voice has much to do with a matter of that kind; and, though the record states that the court “quietly” cautioned the attorney not to make improper remarks, we are not able to say that this remonstrance did not clearly convey to the jury the idea that the argument was improper. If counsel desired to have the jury instructed to disregard the remarks, or if he wished a more emphatic reprimand, he should have asked for an instruction of that kind. That brings us to the last remark of counsel to which objection was made and overruled, in which he said that if defendant was guilty he was not fit to live in the county. This was only an expression of the opinion of counsel, and intended to convey to the jury his idea of the gravity of the charge against the defendant. Now, it is often the case that expressions of that kind are made in argument of counsel. The law does not confine counsel to a cold statement of the facts of the case. He must not misstate the facts, or undertake to supply the place of a witness by stating facts not in evidence. But, to quote the language of a recent case, he is not required to forego .the embellishments of oratory; for “stored away in the property room of the profession are moving pictures in infinite variety, from which every lawyer is expected to draw on all proper occasions.” State v. Burns, 119 Iowa, 671.
Now, counsel does not say in this last remark that a man guilty of that crime ought not to be permitted to live in that county. Such a statement, whether prejudicial or not, would be out of place, and exceedingly improper in a court of justice, as it might be taken as an indorsement of mob law. But in the last statement he simply said that he was not fit to live there. In other words, he maintained that a person who would slander an innocent girl was not a fit associate of the people there. This, as we have said before, was only an attempt to impress upon the jury the gravity of the offense committed against the plaintiff, and in our opinion furnishes no ground for reversal.
There are other errors complained of, but, after consideration thereof, we are of the opinion that no prejudicial error is shown that is raised by motion for new trial.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) The assignment of error in the motion for new trial that the verdict “was contrary to law” presents nothing for review on the ruling of the lower court in giving instructions. Ferguson v. Ehrenberg, 39 Ark. 420; Howcott v. Kilbourn, 44 Ark. 215.
The only questions presented here are whether the verdict was without evidence to support it, and whether it was excessive. These are questions of fact which it could serve no useful purpose to discuss. We are of the opinion that there was evidence sufficient here to support the verdict.
The verdict shows that the jury did not find any exemplary damages. Then to have assessed the amount of actual damages at $1,000 they must have allowed appellee for the full amount of the timber which had been cut, and which he says he lost by reason of appellant’s taking possession. The proof showed that there were some fifty thousand feet of this timber, valued at $7 per thousand, making $350. But the uncontradicted proof showed that this timber had been sold under ' execution, and bought by appellant before the bringing of this suit. This timber was therefore the property of appellant, and appellee could not have been damaged by its loss. The verdict was at least excessive as to this amount. If appellee will enter a remittitur of $350 in ten days, the judgment will be affirmed for the residue; otherwise, it will be reversed, and the cause remanded for new trial. | [
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Wood, J.,
(after stating the facts.) The uncontradicted proof shows that appellant’s intestate was guilty of contributory negligence, which, under many decisions of this court, bars recovery, unless it appears that appellees could by ordinary prudence have avoided the injury after discovering his perilous situation. There is no proof that appellee had discovered the dangerous position of the deceased. The most that could be said of the proof on this point is that appellee by the use of ordinary care might have observed the peril of the deceased in time to have avoided the injury. But this under our decisions will not make the company liable where the deceased was also guilty of negli gence contributing to the injury. Johnson v. Stewart, 62 Ark. 164; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 367; Hot Springs Street Ry. Co. v. Johnson, 64 Ark. 420; St. Louis & S. F. Ry. Co. v. Townsend, 69 Ark. 380; St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211; St. Louis S. W. Ry. Co. v. Cochran, ante, p. 398.
Affirm. | [
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Wood, J.,
(after stating the facts.) 1. Sec. 4, art. 9, of the Constitution is as follows: “The homestead outside any city, town or village, owned and occupied as a residence, shall consist of not exceeding 160 acres of land, with the improvements thereon, to be selected by the owner, provided the same shall not exceed in value the sum of twenty-five hundred dollars,” etc.
The 64 acres which appellants seek to redeem under the right of homestead were contiguous to the 96 acres upon which the father of appellants lived and had his home at the time of his death. Moreover, the proof showed that they were cultivated by him together with the home place as “a farm.” The homestead character was duly impressed upon this 64 acres by the father before his death. The proof shows that the home place and these 64 acres did not exceed in value $2,500. Therefore, no other impressment was necessary than the occupation as a home of the place contiguous to these 64 acres; for by this all the world had notice that the 64 acres contiguous could be selected by the owner as a part of his homestead. Clements v. Crawford County Bank, 64 Ark. 7. The 64 acres, taken in connection with the 96 acres, were not claimed to be unreasonable or arbitrary in shape, and thus injurious to others. The owner had the right to select his homestead in that form. Sparks v. Day, 61 Ark. 570.
At the death of the parents the homestead vests in the minor children, g Const. art. 9, § § 4 and 10. The designation of the number of acres and the particular tracts for the homestead does not have to be made by the owner until the necessity therefor arises. If parents die without making the selection, the right to do so inures to the benefit of their minor children. Const, art. 9, § 10, supra. They are then the owners of the homestead. They are the remaining members of the family circle, who need the asylum which the law has wisely provided to protect them from dependence and want. Tumlinson v. Swinney, 22 Ark. 400; Harbison v. Vaughan, 42 Ark. 539. As infants are not sui juris, they cannot make the selection for themselves, for they might not make a selection that would be for their benefit. It is, therefore, the duty of a court oí chancery, when application is made by infants to redeem, under the homestead estate, lands contiguous to that upon which the dwelling is situated, to appoint a commissioner or commissioners to lay off and select the homestead for them within the limitations of the Constitution, according to the well-recognized rules of law governing the selection of a homestead. Grimes v. Luster, 73 Ark. 266. Primarily, the selection must be made for the benefit of the infants, and then in such manner as not to capriciously or arbitrarily injure others who may be interested. Sparks v. Day, 61 Ark. supra. It is held in Seger v. Spurlock, 59 Ark. 147, that a minor may redeem the entire homestead from tax sale, and the homestead estate is a sufficient interest to enable the minor to redeem the entire estate — the fee— from such sales. Seger v. Spurlock, supra; Waterman v. Irby, 76 Ark. 551; Smith v. Thornton, 74 Ark. 572; Wilks v. Vaughan, 73 Ark. 174. The court erred therefore in refusing appellants the right to redeem the entire estate in the 64 acres.
2. By the tax sale all the estate in the lands in controversy passed to appellee. Craig v. Flanagin, 21 Ark. 319. Appellants had only the privilege of redeeming “from and after the sale” until the expiration of two years after they had reached their majority. Kirby’s Digest, § 7095; Bender v. Bean, 52 Ark. 132.
In order to redeem, the minors must pay to the purchaser at tax sale, for the improvements made after two years from the date of sale, the full cash value thereof, which is a charge upon the land. They must also pay all taxes and costs incurred by the tax owner in procuring the lands and in keeping the tg.xes paid, with interest thereon. Bender v. Bean, 52 Ark. 132. See also McCann v. Smith, 65 Ark. 305. It does not appear from the complaint or any proof in the case that there was any tender of taxes and the value of improvements, and that appellee refused same. Appellants, therefore, were not entitled to any rents until appellee filed his answer denying the right of appellants to redeem. Bender v. Bean, 52 Ark. supra. See also Seger v. Spurlock, 59 Ark. supra. For the errors indicated the decree is reversed, and the cause will be remanded for further proceedings according to the rules of equity, and not inconsistent with this opinion. | [
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McCulloch, C. J.
The Walnut Ridge-Alicia Road Improvement District in Lawrence County was created by a special statute enacted by the General Assembly. Road Act No. 43, regular session, 1919. The statute authorized the improvement of a public road running between Walnut Ridge and Alicia, and authorized the appraisal and taxation of the benefits for the purpose of paying the cost of the improvement. The section of the statute pertinent to the controversy now before us reads as follows:
“Section 30. If, for any reason, the improvement herein authorized and directed shall not be made, all expenses and costs accrued to that time shall be charged against the real property of the district, and the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment, and collected by a receiver to be appointed by said court.”
There was an assessment of benefits by the assessors of the district appointed in accordance with the provisions of the statute, and subsequently another special statute was enacted approving those assessments. Unpublished statute, approved Feb. 4, 1920.
The last statute just referred to also made slight changes in the boundaries of the district.
The validity of the statute confirming the assessment of benefits was upheld by this court in the case of Gibson v. Spikes, 143 Ark. 270. Later there was an abandonment of the whole project, it being ascertained that the cost of the improvement would be so much, in comparison with the benefits to be derived, that it was impracticable to attempt to make the improvement.
In an action instituted by certain owners of property in the district against the board of commissioners in the Federal court of this district, there was a decree enjoining further proceedings toward the improvement of the road, but the decree contained a recital that it was “without prejudice to the right of the chancery court of Lawrence County to proceed to pay the debts of said Walnut Ridge-Alicia Road Improvement District as provided in section 30 of the act whereby said district is created, and to enforce collection of said taxes in the manner herein provided. ’ ’
Thereupon appellees, who had performed services in the preliminary work, instituted the present action in the chancery court of Lawrence County (Eastern District) against the improvement district and the commissioners thereof, in which it was sought to establish the claims of the creditors of the district and to enforce the collection thereof in accordance with the terms of the section of the statute quoted above. Appellants are owners of lands in the district, and they intervened in the action to contest the claims against the district.
Appellants attack the validity of the district on the ground that certain tracts of land which would have been benefited were omitted from the district and thus exempted from taxation. There is also an attack on the assessment of benefits made by the assessors, and confirmed by the Legislature, as being arbitrary, discriminatory and confiscatory. There was also an attack on sec tion 30 of the original statute on the ground that it authorizes the collection of an ad valorem tax instead of a tax on benefits.
The court made a finding as to the correctness of the claims against the district and decreed payment thereof out-of funds to be raised by taxation of benefits according to the assessments made by the assessors and confirmed by the Legislature.
There is no question raised as to the correctness of the claims of appellees as creditors of the district. It is therefore unnecessary to state those claims in detail or to refer to the amounts allowed to the respective creditors for services performed.
The attack on the validity of the statute creating the district is based upon the omission of certain lands. It is claimed that a portion of the SE14 of sec. 27, twp. 17 N, range 1E, which was contiguous to the northern end of the road to be improved in the corporate limits of Walnut Eidge, and which is excluded from the boundaries of the district, lies in between the NW% of said section and the end of the road, and that the only way of approach from the latter tract is completely around the former tract, along the road that crosses the bridge at the end of the road to be improved.
According to the plats exhibited, there is a creek near the city limits of Walnut Eidge, which forms the boundary of the road district at that point. There is a conflict in the testimony as to where the bridge is situated, there being testimony that the bridge which constitutes the end of the road to be improved lies in section 34, which is south of section 27. If this is true, the excluded portion of section 27 does not in any sense intervene between the portion of section 27 which is included in the district and lies further west.
It is also contended that there is an arbitrary exclusion from the district of the north half of section 2, which lies near the town of Minturn, and the inclusion of -the south half of said section 2, it being alleged that the only means of access to the road to be improved is from the south half over the north half of section 2. There is also a conflict in the testimony in that regard.
In neither of these instances is there such an intervention of excluded tracts between included tracts as to-demonstrate that one tract is necessarily benefited because the other was included, so as to make the action of the lawmakers arbitrary and discriminatory. It is just a case of excluded lands which jut into the area included in the district, but which do not necessarily intervene between included tracts and the improved roads. The case in this respect is ruled by the recent decision in Sadler v. McMurtrey, 152 Ark. 621. Moreover, there is a provision in the statute creating this district authorizing the taxation of omitted lands which may be subsequently found to be benefited by the improvement. This provision eliminates any discriminatory effect of mistake of the lawmakers in omitting benefited tracts from the district, for this provision of the statute constitutes authority to put them in the district and assess them if subsequently found to be benefited. Hill v. Echols, 140 Ark. 474.
This is not a case of absolute exclusion from the district, as was the case in Harrison v. Abington, 140 Ark. 115, for the reason, as above stated, that the other provisions authorized the taxation of any lands found to be benefited, whether expressly included in the district or not.
The question of invalidity of the special statute confirming the assessment was decided against the contention of appellants in the case of Gibson v. Spikes, supra. But we are of the opinion that the chancery court erred in ordering the tax levied upon the benefits as assessed, rather than upon the values shown on the tax books for county purposes, in accordance with the provisions of section 30 of the original statute; therefore it is unnecessary to discuss the question of benefits.
The courts must find authority in the statute itself to impose taxes to pay the preliminary expenses of an abandoned improvement district. The statute itself in this instance contains an express provision as to how the preliminary expenses shall be paid in the event that the authorized improvement shall not be made. It further provides that “the amount necessary to discharge all such indebtedness shall be levied by the chancery court of Lawrence County upon real property in proportion to the county assessment.”
Appellants also attack the validity of the statute in this respect, their contention being that the taxation must be upon anticipated benefits and not upon value. We have often upheld taxation upon valuation as appraised by the county assessors for general purposes, on the theory that it constitutes a legislative determination that benefits will accrue in proportion to value. St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 562.
Even if it be held that the presumption of the legislative determination that benefits will accrue in that proportion is excluded by the further provision in the statute for an actual assessment of benefits, it does not render invalid the provision for payment of preliminary expenses by taxation in proportion to the assessment for county purposes. The two methods of assessment are for wholly different purposes. One is for the payment of the cost of the completed improvement, which must be by taxation' based upon and apportioned on benefits to accrue. The other is a mere provision for the payment of preliminary expenses where the improvement is not undertaken at all. This provision necessarily implies a determination by the Legislature that there are anticipated benefits, at least to the extent of the cost of the preliminary expenses, apportioned according to assessments for county purposes, but it is neither unfair nor violative'of any right of landowners to provide that, in the event the contemplated improvement is not undertaken, the preliminary expenses shall be paid according to value, and not according to anticipated benefits. The distinction lies between the payment of preliminary expenses and payment of the actual cost of the improvement.
Where the attempt to construct the improvement proves abortive and has to be abandoned, it is fair to exact contributions from all of the lands according to value, provided, the taxation does not exceed the anticipated benefits, and, as before stated, this feature of the statute must be treated as a determination that a proportionate assessment of taxation for the payment of preliminary expenses will not exceed the anticipated benefits. It is not even shown in the present instance that the assessments apportioned according to assessed value will exceed, as to any tract of land, the assessed benefits. Board of Directors v. Dunbar, 107 Ark. 285.
Our conclusion is therefore that the chancery court erred in adopting the method of taxation on assessed benefits, rather than the method prescribed by statute, of taxing the land according to value as assessed for county purposes. That part of the decree which relates to the method of assessment will be reversed and remanded, with directions for further proceedings in accordance with this opinion; in all other respects the decree is affirmed. | [
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McCulloch, C. J.
Appellant Mosaic Templars of America is an incorporated fraternal society, Which is sues benefit certificates, or policies of insurance, to its members in accordance with tbe terms of its constitution and by-laws.
The certificate, or policy, issued to members of the society does not designate the beneficiary, but merely states that the amount stipulated in the policy will be paid at the death of the member named, if in good standing financially at that time, to the “widow, widower, mother, father, sister, brother or relative by blood to fourth degree ascending or descending, to whom this policy may be willed or assigned.”
The by-laws, which are made a part of the contract, contain the following provisions:
“Section 2. Members holding certificates in this order and dying without designating- in their own writing or mark thereof, attested by the worthy scribe of their temple, or chamber, to whom the benefits shall be payable, then in such event the benefits provided in their certificates or polices will not be paid, under any condition or circumstances.”
“Section 7. Members holding policies in this-order and dying without making some disposition of the same by will or assignment, will not, under any consideration, be paid; and said will or assignment must be made in their own writing, or mark thereof, attested by the scribe of their temple, chamber or palace, and must be sent to the National Grand Scribe on final proof of death.”
B. G. • Bryant became a member of said society, through its local organization at McNeil, Arkansas, and a certificate or policy was issued to him on February 6, 1913, and he died while in good standing financially on September 13, 1919.
Bryant executed his last will and testament on July 21, 1916, whereby he bequeathed his policy in appellant society to his daughter, Minnie L. Hearon, the appellee, who was the plaintiff below. Bryant’s will was duly attested by two witnesses in accordance with the laws of this State and was duly probated, but the instrument was not attested by the local scribe of appellant society as provided in the by-laws.
Subsequent to the execution of his said will, Bryant executed an assignment of the policy to his illegitimate daughter, Frances Rowton, who is one of the appellants here. The instrument was signed by Bryant and witnessed by two persons, but not by the local scribe as provided in the by-laws.
This action was instituted on the policy by appellee, claiming to be the designated beneficiary under the last will and testament of Bryant.
Appellant Frances Rowton was made a party defendant in the action on the allegation that she was claiming some interest in the policy as beneficiary, and she filed her answer and cross-complaint against the Mosaic Templars of America, asking for recovery of the amount of the policy under the assignment to her by Bryant.
Appellant Mosaic Templars of America answered, denying liability to either of the parties.
The cause was tried before a jury, but the court gave a peremptory instruction in favor of appellee.
Each of the appellants filed a separate motion for a new trial, which was overruled, and each has duly prosecuted an appeal to this court.
The by-laws of the society constitute a part of the contract, and there was no liability for the payment of benefits unless there was a designation in the manner prescribed. Baker v. Mosaic Templars of America, 135 Ark. 65. In the case just cited, we said:
“It is insisted by appellant that the failure to designate a beneficiary by will or assignment in the manner provided in the policy cannot prevent a recovery. The policy specifically provides that the laws of the order shall become a part of the contract. The clause in question is law No. 7 of ,the organization. It was there fore necessary for the insured to comply with it before any liability would accrue on the contract.”
The words “will or assign” in by Jaw No. 7 were manifestly used synonymously as meaning the designation of the beneficiary under the policy, and the requirement was for the purpose of certainty and to prevent conflicts, and required that such designation should be in writing, signed by the assured, either in his own handwriting or by mark and attested by the scribe of the local society. No particular form was prescribed for the designation, except, as before stated, that it must be in writing and attested by the scribe. The designation could be by a last will and testament, executed in accordance with the laws of the State, or by a written instrument of assignment, but in either event the instrument must be attested by the local scribe.
In the present instance there was no attestation by the local scribe, either to the last will of Bryant, under which appellee claims, or to the written instrument under which appellant Frances Rowton claims.
The assignment to Frances Rowton does not bear date on its face, but there was proof tending to show that it was executed a short time before Bryant died. Frances Rowton testified herself that the assignment was executed in the year 1918, which was perhaps a year before Bryant died. At any rate, the proof shows that the written assignment to Frances Rowton was executed by Bryant several years after he executed his last will and testament in which. he bequeathed this policy to his daughter, Minnie L. Hearon.
This conflict demonstrates the importance of giving effect to the provision of the by-laws which prescribes that the designation of a beneficiary must be attested by the local scribe. The by-law is mandatory in its terms, and to disregard it would be to set aside the plain contract between the parties, which we are not at liberty to do.
Ordinarily, an assignment of an insurance policy may. be accomplished in any form recognized under the law, unless the contract itself contains a restriction in that respect. There may be even an oral assignment of a policy (Citizens Bank v. Moore, Admr. 134 Ark. 554), but in the present instance we have a plain restriction in the contract prescribing the only method by which the beneficiary may be designated.
It is claimed that there was a waiver of this defect by the conduct of the local scribe in accepting dues and assessments from Frances Rowton with knowledge that there had been an assignment of the certificate to her.
There is proof to the effect that the local scribe, whose duty it was to collect assessments and dues, was informed by Bryant a few months before his death that he had assigned the policy to Frances Rowton and payment of dues and assessments would thereafter be made by her. There was no authority on the part of the local scribe to waive this provision of the by-laws, nor was the society estopped by the conduct of its local officer in so doing. This is not a case of a waiver of forfeiture which may be brought about by the acceptance of payments of dues and assessments, which were payable whether there had been a proper designation of beneficiary or not. A member might continue to pay up to his death, but, as before stated, there was no liability unless there was a proper designation in accordance with the by-laws. The following decisions of this court are in point on that question: Clinton v. Modern Woodmen of America, 125 Ark. 115; Grand Lodge v. Davidson, 127 Ark. 133; Pate v. Modern Woodmen of America, 129 Ark. 159; Miller v. Illinois Bankers Life Assn. 138 Ark. 442; Sovereign Camp Woodmen of the World v. Newsom, 142 Ark. 132; Sovereign Camp Woodmen of the World v. Peaugh, 150 Ark. 176.
There having been no designation of beneficiary, there is no liability, and the peremptory instruction in favor of appellee was erroneous.
There is no liability to either party. Therefore the judgment must be reversed, and the judgment will be entered here in favor of appellant, Mosaic Templars of America, dismissing the action.
It is so ordered. | [
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McCulloch, C. J.
Appellant is a road improvement district created by a special statute enacted at the extraordinary session of the General Assembly of 1920, and the statute was repealed by a later one passed at the regular legislative session of 1921.
Appellees are professional engineers, engaged especially in road construction, and they were employed by this road district as engineers to make preliminary plans and estimates and supervise the construction of the improvement.
The contract was for the whole of the work, both preliminary and supervisory, and a specified percentage was agreed upon as compensation of the engineer's, but the contract was premature because it was entered into before an assessment of benefits was made to determine whether or not the cost of the improvement would exceed the benefits. There was no separate contract for the preliminary work, therefore the compensation of the engineers is to be determined upon the quantum meruit. Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47.
The preliminary work was done by appellees, and the plans and estimates were presented to the commissioners, but further proceedings were suspended because it was found that the cost of the construction would exceed the benefits.
The repealing act provides for the payment of the preliminary expenses by taxation of the lands in the district. Appellees thereupon presented their claim in the sum of $8,338.37 for allowance. The commissioners had previously issued certificates to appellees aggregating $2,500, which constituted a part of the total claim presented by appellees. The commissioners refused to al low the claim as presented, and this action was instituted in the chancery court to recover the amount claimed.
The repealing statute provides that, if the commissioners reject the claim in whole or in part, the claim shall he barred unless suit is instituted within ninety days after notice of the rejection of the claim. The present action was instituted within apt time.
The claim of appellees specified the sum of $4,838.43 as actual expenses, and the further sum of $3,500 as compensation to the engineers, and profits.
The chancery court, after hearing the evidence, allowed the claim in the sum of $7,348.52, which was $4,-348.52 for expenses and $3,000 for compensation.
The items of expense allowed by the chancellor are as follows:
For expenses field party..................................................... $2,135.00
For expenses of draftsmen...................... 1,137.50
For expenses of office help........................ 170.00
For expenses of drafting and blue-print paper...... 78.24
For expenses of stakes................................................................ 37.48
For expenses of railroad fare, telephone bills and other incidentals.................................................... 86.95
For expenses of automobile hire, gasoline and repairs................................................................................... — .......... 353.35
For overhead expenses................................................................... 100.00
For depreciation on automobiles and instruments 250.00
Being a total of......................................................$4,348.52
The plans prepared by appellees in accordance with the terms of the statute contemplated the construction of a road 37.5 miles in length, at an estimated aggregate cost of about $600,000.
There is a conflict in the testimony as to the amount of time spent in making the preliminary surveys and plans, and also as to the cost thereof. The evidence shows that the field work covered a period of about thirty-five days, and that there were eight men in the party engaged in the survey, consisting of two instrument men, two chainmen, a stiekman, an axman, a flagman and a rodman.
Appellees testified that the actual cost of the field work was $2,135, and this, item was allowed by the chancellor as claimed by appellees.
The commissioners, testified that when they issued the certificates- to appellees the latter claimed that the total expense of the preliminary work, which included the office work in making the plans, amounted to about $2,300. Appellees denied that they made any such admission, but that they stated that amount as an estimate of the cost of the field work, which they now claim amounted to the sum specified above.
The evidence adduced by appellees, not only their own personal testimony but that of other witnesses, tended to show that the cost of the field work amounted to the sum now specified by them, exclusive of the office work. There is a conflict in the testimony, but the finding of the chancellor on this issue is not, we think, against the preponderance of the evidence.
Appellees, in their testimony, go into details as to the amount of work involved, both in the field w;ork and office work, and amount of time expended, and we are of the opinion that the testimony is sufficient to support the finding of the chancellor.
Appellees testified that they kept no separate account as to the cost of this work, except as to the amount of time and the number of men used in the work. They are not, however, to be denied compensation merely because they failed to keep a separate account of the amounts paid out as expenses.
A further analysis of the testimony would serve no useful purposes, and it is sufficient to say that, after careful consideration, the conclusion is reached that the evidence as to the amount of compensation earned in the preliminary work is not against the finding of the chancellor.
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Wood, J.
The appellee instituted this action against the appellant upon a promissory note for $159.50 and on an account in the sum of $649.69. The appellant in his answer denied that he was indebted to the appellee, and he set up by way of cross-complaint that the appellee was indebted to him in the sum of $1,812.15 on an account growing out of a contract between appellee and appellant, and that appellee was also indebted to the appellant in the sum of $400 damages for an alleged breach of contract. The appellee and the appellant filed their respective accounts and made them exhibits to their pleadings. The original note was identified by a witness, the manager of the appellee, at the time the same was executed, and introduced in evidence.
The answer of the appellant admitted the execution of the note, and admitted that he was a member of the firm of Mitchell & Sons, but denied that the note was his individual obligation. A contract was introduced in evidence which showed that the appellant had been appointed agent for the appellee for the years 1919 and 1920 to buy cotton seed. The appellant was to receive a commission of $3 per car f.. o. b. Menifee. The contract further provided that the appellant should keep an accurate record of the seed purchased by him for the ap pellee. The note and account on which the appellee grounded its alleged cause of action and the account on which appellant based his cross-action grew out of the transactions covered by the above contract. A comparison of the items of the accounts between the respective parties shows that, aside from the note, there were eight items in dispute, as follows:
Oct. 6, 1919, 300 yds. bagging, F. & S....:._________________$ 73.50
Nov. 20, 1919, 300 yds. bagging, F. & S.......................... 73.50
Oct. 2, 1919, Cash advanced to buy seed...................... 200.00
Oct. 3, 1919, “ “ “ “ “ ............. 300.00
Oct. 24, 1919, “ “ “ “ “ ........................ 250.00
Nov. 6, 1919, “ “ “ “ “ 300.00
Nov. 8, 1919, “ “ “ “ “ ___________________ 200.00
Nov. 12,1919, “ “ “ “ “ 200.0Q
On the first two items the appellant contended that he was entitled to a reduction of $12, which the appellee conceded. On the next two items-the appellee introduced a receipt signed by the appellant, and the appellant thereupon admitted that he had received the items of $200 and $300 in -cash -charged to the appellant as of October 2d and 3d, respectively. That left in controversy the remaining four items. Concerning these, P. F. Cleaver, manager of the Cotton Oil & Gin Co., testified that these items of cash were furnished to the appellant by the Bank of Conway upon telephone orders from the appellee. Witness stated that, on account of the location of the seed business at Menifee, Mitchell would come to Conway on the southbound train. He would go to the Bank of Conway, and from there telephone that he wanted more money to buy seed, and that he wished to return on the next train. There were only five or ten minutes between the trains that he came and returned on. Appellee, upon receiving appellant’s telephone message, would order the bank to pay the money to appellant and charge the same to appellee’s account, and later in the day the appellee would send to the bank a check to cover the amount advanced. The business was handled in this way to enable tbe appellant to catch the returning train to his place of business without loss of time.
The two items of cash, which appellant admits, were handled in the same way as the remaining four items of cash which he disputed. The vice-president of the bank also testified that the four remaining items in controversy were paid to Mitchell by the Bank of Conway ; that Mitchell did not have time to get checks from the appellee, and that payments were made on telephone orders from the appellee in order that Mitchell might catch his train back to Menifee, and that later in the day the appellee would send down checks to cover the payments advanced.
The appellant in his testimony denied that he had received these items of cash. The above shows the respective contentions of the parties as to the debit items of the account upon which appellee bases its action. The appellant testified, among other things, that he never received credit for a certain car of seed which he purchased for the appellee amounting to the sum of $1,176. He stated that this car was shipped to appellee about the 19th of October. He further testified that the appellee gave him no written notice of its intention to terminate the contract, and that he was damaged by reason of their breach of the contract, in the sum of $400. He further stated that he was entitled to an allowance of one per cent, on one hundred and thirty tons of seed for shrinkage ; that the car of seed for which he had not received credit, his commission, and the shrinkage, and damages for 'breach of contract aggregated the sum of $2,212.15, due him by the appellee.
Witnesses for the appellee in their testimony denied that the appellee had received any car of seed purchased for the appellee by the appellant for which the appellant had not received credit.
The issues were sent to the jury upon substantially the above testimony tending to support the respective contentions of the parties. The jury returned a verdict in favor of the appellant. Upon motion of the appellee the court granted a new trial, and appellant appealed from this order1.
We have set forth the issues and substance of the testimony tending to support the respective contentions of the parties. The testimony shows that there was a substantial conflict in the evidence on the issues of fact submitted to the jury. We have often held that “where there is decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court and will not disturb its rulings in either sustaining a motion for new trial or overruling same.” Blackwood v. Eades, 98 Ark. 304-311; and in addition to the cases there cited, see also McDonnell v. St. Louis Southwestern Ry. Co., 98 Ark. 334-336; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599; Johnson v. Mantooth, 120 Ark. 99; Spadra Creek Coal Co. v. Callahan, 129 Ark. 448; Spadra Creek Coal Co. v. Harger, 130 Ark. 374; Mueller v. Coffman, 132 Ark. 45; Wilhelm v. Collison, 133 Ark. 166.
It is likewise the well established doctrine in this State that this court will not reverse the ruling of the trial court in refusing to set aside the verdict and overruling the motion for new trial, where there is any evidence legally sufficient to sustain the verdict; or, as is often stated, where there is substantial testimony to sustain the verdict. See Drennen v. Brown, 10 Ark. 138, and other cases cited in the brief of counsel for the appellant. In addition thereto, see Hill v. Jayne, 18 Ark. 396; Harris v. Bush, 129 Ark. 369; Childs v. Neal, 138 Ark. 578, and other cases cited in Cumulative Supplement to Crawford’s Arkansas Digest. Appeal and Error, § 369, subdiv. 5.
There is no conflict in the decisions of this court declaring the rules of practice governing trial courts in granting and refusing to grant motions for new trial on the ground that the verdict is contrary to the evidence. There was a decided conflict in the testimony on the issues involved in this cause, and the circuit court therefore did not abuse its discretion in concluding that the verdict was against the preponderance of the evidence. Under the evidence adduced it was strictly within the province of the court to determine whether the verdict was sustained by a preponderance of the evidence. The ruling of the trial court was correct, and under § 2179, C. & M. Digest, a judgment absolute will therefore be entered here against the appellant in favor of the appellee. It is so ordered. | [
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Humphreys, J.
This is an appeal from, a judgment of. the Jackson Circuit Court dismissing appellant’s complaint against appellee, seeking to recover damages for an injury received by appellant on November 15, 1916, through the alleged negligence of the employees of B. F. Bush, who was at the time receiver of the St. Louis, Iron Mountain & Southern Railway Co. The complaint, as amended, alleged that appellee succeeded B. F. Bush in the operation of said railroad property by purchase, with full knowledge of all injuries inflicted upon persons and property by its predecessors, and that, on account of taking over said railroad, it assumed the liabilities of its said predecessors. The court dismissed the suit on appellee’s plea of res judicata. This was the third complaint filed by appellant seeking to recover damages for the same injury. A nonsuit was taken on the second complaint, and the first was dismissed by the court for the want of jurisdiction, on the ground that the United States District Court for the Eastern Division of the Eastern District of Missouri, in which the receivership of B. F. Bush over said road had been administered, had reserved the right to determine and allow claims growing out of the liability of the receiver in operating said railroad properties. After B. F. Bush, as receiver for the St. Louis, Iron Mountain & Southern Railway Company, had filed a motion in the . Jackson Circuit Court to dismiss appellant’s first complaint, on the ground above stated, the appellee, the Missouri Pacific Railway Co., as purchaser at the receiver’s sale, and successor in the operation of said railroad properties, was made a party defendant by appellant in said suit; whereupon it filed a motion to dismiss appellant’s first complaint, adopting, in substance, the motion theretofore filed by B. F. 'Bush, receiver for the St. Louis, Iron Mountain & Southern Railway Co.
The order made by the court dismissing appellant’s first complaint was entered under the style of Alex Thomas v. B. F. Bush, as Receiver of the St. Louis, Iron Mountain & Southern Railway Co. The order itself, however, sustained the motion and dismissed the cause for want of jurisdiction and adjudged the costs against plaintiff (appellant). Appellant contends that this order of dismissal was not effective as a bar to his third complaint because the order was made in the receiver’s motion and did not include the Missouri Pacific Railway Co. We cannot agree with appellant in this conclusion. After the Missouri Pacific Railway Company had been made a party, at the instance of appellant, and served by process, it filed a motion to dismiss the cause, adopting the motion of B. F. Bush, receiver, as a part of its motion. The judgment dismissing the cause being general, the language used had the effect of dismissing the case as against all defendants. It was a final order from which an appeal might have been prosecuted. Even if erroneous, which it is unnecessary to determine, appellant’s only remedy to correct the error was by appeal.
Appellant also contends that the dismissal in the first suit was not a bar to the instant case because B. F. Bush, as receiver of the St. Louis, Iron Mountain & Southern Railway Co., was a party defendant in the first, but not a party in the instant case. We do not think this can make any difference, because the basis of both suits grows out of the alleged negligence of B. F. Bush as receiver of the St. Louis, Iron Mountain & Southern Railway Co. while operating the railroad properties, and it was alleged in both suits that the.Missouri Pacific Railway Company was the purchaser and successor of its predecessors, and that by reason of taking over the operation of the railroad with knowledge of the claim it assumed the liability. The purpose of both suits was to enforce a claim arising under the administration of the railroad properties by B. F. Bush, receiver, against the Missouri Pacific Railway Co. as purchaser of the properties and successor to the former owners thereof. The issues therefore in both suits were identical, and the real parties in interest the same. The dismissal order was, in effect, an adjudication that appellant had no remedy against either the receiver or his successor, the Missouri Pacific Railway Co., in the courts of Arkansas on account of the alleged injury, and was conclusive upon the paxties and their privies. The judgment was based upon the motion to dismiss, and the only ground alleged in the motion for dismissal was that the properties of the St. Louis, Iron Mountain & Southern Railway Co., at the time the injury was received, were being administered in the Federal Court for the Eastern Division of the Eastern District of Missouri, which court had reserved in its orders the exclusive power and authority to adjudicate all claims growing out of the receivership. As above stated, this may have been an erroneous adjudication of appellant’s rights, but it was final and appealable. The fact that a party in the original suit was no longer interested, because his interest had been disposed of, was omitted as a party defendant in another suit involving the same issues between the real parties in interest, could not be regarded as a new suit in the sense of precluding interested parties in the first suit from interposing a plea of res judicata upon issues determined in the first suit.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Certain creditors of J. A. Burt recovered separate judgments against him in the circuit court of Woodruff County and caused executions to be issued on the judgments and delivered to appellee, as sheriff of the county, who levied the writs on a lot of chattels as the property of Burt.
Appellants, R. Gf. Brown and R. T. H. Chambers, instituted the present action against the sheriff to recover possession of the property seized under execution, and they assert title to the property under a deed executed to them by Burt.
The property described in the deed executed by Burt to appellants is mentioned as road construction equipment, and consists of sixty-eight horses and mules, a lot of wagons, tractors, scrapers, shovels, crane, truck, graders, steam-rollers, and other equipment and tools used in road construction work. The names of Burt’s creditors are mentioned in the deed, and the amount of the indebtedness, aggregating about $70,000, and there is a general provision in the deed that if there are found to be other creditors who have been omitted they shall be treated as beneficiaries under the deed.
Appellants are mentioned in the deed as trustees, and the instrument is designated by name as a mortgage. The deed contains the following clauses:
“Now, therefore, said mortgagor does hereby bargain, sell, convey, assign, transfer and deliver unto the trustees, their successors and assigns, his entire interest in all the described property, including all the road equipment aforesaid; all his right to collect retained percentage from any and all of said road improvement districts, and to all sums of money that may be due him upon his contracts with any and all of said road districts now or upon completion of the work, excepting, however, such part of the retained percentage in Road Improvement District No. 7, White County, as may be necessary to protect R. T. H. Chambers as indorser on notes of the mortgagor for $15,000, which retained percentage has already been assigned bo him for that purpose.
“In trust, however, to collect the said debts due to the mortgagor, or to become due, to cause all of said contracts to be completed and performed as far as the same remains yet to be performed by the mortgagor, to incur whatever expense is necessary in employing agents for that purpose, or otherwise, to collect the.proceeds thereof, to sublet said contracts, or any of them, or any part thereof, to sell and dispose (after the completion of the work) of all of said road equipment and material, and, after paying the expense of completing said contracts, to pay the remainder to the creditors of the mortgagor above-named pro rata.”
“The said trustees are fully authorized and empowered bv the mortgagor to execute any contract, or con tracts, assignments, releases, vouchers, and any and all other papers, contracts, or vouchers, necessary to be executed in connection with the carrying out of said contract. They are authorized to receive and receipt for all moneys due the mortgagor under any and all of said contracts, or under any contract the mortgagor has heretofore made in respect of said operation, or any of them, and to receipt for the same, and their receipt shall be a full acquittance in the same manner as if signed by the mortgagor. And said trustee shall have the' power also to compromise claims and to release, stipulate, or otherwise' dispose of any controversies connected with said contracts, or any of them, or any part thereof, to purchase and contract for supplies, and to act as fully in the matter as the mortgagor might do if personally present.
“All sums of money due to the mortgagor in Arkansas under said contracts, or otherwise, shall be paid to said trustees. As soon as said trustees shall have collected a sufficient amount to pay ten (10%) per cent, or more of the debts hereby secured, a distribution shall be made by them of the moneys then on hand, and at every period thereafter when such accumulations amount to as much as 10% additional, a like distribution shall be made until all of said debts shall have been paid in full, or the properties hereby conveyed are fully liquidated.
“As fast as any contract shall have been completed or fully sublet to other parties, the said trustees shall sell and dispose at public or private sale any such part of the equipment and material belonging to the mortgagors as shall have been employed in that particular operation, and which has not been included in the subletting contract.”
There is a clause near the end of the deed which provides, in substance, that at the expiration of fourteen months the trustees shall proceed to terminate the trust and sell all of the remainder of the property not otherwise disposed of, and that if, after paying all of the debts, there be a surplus, it shall be returned to “the mortgagor, his executors, administrator^ .or assigns.”
The trial of the cause resulted in a verdict in favor of appellee.
The bill of exceptions recites that the testimony adduced at the trial was 'confined to the record evidence of the judgments against Burt, the writs issued thereunder, and evidence of the value of the property seized by the sheriff, and the aforesaid deed under which appellants claim title.
The only question presented for our decision, is, whether or' not the evidence is sufficient to sustain the verdict.
Appellants were the plaintiffs below, and the burden was upon them to establish their right to recover possession of the property, and they rely solely upon the instrument executed to them by Burt, which is set forth in the bill of exceptions. The question of sufficiency of the evidence calls for an interpretation of the instrument.
While the language of the instrument characterizes it as a mortgage, it is, in fact, not that kind of an instrument, for it does not contain a defeasance clause, which is one of the essentials of a mortgage. The instrument is, in effect, a conveyance to trustees for the payment of a debt to creditors. It is an absolute appropriation of the property for that purpose, -without a defeasance, in the event of the payment of the debts by the grantor, and it therefore constitutes a general assignment for the benefit of creditors. Turner v. Watkins, 31 Ark. 429; Richmond v. Mississippi Mills, 52 Ark. 30; State v. Dupuy, 52 Ark. 48; Fecheimer v. Robertson, 53 Ark. 101.
The deed of assignment is, however, in conflict with the statutes of this State regulating general assignments for the benefit of creditors, and is therefore void. Crawford & Moses’ Digest, clra-p. IX. In the deed the grantor appropriated the property to the payment of all of his creditors, but he went further than that and undertook to clothe the trustees with authority to carry out his contract and to make new contracts with reference thereto and to incur expenses not warranted under our statute. It also prescribed a limitation upon the disposition of the property, which is not authorized by statute. Other reasons might be given why the deed is ■rendered void, but these two features of the deed are sufficient for that purpose.
It does not follow, however, that because the deed is void it is rendered ineffectual as a general assignment for the benefit of creditors. On the contrary, the statute (Crawford & Moses’ Digest, sec. 489) provides that if such an assignment be declared void, the same shall be treated as a general assignment for the benefit of creditors pro rata, and that “said property shall be disposed of and distributed for their benefit under the orders and direction of said court, and the assignee shall become subject to the control and direction of said chancery court in the same manner as if he had been appointed a receiver to take charge of said fund in court. ’ ’
We have given effect to this provision by holding that under a void assignment general creditors have no right to seize the property under writs of garnishment, attachment, or execution. Moore v. Goodbar, 66 Ark. 161; Phelps v. Wyler, 67 Ark. 97; Tapp v. Williams, 83 Ark. 182; State National Bank v. Wheeler-Motter Merc. Co. 104 Ark. 222.
The creditors must resort to the remedy afforded by the statute, but the present case is an instance where appellants are the plaintiffs seeking to recover possession of the property in controversy, and they must rely upon the strength of their own title, and the burden rests upon them to prove their own case.
There is no evidence tending to show that appellants have ever taken possession of the property, or that they have made an inventory or given bond as required by the terms of the statute. Crawford & Moses’ Digest. 486.
In Phelps v. Wyler, supra, Judge Battle, speaking for the court, with reference to the provisions of the statute now under consideration, said:
“The assignee is then required to take immediate possession of the property, and to file an inventory of the same and a bond with the clerk of the court having equity jurisdiction within ten days thereafter. He is impliedly authorized to enforce such right by legal proceedings, if necessary. In the event the assignment shall be declared void, the title and right to possession shall remain in him in his fiduciary capacity, and the assignment becomes a general assignment for the benefit of all the creditors of the assignor pro rata, and the assignee becomes subject to the control and direction of the chancery court in the same manner he would be had he been appointed a receiver to take charge of the property. No creditor can defeat his title.' He cannot, in the discharge of his duties, remain passive, and wait until the assignor delivers possession, but he is required to assert his right to the same immediately, and he is liable for the damages occasioned by his failure to do so.”
That case, however, was one where the creditors sued in chancery court to set aside the deed of assignment, or to purge it of alleged fraudulent debts. The trustee was not, as in the present case, the plaintiff seeking to obtain possession without having complied with the terms of the statute with respect to giving bond. The two cases are thus distinguished, and we hold that appellants are not entitled to recover possession under a deed containing terms in conflict with the statute on the subject.
Appellants, as the trustees, or any of the creditors to be benefited by the assignment, had a remedy in the chancery court for the administration of the assignment and the distribution of the proceeds of the assigned property, but, as before stated, appellants could not recover possession under the deed unless the statute had been complied with.
Finally, it is contended that judgment is erroneous as being against appellants personally instead of against them as trustees.
Appellants sued as individuals, but set forth the deeds of assignment as the basis of their claim of title to the property in controversy. The deed was mere evidence of title, and not their authority to maintain a suit, and the judgment, therefore, was properly against them as individuals for the return of the property.
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Humphreys, J.
This is an appeal from the judgment of the circuit court of Nevada County, coercing the directors of School District.No, 61 to provide a.separate school for twelve white children residing in said district. The record reveals that the lands in the district are largely owned by the white people, and most of the school tax paid by them; that there are about one hundred negro and twelve white children of school age residing in the district; that the directors of the school district are negroes, and in the past have maintained a school for the negro children in the district, but none for the white children; that the white children have been in the habit of going to a separate white school about three miles distant and inconveniently situated with reference to their homes; that four of the white children who had been transferred into another district had been transferred back to District No. 61 by the county board of education, over the objection of the directors of said school district, who took an appeal from the order to the circuit court, where same was pending at the time this cause was tried; that, prior to the institution of this proceeding in mandamus, the directors of School District No. 61 had applied to the county board of education for the transfer of the other eight white children residing in the] district to another district, and at the time of the trial of this cause the petition for their transfer was pending before said board; that the parents of the white children residing in the district had almost completed a school building without expense to the district; that a separate school for the negro, children in the district was maintained for a period of five months each year, and was taught by a principal and one assistant whose salaries were respectively $60 and $30 per month; that the funds were insufficient to maintain two schools for three months in the year upon the same basis of expense incident to maintaining a school for the negro children. There is a suggestion in the argument of appellants for reversal of the judgment that this action to compel the directors to maintain a separate school for the white children was prematurely instituted for the reason that the application of the board of directors to transfer eieht of the white children to an adjoining district was pending before the county board of education, and because the petition to transfer four of the white children into District No. 61 over the protest of the directors wa,s pending in the circuit court on appeal from said board. We do not understand that the pend-ency of either proceeding could prevent the parents of the white children, ten in number or over, from petitioning for a writ of mandamus to compel school directors to maintain a separate school for the education of white children in the district. The appeal to the circuit court from the order transferring the four white children into District No. 61 did not supersede the order transí erring them into the district. In fact, this court very recently ruled that the acts of the county board of education were quasi judicial, from which no appeal is given by the statutes, holding that the only method for reviewing the proceedings was by certiorari. Mitchell v. Directors of School Dist. No. 15, ante p. 50; Acree v. Patterson, ante p. 188.
Appellants’ only other insistence for reversal is that the court committed reversible error in upholding the order of the county board of education in transferring the four white children into District No. 61. Prior to the transfer of the white children into the district, the number of white children therein was not sufficient to require the establishment of a separate school for the whites. The transfer of the four white children into the district had the effect of making the requisite number of white children to compel the establishment of a separate-school for their education. Appellants’ contention is that the transfer of the four white children into the district is illegal because it is apparent that it was done for the purpose of augmenting the number of white children so as to require the directors to -maintain a separate school for their education. In other words, that it is illegal to transfer children from one district into another where there is no established school which they can attend. We deem it unnecessary to decide the question presented by the argument, as the facts in the instant case show that the four children transferred into District No. 61 from' another district were bona, fide residents of District No. 61, and had theretofore been transferred into another district for school purposes because there were not sufficient white children in District No. 61 to require the board to maintain a separate school for their education. The real purpose of the transfer was to return four white children to their home district, where they had a right to be educated in a separate school for whites, as soon as there were enough white children resident therein to command the maintenance of a separate school for their education. We are unable to find anything in the statutes which supports the contention of appellants or militates against the judgment of the lower court.
The judgment is therefore affirmed.. | [
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McCulloch, J.,
(after stating the facts.) The court erred in declaring the law and giving the peremptory instructions to the jury to return a verdict for the defendant.
Plaintiffs’ agreement to allow a rebate of $300 on the notes was upon condition that Tuller and the Creamery Company should faithfully perform the contract for the sale of milk, and there was testimony sufficient to go to the jury that they had failed to do so. The milk contract stipulated only that the milk and cream should be “fresh and of the morning’s milking of each day;” but, it being an article of food, and plaintiffs having no opportunity to inspect it, there was an implied warranty that it should be fit for use. Truschel v. Dean, post p. 546; Bunch v. Weil, 72 Ark. 343; 2 Mechem on Sales, § 1358.
Furnishing impure milk was not a compliance with the contract, and the jury should have been instructed that, if there had been a default in the performance of the contract in this respect, the defendant was not entitled to the rebate.
It is, however, contended on behalf of appellee that appellants, by continuing to accept the milk and pay for it weekly until the term mentioned in the contract expired, waived the right to refuse the rebate on account of the quality of the milk furnished. It is argued that appellants should have refused to accept the milk, declared the contract of sale forfeited, and re-claimed the cattle; otherwise, they are deemed to have waived the right to object to the breach of the contract in this respect. This is not sound. Appellants had a right to accept the milk without waiving the breach of warranty of its quality, and they have a right to refuse to allow the rebate because of the breach. McDonough v. Williams, ante p. 261, and cases cited.
The milk contract and the agreement for rebate on the purchase notes were separate and distinct contracts, and appellants, by accepting a quality of milk below the standard required by the contract, did not waive their right to insist that the conditions upon which they had agreed to allow the rebate had not been performed, nor did their acceptance of the milk estop them from saying that the conditions upon which they had agreed to allow a rebate had not been performed, nor was it an election on their part not to insist upon a breach of the contract. Counsel argue with much earnestness that the plaintiffs are estopped from claiming a breach of the contract, but we see nothing in this case upon which the doctrine of estoppel can be invoked, so far as the right to refuse the rebate is. concerned. Appellee admits that he knew, when he purchased the cattle, the condition upon which the rebate was promised, and the proof shows, if it establishes a breach of the contract at all, that the breach was committed by him after he purchased the cattle from Tullen That being true, how can he plead an estoppel?
It is different, however, as to appellant’s right, upon payment in full of the purchase notes by appellee, to claim a forfeiture and retake the cattle on account of the breach of the milk contract. The acceptance of payments of the notes after the breach of the milk contract was a waiver of the right to insist on the forfeiture. It would be manifestly unjust to allow appellants to continue to accept payments on the notes and at the same time insist that no title to the cattle passed because of the breach of implied warranty as to quality of the milk furnished. As we have already stated, appellants did not, by acceptance of the milk and making payment therefor, waive their right to refuse the promised rebate on the notes, nor their right to sue for damages for breach of the implied warranty of the quality of the milk, but by acceptance of payment of the notes they did waive their right to insist that no title passed because of the alleged breach of warranty.
The court erred in giving a peremptory instruction to the jury, but should have submitted the case to the jury upon proper instruction as to whether or not there' had been a breach of the implied warranty of the quality of the milk furnished under the contract. If there has been such a breach, appellee is not entitled to the rebate of $300 on the notes, as the agreement for allowance of the rebate is conditioned upon a performance of the milk contract; and if it has not been performed, the verdict should be for appellants, because, according to the contract of sale, no title passed until the purchase notes should be paid in full. In other words, if the jury find that there has been a breach of the implied warranty as to the quality of milk furnished, then appellee is not entitled to the rebate of $300, and must pay the full amount of the purchase notes before he can defeat appellant’s right to recover the property. But appellants, by acceptance of the milk and the payments made by appellee on the notes, are deemed to have waived their right to retain title until the alleged damages arising from such breach of warranty be paid, and they must recover such damages in a separate action brought for that purpose.
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Riddick, J.,
(after stating the facts.) This is an appeal by defendant Hudson from a judgment convicting him of manslaughter. While the killing of Colvard was the result of a drunken quarrel, in which he and defendant engaged, it is clear that the killing was not justifiable, and defendant was guilty of either manslaughter or murder. The instructions given by the court fully and fairly covered the law of the case. The instruction in reference to the testimony of the defendant follows very closely the law as stated by this court in Hamilton v. State, 62 Ark. 543. Beginning with the case of Vaughan v. State, 58 Ark. 353, this court has repeatedly held that it was within, the discretion of a presiding judge to give such an instruction, when the defendant took the stand in his own behalf. Vaughan v. State, 58 Ark. 353; Jones v. State, 61 Ark. 88; Hamilton v. State, 62 Ark. 543.
We have not had the assistance of a brief by counsel for the defendant, but, after consideration of the' transcript, we find no reversible error, and the judgment is affirmed. | [
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Battle, J.
Walter H. Paul filed a complaint in the county court of Sebastian County for the Ft. Smith District, and stated therein as follows: “That he is a citizen and a taxpayer of the district and county aforesaid, and as such citizen is interested in the good morals of, and the enforcement of the law in, the district; that A1 Belt did, upon the 9th day of February, 1905, file an application in the Sebastian County Court for such district to sell liquor; that attached to such application was an agreement that Belt would not sell liquor on Sunday; that license was issued upon the agreement; and that he violated such agreement by selling beers and liquors of various kinds on Sunday, the 25th day of June, 1905;” and asked that the license be revoked.
This complaint was filed while the county court was in session, and notice was given to Belt to appear before the county court, at the term then being held, «to show cause why his license should not be revoked.
Belt appeared, and moved the court to abate “this cause and dismiss the complaint, because the same is filed without the authority of law, and because, if such complaint can be filed,” it must be by the prosecuting attorney for that district; and moved the court to quash the summons issued and served in this cause for the following reasons: “When the summons or citation was issued, the regular October term of the county court of Sebastian County for the Fort Smith District had begun, and was then in session, and the summons could not be made returnable to a day in that term, * * * and for the further reason that complaint was not filed and summons served ten days before the beginning of the October term.of the court.”
The court overruled these motions.
Belt thereupon demurred to the complaint because the county court did not have jurisdiction, and it did not state facts sufficient to constitute a cause of action; and answered the complaint, alleging that the agreement was not voluntarily signed by him; “that he presented a proper and legal application, as required and provided by law, to obtain a license as a retail dealer, but the county judge refused to grant him a license unless he would sign the agreement; that defendant protested that he had fully complied with the law, and was entitled to license, but was informed by the court that it would be refused him unless he signed the agreement, and, being so coerced, he signed the same. And, further answering, denied that he did on the 25th day of June, 1905, contrary to the law, keep his saloon open to afford ingress and egress thereto on that said Sunday, June 25, 1905, [and that] he [on that Sunday] sold beers and liquors.
Upon hearing the evidence adduced by the parties the county court revoked the license of Belt, and he appealed to the circuit court. In the circuit court the defendant, Belt, renewed the motions and demurrer he filed in the county court, which were overruled. The cause then came on to be heard upon complaint and answer. Evidence was adduced, and the following facts were proved:
License to sell liquor was granted to Belt on the condition that he would not sell liquor on Sunday; and that if he did so the county court should have the*authority to revoke his license, upon certain procedure specified. Belt .violated this agreement by selling liquor on Sunday, the 25th day of June, 1905, during the period he was licensed to sell. Belt was not at the time of his application a person of good, moral character, and under the laws of the State was not entitled to license to sell liquor.
Upon hearing this evidence the circuit court revoked the license of Belt, and he appealed to this court.
This case is controlled by In re Sarlo, 76 Ark. 336. In that case the license was issued “upon the condition that if the licensee shall permit gambling upon the premises, or if gambling occurs upon the same through his connivance or agency, or if he is guilty of a breach of the Sunday law, or the law against keeping disorderly houses, the county court may ’ at any time revoke this license, this license being issued upon the express condition, and with that reservation.” The license, because of a violation of the condition, was revoked by the county court. Chief Justice Hirr, speaking for the court, said: “The authorities are practically uniform in holding that a liquor license is a mere privilege, revocable at the will of the State. It is not a contract between the State and the license, and no property rights inhere in it. Constitutional limitations against impairing obligations, retroactive laws, etc., can not be invoked in support of rights under it. It is not a vested right for any definite period; in fact, is not a vested right at all, but it is a mere permission temporarily to do what otherwise would he a violation of the criminal laws. Metropolitan Board v. Barrie, 34 N. Y. 667; Sprayberry v. Atlanta, 87 Ga. 120; 13 S. E. 197; Schwuchow v. Chicago, 68 Ill. 444; Moore v. Indianapolis, 120 Ind. 483; 22 N. E. 424; Columbus City v. Cutcomp, 17 N. W. 47; Martin v. State, 23 Neb. 371, 36 N. W. 554; Black on Intoxicating Liquors, § § 127-129. The power of the State over liquor licenses is complete. It is a part of the internal police of the State, in which the power of the State is sovereign. The State may repeal the statute authorizing the license; revoke, annul or modify the license; create conditions, limitations, and regulations subsequent to its issue burdening its exercise; and may delegate these powers to agencies of the State, as municipal corporations, county courts, boards of excise commissioners.”
The court in that case held “that it was within the power of the county court to adopt a requirement of obedience to the laws as a- condition of granting any license; and when the licensees voluntarily assumed these conditions, instead of refusing the license or availing themselves of their legal remedies to contest this power and the manner of its exercise, they can not complain of a revocation of the license produced by their violation of the law contrary to their agreement and the terms of the license.”
We do not know of any procedure specially prescribed by law for the enforcement of such agreements. In this case it was agreed that the proceeding to revoke may be as follows: “Complaint in writing shall be filed with the county court, charging the applicant with a violation of one of the said conditions, giving the time and circumstances of said violation; a copy of said complaint shall be served upon the person complained of at least five days before 'the time of hearing; and if the investigation shall establish upon due and proper proof that the complaint so filed is true, then the county court may revoke the license.” The complaint in writing, charging Belt with a violation of one of the conditions in his agreement, was filed in this case in the county court. The -time of the violation was the 25th day of June, 1905 ; the circumstances of the violation were by selling liquor on Sunday; and Belt appeared in the county court nine days before the hearing, and answered, and waived the copy of the complaint by not demanding it. An investigation was made which established upon due and proper proof that the complaint was true. According to his agreement his license was revoked. According to In re Sarlo, he has no right to complain. His license was not absolute, but conditional, and when,the condition was broken his right to sell liquor ceased, and when his license was revoked, he. had no cause to complain,, because no right was taken from him. He.had forfeited his license. In re Sarlo, supra; Stevenson v. McDonald, ante, p. 208.
Judgment affirmed. | [
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Smith; J.
This suit grows out of the differences between the parties which led to the suit of Woodson v. McLaughlin, 150 Ark. 340, and many of the circumstances there involved were again inquired into at the trial from which this appeal comes. This present suit is one to recover damages for an alleged malicious prosecution instituted in furtherance of McLaughlin’s wrongful purpose to eject J. F. Woodson and the members of his family from the house which they were occupying as share-croppers on McLaughlin’s farm.
In support of the allegations of the complaint, testimony was offered tending to show that McLaughlin had used threatening- and abusive language toward J. F. Woodson, and had instigated one Davis to cause a warrant to be issued for the arrest of J. F. Woodson and his brother, E. F. Woodson, who was living with him, charging them with a breach of the peace by using-threatening and abusive language, and that this was done without probable cause therefor.
Davis testified that he had a contract to move the house, and attempted to do so, but was driven away by the Woodson brothers, who abused him and threatened him with personal violence. This the Woodsons denied, and, according to their version of the affair, they were themselves the persons threatened and abused, and they were arrested without probable cause.
The parties defendant were McLaughlin, the owner of the land, Davis, who had the contract to move the house, and Cox, the deputy constable who served the warrant. These defendants filed a joint auswer, in which they denied all the allegations of the complaint.
Without reviewing the testimony, it may be said that a case was made for the jury that the Woodsons had been arrested without probable cause; but the testimony shows that when the case was called before McLaughlin, who, as justice of the peace, had issued the warrant, the parties began to talk compromise and settlement, and the prosecution was finally dismissed by consent after the parties had discussed and compromised their differences.
McLaughlin testified that while the parties were assembled at his store, where he was accustomed to hold his court as a justice of the peace, J. F. Woodson approached him and proposed a settlement of the case, and that he told Woodson the prosecution was under the control of Davis, and that Woodson asked him to speak to Davis about dismissing it; that he did so, and that Davis declined to dismiss the prosecution on the ground that the Woodsons had threatened him, and he was afraid they would commit some act of violence against him-; that he communicated this statement to the Woodsons, and received-assurances from them that they would do Davis no harm, and he reported that fact to Davis, whereupon, in consideration of this promise, Davis asked that the prosecution be dismissed, and that order was entered. McLaughlin testified that J. F. Woodson agreed to pay the costs of-the ease, and that he later did so. This testimony in regard to the compromise and settlement of the prosecution does not appear to have been denied, although both the Woodsons were recalled to the stand after that testimony had been given.
J; F. Woodson did deny that he agreed to pay the costs. After being recalled he testified that nothing was said, when the prosecution was dismissed, about paying the costs, but that some days later, when a bale of cotton, which he had grown, had been sold by McLaughlin, the constable’s costs, amounting to $2.50, (the only costs charged in the case) were deducted by McLaughlin from Woodson’s share of the proceeds of the cotton, and that he (Woodson) protested at the time against the deduction being made. This occurred several days after the prosecution had been dismissed; but there appears to be no denial of McLaughlin’s statement that a compromise of the matter was effectuated as a result of his negotiations between Davis and! the Woodsons, even though there was a misunderstanding about the payment of the costs. Davis substantially corroborates McLaughlin about the compromise and settlement of the case. There was a directed verdict in favor of the defendant, from which is this appeal.
It is true Davis and McLaughlin are parties to this litigation, and their statements would not, therefore, ordinarily make a case of undisputed evidence; but, inasmuch as the Woodsons testified, and were recalled to again testify after McLaughlin and Davis had given their testimony in regard to the terms of the compromise, without denying the truth of this testimony, it will be taken as making a case of undisputed evidence. Gish v. Scantland, 151 Ark. 594.
In the article on Malicious Prosecution in 18 R. C. L., p. 25, it is said: “It is generally held that where the original proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor, or as the result of some act, trick, or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of an action for malicious prosecution. ’ ’
. Among the annotated cases cited in the note to the text quoted is that of Baxter v. Gordon Ironsides, etc, Co., 13 Ont. L. Rep. 598, 7 A. & E. Ann. Cas. 452. In the note to this case it is said: “The rule is well settled that, where the proceeding is dismissed or abandoned by procurement of the party prosecuted, by settlement or compromise with the prosecutrix or plaintiff in the action, it is not such a final determination of the matter in his favor as will support an action for malicious prosecution.” Many cases are cited in the notes supporting it.
A case very extensively annotated is that of Graves v. Scott, 51 S. E. 821, 2 L. R. A. (N. S.) 927. Beginning at page 945 of this annotated case many cases are cited in support of note E, reading as follows: “If the prose cution is brought to an end by settlement or compromise, or by the hand of the accused, it is not a sufficient termination upon which to found an action.”
See also Craig v. Ginn, 53 L. R. A. 715; Waters v. Winn, L. R. A. 1915-A 601, and the cases cited in the notes to these cases.
The testimony being undisputed that a compromise was effected as a result of which the prosecution, out of which this litigation arises, was settled, a verdict was properly directed in defendant’s favor. It is- true J. F. Woodson did testify that he did not agree to pay the costs, and we must assume that the jury would have so found in view of the fact that the verdict was directed against him; but this was only a detail of the compromise, and one which did not prevent the consummation of the settlement by the dismissal of the original prosecution.
It is true also that McLaughlin was the justice of the peace who issued the warrant, and that the case was tried upon the theory that he had instigated and prompted Davis in making the affidavit before him upon which the warrant of arrest was based, and, as we have said, there was testimony upon which the jury might have found that this was done without probable cause. If these things were true, then McLaughlin was disqualified to try this case by reason of his interest in the prosecution; but the Woodsons admit that they did not ask the change of venue to which they would have been entitled if their theory of the case is true. But the justice court of that township had jurisdiction of the offense charged in the warrant of arrest, and McLaughlin was a justice of the peace, and, as such, he made the order dismissing the prosecution. So that, whatever may be said about his right to try this case, it was a part of the compromise and settlement that he should make the order which ended the prosecution, and that order was entered and the prosecution was ended, and that prosecution was as effectually and finally disposed of as if there had been no question about his jurisdiction.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Mrs. Victoria E. Foster, the widow of Frank Foster, deceased, was a resident of the city of Little Rock and died intestate on May 14, 1920, leaving an estate valued at $8,000, consisting entirely of personal property.
On May 29, 1920, a petition was presented to the probate court of Pulaski County naming appellants as the collateral hqirs of said decedent and asking that W. E. Lenon be appointed as administrator of the estate of said decedent. On the same day Mr. Lenon, who was the president of the People’s Savings Bank, a banking corporation in the city of Little Rock, presented an application in the name of his bank, praying that that institution be appointed as administrator of said decedent. The court granted the last-named petition and appointed the People’s Savings Bank as administrator.
It does not appear from the record which one of these petitions was filed first during that day, and there was no response nor opposition to either of the petitions. There had been no objections made to the appointment either of Mr. Lenon or the People’s Savings Bank. The appointed administrator qualified and took charge of the estate of the decedent.
In the petition for the appointment of the People’s Savings Bank, Daisy F. Holt was mentioned as the daughter and only heir at law of said decedent, and on June 11,1920, she filed a plea denominated as “a response to the petition for the appointment of Mr. Lenon as ad ministrator, ’ ’ but tbe substance of the petition is merely a protest or contradiction of the claim of the collateral kin to the inheritance of the estate of said decedent. She alleged in that plea that she was a daughter and sole heir at law of the decedent, Mrs. Foster. She alleged also that Mrs. Foster left a last will and testament in an old trunk on the premises, and that she (appellee) was the sole beneficiary under said will. The prayer of that plea was for an order of the court for the surrender to the administrator of said trunk and contents, and that she “be decreed and adjudged to be the child and sole heir of her mother, Victoria E. Foster, and for all other proper, just and equitable relief in the premises.”
Appellants, as collateral heirs, appeared and filed a response to the plea of appellee, and in that plea they denied that appellee was the child of Mrs. Foster.
The probate court, after hearing the testimony, made an order as follows: ‘ ‘ That the proof shows that Daisy Foster Holt is the sole child and heir of the deceased, Victoria Foster; that she is the daughter of the deceased, not a foster daughter as contended for by the contestants, and the court so holds and decrees, and that, as such daughter, she is entitled to all the rights in her mother’s estate given her under the common law and the statutes of Arkansas.”
There was nothing embraced in the order with reference to the distribution of the estate in the hands of the administrator.
The present appellants prosecuted an appeal to the circuit court, and the cause was heard by the court on oral testimony directed solely to the question whether or not appellee was a daughter of the decedent, Mrs. Foster. The testimony was conflicting and supported a finding either way on the issue presented. There was a judgment in favor of the appellee affirming the judgment of the probate court.
' In overruling the motion for a new trial, the court incorporated the following statement in the order: “And the court, after argument of counsel, finds that the evi deuce, submitted upon the allegations of the response of contestee and the answer of contestants, is so equally balanced that the granting of a new trial is primarily dependent upon a determination of where the burden of proof properly lies. The court therefore finds that the burden of proof was properly placed during the trial upon the contestants herein, and therefore the judgment of the court was proper in sustaining and affirming the judgment of the probate court. The court further finds that, if the burden of proof was erroneously placed upon the contestants and should have been placed upon the contestee, then the contestee’s proof fails to sufficiently preponderate over contestant’s proof, and the judgment ■of the court should have been in favor of the contestants, and the judgment of the probate court reversed.”
We are of the opinion that the court erred in its ruling as to the burden of proof.
After the probate court acquires jurisdiction over the estate of a decedent, the question of . inheritance can only arise upon an order for the distribution of the estate to the heirs, and a claimant to this estate must establish the right to the inheritance by proof of relationship to the decedent.
The law fixes the inheritance on proof of relationship, and, as appellee claims the right of inheritance as the daughter of the decedent, it devolves upon her to prove that relationship.
An administrator has no right to distribute the estate of his intestate until ordered by the court, and, as before stated, a claimant for the property asking for such an order must prove his or her relationship.
This is not a trial of the rights of property in an adversary proceeding, and the condition of the pleadings, therefore, has little or nothing' to do with the question of the burden of proof, but the fact that a party was claiming the inheritance and asking for a distribution of the property in his or her favor casts upon the applicant the burden of establishing the inheritance by proof of relationship to the decedent.
The error of the court calls for a reversal of the judgment, for it appears, from the recitals in the order of the court, that the judgment of the court would have been different but for this erroneous conclusion as to the law of the case.
This much is said in view of a further controversy to be settled later, concerning a distribution of the inheritance, 'but it is also clear to us that the probate court and the circuit court on appeal were both without jurisdiction to determine the question of inheritance from said decedent upon the issues presented, and that the judgment must not only be reversed, but the cause must be dismissed.
The jurisdiction of the probate court is confined to the administration of estates which come under its control and to determine questions which are necessarily incident to such administration. Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117; Shane v. Dickson, 111 Ark. 353; King v. Stevens, 146 Ark. 443; Gordon v. Clark, 149 Ark. 173.
All that the court determined in the present case was that appellee was the daughter and sole heir at law of the decedent. The judgment was merely declaratory in its effect, for nothing else was before the court. There was no controversy concerning the appointment of the administrator, and there was no question of inheritance involved in the prayer that one of the appellants be required to turn over the old trunk, containing the Bible and alleged will, to the administrator. Nor was there any prayer for the distribution of the estate. In fact, the time had not arrived for a final distribution of the estate, and such distribution could only have been ordered upon the execution -of bond for the refund of the part so distributed. Crawford & Moses’ Digest, § 216 et seq.
The question of inheritance could only arise as an incident to the distribution of the estate; and, since there was no prayer for distribution, the court had no jurisdiction to declare the right of inheritance.
The judgment is therefore reversed, and the cause remanded, with directions to dismiss the proceedings for want of jurisdiction. | [
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Humphreys, J.
The issues in this case as finally made up by the pleadings presented the questions: First, whether appellees, W. H. Gray and Laura Gray, were entitled to a personal judgment against appellant I. J. Knapp in the sum of $8,967.66, and a decree declaring a lien and for a foreclosure of same against about 280 acres of land.in section 35, township 10 north, range 26 west, in the Ozark district of Franklin County, Arkansas ; second, whether judgment should have been rendered against L. S. Swepston on a writ of garnishment issued in the foreclosure proceeding; third, whether the attachment issued in the foreclosure proceeding, directed to the sheriff of Crittenden County and levied upon the east half of the northeast quarter of section 28, township 7 north, range 7 east, should be sustained; and fourth, whether Isa D. Knapp should recover the lands in Crittenden County on her interplea.
The cause was submitted to the chancery court upon the pleadings and evidence, which resulted in the rendition of a personal judgment in favor of appellees W. H. and Laura Gray against I. J. Knapp for the amount claimed and a decree declaring a lien upon and a foreclosure and order of sale against the lands in Franklin County. Also the rendition of a personal judgment against L. S. Swepston upon the writ of garnishment in the sum of $1,200, and a decree sustaining the attachment on the Crittenden County land for the payment of any deficiency judgment that might exist after the sale of the Franklin County lands.
The record reflects that on the.9th day of February, 1920, appellee W. H. Gray, acting for himself and his wife, Laura Gray, entered into a written contract with appellant, I. J. Knapp, conditionally selling the Franklin County land to the said Knapp. The condition incorporated in the written contract was that it should become binding and effective on the said Knapp if he could complete an executory sale of his Crittenden County lands to L. S. Swepston. The sale of the Crittenden County lands to Swepston depended upon whether the title thereto could be perfected and whether1 payment of certain mortgages existing upon the lands could be arranged. Thereupon W. IT. Gray and I. J. Knapp proceeded to Crittenden County, where they arranged with the Crittenden County Bank & Trust Company to remit to W. H. Gray the major portion of $5,400 when L. S. Swepston should make the first payment on the Crittenden County lands. Thereafter I. J. Knapp took possession of the Franklin County lands and managed and controlled them. Subsequently I. J. Kjnapp paid W. H. Gray $350 upon the purchase price of the Franklin County lands. The receipt recites that it was a payment on the contract. Knapp explained that it was paid to enable Gray to purchase another place, and without intention to waive the condition in the written contract. Later on I. J. Knapp and L. S. Swepston canceled their executory contract for the1 sale and purchase of the Crittenden County lands, and entered into a lease contract with an option on the part of L. S. Swepston to purchase it for the same consideration at a fixed future time. This option on the part of Swepston was never exercised. The rental contract provided that Swepston should pay $200 to an' attorne}^ and $1,200 to I. J. and Isa D. Knapp. The $1,200 note was executed to them jointly. The title to the Crittenden County lands was in the name of I. J. and Isa D. Knapp, his wife, appearing as an estate in entirety on the face of the deed. Isa D. Knapp interpleaded for the land on the ground that it was her individual property, and in the course of the trial offered to prove that the lands were purchased with her individual money, and that the name of I. J. Knapp was inserted through mistake and not for the purpose of creating an estate by the entirety. This evidence was excluded by the court, over the objection and exception of appellant Isa D. Knapp.
L. S. Swepston filed an answer to the writ of garnishment, in which he admitted executing a note for $1,200, due and payable on the first day of January, 1921, for the rent of the lands in Crittenden County, payable to I. J. Knapp and his wife, Isa D. Knapp, and stating that he did not know whether the said I. J. Knapp and Isa D. Knapp were the legal holders of said note, and therefore prayed that the court require the surrender of the note before rendering judgment on the writ of garnishment, which answer was sworn to and filed on the 8th day of Juty, 1920. Judgment was rendered against Swepston for the amount of the note, over his objection and exception, without proof that the note was non-negotiable or requiring the production of same.
The alleged grounds for the issuance of the attachment were that “said defendant Knapp has sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be sold with the fraudulent intent to cheat, hinder or delay his creditors; and that said defendant Knapp is about to sell, convey or otherwise dispose of his property with such intent. ’ ’ The grounds for the attachment were controverted under oath. No proof was introduced tending to show that. I. J. Knapp had sold or was about to sell and dispose of his property with the fraudulent intent to cheat, hinder and delay his creditors in the collection of their debts.
In the course of the trial appellee was permitted to introduce in evidence, over the objection and exception of appellant I. J. Knanp, the pleadings and judgment for $300 in the case of F. K. Lashbrook v. I. J. Knapp and Isa D. Knapp. This was a compromise judgment for commissions for selling the Crittenden County property for the Knapps to L. S. Swepston. I. J. Knapp offered to explain that he consented to the judgment, not because the sale had been effected through the instrumentality of Lashbrook, but simply to prevent the inconvenience and expense of further litigation. The court excluded this explanation, over the objection and exception of appellants. The evidence was in sharp conflict and quite close as to whether I. J. Knapp waived the condition in the written contract for the sale and purchase of the Franklin County lands. There is some direct evidence and many circumstances tending to show that he agreed to take the Franklin County lands, whether he completed the sale of his Crittenden County lands to Swepston or not. The chancellor made two distinct findings in his decree, one to the effect that Knapp agreed to take the Franklin County lands whether he sold- the Crittenden County lands or not, and another to the effect that there was no failure on the part of Knapp to close the sale of the Crittenden County land. The latter finding seems to have been based largely upon the judgment and decree in favor of Lashbrook against the Knapps for the commission, indicating, that the judgment conclusively established the fact that there was a -completed sale. It was competent to introduce the Lashbrook judgment as a circumstance tending to show that there was a completed sale of the Ci’ittenden County land, but it was clearly error to exclude the explanation offered concerning that judgment. The Lashbrook judgment, in connection with the explanation erroneously excluded by the court, did not conclusively establish a completed sale, nor do we think it and the other evidence in the case, which we have carefully examined, was sufficient to sustain the finding of the chancellor to the effect that the sale of the Crittenden Couiffy land to Swepston was effected or concluded. While we are convinced that the trial court erred in finding that there was no failure on the part of I. J. Knapp to close the sale of the Crittenden County land, we are not convinced that the court was in error in finding that Knapp agreed to take the Franklin County lands irrespective of whether the sale to Knapp was consummated. We do not think the finding in this regard was (dearly contrary to the weight of the evidence. It was therefore proper for the trial court, under that finding,' to render a personal judgment against I. J. Knapp for the contract price of the Franklin County lands, and to decree a foreclosure and sale thereof to pay the purchase price.
The next question to be determined on the appeal is whether the court erred in sustaining the attachment against the Crittenden County land. The grounds of the attachment were controverted, and we are unable to discover any evidence in the record tending to show that 1. J. Knapp had sold or was about to sell any of his property with the fraudulent intent to cheat, hinder and delay his creditors. In fact, W. H. Gray is in the position of insisting upon a sale of the Crittenden County land to Swepston in order to obtain a part of the purchase price therefor as a payment on the purchase price of the Franklin County lands, and therefore is in no position to say, because he rescinded that sale and gave fin option upon the Crittenden County land to Swepston, (hat Knapp was disposing of his property for the purpose of defeating his creditors. In rescinding the sale the property contracted to Swepston was regained. It is not shown that the option given to Swepston to purchase in the future put or tended to put the property or the proceeds of the sale beyond the reach of creditors. We think there is an entire absence of evidence in the record upon which to sustain the writ of attachment against the Crittenden County land.
The next question presented on this appeal is whether the court erred in rendering a personal judgment against L. S. Swepston, the garnishee herein, to apply on any deficiency judgment not satisfied by the sale of the Franklin County lands. The answer of Swepston admitted the execution of a $1,200 note to I. J. Knapp and Isa D. Knapp jointly for rents upon the Crittenden County land, but alleged that the note was not due, and that he did not know who the legal holder of the note was, and asked that the court require a surrender or impounding of the note before rendering judgment against him. As stated before, a judgment was rendered against Mm without requiring proof that the note was non-negotiable or impounding it. This court said, in the case of Head v. Cole, 53 Ark. 523, that “-where it appears that the garnishee is a debtor on commercial paper given to or held by the defendant, the court should decline to render any judgment against the garnishee unless it first compels the delivery of the paper into court, or until the paper matures and it is made to appear that the defendant still holds it. That is to say, the court should protect the garnishee against the danger of paying a debt twice, without destroying the essential properties of commercial paper, which we are confident the Legislature never intended to impair by the enactment in reference to garnishments. These views are sustained by a current of authority, uniform so far as we are advised. Tied. on Com. Paper, § 251, p. 415; Dan. Neg. Inst. § 800a.” We think it inferable from the following allegation in the answer of Swepston that the note was negotiable, to-wit: “And he further states that he does not know whether the said I. J. Knapp and Isa D. Knapp are the legal holders of said note.” This allegation in the answer of Swepston was not traversed and must be presumed to be true. Beasley v. Haney, 96 Ark. 568. Under the rules announced in Head v. Cole, supra, and Beasley v. Haney, supra, it was error to render a personal judgment against L. S. Swepston.
Having ruled that the chancery court should have dissolved the attachment, the court was necessarily without jurisdiction to determine the interest of the interpleader in the Crittenden County land. The only jurisdiction acquired by the Franklin Chancery Court over the Crittenden County land grew out of the issuance and levy of the writ of attachment on said land. The court was therefore without jurisdiction to determine that I. J. Knapp and Isa D. Knapp owned the Crittenden County land in entirety, and the decree to that effect cannot preclude the interpleader from litigating her rights in the property in any court acquiring and exercising jurisdiction over the property. In this view it is not material and it is unnecessary to determine whether the court erred in excluding the evidence offered by her to the effect that the property was purchased with her individual money, and her husband’s name inserted in the deed through mistake.
The decree rendering a personal judgment against I. J. Knapp for the purchase money of the Franklin County lands and for a foreclosure and sale of same is affirmed, but, on account of the errors mentioned, is reversed in all other particulars, and remanded, with directions to dissolve the attachment and discharge the garnishee. | [
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McCulloch,, C. J.
This appeal is from a judgment of the circuit court of Searcy County quashing an order of the board of education of that county creating a new school district, designated as No. 90, out of territory formerly embraced in districts Nos. 29, 33 and 81.
Several of the questions raised on the appeal 'have been settled in the decision of this court in Mitchell v. School District No. 13, ante p. 50. We decided in that case that the statute creating the county board of education substituted the board for the county court, and only transferred the power to the board without repealing or in anywise affecting the statutory procedure with respect to matters heretofore within the power of the county court.
The statute provides that new school districts may be formed, or changes in boundaries may be made “upon a petition of a majority of all the electors residing upon the territory of the districts to be divided. ’ ’ Crawford & Moses’ Digest, § 8823.
The statute further provides that notice of the proposed change shall he given by posting hand-bills in “four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district.” Crawford & Moses ’ Digest, § 8821.
In this instance the petition was filed with the county board of education for the creation of a new district out of territory of the three districts mentioned above. There was a remonstrance filed, but the court granted the order establishing the new 'district. The district as established, however, embraced a smaller area than that described in the petition.
Appellees, Patterson, Moore and Beck, each of whom was a director of one of the three districts mentioned above, applied to the circuit court for a writ of certiorari to bring before that court for review the proceedings before the county board of education. The writ was granted and on hearing thereof in the circuit court the judgment appealed from was rendered.
The cause was heard upon the pleadings and upon affidavits showing that, according to the evidence adduced before the county commissioners, the notice of the change in the districts -was not given in the manner prescribed by statute.
We have already decided, as before stated, that the power to make changes in school districts has been transferred from the county court to the county board'of education, and that certiorari is the proper remedy for review by the circuit court of such orders rendered by the board. Mitchell v. School District No. 15, supra. The remedy thus afforded is merely a review for errors of the board and not for trial de novo upon merit. But the circuit court was not bound by the record made before the inferior tribunal, and other evidence dehors the record was admissible for the purpose of acquainting the court fully of all the matters presented to the inferior tribunal. Hall v. Bledsoe, 126 Ark. 125.
It is shown that, according to the evidence adduced before the board, the notice was not given as required by statute, and, as the giving of the notice was jurisdictional, the proceedings creating the new district were void. Lewis v. Young, 116 Ark. 291; Mitchell v. School District No. 13, supra.
.It is unnecessary to determine whether or not appellees are correct in another ground which they set forth for declaring the order of the board to be void.
It is contended, however, that appellees are in no position to attack the validity of the order. Appellees are n-anged as “School Districts Nos. 29, 33 and 81, Dan Patterson, Elisha Moore and Robert Beck,” and it is alleged in the petition that Moore is a director in District No. 29, that Patterson is a director in District No. 33, and that Beck is a director in District No. 81.
Conceding that the individuals named, though directors, had no authority to bring their respective districts into the litigation, it is shown that they were directors of the district, which necessarily implied that they were electors, and this gave them such an interest as made them proper parties in litigation to test the validity of the order of the board of education.
It does not appear, however, from the petition that the three districts were represented solely by one director of each. The presumption must be indulged, until the contrary is shown, that the districts were brought in by all three of the directors in each, and that these three individuals also joined in the petition for the writ in their, own individual capacity.
Each district affected by the creation of the new district was a proper party in interest in the proceedings to challenge the validity of the order creating the new district out of that territory. In fact, the old districts were, under the statute itself, parties to the proceedings. School District No. 44 v. School District No. 10, 128 Ark. 383.
Again, it is urged that the writ should run against the county board of education, instead of against the pe titioners before tbe board for the 'creation of the new district. This merely goes to the form and not to the substance of the controversy, for the real parties to the controversy were before the court, attacking and defending the validity of the order made by the board of education. The writ, in fact, ran to the secretary of the board and commanded the production of the records, and this was tantamount to making the board itself a party to the proceedings.
"We are therefore of the opinion that the defect, if any, was merely one of form and not of substance.
Judgment affirmed. | [
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Wood, J.
In 1914 J. J. W. Smith, who resided in Little Rock, Arkansas, died while on a visit to Texas. He died intestate. His estate consisted of three life insurance policies of $1,000 each and a small deposit of money in the Cotton Belt Savings & Trust Company at Pine Bluff. T. N. Chipman was -appointed administrator of his estate on December 14, 1914. He immediately employed Aylmer Flenniken, an attorney at El Dorado, to represent Mm. Smith had borrowed money on the life insurance policies, so that when these amounts were taken out of the policies the entire assets of the ¿state amounted to the sum of $2,435.65, as shown in the first annual settlement of the administrator. Aylmer Flenniken assisted the administrator in collecting the 'balance due on the insurance policies. There was no litigation over these policies. The work of the attorney consisted in making proofs of death, which was done by correspondence with the doctors and undertakers at the place near the Mexican border where Smith died, and through one Thompson, who saw the undertakers and doctors and got the proofs of death. The attorney did not pay Thompson anything for his services in this matter. He did not have to make any trips to Texas. He was allowed the sum of $150 for his services.
On the 28th of October, 1915, Alex Perdue presented a claim against the estate for the sum of $1,446.21, evidenced by Smith’s promissory note for that amount. The administrator, acting upon the advice of his attorney, refused to allow the claim. The claim was presented to the probate court and the probate court allowed the same, and the administrator, acting upon the advice of his attorney, appealed to the circuit court. On the 21st of November, 1917, the circuit court affirmed the judgment of the probate court allowing the claim, with interest from the date of the judgment, and the administrator, upon the advice-of his attorney, appealed to the Supreme Court. The Supreme Court affirmed tlie judgment of the circuit court holdrqg that the allowance should be made. The mandate of the Supreme Court was filed in the circuit court by the attorneys of Perdue on thé 19th of April, 1919. In the second annual settlement the administrator showed that he had allowed the claim of' Perdue with interest thereon from November 21, 1917, which amounted to the sum of $1,687.21. In this settlement the administrator showed that he had allowed himself the sum of $171.75 as commission for his services and had allowed his attorney the sum of $300, and that he had allowed other sums in the way of court costs and expenses incident to the resistance of the claim of Perdue in the aggregate sum of $90.20. Exceptions were duly filed by Perdue’s attorneys to this account of the administrator, which were overruled and the settlement approved. On appeal to the circuit court, upon a trial of the exceptions to the settlement as above indicated, the circuit court found that the administrator had expended the sum of $71.95 in court costs in the circuit and Supreme Courts in resisting the Perdue claim, and also the sum of $300 for attorney’s fee; that the administrator was allowed commission for Ms services in the sum of $171.75. The court found that interest should be allowed on the note of Perdue from October 28, 1915, the date of its presentation to the administrator, and that the administrator should be charged with the interest on the funds in his hands from January 1, 1917, to October 15, 1920, in the sum of $466.95, and that he should be charged with the balance of funds in his hands as administrator in the sum of $1,925.90 instead of $1,458.95 as stated in his settlement and approved by the probate court. The court entered a judgment according to its findings, from which judgment is this appeal.
The statute allows the administrator as compensation for his services an amount not exceeding ten per centum on all sums less than $1,000, and on all sums over $1,000 and less than $5,000 five per centum. C. & M. Digest, § 183. The appellee was allowed the maximum amount for his services under the above statute.
It is unnecessary to discuss the facts pertaining to the services of the appellee in connection with the administration of the estate of the decedent, Smith. We cannot say there was an abuse of the discretion on the part of the probate court and of the trial court in allowing the appellee the maximum sum specified by the statute. It was within the sound discretion of the probate court to allow the maximum or a lesser amount, which discre tion will not be controlled unless abused. Ex parte Bell, 14 Ark. 76; Reynolds v. Canal & Banking Co., 30 Ark. 520.
It could serve no useful purpose likewise to discuss tbe facts in connection with tbe litigation over tbe claim of Perdue. We do not find anything in the testimony to justify the conclusion that the administrator was not acting in good faith in resisting the payment of this claim. He followed the advice of his attorney, and there is nothing to warrant the inference that the attorney was actuated by any other than a bona fide purpose to protect the estate against a claim which he and the administrator believed had been paid. So believing, they could not have discharged their duty to the estate without resisting the payment of this claim until the matter had been finally adjudicated by the courts and determined to be a just demand. In this connection, however, we are constrained to hold that the probate court and the trial court abused their discretion in allowing the administrator the sum of $300, the amount paid by him for the services of an attorney. The sum allowed the attorney in connection with the litigation over the claim of Perdue was a little over 20 per cent, of the entire amount of that claim. The character of the litigation, with which the judges of this court are familiar, was not such as to justify the administrator in paying his attorney the sum of $300 to have the litigation conducted to its final conclusion. ' ’ ;
While the issues involved were important, they were not difficult and complicated. Meritorious and efficient as were the services of the attorney, nevertheless, it occurs to us that the sum of $150 was ample compensation for such services. The court abused its discretion and therefore erred in allowing the administrator a greater amount as compensation for the services of his attorney.
In the case of Bayou Meto Drainage District v. Chapline, 143 Ark. 446-455, we held that the judges of this court should not divorce themselves from their general knowledge, observations and experience of such matters and renounce entirely their own judgment as to what would be a reasonable compensation for the attorney, after taking into consideration the character of the services rendered, the labor, time and trouble involved, and the nature and importance of the litigation, etc. See other cases there cited.
The claim of Perdue against the' estate was for $1,446.21, as evidenced by a promissory note of the decedent, and the defense of the administrator was that the note had been paid. Therefore, there were no delicate and intricate questions of law to be settled, and the issue of fact was exceedingly simple. We are convinced that the probate court and the trial court abused their discretion in sanctioning the payment by the administrator of attorney’s fee in an unreasonable amount as compensation for his services.
' There was no error in the ruling of the court in refusing to charge appellee personally with interest on the funds in his hands as administrator. The judgment of the circuit court will be. modified by reducing the allowance of the administrator for attorney’s fee from $300, as allowed in the second annual settlement, to the sum of $150, and, as thus. modified, the judgment is affirmed. | [
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Hart, J.
(after stating the facts). It is first contended by counsel for Davis & Worrell, the defendants, that the plaintiff, General Motors Acceptance Corporation, is not entitled to maintain this suit because it has not complied with our statute regulating foreign corporations doing business in this State. Crawford & Moses ’ Digest, secs. 1825-32 inclusive.
It appears from the record that the plaintiff has not complied with our statute prescribing the terms upon which foreign corporations may do business in this State. It is the contention of the plaintiff that the transaction in question does not bring it within the prohibition of the statute. The statute does not specify what particular acts shall constitute doing business in this State by a foreign corporation. The general holding, however, is that the doing of business is the exercise in this State of some of the ordinary functions for which the corporation was organized. In other words, it is the actual doing or engaging in business in this State by such corporation.
In White River Lumber Co. v. Southwestern Improvement Assn., 55 Ark. 625, it was held that a foreign corporation is not doing business within the meaning of the statute by entering into a contract with a resident thereof, where the contract is made and is to be performed elsewhere.
So too in State Mutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1, it was held that a contract made with a foreign insurance company through its local soliciting agent at a place outside of the State is not doing business within the State within the meaning of the statute. These cases hold that the rule is not altered by the fact that the contracts relate to property in this State.
Again, in Scruggs v. Scottish Mortgage Co., 54 Ark. 566, it was held that a foreign corporation, in lending money on land in this State, is not doing business in the State, within the meaning of sec. 11, art. 12 of the Constitution of 1874, if the agreement for the loan was made in another State, and the notes and securities delivered and the money paid there.
In Bamberger v. Schoolfield, 160 U. S. 149, it was held that a foreign corporation is not doing business in a State by purchasing in another 'State negotiable securities executed within the’ first State.
In the application of the principle stated in the illustrative cases given above, we agree with the chancellor that the transaction in the present case does not come ■within the prohibition of our statute regulating foreign corporations doing business in this State. >•
It is true that it was a part of the business of the plaintiff corporation to discount notes of this character, and that it did discount notes purchased from about forty dealers in ¡motor vehicles in the State of Arkansas. The plaintiff was organized under the laws of the State of New York and had a branch office at Dallas, Texas, where it transacted its business with residents of the State of Arkansas.- It' furnished dealers of motor vehicles in Arkansas with whom it contemplated doing business with ’blank forms of contracts to be used by such dealers in selling their motor vehicles. There was a place on such form for the purchaser of the motor vehicle to make a statement of his financial condition. The dealer was required to send to the plaintiff at Dallas, Texas, a statement of his financial -condition, and an investigation of his financial condition was also made through reports by commercial agencies and otherwise. Then the plaintiff would agree to extend a general line of credit to such dealer. The dealer in making a sale would take the note of the purchaser on one of the blank forms furnished by the plaintiff. This was all done, however, to better enable the plaintiff to pass upon the securities offered it for discount. The plaintiff had no interest whatever in the business of the dealers from whom it bought such commercial paper. It had no established agency in this State. In each instance the paper was sent to its office in Dallas, Texas, and accepted there. The money was paid there, or through a bank in Chicago upon orders of the- home office in New York. Thus it will be seen that the contract was made and the money paid in each instance outside of the State. The applications for sale of commercial paper were received by the plaintiff at its office outside of this State. They were passed upon there and accepted or rejected there. The plaintiff had no agency in this State, and the mere fact that it acted upon applications -coming through residents in this State would not constitute doing business in this State within the meaning of the statute.
As we have said, it does not appear that the plaintiff ever had an agency in this State, and the most that can be said is that it actually accepted discounts from forty different dealers in motor vehicles. The negotiations, however, were conducted by the dealers themselves, who, although residents of this State, were not in any sense the agents of the plaintiff, and the plaintiff was not in any way connected with their business or obligated to purchase at a discount or otherwise the notes which such dealers should take for motor vehicles sold by them.
It is true that the furnishing of blank contracts to be used by the dealers in selling their motor vehicles and in purchasing the notes given for said motor vehicles tended to further the business of such dealers, but this did not make such transactions fall within the terms of the act. This would not be the controlling test. The test is, was the transaction of the business such that the corporation was for the time being, through its agents or otherwise, within the State for the purpose of doing business?
In reaching this conclusion we do not mean to say that a foreign corporation must have an agency established in this State to bring it within the operation of our statute regulating foreign corporations doing business in this State; but we do hold that in a case like this, where the foreign corporation had its place of domicile in another State and discounted commercial paper of parties with money paid out in. such other- State on applications made to it there through dealers in this State, such transactions do not constitute doing business in this State by such foreign corporation.
It is also insisted by counsel for Davis & Worrell that the decree should be reversed because -one of the motor trucks was purchased through the false representations of the Newport Foundry & Machine Company. Frank Worrell, one of the members of the firm, testified that this truck was represented to him to be a new truck, and that when he began to use it he found that it had been used for at least six months, and that some of its parts showed wear, and that it was altogether in such a defective condition that it could not be used. Two of his employees corroborated his testimony.
On the other hand, the manager of the Newport Foundry & Machine Company testified that Worrell was a man of several years’ experience in the use of motor trucks and that he made a thorough examination of the one in question before he purchased it. The truck was never repainted, as testified to by Worrell. At the request of Worrell the truck was changed so as to put a dump body upon .it, and it was probably touched up to cover up the scars made in making the change. The car was driven through the country from Newport to Imboden at the time it was purchased, but it was entirely new. An employee of the company who drove the truck through the country and delivered it, testified that it was new and all right.
The chancellor found the issue of fraudulent representations in favor of the plaintiff, and when we consider that Worrell had had several years’ experience in running motor trucks and made a thorough examination of the one in question, it can not be said that the finding of the chancellor that he was not induced to buy it by the false and fraudulent representations of the seller was against the preponderance of the evidence.
Moreover, the plaintiff purchased the note given for the purchase price of the motor truck for value before maturity, and it does not appear from the record that it had any knowledge of any false representations which induced the sale of the motor truck, if any such were made by the seller.
As we have already seen, the plaintiff was not interested in the sale of the motor trucks and had nothing whatever to do with the sale thereof.
There is .a dispute between the parties to this lawsuit as to what testimony properly appears in the record; but, inasmuch as we have accepted the abstract of the testimony made by appellants, and have reached the conclusion that the decree should be affirmed, we have decided not to go into the dispute between the parties in this respect or to consider which is right.
From the conclusions we have reached, it follows that the decree must be affirmed. | [
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Hart, J.
This appeal involves the construction of a contract for compensation between an attorney and his Client.
Appellant entered into a contract in writing with appellees to bring suit on a life insurance policy in the sum of $5,000, and the clause of the contract providing for the compensation of the attorney is as follows:
“The parties of the second part (appellees) hereby agree to pay the parties of the first part (appellant) as compensation for legal services, in the event they recover of the Kansas City Life Insurance Company for' said policy, the sum of forty per. cent, of recovery, the said parties of the first part accepting a fee contingent upon recovery, and agree to payor advance all.costs of the suit that may become necessary- to be paid, and the parties of the first part agree that no liability shall attach either to the guardian or to Maggie Kidout on any account whatever.”
Suit was brought against the insurance company, and judgment was rendered in favor of appellees in the sum of $5,000 and the accrued interest. The attorney’s fees were fixed by the court at $500. The circuit court allowed the attorney forty per cent, of the whole amount recovered by the plaintiffs in the suit against the insurance company. This included the face of the policy, interest, and the penalty and attorney’s fees allowed under the statute.
It was the contention of the attorney that he was entitled to the whole of the attorney’s fees allowed in the suit against the insurance company and forty per cent, of the other items. The attorney had collected the judgment against the insurance company and had retained the amount to which he deemed he was entitled under the contract.
From the judgment rendered against him in favor of appellees, appellant has duly prosecuted an appeal to this court.
Our statute provides that, upon the failure of the insurance company to pay the loss after demand made, such company shall be liable to pay to. the holder of the policy, in addition to the amount of loss, twelve per cent, damages, together with all reasonable attorney’s fees for the prosecution and collection of said loss.
The attorney’s fee is a penalty given to reimburse the policy-holder for expenses incurred in enforcing the contract of indebtedness, and is taxed as costs in the case. Arkansas Ins. Co. v. McManus, 86 Ark. 115, and Mutual Life Ins. Co. v. Owen, 111 Ark. 554. Hence the attorney’s, fee is part of the recovery of the policy-holder against the insurance company.
The legal meaning of “recovery” is the obtaining of a thing by the judgment of a court, as the result of an action brought for that purpose. The contract under consideration provides that the attorney shall have “forty, per cent, of recovery.” This means forty per cent, of the amount recovered by the policy-holder, which, as we have seen, includes the amount of the attorney’s fee allowed by the statute to the policy-holder. Under the statute, this is a much a part of the recovery of the policy holder as is the face of the policy and the penalty provided by the statute.
As between an attorney and his client, as well as between the client and third persons, a judgment for costs, whether the costs consist of those items taxable as of course or of an extra allowance as well, belongs to the client. McIlvane v. Steinson, 85 N. Y. Sup. 889.
It follows that the judgment must be affirmed.- | [
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McCulloch, C. J.
Appellee, Ed Mays, doing business individually under the style of Mays Manufacturing Company, owned an electric light plant in the city of Leslie and operated the same under a franchise granted by the city council for the purpose of furnishing electric light to the inhabitants of the city. In the operation of the plant he generated electricity by machinery used in a mill plant which he owned. Appellee sold the electric light plant to appellant, A. L. Barnett, by bill of sale executed July 23, 1920, but this sale did not include the dynamo and other machinery in the mill plant where the electricity was generated. In fact, appellee did not at that time own the dynamo in use.
According to the testimony adduced in the present litigation, it is clear that the terms of the sale by appellee to appellant Barnett contemplated that appellee would not re-enter the business of furnishing electric lights or interfering in any way with the operation of the plant sold to Barnett. At the time this sale was consummated, appellee had surrendered his franchise to the Corporation Commission, and appellant Barnett had obtained from the city council a new franchise. Barnett had likewise obtained a permit from the Corporation Commission. Barnett proceeded to perfect his plant by installing the necessary machinery and making other preparations.
This action was instituted by appellant Barnett, the city of Leslie joining therein, to restrain appellee from attempting to furnish electricity to inhabitants of the city and from using the streets and alleys over and along which to string wires, and from otherwise interfering with Barnett’s operation of the electric light plant under the new franchise granted to him.
Appellee, in his answer, denied all the allegations with respect to his attempt to furnish electricity to other parties, or the use of the streets and alleys- of the city, but alleged that he owned two mill plants, one inside the corporate limits of the city and the other just outside, and that all he was doing was to generate electricity at one of the plants for use in his business at both plants and to transmit the same over wires erected along the right-of-way of the railroad.
The issues were tried before the court, and there was a decree dismissing the complaint for want of equity.
It is, as before stated, clear that appellee should not engage in furnishing electric light to the public. There is no contention in the brief here on the part of appellee that he reserved the right to continue in the business of furnishing electricity. On the contrary, he claims that he has made no such attempt, and is only engaged in generating electricity for his own use in the manufacturing plants which he operates, and that he has not used the streets and alleys, -but is merely operating a wire erected along the right-of-way of the railroad, having obtained a permit from the railroad company to do so. Appellee does, however, dispute the right of appellants to maintain this action on the ground that the franchise granted by the city to Barnett is void because the ordinance granting same was not enacted in the mode prescribed by statute in that it was not read on three different days as required by statute. Crawford & Moses’ Digest, § 7502. The statute referred to only requires that the procedure mentioned must be observed in the passage of “by-laws and ordinances of a general or permanent nature,” and does not apply to an ordinance or resolution entering into a special contract. Batesville v. Ball, 100 Ark. 496.
It is also contended that the ordinance is void because it was not published, but the statute in regard to publication of municipal ordinances is limited in its application to ordinances of a general and permanent nature. Crawford & Moses’ Digest, § 7499.
We need not pursue any inquiry at this time whether the authority to grant such a franchise was taken awav from the city council and conferred upon the Corporation Commission by the act creating the latter Commission (Crawford & Moses’ Digest § 1653), for appellant Barnett held a franchise, not only from the city council, but from the Corporation Commission itself.
The only remaining question is whether or not appellee was violating his contract of sale to Barnett, or was attempting, without authority, to use the streets and alleys of the city for the purpose of transmitting electric current from one of his plants where it was generated to the other plant which he was operating.
The evidence not only establishes the fact that appellee was operating his wires over and across the streets, but there is also evidence tending to show that he was furnishing electric lights to others.
Appellee had the right, of course, to generate electricity for his own use and to transmit it from one place to another over his own premises, or over the premises of others from whom he might obtain a permit, for his own use at such other place. He has no right, however, to cross the streets and alleys of the city, nor to furnish electricity to other persons by transmitting it even over his own premises. He had no authority to use the streets and alleys for such purposes, and he is barred 'by his contract of sale to Barnett from furnishing electricity to other persons, regardless of how and under what circumstances it may be transmitted.
There is evidence also tending to show that appellee’s erection of new lines along the right-of-way constitutes an interference with appellant in the operation of his lines, and this appellee is barred from doing by his contract. He cannot in any way interfere with the operation by appellant of the electric light plant, even by the erection of poles over the premises of owners who may be willing to grant him the privilege. Even though he can obtain the privilege of erecting the wires from the railroad company or private owners, he cannot use such privilege, if it constitutes an interference with appellant’s operation of his plant.
Appellee attempts to escape the charge of using the streets and alleys by showing that some of the streets alleged to be used have been dosed up and used as storage places by appellant Barnett.and certain other manufacturing interests. The fact that the streets are temporarily closed does not deprive the city of authority over them, for the city has a right to open them at any time, and appellee has no right to use the streets over which to carry his electric light wires, even though the streets are temporarily closed.
We are of the opinion, therefore,' that the- court erred in dismissing the complaint, for the proof shows that appellants were entitled to relief.
The decree is therefore reversed, and the cause remanded with directions to enter a decree enjoining appellee from using the streets and alleys of the city for the purpose of stringing wires and from interfering in any way with appellant Barnett in the operation of his electric light plant, and also enjoining appellee from furnishing electricity to any other consumer. | [
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Humphreys, J.
Appellant was indicted in the White Circuit Court under section 6160 of Crawford & Moses’ Digest for unlawfully and feloniously selling and being interested in the sale of alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof, commonly called tonics, .bitters and medicated liquors. At the January, 1922, term of the court he was tried and convicted of the crime charged, and adjudged to serve a term of one year in the State Penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court.
The undisputed testimony showed that appellant sold a great deal of Jamaica ginger containing 98 per cent, alcohol to various parties, who drank it as a beverage. He admitted on cross-examination that he thought the parties bought it from him to drink. The entire proof was directed to the sale of Jamaica ginger, and no other kind of liquors or preparation or compounds thereof.
Appellant first insists that the court committed reversible error in his instructions by denominating the crime alleged in the indictment as a charge for selling Jamaica ginger, when, in fact, the indictment did not specifically charge appellant with selling Jamaica ginger, but, on the contrary, charged him with selling alcoholic, vinous, malt, spirituous and fermented liquors and preparations and compounds thereof. The language of the indictment was broad enough to include any compound or preparation adapted to use as a beverage which contained any of said liquors, and as the undisputed proof showed that appellant sold Jamaica ginger containing 93 per cent, alcohol he was not prejudiced by the court’s reference to the crime charged as being a charge for selling Jamaica ginger. In specifically denominating the charge as being one for selling Jamaica ginger the court did not inject into the indictment a different charge from the one alleged, as the sale of Jamaica ginger containing 93 per cent, of alcohol was embraced in the general charge. Neither did the court, by the reference, take from the jury any disputed question of fact, as suggested by appellant. The fact was undisputed that appellant sold Jamaica ginger which contained 93 per cent of alcohol.
Appellant’s next insistence is that the court committed reversible error in instructing the jury that it was immaterial whether the Jamaica ginger sold by appellant was intoxicating if it contained alcohol and was sold by him as a beverage. This instruction in nowise prejudiced the rights of appellant because, under any construction which might be given the statute under which appellant was indicted, a sale of á compound or preparation containing 93 per cent, of alcohol was unlawful.
Appellant’s last insistence for reversal is that the court erred in refusing to give appellant’s requested instructions 1, 2, 3, 4, 6, 7, 8 and 9. Appellant has not pointed out in his argument the particular errors claimed to have been committed by the court in refusing his requests. He contents himself with the suggestion that the court erred in not giving them. We are unable to discover any material matters contained in the requested instructions which were not covered in the instructions given by the court.
No error appearing in the record, the judgment is affirmed. | [
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Battle, J.
The grand jury of Pulaski County, at the March, 1905, term of the circuit court, returned an indictment for conspiracy against George F. Chapline, charging that he and M. D. U. Cook, “in the county of Pulaski and State of Arkansas, on the 25th day of April, 1905, unlawfully combined, conspired, agreed and confederated together, each with the other, to commit the crime of bribery by delivering and paying to senators and representatives who were then and there duly elected, qualified and acting as senators and representatives in the General Assembly of the State of Arkansas, then and there in session, and whose names were unknown to the grand jurors, $1,400, lawful money of the United States, gold, silver and paper money, of the value of $1,400, as, for and by way of a bribe to influence the said senators and representatives, in their official capacity as such senators and representatives, to vote for a bill then and there pending in said General Assembly, being Plouse Bill No. 135, providing for the creation of the Cache River Revee District and the incorporation of a board of directors for said district, and in pursuance of said unlawful combination, confederation and conspiracy induced one A. F. Mayberry, to put up and place in escrow with one Oscar Davis checks and drafts to the amount and of the value of $1,475 with the understanding between the said A. F. Mayberry and them, and Cook, that the said checks and drafts should be cashed, and the money therefor, the sum of $1,475, lawful money of the,United States, gold, silver and paper money of the value of $1,475, should be delivered to them, defendant and said Cook, to be by them paid to the said senators and representatives, as, for and by way of a bribe, for the purpose of influencing the vote and decision of said senators and representatives upon said bill; that defendant and said Cook did not commit said crime of bribery by paying said sum of money or any part of it to the said senators and representatives, or any of them, for and by way of bribes, against the peace and dignity of the State of Arkansas.”
The jury impaneled in the case returned a verdict against the defendant, and assessed his punishment at a fine of twenty-five dollars, and he appealed.
The evidence adduced in the trial, and sustaining the verdict, tended to prove, substantially, the following facts:
In March, 1905, there was a bill, known as the “Cache River Levee Bill,” pending in the House of Representatives of the General Assembly of the State of Arkansas. On the nth of March, 1905, it was read in the house the third time, and failed to pass, and a motion to reconsider was made. The defendant, Chapline, was a member of the House, representing Monroe County.
When the motion for reconsideration was pending, N. Perkins, W. B. Williams, A. F. Mayberry, Robinson, Galloway, and other citizens interested in the bill came to Little Rock to see what could be done. It was agreed between them that Mayberry should take a room in the Capital Hotel, in that city, where the friends of the bill could assemble for the purpose of consultation, which he did. A meeting was held in the room, and many were present, among the number those named and the appellant. It continued about two hours. They discussed the merits of the bill. Appellant said* “it would require some money to get it through— he thought about $1,000”; and said something about surveying and other expenses. He said it could be placed where it could be used to the best advantage. He was emphatic in saying that he was not to receive a cent of it. He suggested that they select some man to take charge of it. Mayberry was selected. He then said he would put him in touch with a man who would help him. He had a roll of the House and Senate. “He looked over it, called the names of those he had influence with,” and marked the names of those with whom he had no influence with a pencil, and said some one who had would have to go and see them, and they would have to get a lobbyist. M. D. L. Cook was tnen a reputed lobbyist. Mayberry was to employ the man to assist them in securing the passage of the bill. The sum of one thousand dollars was to be raised, and it was not to be paid until the bill became a law. The next morning, at the Capital Hotel, “appellant waited for some one, he said, * * * who had not come in.” He went to the State House, and looked over the lobby, and said to Mayberry that he was looking for another party, but had not seen him. At noon, when he and Mayberry were talking at the hotel, Cook came along, and appellant stopped him, and introduced him to Mayberry. After this he said nothing more about being unable to find that party. When he introduced them, he said: “This is Mr. Mayberry, Mr. Cook,” and May-berry said to Cook, “You are the man I think I want to see,” and they walked off, and had a conversation. Mayberry told him what they wanted, and asked him “if he knew everybody, members of the Legislature,” telling him of “their” condition, that “they” were strangers, and stating “their” case. Cook then said, “I know nearly all of them, though I am not a member of the Legislature, nor a citizen of Little Rock.” Mayberry told him what had occurred at their meeting as to the money, and he (Cook) said he would see what could be done. Mayberry testified : “My recollection is that I was lamenting that we had to get up the money, saying it was unjust, and he said nearly all of these important bills are passed with the use of money. * * * I told him what we could do, and he said it would take at least $1,500.” In a subsequent conversation, after the money was raised, Cook said to Mayberry: “He would be better satisfied to have the money where he could use it, instead of in my possession at Cotton Plant. Some one suggested that we leave it here in Little Rock, which I told him I would do, but that it would be subject to my order, and if the bill did not become a law, I would return it. I do not remember whether the suggestion was front Mr. Cook or Mr. Robinson. One of them suggested Oscar Davis, and I said he was satisfactory. Robinson and I went down there and I gave Davis one check, ánd Robinson gave him one, with instructions that they were to be paid out to such parties and at such times as I should name. Cook was not with us. He came in afterwards. I think we told him that we had given Mr. Davis the checks, and that he said it was all right.”
The money was to be paid to Cook when the bill became a law. It passed the Legislature, and was vetoed by the Governor; and Davis returned the money to those who paid it.
Williams, who was present at the meeting in Mayberry’s room in the hotel, testified in the progress of the trial of this cause, in response to interrogatories, over the objections of appellant, as follows: After testifying as to what occurred at this meeting, he was asked:
“Q. You stated that it was not called for that purpose. I will ask you if, before you left, it didn’t change into a meeting the purpose of which was the raising of this money? Was it not apparent that it was for corrupting purposes, and didn’t you decline to put up any money for that purpose ? I will ask you if it didn’t become a meeting for the purpose of raising a fund for corruption ?
“A. It was not mentioned as a corruption fund. The question of raising some money to promote the interests of the bill was discussed.
“Q. ■ Didn’t you refuse to put up the money because, as you stated to them, it could be for nothing else but a corruption fund, and didn’t you so state in Chapline’s presence ?
“A. Chapline was present during a part of the meeting.
“Q. While he was there, did you decline to go on, or to participate further in it, because, as you stated to them, it could only be for a corruption fund?
“A. Yes, I made that statement to them.
RECROSS-EXAMINATION.
“Q. What did defendant say when you made that statement ?
“A. My recollection is that he said it is not to be used to buy members of the Legislature — that it was to be used as an expense fund. Something was also mentioned about some one having been sent somewhere to get up statistics. No specific purpose for which the money was to be used was mentioned. I asked defendant what the money was for, if it was to be used to pay anybody, arid he said it was not a corruption fund, but for expenses. There. had been some talk about boodling, and my object in asking, defendant that question was to make clear to the committee and those present the object of raising the money. Some of them seemed to suspicion, among them myself, that it was for that purpose, boodling, and that is why I asked defendant the question.” .
We have stated facts which the evidence tended to prove, and which support the verdict of the jury. There are other facts, which evidence adduced tended to prove, which tended to show the innocence of the appellant, but it is not necessary to state them, because the question for us to decide is not, is the appellant innocent ? but, was the evidence legally sufficient to sustain the verdict in this court?
Many instructions for the jury were asked and given, and many asked and refused. Those refused, so far as they are correct and proper, were covered by instructions given. It is not necessary to set them out, but, for tire purposes of this opinion, it will be sufficient to state the law of the case, so far as relates to them.
The statutes under which the appellant was indicted is as follows: “If two or more persons shall agree and conspire to commit a felony, and make some advance thereto, without committing the felony, they shall be deemed guilty of a misdemeanor.” Kirby’s Digest, § 1617.
To establish a conspiracy, it is not necessary to prove the unlawful agreement by positive and direct evidence. It may be shown by circumstantial evidence. Mr. Greenleaf states the rule as follows: “Though the common design is the essence of the charge, it is not necessary to prove that the defendants came together and actually agreed in terms to have that design, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same so as to complete it, with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy'to effect that object.” 3 Greenleaf on Evidence, § 93. This rule is well established by the authorities. 2 Wharton’s Criminal Law (10 Ed.), § 1398; 4 Elliott on Evidence, § 2936; Underhill on Criminal Evidence, § 491.
Mr. Underhill states the rule as follows: " “Direct evidence is hot essential to prove the conspiracy. It need not be shown that Ihe parties actually came together and agreed in express terms to enter in and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by the jury from proof of facts and circumstances which, taken together, apparently 'indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts toward the accomplishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved.” Underhill on Criminal Evidence, § 491.
Any act done,, or declaration made, by one of the conspirators in furtherance, aid, or perpetration of the alleged conspiracy may be shown in evidence against himself and co-conspirators. The principle “on which they were admitted in evidence against the persons prosecuted,” says Greenleaf on Evidence, “is that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common designthus rendering whatever is done or said by any one in furtherance of that design a part of the res gestae, and therefore the act of all. It is the same principle of identity with each other that governs in regard to the acts and admissions of agents when offered in evidence against their principals, and of partners, as against the partnership.” 3 Greenleaf on Evidence, § 94; 4 Elliott on Evidence, § 2939; Underhill on Criminal Evidence, § § 492, 493; Clinton v. Estes, 20 Ark. 224, 225; Lawson v. State, 32 Ark. 220; Gill v. State, 59 Ark. 430.
No evidence of the acts or declarations of a conspirator should be admitted against the accused “until the fact of conspiracy with them,” says Greenleaf, “ is first shown, or until at least a prima facie case is made out either against them all, or against those who are affected by the evidence proposed to be offered; and that, of the sufficiency of such prima facie case to entitle the prosecutor to go into other proof, the judge, in his discretion, is to determine. But' this, like other rules in regard to the order in which testimony is to be adduced, is subject to exceptions, for the sake of convenience; the judge sometimes permitting evidence to be given, the relevancy of which is not apparent at the time when it is offered, but the prosecutor or counsel shows will be rendered so by other evidence which he undertakes to produce.” Lawson v. State, 32 Ark. 220; Gill v. State, 59 Ark. 430; 3 Greenleaf on Evidence, § 92; 4 Elliott on Evidence, § § 2940, 2941; Underhill on Criminal Evidence, § 492.
The Cache River Eevee Bill was defeated the first time on its passage in the house by a vote of forty-two against to seven in favor of it. Then it was its friends became active in its support, and held a meeting in Mayberry’s room in the Capital Hotel to determine what should be done to secure its passage. Appellant was present, took an active part in its proceedings, said it would require money to get it through — he thought about $1,000 — and suggested that some one be selected to take charge of it. He said that some one would have to see certain members of the House, •and that they ought to get a lobbyist for that purpose. Mayberry was selected to take charge of the money, when raised, and to employ some one to assist in securing the passage of the bill. When this was done, appellant proposed to put Mayberry in touch with a man who could do them much good, and he did so by introducing him to Cook. The money was not to be paid until the bill became a law.
Why suggest that $1,000 be raised to secure the passage of the bill? The bill had been defeated by a large majority when it was first put on its final passage in the House. It was then known that a large majority in that body was opposed to it. Something had to be done to overcome this majority. How was that to be done? The money was not to be paid until it became a law. The consideration of the payment was to be the enactment of the bill into a law. The jury might have inferred that it was to be used to influence members of the Legislature to support it. This conclusion is supported by the fact that appellant suggested that some one be employed to see certain members of the Legislature, and that he be a lobbyist. When Mayberry was selected to take charge of the money, with authority to control it, he said that he could put him in touch with a man who would be of great service, and did so by introducing Cook. Why did he do so? The • jury could "have inferred that it was'for the purpose of securing his employment to carry into effect the object of raising the .money. ‘ Such object and the’ selection of the man should be considered together to determine the object of his employment. There is reason to believe that he knew that 'Cook could be employed for such purpose, and had previously acquired. such information from him, and in so doing informed him of his object. If this be so, it occurred before the meeting in the Capital Hotel; for it was there appellant said he could place Mayberry in touch with a man who could be of service, obviously meaning Cook. Why should he be seeking such information and informing Cook of the object of it? What followed the meeting in the Capital Hotel explains. From this the jury could reasonably have inferred that he promised Cook to do what he did, and Cook agreed to accept the employment if it was tendered. Here is prima facie evidence of the conspiracy. What followed confirms it. When Mayberry was introduced to Cook, he said to Cook, “You are the man I think I want to see.” Then followed a conversation in which Mayberry complained of the necessity of having to raise money to secure the passage of the “Cache River Levee Bill,” when Cook replied by saying that “nearly all of these important bills are passed with the use of money,” and that it would take at least $1,500 to secure the passage of the bill. Fourteen hundred and seventy-five dollars were raised; Cook was employed, and by consent it was delivered to Oscar Davis to be paid to Cook, on the order of Mayberry, when the bill became a law.
The testimony of W. B. Williams that was objected to by appellant was competent. The meeting in Mayberry’s room was an important link in the conspiracy, and what Williams testified occurred was a part of the proceedings thereof when appellant was present,' and was a part of the res gestae, and contributed to throw light upon the object of it, as understood by some of those present and taking part in its proceedings.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) The issues were made by the filing of the allegation and interrogatories in the justice’s court and appellee’s answer thereto. These were the issues before the circuit court on appeal, and they were correctly stated in appellant’s first and second prayers for instructions.
The circuit court on appeal acquires such jurisdiction as the justice had, and. can render only such judgment upon the pleadings and proof as the justice could or should have rendered. Kirby’s Digest, § 4682; Whitesides v. Kershaw 44 Ark. 377.
The third and fourth prayers were not responsive to any issues raised by the pleadings, and the court did not err in refusing them.
The court erred in directing the jury^to return a verdict in favor af appellee for the value of the property taken and sold under execution. That was not the issue for the jury. In directing the peremptory verdict, the court doubtless concluded that the uncontradicted evidence showed that the appellee was not indebted to the judgment debtor, and had no property in her possession belonging to him which she had not offered to surrender, and that the sale under the execution issued from the justice’s court was void. If this were true, still restitution was not a question for the jury under the issue joined. An order for restitution might have been made by the court upon motion of appellee after verdict in her favor, and an opportunity given the appellant to resist such motion. The circuit court, by reason of and as incident to its appellate jurisdiction, had power to make such order in the same case upon proper motion and showing. 3 Cyc. 467 e.; Haebler v. Myers, 132 N. Y. 363.
For the error indicated, the judgment is reversed, and the cause is remanded for further proceedings. | [
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Wood, J.,
(after stating the facts.) First. There was evidence tending to prove that in the spring of 1896 L. L. Seawell and his mother, A. E. Seawell, made a division of the E. y¿ of the E. y?, of the S. E. y of the S. E. % of section four, township 18 north, range 16 west, containing ten acres, which they held in com mon. The proof tended to show that L. L. Seawell was to take the west half of the ten acres, and A. E. Seawell was to take the east half thereof; that, in pursuance of such agreement, A. E. Seawell executed her deed to L. L. Seawell. The strongest direct evidence of the fact that there was such a division was the testimony of one Mrs. L. E. Young, who testifies on this point as follows:
“In 1896, in the spring, I think about April, my mother (Mrs. A. E. Seawell) and the defendant E. L. Seawell had a division of the land, by which the defendant L. L. Seawell was to take the west half of the ten-acre tract, and my mother was to have the east half. I was present when my mother signed the deed to the. west half, and the defendant was there also. Mother made the remark, after she signed the deed, that her mind was easy now, that the land was divided, and she had her property to herself.” She also testified that in a conversation with defendant, When A. C. Seawell and Katherine Seawell were present, she said to defendant: “I can tell you just exactly what brought about the division. Mr. Layton wanted )'-ou to give him a deed of trust on the place, and you-wanted mother to sign it, and she would not do it.” And she said: “I will tell you what I will do: I’ll give you the west half, and I will take the east half,” and they agreed to. it; and she made you a deed to the west half, and when she called on you for a deed to the east half you told her you would not make it except for her lifetime, and she would not have it, and the defendant, E. L. Seawell, said: “I know it.”
Mrs. Young is corroborated by A. C. Seawell and Katherine Sowell, as to this conversation, and the exact words spoken by L. E. Seawell when the conversation occurred. In addition to the positive testimony of Mrs. Young that the division took place,, there is much testimony tending to prove that, after Mrs. A. E. Seawell had made the deed to the west half of the ten acres to her son E. L. Seawell, she treated the east half thereof as her own exclusive property. Various acts and declarations of hers, while she was in possession of the tract in controversy, were brought out in the evidence, tending to show that she claimed to be the sole owner of this tract. These acts and declarations were admissible to show the character and extent of her.possession and claim. 1 Ene. Ev. 680, and authorities cited; Ricard v. Williams, 7 Wheat. 59; 24 Am. & Eng. Enc. Law (2 Ed.), 690, and cases cited; Knight v. Knight, 178 Ill. 553.
But it could serve no useful purpose to elaborate the facts. Suffice it to say, there was ample proof to support a finding that Mrs. A. E. Seawell and L. E. Seawell made a division of the ten-acre tract held by them in common, and that the understanding was that she, A. E. Seawell, should get the east half (the 5 acres in controversy), and that he, E. E. Seawell, should get the west half, and that such understanding was-consummated by his taking possession of the west half, and her retaining possession of the east half. Such being the understanding, and effect having been given to it by the reciprocal giving and taking of possession, E. L. Seawell was, in equity, bound by it, although he had not executed a deed evidencing the transfer of title. 21 Am. & Eng. Enc. Law (2 Ed.), 1139 and cases cited. She performed her part of the agreement, not only by surrendering possession to the west half, but by executing a deed .therefor, and she confined her possession and claim thereafter to the east half.
A voluntary partition or division of lands by cotenants may be established by any competent evidence. 21 Am. & Eng. Enc. Law, 1141; Allen v. Seawell, 37 U. S. App. 436; Goodman v. Winter, 64 Ala. 410; Markoe v. Wakeman, 107 Ill. 251.
2. The evidence clearly shows that Nowlin purchased the land in controversy from E- L. Seawell with notice of appellees’ claim. He therefore acquired no rights under his deed from E. E. Seawell as against them. It follows that the court was correct in the finding that A. E. Seawell died seized and possessed of the lands in controversy, and that appellees, as her heirs at law, were entitled to the possession of six-sevenths interest in said land.
, 3. It is contended by appellants that about the year 1890 A. E. Seawell made an agreement with the appellant L. E. Seawell by which he was to place certain improvements on the land in question at his own expense, she to have the use and occupancy of the same during her lifetime, and then he to have her interest in the lands. It is sufficient to say of this contention that, if there was such an agreement, it was afterwards voluntarily annulled by the parties to it when they divided- the land between them. It is reasonable to conclude that all questions of that kind were con sidered when the division was made. Moreover, it is not clear from the facts and circumstances in proof that the improvements which appellant E. E. Seawell put upon the land in controversy were made with his own means. There is evidence tending strongly to show that A. E. Seawell had furnished money to her son, and that he was in debt to her when she died. It is by no means clear that she did not contribute her part to whatever improvements were put upon the land prior to the division between them.
The chancellor found that the rents and profits of said land collected by the appellant L. L. Seawell offset the taxes and improvements made by him. And we are not prepared to say, after a careful consideration of the facts in the record, that such a finding is clearly, against the preponderance of the testimony.
Affirmed. | [
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McCulloch, J.
This is an action brought by W. R. Gillihan, the owner of certain lands in Izard County, to recover damages alleged to have been done to the lands by defendant railway company in constructing its road. He alleged that he conveyed to the defendant a right of way one hundred feet wide through said lands, but that afterwards defendant entered upon and took an additional strip '7% feet wide through said land; that defend ant’s agents and employees took and destroyed one thousand cedar rails of the value of $100; that said agents and employees, without plaintiff’s consent, made roads through plaintiff’s lands, and thereby damaged it in the sum of $100; and that said agents arid employees unlawfully and without authority threw down and destroyed plaintiff’s fences, exposing the crops on said land to depredation of stock, which destroyed same, to his damage in the sum of $500. Judgment was asked in the total sum of $800.
The answer denied that any of the acts complained of were committed by the agents or employees of defendant, and alleged that the railroad was constructed by an independent contractor under a written contract with defendant, and that defendant was not responsible for the acts of said contractor.
The jury returned a verdict in favor of the plaintiff, assessing the damages upon each separate item as follows:
For taking land outside of right of way... .$ 25.00
For destroying rails.................... 50.00
For making roads on land.............. 10.00
For destruction of crops................ 75.00
Total ................................. $160.00
The undisputed testimony shows that the railroad was constructed by an independent contractor under a written contract, and that the railway company exercised no control over the work except the general right of supervision and inspection, so as to ascertain whether or not the work came up to the requirements of the contract. The testimony tended only to show that the acts complained of were committed by the contractors or their agents and servants. A railroad company is not responsible for the wrongful or negligent acts of an independent contractor in the construction of its work. Railway Company v. Yonley, 53 Ark. 503; Railway Co. v. Knott, 54 Ark. 424; Martin v. Railway Co., 55 Ark. 510.
“An independent contractor" may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and representing the will of the company only as to the result of his work. Generally, where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor; and in order that the company shall be liable in such a case it must appear that it either exercised or reserved the right to exercise control over the work, or had the power to choose, direct and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work.But neither the reservation of the power to terminate the contract when in the discretion of the engineer the work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeitures, will change the relation so as to render the company liable.” 3 Elliott on Railroads, § 1063, p. 1586.
The same learned author says: “Eor trespasses by contractors, or subcontractors, which were not the natural result of-the work, or were not authorized or directed by the company, no liability attaches to the company.” Vol. 3, p. 1591.
The same principle is announced by Judge ManseieED in Railway Co. v. Knott, supra.
Now, applying these settled principles to the facts of this case, it is easily discovered that the liability of the railway company for the acts of the contractor or their servants is not established.
The alleged act in destroying cedar rails was plainly an unauthorized act, and not essential to the performance of the contract. The making of roads also falls within the same category.
The testimony of the plaintiff covering this item was as follows :
“Q. Now, I will ask you to state, Mr. Gillihan, for what purpose they made these roads?
“A. Well, as to their purpose, I guess they did it just probably to save going around. There was a good road to their works they could have used just by going a little further around. They either did it for that, or else just to show what they could do.”
The item of damage for destruction of crops is within the same class. If the fences were on the right of way, it was necessary to throw them down, and either the railroad com- ■party or the contractor had the right to do so without subjecting themselves to liability for damages; if they were off the right of way, the act of- the contractor in throwing them down was unauthorized, and the railroad company is not liable.
The plaintiff undertook to show that the railway company 'agreed, by verbal contract at the time he conveyed the right of way, to replace the fences in time to protect the crops; and the court instructed the jury that the company would be liable for damage to crops resulting from its failure to rebuild the fences. The defendant objected to the introduction of the evidence, as well as to the instruction of the court, and saved its exceptions. This evidence tended, if sufficient for any purpose, to establish a contract and violation thereof; and the instruction permitted a recovery thereon. The complaint does not allege a contract, but a tort. The allegation concerning this item of damage is that “said defendant by its agents and employees unlawfully and without authority threw down and destroyed his fences, thereby exposing his entire crop to the stock,” etc.
It was error to admit this testimony and to give the instruction. White River Ry. Co. v. Hamilton, 76 Ark. 333.
As to the remaining item of damage for taking land outside of right of way, it is shown that this was necessary in .order to “borrow” sufficient dirt to construct the high “dump” or roadbed, and that the deed executed by plaintiff to the company conveying the right of way provided that the company could take additional dirt outside of the right of way. The deed was not introduced in evidence, but a witness for the railway company was permitted, without objection, to testify as to its contents, and the same stands undisputed in the record.
On account of the insufficiency pf the evidence and the errors already indicated, the judgment must be reversed, and the cause remanded for a new trial, and it is unnecessary to discuss the instructions given and refused, or to determine whether any other errors were committed in that respect.
Reversed and remanded.
Riddick, J., not participating. | [
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McCulloch, J.,
(after stating the facts.) 1. Appellant contends that there should have been no recovery by appellee for the reason that he failed to give-notice in writing of his- claim for damages, as required by the contract. The following stipulationús-printed upon the blank used in sending the message, viz.: “The company will not be liable for damages in any case wheréthe claim is not presented in writing within sixty days after sending the message.” The blank upon which the message was originally written, when delivered to the Western Union Telegraph Company for transmission, contained a similar stipulation, and appellee gave notice-to that c’ompany within sixty days.
;• It -is argued that compliance with this stipulation was a condition- precedent to the right to maintain a suit for- recovery-of-damages.
• If it. be held that compliance with the stipulation was a condition precedent, and that appellant had a right -to insist up.on.notice -to it of the damage, we say that under the facts" of -this case, as. shown by undisputed testimony, appellant waived its- -right.to such.notice. It is conceded that appellee, several-days after the receipt .of the message at -the Nashville office, and after he. had been informed by the sender of the message that -it had been sent, inquired at the office of appellant, and, was assured by the operator that the message had never been received; and afterwards appellee’s attorney-informed appellant’s agent of his intention to file a claim for damages on account of failure in the transmission and delivery of the message, and the agent still insisted that the message had never been received. Appellee did not know, until after the expiration of sixty days, that the message had ever been delivered to appellant, and filed his notice of damages with, and brought suit against, the Western Union Company. It is clear that appellee and his attorneys were misled by the statement made to them by the agent of appellant whose duty it was to deliver the message and to give information concerning it, and appellant cannot be permitted to take advantage of the failure of appellee to give the notice when such failure was caused by the misleading statements of its. agent. Joyce on Electric Law, § 726; Sherrill v. Western Union Tel. Co., 109 N. C. 527; Western Union Tel. Co. v. Jones, 95 Ind. 228.
Appellee could not give the notice of the damage to appellant when he did not know, and could not with reasonable diligence ascertain, that the delay was caused by appellant’s fault. A construction of the stipulation which would require the giving of the notice before appellee could, with reasonable diligence, ascertain the fault, would in effect deprive him of all redress for the injury, and would render the stipulation void. Herron v. W. U. T. Co., 90 Iowa, 129.
2.- It was held by this court in Peay v. Western Union Telegraph Co., 64 Ark. 538, that damages were not recoverable for mental pain and anguish, unattended by physical injury, occasioned by breach of duty on the part of a telegraph company in failing to promptly deliver a telegram.
Subsequent to that decision the Legislature enacted a statute declaring that “all telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting or. delivering messages; and in all actions under this section the jury may award such damages as they conclude resulted from the negligence of the said telegraph company.” Act March 7, 1903; Kirby’s Digest, § 7947. It is claimed that this statute is applicable only to telegraph companies organized for the purpose of doing a telegraph business, and not tp a railroad corporation, even though doing a telegraph business. We cannot uphold- that contention. - It is manifest that the Legislature did not use. the term “telegraph companies” in any technical sense, but intended to apply .it to any corporation or association doing a public telegraph business. Manifestly, it was the intention of' the law-makers to change by statute the law as declared by this court in the case referred to above, and to make mental pain and anguish an element of damages resulting from a negligent failure to receive, transmit or deliver a telegraphic message.
The evidence shows that appellant, though organized -as a railroad corporation and operating a railroad, was also operating a. telegraph line along the line of its railroad, and was engaged in the telegraph business, serving the public generally for. pay along its said line. It is estopped to assert that it was acting beyond its power in so doing. Minneapolis Fire & M. Ins. Co. v. Norman, 74 Ark. 190.
3. The court, at the request of the plaintiff,, gave the following instruction on the subject of exemplary damages: ■
“If the jury believe, from the evidence, that the message in question.was promptly and correctly transmitted to the Ark. & La. Ry. Co., and that it was received by the agent and operator of said company at Nashville, Ark., and that it was not delivered to the plaintiff, and that the failure to deliver it was because of the wanton, gross and willful negligence of the said agent, then you may add to the actual or compensatory damage which you may find for the plaintiff under the fourth instruction given at the request of the plaintiff, if you find he has sustained any damages, such exemplary or punitive damages as you may deem proper under the evidence as a punishment for the willful neglect of duty, not exceeding, however, when added to the actual damages, the" amount sued for.”
It is contended that exemplary damages are not recoverable in such case because the statute in question does not authorize same. It is true that this statute does not authorize such damages, but it does not follow that the same may not be recovered. The statute declares mental pain and anguish to be elements of actual damages in such cases, and, aside from the statute, in actions for acts wantonly committed exemplary damages may be allowed where actual damages are proved.
We think, however, that the court, erred, in giving an instruction allowing the jury to assess exemplary damages, as there was no evidence to support a verdict of that character.
Negligence, however gross, will not justify a verdict for exemplary damages, unless the negligent party is guilty of willfulness, wantonness, or conscious indifference to consequences from which malice will be inferred. Railway v. Hall, 53 Ark. 7.
In this case no element of willfulness or conscious indifference is proved. Appellee had lived in that community only about ten months, having moved there from Tennessee. He lived outside the corporate limits of the town, but worked therein at his trade as a painter. The telegraph operator and messenger both testified that they had no personal acquaintance with him, and the latter testified that he made diligent search for the addressee named in the message, inquired of numerous persons on the street, and examined the register at the hotel, and failed to find him. It is true that appellee testified that at the time the message was sent he was at work on a building near the depot) that he had talked with both the operator and messenger since he became a resident of the community, and had, on two occasions, made inquiry of the operator, who was also express agent, for express packages, and had given his name. He does not say when this occurred. He does not show that his alleged communications with the employees of appellant were of such a character and. in such close proximity in point of time to the date of this message as to indicate that they must have remembered him, known where he could be found, and willfully and knowingly failed to deliver the message to him. Nothing short of that would justify an assessment of exemplary damages. We cannot say that the evidence in this case does not sustain the verdict and the amount of damages assessed by the jury. Neither can we say to what extent the jury were influenced by the instruction as to exemplary damages. The jury might have awarded the same amount of damages if this instruction had not been given, or they might have awarded less. We cannot tell. Appellant was entitled to have the issues submitted to the jury without this erroneous instruction, and it must, therefore, be held to be pre judicial. Railway v. Hall, supra; Inabnett v. St. Louis, I. M. & S. Ry. Co., 69 Ark. 130; St. Louis & S. F. Ry. Co. v. Townsend, 69 Ark. 380; Neal v. Brandon, 70 Ark. 79; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 137.
For the error in giving this instruction the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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McCulloch, J.
Appellant, G. P. George, Jr., became the purchaser of land at a sale made by commissioner in chancery, and appeals from a decretal order of the court setting aside the sale and refusing to confirm it.
The land was advertised and exposed to sale by the commissioner in accordance with the decree of court. Appellant bid the sum of $4,000 therefor, and, being the highest bidder, the commissioner knocked the same off to him at that price, and reported the sale to the court. One of the parties to the suit filed exceptions to the report on the alleged ground that the price was grossly inadequate, and appellee W. T. Cone offered an advance bid of $5,000 for the land. The court made a finding that the price for which the land was sold, $4,000, was grossly inadequate, offered to permit appellant to advance his bid to $5,000, which appellant refused to do, and then set the sale to appellant aside,- .and accepted the bid of appellee Cone, and directed the commis sioner to make a deed to the latter upon payment of said sum of $5.ooo-
The fairness and regularity of the sale is unimpeached by evidence. Appellees introduced no proof to establish the market value of the land except the offer of appellee Cone to pay $5,000 for it, and appellant introduced four witnesses who testified that the fair market value of the land at the time of the sale was $3,500 to $4,000.
The questions which we are called upon to decide are, in the first place, whether an appellate court should under any circumstances disturb the order of a chancery court refusing to confirm a sale by its commissioner, and, second, whether the chancellor is sustained by the evidence in his conclusion that the price offered by appellant was grossly inadequate.
In the case of Colonial & U. S. Mortgage Co. v. Sweet, 65 Ark. 152, this court affirmed the order of the chancellor confirming a sale of land for $2,500 and refusing to accept an advance bid of $3,981.67 made by one of the parties to the original decree. The proof was conflicting as to the market value, and the court found that the price at which the sale was made, $2,500, was a fair one. The court quoted with approval language of the Supreme Court of the United States in Graffam v. Burgess, 117 U. S. 180, as follows:
“In this country, Lord Eldon’s views were adopted at an early day by the courts, and the rule has become almost universal that a sale will not be set aside for inadequacy of price, or unless the inadequacy be so great as to shock the conscience, unless there be additional circumstances against its fairness; being very much the rule that always prevailed in England as to setting aside sales after the master’s report had been confirmed.”
It may be therefore treated as settled in this State, following the rule adopted by a large majority of the American courts, that, in the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale, the sale will not be set aside and confirmation refused in order to allow the bid of the purchaser to be advánced by another person.
It is equally well settled, here and elsewhere, that a judicial sale will not be set aside on account of mere inadequacy of price, unless the inadequacy be so gross as to shock the conscience or raise a presumption of fraud or unfairness. Nix v. Draughon, 56 Ark. 240; Fry v. Street, 44 Ark. 502; Brittin v. Handy, 20 Ark. 381; Graffam v. Burgess, 117 U. S. 180; Parker v. Bluffton Car Wheel Co., 108 Ala. 140; Stump v. Martin, 9 Bush (Ky.), 285; Allen v. Martin, 61 Miss. 78.
The chancellor found in this case that the price was grossly inadequate, but his finding was contrary to the decided preponderance of the evidence. Four witnesses introduced by appellant testified that the amount of his bid was a fair market value of the land. Some of them testified that it was above the market value. No other witness testified on the subject. But, conced- ' ing that the advance bid of appellee Cone fixed the value of the land at $5,000, we do not think that establishes such gross inadequacy in the price as, of itself, to afford grounds for setting aside the sale.
Courts have adopted, as a wise public polic)', the rule that confidence in the stability of judicial sales should be maintained, so that competitive bidding may.be encouraged by the assurance that, in the absence of fraud or misconduct, the highest bidder will be accepted as the purchaser of the property offered for sale. And, while it is often said that the accepted bidder at such a sale acquires no independent rights until the sale be confirmed by the court, and that the court may exercise a discretion in either confirming or rejecting the sale, yet this discretion must be exercised according to fixed rules, and'not arbitrarily, and the bidder has ’the right to insist upon its exercise in this manner only. He can insist that his purchase be not set aside by the court upon reasons which are condemned. ■
“Considerations of public policy demand,” say the Court of Appeals of Kentucky, “that some confidence should be had in the stability of judicial sales, so as to invite competition in bidders by an assurance to men of fidelity and promptness in their business habits that the chancellor is at least bound by the same rules” of fair dealing that such men are in their business transactions with each other.” Stump v. Martin, supra. And the appellate court in that case reversed the decision of the lower court refusing to confirm a sale and accepting the advanced bid of another person.
In a similar case, the Supreme Court of Mississippi, on appeal prosecuted by the purchaser, reversed the ruling of the chancellor refusing to confirm a sale because the bid had been advanced. Allen v. Martin, supra. The court, by Mr. Justice Cooper, said: “Until confirmation, the sale is in fieri and subject to the control of the court, but this control is a judicial, not an arbitrary, one, and confirmation must follow unless there exist some reason recognized by law as warranting a refusal to confirm. A bidder at a sale in chancery assumes certain obligations which he must discharge, he submits himself to the jurisdiction of the court, and becomes a party to the cause in which the sale has been decreed, and he may be compelled to stand by the offer he has made. On the other hand, he acquires certain legal rights which are to be as much protected and enforced as are other rights of other persons. He is entitled not only to ask but to have confirmation if there is no reason valid in the law for refusal.”
“When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it.” Latrobe v. Herbert, 3 Md. Chan. 377.
The New Jersey Court of Errors and Appeals, in the case of Morrisse v. Inglis, 46 N. J. Eq. 306, reversed the decree of the chancellor setting aside a sale made by the master because the bid of the purchaser was advanced by another. The court said: “There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well-known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity by public outcry to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and, at least, when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid, whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial.” To the same effect are Comstock v. Purple, 49 Ill. 158; Quigley v. Breckenridge, 180 Ill. 627; Page v. Kress, 80 Mich. 85.
If the chancellor had, under the proof, approved this sale, our duty to affirm his decision would be plain, for it is undisputed that the sale was regularly made in accordance with the order of the court, and was free from any fraud or misconduct, and the evidence shows that the price bid was not inadequate.
That being true, the purchaser had the right to insist upon a confirmation of the sale, and it is equally our duty to protect that right and to reverse a decision of the chancellor denying it. In other words, the decision refusing to confirm the sale under the proof presented by the record can not be said to be proper exercise of the discretion of the court, and must be reversed.
The decree is therefore reversed, and the cause remanded, with directions to confirm the sale to appellant upon compliance by him with the terms of his bid. | [
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Battle, J.
Hugo Kastor applies to this court for a writ to prohibit the Lincoln Chancery Court from exercising jurisdiction in the suit of Jacob Boye against him in that court. He says “that on the 19th day of October, 1905, he instituted a suit in the Desha Chancery Court against Jacob Poye, a resident of Desha County; that the object of the suit was to enforce specific performance by Poye of the contract exhibited with the complaint therein, to obtain an accounting between the parties, and to restrain Poye from interfering with petitioner’s possession of certain staves lying partly in Desha County, and partly in Lincoln County; that summons and a restraining order were issued and served on Poye in Desha County. * * * Petitioner says that, on the 20th day of October, 1905, Poye instituted suit in the chancery court of Lincoln County against petitioner (who is a non-resident of this State), the object of which suit is identically the same as the object of that filed by petitioner in Desha court; that the chancellor of the Lincoln Chancery Court issued an order, restraining petitioner from removing that portion of said staves which was located in Lincoln County, and also appointed a receiver, and directed the receiver to take possession of the staves and to sell same; that the latter has advertised same for sale, and will sell same on the 17th day of this month (November, 1905), unless restrained by this court.”
Judge Elliott responds, and admits the issuance of the restraining order, and the appointment of the receiver made by him in his official capacity, and alleges that the Lincoln Chancery Court has jurisdiction in the suit instituted in that court by Poye.
Poye being a resident of Desha County, and the contract sued on relating exclusively to personal property, the Desha Chancery Court had jurisdiction of the suit commenced in that court against him (Kirby’s Digest, § 6072) ; and, Kastor bdng a non-resident of this State, and the property being situated in Lincoln County, the Lincoln Chancery Court had jurisdiction of the suit instituted in that court by Poye against him. It follows that the two courts had concurrent jurisdiction, and the one first obtaining jurisdiction had the right to exercise it to the exclusion of the other. The statutes of this State provide what shall be done in such cases. They provide that when it appears in the complaint that there is another action pending between the same parties for the same cause, the objection may be taken advantage, of- by demurrer; and if it does not appear in the complaint, it may be taken by answer; and if the objection is not taken by demurrer or answer, the defendant shall be deemed to have waived the same” (Kirby’s Digest, § § 6093, 6096). If the demurrer be overruled, or the plea in the answer be overruled, the defendant has an adequate remedy by appeal. “But, in the first instance, the court in which the proceeding began has a right to pass on the question, and if it errs its errors can be corrected” by the Supreme Court. The fact that the court may err in deciding the question does not authorize this court to interfere by writ of prohibition. State ex rel. Johnson v. Withrow, 108 Mo. 1.
•Petition is denied. | [
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Riddick, J.
This is an appeal from a judgment convicting the defendant, Clyde Lasater, of the crime of seduction, and sentencing him to imprisonment for one year 'in the State penitentiary as punishment therefor. It is not disputed that the defendant obtained carnal knowledge of the prosecuting witness, Lucy Robinson, who was a girl under eighteen years of age, and that she became pregnant and gave birth to a child as the result of such intercourse. But it is contended that it was not shown that the defendant obtained such carnal knowledge of the plaintiff by virtue of'an express promise of marriage, and further that, if the defendant was guilty, he ought not-to be convicted, for the reason that he afterwards made an offer of marriage which was not accepted.
Now, as to the proposition of marriage: It was not shown that the prosecuting witness had ever declined to marry the defendant. On the contrary, the evidence showed that she has at all times been ready and willing to marry him. She so testified at the trial, but the defendant, when questioned on this point, confessed that he was not willing to marry her at that time, and that he was not willing to do so at the time’the grand jury acted on the charge and returned the indictment against him.
There was testimony offered by defendant that tended to show that, after the prosecuting witness had given birth to a child and after a prosecution had been begun against the defendant for seduction, he did make, through his uncle, some overtures to the father of the prosecuting witness to settle the matter by marriage, and that the father of the prosecuting witness refused to accept this offer unless defendant would pay fivfe hundred dollars in money, and costs of lying in expenses ánd the costs of the prosecution which had been commenced against the defendant. Defendant also offered to prove that the prosecuting witness had stated to the grand jury at the time she appeared before it as a witness that she and defendant would have been married but for objection on the part of the father. But the court excluded this testimony, and it is very clear that under our statute it was immaterial. For our statute provides that, after a prosecution for seduction has commenced, even the marriage of the defendant to the prosecuting witness does not terminate, but only suspends, such prosecution; and if after such marriage the defendant without just cause abandons the prosecuting witness, the statute requires that the prosecution “shall be continued and proceed as though no marriage had taken place between such female and the accused.” Kirby's Digest, § 2044. If an actual marriage does not terminate a prosecution already commenced,. certainly a mere offer of marriage will not have that effect, when made after the commencement of the prosecution, unless the defendant keeps up his offer, and is ready and willing to perform it at the time of trial. But the prosecution was commenced in this case before a justice of the peace. Defendant made the offer to marry after the prosecution was begun, and he admits that, before the indictment was returned against him, he had changed his mind, and was unwilling to carry out his offer and marry the prosecuting witness. He did not make the offer of marriage to the prosecuting witness, who has at all.times been willing to marry him, but to her father for her, and the fact that, her father may have imposed unreasonable conditions did not justify him in withdrawing the offer altogether. The withdrawal of the offer left him in the same position, so far as the prosecution was concerned, as if he had never made it, and this evidence was properly rejected by the trial court.
We do not say that an offer of marriage by a defendant prosecuted for seduction would be a defense, even if the defendant was ready and willing to make good his offer at all times thereafter. When a defendant seduces a female by virtue of a promise of marriage, and then declines to carry out his promise, his offer of marriage after prosecution is begun may be of no avail unless accepted by the prosecuting witness. But the facts in this case were peculiar. The prosecuting witness testified that there was an express promise of marriage, but that no day was set for the marriage. Neither she nor the defendant knew that she was pregnant until a short time before the birth of the child. Defendant did not know of her condition uijtil the day the child was born, as he had been absent from the State. He had never been requested to marry her, and had never declined to do so. A short time after the birth of the child she wrote him a letter, telling him she loved him still and asking him what he intended to do. If he had then offered to marry her, and kept his offer open for her acceptance up to the time of the trial, it would have tended under the circumstances here very strongly to show that his original promise was made in good faith. But, without any excuse or fault on her part, he withdrew the offer, and must therefore stand only on his other defense, that he had never made any promise of marriage, and did not obtain carnal knowledge of the prosecuting witness in that way.
The prosecuting witness testified that she was induced to yield her virtue by reason of a promise of marriage made to her by defendant, and the next question is whether there was any corroborating evidence on that point. The woman seduced, being particeps criminis, our statute provides that the defendant shall not be convicted upon her testimony unless corroborated by other evidence. Kirby’s Digest, § 2043. But this corroboration is required only as to the promise of marriage and the fact of sexual intercourse. Polk v. State, 40 Ark. 482; Armstrong v. People, 70 N. Y. 38.
Counsel for defendant contend that the corroboration should extend to the allegation that the promise was false, but, in the nature of things, the testimony of the prosecuting witness is always corroborated on that point by the fact that they did not marry, ana that is one reason why no corroboration is required as to that.
The defendant admitted the intercourse in this case, and that leaves us, as before stated, to consider whether there was corroboration as to the promise to marry. Now, this fact may be corroborated by circumstances as well as by direct evidence.
Mr. Justice Forger of the Court of Appeals of New York, in considering a question of this kind, said: “It is settled that the supporting evidence is required as to two matters named in the act, and as to them only. They are the promise of marriage and the carnal connection. Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 N. Y. 644. It is settled by the same authorities that the supporting evidence need be such only as the character of these matters admits of being furnished. The promise of marriage is not an agreement usually made in the presence or with the knowledge of third persons. Hence the supporting evidence possible in most cases is the subsequent admission or declaration of the party making it; or the circumstances which usually accompany the existence of an engagement of marriage, such as exclusive attention to the female on the part of the male, the seeking and keeping her society in preference to that of others of her own sex, and all those facts of behavior toward her which, before parties to an action were admitted as witnesses in it, were given to the jury as proper matter for their consideration on that issue.” Armstrong v. People, 70 N. Y. 43. See also People v. Orr, 92 Hun, 199; 25 Am. & Eng. Enc. Law (2 Ed.), 239.
Now, the prosecuting witness testified that she was seduced by defendant under promise of marriage in August, 1904, and the testimony shows that, beginning about January, 1904, up to the spring of 1905, he had paid her marked attention, visiting her often when she was at home and corresponding with her when she was away on visits to other places. The defendant himself said that during that time he “kept her company pretty regular,” while the prosecuting witness said he generally came to see her once during the middle of the week and twice on Sunday. She testified that they agreed that neither of them should keep other company, and that she rarely accepted the company of other young men. He denied that they had made such an agreement, but admits thát on one occasion they had a serious quarrel because she permuted a showman to accompany her home. This was some months after the first act of intercourse occurred, and she said she permitted this attention because she understood that defendant was going with other girls. The letters of defendant read in evidence tend to support her testimony that there was some promise or understanding between them of that kind. In one of them he tells her that there will be a party in town that night, and that he may go. But he says in the letter: “Hun, if I do go, don’t worry about me being with some other girl, for I won’t.” Now, why should he take the trouble to tell her not to worry about his going with some other girl, unless there was some agreement not to do so, or unless they were already engaged to be married? There were only five letters of defendant read in evidence, the prosecuting witness testifying that the others had been destroyed soon after they were received. In two of these five letters she is addressed as “Dear Lucy,” in two as “Dearest Lucy” and in the remaining one as “Dear Baby.” In one of these letters he speaks of her cousins as his cousins, and says, “Well, baby, tell all my cousins ‘Hello’ for me, and bring one of them home with you.” In another he tells her that everything is awful lonesome without her. In the same letter he says: “Well, dearest, I am getting awful lonesome without you. Dear, think of your man often, and have a good time.” In another letter, apologizing for a previous letter, he tells her that he loves her better than his life, but that she ought to know that he was “awful jealous.” In still another he writes: “Kid, I am getting anxious to see you, my woman. Well, honey, I will close, and so the next letter I can tell you in place of writing to you, so good bye, my-: — . I remain as ever, Yours forever, Clyde.”
In the letter above referred to it will be noticed that he uses the expression “I am getting anxious to see you, my woman.” Now, this was after the seduction, and at a time he was allowed to have sexual intercourse with her. So it does not seem that this expression meant that he was anxious to have her as his mistress, but that he meant that he was anxious for her to be his woman lawfully, that is to say, that he was getting anxious for the marriage to take place. Taking into consideration the fact that the defendant had been regularly visiting this young woman for a long time, and the tender and intimate expressions with which these letters abound, we think that it was corroboration enough to go before the jury.
In addition to the letters referred to above, the prosecuting witness testified that she received one while she and her sister were temporarily staying at Batesville, Ark. This letter was, she said, written at Knobel on the 3d day of July, 1904, where defendant had gone to put up a lemonade stand to be used on the 4th of July. She said that she had repeatedly looked for the letter, and had failed to find it, and that it was either lost or destroyed. This letter, she said, began by addressing her as “My dear future wife.” On being cross-examined as to the contents of the letter, she said she did not remember them,' except it stated that he had “got the stand fixed up, and was going to take time to write,” and that the mosquitoes were very bad. She testified that she showed this letter to her siser, Oretha. Oretha testified that she was in Batesville with her sister on the 4th day of July, 1904; that while there her sister received a letter from defendant; that she read the letter and remembered that defendant addressed her sister in the commencement of the letter as “My future wife.” That she did not pay much attention to the letter, and, besides the address, remembered only that it was “so loving and silly” that she advised her sister to destroy it. Defendant objected to this testimony on the ground, as he said, “that it is incompetent because the letter itself is the best evidence, and the proper foundation is not laid for the introduction of parol testimony in regard to the letter.” But, as the loss of the letter was proved, the only doubt about the evidence is whether the mere address commencing a letter can be proved by witnesses who do not remember the substance of what the body of the letter contained. There is some doubt in our minds as to the admissibility of this evidence, but we are not certain that this point was raised by the objection of defendant. That objection was specifically directed to the fact that no foundation was laid for the admission of parol evidence as to the contents of the letter. The trial judge responded to this objection by saying: “She says the letter is destroyed, and that she is unable to find it.” The witness was then questioned again as to the loss of the letter, and stated again that it was lost or destroyed and could not be found. Defendant repeated his objection in the same form, which was overruled. But; conceding that the point is raised, the defendant admitted having written a letter on the day named to the witness at Batesville, Arkansas. He remembered having written the letter, but denied that at the commencement of the letter he addressed her as “My dear future wife,” and says that he thinks he addressed her as “Dear Lucy.” Defendant did not offer to testify as to the contents of the letter, nor were either of the other witnesses questioned very closely as to whether the contents of this letter could be recalled by them, though they were questioned in reference thereto, and one of them, the prosecuting witness, said the letter stated something about the lemonade stand, at which defendant was at work on that day, having been finished, a.nd that the mosquitoes were bad. While her sister said that she remembered nothing about the contents of the letter beyond the address, except that it was “loving and silly.” But the State did not claim that there was anything material in the body of this letter. The defendant, as he admitted writing the letter, must have known something about the contents thereof; but, as before stated, he did not offer to tell what the contents were, but merely denied that he commenced the letter by addressing the prosecuting witness as “My dear future wife,” and stating that the address was “Dear Lucy.” It does not seem, therefore, that there was any real controversy about the contents of the body of the letter, or that any objection was made to this evidence on the ground that the witnesses did not state what the body of the letter contained. Neither side insisted that the contents of the letter should be proved or all evidence of it rejected. The difference between the parties related entirely to the formal address or commncement of the letter, and we do not think any reversible error was committed in admitting the evidence.
We find no error in the giving or refusing of instructions. The first, second, fifth and sixth instructions asked by defendant are covered by those given by the court. The third is erroneous in that it tells the jury that, before the jury could convict, they must find, not only that there was an express promise of marriage, but that the prosecuting witness requested defendant to keep his promise, and that he willfully refused. If defendant seduced the girl under promise of marriage, it was his duty to have kept the promise without any request on her part.
The fourth is not correct, for it requires corroboration on four different points, when the law only requires it as to two.
The seventh was properly rejected, for there was no evidence that the prosecuting witness had ever refused to marry the defendant, and, as before stated, his offer to marry, which was subsequently withdrawn, was no bar to the prosecution.
The eighth instruction requested was objectionable, for it stated that the jury must not only find beyond a reasonable doubt that the defendant was guilty, but must find beyond a reasonable doubt that the prosecuting witness was corroborated. The doctrine of reasonable doubt does not apply to the different items that make up the proof of guilt. The jury must believe beyond a reasonable doubt from the evidence that the defendant is guilty, and there must be corroboration of the testimony of the prosecuting witness, but there is no requirement that the corroboration be proved beyond a reasonable doubt. Lackey v. State, 67 Ark. 416; Mitchell v. State, 73 Ark. 291.
The facts in this case are somewhat unusual, and there is considerable conflict in the evidence, and some doubt perhaps as to defendant’s guilt. But those questions were properly presented to the jury, and they found against defendant, and their finding is conclusive.
Finding no error, the judgment is affirmed. | [
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Battle, J.
This action was brought by Catherine A. Beardsley, and others against J. B. Hill and others to recover the possession of a certain tract of land. The defendant denied that plaintiffs were the owners of the land or entitled to its possession, ■claiming that they were rightfully and lawfully in possession.
Evidence was adduced in the trial of the action tending to prove that Catherine A. Beardsley was at one time the owner of the land, but a record of a deed purporting to have been executed by her and her husband, Paul F. Beardsley, and duly and lawfully acknowledged by them and recorded, conveying said land to George F. Richters, was read as evidence. Mrs. Beardsley and her husband testified that they or either of them never executed a deed to George F. Richters, and never knew him before the bringing of this action. Plaintiffs offered, and the court refused to allow them, to prove by their own testimony that they, Catherine A. and Paul Beardsley, executed a deed conveying the land to Fred J. Richters.
Among other instructions, the court gave the jury the following:
“If you find from the evidence that the plaintiffs, P. F. Beardsley and wife, did not execute the. deed to George F. Richters, record of which is in evidence, you will find for the plaintiffs.”
“The court instructs the jury that the plaintiffs must recover, if at all, on the strength of their own title, and not upon the weakness of the defendants.’ Therefore, if you find from the ■evidence that plaintiffs, Paul F. Beardsley and Catherine A. ■Beardsley, on the 3d day of October, 1893, conveyed by deed, duly .acknowledged and filed for record, the lands in controversy to George F. Richters, and it does not appear that said George F. Richters has conveyed said lands to the plaintiffs or some one through whom they claim title, you will find for the defendants.”
The jury in the case returned a verdict in favor of the defendants, and judgment was rendered accordingly;
The court committed no error in refusing to allow Paul F: Beardsley and Catherine Beardsley to testify that they on or about the 3d day of October, 1903, conveyed the land in controversy to Fred J. Richters. The deed which they executed to him, if any, was the best evidence of that fact, and no other evidence was competent to prove it until its loss or destruction was shown, or it was in the possession of some one outside of the State and could not be produced, or it was shown that “the record thereof, or a transcript thereof, certified by the recorder,” could not be produced. They laid no foundation whatever for the admission of the rejected evidence.
Paul F. Beardsley and wife testified that they never executed a deed to George F. Richters. If this be true, the instrument of writing purporting to be a deed executed by them to him was a forgery; and under the instructions of the court it was the duty of the jury to return a verdict in favor of the plaintiffs. They did not believe their testimony.
The record of the deed of George F. Richters was competent evidence, and sustained the verdict of the jury. They obviously found that Paul and Catherine Beardsley conveyed all their interest and estate in the land in controversy to George F. Richters. That being true, plaintiffs were not entitled to the land. They could not recover on the weakness of defendant’s title, but on the strength of their own. Dawson v. Parham, 47 Ark. 215; Apel v. Kelsey, 47 Ark. 413; Nix v. Pfeifer, 73 Ark. 199.
Judgment affirmed. | [
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Battle, J.
A. little girl about ten years old, named Pearl Bond, left her home at Judsonia, in this State, in April, 1905, to visit relatives at Weatherford, Texas. She was placed in care of the conductor of the train on which she took passage. At Texa.rkana, Ark., she changed cars. When she arrived there, the conductor placed her in charge of one of the employees of the railroad company, with instructions to put her on the next train for Weatherford, Texas. While waiting for that train, she went to sleep. When she woke, Charles Anderson was sitting by her side. She says: “He asked me my name, and where I was going, and said he was going on the same train, that the conductor had told him to take care of me, and put me on the right train. Then he got up, and looked out of the door, and said that the train was coming, “Come on,” and he took me around the depot, saying that he had ten dollars for me. After he got to the alley, he said he had a present for me, and tried to get me to go up to see some little children. He kissed me, -and tried to pull me into the alley. I was afraid. I commenced crying, and he said the bad man would get me if I cried. I told him I wanted to go back to the depot to get a drink, and he said he would get me any kind of a drink I wanted. He turned me loose, and I ran back to the depot. He told me to go back to the depot, that he would see me later.”
Upon these facts the grand jury of Miller County indicted Anderson for an assault upon Pearl Bond with intent to rape her; and upon testimony to the same effect he was convicted. Was he guilty?
There is a contrariety of opinion as to what is neccessary to constitute an assault at common law. Mr. Bishop says: “An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as raising a cane to strike him; pointing in a threatening manner a loaded gun at him: and the like.” 2 Bishop’s New Criminal Law, § 23. In speaking of an attempt to commit a particular crime, after treating of the intent necessary to constitute such an attempt a crime, he says: “Keeping fast to the anchorage-ground of the last sub-title, that the intent must be specific to do the whole of what constitutes the substantive crime, the doctrine here is that the act must be sufficient in magnitude and in proximity to such crime for the law, that does not regard things trifling and small, to notice, and of. such seeming aptitude as is calculated to create an apprehended danger of its commission. But it is never necessary that the danger should be real.” 1 Bishop’s New Criminal Law, § 737. This is a reiteration of what he says of the act necessary to constitute an assault. Of course, acts necessary to constitute an assault are necessary to constitute an assault to commit a particular crime. Some courts do not sustain this view, but we hold that, to com sfitute an assault, the accused “must have intended and have had the power to carry his menace into effect.” Pratt v. State, 49 Ark. 179, 182, and cases cited.
Our statutes have settled the question in this State. They say: “An assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” Kirby’s Digest, § 1583. In speaking of this statute, and of what is necessary to constitute an assault under it, this court, in Pratt v. State, 49 Ark. 179, 182, said: “The intention and ability to commit the battery must both be shown, before an assault of any kind can be made out. Indiana and Texas at one time had the same statute; and it was uniformly held, we believe, that the intent and the present ability to execute must be- conjoined.” It is evident that an opinion of a court as to what particular acts constitute an assault, or an assault to commit a particular crime, depends upon the particular views of the court as to what is an assault. What might be an assault according to Mr. Bishop’s definition might not be under the statutes of this State. When Texas had a statute similar to ours, Chief Justice Roberts, speaking for the court in Johnson v. State, 43 Texas, 576, said: “In. every assault there must be an intention to injure, coupled with an act which must at least be the beginning of the attempt to injure then, and not an act of preparation for some contemplated injury that may afterwards be inflicted.”
The statutes of this State, requiring the unlawful act to be coupled with the present ability to do the injury, clearly indicate that the unlawful act must be the beginning or part of the act to injure, of the perpetration of the crime, and not of preparation to commit some contemplated crime. This case is an illustration. Anderson never attempted to have sexual intercourse with Pearl Bond by force or consent. He never asked her for permission;, never put his own person in condition or position for such an act; never attempted to raise her clothes, or to throw her down, or to do acts without which sexual intercourse could not be accomplished. But when she persisted in pulling back and returning to the depot, he let her loose, and told her to go.
We do not think that the evidence was sufficient to sustain a verdict and judgment for an assault with intent to rape, but that it will sustain a judgment for an assault and battery, they being included by the averments in the indictment. It might sustain a judgment for false imprisonment under an indictment for that offense, but we do not decide or express an opinion that it will. It will not under the indictment in this case.
The judgment for an assault with the intent to commit rape is set aside, with leave for either side to show cause within one week why the case should not be remanded to the circuit court with an order to render judgment against the defendant for an assault and battery.
Riddick, J., dissents. | [
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Battle, J.
D. O. Porter, a resident and landowner in Desha County, and C. E. Lee, a resident and landowner in Lincoln County, filed their several complaints in the chancery court for the Varner district of Lincoln County, against the Board of Inspectors of the Linwood and Auburn Levee District and others, the purpose of which was to enjoin the officers of the district from issuing bonds under the act of the General Assembly of April 24, 1905 (Acts of 1905, p. 480).
There was a general demurrer to each complaint, which was sustained by the court; and, the plaintiff declining to plead further, their complaints were dismissed, and they appealed.
The Linwood and Auburn Levee District was created by an act of the General Assembly of the State of Arkansas, which became a law on the 16th day of March, 1893, which authorized the district to build certain levees, and for that purpose vested it with the necessary powers. ,
On the 24th of April, 1905, the General Assembly, by an act entitled “An Act to authorize the Board of Directors of the Linwood and Auburn Levee District to issue bonds for the purpose of building, rebuilding, repairing, raising and maintaining levéés on the south bank of the Arkansas River, in Lincoln County, from the Jefferson County line to the Desha County line,” after stating that said district was “composed of the following political townships, towit: Auburn, Choctaw, Kimbrough, and all that part Of Bayou Bartholomew township lying north of Bayou Bartholomew and all of Wells Bayou township lying north of Wells Bayou, in Lincoln County, Arkansas, and Randolph and Walnut Lake townships in Desha County, Arkansas,” authorized the board of directors of that district “to borrow money for the purpose of building, rebuilding, repairing, raising and maintaining the levees on the south bank of the Arkansas River in Lincoln County, from the Jefferson County line to the Desha County line, and for that purpose to issue bonds of said board to an amount not exceeding $100,000, and to sell and negotiate the same at any amount not less than par.” Appellants say this act is void, because, it seeks to amend the act of March 16, 1893, in violation of section 23 of article 5 of the Constitution of this State, which provides that “no law shall be revived or amended or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.” But this objection does not apply to the act of April 24, 1905. It does not attempt to revive, amend, extend or confer the provisions of any other act “by reference to its title only.” It has been repeatedly held by this court that a statute repeals or operates as an amendment of a prior law on the same subject, to the extent that they are in conflict, although the latter is not mentioned in the former. Scales v. State, 47 Ark. 481; Churchill v. Hill, 59 Ark. 54, 64; Leep v. Railway Company, 58 Ark. 407; St. Louis, I. M. & Sou. R. Co. v. Paul, 64 Ark. 95, and cases cited; Watkins v. Eureka Springs, 49 Ark. 131; Baird v. State, 52 Ark. 329; State v. Martin, 60 Ark. 349; Nations v. State, 64 Ark. 469.
The act of March 16, 1893,.in effect and impliedly constituted the Linwood and Auburn Levee District a public corporation. Board of Levee Inspectors of Chicot County v. Crittenden, 94 Fed. Rep. 613. And it was competent for the Legislature to change its boundaries, as it did by the act of .April 24, 1905.
It is argued that the act of March 16, 1893, is invalid, because it provides that the taxes levied under it for the purpose of defraying the expenses of building levees .shall be according to the assessed value of the property taxed, and not in-proportion to benefits received. But it has been decided otherwise by the Supreme Court of the United States in Webster v. Fargo, 181 U. S. 394. In that case it was held that it was within the power of the Legislature to authorize special assessments for local improvements to be made upon property according to its valuation. For a full discussion of this question, see French v. Barber Asphalt Company, 181 U. S. 324, and cases cited.
Appellants say that the act of March 16, 1893, authorizes the taking of private property without the consent of the ownei for public use without just compensation, and is in conflict with section 22 of article 2 of the Constitution of this State. It does not appear that it will be necessary to take private property without the consent of its owner to carry the act into effect. If it will not, the clause cannot affect the act. A decision of this question is not necessary to the determination of this cause, and therefore need not be considered. Railway Company v. Smith, 60 Ark. 221, 239, 240.
The act of April 24, 1905, is sufficient to authorize the issue of bonds by the Linwood and Auburn Levee District.
Decree affirmed. | [
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Battle, J.
Seigel Carrens was indicted by a grand jury of Randolph County for seducing Effie Coe, and was convicted. Effie Coe was the only witness examined to prove the charge. In the course of the examination she testified that she received certain letters from the defendant. The letters were not identified or proved to be the letters of the defendant by any other witness. They were read as evidence.
Evidence was also adduced tending to prove that, after the indictment and before trial, the defendant offered to marry Effie Coe, and she refused.
The court, in part, instructed the jury as follows:
“You are instructed that the defendant cannot.be convicted upon the testimony of Miss Effie Coe alone, but her testimony must be corroborated by other evidence upon each of the first two facts; that is, upon the fact of carnal knowledge and promise of marriage mentioned in the foregoing instruction.”
And refused to instruct, at the request of the defendant, as follows:
“You are further instructed that if you believe from a preponderance of the evidence that, before the trial of this case began, the defendant in good faith offered and was ready and willing to marry the prosecuting witness, Effie Coe, and if you further believe that the prosecuting witness refused to marry defendant, then it would be your duty to find the defendant not guilty.”
The jury found the defendant guilty.
The statutes of this State provide that “no person shall be convicted of seduction upon the testimony of the female unless the same be corroborated by other evidence.” Kirby’s Digest, § 2043. It must be corroborated as to the promise of marriage and the sexual intercourse. Polk v. State, 40 Ark. 482; Keaton v. State, 73 Ark. 265. It cannot be corroborated by itself — her own testimony. The letters of the defendant were no corroboration. They were a part of her evidence, and their probative force was due to her testimony. By her testimony they were made admissible; it being the only evidence that they were letters of the defendant. A conviction upon such evidence would be the offspring of her own testimony, a result forbidden by the statute.
The instruction asked by the defendant was properly refused. The proposal of the defendant to Effie Coe to marry did not exonerate him. The statute of this State provides: “If any man against whom a prosecution has begun * * * for the crime of seduction shall marry the female alleged to have been seduced, such prosecution shall not then be terminated, but shall be suspended; provided, that if at any time thereafter the accused shall willfully and without such cause as now constitutes a legal cause for divorce desert and abandon such female, then and at such time said prosecution shall be continued and proceed as though no marriage had taken place between such female and the accused.” Kirby’s Digest, § 2044. Under this statute the marriage does not extinguish the offense. The proposal of marriage cannot, of course, have as great effect. After having deceived, disgraced, and humiliated her, he cannot escape the penalties of the offense by a mere proposal to marry. Marriage, which can only be by her consent, suspends the prosecution. The suspension, of the prosecution depends upon her consent to marry. It is therefore obvious that a proposal to marry which has been rejected by her cannot render him guiltless. After the prosecution has begun, he can secure no relief, except-as provided by the statute, a dismissal of the prosecution by the State or court or acquittal.
The testimony of Effie Coe being uncorroborated, the judgment of the trial court is reversed, and the cause is remanded for a new trial. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the Boone Chancery Court, The two questions discussed by counsel are, first, did the executrix under the will of Matthew Bristow have power to convey a fee in the land, and, second, if she had such power, was the deed made by her and Anderson made under such power? or, in other words, did she by such deed execute the power ?
It is very clear that Mrs. Bristow took only a life estate under the will. But whether she had under the will power to convey the fee for the purposes therein named, we need not determine, for to our minds it is plain that, if such power, existed, it was never executed.
The question of whether a deed is made in execution of a power contained in a will is one of intention, to be gathered from the terms of the deed and from the circumstances under which it was made. It is not absolutely essential that a deed should refer to the power in order to execute it; but when the deed is silent on that point, and the maker has an interest in the land that will pass by the deed, without regard to the power, this, if not conclusive, is a circumstance tending strongly to show that there was no intention to execute the power. Ridgely v. Cross, 83 Md. 161; Patterson v. Wilson, 64 Md. 193; Lee v. Simpson, 134 U. S. 572;. Blake v. Hawkins, 98 U. S. 315; Lanigan v. Sweany, 53 Ark. 185.
. Now, in this case Anderson, one of the devisees under the will, joined in the deed with Mrs. Bristow. If the intention was to execute the power in the will, there was no occasion for one of the devisees to join in the deed. The fact that one of the devisees joined in the deed with the widow, taken in connection with the fact that they sold the land for about one-third of its actual value, that the widow did not convey as executrix, and that the deed makes no reference whatever to the power, goes to show that they were only selling their individual interests in the land, and that there was no intention to execute the power. The language of the deed clearly indicates this, for the grantors therein covenant that they are “lawfully seized of said land as heirs and legatees of Matthew Bristow, deceased.”
On the whole case, we are of the opinion that there was no execution of the power contained in the will, and that the grantee under the deed took only the individual interests of Mrs. Bristow and Anderson in. the land. It follows that the judgment of the chancellor was right, and it is therefore affirmed. | [
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BattlS, J.
Cordelia Coker, by her next friend, sued the Choctaw, Oklahoma & Gulf Railroad Company, and stated her cause of action as follows:
“Further complaining, the plaintiff states on the 24th day of April, 1901, she was at work on her father’s farm, in a field at. a point between mile posts numbered 206 and 207, along said railroad track, and that her father and next friend, the said James E. Coker, was in the field near her ploughing a horse, and that about five o’clock of the afternoon of the said 24th day of April, 1901, the west-bound-passenger train of the said defendant, Choctaw, Oklahoma & Gulf Railroad Company, on its regular run along its said railroad track at and near the said field aforesaid, ran by where the said plaintiff and her said father were at work, and in so passing and approaching the point last aforesaid the said train of cars with its locomotive was, by the agents and servants of the said railroad company then and there being'in charge thereof, so negligently, carelessly and improperly operated, run and conducted on said road as to cause the said horse, then and there being ploughed by the said James E. Coker, to take fright to such an extent that he broke loose'from all control, and ran away, and in his fright knocked down the plaintiff with great force, dragged the said plough against and over her body, causing the blade thereof, to cut, gash, and wound the plaintiff in the thigh, and dragging her along the ground, and otherwise bruising and wounding the body of her, the said plaintiff; and all this, without any default, negligence or carelessness on the part of her, the said plaintiff. That said negligence consisted oí a failure of the said defendant’s agents and servants to ring the bell or blow the whistle at the public crossing next near the plaintiff’s field, -and when the said train had so carelessly entered the said field and when opposite or near the plaintiff, and seeing the said horse already frightened, they unnecessarily blew the whistle, and gave additional fright to the said horse.”
The defendant answered, and specifically denied each allegation of the complaint. The plaintiff recovered judgment.
The evidence adduced at the trial tended to prove the following facts:
“Plaintiff, at the time of the injury complained of, was working with her father and others in her father’s field. The road of defendant ran through the field. The right of way was one hundred feet wide, and inclosed by a fence. The road approached the field from the east, on a curve from a northerly direction, and became straight about the time it entered the field; then turned again on a slight curve to the north. The field was nearly a half mile wide.” “On the day of the accident, defendant’s west-bound train, running about thirty-five miles an hour, passed through the field.” Plaintiff’s father was plowing in the field near the railroad. His horse became frightened by the approach of the train, and the father was with much effort holding him until the whistle of the train was blown after it had passed him about seventy-five" feet, when the horse ran away, dragging the plow after him, running over plaintiff and injuring her. She was knocked down, and the plow caught her; and she was dragged some distance, and severely wounded in the thigh. The evidence as to the fireman or engineer seeing the father and the horse just before or at the time the whistle was blown is in conflict.”
The court gave to the jury the following among other instructions over the objections of the defendant:
“The law requires the defendant to ring the bell or sound the whistle eighty rods before reaching a public crossing, and to continue doing one or the other until the crossing is passed. Under this statute the sounding of the whistle at any point'required by the law will not make the defendant liable for any injury that may ensue from it unless the operatives of the engine who sound the whistle know, or reasonably knew, that by so doing injury will reasonably and proximately ensue.”
And refused to give the following at the request of, the defendant:
“You are instructed that defendant’s engineer was not guilty of negligence in blowing the whistle in Coker’s field, unless you also find that said engineer knew or had reason to believe that the blowing of said whistle would frighten the horse driven by Coker.”
The instruction given was calculated to mislead the jury. They might have concluded from.it that the operatives of the engine should have seen Coker and his horse at or about the time the whistle was blown, and reasonably have known that the horse would run away and injure some one. The instruction refused should have been given to prevent such an error.
“A railroad company has authority to operate its trains in the usual and ordinary way, including the right to make all noises incident to the working of its engines and cars, and also the right to give the usual and proper signals of danger, as by the sounding of whistles or the ringing of bells; and, while exercising such right in a reasonable and prudent manner, the railroad company is not liable for injuries occasioned by horses” in adjoining fields taking fright at such noises. But if the operatives of the engines of trains discover a horse frightened and attempting to run away with a wagon or plow, or threatening to do any other injury, they should recognize the situation, and refrain from doing any heedless, unnecessary or wanton act which will increase the fright or danger; and if they failed to do so, the railroad company will be liable for damages occasioned thereby.
Reverse and remand for a new trial. | [
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Battle, J.
Son Calhoun, by his guardian, Anderson Calhoun, brought a suit in equity against E. H. Vance, Jr., to recover money in his hands claimed by Son Calhoun. He states in his complaint that he is a minor, and by his next friend recovered a judgment against the St. Louis, Iron Mountain & Southern Railway Company at the February, 1902, term of the Hot Spring Circuit Court, for $204; that the judgment was paid in the month of August, 1902, to the clerk of the circuit court; that the defendant obtained the money from the clerk under a pretended claim of purchase from Son Calhoun, a minor, which, if made, was by him and his guardian j ointly and severally avoided; and that the defendant refuses to pay the money so collected to the plaintiff. He asked that the defendant be required to account for the money so collected, and for judgment therefor.
The defendant answered, and stated that he had purchased the judgment recovered by the plaintiff, and that he was entitled to the money collected thereon by virtue of the purchase.
The facts, in part, are as follows: Son Calhoun is a minor. His father allowed him to make his own contracts, and collect and use the money due him on such contracts. He paid his father for board and lodging. He was employed by the St. Louis, Iron Mountain & Southern Ry. Co. He rendered services for which it was owing him the sum of $24. The company discharged him without paying this amount. The defendant was and is a practicing attorney at law. Son Calhoun employed him to sue the railroad company for his wages arid the penalty for discharging him without paying the same. He agreed to pay defendant one-half he recovered for his services. His attorney brought an action for him, by his next friend, against the railroad company before a justice of the peace to recover the $24 due for wages and' the penalty, and recovered judgment for the $24 and $37.50 for penalty on account of nonpayment of the wages on the day of discharge. The railroad company appealed from the judghiept to the Hot Spring Circuit Court, and he recovered judgment in that court against the railroad company for $24 for wages,' and for $180 penalty, amounting in the aggregate to $204. On the 15th of February, 1902, he sold this judgment to the defendant for $24. The defendant collected on the judgment on the first of September, 1902, the sum of $209.10, the $204 and interest due thereon. He, Son Calhoun, disaffirmed the sale to the defendant, and brought this suit to recover the money collected by Vance. Evidence was adduced to show equitable grounds of recovery. The trial court gave the defendant credit for one-half of the judgment for fee for services, and for the $24 paid for the judgment, and rendered a decree against him in favor of the plaintiff for $79-75-
The father of Son Calhoun permitted him to malee bis own contracts, collect his wages, and appropriate them to his own use. Until this license is revoked, his wages were his own property, and he is entitled to recover them. Bobo v. Bryson, 21 Ark. 387; Fairhurst v. Lewis, 23 Ark.435; 21 Am. & Eng. Enc. Law (2 Ed.), 1059, 1060, and cases cited. Being a minor, Son could avoid the sale mfide by him to the defendant, which he did do, and recover the .amount collected on the judgment, less the amount' owing by him to the defendant. St. Louis, Iron Mountain Ry. Co. v. Higgins, 44 Ark. 239; Kansas City, Pittsburg & Gulf Railroad Co. v. Moon, 66 Ark. 409.
Decree affirmed. | [
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