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W.H. “Dub” ARNOLD, Chief Justice.
Appellant Andrew Raymond Engram appeals ce. judgment of conviction and sentence of death for the June 5, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock on the date of the offense. Appellant’s execution date was set for June 5, 1999, by the trial court. That date was stayed by order of this court on May 27, 1999, pending appeal.
Appellant filed a timely motion for new trial, which was denied by the trial court. Following the denial of the motion for new trial, appellant filed a notice of appeal of his conviction and sentence. Appellant raises the following six points on appeal:
1) The evidence was insufficient to sustain the verdict;
2) The court denied appellant’s constitutional right to confrontation by refusing to allow him to cross-examine the medical examiner about previous disciplinary action;
3) The court erred in overruling appellant’s objection to a police officer’s testimony that he did not believe appellant was truthful;
4) The overlap between the capital-murder and first-degree murder statutes created an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner;
5) The trial court erred in submitting as three separate aggravating circumstances under Ark. Code Ann. § 5-4-604(3) (Repl. 1997) appellant’s three prior convictions for violent offenses;
6) The trial court erred in admitting victim-impact evidence because such evidence is irrelevant under Arkansas sentencing procedures to the considerations for imposition of the death penalty.
We are not persuaded that any of these issues has merit, and we affirm.
I. Sufficiency of the Evidence
The appellant challenges the adequacy of the DNA-identity evidence introduced against him at trial. He contends that DNA evidence alone does not constitute sufficient evidence to support his conviction. At trial, the State’s DNA expert testified that the probability that the semen recovered from the victim belonged to a person other than the appellant was one in 600 trillion. The State contends that the appellant failed to preserve this argument on appeal, as he did not make a specific objection to the sufficiency of the DNA evidence below, but rather made a general objection to the sufficiency of the evidence in that he felt the State had failed to “identify” him as Ms. White’s killer.
We have held that in order to preserve a challenge to the sufficiency of the evidence, a defendant must make below the specific challenge he seeks to make on appeal. E.g., Conner v. State, 334 Ark. 457, 464, 982 S.W.2d 655, 658 (1998). When looking at the record in this case, it is apparent that appellant actually did not make a specific objection to the sufficiency of DNA evidence alone to prove identity. Further, appellant has cited no authority which supports his contention that DNA evidence alone cannot sufficiently prove identity.
As a general rule, where it is not apparent without further research that the argument is well-taken, we do not consider such arguments on appeal. Matthews v. State, 327 Ark. 70, 74, 938 S.W.2d 545, 547 (1997). Still, although appellant failed to offer any authority or convincing argument in support of his position that the DNA evidence alone was insufficient to prove identity to support his rape and capital-murder convictions, given that the appeal involves a sentence of death, we will address the merits of appellant’s argument. See Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).
When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the fight most favorable to the State. See Sublett v. State, supra; Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or cir cumstantial. See Gillie v. State, 305 Ark. 296, 808 S.W.2d 320, (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).
The appellant has complained that the DNA evidence was insufficient, alone, to prove his identity. Appellant contends in support of his argument that the DNA laboratory was not certified and that this lack of certification significantly weakened the credibility of the results. Such a complaint, which actually has little to do with the sufficiency of the evidence and more to do with the weight of said evidence, is actually a dispute over credibility. In regard to questions of credibility, on appeal, this court views the evidence in the light most favorable to the State, recognizing that it is the jury’s province to resolve credibility disputes. See, e.g., Wilson, 332 Ark. 7, 11, 962 S.W.2d 805, 807. This principle is no less applicable to DNA evidence, when its credibility is being challenged. See Johnson v. State, 326 Ark. 430, 446-47, 934 S.W.2d 179, 186-87 (1996), cert. denied, 520 U.S. 1242 (1997).
Next, appellant wrongly asserts that the DNA evidence was the sole proof of his identity as the perpetrator. His assertion seems to ignore two additional pieces of evidence introduced at trial that at least contribute to proof of his identity. The first is the state trooper’s eyewitness encounter with the appellant at the crime scene on the very night of the crimes; and the second is the appellant’s implausible explanation for being there, given that his time card from his job at Luby’s proved that he did not work that evening. Although circumstantial proof, both are evidence of identity and, in turn, guilt. See, e.g., Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999) (proximity testimony); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989) (same); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997) (false explanation of suspicious circumstances). Further, the state presented circumstantial hair and fiber evidence linking the appellant to the crime. While the DNA evidence is substantial standing alone, it is undeniably sufficient when considered with the additional circumstantial evidence adduced at trial.
This court has, since Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) (holding that DNA evidence is no longer con sidered “novel scientific evidence”), consistently accepted DNA evidence as proof of guilt. See, e.g., Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996). The appellant’s challenge to the sufficiency of the DNA evidence suggests that these authorities must be rejected; however, he' has faded to provide any compelling reason for so doing.
Finally, in an attempt to prove that the evidence was insufficient to support his convictions, the appellant points to the absence of certain evidence such as fingerprint evidence, and to the inconclusiveness of other evidence linking him to the crimes. In so doing, he actually demonstrates conflicts in the proof for the jury to resolve — that is, to consider and reject or accept. See, e.g., Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).
Based on the above, viewing the evidence in a light most favorable to the State, we hold that substantial evidence exists to support the appellant’s rape and capital-murder convictions.
II. Cross-Examination Regarding Previous Disciplinary Action against the Medical Examiner
We have held that a circuit court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. See Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). This court will not disturb the trial court’s discretion in such matters unless that discretion was abused. Id. To determine whether cross-examination restrictions infringed upon an appellant’s confrontation rights, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to the appellant. Id. Such prejudice is not presumed, but must be demonstrated. Id.; see also Marta v. State, 336 Ark. 67, 80-81, 983 S.W.2d 924, 929 (1999).
In this case, prior to trial, the trial court ruled that the appellant could not cross-examine the medical examiner, Dr. Sturner, concerning an allegation of supervisory misconduct in a previous position he held in another state. The appellant apparently sought to discredit the State’s DNA evidence by suggesting that the samples taken from the victim for DNA testing were in some way wrongly collected, at least in part, due to the previous allegation of miscon duct against Dr. Sturner for allegedly failing to adequately supervise his agents during certain forensic autopsies.
The appellant does not dispute that the swabs which matched his DNA were taken from the victim, nor does he dispute that they were taken in a way that caused them to yield a false match to him. In other words, while Dr. Sturner’s presence at, and supervision of, the swab coEection in this case might have some relevancy, the appeEant does not explain how it would have aided in casting any doubt upon the validity of the DNA evidence. Further, he faüs to explain how his proposed cross-examination of Dr. Sturner about his supervision in other cases in another state would have done so. In the absence of a chain-of-custody argument, which the appeEant has not made, it is impossible to discern what fact of consequence would have been made more or less probable by an aEegation of previous supervisory misconduct on Dr. Sturner’s part.
Moreover, appeEant was not prevented by the trial court from conducting any cross-examination of Dr. Sturner. In fact, he cross-examined both Dr. Sturner and the technician who coEected the swabs about the circumstances of the swab coEection and the former’s supervision of the latter. Yet, even having done so, he stiE fails to explain its relevancy for casting doubt upon the DNA evidence.
In short, appeEant has failed to demonstrate any prejudice to his confrontation rights by his preclusion from questioning Dr. Sturner about previous aEegations of supervisory misconduct in another state. We hold, therefore, that the trial court did not abuse its discretion in this regard.
III. Police Officer’s Testimony Regarding Truthfulness of Appellant
At trial, State Trooper Mike Dawson testified that on the night in question, he arrived at the Sears parking lot around midnight to find the appeEant walking near the tent where the victim’s body was later found. Because of the late hour, Trooper Dawson sought to determine appeEant’s reason for being there. AppeEant told Dawson that he had just gotten off work at Luby’s and was waiting for a ride. Dawson testified that he knew the cafeteria closed at 8:00 p.m. Fie added that whEe he assumed Luby’s employees might have to work later than eight o’clock, he “didn’t feel like [Engram] was being truthful.” Counsel for appeEant immediately objected to Dawson’s observation about appellant’s truthfulness and moved for a mistrial, arguing that such testimony was improper. The prosecutor insisted that said comment was unsolicited and that, at any rate, it could be admitted as a present sense impression. The trial court overruled appellant’s objection and denied his motion for a mistrial. Appellant contends that this ruling was in error.
We have held that a trial court has wide latitude in its discretion to grant or deny a mistrial and will not be reversed absent an abuse of that discretion. See, e.g., Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). Moreover, a mistrial should be granted only where an admonition could not cure any prejudice. Id. Finally, this court will not reverse in the absence of a showing of manifest prejudice. See Marta, 336 Ark. at 77-78; 983 S.W.2d at 929. Under these standards, the trial court clearly did not err.
First, the State was able to demonstrate through other evidence, appellant’s timecard from his employer (Luby’s), that the appellant in fact was lying when he told Trooper Dawson that he had just gotten off work at Luby’s. The timecard revealed that appellant had not worked at all on the evening in question. Under these circumstances, it was not error to deny the appellant a mistrial for the trooper’s unsolicited remark about the appellant’s level of truthfulness. See Ashley, 310 Ark. at 578, 840 S.W.2d at 794 (no error found from the denial of a mistrial in similar circumstances where the defendant’s remarked-upon truthfulness was later proven by other evidence). Further, if the trooper’s remark was prejudicial at all, an admonition would have cured any prejudice. See, e.g., Aaron v. State, 312 Ark. 19, 23-24, 846 S.W.2d 655, 657 (1993). However, the appellant did not seek an admonition. We have held that we will not reverse a trial court for failing to do what it was never asked to do. See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999); Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995).
The appellant has failed to demonstrate any prejudice suffered as a result of Trooper Dawson’s unsolicited remark. The appellant does contend that the jury, during deliberation, asked for a transcript of the trooper’s testimony, and that this fact, in and of itself, proves that the jury was placing critical importance on his testimony. However, when researching the record, it was discovered that the jury had contemporaneously asked for a transcript of Dr. Sturner’s testimony. Therefore, the appellant’s argument that the jury was placing critical importance on the testimony of one witness, Trooper Dawson, loses any persuasive value it may have otherwise had. We hold that there was no abuse of discretion on this point.
IV Overlap between Capital-Murder and First-Degree Murder Statutes
Appellant contends that the overlap between the capital-murder and first-degree murder statutes creates an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner. The appellant concedes that this court has resolved this issue unfavorably to his position in numerous cases. We have most recently done so in Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). This court has found no overlap problem when analyzing the capital and first-degree murder statutes, emphasizing that it is impossible to avoid the use of general language in the définition of offenses. See, e.g., Jones v. State, 328 Ark. 307, 942 S.W.2d 851 (1997).
The appellant suggests that this court has not clearly addressed the overlap question, citing Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093 (1981), Beck v. Alabama, 447 U.S. 625 (1980), and Roberts v. Louisiana, 428 U.S. 325 (1976). However, this suggestion by appellant is refuted by his own citation to Ruiz, in which this court clearly explained why any overlap does not run afoul of the principles of Beck and Roberts. In Ruiz, we explained that
[OJur statutory scheme is not flawed as were those of Alabama and Louisiana. Under Alabama law the jury could not consider lesser included offenses in capital crimes and was limited to either an acquittal or a conviction, in which case death was mandatory, and, hence the jury was deprived of the “third option” of a lesser punishment, which the United States Supreme Court held to be unconstitutional. In Roberts, Louisiana’s statutory scheme was found to be deficient. The jury in Louisiana was always instructed as to lesser included offenses (even where the evidence failed to support such a finding), the error of Louisiana’s procedure being that if the jury found both elements of first degree murder, i.e., that the accused had a specific intent to kill while engaged in a felony (in this case robbery) the death penalty was mandatory. In contrast, our scheme binds the jury in no such fashion, as it is free to impose life without parole in preference to death, notwithstand ing a finding of guilt on capital felony murder charges. Moreover, if the evidence is such that the jury is instructed on lesser included offenses, it may lessen the punishment accordingly as its further option.
Ruiz, 273 Ark. at 106, 617 S.W.2d at 13.
Finally, the appellant’s argument is predicated on a false presumption — that a jury is making (or must make) a choice between life and death at the guilt phase — which is, as evidenced by the Ruiz case, not true under the Arkansas capital-punishment scheme. This presumption appears to be founded on the appellant’s misinterpretation of the underlying rationale of Beck. The point of Beck, as we have noted previously, is to ensure that a jury is not given a choice only between a conviction for which the defendant must receive the death penalty or an acquittal. See Kennedy v. State, 338 Ark. 125, 129-30 & n.1, 991 S.W.2d 606, 609-10 & n.1 (1999) (per curiam).
The Arkansas capital-punishment scheme avoids such an arbitrary and capricious choice, as the Ruiz court noted, because the jury may ultimately impose a life sentence in preference to death at the penalty phase, even if it finds a defendant guilty of the capital crime. Ruiz, 273 Ark. at 106, 617 S.W.2d at 13; see also Wilson v. State, 271 Ark. 682, 684-86, 611 S.W.2d 739, 740-41 (1981); Camargo v. State, 327 Ark. 631, 642, 940 S.W.2d 464, 467 (1997) (explaining that any overlap between statutes does not create a vagueness problem because constitutionally required narrowing is performed at the penalty phase).
Concisely stated, the fact that the substantive homicide statutes may reflect some overlap in charging at the guilt phase of capital trials simply does not implicate the principles of Beck; we have already addressed and settled this issue in numerous previous cases.
V. Prior Convictions as Aggravating Circumstances
The State proved that the appellant had committed three prior felonies which involved the use or threat of violence to another person; and, the jury was charged by the trial court that it could find an aggravating circumstance for each of those prior felonies, which it did. The appellant now disputes that the jury could be so instructed. Although he concedes that he did not raise this issue below, he alleges that he may do so for the first time on appeal because it concerns a matter essential to the jury’s death-penalty deliberations. The State contends that the jury’s death-penalty deliberations were correct and that they could not have been affected by any alleged mislabeling of the appellant’s three prior violent felonies as three aggravating circumstances rather than as three felonies supporting one aggravating circumstance. We agree.
Clearly, the jury did not consider an invalid aggravator or fail to correctly complete the forms it was given. Moreover, the appellant does not even dispute that the jury could consider all of his prior violent felonies under Ark. Code Ann. § 5-4-604(3). Rather, he only denies that they could each be described in the instructions as a separate aggravating circumstance. He does not explain why they could not be so described, except to say it is “improper and unprecedented. ”
While appellant suggests that previous cases involving defendants with multiple prior violent felonies involved single aggravating-circumstance submissions, other cases suggest the opposite. See, e.g., Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987) (discussing claim of error in using previous homicides as aggravating circumstances under former version of statute). In fact, in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002 (1997), we noted that the State had submitted three prior felonies and pecuniary gain as aggravating circumstances. We described the latter as the “fourth aggravator” and noted that the jury found “all four” aggravating circumstances — implying that each of the violent felonies was a separate aggravating circumstance under Ark. Code Ann. § 5-4-604(3). Notwithstanding, none of the cases prior to this case have directly decided the question.
The appellant’s argument amounts to a distinction without a difference, in that either way it is described — whether it be as one aggravating factor or three separate factors — the jury is still able to consider the existence of three prior felony convictions. This fact is undisputed. As we have previously explained in concluding that a prior violent felony can have occurred after the capital crime, the purpose of the aggravator is to advise the jury of a defendant’s propensity to violence — that is, to strike again. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, 513 U.S. 1162 (1995).
The fact is that the appellant had “struck” on three previous occasions, and his jury was instructed consistently with this purpose — that each violent felony was an aggravating circumstance of his capital crime. The plain purpose of the aggravator itself sufficiently answers the appellant’s hyperbolic concern that the State might “pad” the number of aggravating circumstances. Again, it amounts to a distinction without a difference, as the jury could obviously, and indisputably, consider each of the prior violent felonies, either way; therefore, the appellant is unable to demonstrate that the separation of the priors as aggravators in any way prejudiced him. As such, we hold that it was not error for the trial court to allow each prior felony conviction to be labeled as a separate aggravating circumstance.
VI. Admission of Victim-Impact Evidence
As in point IV, above, the appellant again concedes that this court has resolved this issue unfavorably to his position in previous cases, as well. Notwithstanding, he contends that this court should declare victim-impact evidence irrelevant under the Arkansas capital-sentencing scheme, relying upon the views of the dissenting justices in Noel v. State, 331 Ark. 79, 95-102, 960 S.W.2d 439, 447-51 (1998) (Newbern, Imber, and Thornton, JJ., dissenting). Appellant’s argument is not persuasive for several reasons.
First, appellant’s argument fails to meet the high burden required to show that the adherence to the principle of stare decisis in this matter is manifestly unjust or patendy wrong, see, e.g., McGhee v. State, 334 Ark. 543, 546, 975 S.W.2d 834, 835 (1998), particularly in fight of the fact that we rejected this argument only two years ago in Noel. See also Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).
Next, the General Assembly has unequivocally declared that victim-impact evidence is relevant to a jury’s determination of the appropriateness of the death penalty. See Ark. Code Ann. § 5-4-602(4) (Repl. 1997); Noel, 331 Ark. at 93-94, 960 S.W.2d at 447. The appellant argues that § 5-4-603 (Repl. 1997) has no place in its required finding for victim-impact evidence. This argument is mis placed. The fact that the jury is not called upon to find that victim-impact evidence existed says nothing about whether such evidence is relevant to its deliberations. Simply put, a jury may consider victim-impact evidence without making any findings about it, just as a jury might consider motive in returning a general verdict. In both circumstances, the jury may consider evidence relevant to the ultimate issue it must decide, without being required to return an express finding about that evidence.
Only through the legislature could the consideration by capital juries of victim-impact evidence be eliminated from the capital-sentencing scheme. This court has rejected an invitation to do so in Lee, supra, where we explained that, due to the virtually unlimited relevancy of mitigating evidence, “the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether to recommend that the death sentence be imposed.” Lee, 327 Ark. at 703, 942 S.W.2d at 236; see also Noel, 331 Ark. at 92, 960 S.W.2d at 446 (quoting Lee).
The victim-impact evidence admitted in this case was precisely the type discussed in Payne v. Tennessee, 501 U.S. 808 (1991), and determined to be appropriate by the General Assembly in adopting § 5-4-602. See, e.g., Nooner v. State, 322 Ark. 87, 108-09, 907 S.W.2d 677, 688-89 (1995), cert. denied, 517 U.S. 1143 (1996). As in Nooner, the testimony at issue in this case was the testimony from family members of the victim, her parents, who are certainly persons “profoundly impacted by [her] death.” Nooner, 322 Ark. at 109, 907 S.W.2d at 689.
In short, the admission of victim-impact evidence in this case was consistent with federal and state law and was properly allowed.
VII. Rule 4-3 (h) Compliance
In accordance with Ark. Sup. Ct. R. 4-3 (h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found.
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J. Fred Jones, Justice.
This is an appeal by Raymond Tipps from a summary judgment for $1,425 rendered by the circuit court as rental money due under a lease entered into by Tipps as lessee and the appellee, L.C. Mullis, as lessor.
The facts appear as follows: Tipps and Mullis entered into a written lease agreement under which Tipps leased a store building in McGehee, Arkansas, from Mullis at $75 per month for a period of five years ending on June 30, 1973. Tipps vacated the premises in December, 1971, and Mullis filed suit seeking a declaratory judgment adjudicating the rights of the parties and for judgment of amounts due under the lease.
The case was tried before a jury and at the conclusion of the evidence Mullis moved for a directed verdict and the motion was denied. The jury was unable to reach a verdict and the trial court declared a mistrial. Before the case was reset for a new trial, Mullís filed a motion for summary judgment to which the appellant responded. The trial court granted appellee Mullis’s motion and awarded summary judgment in his favor in the amount of $1,425, together with interest and costs.
The appellant Tipps has designated the following points he relies on for reversal:
“The trial court erred in allowing appellee to move the court for summary judgment after the court had already denied appellee’s motion for directed verdict.
The court erred in granting appellee’s motion for summary judgment because:
A. Factual issues existed which should have been resolved by a jury trial, and;
B. The court, by construction, varied the literal and express language of the parties’ lease.”
We find no merit in appellant’s first assignment. It is a matter of common judicial knowledge that in many instances motions for directed verdicts are denied and then judgment entered on motion notwithstanding the verdict of a jury. The propriety of the trial court in discharging the jury in this ease is not questioned. (Ark. Stat. Ann. § 27-1735 [Repl. 1962]). Under Ark. Stat. Ann. § 27-1736 (Repl. 1962) the case stands ready for a new trial following the discharge of a jury. This section reads as follows:
“In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately or at a future time, as the court may direct.”
This section does not mean that the case may or may not be tried again, it means that the trial court can direct when the cause is to be tried, immediately or at a future date, not whether it can be tried. Gregory v. Colvin, Judge, 235 Ark. 1007, 363 S.W.2d 539 (1963). We are of the opinion that the trial judge found and properly applied the law as to the appellant’s first point. We quote from the trial court’s opinion and adopt his language as our own. In the trial court’s written opinion he says:
“What then is the status of a case after a hung jury? In C.J.S., Volume 89, at paragraph 482, citing as authority City of Woodward v. Caldwell C.C.A. Okla. 86 F. 2d 567, it is said:
‘After the jury have been discharged for failure to agree, the case is terminated with no issue determined and stands as if no trial had been had, and is ready for retrial immediately or at a future time as directed by the court. ’ That which I have underlined is almost identical language employed in 27-1736 Arkansas Statutes Annotated. Further, ‘a mistrial is often defined as being equivalent to no trial, certainly there has been no final determination of petitioner’s cause of action.’ Gregory v. Colvin, 363 S.W. 2d 539.”
We hold, therefore, that when the trial court properly dis charges a jury because of its inability to agree on a verdict, the same case stands ready for a completely new trial on all issues and subject to the same motions and procedure as if no trial had ever been had.
The conclusion we have reached on the appellant’s first point disposes of the question of the propriety of the trial court in entertaining the appellee’s motion for summary judgment, and we are of the opinion that the trial court did not err in granting the motion for summary judgment in this case.
The summary judgment procedure under Ark. Stat. Ann. § 29-211 (Repl. 1962) is now so well established in Arkansas little time need be devoted to it here. It is an adoption of Rule 56 of the Federal Rules of Civil Procedure and provides as follows:
“A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits, for a summary judgment in his favor upon all or any part thereof.”
We do not agree with the appellant’s contention that factual issues existed which should have been resolved by a jury trial, and that the trial court varied the express language of the lease by erroneous construction. The appellee pled the lease agreement between the parties and alleged that appellant had abandoned the leased premises and refused to pay the monthly rental. He sought a declaratory judgment adjudicating the respective rights of the parties under the lease, and prayed judgment for the amount due under the terms of the lease. The appellant answered that the leased premises had become untenable and unfit for occupancy; that appellant was well aware of the condition of the premises and had refused to place such premises in tenable condition. The appellant relied upon the following portion of the lease agreement:
“DESTRUCTION OF PREMISES: In the event that the building or premises herein leased shall, during the term of this lease, become destroyed or injured by fire or any other cause or casualty so as to be rendered untenable, and such injury shall not be repaired by Lessor within sixty days thereafter, it shall be optional with either party hereto to cancel this agreement and terminate this lease, and in such case such cancellation shall be in writing, and the rents shall be paid to the date of such fire or casualty. ...” (Our emphasis).
The appellant in his answer only alleged that the appellee permitted the leased premises to become untenable. He argues that the phrase “any other cause” in the lease contract includes ordinary deterioration of the building. We agree with the trial court’s interpretation of the lease in that the above italicized portion related to becoming destroyed or injured by fire or any other cause or casualty so as to be rendered untenable, did not relate to untenability because of normal wear and tear.
The lease in the case at bar contained a provision pertaining to repairs as follows:
“REPAIRS AND NOTICE: The said Lessee agrees to quit and deliver up the said premises to Lessor peaceably and quietly at the end of the aforesaid term, or at any previous termination of this lease for any cause, in as good order and condition and state of repair, reasonable wear and tear alone excepted, as the same now is or may be placed or put into by Lessor. Lessor agrees to make all necessary repairs to the roof and the exterior of said building, excluding damage to any windows or doors, whether by breakage or otherwise. Lessee agrees to make all minor repairs becoming necessary on account of the use of said premise? to the interior of said leased premises, and to make all necessary repairs for damage, by breakage or otherwise, to all windows and doors in said building. The repairs by Lessor, if necessary, shall be made upon notice in writing by Lessee of any such repairs required and Lessor agrees to have same fixed and repaired within seven days from the receipt of said notice or Lessee may have same repaired and deduct the cost of having same repaired from the rent. Lessor is not to be responsible for any damage from any faulty or leaky roof.”
In the appellant’s response to the motion for summary judgment, he concludes with a paragraph as follows:
“Defendant states that affirmative defenses to Plaintiff’s Complaint have been raised joining issues of fact as a matter of law. Specifically the Defendant has stated by answer that the premises were untenable and unfit for occupation. This is a defense to Plaintiff’s cause according to the terms of the lease.”
The appellant admitted that he gave no written notice of needed repairs to the building under this provision of the lease agreement, and certainly the lessor would have been entitled to sufficient time to make repairs after such notice. See Tedstrom v. Puddephatt, 99 Ark. 193, 137 S.W. 816. Furthermore, this provision of the lease only gave the lessee the right to make repairs and charge them against rent. It did not give him the right to terminate the lease agreement.
The judgment is affirmed. | [
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Conley Byrd, Justice.
The appellant, Sherry White, a high school cheerleader, beauty queen and model, was a guest in an automobile driven by her boy friend, the appellee Kenneth O. Hughes when a collision occured with an automobile parked partly on and partly off the freeway. The trial court submitted the issues to the jury in accordance with our guest statute, Ark. Stat. Ann. § 75-913 (Repl. 1957), which denies a recovery to a guest except for willful and wanton negligence. The jury found the issues in favor of appellee. For reversal appellant contends only that the guest statute, supra, is unconstitutional, being in violation of article 2, § 18 of the Arkansas Constitution and the equal protection clause of the United States Constitution.
The constitutionality of our guest statute was upheld in Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961 (1937), as against the argument that it contravened article 2, § 18 of the Arkansas Constitution. A similar statute has been upheld as against the equal protection clause of the United States Constitution in Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1919). Appellant recognizes the foregoing authorities, but as predicted by the case notes in 49 Notre Dame Law 446 and 48 Tul. L. Rev. 419, she suggests we should follow the lead of the Supreme Court of California in Brown v. Merlo, 8 Cal. 3d 855, 106 Cal. Rptr. 388, 506 P. 2d 212 (1973), and reconsider the inequities and hardships imposed upon innocent victims by the guest statute. In the Merlo case, supra, the California guest statute was held in violation of the equal protection clause. The Texas Court of Civil Appeals in Tisko v. Harrison, 500 S.W. 2d 565 (Tex. Civ. App. 1973), after criticizing the Merlo case, supra, concluded that the Texas guest statute did not violate the equal protection clause. The Supreme Courts of Kansas, Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362 (1974), Utah, Cannon v. Oviatt, — Utah —, 520 P. 2d 883 (1974), Idaho, Thompson v. Hagan, 96 Idaho 19, 523 P. 2d 1365 (1974) and North Dakota, Johnson v. Hassett, 217 N.W. 2d 771 (N.D. 1974), followed Merlo, supra, in striking down their guest statutes. The Supreme Courts of Iowa, Keasling v. Thompson, — Iowa —, 217 N.W. 2d 687 (1974), Colorado, Richardson v. Hansen, —, Colo. — 527 P. 2d 536 (1974), Oregon, Duerst v. Limbocker, — Or. —, 525 P. 2d 99 (1974) and Delaware, Justice v. Gatchell, — Del. —, 325 A. 2d 97 (1974), followed the Texas Court in Tisko v. Harrison, supra, in upholding their guest statutes.
Upon the authorities cited we cannot say that the guest statute, supra, has no fair and rational relation to the legislative objectives sought to be controlled and like the Delaware Court, Justice v. Gatchell, supra, we take the view that if the rule of Silver v. Silver, supra, the highest authority on the equal protection clause, “is to be changed and the strictures of the Fourteenth Amendment extended in this area of the law, we shall await the views of the United State Supreme Court on the subject.”
Affirmed. | [
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Conley Byrd, Justice.
The jury awarded compensation in this eminent domain proceeding in accordance with the testimony of C. V. Barnes, an expert witness called on behalf of appellees M. E. Witkowski, et ux. For reversal of the $155,-000 judgment the Arkansas State Highway Commission makes the following contentions:
“I. The court erred in denying appellant’s motion to strike the before value testimony of C. V. Barnes, expert witness for the landowners.
II. The court erred in allowing appellees to establish in the presence of the jury that an appraiser who had made an appraisal of the subject property for appellant was not called to testify.”
POINT I. The record shows that appellant condemned 79.35 acres which ran diagonally across appellees’ ownership of 269 acres. C. V. Barnes testified for the landowner arriving at a total before valuation of $363,000 and an after valuation of $208,000. After testifying that he placed an assemblage value on the property, the record on direct examination shows:
“Q. What is assemblage value, explain that to the jury, please, sir?
A. Well, assemblage value can be made up of a number of things. First, assemblage primarily talks about size of Two Hundred Sixty Nine Acre parcel of ground such as the Witkowskis had is more flexible and conducive to development than like say a forty acre tract of ground because there are certain fixed expenses that have to be written off in any development and the larger the development, the more you have to write the fixed expenses off of. Also, when you have a development large enough to take advantage of multi-family and commercial use, why that goes into the element of assemblage.
Q,. So that . . .
A. In a Forty acre tract, it would be very, very hard to get commercial and multi-family and single family all on one tract of ground, so that when you get a large acreage that comprised of seven forty acre tracts, so to speak, you do have this capability.
Q. So the size of the property in other words, the size of this particular piece of property does increase its value in your opinion?
A. In my opinion, yes, sir.”
On direct in showing how he arrived at his before value the witness testified as follows:
“Q. All right, sir, so in looking at the trend and using that as a factor in determining the fair market value of raw land in this area, particularly Mr. Witkowski’s what did you come up with as to value per acre?
A. After making all of my studies and analysis, I came to the conclusion that Mr. Witkowski’s property on the raw land basis and in let’s say forty acre segments, more or less, had a value of a Thousand Dollars per acre.
Q. And you add to that, I believe you have already testified, you add to that . . .
A. Well, I didn’t ... let me back up and put it this way. I valued Mr. Witkowski’s property before the taking at Thirteen Hundred and Fifty Dollars an acre, and as I just said, I felt like based on my study of the sales and there were no sales out there of Two Hundred and Sixty Nine acres, hunted all over that end of the world to find anything comparable in size, most of the market data was of the sizes that we have talked about, so I came to the conclusion that in small parcels or smaller parcels that the value of the property was a Thousand Dollars and that the fact that over a period of some four or five years, he had put this Two Hundred Sixty Nine acres together into one parcel, thereby increasing its potential and adaptability and all kinds of things, that it had an assemblage factor of Two Hundred Dollars per acre.
Q. Over and above the Thousand?
A. Over and above the Thousand, and that the improvements that had been constructed on the property made a contribution of a Hundred and Fifty Dollars per acre to the property and that’s the way I got my Thirteen Hundred and Fifty Dollars per acre.
Q. Or Three Hundred and Sixty Three Thousand Dollars before market value.
A. That’s correct.”
On cross-examination the witness testified that the property remaining had a value of $1100 per acre. With reference to the assemblage value the record shows only the following:
“Q. I want to ask you about that assemblage business. How did you arrive at that Two Hundred Dollars an acre assemblage value?
A. Well, based on judgment and experience, I would say, and based on the fact that the, for example, let’s just talk about the three sales that Mr. Witkowski . . .
Q. I want to talk about them, go ahead.
A. One of the sales, of course, the highest price sale was for Eight Hundred and some odd dollars per acre and it had access. The other two sales, one at Five Hundred and the other at Six Hundred and Fifty Dollars, if I remember my figures about right, didn’t have access and so that right there would indicate to me that property with access was worth more than that without and when the last two sales, for example, were purchased, that increased their value because they then had the same access as all the rest of them, so that’s one of the factors that go to make up the assemblage value. Now, another thing is that when you talk about a small tract of ground like the Curtis sale which was the forty acre tract, the only potential for it would be . . . well, let’s put it this way, the potential for a forty acre tract is not as great as Two Hundred and Sixty Nine acres, when you get to Two Hundred and Sixty Nine acres, you’ve got a big enough unit to start planning and relating commercial and multi-family uses on the property where you cannot do that on smaller tracts and thus commercial potential created by putting smaller pieces together into a big block enhances its value.”
The witness’ definition of “assemblage” corresponds generally to the definition of “plottage” as defined in Black’s Law Dictionary 4th Ed. — i.e., “A term used in appraising land values and particularly in eminent domain proceedings, to designate the additional value given to city lots by the fact that they are contiguous which enables the owner to utilize them as large blocks of land.” However, this is a separate and distinct item from that which occurs when access is given to a landlocked tract because in the latter instance the enhancement in value accrues only to the landlocked portion whereas the enhancement from “assemblage” or “plottage” is to the whole property.
We readily recognize that “assemblage” or “plottage” is an element that may be taken into consideration in arriving at the valuation of property but like all other elements to which a damage factor is assigned an expert witness on cross-examination must demonstrate that he has some reasonable basis for assigning a particular amount of damage. In this instance the $200 figure comes to 20% of the value of the land and if we should accept his answer that the $200 figure is based “. . . on judgment and experience” then we know of no rationale that would prevent the same witness from using a $2000 figure.
However, at the outset we are confronted with the problem that the only motion to strike was made at the close of the direct examination of the witness. Of course, at that time the trial court properly refused the motion to strike, Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). The motion to strike was not renewed at the end of the cross-examination. Consequently, appellant is not in a position to claim error on the part of the trial court, Mo-Pac R.R. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569 (1972).
In its argument appellant proceeds on the theory that there is no substantial evidence to support the award but it cannot avail on this issue because at least one other expert arrived at a difference between a before and after value of $164,000 and it is not contended that he had no basis for his opinion.
POINT II. In accordance with our decision in Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W. 2d 27 (1972), the landowners submitted evidence to the jury to show that the Highway Commission had used a number of appraisers to appraise the property in question that were not called to testify. Admittedly this was done to raise the inference that the testimony of those witnesses would have been unfavorable to the condemnor. The Highway Commission recognizes the binding effect of the Phillips' case, supra, but requests that we reconsider the issue. While we cannot say that the trial court erred in following the Phillips ’ case, supra, we note that it was not a unanimous decision and that it is decidedly contrary to a majority of the other jurisdictions that have considered the issue — see Boyles v. Houston Lighting and Power Company, 464 S.W. 2d 359 (Tex. 1971); Lutsko v. Commonwealth Department of Transp., 13 Pa. Comwlth. 150, 318 A. 2d 361 (1974); and State Ex rel State Highway Com’n v. Texaco Inc., 502 S.W. 2d 284 (Mo. 1973). For cases involving related issues see Logan v. Chatham County, 113 Ga. App. 491, 148 S.E. 2d 471 (1966) and Whitcomb v. Whitcomb, 267 S.W. 2d 400 (Ky. 1954). Consequently, with respect to all cases being tried after the effective date of this opinion, we give the bench and bar notice that the issue involved in the Phillips’ case, supra, will be reconsidered.
Affirmed.
Fogleman and Holt, JJ., concur. | [
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RAY Thornton, Justice.
The issue in this case is whether stice. issued by the appellee, State Farm Fire & Casualty Company, excludes coverage of unintended or accidental results of its insured’s actions. The trial court granted State Farm’s summary judgment motion, finding that coverage was excluded. Because we have determined that State Farm’s policy language is ambiguous, we reverse and remand.
On May 17, 1996, fifteen-year-old Skye Thomas, the son of appellant, Mrs. Jeannie B. Norris, was walking home from school when Zack Rogers, aged fifteen, and two other boys confronted him. Skye “smarted off’ to Zack, who then hit Skye on his right jaw. Skye fell face first, without breaking his fall, onto the concrete pavement, fracturing the base of the skull and the bones around his left eye.
Zack and the other boys helped Skye up and walked with him to the nearby house of another friend. Skye’s left eye began to blacken and swell shut. When they arrived at the friend’s house, Zack gave Skye some pain medication and an ice pack for his eye. Zack, a small boy for his age, stated in his deposition that he did not intend to hit Skye so hard as to knock him over or cause him to hit the pavement.
Within a few hours, Skye was rushed to the hospital where he was diagnosed with mild to moderate brain damage. Skye sustained fractures to the base and roof of the left orbit, the left maxillary sinus, and the base of the skull. Dr. Charles Teo, the chief of pediatric neurosurgery at Arkansas Children’s Hospital, reviewed Zack’s deposition and formed an opinion within a reasonable degree of medical certainty that Skye’s injuries were caused by his head hitting the pavement and not by Zack’s punch to the right jaw. Four months later, Dr. Carolyn Patterson of Arkansas Children’s Hospital performed a neuropsychological evaluation, and determined that Skye suffered from long-term sequelae from the injury. Dr. Patterson diagnosed Skye with mild diffused inefficiency in the operations of the brain, short-term and long-term memory loss, and emotional instability.
Appellant filed an action against Zack Rogers through his mother, Zenda Griebel, who was insured under a homeowner’s policy written by State Farm. When State Farm contended it was not required to defend the litigation, or provide liability coverage for the injuries sustained by Skye Thomas, appellant filed an action for declaratory judgment against State Farm to have the trial court interpret the coverage language of the policy including its exclusionary provisions.
Appellant contended that State Farm owed a duty to defend and to provide liability coverage for the underlying tort action. State Farm was granted summary judgment on the basis of the exclusionary language. In reviewing summary judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1999); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Appellant brings this appeal from the grant of summary judgment, contending that the exclusionary language is ambiguous and against public policy.
Our law regarding the construction of an insurance contract is well setded. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates the coverage. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993).
We first consider the language of the policy that extends coverage to the insured. The policy defines “insured” as “you and residents of your household, any other person under the age of 21 who is in the care of a person described above.” The policy also defines “occurrence” as “an accident which results in: (a) bodily injury; or (b) property damage, during the policy period.” (Empha sis added.) The policy then provides, among other coverages, as follows:
COVERAGE M — MEDICAL PAYMENTS TO OTHERS. We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury. (Emphasis added.)
It is apparent that the policy language clearly extends coverage for an accident causing bodily injury.
We next consider whether coverage is excluded for unintended or accidental results from an occurrence that is (a) expected or intended, or (b) willful and malicious. We addressed the question whether insurance coverage for unexpected or accidental results could be excluded by language stating that the policy did not cover an injury which is expected or intended in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), and concluded that accidental or unintended results from intentional acts were not excluded.
In Talley, an altercation arose between a sixteen-year-old boy, Tony Davis, and two eighteen-year-old boys. The three boys attended a party. Davis consumed a considerable amount of alcohol, left the party late that evening, got a shotgun, and returned to the party. Davis shot out the rear windows of the two boys’ cars. He drove around the block and shot at the cars a second time. A third time, he shot toward the cars. The two boys were hit by the shotgun blast; one was totally blinded, and the other was partially blinded. Id.
Davis, the insured, had a homeowner’s policy that provided liability coverage for bodily injury caused by the insured. The exclusionary language stated that the policy did not cover “bodily injury . . . which is either expected or intended from the standpoint of the insured.” Id. We stated:
Many acts are intentional in one sense or another; however, unintentional results often flow from intentional acts (Emphasis added.)
Id. In Talley, we quoted 10 Couch on Insurance 2d § 41.6 (2d ed. 1985), which provides:
It is only the intended injuries flowing from an intentional act that are excluded . . . and a homeowner’s policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended.
For the purposes of determining whether recovery can be had under an ‘accident’ provision of a liability policy, the resulting damage can be unintentional and therefore accidental even though the original acts were intentional.... If the consequences consisting of damages from intentional acts are not intended and are unexpected, they are ’accidental’ within a policy ...[.]
Talley, supra. We concluded that an exclusion of coverage of an accident insurance policy for the consequences of intentional acts did not support a summary judgment in favor of the insurance company, if the results of the intentional act were accidental or unintended. We returned the case to the trial court for a determination of whether “bodily injury” to the two boys was “expected or intended” from the “standpoint of the insured.” Id.
State Farm contends that the rationale of Talley is not applicable to this case, or should be overruled. In Talley, we established the principle that a policy insuring against accidental or unintended results did not exclude coverage for such results by an exclusionary clause for acts which were intentional.
The exclusionary clause before us in this case reads as follows:
SECTION II — EXCLUSIONS
Coverage L and Coverage M do not apply to:
A. Bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of wilful and malicious acts of an insured.
State Farm contends that the second provision of this exclusion clause eHminates coverage for accidental or unintended results of willful and malicious acts. We disagree. Words excluding coverage for accidental or unintended results are not found in this clause. It would have been easy to include such language, if that had been State Farm’s intent. Such language might have stated:
SECTION II — EXCLUSIONS
Coverage L and Coverage M do not apply to:
A. Bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the accidental or unintended result of wilful and malicious acts of an insured.
The policy promises to cover accidental results of an insured’s actions in its general language. To unambiguously exclude coverage for accidental or unintended results of willful and malicious acts of an insured, those words might have been used, but that was not done. It appears that there is an ambiguity between the general provision, extending coverage for accidents, and the exclusion clause as drafted in the policy.
If a provision is unambiguous, and only one reasonable interpretation is possible, we will give effect to the plain language of the policy without resorting to the rules of construction. Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer. Finally, whether the language of the policy is ambiguous is a question of law to be resolved by the court. Id.
We have determined that the language of the policy is internally inconsistent, and in light of our decision in Talley, supra, and in accordance with the principle that in the event of ambiguity we will construe the policy liberally in favor of the insured, we conclude that the policy does not exclude accidental or unintended results of willful and malicious acts from coverage.
We note that other jurisdictions have interpreted similar exclusionary language by holding that coverage for accidental or unintended results was not excluded. In Baugh v. Redmond, 565 So. 2d 953 (La. Ct. App. 1990), the appellate court of Louisiana held that an intentional act exclusion in a softball player’s homeowner’s policy did not bar coverage of his liability for battery upon the umpire, where the insured’s striking the umpire was neither premeditated nor intended to inflict serious bodily injury, but was rather a provocative gesture. See also Vermont Mut. Ins. Co. v. Singleton by & through Singleton, 446 S.E.2d 417 (S.C. 1994) (holding that intentional-act exclusion did not apply to exclude coverage for injuries sustained in a fist fight); Schexnider v. McGuill, 526 So. 2d 513 (La. Ct. App. 1988) (holding that massive cheek bone injuries from a quick blow to the face were not the result of an intentional act, as the scope of the injury to the plaintiff far exceeded what any reasonable person would expect).
We now address the question of whether Zack’s actions resulted in unintended or accidental injuries. Zack admits to hitting Skye in the jaw, but stated that he had no intent to cause the severe injuries that Skye sustained in his fall to the concrete. In his deposition, Zack testified, “I mean, I just hit him. ... I didn’t wind up or anything.” Although Zack had the intent to hit Skye, he states that the injuries that flowed from the punch were unintended. He asserts that he had no intent to hit Skye so hard as to cause the severe injuries that Skye sustained. Under Couch’s language, if Skye’s injuries were not intended or were unexpected, that result would be “accidental” and, thus, should be covered under the homeowner’s liability policy.
From our review of the record in the present case, it seems that the serious injuries to Skye were possibly accidental or unintended. However, the trial court did not reach that issue. We conclude that the trial court’s decision to grant summary judgment to State Farm without consideration whether Skye’s bodily injury was an accidental or unintended result of Zack’s actions was in error. Talley, supra, controls the disposition of this case, and accordingly, we reverse and remand for a determination of whether the injuries suffered by Zack were unintended or accidental.
Appellant also argues that State Farm’s exclusion is void as a matter of public policy. Because we have concluded that the poficy is ambiguous, we need not specifically address the issue of public policy.
Reversed and remanded.
Brown, Imber, and Smith, JJ., dissent. | [
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McCulloch, C. J.
Appellee sued appellants Hobbs and Horsley in the circuit court of Crittenden County for the possession of six mules, claiming title to the property under two chattel mortgages executed by one Gill, and an order of delivery was issued at the commencement of the action and the property was taken thereunder by the sheriff. The process in the action is not incorporated in the transcript, but appellants filed a demurrer in which they alleged that they were nonresidents of Crittenden County, that they were summoned by warning order and that the order of delivery was executed in St. Francis County. The demurrer challenged the jurisdiction of the circuit court of Crittenden County. Said appellants also set forth in their plea that the property was in the possession of appellant J. J. Crump, who was trustee in á deed of trust executed by Gill to him on the property involved in this controversy to secure a debt to appellants, and they asked that Crump be made -a party defendant with them in the action.
The court overruled the plea to the jurisdiction, but entered an order making Crump a party defendant, ■whereupon all of the appellants, Hobbs, Horsley and Crump, filed an answer denying the allegations of the complaint with respect to the ownership of the property, and they set up a claim to the property under a chattel mortgage executed by Grill to Crump, as trustee. Each of these pleas were filed without any reservations whatever, and constituted a general appearance in the action. Hearn v. Ayres, 77 Ark. 497; C., R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232; Greer v. Vaughan, 96 Ark. 524.
An action for the recovery of personal property is transitory and can be brought in any county where the defendants may be found or may appear. The action is not local in its nature and need not be brought in the county where the property is situated.
It appears from the pleadings that each of the parties claimed the right of possession under mortgages executed by Grill and the issues were tried before a jury. There is no bill of exceptions in the record—that which purports to be a bill of exceptions not being signed by the trial judge—therefore we can not review the proceedings for assigned errors occurring during the trial. We must assume, in the absence of a bill of exceptions, that there was sufficient evidence to support the verdict and that the proceedings were free from error. The mortgages were exhibited with the pleadings, but we do not know, in the absence of a bill of exceptions, that they were introduced in evidence, and, besides, the identity of the property claimed under the respective mortgages depended on the testimony adduced at the trial, which is not now before us.
Judgment affirmed. | [
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Hart, J.
(after stating the. facts). Fenton rented land from the corporation of which Hiram Bradley was the manager and agreed to pay, as rent therefor for the year 1918, one-third of the corn and one-fourth of all the cotton raised by him. Price was a cropper on the shares under Fenton. He raised twelve bales of cotton, and under his contract with Fenton he was to receive one-half of the cotton raised by him in payment of his services. Under their agreement the title to the cotton raised by Price was in Fenton, and it was the latter’s duty to deliver to the former one-half of the cotton when it was gathered. Tinsley v. Craige, 54 Ark. 346, and Valentine v. Edwards, 112 Ark. 354.
After Price had gathered the cotton in the fall, Fen-ton gave him permission to sell it for the purpose of di viding tile proceeds, but Price was unable to do so because Bradley had notified the cotton buyers in that territory that his company was claiming a landlord’s lien on the cotton. Fenton and Bradley had a dispute about the amount of rent due, each asserting a claim for damages against the other for a breach of the rent contract. Price’s theory is that Fenton prevented him from selling the cotton raised by him after it had been gathered, by demanding that one-fourth of the proceeds should be deposited in the bank to his credit or deposited in such a way that Bradley could not get it until after the dispute between his company and Fenton had been settled.
On the other hand, Fenton claimed that he placed no restrictions whatever upon Price selling the cotton, and said that he was at all times willing for Price to sell it. He testified, in substance, that he did not demand, as a condition to allowing Price to sell the cotton, that the latter should place one-fourth of the proceeds so that Bradley could not get hold of it until he and Fenton had settled. This testimony of Fenton made a case for the jury," and it was error calling for a reversal of the judgment for the court to have directed a verdict in favor of Price against Fenton.
A party violating a contract is .liable for all the direct and proximate damages which result from the violation. The damages must flow directly and naturally from the breach of the contract, and they must be certain, both in their nature and in respect to the cause from which they proceed. They must not .be remote, involving-inquiries that are collateral to the consideration of the wrongful act which constituted a breach of the contract. McDaniel v. Crabtree, 21 Ark. 431; Gerson v. Slemons, 30 Ark. 50, and Western Union Tel. Co. v. Short, 53 Ark. 434.
If the testimony of Fenton is true, the direct' and proximate cause of the loss to Price was the act of the agent of the owner of the land in notifying the cotton buyers in that territory not to buy the cotton raised by Price because the landowner was claiming a landlord’s lien on the cotton. While it was the duty of Fenton to divide the crop after it was gathered and give Price one-half of the cotton raised or the proceeds thereof, still he conld not he compelled, in order „to effectuate a division of the crop, to release his claim for damages against his landlord. In short, if Fenton’s testimony is to be believed, the proximate cause of the damages suffered by Price was the action of Bradley in notifying the cotton buyers not to buy the cotton raised by Price and it was not the action of Fenton in making a claim for damages against his landlord. His action in this respect could be only considered as the remote cause of the damages that resulted to Price.
On the other hand, if Fenton, as testified to by Price, demanded that the latter should place one-fourth of the proceeds of the cotton in a bank to his credit, or in such a way that Bradley could not get it until their dispute about the breach of the rent contract was settled, as a condition to the right of Price to sell the cotton and divide the proceeds, then th'e action of Fenton was the direct and proximate cause of the damages that resulted to Price, and he would be liable therefor.
Because' the court erred in not submitting this disputed question of fact to the jury, the judgment must be reversed and the cause will be remanded for a new trial. | [
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Smith,- J.
This is an action to recover a commission for an alleged sale of real estate. Appellees, who were plaintiffs below, are partners in the real estate business, and on June 25, 1918, entered into a contract with appellant whereby he gave them the right, for a period of twelve months, to sell his farm, containing 320 acres, and farming implements, for $9,000 net to the owner, of which $4,500 was to be paid in cash, and the remainder in one, two, three, four, five and six years, at 8 per cent. Appellees were to receive as commissions the excess over $9,000.
Appellant wa's notified of the sale of the property to J. W. C. Bell, and on the 26th day of June, 1919, in furtherance of said sale, entered into a written contract with Bell whereby he agreed to convey the land to Bell upon the terms aforesaid and to furnish an abstract showing a marketable title. Appellant failed to furnish the abstract, and, according to the testimony on the part of appellees, refused to consummate the deal with Bell, who was ready, willing and able to buy the lands pursuant to the contract of purchase, which Bell had been induced to sign through -the efforts of appellees. The testimony shows that appellee priced the land to Bell at $10,000, but Bell refused to pay that price unless the mules, wagon harness, and cattle on the place were included. Appellant declined that proposition, but did agree to include his cattle, and a contract was entered into whereby Bell agreed to pay the sum of $5,000 cash, and the balance in annual payments of a thousand dollars each; and to secure these deferred payments appellant agreed to take a second mortgage on the land.
A paragraph of appellant’s answer set up the fact that the land in question embraced his homestead, and that the contract for its sale was void because his wife had not joined in its execution. A demurrer to this part of the answer was sustained, and exceptions saved. Other errors are assigned which we will discuss in their appropriate order.
We think the demurrer was properly sustained. There is here no prayer for the specific performance of the contract of sale; but the purpose of the suit is to recover the value of services rendered. The case on this point is ruled by the opinion of the court in the case of Branch v. Moore, 84 Ark. 469.
It is next contended that the contract of sale between appellant and Bell did not conform to the terms upon which appellant authorized appellees to sell. And this appears to be true. But appellant consented to the modification, and executed the contract with Bell which embodied the changes resulting from the negotiations had between appellees and 'Bell, and the claim for commissions can not, therefore, be defeated by the fact that changes were made. Stiewel v. Lally, 89 Ark. 195; Hodges v. Bayley, 102 Ark. 200.
It is contended that the agency contract was good for only one year, and that the contract of sale between appellant and Bell was dated one day after the twelve months had expired. But the court submitted to the jury the question whether the terms of the sale had been agreed upon, reported to and accepted by appellant before the year expired, and properly told the jury that, if they so found, plaintiffs would be entitled to recover, notwithstanding the written contract was not signed until after the expiration of the year. Stiewel v. Lally, 89 Ark. 195.
It is next contended that the testimony does not show that Bell was ready and able to perform his contract. But that question of fact was submitted to the jury. Bell testified that he was able to buy, and would have done so, and it is undisputed that appellant was several times requested both by appellees and by Bell to furnish the abstract of the title which the contract of sale required to be furnished; but failed to do so. Upon the contrary, appellant admitted that before the first payment was due he had advised Bell that his wife would not sign the deed.
Objection was made to the testimony of witnesses Wray and Williams, who were permitted to testify as to the value of the cattle included in the contract of sale, upon the ground that the cattle were not included in the original agency contract; and the admission of this testimony is assigned as error. It is true that contract did not authorize the sale of anything but the farm and farming implements, and fixed the agent’s compensation at the excess over $9,000. The court told the jury that if they found for the plaintiff they would fix the amount of the recovery at the difference between nine thousand and ten thousand dollars, “less whatever sum you may find, from the evidence, was a fair value of the cattle which was included in the price which Bell agreed to pay for the property.” In other words, appellees had sold the land and farming implements for a thousand dollars more than the agency contract entitled appellant to receive, but in making the contract of sale the cattle were included, and it was, therefore, proper to deduct the value of the cattle from the thousand dollars which the appellees would otherwise have received, and the objected testimony was material to- establish that value.
Objection was also made to the admission in evidence of a rent contract between Bell and appellant. This testimony was competent to show that the parties mutually understood a final binding contract for the land had been closed.
It is finally insisted that the court erred in refusing to permit appellant’s counsel to argue to the jury that there was no liability on appellant’s part because there bad been no tender of the cash payment and notes for the deferred payments. But for reasons already stated, it is apparent that no error was committed in this respect.
No error appearing, the judgment is affirmed. | [
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Wood, J.
This action was brought by the appellants against the appellees, to restrain them from constructing the improvement for which Road Improvement District No. 1, of Greene County, Arkansas, hereafter called No. 1, was created.
The following are substantially the allegations of appellants’ complaint': That they were land owners in No. 1; that on May 28, 1919, an order was entered purporting to establish No. 1 by the county court of Greene County under the provisions of act 338 of the Acts- of 1915, commonly known as the Alexander Road Law; that the district proposed to construct a road from Walcott, via Light, to Rhea Bridge on Cache River, a point on the boundary line between Greene and Lawrence counties, at which point it connected with an improvement district from Rhea Bridge to Walnut Ridge, Ark.; that the regular session of the Legislature of Arkansas in 1919, on March 6, passed act 186 creating Tri-County Improvement District, hereafter called Tri-County, providing for the construction of a road from Rhea Bridge, via Light, Bono, and Jonesboro, to Harrisburg-; that at the time act 186 was passed the legal existence of No. 1 was pending in the Supreme Court; that the road to be built under act 186 from Rhea Bridge to Light is the identical road provided for in district No. 1; that sections 36 and 37 of act 186 reads as follows:
‘ ‘ Section. 36: If any part of the roads herein authorized and directed to be improved in said district are improved, either by the county or by any other agency in this district, before the commissioners ofx this district find it necessary to proceed with the work of improvement, and such improvements are sufficient or available under the plan of improvement in this district as approved by the county court, it shall be the duty of the commissioners to credit the assessment of benefits against any of said land with such amounts as represent the amount that said benefits are reduced because of said improvement or any part of the said road made by other agencies than the district and accepted by the district as complying with their plans.”
“Section 37. This bill or act shall not prevent the formation of any other road improvement district that has filed its plan or may file its plan with the county court of Greene, Craighead or Poinsett counties; but if any part of the road to be improved under this act shall be improved by said other district before work on such part of said road is done by the district hereby created or contracts therefor let, credit on the assessment of benefits in the district hereby created shall be given as provided in section 36 of this act. Said other districts, when organized, may proceed with their work and carry out their plans for improving the road in said district, so far as parts of them have not been improved or contracts for their improvement let by the districts thereby created before August 1, 1919, giving credit in like manner on the several assessments of benefits for improvements in parts of the road made by the districts hereby created. ’ ’
That by the terms of act 186 it was impossible for No. 1 to build that part of the road from Rhea Bridge to Light, and that No. 1 was therefore void; that the road from Rhea Bridge to Light is 3 90/100 miles; that the proposed road from Walcott to Rhea Bridge is 10 37/100 miles; that the construction of the road from Rhea Bridge will be nearly one-half the cost of the whole improvement proposed by No. 1; that the plans for the roads under act 186 have been made and approved; that these plans differ from the plans of district No. 1; that the Tri-County has let and contracted the. construction work for the roads in the district since May 28, 1919; that No. 1 has made and confirmed the assessment of benefits, but has not made a levy or attempted to create any lien upon the lands in the district and has not let any contract for the construction, and therefore had not on August 1, 1919, let any contract for improving the road from Rhea Bridge to Light; that No. 1 can not exist for building any roads not in substantial compliance with the preliminary plans made prior to the creation of the district; that the building of any road which does not include the Rhea Bridge to Light section in accordance with those plans is not in substantial compliance with the prayer of the petition asking for the creation of No. 1; that the petition upon which No. 1 was established was filed December 26,1917, when it was possible to have built the road petitioned for; that conditions have materially changed, and. at the present time .a large majority of the property owners of said district are opposed to same, but at the time the petition was filed it contained a majority required by law; that No. 1 can not build the road from Rhea Bridge to Light and therefore can not build from Walcott to Light or from Walcott to-some other place or make other plans for roads which may be carried out; that No. 1 therefore exists for no purpose; that appellees were threatening to issue, sell, and deliver a large amount of bonds as obligations of the district which would be a cloud upon the title of the appellants and threatening to let a contract for the construction work.
Appellants alleged that their lands would not be benefited by the proposed improvement, and prayed that appellees be perpetually enjoined from making same and that No. 1 be declared void.
The appellants attached as an exhibit to their complaint a copy of the judgment entered by the Greene County Court. The recitals, among other things, de scribed tbe lands embraced in No. 1, and also tbe route of tbe road to be improved.
The appellees entered a general demurrer to tbe complaint.
Tbe court sustained the demurrer so far as tbe complaint seeks to invalidate No. 1, but overruled tbe demurrer so far as tbe complaint seeks to enjoin tbe appellees from constructing tbe road from Light to Rhea Bridge, and entered a decree dismissing tlie complaint so far as it seeks to invalidate No. 1 and enjoined appellees from constructing or letting any contracts for tbe construction of any part of tbe road proposed by tbe plans of No. 1 from Light to Rhea Bridge until further orders of tbe court. From which decree both appellees and appellants have appealed.
First. For convenience tbe road route involved in tbe two districts, No. 1 and Tri-County will be referred to as “tbe section in controversy.”
For tbe purpose of testing the correctness of tbe ruling of tbe court on tbe demurrer, we must accept as true the allegations of tbe complaint that are well pleaded. Harrison v. Abington, 140 Ark. 115; Chapman & Dewey L. Co. v. Rd. Imp. Dist., 127 Ark. 318-22.
Tbe recitals of tbe judgment of tbe county court, made an exhibit to tbe complaint, show that all tbe requirements of act 338 of tbe Acts of 1915, bad been complied with in the establishment of No. 1, and there are no allegations of fact in tbe complaint which show to tbe contrary. As was said in Chapman & Dewey Land Co. v. Osceola & Little River Rd. Imp. Dist., supra, “section 3 of act 338 of tbe Acts of 1915, provides: ‘The order of the county court establishing tbe improvement district shall have tbe force and effect of a judgment and shall be deemed conclusive, final and binding upon all territory embraced in said district, and shall not be subject to collateral attack, but oidy to direct attack, on appeal. ’
“In tbe absence of allegations of fact in tbe complaint showing that tbe record of tbe county court does not state facts essential to its jurisdiction, or that the organiza tion of the district was invalid, we must hold that, under the above and other sections of the statute, the appellants had a complete and adequate remedy at law for all the grievances set forth in their complaint. Equitable relief is not given where there is an adequate remedy at law. ’ ’
The allegations of the complaint show that the TriCounty was authorized by act 186 to construct the section in controversy before No. 1 was established, and that the route provided for by act 186 “is the same and identical with the route” of No. 1. The demurrer admits the truth of these allegations. But act 186, which was passed prior to the establishment of No. 1, does not prevent the establishment of No. 1 for the purpose of making the improvement of the section in controversy, which is a part of the improvement contemplated by act 186 creating Tri-County. On the contrary, sections 36 and 37 of the act 186 clearly show that the county court could create No. 1 to make the improvement, of the section in controversy upon certain conditions expressed in those sections which we will refer to later.
The allegations in the complaint that by the terms of said act 186 it was impossible for said No. 1 to build the section in controversy, and “that said impossibility existed and appeared at the time said No. 1 was attempted to be created; that No. 1 exists for no purpose, is nonexistent and can not build the section in controversy or make other plans for roads which may be carried out, etc.,” are all general allegations. They merely state conclusions without stating the facts upon which such conclusions are grounded, and from which it may be seen that such conclusions are correct. There is an allegation that the plans of No. 1 do not conform to, but differ from, the plans of the Tri-County for the section in controversy, also, that No. 1 can not exist for the purpose of building any road not in substantial compliance with the preliminary plans made prior to the attempted creation of No. 1. But these allegations are likewise the mere statements of conclusions.
No. 1, to be available under this act, would have to conform in substantial particulars to the plans approved by the county court for the Tri-County. Rayder v. Warrick, 133 Ark. 491; Hout v. Harvey, 135 Ark. 102; Harris v. Wallace, 139 Ark. 184; Pritchett v. Rd. Imp. Dist., 142 Ark. 509. But here again no facts are pleaded to show wherein the plans of No. 1 do not conform to the plans of the Tri-County, or that the difference in plans, if any, was so substantial as to invalidate the judgment of the county court creating No. 1. The demurrer only admits the truth of the allegations that are well pleaded. No allegations of fact are pleaded which show that the establishment of No. 1 was void. General allegations of a complaint amount to nothing unless the facts to support them are distinctly and specifically averred. Pharr v. Knox, 145 Ark. 4, and cases cited; Nettles v. Hazel-wood Rd. Imp. Dist. No. 2 of Greene County, 144 Ark. 632.
The decree of the court was therefore correct in sustaining the demurrer and in dismissing the complaint in so far as it sought to invalidate the creation of No. 1.
Second. The next question-is, could.No. 1 be restrained from building the section in controversy?
The decision of this question involves the construction of sections 36 and 37 set forth in the complaint, and, indeed, the whole of acts 186 and 338, in so far as may be necessary to ascertain the intent of the Legislature and effectuate its purpose, if possible, to build the section of road in controversy.
The Tri-County, as its name implies, was established to construct a road embracing territory in three counties. The road was eighty-five miles in length. No. 1 embraced territory in Greene County only and was a road 10 37/100 miles in length. The section in controversy was a part of both roads, and was only 3 90/100 miles in length. Therefore, the section in controversy was a very inconsiderable portion by-comparison with the remainder of the Tri-County. ■ Tri-County was established before No. 1.
The above general facts, kept in mind, will serve to make clear tlie intent of the Legislature in sections 36 and 37 and to elucidate the following confused and doubtful language of section 37: “Said other districts, when organized, may proceed with their work and carry out their plans for improving the road in said district, so far as parts of them have not been improved or contracts for their improvement let by the districts thereby created before August 1, 1919, giving credit in like manner on the several assessments of benefits for improvement in parts of the road made by the districts hereby created.”
As No. 1 was not in existence at the time the TriCounty was established, and as the Legislature could not know at that time that No. 1 would ever be created, and could not know, if it were created, that it would be able to improve or let contracts for the section in controversy before August 1, 1919, it would be unreasonable to conclude that the Legislature intended that the Tri-County should be built or contracts for the building thereof let by August 1, 1919, as a condition precedent to its right to complete the entire road project. August 1, 1919, was intended as a time limit upon the Tri-County or No. 1, one or the other, as the date when the section in controversy should be constructed or the contract therefor let. Was this date a limitation upon No. 1 or upon TriCounty?
Considering the magnitude of the project of the TriCounty compared with No. 1, it is more reasonable to conclude that the limitation applied to No. 1 rather than to the Tri-County. This construction, too, best accords with the context of sections 36 and 37. The Legislature had ascertained either that districts had been formed, or that they might be formed, in the counties of Greene, Craighead, and Poinsett, under act 338, for the improvement of roads which covered a part or parts of the TriCounty, and that these, involving lesser projects, might progress more rapidly than the Tri-County. Hence, the Legislature intended that if said districts. were created and had improved or let contracts for the improvement of parts of the same road as Tri-County before August 1, 1919, these districts should be permitted to continue and to complete those parts of their road projects which might be the same as the Tri-County, the land owners in such districts receiving credit therefor in the assessments of benefits by Tri-County.
The word “districts” in section 37, preceding the words “thereby created,” show that the latter words, “thereby created,” refer to the words “districts.” The word “not” in paragraph 37 as quoted last above, is manifestly a clerical misprision, and should be omitted. The word “thereby” refers to the word “districts” just preceding it, and is the word intended. This construction harmonizes all portions of sections 36 and 37 and gives to them a meaning which comports with the purpose of act 186, when it is considered as a whole. It was in the province of the Legislature to provide that part or parts of the Tri-County might be built by other districts covering as a part of their project such part or parts of Tri-County, provided work was done or the contract let therefor by August 1, 1919. This was within the jurisdiction of the Legislature, although the other districts were created by the county court, instead of the Legislature. See Bennett v. Johnson, 130 Ark. 517; VanDyke v. Mack, 139 Ark. 524.
The judgment of the trial court overruling the demurrer, in so far as the complaint sought an injunction against No. 1 restraining it from building the section in controversy, is therefore correct. There is no error in the decree, and it is affirmed.
Justices Hart and Smith dissent. | [
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Smith, J.
This is an action of forcible entry and detainer, and the appeal is from the following judgment:
“This cause coming on to be heard, comes the plaintiff by his attorneys, Frank Weldin and W. E. Spence, also comes the defendant hy his attorneys, Ward & Ward. The defendant having filed his motion to quash the writ herein and the said motion coming on for hearing, and the court, being fully advised, doth sustain said .motion and quashes the writ issued in this cause, whereupon the court declares the defendant to be in possession of the premises involved in this action, towit:
“The southeast quarter of the southeast quarter of section twenty-nine, township twenty north, range nine east, and the cause is set for trial.
“The defendant, although given permission to file his answer, and cross-complaint and try the cause, refused so to do, wherefore the court finds for the plaintiff for the possession of said premises.
. “It is therefore, by the court, considered, ordered and adjudged that the plaintiff, Dick Bunke, do have and recover of and from the defendant, J. J. Carpenter, the possession of the southeast quarter of the southeast quarter of section twenty-nine, township twenty north, range nine east, and the plaintiff-pay all costs herein expended, for which execution may issue.”
It does not appear upon what ground the court quashed the writ of possession, as there is no bill of exceptions in the case; but it does appear, from the judgment itself, that “the court declared the defendant to be in possession of the premises” after quashing the writ. So that thereafter the cause stood on the docket as oné in which the plaintiff was asking the restoration of premises wrongfully taken and held by the defendant, and, defendant refusing to answer, judgment was properly rendered as in other cases of default—no damages having been claimed or awarded.
Counsel for appellant cite cases to the effect that where an action of forcible entry or unlawful detainer is dismissed by the court or withdrawn by the plaintiff, the defendant is entitled to judgment for restitution. But this action was neither dismissed by the court nor withdrawn by the plaintiff, and there was an order that he be declared in possession of the premises; but quashing the writ was not decisive of the merits of the case. This is ■true because the action could have been brought, and the right of possession adjudicated, if no writ of possession had issued. It is expressly so provided by statute. Section 3651, Kirby’s Digest.
Judgment affirmed. | [
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Hart, J.
Lawrence Ruddell brought this suit in equity against the Commissioners of North Arkansas Highway Improvement District No. 1, Independence County, Arkansas, to enjoin them from proceeding further in the construction of said improvement, or in any manner casting a cloud on the title of his land, and has duly prosecuted an appeal to this court from a decree dismissing his complaint for want of equity.
The material facts are as follows: The Legislature of 1917 passed act 213, creating North Arkansas Highway Improvement District No. 1. Acts of Arkansas, 1917, vol. 2, p. 1149. The Legislature of 1919 at its regular session amended said act by passing act 128. Acts of Arkansas, 1919, Road, vol. 1, p. 327. Among the lands included in the district were sections 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 17 and 18, in township 13 north, range 6 west. The Legislature at the extraordinary session called in January, 1920, passed .act No. 155 which was approved February 18, 1920. This act eliminated certain lands from the district. Among the lands taken out of the district are sections 1, 2, 3, 4, 6, 7, 10, 11, 12, 18, and all that part of sections 8 and 9 outside of the corporate limits of Batesville in township 13 north, range 6 west. All that part of section 19, township 13 north, range 6 west, lying north of White River in Independence County, Arkansas, is included in the district,, and the plaintiff is the owner of it. Section 17 of the same township and range is in the district, and that part of section 19, above referred to, corners with section 17. A part of section 17 is without the corporate limits of Batesville, and part of the section is within the corporate limits. Section 18 is west of said section 17 and north of said section 19. Just east of that part of section 19, north of White River, is an island which is formed by the main channel of White River and by a cutoff in said river. The proposed road runs in an easterly and southeasterly direction from Batesville. • Although said section 19 is contiguous to said section 17, on account of the island and the cut-off in White River, which together with the main channel of White River forms the island, it is impracticable to gó from said section 19 to said section 17. The only practicable route would be to go through said section 18. Said section 18 was eliminated from the district by Act No. 155, approved February 18, 1920. Thus we see the case is brought within the rule announced in Heinemam v. Sweatt, 130 Ark. 70, and Milwee v. Tribble, 139 Ark. 574.
In short, it appears from the map that, although section 17 and section 19 are contiguous to each other, on account of the topography of the land, it is not practicable to go from section 19 to section 17 without traversing section 18. It is apparent that section 18 would be benefited by the improvement if section 19 was so benefited. The Legislature, by eliminating section 18, has determined that it was not benefited by the improvement. Therefore it was an arbitrary act of the Legislature to eliminate section 18 and leave section 19 in the district. As said in those cases, we can not strike out section 19, for we do not know the value of the land in that section, a”nd such an act might vary the legislative decision and impose an additional burden on the other lands in the ■ district. Hence we have a statute which is arbitrary and discriminatory on its face, and therefore void, in so far as affects the designated improvement in Independence County.
It follows that the decree must be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Frauenthal, J.
This is an appeal from a judgment of the Arkansas Circuit Court refusing to discharge appellant from custody upon a proceeding for habeas corpus instituted by him. The petition for the issuance of the writ of habeas corpus was presented by appellant to the judge of the Pulaski Chancery Court, who issued same, making it returnable before the Arkansas Circuit Court. Upon the hearing of the application for habeas corpus, the Arkansas Circuit Court denied the same, and from that judgment the petitioner has appealed to this court.
In his brief in this case, the Attorney General has suggested that the proper practice to review the actions of inferior courts or judges in proceedings for habeas corpus is by certiorari and not by appeal; and we are of the opinion that this suggestion is correct. Ex parte Jackson, 45 Ark. 158; State v. Neal, 48 Ark. 253; Ex parte Byles, 93 Ark. 612; Taylor v. Moore, 99 Ark. 412. The Attorney General, however, concedes that the record returned upon this appeal is correct, and he has agreed that the matter may be heard as if the petition for certiorari had been duly presented to this court and the record brought up for review in obedience to the wi^t issued thereon. We will therefore consider the matter as thus properly before us for review by certiorari.
It appears that at the April, 1910, term of the Arkansas Circuit Court two indictments were duly and regularly pending against the appellant, in each of which he was charged with the separate offense of selling liquor without license. He appeared in person at that term of court and entered a plea of guilty to each indictment,, and thereupon the court rendered two separate judgments of conviction against him upon said indictments. One of the judgments was duly satisfied, but the other has not been paid nor in any manner satisfied. The latter judgment is as follows: “On this day comes the State of Arkansas by her prosecuting attorney, Geo. W. Clark, and comes the defendant, H. W. Holdaway, in his own proper person, and by leave of court enters herein a plea of guilty to the charge contained in an indictment charging him with the selling of liquor without license. Whereupon the court doth assess his fine at $50. It is therefore considered, ordered and adjudged by the court that the State of Arkansas for the use of Arkansas County do have and recover of and from the defendant, Henry Holdaway, 'the sum of $50 for fine, and all costs herein expended, and execution issue therefor, and that defendant stand on his present bond until the November term of this court, at which time he is to arrange for the payment of said fine and costs.”
It appears that the county court of Arkansas County had duly entered into a contract with one Hugh Watson for the maintenance, safe-keeping and' working of prisoners committed to the jail of said county, in pursuance of section 1080 et seq. of Kirby’s Digest and the acts amendatory thereof. On April 22, 1912, a commitment was issued upon the -above-judgment, under which the sheriff of said county delivered appellant to said Watson to be kept and worked under said contract; and it was under this authority that he was held in custody by said Watson, the legality of which is assailed by appellant by this proceeding.
In his petition for habeas corpus the appellant alleged that said Watson was holding and working him for the purpose of paying the fine of $50 and costs adjudged against him, and he urges that his detention thereunder is illegal principally upon two grounds: First, because the judgment failed to direct that in default of the payment of the fine and costs he should be committed to the county jail and by the jailer delivered to the county contractor; and, second, because the plea of guilty was only entered by him conditionally, and that the judgment was thereupon conditionally suspended.
It is provided by section 2443 of Kirby’s Digest that “if the punishment of an offense shall be a fine, the judgment shall direct that the defendant be imprisoned until the fine and costs are paid.” And by other provisions of our statute it is prescribed that all persons convicted and committed to the bounty jail shall be delivered to the contractor, who shall keep and work such prisoners for the time they shall have been adjudged to have been imprisoned. Kirby’s Digest, § § 1085, 1091. The proper judgment, therefore, which should be rendered, wheii the punishment for an offense is by fine, is to also direct that the defendant be imprisoned until the fine and costs are paid. But a failure to incorporate such direction in the judgment does not render it void.
This question was decided in the case of In re Jones, 100 Ark. 226. In that case a similar contention was made, and relative thereto we said: “The law requires that where the punishment of an offense is by fine, the judgment shall direct that the defendant be imprisoned until the fine and costs are paid, and such directions should have been included in such judgments "against Jones in default of the payment of the fines levied. Its omission, however, did not render the judgment void.”
In his petition the appellant alleged that he entered into an agreement with the prosecuting attorney under which he was to plead guilty to the two charges made against him in the two indictments; that he should satisfy the judgment entered in one case, and, on condition that he would give full and truthful testimony in a case pending against another party, and not be guilty of any illegal sale of liquor in the future, he would not be required to pay the judgment in the other case; that he duly complied with these conditions, and for that reason the above judgment is unenforceable.
In the case of Joiner v. State, 94 Ark. 198, it was held that there is no authority for a plea of guilty to be entered and received on any kind of condition, or for any judgment to be suspended on condition. In that case the contention was made that the pleas of guilty were entered only on condition, and for that reason the court erred in rendering judgment on such pleas. In that case the court said: “The record made by the clerk at the time showed that the pleas of guilty were entered unconditionally,” and thereupon held that the judgments of conviction therein rendered were regular and valid. So in the present case the record shows that the plea of guilty was entered unconditionally. The judgment entered thereon, therefore, was correct. Nor does it appear that the judgment was suspended on any condition. The record recites that the appellant entered a plea of .guilty without condition, and adjudges the recovery of the fine and costs assessed against him, without any condition. It is true that the judgment recites that the payment of such fine and costs was postponed to a future day. This, however, did not make the payment of the judgment conditional. The judgment was still made absolute, and the time of payment thereof was only postponed. This at most was only an error; but, if an error, it was in favor of the appellant, and one therefore of which he can not complain. This did not render the judgment void. It is not contended that the judgment has been paid or satisfied. It follows that the judgment is still effective, and, as was said in the case of In re Jones, supra, “when it appeared that the petitioner was held in custody by the final judgment of the circuit court, a court of competent criminal jurisdiction, and under a contract legally made for the hire of such prisoners, the court should have remanded him to the custody of the contractor.”
It follows that the court did not err in refusing to discharge the appellant, and its judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). The sole question in this case is one of fact. The law is well settled that, “to sustain the plea of usury, it must appear that excessive interest was paid to the lender, or that a bonus or commission was paid to the agent of the lender with his knowledge, or under circumstances from which his knowledge will be presumed, which commission, when added to the interest paid or to be paid to the lender, would exceed the lawful rate.” The burden of proof is upon the party who pleads usury to show clearly that the transaction was usurious. Banks v. Flint, 54 Ark. 40; Vahlberg v. Keaton. 51 Ark. 585; Thompson v. Ingram, 51 Ark. 547.
In Leonhard v. Flood, 68 Ark. 162, the court said:
“Our law visits on a lender, who contracts for usurious interest, however small, a forfeiture of his entire loan and the interest thereon. It follows from the plainest principles of justice that such a defense shall be clearly shown before the forfeiture is declared. Usury will not be inferred from circumstances when the opposite conclusion can be reasonably and fairly reached.”
If Beauchamp acted as the agent of the borrowers alone in procuring the loan, it makes no difference whether he received the bonus or not, for what the borrower pays to his own agent for procuring the loan is no part of the sum paid for the loan or for forbearance of money. Vahlberg v. Keaton, supra.
“To constitute usury, there must be an agreement on the part of the lender to receive and on the part of the borrower to give for the use of money a greater rate of interest than 10 per cent.” Banks v. Murphy, 83 Ark. 36.
As already said, the sole question in this case in one of fact. The lender denied positively any agreement to make the loan upon receipt of $1,000 bonus above the amount of the interest agreed to be paid, and stated that he absolutely refused to make the loan at all when he learned that such a transaction as proposed to him would be usurious. That, later, he was approached by Beauchamp, who insisted upon his making the loan and agreed to do the work of getting up the papers for nothing, if the loan could be arranged. He refused then to make the loan for the time proposed, but later agreed to and did make it for two years. He denied receiving any bonus, and that any one else was acting as his agent in receiving one.
Appellants do not deny that they offered to pay the bonus to any one who could procure the loan, and both Cox and Beauchamp stated positively that they procured the loan and received the bonus, Cox insisting with Beauchamp that appellants were still willing to pay the $1,000, and that the loan should not be permitted to fall through, and that he ought to be able to procure it, and that he would pay him half the bonus if he would assist in procuring the loan or get Mack to make it. These witnesses both testified that they did procure the loan from Mack, that they received the bonus and divided it between themselves, and that Mack had nothing to do with it and did not receive any part of it.
Of course, if appellants were believed, the transaction was usurious, but the evidence is in direct and irreconcilable conflict, and it was passed upon by the chancellor, and we can not say that his finding and decision is against a preponderance of it. Such being the case, the decree is affirmed. | [
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Wood, J.,
(after stating the facts). Conceding that the blank spaces in the contract were filled in by inserting in the blank for the date the words “Fort Smith, Arkansas, April 30, 1910,” and in the blank space left for the number of copies of the paper the words “one hundred,” and that these insertions were made by Isbell after the contract of guaranty was executed by the appellees, still we are of the opinion that these were immaterial alterations that did not affect the liability of appellees under their contract of guaranty.
Under the undisputed evidence, the only object of inserting the date in the contract between Isbell and the appellant was to fix a time when the liability of Isbell and the appellees for the papers furnished should begin. The contract between Isbell and appellant contained this provision: “This contract will be in effect when duly approved.”
It was immaterial, under the provisions of the contract, what date the contract bore; for the liability of the appellees would commence, under the provision above quoted, from the time of its approval. The contract, under its terms, took effect from that date. The contract between Isbell and appellant does not show on its face the date when it was approved, nor is there any evidence aliunde as to when it was approved, but the approval of course could not have been before the contract was executed, and in the absence of proof it must be assumed that the contract was approved on the day of its execution.
The contract of guaranty was dated April 22, 1910, eight days prior to the date of the contract between Isbell and appellant. Therefore, the liability of appellees is not increased by the insertion of the date in the contract between Isbell and appellant subsequent to the date of the contract of guaranty upon which they are sued. The appellees, under their contract of guaranty, became responsible to the appellant “for the prompt payment by him for all copies of the St. Louis Republic furnished him.”
So far as the contract is concerned, the number of papers was not specified, and there is no evidence to show that the number was agreed upon. On the contrary, a blank space was left in the contract between Isbell and appellant to be filled in, according to the undisputed evidence. Therefore, the filling in of the number of copies of the paper to be furnished Isbell by appellant was not an alteration which appellant was not authorized to make. “If a party to an instrument intrusts it to another for use with blanks not filled, such instrument so delivered carried on its face an implied authority to fill up the blanks necessary to perfect the same, and the person to whom the instrument is so intrusted must be deemed the agent .of the party who committed the instrument to his custody.” 12 Cyc. 59. See White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105.
Here the appellees executed the bond in suit, agreeing to be liable to appellant for all the papers it furnished Isbell, and this bond was delivered to the obligee. This was authority for the appellant to insert the number of papers furnished in the contract between it and Isbell. See Inhabitants of South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 539.
The uncontradieted evidence showed that appellees knew when they executed the bond in suit that there were blanks in the contract between Isbell and appellant to be filled by the appellant. The filling in of these blanks therefore did not relieve the appellees of liability on their contract.
If Isbell, by making false representations to appellees, perpetrated a fraud upon them which induced them to sign the instrument in suit, the appellant was in no manner responsible for that fraud, for there is nothing to show that appellant at the time it entered into the contract with Isbell to furnish the papers had knowledge of the facts which appellees claim constituted a fraud upon them. Appellant was innocent in the transaction, and it approved the contract of guaranty in suit and acted upon it in good faith. The appellees, by signing the instrument of guaranty, enabled Isbell to procure the papers from appellant under his contract. The appellees therefore are not in a position to defeat appellant’s claim by a charge of fraud. They are estopped from setting up any charge as against the claim of appellant.
“It is no defense to an action upon a bond that the sureties were ignorant as to the extent of the obligation assumed or were misled by the principal in reference thereto, in the absence of proof that the obligee was a party to the fraud.” Western N. Y. Life Ins. Co. v. Clinton, 66 N. Y. 326; Powers v. Clarke, 28 N. E. 402; 20 Cyc. 1419; Bascom v. Smith, 41 N. E. 130; Lucas v. Owens, 16 N. E. 196; McWilliams v. Mason, 31 N. Y. 294, cited in appellant’s brief.
The court should have directed a verdict in favor of the appellant. For the error in refusing to do so, the judgment is reversed, and judgment will be entered here in favor of appellant for $178.17, the amount of its claim, with interest at 6 per cent, per annum from April 25, 1911, the date of the filing of suit. | [
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Kirby, J.
This is the second appeal of this case, which is sufficiently stated in the opinion on the former appeal, reported in 96 Ark., at page 371.
The judgment was reversed for the error of the lower court in striking out of the answer the allegations that defendant was induced to sign the contract sued upon by false representations of the plaintiff’s attorney to the effect that the written contract contained the same terms as the former lease, except as to the amount of the rent, which it was held and alleged was a good defense.
Upon the trial anew, after hearing the testimony, the court directed a verdict for appellee, and from the judgment this appeal comes.
It is contended that the court erred in refusing to allow the introduction of certain testimony relative to conversations between appellant and appellee’s attorney and in directing the verdict.
It is undisputed that the lease sued upon was executed by appellant, and he stated in his testimony that he had talked with the attorney for appellee relative to the. execution of a new lease and the terms thereof once or twice, but that finally he went to the World’s Fair, at St. Louis, and from there down to Columbia, Missouri, to see Mrs. Fleming, the appellee. That, on the first evening when he called and stated his business, she requested him to call the next day, being engaged in the entertainment of some of her friends, but said that she had been advised that she ought to have at least twelve hundred dollars rent.
After seeing her, he returned home, without stopping at Texarkana to see Mr. Moore, her agent, and in a few days thereafter received through the mail copies of the lease to be signed with a letter from Mr. Moore, stating that the contract of lease between Mrs. Fleming and himself was enclosed. That he relied on the conversations he had had with Mr. Moore, the agent, some time previous to seeing Mrs. Fleming, relative to the contents of the lease, and did not compare the new with the old one, “just read the outline, the amounts, dates, etc., did not read it in full and relied wholly on Mr. Moore drawing that one just as the other one.”
The court did not permit him to state the conversation had with the agent some six weeks before the execution of the lease in which he claimed it was agreed that the new lease' should be drawn as the old, except as to the amount of rent, and that he relied upon the statements of said agent as to the contents of the lease and signed the new one without any notice or knowledge of the fact of its provisions requiring him to pay the taxes as in the other lease and in addition “other legal assessments against the lands,” which action is relied upon for reversal.
The lease executed is materially different from the old lease in some other respects and fixes the amount of rent at one thousand dollars, and, according to appellant’s statement, Mrs. Fleming, the lessor, when he first mentioned the matter to her stated she had been advised she should receive twelve hundred dollars. The attorney who drew the lease was not afterwards seen by appellant, according to his own statement, and evidently received his information as to what it should contain from Mrs. Fleming, after the terms had been agreed upon between her and appellant. Certainly, appellant could not rely upon any statement made by an agent during the negotiations for the lease, the terms of which were afterwards agreed upon between himself and the principal, and claim that he was induced by fraudulent representations to execute a lease that he did not agree to. make, when no statement of the contents of the lease accompanied the draft of it sent for his signature, but only a statement that the contract was inclosed for execution; and the court did not err in excluding such testimony.
“Representations, to be fraudulent in law, must be material to the contract or transaction which is to be avoided ‘and must be made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.’” Bank of Monette v. Hale, 104 Ark. 388; Evatt v. Hudson, 97 Ark. 268; Jarrett v. Langston, 99 Ark. 438; Brown v. LeMay, 101 Ark. 95.
The undisputed testimony shows that no representations whatever as to the contents of the lease accompanied it when it was sent for appellant’s signature, and that he agreed upon its terms with appellee long after he claims to have discussed the matter with her attorney, who afterwards drew it, evidently upon information furnished by appellee, and forwarded it by mail for appellant’s examination and signature, with only the statement that the contract of lease was inclosed. There was no misrepresentation as to any matter of inducement to the making of the lease, which, from the relative position of the parties and their means of information, the one could be presumed to contract upon the faith and trust which he reposed in the representation of the agent of the other on account of his superior information and knowledge with respect to the subject of the contract, nor were any fraudulent representations made holding out inducements calculated to mislead the lessee and induce him to execute the lease on the faith and confidence of such representations made and, having signed it after opportunity to examine it, he will not be heard to say when he signed it that he did not know what it contained. Colonial & U.S. Mortgage Co. v. Jeter, 71 Ark. 185; Mitchell Mfg. Co. v. Kempner, 84 Ark. 349; Yates v. Pryor, 11 Ark. 58; Grider v. Clopton, 27 Ark. 244; Hamilton v. Ford, 46 Ark. 245; Upton v. Tribilcock, 91 U. S. 50; Chicago, etc. Ry. v. Belli, 83 Fed. 437, 28 C. C. A. 358.
There was no conflict in the testimony, and no question for the jury to decide, and the court did not err in directing the verdict.
The judgment is affirmed. | [
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Hart, J.,
(after stating the facts). It is conceded that the Bank of Siloam had no express authority-to collect the principal of the note and mortgage involved in this suit. The evidence shows that the note was negotiable, and that the note and mortgage were assigned to the plaintiff for value before the maturity thereof, and that the Bank of Siloam, the payee of the note, did not have the note and mortgage in its possession after the assignment thereof.
In the case of Winer v. Bank of Blytheville, 89 Ark. 435, we held: “If the maker of a negotiable note pays the same to the payee, who is not the holder, he is not discharged from his obligation to the holder without showing that the payee was authorized to receive payment or that the holder led him to believe that he was so authorized.”
This rule applies to notes secured by a mortgage or deed of trust, and it is generally held that payment to the original holder of a negotiable note, secured by a mortgage, of the amount due is at the risk of the one making it unless it is authorized by the true owner or justified by possession of the securities. Marling v. Milwaukee Realty Co. (Wis.), 5 L. R. A. (N. S.) 412, 7 A. & E. Ann. Cas. 364; Hoffmaster v. Black, 78 Ohio State 1, 21 L. R. A. (N. S.) 52, and case note; Smith v. First Nat’l Bank (Okla.) 29 L. R. A. (N. S.) 576, and case note.
The reason for the rule is that a mortgage executed as security for the payment of a negotiable note is a mere incident thereto, and partakes of the negotiability of the paper it secures. A mortgagor executing a mortgage as security for a negotiable note is charged with knowledge that the note is negotiable, and he makes payments to the original mortgagee without the production of the note at his peril, and the payments so made are of no effect as against an indorsee thereof who had possession at the time the payments were made.
It is conceded that the Bank of Siloam had authority to collect the interest on the note and mortgage in question, but there was no evidence from which it can be inferred that the Bank of Siloam had any authority to collect the amount of the principal or that it had possession of the note or mortgage.
“Authority of an agent to collect interest on a mortgage does not afford ground for inferring authority to collect the principal, where the agent is not intrusted with the possession of the securities.” Jones on Mortgages, § 964; Richards v. Walker, (Neb.) 68 N. W. 1053; Hollinshead v. Jno. Stuart & Co. (N. D.) 77 N. W. 89; Thompson v. Buelher, (Neb.) 95 N. W. 854; Joy v. Vance, (Mich.) 62 N. W. 140; Trull v. Hammond, (Minn.) 73 N. W. 642; Klindt v. Higgins, (Iowa) 64 N. W. 414.
Finally, it is contended by counsel for defendants that the plaintiff is estopped to deny that the Bank of Siloam had authority to collect the principal of the note. In the case at bar the defendant knew the note was negotiable, and knew that it was intended to pass from owner to owner by indorsement. He knew it was liable to pass at any moment, and that the last person thus receiving it could require at his hands the full amount of the note. He had only to see to it that he received his note when he paid his money.
As stated in the case of Hollinshead v. Jno. Stuart & Co., supra; “If he neglected this simple requirement, demanded no more by the law than by common prudence, he paid at his peril; and, if loss occurs, he must bear it. One party or the other must suffer, and he, being the party in fault, must bear the burden.”
In the case of Bartel v. Brown, (Wis.) 80 N. W. 801, the court said: “The importance of protecting the holders of commercial paper is so great that to warrant finding that a person who assumes to have authority to receive payment of the principal sum on any such paper has such authority, possession of the paper itself by such person, or proof aliunde of express authority, is indispensable. As said by the court in Smith v. Kidd, 68 N. Y. 130, “Any other practice would be dangerous in the extreme.” “If money be due on a written security, it is the duty of the debtor to see that the person to whom he pays it is in possession of the security. That is the best evidence of authority. The payor is negligent if he relies on anything less, and must abide the event of being able to stablish, by clear and satisfactory evidence, an express agreement between the holder of the security and the supposed agent, authorizing the latter to represent the former in the transaction. To that familiar doctrine there are many authorities, a large number of which are collated in Jones, Mortg. § 964.”
In the instant case the plaintiff did nothing whatever to mislead the defendant. The defendant does not claim that the plaintiff, either by his conduct or acts, did anything to mislead him, but, on the contrary, he states that he thought the Bank of Siloam was the owner of the note and made the payment to them under that belief, and not because he thought the bank was acting as agent of the plaintiff.
The decree is therefore affirmed. | [
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Hart, J.
This is an action for damages for breach of a contract by appellees against appellant. There was a verdict and judgment for appellees, and the case is here on appeal.
The appellees, T. J. Ellis and Geo. C. Peters, owned a tract of land comprising four hundred and forty acres in Craighead County, Arkansas, and the appellant, T. C. Skeen, of St. Louis, Missouri, owned a town lot ninety by ninety feet in Hattiesburg, Mississippi, on which was located three small dwelling houses. T. H. Watson was a real estate agent at Jonesboro, Arkansas, and desired to bring about an exchange of the property between the parties. On May 30, 1911, appellees wrote to Watson at Jonesboro, as follows:
“Confirming our conversation with you, we hereby give you option until June 10, 1911, to purchase or sell for us all the land we own (440 acres) in section 36, township 14 north, range 2 east, Craighead County, Arkansas, at a price of $23 per acre, and agree that we will take one town lot 90x90 feet in Hattiesburg, Miss., on which is located three small dwellings. This property is now controlled by Mr. T. C. Skeen, of St. Louis, Mo., and the same is to be taken in exchange at a value of $5,000. The remainder of the purchase price of the 440 acres to be paid as follows: $2,000 cash down, and the balance in four equal semi-annual payments with interest at 6 per cent. The title to the Mississippi, property must be approved by us.”
On the same day F. H. Watson wrote to the appellant, T. C. Skeen, at St. Louis, as follows:
“Complying with your request, I have secured the foregoing option from the owners of the land we have under consideration (440 acres near Gilkerson) and hereby transfer the same to you with the same price, terms, etc., mentioned therein.”
F. H. Watson testified: “I became acquainted with appellant about the 1st day of June, 1911. The terms of the option I received from appellees were verbally changed as follows: The appellant was to take three hundred and twenty acres of land in Craighead County, instead of four hundred and forty acres at the same price, and the appellees were to .take the Mississippi property. Under the changed terms the appellant was to pay one-third of the Mississippi property in cash and execute his two notes for $786.66 each, payable one and two years after date, with interest. This agreement was reached on June 10, 1911.”
Ellis and Peters executed a deed' to Skeen, and sent it through the Bank of Jonesboro to Kirkwood Trust Company, at Kirkwood, Missouri, to be delivered to appellant when they so ordered. The appellant executed a deed to the Mississippi property and sent it to the Bank of Jonesboro to be delivered to Ellis and Peters upon his direction. Appellant says that he received the deed of the appellees from the Kirkwood Trust Company on July 26, 1911. The appellees received the deed from the Bank of Jonesboro on July 26, or 27, 1911. On the 21st day of July, 1911, one of thehouses on the Hattiesburg property was accidentally destroyed by fire, and another one was damaged by fire. Neither of the parties took possession of the property respectively conveyed until after the delivery of the deeds. Appellees did not know of the fire until after the deed was delivered to them. The appellant testified that he did not know of the fire before his deed, was delivered by the Bank of Jonesboro. On the other hand, appellees adduced evidence tending to show that appellant did know of the fire before his deed was delivered to appellees. The court, upon the suggestion of appellees, propounded special interrogatories to the jury in regard to this. The special interrogatories and the finding of the jury are as follows:
“1. Do you find the defendant Skeen knew of the fire before his deed was delivered by Bank of Jonesboro to the plaintiffs?” Answer: “Yes.”
“2. Do you find that plaintiffs, Ellis and Peters, or. either of them or their agent, Watson, knew of the fire before the delivery of defendant’s deed by the Bank of Jonesboro?” Answer: “No.”
Numerous letters and telegrams in regard to the negotiations between the parties are copied in appellant’s abstract. To set out this correspondence, here would unduly extend this opinion. Sufficient reference and discussion of the letters, telegrams and conversations between the parties and Watson will be made later.
It is contended by counsel for appellant that the rule is that where houses situated on lots under a contract of sale are accidentally destroyed by fire before the deed is delivered the loss must fall on the vendee. We do not deem it necessary to determine this question for the reason hereinafter given. The authorities on both sides of the - question are cited in the case note in Hawkes v. Kehoe, 9 Am. & Eng. Ann. Cases, 1053. See also 6 Pomeroy, Equity Jurisprudence, § 859.
In a recent case we in effect held that if the parties finally agree upon all the terms of a contract and intend to become immediately bound there is a complete contract, although they intend to embody the terms of the agreement in a written instrument to be subsequently executed by them. Friedman v. Schleuter, post p. 580.
It is the settled law that a contract may be made by letters, and that the mere reference in them to a future formal contract will not prevent their constituting a binding bargain.
A written contract for the sale of land, however, is not complete if the vendor has an option to put an end to the contract. We think the undisputed evidence shows that the parties to the contract did not intend for it to be a complete and binding contract until the deeds were delivered. All through their correspondence the parties speak of closing up the contract when they become satisfied with the abstracts of title. We do not think they proceeded upon the theory that the contract compelled them to accept the abstract of title if they should prove correct. On the contrary, they proceeded upon the understanding that they could not be compelled to take the property until they accepted the title, and that the contract was not to be consummated until the deeds were delivered to the respective parties. It is certain that the appellant did not consider the contract for the exchange of the lands to be a complete and binding one until the deeds were delivered. Each of the parties prepared his own deed and deposited it with the bank or trust company to be delivered to' the other party when he should so direct.
On the 25th day of July appellant called up Watson and stated to him that the matters had not been wound up, and that he wanted to leave that night, and that before he closed up the contract he wanted to know the condition of affairs. Watson told him that there were some objections to the abstract of title of Ellis and Peters that had not been met. Appellant stated to him that he had waited about as long as he could on them, and that they were so slow he felt like calling the deal off. Watson then told him that he would personally guaranty the abstract and meet all objections. Appellant then requested him to wire him to that effect, and that he would close the transaction that day and make a payment on the land. This conversation over the telephone is not denied by appellant, and he is in no position now to claim that the contract was a binding one on the 10th day of June, 1911. It is true that the notes executed by appellant were dated June 10, 1911, but Watson states that this was done for the sake of convenience. The papers on each side were prepared at different places and at different times, and the parties only agreed upon this date so that the papers would bear a uniform date of execution. The appellant had an insurance policy on the Hattiesburg property, and by agreement transferred this policy to the appellees, but he retained the policy in his possession, and the parties did not intend that it should become binding until the trade between them for the lands should be completed. We think it is evident from the whole course of conduct of the parties that they did not intend the contract to be completed and binding until the deeds were delivered. As above stated, certainly the appellant can not so contend, for by his own construction he had the right to call the deal off at any time before the deeds were delivered. We think that the undisputed testimony shows that both parties recognized the fact that the letters were simply an offer by the one to the other, and that the lands were to be exchanged at some time in the future when the deeds were made and delivered. Before that time came both parties recognized that the contract was not a binding and enforceable one. Ark. Fire Ins. Co. v. Wilson, 67 Ark. 553.
Consequently, the court did not err in instructing the jury that the title to the property did not pass until the date of the delivery of the deeds. Some correspondence was had between the parties themselves, and between them and the insurance company, looking to the adjustment of the loss after the fire occurred; but there is nothing in the correspondence to indicate that the parties regarded the contract as completed prior to the time of the fire. They both seem to have had in view an adjustment of the matter with the insurance company. The jury, in answer to the special interrogatories propounded to it, found that appellant knew of the fire before his deed was delivered to appellees, and that neither of appellees, nor their agent, Watson, knew of the fire before the delivery of the deed.
The verdict of the jury upon this disputed question of fact is binding on us, and establishes the liability of appellant. The judgment will be affirmed. | [
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Frauenthal, J.
This is an action instituted by a school district through its directors seeking to enjoin appellee from using the public schoolhouse of the district and from-teaching a school therein and also to cancel a contract made with him to teach said school, which it is alleged was invalid. It is alleged in the complaint that a contract had been entered into with appellee to teach the school, but only two of the school directors had joined in its execution, and for that reason it was invalid. It was also alleged that the appellee was incompetent and had failed to perform his duties as teacher, and since the contract was made his license as a teacher had been revoked by the county superintendent of public schools. To this complaint appellee filed an answer in which he denied each of the above allegations and averred that he had been duly employed to teach the school for ten months and was faithfully carrying out said contract. Upon the filing of the complaint, a temporary restraining order was issued which was subsequently dissolved, and upon final hearing of the case the complaint was dismissed, and a judgment rendered in favor of appellee for damages for expenses incurred by him for paying railroad fare, hotel bills and other items in obtaining the dissolution of the temporary restraining order, amounting to a total of $30.63. It appears from the testimony that on September 4,1911, appellee entered into a written contract with two directors of* the school district by the terms of which he agreed to teach the school for a period of ten months from that date. He at once began teaching the school and continued for three weeks, when complaints were made by patrons charging that he was incompetent and failing to discharge correctly his duties as such teacher. He was requested by the two directors to quit teaching the school, which he refused to do. Thereupon, at the suggestion of these two directors, the superintendent of public instruction of the county saw him and requested him to quit teaching the school, and on his failing to do so declared his license as a teacher revoked. This suit was then instituted, and the appellee did not teach the school thereafter. The appellee taught the school for three weeks, and we think there was testimony sufficient to warrant the finding of the chancellor that he was a competent teacher and performed his duties properly, and that the revocation of his license was made without notice or hearing, and therefore was unauthorized and invalid. The undisputed testimony, however, shows that the contract for teaching the school was entered into by only two of the directors of the district. The third director had no notice of, and was not present at, the meeting at which this contract was made, and did not know that the contract had been made. He did not know that appellee had been employed as such teacher, and there was no evidence adduced showing that he knew that appellee was teaching the school during said three weeks. It appears that the two directors who signed the contract lived in one end of.the district and the third director lived at some distance at the other end; that there were two schools in the district; and that the directors had a general understanding or tacit agreement that the two directors would employ a teacher at one of these schools and the third director at the other. The third director testified that he did not know of appellee’s contract until the suit was instituted; that if he had known that any one was complaining of his employment he would not have signed the contract, and that, he joined the other directors in their action in seeking to restrain appellee from further teaching the school.
As stated by counsel for appellee in their brief, the sole questions presented by this appeal for determination are:
(1) Whether the contract signed by only two directors of the school district was binding, and
(2) If not, was it acquiesced in and ratified by the third director so as to validate it?
It has been repeatedly held by this court that a contract entered into at a meeting of a school board at which only two of its members are present, and of which meeting the third had no notice, is invalid. School Dist. v. Bennett, 52 Ark. 511; Burns v. Thompson, 64 Ark. 489; Springfield Furniture Co. v. School Dist., 67 Ark. 236; School Dist. v. Adams, 69 Ark. 159; School District v. Allen, 83 Ark. 491; School Dist. v. Garrison, 90 Ark. 335.
The manifest purpose of the school law in providing for a, board consisting óf three members is to obtain the advantage of the counsel of three directors at a meeting for transacting the school district’s business. The fact that the testimony in this case shows there had been a general understanding or agreement between the directors of this school district that two of them could act in the absence of the third and without prior notice to him of a meeting for such action would not meet this requirement of the statute. Such an agreement or custom would simply lead to the encouragement of a neglect of and failure upon the part of one of the directors to perform his duty, for which a penalty is prescribed by our statute.
It is conceded that the contract made by two directors with appellee was, according to the undisputed evidence adduced in the case, invalid at its inception, but it is urged that it was acquiesced in and ratified by the third director and thus made binding on the district. Reliance for this contention is made upon the case of School District v. Goodwin, 81 Ark. 843. In that case it was held that the contract for the employment of a school teacher, made at a meeting of two directors of which the third had no notice, was binding if acquiesced in and ratified thereafter by the absent director. In that case, however, the testimony tended to prove that the teacher opened and began teaching the school under her written contract with the knowledge and acquiescence of this absent director. The teacher continued to teach the school for two months, and the absent director, as the secretary of the school board, drew warrants in this teacher’s favor for each of the completed months which she taught. Testimony showed that all parties in authority, including the absent director, had knowledge of the fact that the contract of employment had been made with the teacher when she opened the school, and by their acts and conduct acquiesced in the contract, defective though it was, by knowingly permitting her to continue teaching for nearly half of the life of the contract. It was held that such evidence was sufficient to prove the acquiescence in and the ratification of the contract by the entire board.
In the case at bar, however, the'undisputed evidence shows that the absent director did not know that the contract of employment had been made with appellee, or that he was teaching the school. Without such knowledge the absent director could not have acquiesced in the contract which was made, and therefore there could not have been any ratification of it by him. It follows that the contract under which appellee was proceeding to teach this school was invalid and not binding upon the school district. The decree is accordingly reversed, and this cause is remanded with directions to enter a decree in accordance with the prayer of the complaint. | [
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McCulloch, C. J.
This cause was formerly here on plaintiff’s appeal, and was reversed on account of the trial court’s error in giving a certain instruction. Fletcher v. Freeman-Smith Lbr. Co., 98 Ark. 202, 135 S. W. 827.
The second trial resulted in another verdict in favor of defendant, the court giving a peremptory instruction, and the plaintiff again appealed.
There is a slight difference in the testimony given in the two trials, and it therefore becomes necessary to restate the facts. Plaintiff was brakeman on a log train operated by defendant in the course of its business, and one of his duties was to couple cars. He was injured while attempting to couple to the end of the tender a car loaded with logs as the engine and tender backed on a spur track on which the log car was situated. He went in between the rails, and, after adjusting the coupling pin on the log car, took hold of the iron bar or “reach” as it is called, which serves as the connection, but, as it came in contact with the drawhead of the car, he saw that it was too low to connect, and then attempted to signal the engineer to stop. Before the engine was stopped, he was caught between the ends of the tender and the car, and his leg was mashed. He charges in his complaint that the engineer was guilty of negligence in failing either to get the signal or to stop the engine after the signal was given. Does the evidence, viewing it in the strongest light, sustain that charge? The evidence is uncontradicted that the engineer was at his place in the cab of the engine,' where he could have seen the signal if it was properly given. He testified that he was looking for a signal, and would have seen it if given. Plaintiff testified that he was between the rails, and gave a signal with his hand, but could not remember whether he gave it by throwing his hand upward or outward — that it could have been seen from the engine cab if he gave it by an outward movement of his hand, but not if given by an upward movement. At least, he stated that he did not know that it could have been seen if given by an upward movement with the hand. The burden was on plaintiff to show that he gave the signal in such a manner that it could be seen by the engineer in the cab while in proper position to receive it. This he did not do, and has therefore failed to make out his case.
He attempted in another way to make out a charge of negligence against the engineer in failing to stop the engine in time to prevent injuring him. He introduced another witness who testified as an expert on the subject of operating that kind of an engine, that a skilled engineer, even without getting a' signal, could see the bulk of the car from his seat in the cab, and could gauge the distance so as to discover the failure of the coupling to make successfully at the proper time. He stated that the engineer ought to have been able to discover when the end of the reach passed the drawhead of the car, and that the engine could have been stopped in a distance of eight inches while going at the rate of speed it should have traveled while approaching to make a coupling. We understand from this that the engine could have been stopped in eight inches when the brake was applied. The bar or reach is shown to be from thirty to thirty- six inches long; therefore the engine only had to travel that distance after the end of the reach passed the drawhead of the car before the end of the drawhead collided with the tender. Now-, it can not be assumed from the testimony of the expert that the engineer, without being able to see more than the bulk of the car, and not the drawhead itself, could gauge with mathematical exactness just when the end of the reach would pass the drawhead without coupling successfully. Yet, in order to convict him of an act of culpable negligence, it must be based on a failure, during the time the engine traveled a distance of thirty of thirty-six inches, to realize that the reach had passed the drawhead and then stop the engine, which required a distance of eight inches after he applied the brake. In other words, he is charged with negligence because he failed, in that short a distance, to discover that the coupling had failed to make and to apply the brake so as to stop the car before the collision occured. We think that is too narrow a margin of time and distance, under the circumstances of this case, on which to successfully predicate a charge of negligence. Moreover, the expert witness testified that when the reach passed the drawhead the car must have hit the engine before plaintiff could give the signal. If that be true, how can the engineer be guilty of negligence in not stopping the engine in that short distance? We are of the opinion, therefore, that the plaintiff failed to make out a case, and that the court properly withdrew it from the jury.
The plaintiff also assigns error of the court in refusing to permit him to propound certain questions to a witness. The record does not disclose what plaintiff expected to prove by the witness; therefore, we are unable to determine whether any prejudice resulted from the ruling.
Judgment affirmed. | [
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Kirby, J.,
(after stating the facts). The court erred in permitting the introduction of the testimony relative to the repairing of the car after the accident and injury and the argument of counsel complained of thereon. It has often been held that evidence of the subsequent repairing of the defective appliance, after an injury has occurred from its use, is incompetent and not permissible to show negligence of the master in furnishing it. Prescott & N. W. R. Co. v. Smith, 70 Ark. 179; St. Louis S. W. Ry. Co. v. Plumlee, 78 Ark. 147; Fort Smith L. & T. Co. v. Soard, 79 Ark. 388; Bodcaw Lbr. Co. v. Ford, 82 Ark. 555; St. Louis, I. M. & S. Ry. Co. v. Walker, 89 Ark. 556. “When incompetent evidence is introduced, prejudice is presumed, and the burden is upon the party introducing it to show that no prejudice resulted.” St. Louis, I. M. & S. Ry. Co. v. Courtney, 77 Ark. 43; St. Louis, I. M. & S. Ry. Co. v. Walker, supra. It is not shown in this case that no prejudice resulted from the introduction of the incompetent testimony, but the prejudice was rather increased by the argument of counsel in relation to it.
Instruction numbered 1, given by the court for appellee, was erroneous in leaving out entirely the appellant’s claim of contributory negligence upon his part, and concluding, after a statement that if they should find certain facts he “should not be regarded as having assumed any danger risk by reason of the defective plank in the flooring of the car, and you should find for him if he was injured as he claims he was.”
We do not think this conclusion amounts to directing the jury, as appellant claims, that they should find for appellee in any event, if he was injured as he claimed to be, but only that, if they found certain facts, then appellee had not assumed the risk and was entitled to recover. It was erroneous, however, in directing them that they could find for appellant, under certain conditions, if he did not assume the risk, without taking into account the defense of contributory negligence. Helena Hardware Co. v. Maynard, 99 Ark. 377.
The second instruction is confusing and incorrect, as was the suggestion in the latter part of the instruction numbered 1, given on the court’s own motion in saying “it is the duty of the defendant to furnish safe tools and appliances for its employees to work with.” This was attempted to be remedied later on in the instruction, but ineffectually. The law only requires that the master shall use ordinary or reasonable care to furnish safe tools and appliances for the use of employees. (St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 567; St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 479), and instruction numbered 6, as requested by appellant, was a correct statement of the law on this point and amounted to a specific objection to the incorrectness of instruction numbered 2, on that account, and the court erred in refusing to give the one and in giving the other as requested.
Instruction numbered 4 left the jury to their opinion and judgment as to the amount of damages they should award for bodily pain and suffering, instead of limiting their judgment and opinion to being based upon the testimony, which they could not, of course, arbitrarily disregard.
We have not examined the other instructions with a view to approving them.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
The parties’ to this action were the owners, as tenants in common, of a tract of land in Jackson County, Arkansas, and appellees, who owned an undivided one-sixth interest in the land, commenced this action in the chancery court against appellants, who were the owners of the other five-sixths, to have a partition according to their respective intersts. Robert C. McAuley, one of the appellees, claimed an interest, as tenant by the curtesy, in the undivided one-sixth interest owned by his co-appellees, and he joined as party plaintiff in the suit. Appellants employed attorneys to represent them in the cause, and promptly made their appearance and filed an answer, in which they disputed the rights of Robert C. McAuley as a tenant'by the curtesy, and also alleged that the lands could not be partitioned in kind, and asked that the same be sold for partition. On final hearing of the cause, the court appointed commissioners to make partition, and on report of the commissioners the court rendered a decree for partition of the lands in accordance with the respective shares of the parties. Subsequently the court made an order allowing appellees the sum of $300 as a fee for their solicitor, and taxed the same as costs in the action. From this part of the decree an appeal has been prosecuted.
Therefore, the only question presented in the case is, whether or not, in a suit for the partition of lands, it is proper to allow the solicitor of the plaintiff a fee for his services, and tax the same against all the parties to the action!
The only statute in this State bearing even remotely on the question at issue is a section of the Civil Code relating to proceedings where lands are sold because not susceptible of division, and it provides that “the proceeds of every such sale, after deducting the costs and expenses of the proceedings, shall be divided among the parties whose rights and interests shall have been sold, in proportion to their respective rights in the premises.” Kirby’s Digest, § 5793.
The Supreme Court of Michigan held that a somewhat similar statute authorized the allowance of attorney’s fees in a partition suit where no sale of the land was made. Greusel v. Smith, 85 Mich. 574, 48 N. W. 616.
This does not seem to us, however, to be the proper construction of the statute,' and in this view we are supported by decisions of other courts. Swartzel v. Rogers, 3 Kan. 380; Lang v. Constance, 20 Ky. Law Rep. 502, 46 S. W. 693.
This court, in Cowling v. Nelson, 76 Ark. 146, held that the chancery court was without jurisdiction to order a sale of lands in a partition suit to pay costs and expenses, including attorney’s fees.
So, if there be authority to tax attorney’s fees against the parties in a partition suit, it must be found outside of the statutes of this State. That question has never before been here for decision. In Cowling v. Nelson, supra, we said:
“The utmost that can be said of the attorney’s fees are that they were part of the costs; and as to whether the court has, in amicable suits, any right to tax them as costs is a question that the courts are divided upon, but all agree that in adversary proceedings they can not be so taxed.”
Upon consideration of that question, it’now appears to us that the weight of authority is against the taxation of attorneys’ fees, even in amicable partition suits, unless the partition resulted solely from the services of the solicitors for one of the parties, and such services were accepted by the other parties. See 21 Am. & Eng. Enc. of Law, (2 ed.) pp. 1177-78; 30 Cyc. p. 298; Jordan v. Farrow, 130 Ala. 428; Hutts v. Martin, 134 Ind. 587; Coles v. Coles, 13 N. J. Eq. 365; Butler v. Butler, 73 S. C. 402; Legg v. Legg, 34 Wash. 132.
In adversary suits there is no ground for taxing the fees of the solicitor of one of the parties against the other parties, and the doctrine of allowance of attomey'’s fees in amicable suits of this character should, we think, be limited to those cases where the services of the plaintiff’s solicitor not only result in benefit to the whole subject-matter of the litigation, but are accepted and acquiesced in by the other parties. The rule does not apply where all of the parties appear by their respective solicitors and the proceedings are conducted through their joint efforts. The true rule which should govern in these cases is, we think, stated by the New Jersey court as follows: “The order for the allowance is frequently based on the consent of parties or on the statement that the parties concur in the allowance. Where this is the case, or where the proceeding is in fact amicable and in behalf of all the parties interested, the propriety of the allowance is manifest. The aid of counsel is necessary to investigate title, to examine conflicting claims, and to conduct the cause. Where the defendant concurs in the proceeding, there is no reason why the complainant should be compelled to bear this part of the expense more than any other. In such case the complainant’s counsel represents the interests and protects the rights of all the parties. All are presumed to be equally benefited by the proceedings. But the complainant’s claim to partition may be resisted. The proceedings may be hostile, or, if not hostile, the defendants may employ their own counsel, and by answer seek to protect their interests. If the plaintiff’s title is disputed, or the partition opposed upon any ground unsuccessfully, the defendants will be compelled to pay costs. And if no opposition is made to the partition, and the defendants choose to employ their own counsel, why should they be compelled to pay the counsel of the complainant? If the complainant is entitled to an allowance for counsel fees, why not the defendants also? As the proceeding in this case is not amicable, and as the claim for counsel fees is resisted by the defendants, it must be denied.” Coles v. Coles, 18 N. J. Eq. 365.
Now, either of the rules above stated excludes the right of the appellees to have their solicitor’s fee taxed as a part of the expense of the proceeding. Appellants promptly appeared in the action with their own solicitors to represent them, and thereafter took part in the proceedings, the same becoming to some extent adversary. Up to the time of the appearance in the case it can not be said that the proceedings were amicable, for it could not be told, until the appearance day passed, whether the same would be amicable, or whether they would thereafter be adversary. As a matter of fact in this case, the proceedings did become to some extent adversary, for appellants denied the right of partition in kind, and asserted that the lands could not be equitably divided, and should be sold for division. Thereafter they were represented by their own counsel, and there is no reason why, in addition to this, they should be taxed with any portion of the fees of the solicitor of appellees. It can not be said under those circumstances that they ever accepted the benefit of the services of appellees’ solicitor, for they were represented by their own solicitors in every step of the proceedings.
We are not to be understood as holding that, where one or more tenants in common brings suit against the other tenants in common for partition, and there is no appearance or resistance, the proceeedings resulting in an amicable parti tion of the property, the fees of the plaintiff’s solicitors should not be taxed against all the parties. That question does not arise in this case under the facts as before related. But, even in that sort of a case, if the fees are taxable, they can only amount to such sum as the solicitor can appropriately charge his own client, and not the fee he might have charged if employed by all of them. Bradshaw v. Bank of Little Rock, 76 Ark. 501. “The object of the allowance,” said this court in the above cited case, “is not to give the attorneys a larger fee than they might have recovered from their own clients but to shift the burden of the charge from them and place it upon the creditors of the bank generally. The inquiry then is, what would have been a reasonable charge against their own clients for the services performed?”
Our conclusion, therefore, is that it was improper to tax any attorney’s fees against appellants, and the decree of the court in that respect is reversed, and the allowance stricken out. It is so ordered. | [
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Kirby, J.,
(after stating the facts). This indictment charges the sale of liquor without first procuring a license, as required by section 5093 of Kirby’s Digest, the punishment for which offense is prescribed by section 5112 of the Digest, which makes provision for different and greater penalties upon the second and third conviction of a similar offense, with a proviso as follows:
“Where more than one indictment is found against the same party or parties at the same term of court, if it be the first charge or charges of this nature against the party or parties, the same punishment shall be inflicted under each indictment as if it were the first offense, and each day of such unauthorized selling shall constitute a separate offense.”
It is insisted that, since both of the sales of liquor charged against the defendant occurred on the same day at the same time, they constitute but one offense under said proviso, and the Attorney General confesses error, and we are of the opinion that the confession of error should be sustained.
The proviso is to be construed with reference to the immediately preceding parts of the clause, to which it is attached. Lewis’ Sutherland, Statutory Construction, §§ 352, 420; Friedland v. Sullivan, 48 Ark. 213; United States v. Bobbitt, 1 Black, 94; McRae v. Holcombe, 46 Ark. 310; Towson v. Denson, 76 Ark. 306.
It is stated therein that ‘ ‘ each day of such unauthorized selling shall constitute a separate offense,” and the meaning is so clear and plain as to admit of no other construction, and, by the use of such language, it could not have been the intention of the Legislature to make each sale a separate offense, but only each day’s unauthorized selling without regard to the number of sales made where it is the first offense, as designated in said proviso.
This being the first offense and the sales both being shown to have been made on the same day, but one offense was committed, and but one conviction could be had therefor.
The court erred in denying the plea of former conviction .and in refusing to instruct a verdict for appellant. The judgment is reversed, and the cause dismissed. | [
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McCulloch, C. J.
The merits of this controversy involve the construction of the last will and testament of Elizabeth S. Shall, who died in the city of Little Rock on March 23, 1908, the owner of a large estate, consisting mostly of valuable lands, city and farm property. The will was executed January 17, 1898, and on April 14, 1905, she added a codicil. The preamble or introductory clause of the will reads as follows:
“I, Elizabeth S. Shall, of the city of Little Rock, county of Pulaski, State of Arkansas, being in good bodily health and of sound and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs and directing how the estate with which it has pleased God to bless me shall be disposed after my decease, while I have strength and capacity so to do, do make and publish this, my last will and testament, hereby revoking and making null and void all other last wills and testaments, by me heretofore made; * * * as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, towit:”
In item 1 the testatrix gave to appellant, D. F. S. Galloway, who was her grandnephew, her home in the city of Little Rock, and all its contents, furniture, paintings, silver, etc.; horses, carriages and harness; and also certain other lots of real estate in said city, and a tract of land in Pulaski County containing 180 acres.
In item 2 she gave to her nephew, W. A. Galloway, two lots in Little Rock, and a certain tract of land in Pulaski County.
In item 3 she gave to her niece, Elizabeth S. Darby, a farm in Pulaski County known as the “Shall place,” containing about 786 acres. The language of that devise is as follows:
“I give, devise and bequeath to my niece, Elizabeth S. Darby, the place known as the 'Shall place,’ consisting of about 786 acres of land in Pulaski County, State of Arkansas, towit:” (Here follows description).
In item 4 sbe gave two lots in the city of Little Rock, and a farm in Pulaski County known as the “Beasley place,” to her niece, Mary A. Eanes, for life, with remainder over to D. F. S. Eanes, a grandnephew of the testatrix.
In item 5 she gave to her grandnephew, D. F. S. Eanes, three lots in the city of Little Rock, the property being left in trust to D. F. S. Galloway as trustee for the benefit of said D. F. S. Eanes until the latter should come of age.
In items 6 and 7, respectively, she bequeathed sums of money to a friend and to a certain church in Little Rock.
Item 8 contained the following residuary devise and bequest:
“I give, devise and bequeath to my grandnephew, David F. Shall Galloway, all the rest and residue of my estate not hereinbefore specifically devised and bequeathed, whether real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease.”
After the residuary clause the will reads as follows:
“The property herein devised and bequeathed in items 4 and 5 to my grandnephew, David F. Shall Eanes, shall, in the event of his death without issue of his body him surviving, vest in fee simple in his mother, my niece, Mary A. Eanes, her heirs and assigns.
“All the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns, in fee simple, and the property devised and bequeathed to my nieces is to be their sole and separate property and free from the control and debts of their said husbands, together with the rents and profits of the same.”
By her codicil the testatrix revoked the devise to appellant, D. F. S. Galloway, as to some of the said lots given to him in the will, and devised the same to Elizabeth S. Darby in fee simple. The codicil made certain other changes not material to this controversy.
Elizabeth S. Darby died prior to the death of the testatrix, and the controversy in this suit is as to the devolution of the property devised to her in the will and codicil.
It is the contention of appellant that both of the devises to Elizabeth S. Darby lapsed on account of her death prior to the death of the testatrix, and that that property fell within the residuary clause of the will. The chancellor decided that the devise to Mrs. Darby in the will did not lapse, but went to her children under the terms of the will; and that the devise to Mrs. Darby in the codicil lapsed, but did not fall within the residuary clause, and as to that the testatrix is deemed to have died intestate, and the property descended to her heirs at law. Appellant, D. F. S. Galloway, is not one of the heirs of the testatrix, so under the decree he gets none of the property in controversy, and he appealed to this court. W. A. Galloway, the father of D. F. S. Galloway, is one of the heirs, and is a party to this suit. He appealed from that part of the decree which holds that the property devised to Mrs. Darby in the will goes to her children.
The rule is established beyond controversy, except where changed by statute, that a legacy or devise lapses when the legatee or devisee dies before the testator. 17 Am. & Eng. Ency. of Law, p. 748, and authorities there cited.
“The liability of a testamentary gift to failure or, as it is generally termed, lapse,” says Mr. Jarman, “by reason of the decease of its object in the testator’s lifetime, is a necessary consequence of the ambulatory nature of wills, which, not taking effect until the death of the testator, can communicate no benefit to persons who previously die.” 1 Jar-man on Wills (6 ed.), p. 307.
A statute of this State changes that rule as to a legacy or a devise to a child or other descendant of the testator, and provides that it shall not lapse, but that “the property so devised or bequeathed shall vest in the surviving child or other descendant as if such devisee or legatee had survived the testator and died intestate.” Kirby’s Digest, § 8022.
It is conceded that the devise to Mrs. Darby in the codicil lapsed, as decided by the chancellor, by reason of her death before the death of the testatrix and the property either falls within the residuary clause of the will, if that clause is broad enough to include it, or descends to the heirs at law of the testatrix, as undisposed-of property. That question will be considered later.
It is contended on behalf of appellees that-the devise of the Shall place did not lapse, and that it was the intention of the testatrix to substitute the children of Mrs. Darby as devisees in the event of the latter’s death before the death of the testatrix. This contention is founded on the general provision in the will that “all the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns, in fee simple.” The argument is, that there is presumed an intention not to permit the devise to lapse, and that the word “heirs” should be construed to mean “children,” so that a line of succession should be prescribed in order to prevent lapse. There might be more reason for adopting that construction of the provision if it applied only to the devise to Mrs Darby, but it applies to all of the property devised in the will except when “otherwise and specifically stated,” and the fact that the provision is a general one materially weakens the basis for construing the word “heirs” to mean “children.” We do not, however, mean to say that such would be the proper construction, even if the provision applied only to the devise to Mrs. Darby. On the contrary, we are of the opinion that the words, “their heirs and assigns,” were used in a technical sense to denote the character of the estate or extent of the interest to to be taken by the devisees — that they are words of limitation, not words of substitution.
The aim in construing a will is to correctly arrive at the intention of the testator, but the meaning is to be gathered from the language used.
“The question in expounding a will is not what the testator meant, but what is the meaning of his words; the use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words and a rigorous attention to them, is apt to lead the mind unconsciously to- speculate upon what the testator may have been supposed to have intended to say, instead of strictly adhering to the true question, which is, what that which he has written means; the will must be expressed in writing, and that writing only is to be considered. And in construing that writing the rule is to read it in the ordinary and grammatical sense of the words, unless some obvious absurdity or some repugnancy or inconsistency with the declared intention of the writer, to he extracted from the whole instrument, should follow from the reading of it.” 2 Williams on Executors, p. 327.
Cases are to be found where the words “heir” in a will or deed was construed to mean “children.” The following are among those cases: Wyman v. Johnson, 68 Ark. 369; Shirey v. Clark, 72 Ark. 539. Other examples are found in the many cases cited by counsel for appellees. But words used in a will must be construed according to the technical legal meaning unless explanatory words in the context qualify them or give them another meaning, or unless the peculiar situation under which they are used indicate an intention to use them other than in a technical sense;
In Moody v. Walker, 3 Ark. 147, this court said:
“When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite and legal construction, if the testator in making his will use such terms or similar expressions, they shall be construed according to their legal effect; for, if this was not the case, titles to estates would be daily unsettled, to the ruin of thousands.”
In Johnson v. Knights of Honor, 53 Ark. 255, in construing the meaning of the word “heirs,” the court said:
“It is a technical word. When used in any legal instrument, and there is no context to explain it, as in this case, it should be understood in- its legal and technical sense.” To the same effect, see Myar v. Snow, 49 Ark. 129.
“Though the intention of a testator, when ascertained,” says Mr. Jarman, “is implicitly obeyed, however informal the language in which it has been conveyed, yet the courts in construing that language resort to certain established rules by which particular words and expressions, standing unexplained, have obtained a different meaning, which meaning it must be confessed does not always quadrate with their popular acceptation. This results from the enactment of law, which presumes every person to be acquainted with its rules of interpretation, and consequently to use expressions in their legal sense, i. e., in the sense which has been'fixed by adjudication to the same expressions occurring under analogous circumstances, a presumption, though it may sometimes have disappointed the intention of a testator, is fraught with great general convenience, for, without some acknowledged standard of interpretation it would have been impossible to rely with confidence on the operation of any will not technically expressed until it had received a judicial interpretation.” 2 Jarman on Wills, p. 1651.
“In seeking for the expressed intention of the testator, his words are to receive that construction and interpretation which a long series of decisions has attached to them, unless it is very certain that they were used .in a different sense.” 1 Redfield on Wills, 433.
Lord Denman, in Gallini v. Gallini, 5 Barnewall & Adolphus, 621, said:
“Technical words, or words of known legal import, mfist have their legal, effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical words in their proper sense.”
Mr. Washburn has this to say on that subject:
“On the other hand, ‘heirs’ may have sometimes meant the same as ‘child’ or ‘children.’ That the testator intended to use it thus must be clear and something more than implication. Otherwise, it is a word of limitation.” 2 Washburn on Real Property, p. 603.
Judge Sharswood, speaking for the court in Doebler’s Appeal, 64 Pa. St. 9, said:
“While the intention of the testator, if consistent with law, is undoubtedly to be the polar star, yet we are bound to take as our guides those general rules or canons of interpretation which have been adopted and followed by those who have gone before us. It becomes no man and no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted, had he been truly advised as to the legal effect of the words actually employed. That would be to make a will for him, instead of construing that which he has made.”
This rule of construction has been universally adopted by judges and law writers. The exceptions to it are, as above stated, found in cases where there are qualifying words in the context, which show that a technical meaning was not intended, or the peculiar circumstances under which the words were used demonstrate clearly that they were meant otherwise than in the technical sense. In the present instance there is nothing to indicate that the term, “heirs and assigns,” was used otherwise than in the technical sense as words of limitation. There are numerous authorities holding that the word “heirs” in a will is a word of limitation, and not of substitution, and that the use of it, following the name of the devisee, does not prevent a lapse in the event of the latter’s death before that of the testator.
Mr. Jarman has this to say on that subject:
“The doctrine applies indiscriminately to gifts with and gifts without words of limitation. Thus if a devise be made to A and his heirs * * * or to A and the heirs of his body, and A died in the lifetime of the testator, the devise absolutely lapses.” 1 Jarman on Wills, p. 307.
“For the word ‘heirs’ in such cases,” says Mr. Underhill, “gives the heirs no interest under, the will, but it is merely a word of limitation, showing what interest the ancestor was to take in case he should survive the testator.” 1 Underhill on Wills, p. 436.
Mr. Redfield states the same rule as follows:
“The general presumption being that these terms of succession are used to mark the extent of the interest thus intended to be conveyed to the legatee or devisee, and are therefore words of limitation merely.” 2 Redfield on Wills, 160.
The same rule is stated in numerous authorities in support cited in Am. & Eng. Enc. of Law, vol. 18, p. 754. See, also, Jackson v. Alsop, 67 Conn. 249; Maxwell v. Featherston, 83 Ind. 339; Keniston v. Adams, 80 Me. 290; Kimball v. Story. 108 Mass. 382; Wood v. Seaver, 158 Mass. 411; Hand v. Marcy, 28 N. J. Eq. 59; Kimball v. Chappel, 27 Abbott, N. C. (N. Y.) 437; In the matter of Wells, 113 N. Y. 396; Moss v. Helsley, 60 Tex. 426.
In the case of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, it was urged that the use of the words, “and assigns forever,” enlarged the estate, which otherwise would have been restricted by the use of thé words, “bodily heirs.” But this court held, following other decisions cited in the opinion, that the word “assigns,” was to be construed in a technical sense, and that it only imported “that the estate may be transferred, and can not operate to enlarge the grant or defeat its express limitations.”
Our conclusion, therefore, is that the devise to Mrs. Darby in the will lapsed, and that the property the same as that devised in the codicil, either fell within the residuary clause or descended to the heirs at law of the testatrix. .
The remaining question relates to the devolution of the property described in the lapsed devises to Mrs. Darby. Did it fall within the clause giving the residuum of the estate to appellant, D. F. S. Galloway? The residuary clause is general in its terms, and covers all property of every kind not otherwise disposed of in the will. At common law there was a distinction made, with respect to the operation of the residuary clause of a will, between bequests of personalty and devises of real property, the English courts holding that lapsed legacies fell into the residuum, unless otherwise directed in the will itself; but that a devise of real estate did not go to the residuary devisee. This rule was based upon another distinction arbitrarily made by the English courts that, as to personalty, a will was deemed to speak from the date it took effect, i. e., from the date of the testator’s death, and, therefore, included property acquired by the testator after the execution of the will; but that, as to real estate, the will was deemed to speak only from the date of its execution, and did not include after-acquired property. The rule of the common law has been changed in England by the Statutes of Victoria (1837), and in most of the American States, so as to completely sweep away the old distinction between bequests of personalty and devises of real property, and make a will speak from the date of the testator’s death and convey after-acquired real estate as well as personalty; and where those statutes have been put into effect the rulings have been that lapsed legacies and devises fall into the residuary clause, unless a contrary inten tion on the part of the testator is expressed in the will. The rule and its changes are very clearly stated in the following excerpt from the opinion of the Indiana Supreme Court:
“It is said, however, that there exists an important distinction between a void or lapsed bequest of personal estate and a void or lapsed devise of real estate, which obtains both in England and America in this, that the former falls into the residue and the latter goes to the heirs. The reason generally assigned for such distinction has been the different operations of a will upon personal and real estate. It is said that as to personal estate the will would operate upon all the personal estate held by the testator at the time of his death; while as to his real estate the testator could only devise such as he owned at the time of his will. It is certain, we think, that the reason thus given for the supposed distinction has long since ceased to exist, if it ever existed in this State. Here the testator’s will of personal estate must be executed with precisely the same solemnity and formality as the will devising real estate; and there is no perceptible or practical difference in the operation of a will upon personal and upon real estate.” Holbrook v. McCleary, 79 Ind. 167.
And the Supreme Court of Massachusetts, speaking through Justice Dewey, gives the following explanation of the changes in the law on the subject:
“With us all ground for any such distinction has long since been done away with. Our whole system since the enactment of the revised statute, chapter 62, section 3, has been to carry out the principle that devises of real estate and legacies of personal estates were to be placed substantially upon the same footing as to the extent of the power to devise and the formalities required in the execution of the testamentary instrument.” Thayer v. Wellington, 91 Mass. 283.
For other cases announcing the same changes in the law see: Molineaux v. Reynolds, 55 N. J. Eq. 187; Estate of Upham, 127 Cal. 90; Drew v. Wakefield, 54 Me. 291; Reeves v. Reeves, 5 Lea (Tenn.) 644; Youngs v. Youngs, 45 N. Y. 254; Jackson v. Alsop, 67 Conn. 249; West v. West, 89 Ind. 529.
We have no statute on this subject specifically abolishing the rule of the common law as to the distinction in the operation of wills between personalty and real estate. But in the case of Patty v. Goolsby, 51 Ark. 61, it was decided that the course of legislation here has swept away all distinctions, and that a will is deemed to speak from the date of the testator’s death as to real estate as well as to personalty, and carries after-acquired property, both real and personal.. In that case the court, speaking through Special Justice Sol. F. Clark, said:
“We are not aware that the question has ever been directly before this court nor has there been any legislation in this State in terms changing or abolishing the English law on the subject. But a course of legislation was adopted at an early date wholly inconsistent with it and which has certainly swept away the principles or grounds upon which the rule has ever been understood to be predicated. * * * Considering the great changes in the policy as well as the formalities in alienating and assuring title to real estate as to what they were when the English rule on this subject originated and prevailed, we can not see, notwithstanding the common law has never been changed by any positive statute, any reason why a will should not speak from the death of the testator as to real as well as personal estate, and we are therefore of the opinion, and so hold, that, the testator being seized and possessed of said lands at the time of his death, they were included in his will and were conveyed thereby.”
That decision established here a state of the law similar to that of other jurisdictions where changes in the common law on this subject have been brought about by express statutory enactments. It necessarily and logically follows, from the application of the principles there announced, that lapsed devises of real estate fall into the general residuary clause unless a contrary intention of the testator is clearly expressed in the will.
It is insisted with much earnestness that the rule announced in Patty v. Goolsby, supra, was mere dictum, and should not be binding on us now as a precedent. We can not agree with counsel that the opinion on that point is obiter dictum. That particular question was elaborately argued in the brief on one side and seems to have been carefully considered by the court. If the court had reached a different conclusion upon that question of law, it would have been decisive of the issue be tween the parties. In other words, the case could have turned entirely upon the decision of that question; therefore, it can not be regarded as dictum merely because it was found necessary to consider another question in consequence of the conclusion reached by the court on that question. Besides, the case was a carefully considered one, and has undoubtedly become a rule of property in this State. We decline to overrule it or to discredit it.
Now, turning to the question of lapsed legacies at common law, -which must now be considered as the established rule also as to devises of real estate, we find little, if any, conflict in the authorities.
“A residuary gift of personal estate,” says Mr. Jarman, “carries not only' everything not in terms disposed of but everything that in any event turns out not to be well disposed of. A presumption raises for the residuary legatee as against every' one except the particular legatee, for the testator is supposed to give his personalty away from' the former only for the sake of the latter. It has been said that to take a bequest of the residue out of the general rule very special words are required, and accordingly a residuary bequest of property ‘not specifically given’ following various specific and general legacies will include lapsed specific legacies.” 2 Jarman on Wills, p. 716.
The rule sustained by a long list of adjudged cases is thus stated by the cyclopedists of the law:
“The residuary clause passes all the property of the testator that is not otherwise disposed of by the will, unless the words used show an intention to exclude from the operation of the residuary clause some part of the estate, it being the rule that a residuary clause will be liberally construed to prevent intestacy. This includes property acquired after the will was made if it appears that the testator intended his will to operate on after-acquired property, and legacies and devises that lapse or otherwise fail for any reason.” 18 Am. & Eng. Ency. of Law, p. 724.
In Lovering v. Lovering, 129 Mass, 97, the court said:
“A general residuary gift carries all property which is not otherwise disposed of by the will, and includes lapsed legacies and all void legacies. In this case the residuary gift was ‘all the rest, residue and remainder of my estate, real and personal, of every nature and description.’ The fact that he specifies certain remainders and reversions as included in the general description does not limit or narrow it.”
In the Matter of L’Hommedieu, 32 Hun (N. Y.) 10, the following statement of the rule is given:
“It is a settled rule of construction that a residuary clause carries all which is not legally disposed of by the will, unless a contrary intention is manifest by the will itself. Such an intention can not be deduced from the mere absence of words or that the testator failed to provide for the contingency upon which the lapse was occasioned. A testator is supposed to have given away from the residuary legatee only for the sake of the particular legatee.” Authorities need not be multiplied on this point.
It is argued that the language of the will prevents the operation of the residuary clause as a general one, and evinces a specific intention on the part of the testatrix not to include lapsed legacies. Counsel invoke a strict construction of the language of the residuary clause on the ground that a presumption should not be indulged of an intention on the part of the' testator to cut the heirs off from the lapsed devises, unless the intention is made clear, by the language of the will. While it is sometimes said that an intention to disinherit lawful heirs is not to be presumed, in the absence of clear and explicit language to that effect, yet there are other presumptions not to be overlooked. In the construction of wills there is always a presumption against partial intestacy unless such an intention clearly appears from the language used in the instrument. Booe v. Vinson, 104 Ark. 439; 2 Redfield on Wills, 116.
The presumption against intended intestacy leads to a liberal, rather than to a restrictive, construction of the residuary clause in the will, in order to prevent partial intestacy.
“Where the language of the residuary clause is ambiguous,” says the New York court, “the leaning of the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reasonable to suppose testators do not contemplate; and if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses, and to cover whatever is left, after satisfying specific and special purposes of the testator manifested in the other clauses of the will.” Lamb v. Lamb, 131 N. Y. 237.
This presumption is greatly strengthened by the language of the will and of its provisions, taken as a whole. The emphatic language used evinces a clear intention to cover all of the testator’s property. The preamble reads thus:
“As to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, towit:”
In 1 Underhill on Wills, § 464, this pertinent statement of the law on the subject is found:
“The rule is that the testator’s intention is to be ascertained from the whole will. If, therefore, the testator in the introduction expresses an intention of disposing of all of his estate, as when he says T give and devise all of my worldly goods,’ it should be considered. The presumption arises that, having the disposition of his whole estate in view, he did not intend to die intestate as to any part of it. If his subsequent language may be construed in either of two ways, by one of which a complete disposition will be made of his whole estate, and by the other only a partial disposition will be made, resulting in a partial intestacy, the introductory statement pointing to a complete disposition ought to be considered, and that sense adopted which will result in a di position of the whole estate. Hence it follows that language which in a general or residuary clause may not alone be sufficiently conclusive to dispose of all the property of the testator may have its meaning enlarged to correspond with an intention shown in the introductory clause.”
Mr. Redfield states the same conclusion as follows:
“The courts have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy unless absolutely forced upon them. This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator, for the fact of making the will raises a very strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of the will. Hence, where a general residuary bequest was accompanied with expressions affording a more limited construction and pointed only to a particular surplus beyond the properties specifically mentioned, it was nevertheless held to pass the residuum of his property at the time of his decease, as well that which he held at the date of his will as that afterwards acquired. Lord Eldon here said that it was the general rule in regard to residuary bequests to avoid partial intestacy, and that it required very specific words to confine a residuary bequest to the property belonging to the testator at the date of his will.” 2 Redfield on Wills, p. 116.
The words of the residuary clause, “not hereinbefore specifically devised,” do not overcome the presumed intention to include lapsed devises. That phrase must be construed with reference to the time that the will speaks, and, when so considered, it refers to valid devises or those which finally take effect under the will, but does not exclude from the residuum lapsed devises , or those which are void when the will takes effect.
“In all these cases of lapsed or void legacies,” says the Massachusetts court, “or a legacy that fails for want of using proper language to create the same, or to designate the legatee, all of which are uniformly held to pass to the residuary devisee, the testator had no purpose in his mind at the time of executing his will to pass such an estate to the residuary devisee. ‘It is not necessary that the testator’s mind should be active in including it.’ Goodright v. Downshire, 2 B. & P. 600. The contrary intention of the testator, spoken of in the books as that which will prevent such legacy going to the residuary devisee, is something more than the fact that the testator supposed that he had made a valid legacy to some one of a portion of his estate, but which the court held void and inoperative.” Thayer v. Wellington, supra.
In the following cases use of the same words in substance was held not to take lapsed devises out of the operation of the residuary clause: Roberts v. Cook, 16 Ves. Jr. 451; Brown v. Higgs, 4 Ves. Jr. 709; In re L’Hommedieu, 32 Hun (N. Y.) 10; Tindall’s Executors v. Tindall, 24 N. J. Eq. 512; Biker v. Cornwell, 113 N. Y. 115.
The conclusion is inevitable, if the principles above announced are to be considered as controlling, that the property included in the lapsed devises to Mrs. Darby fell within the general residuary clause of the will and passed to appellant, D. F. S. Galloway.
Objection is made to the jurisdiction of the chancery court upon the original complaint of appellant; but, inasmuch as the allegations of the cross complaint are confessedly sufficient to, give the court jurisdiction, and having taken jurisdiction for any purpose, the court will completely settle the rights of the parties in the subject-matter of the controversy.
The decree is therefore reversed, and the cause remanded with directions to dismiss the cross complaint of appellees and to quiet the title of appellant to all the property in controversy. | [
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Smith, J.
Appellant was indicted at the September, 1912, term of the Franklin Circuit Court, in the Charleston District thereof, and, upon his motion, the venue was changed to the Ozark District of that county, where he was tried and convicted upon a charge of uttering a forged instrument, and he appeals from the judgment of the court sentencing him to two years’ imprisonment in the penitentiary.
Omitting its formal parts, the indictment alleges that “the said Elmer Moulton on thé 13th day of November, 1911, in the county and district aforesaid, unlawfully, wilfully, feloniously, and designedly did utter and publish as true to one H. E. Council, cashier of the Bank of Branch, a corporation, a certain forged, altered, and counterfeited writing on paper purporting to be a bank check and in the words and figures as follows: 'Charleston, Ark., November 8, 1911. No___________________• Pay to C. H. Moore or order $23.00, Twenty-three dollars. Claud Mainard. Burke Prig. Co., Fredonia, Ks. Indorsed on the back as follows: 'C. H. Moore,’ 'E. E. Jones.’
“The said forged and altered writing as aforesaid being then and there passed, uttered and published as aforesaid by the said Elmer Moulton to the said H. E. Council, cashier of the Bank of Branch, a corporation, with the intent then and there unlawfully and feloniously to obtain possession of the property of the Bank of Branch, a corporation, one H. E. Council and one Claud Mainard. He, the said Elmer Moulton, then and there well knowing the said paper writing as aforesaid to be forged and counterfeited as aforesaid. Against the peace and dignity of the State of Arkansas.
“John D. Arbuckle,
“Prosecuting Attorney of the Fifteenth Judicial District.”
In apt time, defendant filed a motion for a new trial, alleging various grounds therefor, but the ones here relied upon are: (1) the insufficiency of the evidence; (2) error of the court in its instruction numbered 1; (3) error of the court in refusing to give the defendant’s instruction numbered 2. These points., will be discussed in their order.
The jury has found upon evidence, which is legally sufficient to support their finding that the defendant is guilty, and, in accordance with many decisions of this court, we will not disturb that finding. The proof is undisputed that Claud Mainard did not execute the check, and the most significant and convincing single circumstance in the proof is the fact that defendant swore positively he did not cash the check at the bank, while the cashier identified him and swore unequivocally that he had done so, and that he saw defendant indorse the name E. E. Jones on the back of the check. Gilchrist v. State, 100 Ark. 338.
The defendant complains of the instruction of the court numbered 1, which was as follows:
“1. If defendant passed to H. E. Council, cashier of the Bank of Branch, the check mentioned in the indictment and given in the evidence with intent to cheat and defraud said Council or bank, and if said check was forged by defendant or by any other person, and defendant at the time of so passing said check knew the same to have been forged, then defendant is guilty of uttering a forged instrument, and should be convicted, and his punishment fixed at from two to ten years in the penitentiary.”
The objection to this instruction is that by saying “if said check was forged by defendant or by any other person,” left the jury to conjecture whether defendant had himself forged the check when there was no proof that he had done so. No specific objection to this effect was made to the instruction; and, as it is a correct declaration of the law as written, defendant is in no position to complain. Besides, under the facts of this case, it was not error to give it, even though specific objection had been made. It was undisputed before the jury that the check was forged, but the proof did not show who the author of the forgery was. It might not have been the handiwork of the defendant, but it was immaterial whether it was or not, if he knew that the check had been forged, and with such knowledge cashed it at the bank with the intent to cheat and defraud.
Defendant assigns as error the action of the court in refus ing to give his instruction numbered 2, which is as follows:
“Should you believe from the evidence beyond a reasonable doubt that the instrument in writing offered in evidence was in fact a forgery, yet this would not be sufficient to authorize you to convict the defendant upon the charge brought against him by the indictment, but the proof must go further and show to the satisfaction of your minds beyond a reasonable doubt that the defendant knew, at the time he offered the instrument in-writing to the Bank of Branch, that the same was a forgery.”
This instruction was a correct declaration of the law, and might very well have been given by the court, and- the refusal to give it would be error calling for the reversal of the case, if the points there presented were not fully covered and correctly declared by other instructions. But, in addition to the court’s instruction numbered 1, supra, the court gave, at the defendant’s request, defendant’s instruction numbered 1, which is as follows:
“Before you can convict the defendant of uttering a forged instrument, you must find from the evidence beyond a reasonable doubt that the instrument in writing was in fact a forgery; that the defendant uttered it or offered to pass it upon the Bank of Branch; and that he knew at the time that it was so uttered or offered to the Bank of Branch that the instrument was a forgery. If these elements are not made to appear by the evidence, direct or circumstantial, to the satisfaction of your minds beyond a reasonable doubt, then you should return a verdict of not guilty.”
The instructions given are clear, and correctly declare the law, and cover the point raised in the defendant’s instruction, which was refused.
This court has frequently held that the refusal to give a correct instruction is not error, if other correct instructions charge the law upon the question involved. St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 441; Williams v. State, 100 Ark. 218; Turner v. State, 100 Ark. 199; Striplin v. State, 100 Ark. 132.
We find no error in the record, and the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). Act 249, of the Acts of 1911, p. 230, which amends section 7003 of Kirby’s Digest, provides that the board of equalization, when in session, “shall have power to examine witnesses with respect to any matter under investigation, to hear complaints with respect to the undervaluation or overvaluation of property, and to equalize the assessments of the county by adding to or taking from the valuation of any real or personal property, moneys and credits within the county, and to assess the property of any person omitted from the rolls by the assessor, and to correct the obvious errors that may have been made in the assessment of property by the assessor.”
The second section specifies when the board of equalization shall meet, and then provides: “The board shall have power to exercise its functions in the equalization of property until the fourth Wednesday of October.”
The fourth section provides that “all appeals taken from the order of the board of equalization shall be taken to the October term of the county court, and such appeals, even if taken after the regular October term of the county court has convened, shall be heard and passed upon by said court before the fourth Wednesday in October.”
And the fifth section, among other things, provides that “all appeals from the county court to the circuit court herein provided must be taken within thirty days of the day upon which the order from which the appeal is taken was made.”
It will thus be seen that the statute furnishes a complete remedy, in case of overvaluation of property by the assessor, to have the same reduced by first applying to the board of equalization, and, if relief is not granted there, then by appeal to the county court, and then to the circuit court. The appellee did not pursue the remedy provided by statute.
We held, in Clay County v. Brown Lumber Co., 90 Ark. 417, that in all cases of excessive valuation, where the assessor or the board acts within its jurisdiction, the taxpayer must pursue the remedy provided for his relief or abide by the finding of the board. And in Bank of Jonesboro v. Hampton, 92 Ark. 492, we said: “The taxpayer may apply to the county board of equalization for redress against the action of the county assessor; and, if the county board does not grant him the relief, he may appeal to the county court, and, if dissatisfied with its action, may in turn appeal from its decision.”
In State v. Little, 94 Ark. 217, we said: “The courts, either of common law or equity, are powerless to give relief against the erroneous judgments of assessing bodies, except as they be especially impowered by law to do so.”
It thus appears that appellee, not having pursued the remedy provided by law, was not entitled to the relief which the circuit court granted.
The appellee contends that under the act of May 4, 1911, supra, it was without a remedy because there was no October term of the county court of the Western District of Clay County to which it could appeal according to the provisions of that act.
Act 204, page 161, of the Acts of 1911 provides, among other things, for separate county courts for the Western District of Clay County and the time for the meeting of such courts, towit, on the third Monday in December and on the fourth Mondays in March, June and September of each years After fixing the time for holding these courts, the act provides that “the county court for levying the taxes and making appropriations shall be held at Piggott, the county site, as now provided by law.”
At the time this act was passed the county court of Clay County was held at Piggott on the first Monday in April, July and October of each year (Kirby’s Digest, § 1361, Acts 1895, p. 36), and the board of equalization met in September of each year. Kirby’s Digest, § 6992.
Counsel for appellee states that there was only one board of equalization in Clay County, and there is no evidence in the record showing that there was any board for the Western District separate from that for the Eastern District. Since there is no specific provision in the act for the meeting of the equalization board and session of the county court in the Western District of Clay County for the purpose of correcting improper assessment of taxes, we must assume that the above general provision for the meeting of the equalization board and the session of the county court for Clay County applied to the Western District as well as to the Eastern District thereof.
When the county court met for the levying of taxes, it was necessarily in session for the purpose of correcting any errors that may have been made in the assessment of taxes, as the assessment of taxes necessarily preceded any proper levying thereof.
Therefore, if appellee’s property was improperly assessed by overvaluation, it had a complete remedy as provided by statute, supra, by first making application to the board of equalization, and, if relief was not there granted, then by appeal to the county court, and then to the circuit court. Not having pursued this remedy, the circuit court erred in granting the relief in the petition. The judgment is therefore reversed, and the cause is dismissed. | [
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Harrod, Special Judge.
The judges of the Supreme Court having certified to the Governor their disqualification to determine the validity of the enacting clause of the act involved in this suit, this special court was appointed by the Governor, under section 9 of article 7 of the Constitution, to determine this cause.
The General Assembly of this State, at the 1911 regular session, created the . Village Creek & White River Levee District, by and act approved March 9, 1911. The commissioners of the district organized, selected assessors and engineers, and proceeded to assess the lands of the district for the levee tax. Various land owners commenced suit in the Jackson Chancery Court to enjoin the proceedings. A demurrer was interposed to their complaint, and it was sustained, and, electing to stand on their complaint, their suit was dismissed, and they appealed to this court to reverse that decree.
The appellants urge here, among others, the following grounds for reversal:
First. That the act is void because its enacting clause is, “Be it enacted by the General Assembly of the State of Arkansas.”
Second. That the boundaries of the district are so indefinitely described by the act that the land subject to the tax could not be definitely ascertained, and that the act was therefore void.
The style of the act in question is: “Be it Enacted by the General Assembly of the State of Arkansas.” Is that style of bill or enacting clause valid since the adoption of the Initiative and Referendum Amendment? The amendment is as follows:
“That section 1, article 5, of the Constitution of the State of Arkansas be amended so as to read as follows:
“Section 1. The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State, reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the Initiative, and not more than 8 per cent, of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.
“The second power is a Referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety) either by the petition signed by 5 per cent, of the legal voters or by the legislative assembly as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety says after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial general regular elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon and not otherwise. The style of all bills shall be, ‘Be it Enacted by the People of the State of Arkansas.’ This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretay of State, and in submitting the same to the people he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor.”
The amendment proposes to amend section 1 of article 5 of the Constitution. That section is as follows:
“The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives.”
No other section or article of the Constitution of 1874 is mentioned in the amendment.
Section 19 (section 18, Kirby’s Digest) of article 5 of thé Constitution reads as follows:
“The style of the laws of the State of Arkansas shall be: ‘Be it Enacted by the General Assembly of the State of Arkansas.’ ”
The question is, Was this provision of the Constitution abrogated by the Initiative and Referendum Amendment? Is this specific provision of' our organic law to be treated as no longer in force? It -is claimed that it was annulled by this provision of the Initiative and Referendum Amendment: “The style of all bills shall be, ‘Be it Enacted by the People of the State of Arkansas.’ ” So the question we are to consider involves the construction of the Initiative and Referendum Amendment in relation to the enacting clause of this act. Two constructions are open to the court. It may be held that section 18 is abrogated by the amendment, or it may be held that it remains in force as not affected by the amendment. The correct decision of the case involves nothing but the application of rules of law that must govern the court in the construction of the amendment. By what rules of law should we be governed? More than sixty years ago, in the case of State v. Scott, 9 Ark. 270, Mr. Justice Walker, in a case involving the construction of an amendment to the Constitution, said: “In determining the intentions of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force.”
These rules of construction were laid down at an early day, when the jurisprudence of our State was in its infancy; but none better have been proposed at any time or any place. Let us try this case by these rules of construction, and see what the result will be. How did the Constitution stand when the amendment was adopted? It provided that all legislative power was in the General Assembly (section 1 article 5), and that the style of all laws should be: “Be it Enacted by the General Assembly of the State of Arkansas.” Section 19, article 5. Now, what was the evil the Initiative and Referendum Amendment was designed to remedy? It is well known that it was the failure of the legislative depart ment of the State government to respond to the will and wishes of the people. This failure sometimes took one form and sometimes another. Sometimes it was the failure or refusal to enact laws the people wanted; sometimes it was in passing laws the people did not want passed. Now, how were these evils to be remedied? By adding to existing legislative power •the power of the people to pass the laws they wanted, and by diminishing the legislative power to the extent of permitting the people to pass upon and approve or reject laws enacted by the General Assembly. The evil to be remedied was not the style of the bills, but the substance of the bills. ' The people were not especially concerned with the style of enacting clause, but they were profoundly interested in the provisions of the laws. The Initiative and Referendum Amendment was not intended to interfere with the ordinary processes of legislation, nor was it intended in any manner to entirely abolish the legislative power of the General Assembly. It was intended as a supplement to the existing legislative power, on the one hand, and as a curb or restraint on that power, on the other hand. The amendment was not intended in any sense as an abandonment of representative government, but, rather, its very aim and purpose was to make government representative.
In construing this amendment, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. That object and purpose was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper, legislation. If the adoption of this amendment creates in the minds of senators and representatives a true sense of their responsibility to the people, and thereby makes the legislative department of the government truly representative, its wise and beneficent purpose will have been accomplished if no bill is ever initiated and no legislative act is ever referred. But, a new method of legislation being provided for by the amendment, that is, the right of the people to initiate legislation, it became both important and necessary that the style of laws enacted by the people should be provided for in the amendment. Was the style of any bills or laws except those to be initiated by the people contemplated, considered, or in any manner thought of, by the framers of the Initiative and Referendum Amendment? Why should we suppose that they were thinking of anything else except the business they had in hand? The business they had in hand was to establish a power in the people to legislate and to provide a manner of exercising that power. Was the style of laws enacted by the General Assembly material to the procedure of the people in enacting laws? We are sure that the people knew, when they adopted the Initiative and Referendum Amendment, that the great bulk of legislation would continue to be enacted by the General Assembly, that the Initiative would only be used and the Referendum invoked on great and important questions. When they spoke of the style of bills, were the framers of the amendment thinking about the exercise of the old legislative power of the General Assembly, or were they thinking about the exercise of the new power they were creating? We are told that -no interpretation should be allowed that would conflict with any other provision of the Constitution. If we hold that the words of the amendment, that the style of all bills shall be, “Be it Enacted by the People of the State of Arkansas,” apply to bills passed by the General Assembly as well as to bills initiated by the people, the interpretation will be in direct conflict with section 19, article 5, which says that the style of laws of the State of Arkansas shall be, “Be it Enacted by the General Assembly of the State of Arkansas,” Is an interpretation that will cause a conflict between section 19, article 5, and the amendment, necessary to give full effect to the amendment? Not at all. The fullest possible effect is given to the amendment when it is said that bills initiated by the people shall be styled, “Be it Enacted by the People of the State of Arkansas.” So far as the introduction or presentation of bills is concerned, the amendment refers only to laws initiated by the people, and, necessarily, when it speaks of the style of bills, it means bills for the introduction and presenting of which it is providing. From the object to be attained, the mischief to be remedied, the language used, its position in the text, and its relation to other language used, we entertain no doubt that this conclusion is sound. Now, it is our duty to construe the amendment, if possible, so as to leave other provisions of the Constitution unimpaired and in full force. Why not leave section 19, article 5, in full force? It is said that if this construction is adopted bills enacted by the General Assembly will have one style, “Be it Enacted by the General Assembly of the State of Arkansas,” and that bills initiated by the people will have another style, “Be it Enacted by the People of the' State of Arkansas.” This of course, is true, but what of it? Is that a matter of such importance that it will justify us in disregarding the provisions of the Constitution? Is there anything out of the way, unusual, unreasonable, or extraordinary in having one style for laws enacted by the General Assembly and a different style for laws initiated and enacted by the people? Instead of being unreasonable, it seems to us wholly reasonablé and logical. What is the object of the style of a bill or enacting clause any way? To show the authority by which the bill is enacted into the law, to show that the act comes from a place pointed out by the Constitution as the source of legislation.
It is clear, from the canons of construction we have taken for our guide, that section 19 of article 5 must stand unless it is expressly repealed, or unless it is in conflict with or repugnant to the amendment. . Of course, it was not expressly abrogated, for it was not referred to. It is equally true that it is not in conflict with or repugnant to the Initiative and Referendum Amendment. They are not in conflict because one relates to legislation by the General Assembly and the other relates to legislation initiated by the people. They could only be repugnant if the Initiative and Referendum Amendment covered the whole scope of legislation. This, in our judgment, it did not do. The amendment not only does not deal with the whole scope of legislation, but it shows on its face affirmatively that it is only creating an additional legislative power and regulating the manner of its exercise. Instead of dealing with the whole scope of legislation, the Initiative and Referendum Amendment leaves absolutely untouched the many provisions of the Constitution contained in article 5 that relate to the exercise of legislative power by the General Assembly. Before any court would be justified in holding a provision of the Constitution abrogated on account of repugnancy to some other provision, it must appear that there is an irreconcilable conflict between the purposes of the provisions that are claimed to be repugnant. Surely, there is nothing of that kind here. Repeal by implication is not favored, even in the construction of ordinary acts of the General Assembly, and certainly such repeal should not be favored when applied to long-established provisions of the organic law.
It is said that the words “all bills” in the Initiative and Referendum Amendment mean “all bills,” from whatever source they emanate. In our opinion,-they mean all bills that were being considered, that were in the minds of the proposers of the amendment; that is to say, bills that were to be initiated by the people.
We have endeavored to follow rules of construction that have been formulated by the wisdom of ages, and they lead us irresistibly to the conclusion that section 19, article 5, of the Constitution of 1874 is still unimpaired and in full force as to all bills not initiated by the people. The principles of law and rules of construction that support the view we have reached are so elementary and well established that citation of authority is deemed unnecessary. In our judgment any other conclusion would do violence to the language used and would violate all cardinal rules of construction.
In these views Mr. Special Justice House and Mr. Special Justice Walker concur, and we unite in holding that the style of the bill in question in this case is proper, and that the act is not invalid because of the style of its enacting clause.
Mr. Special Justice Hill and Mr. Special Justice McCollum dissent from the foregoing opinion wherein it holds that the act with the style, “Be it Enacted by the General Assembly of the State of Arkansas,” is valid, for these reasons: This was the style prescribed by the successive Constitutions of the State from 1836 to 1874, inclusive, and is still the necessary style unless the Initiative and Referendum Amendment has changed it. The Initiative and Referendum Amendment re-enacts section 1, article 5, of the Constitution, vesting the legislative power of the State in the General Assembly, consisting of the Senate and House of Representatives, and adds thereto a reservation to the people of the right to legislate themselves through the Initiative and Referendum therein incorporated into the organic law. This court has recently held that the Initiative and Referendum Amendment suspended the operation of all acts passed by the General Assem-. bly until ninety days after its adjournment, and if within that time a proper referendum petition was filed against any act (except emergency acts) it is suspended until adopted by the affirmative vote of the people, and also that the Referendum extends to all acts passed by the General Assembly (except the emergency bills permitted it to exercise free of this right) even extending unto local bills. The amendment prescribes the number of votes necessary to adopt any measure submitted to the people, and provides that the people or the General Assembly may submit amendments to the Constitution, or measures, for adoption or rejection, at general elections, or special elections to be called .to vote thereon. The lawmaking power of the State is thereby revolutionized, and all of it vested, affirmatively or negatively (save alone a limited class of emergency acts) in the people themselves. The power of the Referendum may not be exercised, but the people have a given time in which to exercise it, and the absence of its exercise is as certainly an approval of an act as active exercise of it by its adoption at the polls. Itissimilartothevetopowerof theGovernor. He has a given number of days after the adjournment of the Legislature to approve bills; and, if he fails to do so, the bill becomes a law without his approval, and he, by his non-action, when he has a right to act, as positively approves a measure as if he signed it. And thus the people have the right to determine all legislation, either affirmatively or negatively. In the amendment carrying to the people this power is the clause in question, “The style of all bills shall be, ‘Be it Enacted by the People of the State of Arkansas.’ ” As long ago as 1871 this court, in Vinsant v. Knox, 27 Ark. 266, held that the constitutional provision that the style of all bills should be, “Be it Enacted by the General Assembly of the State of Arkansas,” was mandatory, and that a bill without this style (or substantially this style) was void, although otherwise regularly passed and approved. . Therefore, the people knew that the style of a bill could not be disregarded, and it was vital, before they incorporated this clause in the Initiative and Referendum Amendment. When they provided in this amendment that the style should be, “Be it Enacted by the People,” they deliberately changed a vital part of bills from the style prevailing since the State was admitted into the Union.
It is argued that this applies only to initiated bills, but the law is not so written. It plainly says, “all bills.” Moreover, it is found in the sections specially dealing with the Referendum and, from context and position, necessarily applies to referred bills. The amendment deals with initiated and referred measures, and becomes a substitute for the preexisting law wherever the old provisions are inconsistent with the new. It makes radical changes in the existing Constitution, and one of the provisions of the-existing Constitution prescribes that the style should show enactment by the General Assembly. Both clauses can not stand, one applying to bills enacted by the General Assembly, and the other applying to bills initiated or referred, because any bill may be referred (with the exceptions noted), and it will not be known until after the adjournment what bills are referred. Every act passed might be referred and every one adopted, and their adoption would be by the people, not the General Assembly; and every act might be defeated, and none become laws. No act might be referred, in which event by negative action the people permitted acts of the General Assembly to become laws after ninety days from its adjournment. Thus it is seen that it is consistent with the new order of things for the source of the power to be disclosed in the face of an act, and not consistent with that power for the old source of authority — the General Assembly — to appear on the act when in fact it was no longer concerned in the enactment except in the few instances of emergency legislation permitted the General Assembly free of the control of the people by direct action. The wisdom of making the formal part of an act vital may well be questioned, but that is not for the court to determine. The adoption of this amendment determines that the people themselves are the source from which all legislation emanated directly and no longer remained in their representatives other than as they — after examining their work concluded to approve it by nonaction. This new style of a bill was to give emphasis to the new method of legislation, and it is an outward form and expression of this concrete fact.
The Oregon court, in considering the effect of a consti tutional amendment upon provisions in the existing Constitution not consistent with it, said: “There is no express repeal, they simply cease to exist by reason of new provisions on the subject being substituted for them.” Ex parte Prindle, 94 Pac. 871.
That is exactly the situation in regard to section 19, article 5, of the Constitution of 1874. By .reason of this new provision prescribing the form of enacting clause for all bills, it ceased to exist, and this new style was then substituted therefor. Therefore, we conclude that an enacting clause running in the name of the General Assembly is invalid since the adoption of the Initiative and Referendum Amendment, and all bills, before they can become laws, must have an enacting clause substantially as prescribed .in the amendment. “Be it Enacted by the General Assembly” can not be substantial compliance with “Be it Enacted by the People.” Each has a definite meaning. Each indicates the source of power giving force to the act. Each represents its day and the stage of popular government of that day. They are not interchangeable; they present different thoughts, different views, different hopes, and mayhap different illusions. The use of one is not equivalent to the use of the other, so as to fulfill the rule of substantial compliance.
With the conclusion of special Justices Hill and McCollum as to the validity of bills enacted by the Legislature, upon its own initiative, bearing the style, “Be it Enacted by the People of the State of Arkansas,”. Special Justices House and Walker concur, but for reasons different from those holding that the style of such bills is a substantial compliance with the provisions of section 19 of article 5 of the Constitution, and that, therefore, any bill bearing the title, “Be it Enacted by the People of the State of Arkansas,” is a valid enactment, whether it be enacted by the General Assembly or initiated and enacted by the people. Vinsant v. Knox, 27 Ark. 266; Jackson v. State, 101 Ark. 437.
With this view I do not concur, as I do not think the enacting clause, “Be it Enacted by the People of the State of Arkansas,” is a substantial compliance with section 19, article 5, of the Constitution.
That leaves for our consideration the question as to whether or not the district is invalid because of the alleged uncertainty of the description of the territory proposed to be embraced therein. We understand the law to be that, when the Legislature creates a levee or other improvement district, it must define its boundaries with certainty, or provide for the same being done by some other agency. The Legislature undertook to define the limits of this district. We have carefully considered the act, and hold that it fails to define the limits of the district with sufficient certainty to determine what lands are included therein. Among other defects in the description are these: The stopping point of the line of the district in section 2, township 10 north, range 8 west, being the end of the first call, is not located. The course through sections 1, 2, 11, 10, 9, 16, in township 9 north, range 3 west, is not sufficiently defined. The line along White River is not fixed, but is left to be placed where it is deemed most practical. There are other defects in the description, but we do not discuss them, as those already mentioned are sufficient to defeat the act for uncertainty in the description of the territory proposed to be embraced therein. We hold the act invalid for this reason.
The cause is, therefore, reversed and remanded with directions to the court below to overrule the demurrer and grant the petitioners the relief prayed. | [
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McCulloch, C. J.
Appellees are practicing physicians, and instituted this action before a justice of the peace against appellant to recover an account for professional services rendered. The account which forms the basis of the action seems to embrace items alleged to be due the two physicians separately, that is to say, $101.50 to Doctor Turner and $50.00 to Doctor Dunavant; but no question is raised as to the improper joinder of the two causes of action. The suit was first instituted by Doctor Turner, and afterwards Doctor Dunavant was allowed to .join as a party plaintiff. But no objection- is made to this, and both of these questions pass out of the case.
Appellant does not dispute the items of the account, but relies entirely upon his plea of the statute of limitations. It is conceded that the action was not instituted until more than three years after the services were performed; but appellees seek to take the case out of the operation of the statute on account of a special promise on the part of appellant to pay at a future date or rather to pay in the future on the happening of a certain event. The facts of the case are very simple, and there is but slight conflict in the testimony. In October, 1906, appellant was wounded by a gun or pistol shot, and Doctor Turner was called to attend him. He did so, and gave appellant continuous attention for something like a month, when the condition of the wound rendered' a surgical operation necessary. In this emergency Doctor Dunavant was called, and performed the operation, charging a fee of $50.00 therefor. Doctor Turner’s bill was $101.50 for his entire services. Nothing has ever been paid on the account, and more than three years elapsed before the institution of this action. Doctor Dunavant testified that he frequently requested appellant to pay the bill, and on one occasion — the particular time not .mentioned — appellant promised to pay the bill when his (appellant’s) father should be released from the penitentiary in the State of Missouri, where he was then incarcerated. Doctor Dunavant states the transaction in the following language: “I never put the man’s name on my books at all. I told Doctor Turner what I would charge him, and he looked after the collecting. I just left it with him to collect. In the meantime I had asked Doctor Turner about it, and he told me that Mr. Burnett was slow, and I saw him and got after him myself, and he says, ‘My papa is in trouble up in Missouri, and as soon as I can get him out of it I will pay it all,’ and under that kind of a promise I held off.”
In other parts of the testimony it is disclosed that appellant’s father was in the penitentiary, and that he was released therefrom within three years from the commencement of this action. Was this promise sufficient to take the case out of the operation of the statute? It is observed that the testimony nowhere discloses any express promise not to plead the statute of limitations, nor does it show any agreement to postpone the date of payment to any future day. Doctor Dunavant merely states that appellant promised to pay when his father got out of trouble, and that upon that promise he did not sue until after the occurrence of that event. He states further in his testimony that he frequently thereafter demanded payment of appellant. Appellant denied that he ever made this promise to. Doctor Dunavant, but says that when payment was repeatedly demanded he merely promised that he would pay as soon as he got able.
The statutes of this State provide that “no verbal promise or acknowledgment shall be deemed sufficient evidence in any action founded on contract whereby to take any case out of the operation of this act, or to deprive the party of the benefits thereof.” Kirby’s Digest, § 5079.
In the absence of a forbidding statute, an oral promise or acknowledgment will interrupt the statute of limitations; but it is seen from the above that we have a statute on that subject in this State, and, in order “to suspend the statute by promise or acknowledgment, such promise or acknowledgment must be in writing and signed by the party to be charged.” The correct rule is thus stated, and is sustained by the weight of authority. See 25 Cyc. 1351, and numerous authorities there cited.
It is equally well settled by the authorities that an oral waiver of the statute of limitations, or promise not to plead it, does not fall within the statute above quoted, and need not be in writing. 19 Am. & Eng. Ency. of Law, p. 322; Bridges v. Stevens, 132 Mo. 524; Jordan v. Jordan, 85 Tenn. 561; 1 Wood on Limitations, p. 76.
The suspension of the statute by reason of a promise not to plead it is based on the doctrine of estoppel, and, in order for it to' be effective, the promise must be an express one not to plead the statute, or the language of the promise must be such as clearly evinces an intention not to do so upon which the creditor has a right to rely. Otherwise it could not be said that he was estopped by the conduct of his debtor, and the rule does not apply. 19 Am. & Eng. Ency. of Law, pp. 286-7; Hill v. Hilliard, 103 N. C. 34; Bank of Tennessee v. Hill, 10 Humphreys (Tenn.) 176; Parks v. Satterthwaite, 132 Ind. 111.
A new promise, based upon an additional consideration, to pay at a future date, constitutes an original undertaking, and does not fall within the terms of the above-quoted statute requiring a promise or acknowledgment of a debt to be in writing (Sloan v. Sloan, 11 Ark. 29), and an agreement to extend the time of payment to a future date or to the happening of an event which might carry it beyond the period of the statute of limitations is sufficient consideration upon which to base a new promise. In order, however, to constitute a new promise based upon sufficient consideration, there must be an agreement on the one part to pay and an agreement on the other part to forbear. The evidence in this case wholly fails to show facts which would suspend the operation of the statute of limitations. It shows neither an express promise on the part of the debtor not to plead the statute of limita tions, nor an agreement on the part of the creditor not to sue. The most that the evidence shows is a bare promise on the part of the debtor to pay in the future on the happening of a certain event, and that the creditor did forbear suit until after the happening of that event. There was, therefore, no additional consideration so as to make the new promise constitute an original agreement, nor was there an express promise not to plead the statute of limitations so as to work an estoppel. According to the undisputed evidence the verdict should have been in favor of appellant; and, as the case has been fully developed, no useful purpose would be served by remanding it for a new trial. The judgment is therefore reversed, and the cause is dismissed.
Smith, J., not participating. | [
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Frauenthal, J.
This is an action originally instituted by L. C. Maloney against J. T. and A. M. Morton seeking to cancel a deed executed by one Sylvia Davis to them, conveying certain land situated in Pulaski County, and to remove said deed as a cloud from his title to the land. The plaintiff claimed title to the land under a prior deed executed to him by said Sylvia Davis. Subsequently, said Sylvia Davis was made a party to the suit, and she appeared by her guardian, who filed an answer, which was also made a cross complaint against said parties, plaintiff and defendant. This pleading also asked that one James Turner be made a party to the suit, which was done, and prayed for a cancellation of a deed which she had also executed to him. In the cross complaint filed for her, it is alleged that Sylvia Davis was a person of unsound mind, and that a guardian was duly appointed for her by the probate court. It is further alleged that she was the owner of the land in suit, containing 105 acres, and that her interest consisted of a fee in one-half thereof and a life estate in the remainder; that she had made separate conveyances for the land to Maloney, the Mortons and Turner, and at the time she was incapable by reason of being of unsound mind to enter into said contracts, resulting in the execution of the deeds, which it was alleged were obtained without proper consideration and by imposition and fraud. The cross complaint sought the avoidance and cancellation of each of these deeds. Separate answers were filed by all said parties, except Turner, in which each of them alleged the validity of the deed executed to him, and sought the cancellation of the deeds executed by her to the other cross defendants.
A great mass of testimony was taken relative to the transactions had by each of these parties with Sylvia Davis, the condition and value of the land, the alleged consideration paid by each.of them, and her mental condition. The chancellor entered a decree cancelling all of said deeds which had been executed by said Sylvia Davis, and restoring to each of the said grantees the moneys and property which each had paid for taxes and parted with for the deeds which they obtained. The defendants J. T. and A. M. Morton alone have appealed from this decree.
It appears from the testimony that Sylvia Davis was a negro woman, variously estimated by the witnesses to be from eighty to one hundred years old. The land in controversy consisted of 105 acres, sixty of which were in a state of cultivation. It was estimated by the witnesses to be worth from one thousand to three or four thousand dollars, and its rental value was probably five dollars per acre for the land which could be cultivated. It appears that taxes had become due upon the land amounting to about $30, and that the land had been sold for the payment thereof. The plaintiff Maloney, who was a practicing attorney, agreed to perfect a redemption of the land from the tax sale, and also to collect the rents of the land. In 1908 he obtained from Sylvia Davis a deed for.the land upon the consideration, as he claimed, of $5 then paid and the agreement upon his part to pay towards her support $10 per month during, her life, not exceeding, however, the sum of $1,000. It appears from his testimony that he rented this land for the year 1910 for the sum of $390, but it does not appear that he ever paid to her any sum except the $5 above mentioned.
In February, 1910, either the above taxes or other taxes were due upon this land, and Sylvia Davis agreed with the defendants J. T. and A. M. Morton that she would give them one-third of the land to settle these taxes. Afterwards, they claimed that they entered into a contract with her by which they bought the land, and thereafter she executed to them a deed therefor. They paid to her $80 and to her nephew $25, and executed to her and her nephew a deed for a lot variously estimated to be worth from $100 to $400.
In March, 1910, she again executed a deed for this land, this time to said Turner. Turner executed to her notes for $2,500 and a mortgage upon the land. Turner filed no answer to the cross complaint, and it would be inferred from his actions that the notes were not executed with any expectation of making any payment thereof, but ,at the suggestion of an attorney who at one time claimed to represent Sylvia Davis in this litigation and later withdrew from the case, with probably the intention of further involving the title to this land. It would serve no useful purpose to detail the facts showing the mental condition of Sylvia Davis during all this time, nor the circumstances attending the various transactions which she had with these various parties, culminating in the execution of these various deeds for this land. It is sufficient to say that it appears from the testimony that she was very old and infirm, feeble both in mind and body, and incapable of managing her affairs. The testimony was sufficient to warrant the finding that she was not of sound mind, and that her mental incapacity was such that she was unable, to understand and appreciate the business involved in selling or conveying her land. ■ She was not only of weak understanding, but she did not have capacity to take care of or to manage her property or to properly understand the effect of executing a deed for it. On account of her mental infirmities, it would appear that an undue advantage was taken of her by these parties in making these transactions and obtaining these deeds. The contracts made by her with each of them was unreasonable and improvident. These were the findings of the chancellor, and we can not say that his findings áre against the weight of the evidence. On the contrary, after as careful an examination thereof as we are able to give, we think that the findings of fact made by him are well supported by the testimony. Under these findings of fact, equity and good conscience require the cancellation of these deeds.
The principle upon which this cancellation should be made is thus well stated in the case of Kelley v. McGuire, 15 Ark. 555: “While the solemn contracts between men should never be disturbed on slight grounds, yet it may perhaps be assumed as a safe general rule that whenever a person, through age, decrepitude, affliction or disease, becomes imbecile and incapable of managing his affairs, an unreasonable and improvident disposition of his property will be set aside in a court of chancery.” See also Killian v. Badgett, 27 Ark. 166; Tobin v. Jenkins, 29 Ark. 151; Oxford v. Hobson, 78 Ark. 170; Pulaski County v. Hill, 97 Ark. 450.
The decree is affirmed. | [
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McCulloch, C. J.
This is an action of forcible entry and detainer instituted by appellees against appellant to recover possession of a strip of land about eighty feet wide, alleged to be a part of a certain twenty acre tract owned by appellees, and which it is alleged appellant, “without right, forcibly and unlawfully entered upon and took charge of, * * * and still continues to forcibly and wrongfully hold possession thereof after due and legal demand thereof.”
Appellants answered, denying that appellees were the owners of the strip of land in controversy, but alleged that the strip formed a part of an adjoining tract owned by appellant; and also denied that she had unlawfully entered upon said tract with force or had held the same wrongfully or with force.
The trial of the case before a jury resulted in a verdict and judgment in favor of appellees for the possession of the tract of land in controversy.
Appellant and appellees were the owners of adjoining tracts of land, that owned by appellant containing eighty acres, and that owned by appellees containing twenty acres. Both tracts were occupied as farm lands, though there were no houses on either tract, nor any fences, as they were within the limits of a fencing district. The lands had been in cultivation for many years, and the strip in controversy lies along the line between the two tracts. Both parties claim title to the strip by reason of a dispute as to the correct survey. Originally, appellant had possession of this strip, and it was conceded to be within the limits of her boundary; but it seems that some years ago appellees caused the land to be resurveyed by the county surveyer, who made a change in the boundary which placed this strip in controversy. Either the surveyor, or appellees themselves, or some one for them, moved the stone markers and placed them oh the line as corrected by the surveyor, and thereafter appellees claimed the land and asserted that they have been continuously in possession since that time. Appellant testified that she knew nothing about the re-survey and had no notice of the change in the possession, supposing that the tenant who rented from both parties was still paying her rent on the land. During the summer before the commencement of this action she received information'of appellees’ claim of title and possession. Early in the spring of 1912, after appellees, through their servants or agents, had made some preparation toward the cultivation of the land by knocking the stalks, appellant, through her servants, went upon the land in controversy and took possession and began plowing the land preparatory to planting it. During the time that appellant’s servants were plowing the land, some of the appellees come to the place and made objection to further acts of possession. There is a controversy in the testimony as to whether there was any show of threats and force. One of the appellee testified that he went there while appellant’s agents were plowing the land and protested against it, and that appellant’s brother, who was there, replied that “if he didn’t cultivate it, no d................ man would.” The witnesses for appellant who were present at the time testified that no such conversation occurred, and that there was no force or threats of any kind used; in other words, that the possession was taken and held in an entirely peaceable manner.
The court gave the following instruction over appellant’s objection, which is assigned as error.
“If you believe from the evidence that plaintiffs were in the peaceable possession of the- premises sued for, and that while they were so in possession defendants entered upon such possession without the consent and against the will of the plaintiffs, and still holds such possession, you will find for the plaintiffs.”
The court also gave the following instruction, which is assigned as error:
“It is not necessary to maintain this cause that the defendant should actually use force against the person of the plaintiffs or either of them.”
The court also refused the following instructions requested by appellant:
“1. Constructive possession or evidence that plaintiffs are entitled to possession is not enough to justify a recovery by them in this suit. It must appear that the taking of possession or the subsequent holding was with force and strong hand. This force must be actual and not implied.”
“2. If you believe from the evidence that the defendant took and held possession peaceably, though unlawfully, claiming to be the owner of the land, then the plaintiff can not recover in this suit.”
“4. You are instructed that if you believe, from the evidence in this case, Mrs. Miller took peaceable possession of the land and not by force or violence, and that she thereafter held it, claiming to be the owner of the land, then the plaintiff can not recover in this action.”
It will be observed from the language of the complaint that the action was brought under Kirby’s Digest, § 3629, which provides that “if any person shall enter into or upon any lands, tenements or other possessions and detain or hold .the same without right or claim of title, or who shall enter by breaking open the doors and windows or other parts of the house, whether any person be in or not, or by threatening to kill, maim or beat the party in possession, or by such words and actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force, or frightening by threats or ether circumstances of terror, the party to yield possession, * * * shall be deemed guilty of a forcible entry and detainer.”
It has been uniformly • held in all the decisions of this court that actual force is the gist of the action under this section, and in the absence of it the action can not be maintained. McGuire v. Cook, 13 Ark. 448; Dortch v. Robinson, 31 Ark. 296; Hall v. Trucks, 38 Ark. 257; Littell v. Grady, 38 Ark. 587; Johnson v. West, 41 Ark. 535; Towell v. Etter, 69 Ark. 34.
Counsel for appellees seek now to sustain the judgment under the italicised clause of Kirby's Digest, § 3630, as follows:
“Every person who shall wilfully and without right hold over any lands, tenements or possessions after the determination of the time for which they were demised, or let to him or the person under whom he claims, or who shall peaceably and lawfully obtain possession of any such and shall hold the same wilfully and unlawfully after demand made in writing, * * . * shall be deemed guilty of an unlawful detainer.”
It has been held in may cases that the action of unlawful detainer can only be maintained where the relation of landlord and tenant subsists, or at least where the possession has been obtained by the defendant permissibly, that is to say with the consent of the party who seeks to maintain the action. Bradley v. Hume, 18 Ark. 284; Dortch v. Robinson, supra; Necklace v. West, 33 Ark. 682; Mason v. Delaney, 44 Ark. 444; Towell v. Etter, supra; Prioleau v. Williams, 104 Ark. 322.
Some changes have been made in our statutes on this subject since they were originally enacted at an early day, but, so far as they affect the question now before us, the statutes remain without substantial change.
In Dortch v. Robinson, supra, Chief Justice English, speaking for the court, said:
“Under the law as it stood in Gould’s Digest, ch. 72, it was decided that an unlawful detainer would not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist between plaintiff and defendant to entitle the former to maintain this form of action against the latter.”
In Hall v. Trucks, supra, speaking of the two forms of action provided by this statute, the court said:
“It can only be resorted to in the case of a forcible entry, or a turning out by force, or when the plaintiff parted with the possession under some contract or agreement, express or implied, that the possession should be restored to him. Force is the gist of the action for a forcible entry and detainer; but implied force as when the defendant entered peaceably, though unlawfully, is not sufficient; it must be actual and hostile.”
In Johnson v. West, supra. Mr. Justice Smith, speaking for the court, said:
“Unlawful detainer is a remedy provided by statute for the benefit of landlords against tenants who hold over after the expiration of their terms. It is founded on the breach of a contract, implied by law, if not expressed, that the tenant shall restore a permissive possession to the hands from which it was received. * * * But a forcible entry and detainer is a tort, pure and simple. Force is the gist of the action. It is a remedy designed to protect the actual possession whether rightful or wrongful. It must accordingly be shown that the defendant did enter without the consent of the person having the possession in fact of the premises; and that such original entry or subsequent holding of possession was with force and strong hand. Constructive possession or evidence that the plaintiff is entitled to possession is not sufficient. And implied force, as when the defendant enters peaceably, though unlawfully, is not sufficient.”
In Towell v. Etter, supra, the court, referring to the decision in Winn v. State, 55 Ark. 360, where it was said that “a landlord, entitled to re-enter for condition broken, who took possession peaceably in the absence of his tenant from the premises, * * * has the right to protect his possession by force, if necessary,” said:
“This is to the effect that one having title and right to possession may get possession peaceably and defend his possession by force, if necessary, and if he does so he will not be guilty of forcible entry and detainer.”
In Prioleau v. Williams, supra, in speaking of the action of unlawful detainer, we said:
“The right of action is based upon a contract, either expressed or implied, whereby the relation of landlord and tenant arises and exists between the parties.”
Appellees rely entirely upon the case of Keller v. Henry, 24 Ark. 575, holding that that part of the section of the statute giving the remedy of unlawful detainer, which at that time read: “or shall lawfully and peaceably obtain possession, but shall hold the same unlawfully and by force,” etc., authorized the action of unlawful detainer where possession was obtained without any contract, either express or implied, or without the permission of the owner.
The court there held that the word “lawfully” is used in the statute synonymously with the word “peaceably” and meant any possession obtained without actual force, even without the consent of the owner. The reasoning of the case is that any other construction of that part of the statute would render the clause useless and superfluous. It might have been said with equal force that that construction renders the preceding clause of the section superfluous, for the reason that if a peaceable entry without the consent of the owner, either express or implied, will support the action of unlawful detainer, then it was entirely unnecessary to insert the pro vision giving the remedy against one who holds the premises “after the determination of the time for which they were demised or let to him.” In other words, if the last clause is to be construed as broadly as the court did in the case referred to, then it included the preceding clause and rendered the latter superfluous. The doctrine in that case has never been referred to in any subsequent decision of this court, though all of the cases we have herein cited are entirely inconsistent with that rule. The decision on that point has never,- so far as we can discover, been referred to in any other decision. There is no escape from the conclusion that the doctrine of the later decisions of this court, holding that the action of unlawful detainer can only be maintained where the possession obtained was permissive, is inconsistent with the ruling in Keller v. Henry, and to that extent overrules it. We now adhere to the doctrine of those cases, rather than to that announced in Keller v. Henry, and the latter case is expressly overruled.
In neither of the actions prescribed by the statute can the title to the land be called in question further than to “show the right of possession and the extent thereof.” Kirby’s Digest, § 3648. One of the forms of action, of which force is the gist, is created to protect the actual possession of the occupant; and the other is to compel restoration of a permissive possession after the period for which possession is yielded has terminated. It would not do to say that one claiming to be the owner of land could not peaceably take possession of it, and then defend his possession by showing that he was, in fact, the owner. One can not, by proof of ownership, defend possession taken by actual force, or justify refusal to restore possession taken by permission of another; but where the possession is obtained peaceably, it may be defended by proof of actual ownership. Towell v. Etter, supra.
The ruling of the trial court in this case put appellant in the attitude of having obtained possession peaceably, and yet denied her the right to defend that possession by showing that she was in fact the owner. At least, the instructions given permitted the jury to find against her for the possession of the controverted strip of land, even though she acquired possession peaceably and under a just claim of ownership. Such was not the design of the statute.
On account of the error of the court in giving the two instructions hereinbefore quoted, and in refusing those requested by appellant, the judgment is reversed and the cause remanded for a new trial. | [
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Smith, J.
Appellant, who was the plaintiff below, filed his complaint in the chancery court of Lee County on September 12, 1907, and alleged that on April 4, 1899, he and tbe defendant, John P. Moore, entered into a contract whereby, for the consideration of $600, the said Moore sold and conveyed to plaintiff the privilege of cutting and removing from his land at Walnut Bend, Arkansas, the ash, cypress, cottonwood, oak, walnut, and sycamore timber on certain described lands and the accretions thereto;.the lands being described as follows: the southeast quarter "of the southwest quarter and the southwest quarter of the southeast quarter of section 6; sections 7, 8, and 17 and accretions thereto; and section 9; and the east one-half of southwest quarter of section 9, all in township 2, range 6.
The contract further provided that this privilege and sale by agreement was to continue for the term of five years, but the right to cut and remove the timber was to cease at the end of five years. That later for the additional consideration of $100 .the contract was amended to include the elm trees. The amendment' was dated December 27, 1899.
Plaintiff further alleged that, being unable to remove the timber within the prescribed time, he entered into another contract with the said Moore, under date of June 8, 1901, whereby, for an additional consideration of $250, be bought the privilege of cutting and removing from the lands described in the first contract, above mentioned, all the young sapling cottonwood trees, and, in addition, there was given ten years’ time in which to cut and remove the young cottonwood saplings and the other contract was extended to expire ten years from the said 8th day of June, 1911. That the contracts were recorded, although they were never acknowledged. That in making the contracts Moore represented that the accretions embraced a certain tract of land, which, subsequently, was adjudged to belong to one Dan Martin, in a suit for its possession, determined in the Lee Circuit Court, and also the accretions to section 20, and the accretions south of sections 21 and 22 to the river. That, since selling said timber to the plaintiff, the said Moore has procured, a deed to the lands last above described from one Dan Martin, and is now attempting to set up his newly-acquired title against his timber deed to the plaintiff; that all of the title which Moore had acquired by his deed from Martin inures to the plaintiff’s benefit.
The complaint further alleged that the said Moore had entered into a fraudulent conspiracy with his son and co-defendant, Frierson Moore, whereby, for a fictitious consideration of $40,000, the said Moore had conveyed all of the land in controversy and had caused his deed therefor to be recorded.
Plaintiff prayed that defendants be enjoined from conveying or incumbering plaintiff’s timber rights, and that the deed to Frierson Moore be set aside as fraudulent, and that the defendant, John P. Moore, be required to give plaintiff a deed properly acknowledged, to the end that it might be recorded.
On September 18, 1907, plaintiff amended his complaint, alleging that at the time of the execution of the deed to him, set up in the original complaint, Moore was claiming to own the large body of land contiguous to the lands specifically described, as accretions thereto, and the plaintiff purchased in reliance upon the representations of said Moore; that he owned said lands and was selling the timber thereon; and that, by reason of said representations and his reliance upon them, the title acquired by the said Moore in his deed from Martin passed-to the plaintiff; that defendant’s said purchase inures to plaintiff’s benefit; and he prays that he also be decreed to have the right to cut and remove the timber from the lands conveyed by the said Martin to defendant.
Defendant, John P. Moore, answered, denying any understanding as to the extent of the accretions referred to in the contract or that any part of sections 20, 21, and 22 was included in the agreement; that all the lands in said section were acquired by him subsequent to his agreement with plaintiff; and that he made no representations to the plaintiff that anything in sections 20 or 21 or the accretions thereto was intended to pass by said deeds. And for further answer he said that he conveyed to his son, Frierson Moore, for the actual consideration of $40,000; and that his son had no knowledge of the existence of the timber contract in plaintiff’s favor. He further alleged that he was an old man; that the lands were not easily accessible from the city of Helena where he lived; and that he had not been on them for more than twenty years, and knew nothing of the character or value of the timber growing thereon, while the plaintiff was 'advised and represented to him that there was only a very small amount of timber, thereon, and that it was small in size and poor in quality and of little value, and induced him to convey said timber for a trifling part of its actual value; and that like misrepresentations were made by the plaintiff to secure an extension of the time and an amendment to the contract to include timber not originally included. Defendant tendered back the money which he had received, and asked that his contract with plaintiff be cancelled.
Frierson Moore answered on the same date his father did, and denied any knowledge of plaintiff’s rights, and alleged that he had paid $40,000 for the lands.
Plaintiff filed notice of lis pendens September 12, 1907.
The record is a voluminous one, but the evidence will be stated briefly. The plaintiff was a sawmill man of wide experience, and was successfully operating upon an extensive scale. The defendant, John P. Moore, was a large land owner and a man of large wealth, but much advanced in age. It appears that to the lands in sections 7, 8, 17, 20, 21 and 22 vast accretions had formed, as to the extent of which neither plaintiff nor defendant appears to have had any very accurate conception at the time of their trade.
It further appears that some years before the first conveyance from Moore to Reeves a negro man, named Dan Martin, occupied and cleared a tract of ’and which Mr. Moore ela’med to own, and for the possession of which he brought suit April 7, 1900, but this suit was determined adversely to him at the fall term of Lee Circuit Court, 1901. Moore’s contention before and at the trial was that the land occupied by Martin was accretion to his land, while the judgment of the court sustained Martin’s contention that it was an independent island. It is altogether probable that Reeves had no definite idea of the vastness of his purchase, and it is entirely certain that Moore did not know just what he was selling. The consideration paid proves, in comparison with the value of the timber sold, to have been only nominal, and even that price was not paid in cash. Neither party appears to have been in any need of money, but Reeves executed his note for the entire consideration of $600. None of the witnesses placed the value of the timber at less than $15,000, and one witness claimed to have negotiated a sale at $100,000, which was not consummated because of the controversy about the title. However, to a large extent, this disparity between consideration and value is accounted for by the fact that accretions continued to be made and cottonwood was shown to be a timber of extremely rapid growth and especially so in its sapling stage, and it appears further that in recent years very valuable commercial uses are made of cottonwood timber that was formerly not merchantable, because of its size.
We are not impressed with the contention made by the plaintiff that the defendant made any particular representation as to the lands upon which the timber , was conveyed and in reliance upon which plaintiff purchased. In fact, plaintiff’s contention in this respect, and the securing of ten additional years in which to remove the timber after having had nearly two years for that purpose, are the only circumstances which appear to give color to Moore’s contention that Reeves knew what he was buying and deceived defendant to his disadvantage.
The chancellor set aside the deed from J. P. Moore to his son, Frierson, and the evidence fully warranted that action. It would be tedious and unprofitable to set out the evidence which leads to that conclusion, but it is reasonably certain that this deed was executed, after Moore had discovered how poor a bargain he had made, for the purpose of avoiding its consequence.
It appears that the trade between Moore and Reeves was the consummation of negotiations pending between Moore and the negro, Dan Martin; that Martin had offered to buy the timber on the accretions to Moore’s “Diamond place,” which are the lands described as being in sections 6, 7, 8,17, and 9, there being no accretions, however to sections-6 and 9. That Martin had no money and wanted to buy the timber by the thousand, but Moore at pears to have disliked Martin, and to have been distrustful of him, and refused to sell the timber, except for $600 in cash. Martin, after several unsuccessful attempts to raise the money from other parties, finally applied to Mr. Reeves to either advance him the money or to buy the timber and let him log it. Both Moore and Reeves testified that the trade which was closed by the first contract was the identical one which Martin had attempted to negotiate; Reeves’s evidence being that he took Martin’s statement absolutely, and that he had no information, except that obtained from him. But he does say that Mr. Moore, in pointing out the lands on his map, swept his hand across the map to the river, saying that he owned all the lands and accretions indicated by his gesture, and which would include all the lands, the timber on which is here sued for.' We think this evidence is not sufficient to sustain the allegations of plaintiff’s amended complaint that Moore made representations about the extent of his accretions, upon which plaintiff relied and acted, and which defendant can not therefore now be heard to question. We reach this conclusion because the deed does not describe all the accretions now claimed, because the extent of these accretions has been unknown and their ownership to some extent uncertain; and because Moore denies that he sold any except that described; and because he did not then own all this land, although he may have claimed a part of it; and for the further reason that the description of the lands now claimed by appellant included Dan Martin’s own land, and he of course had not offered to buy the timber on his own land. Appellant says that at the time of the first conveyance Moore claimed to be the owner of the land, and claimed it as an accretion to his “Diamond place.” It does appear that he attempted to recover the land from Dan Martin on that theory. As has been stated, he was unsuccessful in his attempt to do so, and we think that the plaintiff is in no position to take advantage of that fact. Accordingly, we hold that Reeves is entitled to the timber on the land specifically described in his contract; but' when that conclusion has been reached, the case is still one of difficulty.
It appears that one Judge T. J. Ashley and a Mr. Beard owned sections 20, 21, and 22 and the accretions thereto, all of which were sold to Mr. Moore, subsequent to the date of the last contract, and that these lands, with the “Diamond place,” comprise all the accretions to the main shore. The deed from Martin to Moore conveyed, not only the land which had been adjudged to be an island in the litigation, but also the lands which may have been an accretion to this island.
Appellant insists, and the proof tends to show, that about 1870 a line was run by agreement between Mr. Moore and Judge Ashley, who- were then the owners, repsectively, of sections 17 and 20 and the accretions thereto. .But the evidence as to this line consists of a deposition of Judge Ashley, taken in the case of Moore against Martin and read here as his deposition by the consent of the parties, and it does not fully appear just what the extent and purpose of this line was, farther than to mark the point up to which each might clear land, but it is not expressly stated in the deposition that they were apportioning the accretion between themselves. But, on the contrary, he makes the following statement in regard to the line and its purpose:
“Q. Where is the line between your and Moore’s land? A. Running from the northwest comer of the original fractional section 20 straight to the river. Q. How was that line established? A. About the year 1870, by Mr. Bailey, as the surveyor of Phillips County at that time. Q. Was there any kind of agreement between you and Mr. Moore? A.J (This question was objected to and not answered). (And on cross examination it appears that he testified as follows): Q. Mr. Ashley, about the line between you and Moore, is it not a fact, that there was no agreement at all, except along that Armstead line where he built? Moore cleared up to it on one side and you on the other? A. Yes, sir. Q. You cleared up to a certain line and you recognized the line and he recognized it, A; Yes, sir; that is it. There was no other agreement. He cleared up to this line, and I cleared up to this line.”
The recent case of Malone v. Mobbs, 102 Ark. 542, held that where there is doubt, dispute, or uncertainty as to the true location of a boundary line, the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive between them, although the possession is not for the full statutory period. We adhere to this rule, but its application is not determinative of the question here considered. True, the the case quoted from was one where the accretions were apportioned, but in that case the accretions had entirely formed, and the law permitted and enforced a parol agreement to fix the boundary, because the very purpose of such agreement is to make definite and certain that which is uncertain and in dispute. Here there is no express showing that they were apportioning the accretions between themselves. And it affirmatively appears that at the time of the survey the accretions did not extend more than a half of a mile from their common corner, and a considerable part of this space was taken up by accretions, which were then in process of formation. In the deposition of Judge Ashley, before quoted from, he said:
“Q. When you came there in 1870, how far was the river from the line of these sections? A. About one-half of a mile. . Q. How far is it down now? A. I expect probably a mile. Q. State what the character of the formation was? That is, how was it formed in the year 1870 till the time you left there? A. Formed by accretion. Q. In what way? A. By gradually making up the land.”
At the present time there is land for more than a mile and a half from this common corner; but, if the line which Moore and Ashley agreed upon as a boundary was projected to the river, it would extend for a distance of a mile across land which was not in existence when the line was established, and there would be included the Dan Martin land and what may have been accretions to it. In other words, would include accretions which were probably made to an island. It appears from the record in the suit against Martin that Moore sued for only 85 and 84-100 acres, but when Martin conveyed to Moore there was not only conveyed by its metes and bounds the land involved in that litigation, but also a large area of other lands which are the lands that Reeves said Moore represented he owned as accretions to his lands. But for Moore’s purchase from Martin and from Ashley and Beard, there would be some question among them as to the apportionment of these accretions. It may have been that Moore bought from Martin only to acquire color of title to fortify himself in the future, in the defense of his possession, but, however this may be, there is tco much uncerrainty about the location and purpose of this conventional boundary to hold that it must be accepted as the boundary of the accretions for the benefit of one who knew nothing about it. The Mobbs case, above cited, is authority for holding that grantees may claim the benefit of the agreement of their- grantors, and they need not have had knowledge of that agreement at the time of their purchase to claim the benefit; but we are distinguishing theD facts of this case from the Mobbs case, and hold that Moore is not estopped from saying that Reeves should have only the accretions which were properly apportionable to the lands described in the conveyance to him.
It is necessary to determine how these accretions should be apportioned. The Mississippi River has entirely changed its course along the front of the lands under consideration; and to such an extent is this true that what was once the main river and the boundary between this State and Swearingen Island, which is in the State of Mississippi, has filled, until now in places it is only a chute, called “Old River,” and the main' river flows to the west of this island, placing it on the Arkansas side of the river. Appellant now insists that only the present shore of the Mississippi River should be taken into account and that the bank of Old River should not be measured in determining the present shore line, as was done by the master under the directions of the court in apportioning the accretions among the different sections of land. But we think that the court’s directions to the master were proper, that is, that he should take, as the present shore line, the line running from the point where the accretions commenced to the point where they ended, even though, in doing so, the present bank of the main stream was departed from when the measurements were made to extend along the bank of the Old River. To adopt the rule contended for by appellant would either leave some accretions unapportioned or would leave the accretions to section 7 in such a shape that the stream of Old River would divide its accretions into two disconnected’parts. The rule adopted by the court below is in conformity with the rule announced in the case of Malone v. Mobbs, cited above, where the rule for apportioning accretions between coterminous proprietors is announced substantially as follows:
The accretions-should be apportioned by giving to each section a proportion of the outer boundary line of the accretions in the ratio that the old shore line on the particular section bore to the whole of the old shore line, and then drawing lines from the points of division, thus made in the outer boundary line, to the points at which the old shore line is intersected by the boundaries separating the different sections.
In other words, each section should have a part of the outer boundary line in the same proportion to the whole of the outer boundary line that its proportion of the old shore line bore to the whole of the old shore line, with lines drawn from the respective dividing points on the old shore line.
In the case just quoted from, Judge Hart, speaking for the court, said: “The rule just applied was the one generally recognized as the proper one to follow, unless there are such irregularities in the shore line as to make it inequitable, and this rule was there adopted as the one to be followed in this State, unless there are peculiar circumstances to modify it, as where the shore line happens to be elongated by deep indentations or sharp projections. The exception does not apply to the rule adopted by the court below.
It might be said that the above apportionment does not take into account the question of whether the land conveyed by Martin to Moore was accretion to the main land or to Martin’s Island, but treats it all as if it were accretion to the main shore. But this is necessarily to the appellant’s advantage, and appellee in his cross appeal makes no objection to this method.
Upon the whole case we are of the opinion that the decree of the chancellor is correct, and it is affirmed. | [
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Hart, J.,
(after stating the facts). Where the servant has been injured while in the course of his employment, the fact of the accident carries with it no presumption of negligence on the part of the master, and it. is an affirmative fact for the injured employee to establish that the employer ’had been guilty of negligence. St. Louis, I. M. & S. Ry. Co. v. Harper, 44 Ark. 524.
In the case of Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, Mr Justice Brewer, speaking for the court, said:
“It is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is liable and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.”
In the case of Coin v. John M. Talge Lounge Co., 222 Mo. 488, 17 A. & E. Ann. Cas. 888, the court held: “If an accident causing injury to a servant may have resulted from either one of two causes, for one of which the master is liable and for the other of which he is not, the servant, in an action to recover for the injury, must show with reasonable certainty that the cause for which the master is liable produced the injury; and, if the evidence merely leaves this to conjecture, the plaintiff must fail in his action.”
To the same effect see Green v. Southern Railway Company, 5 A. & E. Ann. Cas. 165, and case note; Schultz v. C., M. & St. P. R. Co., 116 Wis. 31.
If the appellant was injured by coming in contact with the primary and secondary wires with his body, it is evident that he can not recover, for he himself testified that he knew and fully appreciated this danger. He admits that he knew some of the wires were heavily charged with electricity before he began to climb the pole, and that he fully understood the risk he ran in working among them. Therefore, if he was injured by his body coming in contact with the primary and secondary wires, he must be deemed to have assumed the risk. Neither the appellant nor any of his witnesses undertake to to say just how the accident happened. The appellant himself testified that it could have been produced by any one of three causes: (1) by coming in contact with two wires, (2) by lightning, (3) by coming in contact with one of the primary wires and the guy wire at the same time.
Under the testimony there is no more reason to suppose that it was due from one of these causes than the other. The cause of the accident is purely a matter of conjecture, and “a servant can not recover where it is merely a matter of conjecture, surmise, speculation or supposition, whether the injury was or was not due to the negligence of the master.” 2 Labatt on Master & Servant, 167.
Therefore, the court properly directed a verdict for appellee, and the judgment is affirmed. | [
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Frauenthal, J.
This is an action instituted by appellee to recover for certain work and labor which he alleged he performed under a contract made with appellant through its agent. Appellee is engaged in a bill-posting business in the town of Osceola, and appellant is a mercantile corporation located in the city of Memphis. In the conduct of its business, appellant had in its employ a travelling salesman who was authorized to solicit orders for and make sales of its goods. Among its customers in Osceola was a retail firm to whom in shipping goods it also sent large printed advertisements which could be posted on bill boards. Appellee claimed that he had entered into a contract with appellant’s salesman whereby he was employed to post said advertisements on his bill boards. Appellant denied that such contract was entered into by its salesman, and claimed that if it was he was unauthorized to make it.
The trial resulted in a verdict for appellee for the amount for which he sued.
The testimony on the part of appellee tended to prove that on March 10, 1911, Mr. Swift, the manager of said retail firm in Osceola, called him to his place of business and stated that appellant's salesman came to see him about making a contract for advertising, and he thereupon entered into said contract with the salesman by which he agreed to post said advertisements on his bill boards for six months for the price of forty-four dollars. A' day or two thereafter Mr. Swift received a letter from appellant, stating that its travelling salesman had advised it of the price appellee wanted for posting said advertisements, and that it refused to make such contract. As soon as he received this letter, Mr. Swift notified appellee that appellant refused to make the contract, or that it did not consider that it had a «contract with him. It appears that appellee began posting the advertisements probably a day or two before receiving this notice and continued posting them for a short time thereafter, procuring them from Mr. Swift, and that he failed to post them further only because Mr. Swift had no more advertisements on hand. There was no testimony adduced upon the trial of any express authority given by appellant to its salesman to make this conract. On the other hand, the president of appellant’s company testified that the company never gave its salesman any authority to make any contract with appellee; that no authority to make a contract of this character was ever given to the salesman at any time; and that said salesman never at any time made a contract for advertising for it. He testified that the sole power and authority given to the salesman was to solicit orders for goods and to make sales thereof.
The case was tried chiefly upon the theory that the contract for posting advertisements was as a matter of law within the apparent scope of the authority of appellant’s salesman to make as its agent, and that it was within the province of the jury to determine whether or not under the evidence it was within the apparent scope of his authority to make this contract in this particular case. A number of instructions were given by the court in which it stated to the jury in effect that appellant was bound by any contract made by its salesman with appellee for posting said advertisements, if they found that “such agreement was such a one as was within the apparent scope of his authority to make.”
The power of an agent to bind his principal must be determined by the actual authority which has been given by the principal to him. Such authority may be given expressly, and it may arise also from implication. An agent has authority to do all that he is expressly directed to do; and he also has implied authority to act in accordance with the custom or usage of the business which he is employed to transact and to do what is reasonably necessary to accomplish that which he is directed to do. This implied authority to do acts by which the principal will be bound which are not expressly authorized is also spoken of as those acts which are within the apparent scope of the agent’s authority. But, to authorize an inference of authority in an agent, it must appear that the thing done or transaction made was necessary in order to promote the duty or carry out the purpose expressly delegated to him. It is not sufficient that the act of the agent is advantageous to or convenient for his alleged principal, or even effectual in transacting the business in which he is engaged. The act of the agent must be practically indispensable and essential in order to execute the duty actually delegated to him. Beckford v. Menier, 107 N. Y. 407.
His implied authority is limited to those acts which are of like kind with the very act he is expressly impowered to do and from which the authority is implied, but his authority can never be extended by implication to do an act or make an agreement which is beyond the obvious purpose of his employment. The purpose for which a travelling salesman is employed is to solicit orders and make sales of goods; unless he is specially authorized to do so, he has no implied authority to do any act other than is usually done by other salesmen of like character; that is, to do those things and make those agreements which are necessary and usual to accomplish the purpose of this agency. Being employed for one purpose, he has no authority to do another, either actual or implied. In 1 Clark & Skyles on Agency, § 244, it is said: “A travelling salesman, like other agents, has implied authority to do all acts or make all contracts that are reasonably necessary and proper or usually done or made by other agents in the same or similar line of business. * * * in the absence of special authority to bind the principal, a drummer can merely solicit and transmit an order.” It has been held by this court that a travelling salesman is only authorized to solicit orders and make sales, and has no implied authority to collect therefor; and that such salesman has no implied authority to rescind a sale after it has been made. Meyer v. Stone, 46 Ark. 210; American Sales Book Co. v. Whitaker, 100 Ark. 360; Lee v. Vaughan’s Seed Store, 101 Ark. 69.
In the case of Tarpy v. Bernheimer, 16 N. Y. Supp. 870, an action was instituted for advertising defendant’s business in plaintiff’s paper by order of defendant’s agent. It appeared that the latter was agent only for selling the goods of the defendant, collecting bills and representing defendant before a board of excise. One of the defendants testified that the agent had no authority to contract bills for him or the firm, and that no paper containing such advertisement had been received by him or the firm. It was there held that these facts were insufficient to warrant a finding that the agent had authority to contract bills for such advertising.
In order to solicit orders for or to make sales of goods, it is not indispensable that the travelling salesman shall advertise them in a newspaper or upon bill boards. Such advertisements may be advantageous to the principal or to those buying from him; but a great many other expensive things might be done which would prove advantageous to the principal and such buyers, and yet none of them can be considered indispensable for the purpose of making the sale, and is not ordinarily understood to be incidental to the authority given to a travelling salesmen. The power to make contracts for advertising can not be implied from the power to sell goods and solicit orders, and therefore is not within the apparent scope of the authority of the travelling salesman in this case to make. A person dealing with an agent is at once put upon notice of the limitations of his authority, and must ascertain what that authority is. Berry v. Barnes, 23 Ark. 411; City Electric Street Railway Co. v. First National Bank, 62 Ark. 33.
Such person can not presume that such authority exists; he can not rely upon the representation of the agent as to what his authority is; he must make inquiry and use due diligence to learn the nature and extent of such authority. If he does not, he deals with the agent at his own risk; and if the authority of such agent is disputed, it devolves upon him to prove it.
In the case at bar there was no testimony adduced tending to prove that the travelling salesman ever made a contract of the kind sued on, or that it was the custom or a usage of such sales man to make such a contract. The undisputed testimony adduced showed that this agent was a travelling salesman authorized to solicit orders for and sell goods. As a matter of law, therefore, the power to make the contract sued on was not within the apparent scope of this travelling salesman's authority. It follows that the court erred in the instructions given in which it stated that appellant was bound by this contract if the jury found from the testimony that it was Within the apparent scope of the agent’s authority to make it.
For the above errors contained in the instructions given by the court, the judgment is reversed, and this cause is remanded for a new trial. | [
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Smith, J.
This suit was commenced in the chancery court of Jefferson County by P. C. Dooley against Mary K. Moore to confirm his title to the southwest quarter, southwest quarter, section 35, township 4 south, range 7 west, situated in that county. Afterwards upon petition of G. A. A. Deane, suggesting the death of P. C. Dooley and stating that before his death he had by his warranty deed conveyed said land to said Deane, an order was made substituting G. A. A. Deane as plaintiff.
There are no controverted facts which it will be material to consider, and the pleadings and proof present this state of case. During all the time herein mentioned plaintiff and his predecessors in title had color of title to the above described tract of land, and the same was unimproved and uninclosed. With this color of title plaintiff and those under whom he claimed commenced paying taxes on the land for the year 1887, and without a break in- the payments paid the taxes continuously until the year 1902, when he paid the taxes for the year 1901. The taxes for the year 1902 were paid in the year 1903 by the defendant, since which time neither party has paid taxes continuously for the statutory period. The defendant has been twice married; her first marriage having been to one John P. Murphy April 7, 1875, but he died December 6, 1892; thereafter she was a widow until June 11, 1895, when she was married to her present husband, since which time she has been and is now a feme covert.
Both parties concede this case must turn upon our answer to the question, “Was the void apparent title of the plaintiff made good by limitation against Mrs. Moore, the holder of the original and valid title, by reason of the act of March 18, 1899, and payment of taxes, notwithstanding Mrs. Moore’s coverture?” This act is carried into Kirby’s Digest as section 5057, and its provisions are as follows:
“Unimproved and uninclosed land shall be deemed and held to be in the possession of the person who pays the taxes thereon, if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless he and those under whom he claims shall have paid such taxes for at least seven years in succession and not less than three of such payments must be made subsequent to the passage of this act.”
This act has frequently been before the court, but this particular question has never been decided, although it was raised in the case of Taylor v. Leonard, 94 Ark. 122; however, the facts of that case were such that the decision of that point was unnecessary. Here the concession is made that plaintiff has paid such taxes as entitle him to have his title confirmed if this right is not defeated by the defendant’s coverture. What, therefore, is the proper construction of the act under the facts stated? In determining the legislative intent, these propositions are urged upon out consideration, that while the act itself is not one of limitation it becomes so by reference to section 5056, Kirby’s Digest; for, as Judge Frauenthal said in Taylor v. Leonard, above referred to: “This statute in itself is not a statute of limitation. It only declared that the land shall be deemed to be in the possession of the person paying taxes thereon under color of title. It only makes the payment of taxes under the conditions named in the act a constructive possession, and it is only by applying thereto the general statute of limitations contained in section 5056 of Kirby’s Digest that such possession, like actual possession, can ripen -into title by limitation. In order to make effective this act as a statute of limitation, it must be considered in connection with and a part of section 5056, Kirby’s Digest, so that, in addition to the actual adverse possession required by that section, the constructive adverse possession, declared by this act, may also result in a complete bar by limitation. And, in becoming thus a part of section 5056 of Kirby’s Digest, the provisos of that section relating to those laboring under disability apply also to this act.” That where the seven consecutive payments of taxes have been made, at least three of which were subsequent to March 18, 1899, the date of the passage of the act, the constructive possession, resulting from these payments, related back to the beginning of the seven-year period of payment, and gave the same title by defeating any proceeding to recover possession that seven years’ actual possession gave under section 5056. This possession, whether actual possessio pedis for seven years, or constructive from the payment of taxes for that time, defeats a recovery of possession by any one, except infants, married women, and insane persons. That, although this act was retroactive in its operation, the first case which construed it, that of Towson v. Denson, 74 Ark. 302, held it was not invalid on that account, for the reason that it gave reasonable time after its enactment in which an interested party could prevent the consequences of the act falling upon him.
This constructive possession may therefore in a proper case relate back for a period of four years prior to the passage of the act, and it does do so in this case if that result is not prevented by the coverture of the defendant at the time of its enactment.
If this act can be said to be retroactive as to persons who were under the disabilities mentioned at the time of its passage, then plaintiff’s constructive possession related back to a time prior to the defendant’s present marriage, to a time when she was not under disability of coverture, and the statute was thus set in motion when she was under no disability, and its running was not arrested by her subsequent marriage. To sustain this view, we are cited to those cases which hold that, where the statute is set in motion in the lifetime of the ancestor, its running is not arrested by the subsequent infancy of his heir during the 'remainder of the period of -limitation; and to those cases which make the same holding where there is actual entry upon and adverse occupancy of the lands of a person, who subsequent to such entry and adverse occupancy, becomes insane, and we are reminded also of the rule that subsequent marriage does not toll the statute, where it is set in motion during discoverture. And we also have before us the rule that, where the Legislature makes no exception in a statute of limitation, the court can make none, whatever be the hardships in individual cases. Hill v. Gregory, 64 Ark. 317.
These principles are here set out that it may appear that we have considered them, and because they explain the views of the two members of the court, who are of the opinion that the decree of the chancery court refusing to confirm and quiet plaintiff’s title should be reversed. The view of a majority of the court is that, while the act is retroactive, it was not the legislative intent to so make it retroactive as to cut off the right to sue of persons under the disability of either insanity, infancy, or coverture at the time of its passage. To hold otherwise, would be to say that the Legislature intended that one who was an infant or non compos mentis at the passage of the act could be defeated by three payments of taxes subsequent thereto, because in the lifetime of the infant’s ancestor, or during a sane period of one who subsequently became non compos mentis, taxes were begun to be paid by some one who had only color of title and whose mere payments, for even an indefinite period, could never have ripened into title without this act; yet at the passage of the act and during all the time subsequent thereto, which was necessary for this constructive possession to ripen into title, these persons who are thus being shut off from their right to sue were without capacity to sue.' It does not answer this argument to say that a married woman is sui juris and may sue, and was given a reasonable time to do so before she was barred after the passage of the act, and therefore should be held to be barred if she did not sue, because the statute gives a married woman exactly the same exemption it gives an infant or one non compos mentis; and, as we have reached the conclusion that the Legislature never had the intention of barring an infant or one non compos mentis, by allowing only a period to sue for the recovery of his land during all of which time he had no capacity to sue, we have also concluded that there was no such intention in regard to women who were under the disability of coverture at the time of the passage of the act, and who have remained so since.
Affirmed.
Hart and Kirby, JJ., dissenting. | [
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Kirby, J.
This is an action which was originally instituted to recover damages for the alleged breach of a contract entered into by defendant whereby he had agreed to sell to plaintiff certain land in an addition to the city of Hot Springs and to make certain improvements thereon. A trial was had upon this action, resulting in a judgment in favor of plaintiff for damages, amounting to the purchase money which he had paid on the contract. The case was appealed to this court, and the judgment reversed on the ground that the measure of damages to which plaintiff was entitled upon the cause of action he had instituted was not the amount of the purchase money he had paid, but the amount of the actual damages which he had sustained by reason of the alleged breach of the contract. The basis of that decision was that the action was not founded on allegations that by reason of said breach the contract had been rescinded, but only that defendant had committed a breach resulting in the damage for which a recovery was sought, and thereby recognizing the continued existence of the contract, instead of its rescission. The case was remanded for a new trial, and thereupon plaintiff filed an amended complaint in which in effect he based his cause of action upon allegations that the defendant had committed a breach of a material provision of said contract, thereby entitling him to rescind same, which he did, and then tendered for cancellation said contract; and therein he sought a’recovery of the purchase money he had paid thereon.
Without making any objection to this amendment to the complaint, the defendant filed an answer and joined issue on the cause of action thus brought. The effect of this amendment was to change the cause of action, and was in effect the institution of a new suit. The defendant, by filing answer thereto without objection, has in effect entered his appearance to that suit, and by joining issue upon the merits has waived any right to raise any objection in this court to the new cause of action thus brought. In his answer the defendant did not plead that the plaintiff, by instituting a suit for damages growing out of the alleged breach of the contract, thus elected to treat the contract in full force, and was estopped thereafter from asking for its rescission. On the contrary, he joined issue on the allegations in the amended complaint seeking the rescission of the contract. Kansas City Southern Ry. Co. v. Tonn, 102 Ark. 20.
Upon the second trial, the case was submitted to the court ■ sitting as a jury, who made a finding that the defendant had committed a breach of the contract entitling the plaintiff to its rescission, and rendered judgment in favor of plaintiff for the amount of purchase money which he had paid on the contract.
It appears from the testimony that the defendant was the owner of a tract of acreage land which he subdivided into lots and blocks as an addition to the city of Hot Springs. It was known as Central Avenue Park Addition, and consisted of ten or more blocks. In January, 1908, the parties entered into a written contract, whereby defendant agreed to sell to plaintiff two of these blocks for the price of $6,900, of which the plaintiff then paid in cash $340, and agreed to pay the balance in monthly installments of $170 each, The contract described the two blocks which defendant had agreed to sell to plaintiff, and contained, amongst others, the following provision: “First party (defendant) agrees to surface grade and lay sewer pipe in front of above property and build a four-foot cement sidewalk along the street line of said property, provided, these improvements will be made as fast as 25 per cent, of the moneys received from the sale of the property will pay for the same.” Thereupon plaintiff made payment of seven monthly installments as they matured, five of which he paid in cash and two by the execution of a note. After paying the seventh installment, maturing in August, 1908, the plaintiff claimed that defendant had failed and refused to make the improvements mentioned in the above provision upon the two blocks set out in the contract, and thereupon he claimed the right to and did rescind the contract, and tendered back the same for cancellation.
It appears from the testimony adduced upon the part of the defendant that he had received from the plaintiff $1,530 in said moneys and note up to August, 1908, and from other sources sufficient to make a total of $1,655. Of this he had spent $766 for improvements then made upon other property in the addition, but no sidewalks, grading or other improvements were made on the line of or in front of the two blocks mentioned in the contract. The improvements made by defendant consisted of some surface grading, street grading and like improvements made upon portions of the addition at some distance from these two blocks. The defendant claimed that this was a full compliance with the obligation of the above provision of the contract, and for this reason he was not required to and did not make the improvements upon the two blocks described in the contract. His counsel now urges this contention upon the ground that the entire addition had been laid out from acreage property into lots and blocks, which defendant contemplated selling to various purchasers with like terms and like provisions as was contained in the contract made with plaintiff, and by the above provision it was contemplated that the improvements therein named were to be made in any part of the addition until finally the whole addition would secure all these improvements when all the lots were sold and payments made thereon. In his brief, counsel for defendant suggests that the construction of this provision is in effect the sole question involved in this case upon the determination of which this decision must rest, and in this we think he is correct.
The circuit court made findings of fact in accordance with the above testimony, and declared as a matter of law that, in order to comply with the provision of the contract for the expenditure of 25 per cent, of the moneys received, “the improvements must have been made in surface grading, sewer and sidewalks on the land immediately in front of and abutting the property purchased by the plaintiff,” and that it was not a compliance with the terms of said contract to expend 25 per cent, of the moneys so received in making similar improvements on portions of the addition not immediately in front of and abutting the property purchased by the plaintiff. This, we think, is a proper construction of the above provision of the contract.
The contract is a separate one, disconnected with any other sale that the defendant made or will make of any other lot in the addition. The contract makes no reference to any other property in the addition or to other proposed sales thereof, but specifically provides that to the extent of 25 per cent, of the payments made by plaintiff surface grading should be made and sewer pipes laid “in front of” the blocks described in the contract, and that a cement sidewalk should be built along “the street line of said property.” The plain meaning of this language of this provision of the contract is that these improvements shall be made in effect upon the property described in the contract out of the purchase money paid thereon. Any other construction thereof would simply alter and vary this plain meaning of this language of the contract. The amount received from plaintiff on the contract up to the time he claimed a rescission amounted to $1,530, 25 per cent, of which was sufficient to pay for the character of improvements named in the above provision upon this property. But defendant not only failed to make any of these improvements upon this property, but refused to do so, claiming and as serting the right to expend the moneys thus collected from plaintiff for improvements made upon other property in the addition. This he had no right to do, and by so doing he not only violated the obligation he assumed by the terms of this provision of the contract, but evinced an intention not to comply therewith. This was a breach upon his part of this provision of the contract, which we think is a material part of it. In the contract there were mutual obligations which were assumed by both parties. The promises therein made by one were the consideration for the promises made by the other; and the failure or refusal by one to fulfill his promises justified a rescission of the contract by the other.
The principle is thus formulated in the case of Missouri Pacific Ry. Co. v. Yarnell, 65 Ark. 320: “The obligations of the contract were mutual; and if the appellee failed to comply with it, he could not hold the appellant to a compliance. This is too plain to require argument or authorities. The failure of one party to a contract to comply with its terms releases the other party from compliance with it.” The same principle has been announced or approved in the following cases: Weigel v. Boone, 64 Ark. 228; Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156; Harris v. Wheeler Lumber Co., 88 Ark. 491; Jno. A. Gauger & Co. v. Sawyer & Austin Co., 88 Ark. 422; Berman v. Shelby, 93 Ark. 472.
In the case at bar, the contract was entirely executory, and the plaintiff had never been put in actual possession of the land agreed to be sold. After the breach upon the part of the defendant of this material provision of the contract, he claimed a right to rescind, and subsequently tendered the contract for cancellation and surrendered every right that he might have therein. By such action the parties can be placed in statu quo, the defendant retaining all title to the land and the plaintiff receiving the moneys he has paid thereon. Under these circumstances, we are of opinion that the breach by defendant of this material provision of the contract entitled the plaintiff to rescind his purchase and to recover the money paid thereon as for money had and received. Yeates v. Pryor, 11 Ark. 58; Bellows v. Cheek, 20 Ark. 424; Shultz v. Redondo Improvement Co., 156 Cal. 439; Gray v. Immigration Co., 127 Iowa 560.
The lower court rendered a judgment in favor of plaintiff for $1,530, on the ground that this entire sum was paid by plaintiff upon the contract. It appears from the testimony, however, that $340 thereof was paid by a note which was given by the plaintiff. It does not appear whether this note has been negotiated by defendant or is still in his possession. The testimony in the case is that the note is past due and unpaid. If this note is still owned by the defendant, or was still owned by him at the institution of this suit, he has not in his answer asked for an allowance of it as a set-off. The note is a binding obligation, therefore, and is unaffected in its enforcement by the adjudication in this case.
We are of the opinion therefore that the court was right in the amount,of the judgment which it rendered, and it is accordingly affirmed. | [
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McCulloch, C. J.
Appellee was the owner of a large tract of timber land in Yell County, Arkansas, and on May 23, 1907, entered into a written contract with appellants whereby he sold the timber to them for stipulated prices per thousand feet, payments to be made on semi-monthly inspections and itemized statement “giving number of pieces, sizes, kind of stock manufactured, and number of feet.” The contract provided that appellants should manufacture the timber already cut by appellee before the same became damaged, and to use diligence in cutting and manufacturing the timber, and that no other timber should be manufactured by appellants during' the time specified, namely, three years from and after April 15, 1907. Appellee further agreed to allow appellants the free use of a tramroad and cars in hauling the timber described in the contract. It also contained the following clause:
“10. The parties of the first part agree to pay said party of the second part the sum of twelve hundred and fifty dollars, and the same is hereby acknowledged by the party of the second part, this amount of money to be held by the party of the second part as security for the compliance of this contract by the parties of the first part.”
The sum named above was paid over to appellee by appellants at the time the contract was executed.
At that time appellee was engaged in cutting the timber and manufacturing it into lumber. He testified that there were about 5,000 feet of logs on the ground, which he had cut, and about 8,000 feet of single-tree material, which he had manufactured, and that he pointed it out to appellants, who agreed to pay for cutting and manufacturing it. The testimony adduced by appellee was to the effect that appellants made no effort to cut or manufacture any of the timber until the summer of 1908, and that in the meantime appellee made repeated efforts to induce them to commence work. He testified that soon after the execution of the contract he went with appellants to assist them in making satisfactory arrangements for a mill-site and roads from the mill, which appellants had an opportunity to secure; that they declined to accept any of the offered arrangements, and left without returning again until the next year; that he frequently wrote to appellants during the year and urged them to commence work, but heard nothing from them, and on December 1.1907, gave them written notice to cut on certain tracts. Appellants left the State, and in January, 1908, appellee gave notice of forfeiture of the contract. The testimony also showed that the season of 1907 was a favorable one for working the timber.
Appellants claim that one Parker, who had a contract for certain other timber, interfered and prevented them from beginning work in the spring or summer of 1907. The testimony of Parker tended to contradict that.
Taking the testimony as a whole, it was sufficient to show that appellants had no reasonable excuse for their failure to commence work on the timber during the season of 1907.
They instituted this action against appellee on January 24,1910, asserting the right under the contract to cut the timber and seeking to restrain appellee from interfering with them in performance of the contract.
Appellee answered, alleging a breach of the contract by appellants and an abandonment thereof, and setting up damages in the sum of $5,000 on account of the alleged breach of the contract.
• The chancellor on final hearing dismissed appellants’ complaint for want of equity.
The evidence was sufficient to sustain the finding of a breach of the contract and of an abandonment thereof by appellants. The finding is, at least, not against the preponderance of the evidence. The contract, according to its express terms, provided that appellants should “use due diligence in cutting and manufacturing said timber,” and that they should manufacture no other timber during the specified time.
“Time may be made of the essence of the contract by the express stipulation of the parties, or it may arise by implication from the very nature of the property, or the avowed object of the seller or the purchaser.” Cheney v. Libby, 134 U. S. 68.
The condition of one of the parties and the circumstances under which the contract was made clearly showed that time of performance was to be of the essence. Appellants were to have three years within which to completely perform, but they were to begin within a reasonable time and proceed expeditiously to complete performance.
It is insisted that appellee waived the breach of the con tract by giving appellants notice on December 1, 1907, to cut timber on certain tracts. The contract gave appellee the right to require, by notice of thirty days, the cutting of timber on any “forty or forties” of the land. He is not obliged under the contract to select the particular tracts from which the timber should be cut, but had the right to do so. He had not, up to December 1, 1907, elected to exercise his privilege of selecting the particular tracts from which timber should be cut, and had given no notice of his desire to make such election, but had been insisting generally on performance of the contract, without claiming the right to name any particular tract.
If appellants had accepted the notice and proceeded within a reasonable time to comply with it, the prior delay would have to be treated as waived. But they failed to do so. Under those circumstances they can not claim a waiver.
It is unimportant to determine whether the sum of money paid in advance under the contract was intended as liquidated damages or as penalty for nonperformance, or either. The contract specified that the money should be advanced “as security for the compliance with the contract.”
The evidence warranted a finding that appellee sustained damages in excess of that sum on account of appellant’s failure s to perform the contract. This according to the rule laid down by this court as to the correct method of measuring damages for breaches of contracts. Spencer Medicine Co. v. Hall. 78 Ark. 336; Singer Mfg. Co. v. W. D. Reeves Lumber Co., 95 Ark. 363.
Under those circumstances, appellants can not claim a recovery of the sum paid in advance as security for their performance of the contract. Nelson v. Hirsehberg, 70 Ark. 39.
The decree of the chancellor in dismissing the complaint for want of equity was correct, and the same is therefore affirmed. | [
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McCulloch, C. J.
The grand jury of Pulaski County returned two indictments against defendant, David Birones, one charging him with the crime of assault with intent to kill, committed by shooting at Miss Ruth Andrews, and the other charging him with the crime of burglary, committed by entering the dwelling house of Miss Mary Nolan in the night time with the felonious intent to ravish her, and also .that he entered with the felonious intent to steal the property of said Mary Nolan. Pleas of not guilty were entered in each case, and by consent of the prosecuting attorney and defendant’s counsel the two cases were tried together. The jury returned a verdict of guilty in each case, and defendant has prosecuted an appeal to this court.
No brief has been filed in behalf of the defendant, and we are compelled to look solely to the motion for new trial to determine what is relied on as ground for reversal, and only such matters will be mentioned in the opinion as we deem worthy of discussion.
In the first place, the point is raised that there is a variance between the proof and the allegations in the indictment concerning the ownership of the house, it being alleged in the indictment that defendant entered the house of Miss Mary Nowlin, whereas the real name of the lady is Mary Nolan. The names having substantially the same sound, the variance is not sufficient to defeat the conviction under this indictment. Rector v. Taylor, 12 Ark. 128; Bennett v. State, 62 Ark. 516; Taylor v. State, 72 Ark. 618; Burks v. State, 35 S. W. (Tex.) 173; Pitsnogle v. Commonwealth, 91 Va. 808.
The indictment for burglary charged the entering of the house for two purposes, one with intent to commit rape and the other with intent to commit grand larceny. This was equivalent to charging the same offense committed in two different ways, and should have been embraced in separate counts of the indictment; but, inasmuch as the form and sufficiency of the indictment has not been challenged by demurrer or otherwise, it is too late after verdict to complain.
The testimony establishes the fact that Miss Andrews was spending the night with Miss Nolan in the apartments of the latter, and late in the night they discovered a man entering the room through a window, whereupon they both made an outcry, and he fired at Miss Andrews as they ran out of the room. The testimony of the two ladies coincided about the entry of the man into the room and the firing of the shots, and Miss Andrews positively identified the defendant as the man who committed the deed. She testified that she saw defendant at police headquarters when he was arrested a few days after the commission of the offense, and recognized him, and at the trial she pointed him out on the witness stand, and stated positively that he was the man who entered the room and fired the shot at her. Miss Nolan was unable to recognize the defendant. The evidence was, we think, sufficient to warrant the conviction for the offense named in each indictment. It is not disclosed by the verdict of the jury what the finding was as to the intent of the defendant, whether to commit rape or to- commit grand larceny, but we are of the opinion that the jury were warranted in drawing the inference from the circumstances that he entered the room with the intent to commit one of the felonies mentioned. He0 entered the bedroom of a young lady in the night time, where there is reason to suppose he knew she was sleeping, and where articles of personal property were kept, and it is not an unreasonable inference that he meant to commit larceny or to perpetrate the crime of rape upon the person of the young lady. The fact that, on account of alarm being given, he did not commit either of the offenses named is not conclusive of the fact that he did not enter for the purpose of committing one of those two offenses. Harwick v. State, 49 Ark. 514; Monk v. State, ante p. 12.
During the progress of the examination of Miss Andrews as a witness on the trial of the case, she was asked to relate the circumstances concerning her identification of defendant at the city hall just after his arrest. In reply to the question of the prosecuting attorney, she gave the following answer: “Well, Captain Clifton had planned for me to go in the adjoining room where he was sitting, and we went in first, and we were casually talking, and he was to be brought in and to be set in a chair facing me; that is how I got a good look at him.” Defendant's counsel interposed an objection to any statement as to what took place at the city hall, whereupon the court ruled that “the State has a right to show, not what they may have told her, but where she next saw him and under what circumstances, without saying anything about what anybody else told her.”’ The witness merely continued with the statement that she saw the defendant at police headquarters, and nothing else was related concerning the identification. The court at one time permitted another witness to testify that Miss Andrews identified the defendant at police headquarters, but subsequently the court withdrew this and directed the jury not to consider any testimony in that connection, except the bare statement of Miss Andrews that she saw the defendant at police headquarters and recognized him. In the recent case of Warren v. State, 103 Ark. 165, we held that what is termed an extrajudicial identification is inadmissible as original testimony. The ruling of the trial court in excluding the testimony of the witness, Wilson, was in accordance with the announcement of this court in the Warren case; but the testimony of Miss Andrews, in stat ing that she saw defendant at police headquarters and recognized him, in nowise violated the rule we have laid down. It was entirely competent for her to state how often she had seen the defendant before and after the commission of the crime, and whether she recognized him or not.
Another error of the court is assigned in the motion for new trial, in permitting a witness to testify concerning the frequent arrest of one of defendant's associates; but, as no exception was saved to the court’s ruling at the time, we are not at liberty to pass upon the correctness of the ruling.
The court refused to give any of the instructions requested by defendant’s counsel, but all of them which constituted correct statements of the law were embodied in the court’s charge to the jury.
A careful examination of the record discloses no error, and the judgment must therefore stand affirmed. It is so ordered. | [
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Frauenthal, J.
The defendant was indicted for selling certain property upon which a mortgage lien existed. The indictment in apt and comprehensive language charged that the defendant had sold certain property which was therein described, upon which a lien then existed by virtue of a certain chattel mortgage executed by him, and that such sale was made without the consent of the mortgagee; but the indictment did not allege the value of the property which was sold nor the amount of the debt secured by said mortgage. To this indictment the defendant interposed a demurrer, which was overruled; and upon his trial he was convicted of a felony, and his punishment assessed at imprisonment in the penitentiary for a term of six months. The indictment is founded upon section 2011 of Kirby’s Digest, which makes it an offense for any person to sell or otherwise dispose of any property upon which certain liens exist, amongst them a lien created by virtue of a mortgage, with intent to defeat the holder thereof in the collection of his debt secured thereby. It is further provided that persons convicted of this offense shall be deemed guilty of a felony where the debt secured by such lien exceeds in amount the sum of $10, and the property so sold or otherwise disposed of exceeds in value the sum of $10; and where the debt secured by such lien does not exceed the amount of $10, or where the propeity so sold or otherwise disposed of does not exceed in value the sum of $10, such persons shall be deemed guilty of a misdemeanor. Kirby’s Digest, § § 2013, 2014.
Under the provisions of the above statutes, the defendant could be guilty of a felony only where the property disposed of exceeded in value the sum of $10 and the debt secured by the mortgage exceeded in amount the sum of $10. The value of the property disposed of and the amount of the debt secured by the mortgage are therefore, of the very essence of the offense of which defendant was convicted. The offense is a graded crime, and the value of the property and the amount of the debt are elements in the punishment thereof.
When value is an element in the punishment of an offense, it must be alleged in the indictment, and it is immaterial what the crime is. Thus, in cases of larceny, the value of the article stolen must be alleged unless the statute makes the stealing of a' particular thing itself a felony. Houston v. State, 13 Ark. 66; Ware v. State, 33 Ark. 567; Walker v. State, 50 Ark. 532; Sheppard v. State, 42 Ala. 531; Davis v. State, 40 Ga. 229; Rapalje on Larceny and Kindred Offenses, § 109; 1 Bishop’s New Crim. Proc., § § 541, 567; 12 Enc. Pl. & Prac. 996.
Every indictment, for whatever offense, must set out all the facts which in law may influence the punishment for the commission thereof. The principle is thus stated in 2 Bishop’s New Grim. Proc., § 48: “If the punishment to be inflicted is greater or less, according to the value of the property, the value must be stated in the indictment, because every indictment for whatever offense must set out every fact which the law makes an element in the punishment thereof.” 1 Wharton, Grim. Law, § 1003; Bishop on Stat. Crimes, § 427.
The punishment fixed for the crime of selling mortgaged property is influenced by and dependent upon the value of the property sold and the amount of the debt secured by the mortgage thereon, and these facts must necessarily be set out in the indictment in order to charge an offense under the above statutes.
It follows that the court erred in overruling the demurrer-to the above indictment. For this error the judgment is reversed, and this cause is remanded with directions to sustain the demurrer to said indictment and for further proceedings. | [
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Wood, J.,
(after stating the facts). T. The testimony is not sufficient to sustain the verdict. The complaint shows that appellee sues for failure and neglect “to deliver said shipment of roots to the consignee James Rowland & Company,” and “that by reason of the failure of the defendant to deliver said shipment of roots he has been damaged in the sum of $150.”
The proof on behalf of the appellee himself shows that the appellant did deliver the roots in controversy to James Rowland & Company on August 20, 1910. One of the members of the firm of James Rowland & Company testified as follows: “I received these roots on August 20,1910. I gave a receipt for these three bags, but did not weigh .them. The sacks were in good order when received, to all outward appearances. They were packed in thin bags of cloth material.”
The appellee himself testified that the roots were packed in light cloth material sacks and well sewed up when he shipped them. He also testified: “I was not very careful about getting the exact weight of these three packages before I expressed them.”
The waybill in evidence showed that there were three bags of roots, and that they were billed as twenty-eight pounds. The waybill was numbered 37, and the express number of the shipment to identify it was 38,448. This is precisely the character of the shipment that was delivered by order of the appellee to James Rowland & Company, as shown by the latter’s receipt.
The appellee therefore fails to show any cause of action for nondelivery of the goods by the appellant.
The testimony on behalf of the appellee showed that Rowland & Company received the bags as of the weight of twenty-eight pounds, the same weight he shipped them under. Their agent who received the bags showed in his testimony that he gave the receipt for the bags as weighing twenty-eight pounds, as shown by the waybill, but that he did not weigh them. There is no testimony therefore to show that, if these bags weighed twenty-eight pounds when they were delivered to the appellant at Pettigrew, as claimed by appellee, they did not weigh twenty-eight pounds when they were delivered through appellee’s order to Rowland & Company in New York City. It should be taken, under the uncontroverted proof here, that the appellant company delivered the shipment just as it had received it from the appellee, in good condition, to appellee’s order in New York City. If there was really a loss in the weight of these roots, as appellee claims, his testimony wholly fails to show that that loss occurred by reason of the failure of the appellant to deliver. The loss, if any, under the undisputed facts of this record, must, be held to have occurred after the goods were delivered to Rowland & Company in New York City, and not before.
The evidence shows that the goods were delivered to Rowland & Company on August 20, and that they were not sold until August 22. The loss of the roots, if any, might have taken place, so far as the proof shows to the contrary, between the time that Rowland & Company received them and the time they sold them. The burden was on the appellee, and he has failed to trace the loss of these roots to the appellant. The jury must not be allowed to speculate as to when and where the loss occurred. It was the duty of the appellee to prove by facts and circumstances that the loss, if any, occurred through the failure of the appellant to deliver, as alleged in the complaint.
2. The conclusion we have reached makes it necessary to determine whether the introduction of the letters, exhibits “B, C & D,” was prejudicial error, and in view of a new trial it is only necessary to state that these letters were incompetent. 14 Enc. of Ev. 718.
For the error in overruling appellant’s motion for a new trial the judgment is reversed, and the case remanded for a new trial. | [
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Smith, J.
This action originated in the Randolph County Probate Court, and involved the correctness of a final settlement made by the administratrix of a deceased guardian. E. H. Stubblefield in his lifetime was guardian of certain minors, who are referred to throughout the record of this case as the “Bryan heirs.” The last settlement made by him was filed August 15, 1906, and showed a balance due his wards of $482.71. This settlement was duly approved by the probate court, although it does not appear of what this balance consisted, but in all probability it consisted to a large extent, if not entirely, of notes taken by him for various loans of money belonging to his wards. The said E. H. Stubblefield died July 17, 1909, without having made any further settlement of his guardianship, although he continued to act in that capacity, collecting old loans and making new ones, and otherwise managing the estate in his charge. Upon his death his wife filed what purported to be a final settlement of his guardianship, showing various debits and credits and a balance due of $213.86.
After the death of E. H. Stubblefield, letters of guardianship on the estate of said minors were granted to one J. D. Stubblefield, and he filed exceptions to the settlement of the administratrix, alleging that at the death of E. EL Stubble-field he had in his hands certain promissory notes belonging to his wards with which he was not charged in his settlement, and that, after all proper credits had been given, there still remained a balance due of $642.69. Ele also excepted to the allowance of the credits asked by the administratrix, which included certain sums of money alleged to have been paid the minors and himself as their guardian together with certain attorney’s fees, taxes, and court costs and compensation in the sum of $50. It was contended in the exceptions that the compensation asked was excessive, and it was prayed that only such of the other credits be allowed as were covered by vouchers that might be produced.
The case reached the circuit court on appeal, where, the present guardian demanded a trial of his exceptions before a jury, and this demand was granted, over the objections and exceptions of the administratrix, and much of the confusion of the record in this case flows from the acquiescence in this demand. While we do not reverse this case because of the trial court’s action in awarding a jury, we do take this occasion to again disapprove the practice of submitting the decision of exceptions to settlements in the probate court to the verdict of a jury. Judge Eakin said, in the case of Crow v. Reed, 38 Ark. 485: “A trial of exceptions by a jury in the probate court is not contemplated by law. The function of the county and. probate courts in such matters is rather that of an auditor, clothed with judicial power or that of a master stating an account. It is not usually such matters as juries can perform. Any circuit court has the power, under the Code practice, to order any special issue or issues to be tried by a jury which before the Code might have been so tried. But that has no application to the probate courts. It would not do to have exceptions to accounts burdened with the cost of jury trials. The judges must take the responsibility of determining the facts as well as the law.”
Upon the trial the jury made no finding as to the credits asked for, except that of compensation which was allowed in the full, amount claimed, and neither the briefs of counsel nor the transcript itself shows what became of the other credits, and we may only conjecture whether the jury treated them as unexcepted to and therefore unnecessary to be considered by them; or whether, on the other hand, they regarded the credits as being without proofs to support them and were for that reason not considered at all. There was both a general and a special verdict in the case, which apparently are in conflict; or at least their effect is not clear to us, and in the preparation of the judgment there may have been information or explanation before the court, and which we do not have, but the court entered up a judgment which appears to us to be an improper one.
At the trial, proof was offered as to all the notes shown to have been in the hands of the guardian and his administratrix, notwithstanding two of the notes were shown to have been dated prior to the guardian’s.settlement, and there was evidence in regard to his possession of three other notes, the dates of the execution and payment of which are not shown. The good faith and fair dealing of this guardian is not questioned by the appellee, but, on the contrary, a compliment, no doubt well deserved, is paid his fidelity and diligence, but appellee says that his settlement did not include all the notes in his hands. This settlement appears to be a common account against all of his wards, but no point is made here of that fact, and these funds will no doubt be properly distributed when this guardianship is finally closed.
Proof offered by the appellee tended to show, and did in fact show, that, first and last, there were in the hands of E. H. Stubblefield, and afterwards in the hands of his administratrix, notes for a sum considerably in excess of the amount for which the guardian and his administratrix charged themselves in the settlement, but it is equally as certain that this resulted in part from relending the same money. And, as to at least one of these notes, the proof on the part of appellee showed that the money loaned belonged in part to the guardian individually and to his wards, and some of the notes which were taken to himself individually were evidently for money belonging to his wards. In other words, this appears to have been an estate administered by an honest man, who had only limited knowledge in keeping accounts.
This case will be reversed and remanded with directions to the court below to state this account without a jury, and in doing so the court will take, as a basis for settlement, the sum shown to have been due in the guardian’s settlement of August 15, 1906, unless an affirmative showing is made that at that time there was either money or notes or other property in his hands not included in that settlement. Interest must be charged at the rate of 10 per cent, per annum, because the settlement does not show how much of the balance is money nor how much is represented by notes, and all the notes offered in evidence appear to have borne interest at the rate of 10 per cent, per annum. After charging interest at this rate, the court will determine what part of the credits asked should be allowed, and the balance will be the sum for which judgment will be rendered.
It appears that, under the directions of the court below, the administratrix surrendered to the clerk of the county court the notes remaining in her hands, and during the progress of the litigation one of the notes matured and was paid to the clerk. The parties treated the notes in question as being worth their face value in money, as approved personal indorsements appear to have been exacted in each instance, and the court will allow credit for the full balance due upon the face of the notes surrendered in obedience to its order, and the administratrix will have credit therefor. | [
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Kirby, J.,
(after stating the facts). Appellant contends that he had no notice of the acceptance of his indorsement by the appellee company and the shipment of goods upon it, and on that account did not become liable thereon, and that appellee was negligent in proceeding to collect the debt from the insolvent company.
If appellee’s letter be construed as but an offer of indorsement or a conditional guaranty, it would have been necessary to notify him of its acceptance, or the conditions must have been performed by appellee company in order to fix his liability thereon, but such is not the case. Upon being advised of the refusal to ship the bill of goods ordered, because of the bad financial condition of the company ordering them, he wrote, expressing the utmost confidence in their ability to pay, giving his reasons therefor and concluded by saying, “If my indorsement is worth anything, you can ship on that. * * * I am vice-president of the McCarroll Brothers Company.” The appellee, upon the receipt of the letter, shipped the goods, upon said indorsement, charging them upon its books to the said company and John F. McCarroll, and relying absolutely upon the faith and credit of such indorsement, as the undisputed testimony shows.
This was not a continuing guaranty nor a conditional one, but a special guaranty or indorsement, directing the ship, ment of the good on the credit of the guarantor, if it was regarded good for the payment, and, being acted upon and the goods shipped in accordance therewith, appellant became absolutely bound with the principal on the contract of sale under which the liability of the failed company accrued. 20 Cyc. 1398-9; Stewart v. Sharp County Bank, 71 Ark. 588; Friend v. Smith Gin Company, 59 Ark. 91.
It is insisted that appellant should have been notified of the acceptance of his contract of guaranty or indorsement at the time of the shipment of the goods, and the failure of the company to pay for them, in order to bind him thereon.
If his letter had been but an offer to guaranty the payment of the account, this would be true, but it was a direction to ship the goods upon his indorsement, if his credit was regarded good for the amount and needed only to be acted upon by the appellee and the goods shipped in accordance therewith to bind him.
Appellee made no proposition to its salesman that it would ship the goods upon his guaranty of the account, but he sent the direction and indorsement which was acted upon by them, and thereupon became binding upon him. He does not claim that he did not have notice that the goods were shipped, but only that he was not advised at the time that the company would look to him for the payment in accordance with his proposition. He did know that appellee had refused to ship the bill of goods because of the financial condition of the firm ordering them, and also that he had directed their shipment after being notified -of such refusal upon his own indorsement, if it was regarded good, and that thereafter the goods were shipped. Nothing further was necessary to bind him to the payment therefor.
As these facts appeared from the undisputed testimony, the court did not err in directing the verdict.
The judgment is affirmed. | [
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McCulloch, C. J.
Appellants are the children and heirs at law of Anna D. McCord, deceased, who, it is alleged, was the owner at the time of her death, in the year 1891, of a tract of land in White County consisting of thirty acres; and they instituted this action to recover possession from appellee. The action was originally instituted in the chancery court of White County, but, on motion of appellee, and without objection on the part of appellants, the case was transferred to the circuit court of White County, where it proceeded to final judgment as an ejectment suit. On the trial of the case, after all the testimony had been adduced on both sides, the court gave a peremptory instruction to the jury to return a verdict in favor of appellee.
The only question, therefore, for our consideration is, whether there was sufficient evidence to warrant the submission of the issues to the jury.
It appears from the undisputed testimony that a tract of land, consisting of sixty acres, of .which the land in controversy formed a part, was originally owned by John H. Perkins, who was the father of Anna D. McCord. He sold the land to his son-in-law, W. C. McCord, who was the husband of Anna D., and took his notes for the sum of $400 to covet' the purchase price. The testimony adduced by appellants established the fact that John H. Perkins executed to W. C. McCord a deed conveying said lands to the latter, but that, after the death of Perkins, Mrs. McCord and the other children of Perkins treated the land as a part of the estate, and entered into an agreement for the division of the same. The testimony tended to show that the heirs allotted to Mrs. McCord the land in controversy and executed a deed to her conveying the same. That deed, having been lost, could not be produced, but appellants attempted, by testimony, to account for its execution. The testimony also tended to show that W. C. McCord consented to that division of the property and that his purchase money notes, which had never been paid, were returned to him and destroyed, but he did not join in the conveyance of the land or even surrender his deed which had never been recorded. Subsequent to his wife’s death, he conveyed the land to one Irvin, and the legal title passed by mesne conveyances to appellee. In this state of the proof, the trial court took the case away from the jury by a peremptory instruction in appellee’s favor, and we are of the opinion that it was proper to do so. According to the undisputed evidence, the legal title was transmitted from Perkins to W. C. McCord by the former’s deed, and thence to the appellee. The legal title had never been vested in appellants, whatever may be said of their equitable rights in the land, as it is well established that an equitable title is not sufficient to maintain ejectment. Percifull v. Platt, 36 Ark. 456; Stricklin v. Moore, 98 Ark. 30.
It is unnecessary to discuss the question whether, under the proof in this case, the appellants have any equitable rights in the land capable of assertion at this time, inasmuch as the case was transferred from the chancery court and tried in the circuit court as an ejectment suit without objection on their part.
No error was committed by the trial court, and the judgment is therefore affirmed. | [
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Smith, J.,
(after stating the facts). This appeal must be dismissed for the reason that it was prematurely taken.
Cases can not be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before. No such final judgment has been entered here, and the appeal must be dismissed.
In the case of Ayers v. Anderson-Tulley Co., 89 Ark. 162, it was said: “It is only from final judgments and decrees which conclude the rights of the parties with respect to the subject-matter, of the controversy that appeals may be taken to this court, and it must be conceded that an order vacating a judgment or granting a new trial made in the term at which the judgment was rendered is not appealable, except on the terms prescribed by the statute.” The statute referred to is section 1188, Kirby’s Digest. And in this case, even if the action of the court below was equivalent to the granting of a new trial, that action of the court could not be reviewed on an appeal “unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against appellant.” The language quoted is from the second subdivision of section 1188, Kirby’s Digest. No such notice was filed in this case, and for this reason, if for no other, this appeal must be dismissed. And in the case last cited the following language was used in quoting from the case of Huntington v. Finch, 3 Ohio St. 444; “The Ohio court in construing a statute similar to the one prevailing in this State,, with reference to appeals, said: ‘The Court of Common Pleas has ample control over-its orders and judgments during the term at which they are rendered and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court.’ ” See also Vol. 1 Crawford’s Digest, Appeal and Error, I, d. Womack v. Connor, 74 Ark. 354; Gates v. Solomon, 73 Ark. 8; Osborn v. LeMair e, 82 Ark. 490; Sanders v. Plunkett, 40 Ark. 507; Mallett v. Hampton, 94 Ark. 119.
Appeal dismissed. | [
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Frauenthal, J.
The defendant, Joe Dickerson, Ben Bowlin and Lee Edwards were jointly'indicted for the crime of assault with intent to kill. Their trials were severed, and defendant was convicted of aggravated assault, and his pun-' ishment fixed at a fine of $200 and imprisonment in jail for a period of six months. He seeks a reversal of the judgment upon the ground that there was not sufficient evidence to warrant the conviction, and because the court erred in its rulings on instructions and in admitting certain testimony.
The party alleged to have been assaulted was J. B. Green, who was in the employ as foreman of the grinding department of a corporation engaged in the manufacture of handles. Defendant was also working for this company, but the factory had shut down for repairs on the day of the alleged assault. The party in the -indictment named Lee Edwards had formerly been in the employ of said company, but had been discharged. On the day of the alleged assault the defendant, Edwards and Bowlin went to the factory, and the testimony tended to prove that the defendant and Edwards had been drinking intoxicating liquor, and were to some extent under its influence. Green was at the factory engaged in some of his duties, when he heard some one coming into the room, and, looking up, saw Edwards and.defendant, closely following, coming towards him very fast. He spoke in a friendly way to Edwards, who did not answer, but at once struck at him with his fist. He dodged the blow, and in doing so staggered against the defendant, who at once took hold of him around the arms. Edwards cried out to the defendant to “hold him while I kill him,” and at once struck Green over the head with a handle. Green cried out to the defendant to turn him loose, and asked him what he had done to him. The defendant, however, did not turn him loose, but continued to hold him, while Edwards was striking him with the handle. At length Green caught the handle and wrenched it from Edwards, and struck the defendant, at the same time forcing himself loose. About the same time a third person (probably Bowlin) struck Green on the head, and he either staggered or fell to the floor, when the defendant got on top of him and beat him over the head with a handle, crying out that Green had done him dirty, and that he was going to beat the life out of him. In the meanwhile, the company’s superintendent and other parties came to Green’s assistance and succeeded in forcing the defendant and his companions to desist from their further assault of him. As a result of the assault, Green’s head was cut and bruised, and he lost consciousness for a time, and was confined to his bed for ten days or two weeks. There is some conflict in the testimony, but the jury were warranted in finding, we think, that, because he had been discharged, Edwards went to the factory to assault Green, and that defendant accompanied him to aid and abet him. ' From the facts and circumstances, we are of the opinion that the jury were justified in inferring that the defendant had combined with Edwards to make the assault, and in pursuance thereof defendant did actually aid and abet Edwards in the assault and battery by first holding Green while Edwards struck him with a handle, and thereafter did actually beat Green himself with a handle while crying out that he would beat him to death.
Amongst others, the court gave the following instruction to the jury: “The theory and contention of the State is that the defendant and Lee Edwards and Ben Bowlin, with a common and unlawful purpose, sought out the said J. B. Green and assaulted him. If you find the facts so to be, and' that during the progress of the assault they were all present participating in it, and aided and abetted each other, or that, being present, they were ready and consenting to assist, aid, advise, or encourage the assault, then all persons so participating are guilty of the same offense, whatever you may find that to be, and in that event, if you find the facts so to be, then each is responsible for the other’s acts, and it will not be necessary for you to consider and determine the part each of the assailants respectively took in the assault.”
It is urged that this instruction was erroneous for the reason that there was no proof made that there was a conspiracy formed between said three parties. It is not necessary, however, in order to establish a conspiracy, to prove the unlawful combination between the parties by direct evidence. This may be shown by circumstances. In the case of Chapline v. State, 77 Ark. 444, it was held that a conspiracy might be inferred, although no actual meeting among the parties is proved, if it be shown by testimony that the persons pursued by their acts the same unlawful object, each doing a part, so that their acts that were apparently independent were in fact connected. Parker v. State, 98 Ark. 575.
We are of the opinion that the facts and circumstances in this case were sufficient to show that there was a combination formed by the above-named parties to make the assault upon said Green. The instruction, therefore, given by the court was warranted by the testimony, and is a correct statement of the law.
The defendant appeared as a witness in his own behalf, and in answer to questions asked him on his cross examination stated that he had left the mill crying out and threatening to fight, in a crazy manner, and “kind of came to himself” when an officer named Clark took hold of him and shook him. Sub-, sequently, said Clark was called as a witness by the State, and testified that he did not take hold of or shake the defendant, but that defendant cried out that the union men were going to take the-town, and when the witness asked him what he meant by his conduct he replied that he would go with him anywhere, as he was his friend, and that he would learn later what he meant. It is urged that the court erred in admitting the testimony of the witness Clark on the ground that it was introduced by the State in rebuttal to contradict the statement made by the defendant on his cross examination relative to a matter entirely collateral to the issue involved in the case.
The only particular in which the witness Clark contradicted the defendant was in stating that he did not take hold of or shake the defendant. This, we think, was a matter entirely immaterial to the issue involved in the case, rather than relating to an issue collateral thereto. If it can be considered as material in connection with the other testimony given by this witness, then it tended to prove the state of mind of the defendant, and was therefore competent to show the intent of the defendant in making the assault on Green, if in fact he struck Green with the handle, and this battery was made not in self-defense but unlawfully. The state of mind of the defendant and the intent entertained by him when the assault was made was a matter directly involved in the charge brought against him. It was therefore not collateral. The defendant’s statements and conduct, testified to by Clark, were in the nature of voluntary admissions made by the defendant, and in a criminal case it is admissible for the State to prove such voluntary admissions, although made at a different time, and not competent for the defendant to prove them. Butler v. State, 34 Ark. 480.
Upon an examination of the entire record in this case, we are of the opinion that there is sufficient evidence to warrant the verdict which was returned by the jury, and that no error was committed calling for a reversal of the judgment.
The judgment is therefore affirmed. | [
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Wood, J.,
(after stating the facts). The indictment does not state facts constituting a public offense. It does not state facts sufficient to constitute the offense of embezzlement. To constitute embezzlement of the horse, and buggy, it was necessary to charge that same came into the possession of appellant as bailee. The indictment does allege that the appellant was bailee of Reinman & Wolfort, and this was sufficient to show his fiduciary capacity. But nowhere is it alleged that the horse and buggy came into his possession as such bailee, nor is it alleged that the horse and buggy being in his possession as bailee were converted to his own use. In other words, no facts are stated in the indictment to show that appellant had possession of the horse and buggy of Louis Reinman and L. Wolfort as their bailee. This was essential to the validity of the indictment. State v. Scoggins, 85 Ark. 43.
Had the indictment set up that appellant was in possession of the horse and buggy of ‘ Reinman & Wolfort as bailee in general terms, it would have been sufficient to have advised appellant that he came into the possession of the horse and buggy for some special purpose, upon the accomplishment of which.the property was to be returned or delivered over to its owners; or if, instead of this, the indictment had set up specifically the facts showing that appellant had possession of the property as bailee, it would have been sufficient. Stormes v. State, 81 Ark. 80. But nothing of the kind is alleged. For aught that appears to the contrary in the indictment, appellant might have been the bailee of Reinman & Wolfort, and yet might not have obtained possession of the horse and buggy as such bailee at all. He might have been a bailee of Reinman & Wolfort, and yet have bought the horse and buggy from some one who had stolen the same from the owners; or, he might have been their bailee and have stolen the horse and buggy himself. The indictment nowhere shows how appellant came into possession of the property he is alleged to have embezzled.
The evidence adduced at the trial showed that appellant hired the horse and buggy from Reinman & Wolfort for a day, but this proof could not supply essential allegations in the indictment. Moreover, it is contended by appellant that the hiring of the horse and buggy did not constitute appellant a bailee; and, inasmuch as the case must be remanded to the circuit court with directions to arrest the judgment and quash the indictment, a new indictment may be returned alleging facts to show that appellant came into possession of the horse and buggy by hiring the same.
Appellant contends that, even though such were the fact, it would not constitute him a bailee under section 1839 of Kirby’s Digest, and that therefore he would not be guilty of embezzlement. Inasmuch as the question would necessarily arise and would have to be adjudicated if presented on another appeal, we will dispose of it now.
Section 1839 of Kirby’s Digest provides: “If any carrier or other bailee shall embezzle or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any money, goods, rights in action, property, effects or valuable security, which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although h'e'shall'not break any trunk, package, box or other thing in which he received them, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny.”
In Wallis v. State, 54 Ark. 611, this court held that the term “bailee” as used in the statute was not confined to bailees of the generic class of carriers, but embraced all bailees. In thus construing it our court adopted the construction of the Supreme Court of Missouri upon a statute of which ours is a substantial copy. The Supreme Court of Missouri, in Norton v. State, 4 Mo. 461, construing the statute said: “In our opinion, the Legislature intended to make it larceny in all bailees to embezzle and convert goods,” etc.
Our court, speaking through Justice Hemingway, after quoting the above from the Missouri Supreme Court, said: “Upon consideration we are constrained to adopt the construction first put upon the act in Missouri. That does not extend the natural import of the terms employed, or enlarge the scope of the act by construction; but accords to these terms their ordinary signification, and declines to restrict their operation.”
In Dotson v. State, 51 Ark. 122, Judge Battle, in construing the term “bailee” as used in this statute, said: “The term ‘bailee,’ when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood, says Mr. Wharton, ‘in its large, but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods first bona fide, and then fraudulently convert.’ When it does not appear . that any fiduciary duty is imposed on the defendant to restore the specific goods of which the alleged bailment is composed, a bailment under the statute is not constituted, though it is otherwise when a specific thing, whether money, securities, or goods, is received in trust and then appropriated.”
This language was again quoted approvingly in Compton v. State, 102 Ark. 213, where, under the peculiar facts of that case, it was held that the accused was a bailee in its limited and restricted sense.-
In the case at bar, if the appellant, as the proof tends to show, hired the horse and buggy of Reinman & Wolfort, then he was under an express contract to return the horse and buggy at' the end of the period of hire to their owners. This would constitute him a bailee under the statute.
Appellant relies upon the cases of Watson v. State, 70 Ala. 13, and Heed v. State, 16 Tex. App. 586. These courts, under the construction given their particular statutes, hold that, while the hirer of chattels is a bailee, he is not a bailee of the particular class or kind referred to in the statutes. An examination of these cases will discover that the courts, in construing the word “bailee,” as used in the statute, applied the rule of ejusdem generis, and held that the term “bailee” was restricted and limited by other terms used in the statute with which it was associated, and confined it to the classes of bailees therein enumerated. But our own court, in construing our statute, has not applied the rule of ejusdem generis, but has given the statute a broader meaning than that rule would admit of Wallis v. State, supra.
For the error in refusing to grant appellant’s motion, the judgment is reversed, and the cause is remanded with directions to quash the indictment, and for such further proceedings as the circuit court may deem necessary.
Hart and Kirby, JJ., dissenting. | [
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McCulloch, C. J.
Appellants instituted this action in the circuit court of Miller County against appellee to recover the amount of commissions alleged to have been earned in the sale of a tract of land in Miller County owned by appellee. The tract of land in question is composed of about 2,000 acres, a part of which is in cultivation, and on March 1,1911, a written contract was entered ihto between the parties to this action whereby appellee granted to appellants the exclusive right to sell said property during the period of four months thereafter, and provided that they should have as their commission all the purchase price over and above $7 per acre. Appellants assert that within the time specified they procured a purchaser for the land “ready, willing and able” to purchase for the price of $8.50 per acre; that they thereby earned a profit or commission of $1.50 per acre, but that appellee refused to consummate the sale and refused to pay the commission. The commission, according to the contention of appellants, amounted to the sum of $3,075.48, and this is the amount for which they prayed judgment. On the trial of the cause before a jury, a verdict was rendered in favor of appellants for the sum of $500. They were not satisfied with the recovery of that amount, and have prosecuted an appeal to this court, and urge, as grounds for reversal, that the court erred in giving one of the instructions requested by appellee and in refusing to give two of the instructions which they requested.
It is undisputed that about the middle of the month of April, 1911, the parties had an interview, in which appellee stated that he had a prospective purchaser for the land, and proposed to pay appellants a commission of $500 on the sale, if made, and that appellants agreed to accept that amount if the sale should be made by appellee himself. There is, however, a dispute in the testimony as to one point in this interview: Appellants insist that, when this proposal was made, they agreed to accept the commission of $500 provided the sale was made in a day or two, and that they be notified of it; whereas appellee testified that the agreement did not embrace any such condition as that. Appellee testified that on the same occasion he asked appellants to tell him when the contract expired; that he had lost his copy of the contract and did not know the date of expiration; and that appellants informed him on that occasion that the contract expired on May 31, 1911. He further states that on the faith of that statement to him he gave to one Munn an option on the place to take effect on June 1, that, during the month of June, Munn elected to purchase the place, and that he consummated the sale and conveyed the property to him. Appellants testified that on or about June 15, they negotiated a sale of the land to otte Sanderson, and immediately requested appellee to furnish an abstract of title, which he promised to do, but failed to comply with his promise. On June 30, which was the last day of the contract, they closed the trade with Sanderson, and entered into a written contract with him for the sale of the property. It is upon this sale that they seek to recover the commission, but the jury allowed them the sum of $500 as a commission on the sale made by appellee himself.
Numerous- instructions were given at the request of each side.
The following instruction was one of those given at the request of appellants:
“If you find that plaintiffs did, in April, 1911, agree to allow defendant to sell the land to the party with whom he was negotiating, and did agree to accept $500 for their commissions, and that Fuqua did not, at the time, agree to make the sale in any specified time, and that plaintiffs did not lead Fuqua to believe and act upon the belief that their contract on said lands expired June 1, then you are instructed that plaintiffs,' if the contract of sale was made by Fuqua on or prior to June 30, 1911, are entitled to recover in the sum of $500.”
Now, this is the instruction upon which the jury evidently based the verdict in appellants’ favor for the sum of $500. In following this instruction it is manifest that the jury found that appellants agreed to accept the commission of $500, without condition as to the time the sale should be made, and that they did not mislead appellee by any statement as to the date of the expiration of the contract.
Appellants also requested the court to give, among others, instructions numbered 4 and 5, which read as follows:
“4. If you find that in April, 1911, Fuqua did advise plaintiffs that he had a prospective purchaser and asked plaintiffs what they would charge as a commission if he sold the property himself, and they agreed to charge $500, yet if you further find that Fuqua represented at the time that if he made the sale it would be made in a day or two, and he would immediately report it, and failed to either make the sale within a day or two, or, having made it, failed to report it to plaintiffs within a reasonable time, then in either event plaintiffs would not be estopped from claiming commissions if thereafter they in good faith sold said property in accordance with the terms of the written contract to a responsible party and within the time named in the contract.”
“5. If you find that about April 15, 1911, plaintiffs did agree to accept in full payment from defendant the sum of $500 if defendant sold to the party with whom he was then negotiating, yet, if you further find from the proof that defendant did make the sale within the time contemplated and thereafter failed to promptly report such sale within the time stipulated (or, if no time was stipulated, then within a reasonable time thereafter), but withheld knowledge of such sale from plaintiff and requested or encouraged them or knowingly suffered them to continue their efforts to sell same, and as a result thereof plaintiffs did, within the time allowed by the contract, effect a sale, on the terms authorized by the contract, to a person who was able, ready and willing to take same on such terms, then plaintiffs are entitled to recover commissions as specified in the contract.”
The court gave No. 4 as requested, but refused to give No. 5. The effect of instruction No. 4 was to tell the jury that appellants would be entitled to the full amount of commissions on the sale made by themselves if the agreement to accept $500 was limited to a sale made by appellee within a day or two and immediately reported to them. So, the jury necessarily found, in returning a verdict in favor of appellants for only $500, that there was no such limitation of time upon the sale made by appellee himself. But in refused instruction No. 5 appellants asked the court to go further and tell the jury that, even if appellee made a sale of the land within the time limited by the oral agreement and pursuant thereto, yet, if he failed to inform them of such sale, and suffered them to continue their efforts to effect a sale on the terms authorized by the original contract, they would be entitled to the full commission on the sale which they thereafter negotiated. This instruction was incorrect, and the court properly refused to give it. If a new agreement was made, to the effect that appellee should have the right to sell the land himself and pay appellants a commission of $500,'this operated as a modification of the original contract, and it thereafter remained no longer a contract giving appellants the “exclusive” right to sell the property, and a sale made thereafter by appellee pursuant to the agreement would operate as a revocation of appellant’s authority. The effect of the instruction was to tell the jury that, unless appellee notified appellants of the sale thus made by himself, they could continue in their efforts to find a purchaser, and would be entitled to a commission if they found one “ready, willing and able” to purchase the property. As the sale made by appellee under the terms of the modified agreement operated as a revocation of appellant’s authority to sell, they were not entitled to notice, and could not claim a commission on the sale thereafter made by themselves. Hill v. Jebb, 55 Ark. 574.
The next ground urged for reversal is that the court erred in giving instruction No. 1, on request of appellee, which reads as follows:
“If you believe from the evidence that defendant had forgotten the date of the expiration of the contract v^ith plaintiffs, and called upon the plaintiffs to inform him of the date, and that plaintiff Johnston informed him that the contract expired June 1, 1911, and that Fuqua relied upon said information, and, believing that to be true, sold the lands which had been listed with plaintiffs after said date, then you will find for the defendant.”
It is contended that this instruction was incorrect and prejudicial to appellants, for the reason that it ignored their contention that appellee, during the month of June, encouraged them to continue in their efforts to make a sale. This instruction is based entirely upon appellee’s contention that appellants misrepresented to him the date of the expiration of the contract, and thereby induced him to enter into another contract for the sale of the property. The jury, however, found against appellee on that issue, otherwise they could not have found in favor of appellants for the $500. Therefore, the instruction was not prejudicial, even if it is open to the objection urged by appellants that it ignored one of their contentions in the case.
As to the other refused instruction, requested by appellants, we think that they were not prejudicial, as the other instructions in the case fairly submitted the issues.
We are of the opinion, upon the whole, that the case was properly submitted to the jury, and that the verdict should not be disturbed.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts). The appellee lumber company is not in a position to insist on a forfeiture to it of the $1,000 in controversy for the reason that a clear preponderance of the evidence shows that it committed the first substantial breach of the contract. The contract required the lumber company to sell to appellants all hickory owned by them ten inches in diameter and up on the land mentioned in the contract. The appellants both testified that, after the lumber company had cut a car and a half of hickory, they positively refused to cut any more. Bowers, the agent representing the lumber company, in charge of the woods where the cutting was done, and “whose authority was recognized in all working departments,” told appellants that he never intended to deliver the balance of the hickory logs under the contract. Appellants stated that they thought there must have been some 250,000 feet left standing on the ground after the delivery of the car and a half that had been cut, containing about 7,300 feet. This testimony of appellants was corroborated by another witness, who testified that he heard a conversation between Keopple and Bowers concerning the hickory as follows: “They asked me how many feet I had, and I told them a little bit over 7,300 feet, and Bowers said, Ts that all?’ and I told him it was, and he said: ‘We can’t get out any more at that price.’” Bowers, in his. testimony, denied this, but the preponderance of the evidence on this issue was in favor of appellants.
This conversation, according to the undisputed testimony, took place some time earlyinMay, 1910. The testimony shows that the lumber company never shipped any more hickory after that time. At the time this breach of the contract occurred there was no complaint on the part of the lumber company that appellants were not complying with the contract on their part. On the contrary, the president and general manager of the lumber company testified that appellants carried out their contract “fairly well for a period of something over four months.”
The testimony shows that the first car load of logs under the contract was shipped on April 16. Four months from that day would be August 16. Therefore according to the testimony of the president and general manager of the lumber company, appellants were performing their contract fairly well up until after August 16. Yet as early as August 5 the lumber company was conducting negotiations with Nickey & Sons Company, at Memphis, Tenn., for the sale of the timber which it had already contracted to appellants. On the above date, August 5, 1910, the lumber company wrote Nickey & Sons Company as follows: “We have 500,000 feet or more of extra fine white oak, timber. We would like to sell you this,” etc.
Again on August 9: “We stated that we had 500,000 feet or more of fine white oak. We have possibly a great deal more than this. Please let us hear from you with reference to smaller sizes by return mail” etc.
The manager of the lumber company testified that the logs referred to in the above letters were the same timber that was included in the contract with the appellants.
The above testimony shows at least an attempt on the part of the lumber company to avoid its contract with appellants at a time when it is conceded by the lumber company that appellants were satisfactorily discharging the contract on their part. The law is well settled that “he who commits the first substantial breach of a contract can not maintain an action against the other contracting party for a subsequent failure on his part to perform.” National Surety Co. v. Long, 60 C. C. A. 623, and cases there cited; National Surety Co. v. Long, 79 Ark. 528.
The appellees claim that the appellants had breached the contract by failing “to keep a man in the woods to pass on all logs as they were being cut and to accept all logs,” etc., and by “failing to pay on Monday morning of each week for all logs delivered in the past week.”
These provisions of the contract were for the benefit of the appellee lumber company, and the testimony shows that whatever technical breaches there may have been in these particulars they were waived by the appellee lumber company. Bowers, the agent of the lumber company to make the inspection, testified concerning this as follows: “After the first week Mr. Keopple and myself had a talk, and we agreed that I knew about what he wanted, and it was not necessary for him to stay there. He didn't have anything else there to do, and I thought I could get the logs out to suit him. We agreed that he would take up the logs once a week. He agreed to come and take the logs up as often as we needed to get them out of the way. He didn’t always do that; failed two or three times.”
Concerning the subject of payment under the contract, the president testified that “it was satisfactory to the Delight Lumber Company for these invoices to be rendered to the firm of Keopple & McIntosh as the logs were loaded out, and for them to mail a check on receipt of these invoices for the amount thereof.” And again: “It was understood that they were to mail us checks for them as soon as the invoices and bills ' of lading were received. That was perfectly satisfactory when they did that.”
The above testimony shows that a literal compliance with the provisions of the contract as to the inspection and as to the manner of payment was not insisted on by the lumber company, but that a different arrangement from that stated in the contract was made and pursued with the lumber company’s express consent.
On the 12th of September, 1910, the appellants received from the Delight Lumber Company the following telegram: “Mr. Keopple did not come to take logs today as promised. If you fail to come or send a man to arrive here tomorrow to take logs, also pay for those shipped last week, we will consider contract void and make no further shipment of logs. Shipped two cars today.” Yet, after sending this telegram, the testimony shows that the lumber company shipped out logs under the contract on September 14 and 15, as shown by the invoices in evidence which the Delight Lumber Company rendered to the appellants.
There is an agreement in evidence to the effect that the appellants were not indebted to the lumber company for logs shipped under the contract. Therefore, the lumber company must have received payment for the logs as shown by the invoices of the 14th and 15th of September.
As late then as the above dates, and after the lumber company had telegraphed the appellants that it would consider the contract void, we find it acting under and recognizing the existence of the contract. The testimony on behalf of the appellants tended to show that as early as possible after receiving the telegram one of the appellants went to Delight to make the inspection and take up the logs. Witness says: “When I got that telegram, I was at home; my family was sick. I went down there the next day.”
All the conduct of the lumber company, as revealed by the testimony, shows that there was a waiver of any breach of the contract that might have been upon the part of the appellants. After the lumber company gave notice by the telegram that it would consider the contract void, it continued to recognize it as binding by making shipments of timber under it and accepting the payments for these shipments.
On the 19th of September, 1910, the lumber company wrote to appellants as follows: “This is to again notify you that, owing to your persistent and continued failures to come and receive our logs, as per terms of contract, as well as violations of the contract by you in other respects, we are compelled to hereafter treat the contract as void, and govern our actions accordingly.” But, before the lumber company gave the appellants this notice of a final intention on their part to treat the contract as rescinded for alleged breaches thereof on the part of the appellants, it had already breached the contract on its part and abandoned same by selling the timber included in the contract to Nickey & Sons Company of Memphis Tenn., as evidenced by correspondence of the lumber company with Nickey & Sons Company in the record which it is unnecessary to here set forth.
We are therefore of the opinion that the court erred in its finding qf fact and in declaring a forfeiture. The conclusion we have reached makes it unnecessary to determine whether the provision in the contract for the deposit of $1,000 was in the nature of a penalty or for liquidated damages. The judgment is therefore reversed, and judgment will be entered here in favor of appellants for $1,000. | [
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Kirby, J.,
(after stating the facts). It is contended by appellant that it is entitled to the full amount specified in its contract for the service, and that the court erred in instructing a verdict for one dollar.
The statement of appellee, attempted to be introduced in evidence, related to a matter that he claimed was discussed before the execution of the contract, and as an inducement thereto, but it was entirely at variance with its terms, as expressed in writing, and no error was committed in excluding it from the jury.
“Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument,” and there is no ambiguity or uncertainty in the written instrument which would permit the introduction of parol testimony in explanation of it.
The advertising service having been furnished to appellee in accordance with the teims of the contract therefor, he will not be excused from the payment for same, as agreed, because he did not use it, but is bound therefor as though he had done so, it being placed at his disposal, as it was contracted to be. The amount of his liability is in no wise decreased by the fact that he declined to perform the contract, and the judgment should have been for the full amount thereof; $108.16, and the court erred in instructing a verdict for a smaller amount.
The judgment is reversed, and judgment will be entered here for said sum. It is so ordered. | [
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Hart, J.,
(after stating the facts). Counsel for appellants asked the court to direct a verdict for them, and the refusal of the court to do so is the only ground upon which we are asked to reverse the judgment. They asked for a directed verdict on the ground that no agreement was ever made between appellants and appellees, and contend further that, if there was an agreement entered into, it was an oral agreement, and not binding on the parties, because it was the understanding and intention of the parties that any agreement entered into should be reduced to writing before it should become binding.
The contract could be performed within a year, and contracts of this character are not prohibited by the statute of frauds in this State. Hence a written contract was not necessary. 6 Cyc. 10; Sarles v. Sharlow, 37 N. W. (Dak.) 748.
In the case of Emerson v. Stevens Grocer Company, 95 Ark. at page 426, the court said: “If the contract is actually entered into and made, whether by messages, correspondence or by word of mouth, the agreement becomes at once effective, although it was expected that the terms would afterwards be embodied in a written instrument and signed. The mere reference to a future contract in writing would not negative a present contract if the terms thereof were actually assented to by both parties. The written draft of the contract would only be a convenient record of the agreement and the evidence thereof, but it would only constitute evidence of the agreement, and its absence would not affect the binding force of the contract that was closed. Therefore, if an unconditional offer is made, and that offer accepted, this will constitute an obligatory contract, although the parties also understand that a written contract embodying the terms should be drawn and executed.”
The principles of law applicable here are well stated in the case of Rosster v. Miller, 3 App. Cas. (Eng.) at page 1151, where Lord Blackburn said: “I quite agree with the Lords Justices (wholly independent of the statute of frauds) it is a necessary part of the plaintiff’s case to show that the two parties had come to a final and complete agreement; for, if not, there was no contract. So long as they are only in negotiation, either party may retract; and, though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there is no contract. The parties, in such a case, are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or- not. But, as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed.”
To the same effect, see Western Roofing Tile Co. v. Jones, 26 Okla. 209, 109 Pac. 225, 23 A. & E. Ann. Cases, 127; 7 A. & E. Ency. of Law, 140; Page on Contracts, § 54; Boysen v. Van Dorn Iron Works, 87 N. Y. Supp. 995; Lowrey v. Danforth, (Mo. App.) 69 S. W. 39; Green v. Cole, 103 Mo. 70, 15 S. W. 317; International Harvester Co. v. Campbell, (Tex. Civ. App.) 96 S. W. 93; Lane v. Warren, 115 S. W. 903, (Tex. Civ. App.); Disten v. Herter, 73 N. Y. App. Div. 453.
In the application of the principles above announced to the facts in the case at bar, it can not be said that the undisputed evidence shows that the agreement made was not the end of negotiations between appellants and appellees.
Counsel for appellants insist that, because the contract was to be reduced to writing and a bond tendered accompaying it, and because the notice and advertisement and the plans and specifications did not provide a time of payment to the builder and a time for the completion of the contract, no contract could exist without such writing.
The testimony of appellees shows that the bond provided for in the notice and advertisement was executed by appellees and accepted by appellants; that their bid was accepted by appellants; that they subsequently agreed that the time for the completion of the building should be one hundred working days, and that the damages for delay in the completion of the building should be twenty-five dollars per day. It appears then from their testimony that all the terms of the contract were agreed upon and its reduction to writing was intended merely for facility of proof as to its terms. In such cases the provision for a contract in writing is not inconsistent with the present contract, and this is especially true in a case where the things to be done are provided for in written plans and specifications, which are so definite and detailed as to present a perfect guide as to the rights and duties of the respective parties in the erection of the proposed building. According to the evidence for appellees, the minds of appellants and appellees were in accord as to all the provisions of the contract, and the writing was intended to exhibit and set forth just what they had agreed upon and understood. Appellants did more than tell appellees that they were the lowest bidders. According to the testimony of appellees, they told them that they had gotten the job, and that their architect was then working on the contract. As we have already seen, the terms of the contract were then as definite and certain as they could be, except as to the time of payment, the time of completion of the work, and the amount of damages for delay in the completion of the work. The time for completion of the work and the damages for delay were subsequently agreed upon.
Moreover, where a contract fails to specify a time for completion, it will be implied that a reasonable time for performance was intended. 6 Cyc. 66; Long v. Chas. T. Abeles & Co., 77 Ark. 150.
In regard to the time of making payment, it may be said that, in the absence from the contract of any provisions on the point, the time of making payment is presumed to be completion of the work. 6 Cyc. 76; Wright v. Maxwell, 9 Ind. 192; Shanks v. Grifen, 14 B. Mon. (Ky.) 153.
The contract then could not be said to be too uncertain and indefinite for enforcement. Under the instructions of the court, the jury in effect found that the contract was made or entered into, that its performance was to be immediately entered upon, and that the preparation of the written form of the contract was a matter to be subsequently attended to, and that the written contract was not intended to be a condition precedent to the taking effect of the contract. The verdict of the jury was supported by the evidence, and the court did not err in refusing to direct a verdict for appellants.
No other assignments of error are urged for the reversal of the judgment, and the judgment will be affirmed. | [
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Hart, J.,
(after stating the facts). In the case of St. Louis, Iron Mountain & Southern Railway Company v. Hudson, 95 Ark. 506, the court held:
“In a suit against a carrier for an arrest made by its conductor. an instruction that, though the conductor was the judge as to whether plaintiff was intoxicated when arrested, yet if he was mistaken the company would be liable, was erroneous, as it ignored the question whether the conductor acted in good faith.”
It is now the contention of appellant that when a conductor arrests a passenger and ejects him from a train, in pursuance of the act of 1909 conferring upon him that power, he acts solely as a peace officer, and the railway company can not be held responsible for his acts.
We can not agree with counsel in their contention. It is the settled law that when a railway company puts a conductor in charge of its train, and he wrongfully ejects a passenger from the car, the railway company must bear the blame and pay the damages. This is so because it is the duty of the railway company to treat its passengers properly and to carry them safely. There is nothing in the act in question to indicate that it was the intention of the Legislature to diminish the responsibility of the common carrier or to render it less liable for failure to discharge its duties than before the passage of the act. The conductor is the person whom the railway company puts in charge of its trains, and it was the evident intention of the Legislature to enable the company to discharge the duties it owed its passengers the more efficiently through its conductor by the enactment of the statute in question. It gave the conductor the protection as well as the authority and power of the State in keeping and enforcing the law. If the conductor makes an arrest under the statute with reasonable cause for belief and in good faith, the railway company is not liable, even though it appears afterwards that in fact the person arrested was not drunk. Gillingham v. Ohio River Railroad Co., 29 Am. St. Rep. (W. Va.) 827; King v. Illinois Central Railroad Co., 69 Miss. 245.
Error is next assigned because the court gave the following instruction:
“For one to be in a drunken and intoxicated condition as defined by the law, he must be under the influence of intoxicating liquors to such an extent as to have lost the normal control of his bodily and mental faculties, and to evince a disposition of violence, quarrelsomeness and bestiality.”
In this contention we think counsel for appellant are correct. The latter part of the instruction was erroneous. A person might be drunk and still not evince a disposition of violence, quarrelsomeness and bestiality. There are various degrees of drunkenness. It is a matter of common knowledge that intoxication affects men in different ways. Some men become quarrelsome when they are drunk, while others become stupefied and inactive, and still others do not give any outward and visible signs except a pleasurable excitement. A man may be said to be drunk whenever he is under the influence of intoxicating liquors to the extent that they affect his acts or conduct, so that persons coming in contact with him could readily see and know that the intoxicating liquors were affecting him in that respect.
In the case of Midland Valley Railroad Company v. Hamilton, 84 Ark. 81, the court said:
“Instructions given by the court undertaking to define soberness on the one hand and drunkenness on the other are criticised and assigned as error. It must be confessed that these instructions, to some extent, lacked accuracy, and were of little aid to the jury in determining from the evidence whether the plaintiff was drunk or sober. In fact, it may well be doubted whether these terms are susceptible to any accurate definition for practical purposes. They sufficiently define themselves, and it would have been better to leave it to the jury, without attempt at definition, to determine what the condition of the plaintiff was in this respect.”
The opinion of the court in this respect was approved in the case of Brooke v. State, 86 Ark. 364, and nothing said in the latter opinion was intended to be taken as a definition of drunkenness which could be given as a declaration of law in cases where that question was to be submitted to a jury.
In the case of Little Rock Railway & Electric Company v. Dobbins, 78 Ark. 553, the court said:
' ‘A street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding; but not for such conductor’s subsequent acts in prosecuting the passenger for a breach of the peace, such prosecution not being within the scope of the conductor’s authority.”
It follows that the appellant is not liable for the acts of its conductor in swearing out a warrant of arrest against appellee on the next day after he was ejected from the train. It was competent in the present case to show all that was said and done in the train pertaining to the arrest of appellee and all that was said and done on the depot platform at Newport after, appellee was ejected. All that occurred after this time was not competent evidence. The undisputed evidence shows that the conductor and auditor of the train asked appellee while he was standinig on the platform at Newport to get back on the train and that they would carry him on to Corning. The appellee refused to do this. The city marshal testified that he carried him on to the jail because he had been drunk and disorderly on the train. What happened after the conductor turned appellee over to the city marshal has no relevance to the case at bar; for the acts and conduct of the parties thereafter can not be attributed to the railway company, for the reason that the conductor’s subsequent act in prosecuting the passenger was not within the scope of his authority as a servant of the company.
In an action to recover damages for false imprisonment, where the arrest is without a warrant, if the imprisonment is proved or admitted, the burden of justification is on the defendant. In this respect the rule as to the burden of proof is not analogous to an action for malicious prosecution, where it has been held to be the duty of plaintiff to affirmatively show want of probable cause. Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134; McAlees v. Good, (Pa.) 65 Atl. 934, 10 L. R. A. (N. S.) 303. and case note. See also Floyd v. State, 12 Ark. 43.
Therefore, the court did not err in the instructions on the burden of proof. For the error in instructing the jury as to what constitutes drunkenness, the judgment will be reversed, and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). Counsel for the defendant say this action is based on the lookout statute, making it the duty of all persons running trains in this State to keep a constant lookout for persons and property on the track, and contends that a motor car is not a train within the meaning of the statute. In the case of Little Rock & Fort Smith Ry. Co. v. Blewitt, 65 Ark. 235, the court held that an engine is a train within the meaning of the statute. See also Railway Co. v. Taylor, 57 Ark. 136. The motor car in question was run by the defendant company for the purpose of carrying passengers over its line of railroad, and, we think, was a train within the meaning of the statute.
It is next contended that the court erred in refusing to give instruction numbered “A,” asked by the defendant. It is as follows:
“A. The court instructs the jury that if they find from the evidence that the horses, whose death and injury are sued for, were found dead or injured so near the roadbed of the defendant company as to indicate that they were thrown there by a passing train of the defendant company, then the presumption, is that the killing or wounding was done by the defendant’s train, and that it resulted from want of care, and the defendant would be liable unless this presumption is rebutted by evidence overcoming it; but this presumption does not attach if the evidence shows that the horses were not killed or wounded by contact with a train of defendant company. The jury is instructed that if they find that the horses whose death and injury is sued for herein were killed or injured on a bridge from falling therein and were not killed or injured by the coming in contact with a train of the defendant, then there is no presumption of negligence on part of the defendant, and the plaintiff can not recover unless he shows, by a preponderance of the evidence, negligence on part of defendant’s employees causing the death or wounding of the horses sued for.”
It was not charged or attempted to be proved that the horses were killed and injured by a train striking them. The action was not brought under section 6776, Kirby's Digest, and that section has no application to the facts of this case. The suit was brought under the act of May 26, 1911, which is as follows:
“It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads; and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout. Notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed.” Acts 1911, p. 275.
Under this section, that part of the instruction which tells the jury in effect that there is no presumption of negligence on the part of the defendant where the horses were not killed or injured by coming in contact with a train is too broad, and is not the law. The statute make the railroad company liable for all damages resulting from neglect to keep a lookout for property upon its track, and imposes upon the railroad company the burden of proving that it has kept such lookout. The statutory policy of imposing the burden of proof in this respect upon the railroad company doubtless had its origin in the fact that the company’s employees would know whether they kept a lookout or not, and the owner of the property would not know whether they had performed their duty in this respect or not. In other words, the statute makes it the duty of railroad companies to keep a lookout for property upon its tracks, and make it liable for all injuries that occur by reason of its failure to perform this duty.
Under the lookout statute, when the plaintiff has proved facts and circumstances from which the jury might infer that his property had been injured on account of the operation of the train, and that the danger might have been discovered and the injury avoided if a lookout had been kept, then he has made out a prima facie case, and the burden is on the defendant to show that a lookout was kept as required by the statute.
For the reasons here given instructions numbered “B” and “2,” asked by the defendant, were properly refused by the court.
It is finally insisted by counsel for the defendant that the court should have directed a verdict for it under the facts. While we do not agree with counsel in this contention, it must be admitted that the question is a very close one. It is true that the motorman and also the other occupant of the car testified that the motorman kept a sharp lookout, and was looking straight ahead all the time, and that the horses were not seen until they were found on the bridge or trestle, but it can not be said that their testimony in this respect was reasonable and consistent and was uncontradicted by any other facts or circumstances adduced in evidence. It will be remembered that the motorman testified that he could see objects on the track 150 yards ahead, and was looking straight ahead all the time. The testimony of the plaintiff shows that the horses came upon the track 800 or 4Ó0 yards from the bridge, and the impressions of their tracks made on the roadbed showed that soon after getting on the track they commenced running and continued to run faster as they approached the bridge. Then, too, testimony was introduced by the plaintiff tending to show that the persons in the car were heard hallooing and loudly talking and laughing. This testimony was not introduced, as counsel for the defendant seem to think, for the purpose of showing that the loud talking and laughing was calculated to frighten the horses, -but was no doubt introduced for the purpose of showing that the motorman, being engaged in an animated conversation with the other occupant of the car, was not keeping the lookout required by the statute, and the testimony was competent for that purpose. It will be remembered that there were only two persons in the car, and the motorman would necessarily be a participant in the loud talking and laughing. Under all the facts and circumstances adduced in evidence, the jury were warranted in finding that the motorman was not keeping the lookout required by the statute, and that, had he been doing so, he would have seen the horses on the railroad track some distance before they reached the trestle and would have observed that they were frightened by the approach of the motor car, and that they commenced to run and continued to run faster as the car approached them. Hence the jury might have found that he was guilty of negligence in not stopping the car when he had reason to believe the horses would not leave the track before reaching the trestle, and under such circumstances should have anticipated, as a natural and probable consequence of not stopping the car, that the horses would run into the trestle and be killed or injured. St. Louis, I. M. & S. Ry. Co. v. Rhoden, 93 Ark. 29.
The judgment will be affirmed. | [
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McCulloch, C. J.
This is an action instituted by Mattie Hayden, in her own right as widow of Enoch Hayden, deceased, and as administratrix of said decedent, against the executor of the estate of D. R. Hayden, deceased, to recover the value of certain crops of cotton, corn, and alfalfa, the property of said Enoch. Hayden, deceased, alleged to have been wrongfully converted by said D. R. Hayden to his own use. It is alleged in the complaint that Enoch Hayden died in April, 1905, in possession of a certain tract of land in Little River County, on which he had planted the crop aforesaid, and that thereafter said D. R. Hayden did enter upon said tract of land and convert the crop raised that year to his own use; the crop, when matured and gathered, alleged to be of the value of $561. The death of D. R. Hayden is alleged and the appointment of his executor, and judgment was prayed in the sum above mentioned, together with the costs of the action. The defendant moved the court for a nonsuit on account of failure on the part of the plaintiff to exhibit an affidavit as required by the statute concerning claims against estates of deceased persons. The court overruled the motion, and defendant filed an answer denying that D. R. Hayden wrongfully took possession of the aforesaid crop, but alleged that, on the contrary, he was landlord of Enoch Hayden, and after the latter’s death took possession of the lands for the purpose of cultivating and gathering the crop, which he did at his own expense, and that the value of the crop amounted to less than the indebtedness due him as landlord. It appears from the evidence adduced that Enoch Hayden occupied the land in question as tenant of D. R. Hayden; that he died in April, 1905, after having cultivated a portion of the land, and that thereafter D. R. Hayden took possession and completed the cultivation of the crop and gathered it and sold the same. The case was tried upon the theory, conceded to be correct, that D. R. Hayden was the landlord of Enoch Hayden, and that he took possession of the crop as such, and the point at issue was whether or not the plaintiff agreed with D. R. Hayden, after the death of her husband, for him to take possession of the land and crop, and as to the value of the crop gathered from the land, the expenses of cultivating and gathering the crop, and the amount due D. R. Hayden as landlord. The jury returned a verdict in favor of the plaintiff in the sum of $150, and defendant, after the overruling of his motion for new trial, appealed to this court.
The statutes of this State prescribe the mode by which demands against estates of deceased persons shall be exhibited and enforced, and, among other things, prescribe that “the claimant shall append to his demand an affidavit 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.” Kirby’s Digest, § 114. The statute further provides that “if the affidavit required for authenticating claims against deceased persons be not produced in an action against an executor or administrator for a debt against the deceased, the court shall, on motion, enter a judgment of nonsuit against the plaintiff; and the affidavit must appear to have been made prior to the commencement of the action.” Kirby’s Digest, § 119.
It has been repeatedly held by this court that “in suits against estates, either by ordinary action or before the probate court, it is necessary to produce at the trial an affidavit of the justice of the claim and of its nonpayment made before commencement of the action, or the claimant will be nonsuited.” Ryan v. Lemon, 7 Ark. 78; State Bank v. Walker, 14 Ark. 234.
The term “demand” is comprehensive, and includes all claims capable of assertion against the estates of deceased persons, whether arising out of contract or tort, and whether the suit to establish the same is begun.by ordinary action or in the probate court. Green v. Brooks, 25 Ark. 318; McIlroy Banking Co. v. Dickson, 66 Ark. 327; Planters’ Mutual Ins. Assn. v. Nelson, 80 Ark. 103; Estate of Halleck, 49 Cal. 111; Gay v. Louisville, 93 Ky. 349; Schouler on Executors, § 429.
The statute. (section 119, Kirby’s Digest) requiring the production of the affidavit is mandatory, and, unless same is produced, on motion nonsuit must be ordered. Ross v. Hine, 48 Ark. 304. The affidavit need not follow the language of the statute literally, but must substantially comply therewith. Eddy v. Loyd, 90 Ark. 340; Wilkerson v. Eads, 97 Ark. 296. The verification of the claim in this case does not substantially comply with the statute, for it does not contain a statement, either directly or by inference, 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 only affidavit in the record is the one in the ordinary form of verification of the complaint, reciting that the statements made in the complaint are true. The complaint, in substance, merely alleges that D. R. Hayden wrongfully converted certain property, of the value named, to his own use, and judgment is prayed for in.that amount. It does not state whether anything has been paid on the demand, nor that the sum demanded is justly due. We are of the opinion that the verification wholly fails to comply with the statute, which is mandatory in its terms, and the court has no discretion but must order nonsuit. The Legislature has prescribed the terms upon which a demand against a deceased person may be asserted, and nothing remains to the court but to obey the legislative mandate. The judgment is therefore reversed, and the cause remanded with directions to nonsuit plaintiff. | [
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Wood, J.
This is a suit by the appellee against the appellants to set aside certain alleged fraudulent conveyances. The complaint alleged that, in a suit pending between George Goodrich and the appellee, appellee, on the 15th day of December, 1908, obtained a judgment, which, with interest, now amounts to $1,200; that during the pendency of that suit and before the judgment was rendered appellant George Goodrich “transferred and conveyed all of his property, both real and personal, of every kind and character, to Mary E. Goodrich, his wife; that at the present time the said George Goodrich does not claim to be the owner of any real or personal property in his own right out of which judgment can be made.”
The complaint further sets forth the various conveyances that were alleged to have been made, consisting of real and personal property, and alleged as follows: “Plaintiff states that all of said conveyances were made for the purpose of putting the property of the said George Goodrich beyond the reach of his creditors, and were made for a nominal consideration, and said conveyances were made in fraud of the rights of the plaintiff herein.” And, further, “plaintiff charges that all of said transfers were made for the purpose of defrauding plaintiff, and with the fraudulent intent and purpose of placing the property of the said George Goodrich beyond the reach of his creditors.”
The appellants demurred, setting up that the complaint “does not state facts sufficient to constitute a cause of action.” It does not appear that any ruling on the demurrer was sought or made; but appellants answered separately, admitting that on the 24th day of June, 1905, George Goodrich conveyed to Mary E. Goodrich certain real estate (describing it); denied that the conveyance was made in consideration of the sum of $371 mentioned in the deed, but admitted that the sum was given by Mary E. Goodrich at the time, and averred that the property so conveyed was, prior to the conveyance, the sole and separate property of Mary E. Goodrich, the same having been bought and paid for by her, and was held in the name of George Goodrich because of an error in the making of the deed of purchase therefor to him when the property had been purchased and paid for by Mary E. Goodrich.
The answer further denied that any of the transfers were made for the purpose of placing the property of George Goodrich beyond the reach of his creditors.
During the progress of the case appellant George Goodrich moved the court to stay the proceedings for one year, setting up that he had filed his petition in bankruptcy, and that the plaintiff’s claim had no priority, and that he would be discharged from the payment thereof by the bankruptcy proceedings. The record shows that the trustee in bankruptcy was made a party defendant in the present suit, and he answered, setting up that he was entitled to all of the assets of appellant George Goodrich as trustee in bankruptcy, and prayed that as such trustee he be allowed to recover the money and property of the appellant George Goodrich. The court overruled the motion to stay the proceedings.
This ruling of the court was correct. The appellee, by its suit to cancel the alleged fraudulent conveyances, instituted about sixteen months before the bankruptcy proceedings were begun, acquired a specific lien on the property alleged to have been fraudulently conveyed which would entitle it to a priority in the distribution of the proceeds from the property, and the suit of the trustee in bankruptcy would not defeat appellee’s right to have such proceeds applied to the payment of its claim in the distribution of the estate of the bankrupt. See Boyd v. Arnold, 103 Ark. 105; Taylor v. Taylor, (N. J. Ch.) 45 Atl. 440.
On the question of whether or not the conveyances were fraudulent, the testimony is volumiiious, and it could serve no useful purpose as a precedent to discuss it in detail. The chancellor found that the conveyances as set up in the complaint were fraudulent, and the decided preponderance of the evidence shows that his finding is correct.
The appellant George Goodrich, testifying on the 13th of June, 1911, stated that he “had been insolvent eight or nine years.” While the testimony in the record shows that from the year 1902 property, real and personal, amounting to $34,000, managed by appellant George Goodrich, as shown by his account with the banks, went through his hands, there is nothing in the record to show what his liabilities were during all this time, and the chancellor was fully warranted in accepting his testimony to the effect that he was insolvent during the time stated by him. The appellant George Goodrich must be held to have known more about his financial condition than any one else, and there is nothing in the record to contradict his testimony showing that he was insolvent at the time of the alleged fraudulent conveyances to his wife.
The "appellants claimed that the land alleged to have been fraudulently conveyed was the property of appellant Mary E. Goodrich. Even if this be conceded, it can not avail appellants, for the reason that the evidence shows that appellant Mary E. Goodrich, from the time of her marriage to her husband for a period of about forty-five years, permitted her husband to handle her money as his own. He did business for his wife for many years in her name as her manager, and then for several years in his own name, but he used funds obtained from her and mixed them indiscriminately with his own. The testimony of Mrs. Mary E. Goodrich shows that soon after their marriage she received $3,000. She turned the whole of it over to her husband, and thereafter she allowed him to manage her property and receive money from her and handle it as his own. She said she never kept an account of the money that she turned over to him; that he never paid any of the money back that he received from her. In other words, so far as creditors were concerned, there was nothing to put them on notice that the real estate in controversy was her separate property. Appellant George Goodrich obtained the deed in his own name to the land in suit in July. 1900, and held the same as his own until the 24th of June, 1905, when the deed to his wife was executed, a period of about five years. For at least a part of this time George Goodrich, according to his own testimony, was insolvent; yet he was doing business all these years on money and real estate which appellant Mrs. Mary E. Goodrich, after the institution of this suit, claimed belonged to her, but which until then she permitted him to hold and manage as his own.
As was said in Cowling v. Hill, 69 Ark. 350-1: “As the legal title to this land was in the husband, both he and his wife must have known that his creditors were dealing with him under the belief that it belonged to him.”
In Driggs & Co.’s Bank v. Norwood, 50 Ark. 42, we held (quoting syllabus): “Where a husband collected his wife’s money and used it as his own, without objection on her part, for a period of more than ten years, and obtained credit on the faith of its being his own, the wife could not afterwards assert her claim to such money or its proceeds against the husband’s creditors. Her assent to the husband’s use of the money would in such case be presumed, in the absence of proof to the contrary.”
The facts of this record bring the case at bar well within the doctrine above announced.
The doctrine announced by this court in the above case concerning alleged fraudulent conveyances, which we need not repeat, fully warranted the chancellor, under the facts and circumstances disclosed by this record, in declaring the conveyances set up in appellee’s complaint fraudulent and void. See McConnell v. Hopkins, 86 Ark. 225, and cases there cited.
The judgment is correct, and is therefore affirmed. | [
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Wood, J.,
(after stating the facts). Conceding, without deciding, that the amendments tendered contained subject-matter germane to the cause of action set up in the original complaint, the court nevertheless did not abuse its discretion in refusing to allow these amendments to be made at the time when they were offered. Appellants did not offer to amend the complaint until- several days after the cause of action had been dismissed.
The court, in sustaining the demurrer and dismissing the complaint for the reasons set forth in the sixth and seventh grounds of the demurrer thereto, held that there was no allegation of a compliance with the terms of the written contract set up in the complaint. Having so decided, the court did not err in refusing to allow an amendment which, in the court’s view of the complaint, would have rendered the same inconsistent and contradictory.
The only question we now decide with reference to these amendments is that the court did not abuse its discretion in refusing to allow them at the time they were offered. As the case must be reversed for reasons hereinafter stated, if counsel are so advised, they may offer and obtain a ruling of the lower court on these amendments at the next hearing.
The question presented by the court’s ruling on the sixth and seventh grounds of the demurrer is whether or not appellants allege in their complaint facts sufficient to show a compliance on their part with the contract of shipment, as set up in their complaint, which provides that “in case of damage to said fruit that the consignee thereof shall give notice to the delivering carrier of an intention to claim damages therefor within thirty-six hours after notice of the arrival of the freight at the place of delivery.”
The appellants did not allege in their complaint that they complied with this provision of the contract by giving the written notice specified therein, but they allege that the provision requiring -written notice was unreasonable, and set out facts which they say show it to be an unreasonable provision. The facts as alleged must be taken on demurrer as uncontroverted. It therefore becomes a question of law as to whether these facts are sufficient to show that the provision is or is not unreasonable, and not an issue to be submitted to the jury under the provisions of the act approved April 30, 1907, requiring “the reasonableness or unreasonableness of such rules and regulations to be determined by a jury.” That provision can have no application in cases where the facts are undisputed upon which the issue of reasonableness or unreasonableness is predicated. See Kansas & Arkansas Valley Ry. Co. v. Ayers, 63 Ark. 332.
Without repeating here the facts alleged in the complaint to show that the provision for written notice was unreasonable, it is sufficient to say that in our opinion these facts are not sufficient to show that the provision was unreasonable. The fact that the owners of the fruit shipped lived at Greenwood, and the destination of the fruit was at St. Joseph and other distant points out of the State where the goods were consigned, would not show that the provision for notice was unreasonable, nor would the fact that the consignee was at Van Burén, Arkansas. The fact that the consignor and the consignee depended upon commission merchants at points of destination to receive the shipments for them, and that these commission merchants had no knowledge of the condition of the peaches when loaded, and no knowledge that they had been damaged by the carrier in transit would not be sufficient. If the consignor or the consignee could not themselves be at the points of destination so as to obtain the necessary knowledge of the condition of the peaches when delivered to enable them to give notice of an intention to claim damages therefor in case of damage or loss, they would have to have agents at such points of consignment, and could give such notice within the time prescribed. Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37; Chicago, R. I. & P. Ry. Co. v. Neusch, 99 Ark. 568; St. Louis, I. M. & S. Ry. Co. v. Townes, 93 Ark. 430.
It would be the consignor’s duty to have either the consignee himself at the point of destination or to have some agent there representing him to whom the delivery could be made, and who could ascertain the condition of the shipment when it arrived at its destination, and who could give the notice required by the contract. Thirty-six hours after notice of arrival for notice of a claim for damages is not an unreasonably short time for the consignee to receive all the information necessary as to the damage he has sustained, if any, and to give written notice of an intention to claim such damage to the delivering carrier.
Mr. Hutchinson, in his work on Carriers, (3 ed.), § 442, says: “The object of conditions of this character, it is said, is to enable the carrier, while the occurrence is recent, to better inform himself of what the actual facts occasioning the loss or injury were, and thus protect himself against claims which might be made upon him after such lapse of time as to frequently make it difficult, if not impossible, for him to ascertain the truth. It is just, therefore, that the owner, when the loss or injury has occurred, should be required, as a condition precedent to enforcing the carrier’s liability, to give notice of his claim according to the reasonable conditions of the contract.”
We quoted the above from Mr. Hutchinson in the case of St. Louis & San Francisco Rd. Co. v. Keller, 90 Ark. 308. In the latter case the contract for notice provided that “no carrier shall be responsible for loss or damage of any of the freight shipped unless it is proved to have occurred during the time of its transit over the particular carrier’s line, and of this notice must be given within thirty hours after the arrival of the same at destination. No carrier shall be responsible for loss or damage to property unless notice of such loss or damage is given to the delivering carrier within thirty hours after delivery.”
The court, in discussing this provision, made no distinc tion between the provision requiring notice for loss or damage and one requiring notice of an intention to claim damage, but treated such provision as meaning the same thing, as shown by the authorities cited and the language of the opinion. In the above case it was held that such a provision in the contract is “a condition of recovery and not an exemption from liability.” “Its effect,” says Judge Frauenthal, speaking for the court, “is to require the one who has the peculiar knowledge to inform the other who has not that knowledge to seek the facts while they exist, so that the facts may be obtained and presented by both sides; its effect is therefore to uphold and enforce rights if they are founded on truth, and not to limit or defeat those rights.” And, continuing, he says, “This court has uniformly upheld and enforced similar provisions in contracts of common carriers where the same, under the circumstances of the case, were reasonable and the damages occurred during the actual transportation of the goods;” citing many cases of this court where the provision of the contract required “notice of intention to claim damages” to be given in writing, etc. . .
So, under our decisions, it makes no difference whether the provision of the contract requires written notice “of loss or damage” to be given, or whether the language of the contract provides for written notice of an “intention to claim” for loss or damage. Under our decisions, the purport of these provisions is the same, have the same legal effect, and are not limitations upon or exemptions from liability of the carrier, but are only conditions precedent to recovery. St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis, I. M. & S. Ry. Co. v. Keller, supra.
It is alleged, in the concluding portion of the amendment to the complaint, that “the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on arrival. That the defendant, the general agent for fruit shipments, C. F. Carstarphen, and its local agent at Greenwood, Ark., L. W. Rhodes, knew all of the foregoing material matters.”
In Kansas & Arkansas Valley Railway Co. v. Ayers, supra, there was a shipment of cattle under a contract which contained a provision for notice similar to the one at bar. The proof showed that the notice in writing was not given. The agent at the depot where the cattle were delivered saw the cattle and knew that some of them were dead, and that they were in a bad shape generally, but he did not know and was not informed that any claim would be made for damages. The court, in passing upon the question as to whether written notice of damage for the dead cattle was required, said: “The cattle that were dead in the car before the stock was removed and mingled with other cattle were not within this provision of the contract as to notice. The object of requiring the notice by the shipper of his intention to claim damages to be given before the cattle were removed and mingled with other cattle was to afford the railway company a fair opportunity to examine the cattle before they were removed and mingled with other cattle. As to those that were dead, the company had all the opportunity it could have had to examine them.”
Under the doctrine of the above case, it was not necessary as a condition of recovery that the appellants.give appellee written notice of an intention to claim for damages to the peaches if the delivering carrier, through its agents, examined and knew the condition of the peaches while in its possession after their arrival at their destination. The complaint alleged such knowledge on the part of the carrier, and hence, in this respect, stated facts sufficient to show that the written notice was unnecessary. Where the facts stated show that the delivering carrier has actual knowledge of all the conditions that a written notice could give it, then written notice is not required, and a provision requiring it under such circumstances would be unreasonable.
Appellee relies upon the recent case of Chicago, Rock Island & Pacific R. Co. v. Williams, 101 Ark. 436, to sustain its contention as to the alleged failure of the appellee to comply with provisions of the contract as to notice. But appellant fails to observe the. distinction between the Williams case and the cases of Kansas & Arkansas Valley Ry. Co. v. Ayers and St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 172. The present case is controlled by the rule in the latter cases. In the Williams case the provision requires that the claim for the loss, damage or delay should be made within four months. The language of the contract in that case contemplated the presentation of a formal claim for damages, specifying what was lost or damaged and the amount thereof, etc. But here, as we construe the language of the contract, it only requires that the consignee report that he has sustained loss or damage and his intention to claim therefor; but it does not contemplate the presentation within the short time of thirty-six hours of the formal claim, as required in Chicago, R. I. & P. Ry. Co. v. Williams, supra. If such were the case, the provision as to time might be considered unreasonable. Whereas, as the provision is only for notice that damage has resulted, and requiring that the consignee report that fact, it is not unreasonable. The distinction between the cases is pointed out by the Chief Justice in Chicago, R. I. & P. Ry. Co. v. Williams, as follows:
“In the present case the requirement is not merely for notice to the carrier that damage has resulted, but it is that the claim for the loss, damage or delay shall be presented within the stipulated time. The purpose of the requirement is to give the carrier timely opportunity to investigate the claim for damage after the same has been presented. This involves the right to investigate the contents of lost packages, the value of lost articles, as well as the facts bearing upon the question of its liability. The distinction is clearly pointed out by Judge Riddick in the opinion of the court in Western Union Tel. Co. v. Moxley, 80 Ark. 554, and we are of the opinion that that decision is conclusive of the present case.”
The court therefore erred in sustaining the demurrer, and for this error the judgment is reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings. | [
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Hart, J.,
(after stating the facts). The defendants insist that the court erred in giving instruction No. 1 to the jury, but we can not agree with their contention in this behalf. The instruction was not intended as a concrete application of the law to a particular state of facts, but the instruction embodies several sections of the statute relating to and defining the offense charged against the defendants. The several sections of the Digest contained in the instruction are parts of the same statute, and are so closely related to one another that each to some extent explains or controls the meaning of the others. Therefore, it was proper to give them all in charge to the jury. Brown v. State, 55 Ark. 593; Mitchell v. State, 73 Ark. 291.
It is next urged by the defendants that the court erred in giving instructions numbered 2 and 3 to the jury. Of course, it can not be said that the defendants would be guilty of the offense charged against them if they failed in any event to arrest or cause to be arrested the persons composing the mob who had assembled for the purpose of lynching the prisoner Sanford Lewis. The defendants might not have been able to have made the arrests, and, according to the testimony adduced by them, they did not know that the mob had assembled for the purpose of lynching the prisoner. If either of these things were true, they would not have been guilty, and this phase of the case was covered by the instructions given by the court. The court in the instruction complained of evidently used the word “failed” in the sense of nonperformance of duty — -that is, an equivalent of neglect. It is manifest, when the instructions are read together, that the court used the words, “fail, refuse and neglect,” in substantially the same sense. As used by the court, they all contemplate the failure to come up to the requirements of the statute on the part of the defendants. If the defendants thought otherwise, they should have made specific objection to the instructions, and doubtless the court would have changed the verbiage to meet their objections. The defendants asked the court to give to the jury several instructions which were refused. We do not deem it necessary to set out these instructions or to make any extended comment upon them. It is sufficient to say that the court did not commit any error in refusing to give them. The case was submitted to the jury on instructions that fully and fairly covered every phase of the offense of which the defendants were charged, and the evidence on the part of the State was sufficient to warrant the jury in convicting the defendants.
The judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). In Boone County v. Mitchell, 64 Ark. 125, Mitchell and others sued Boone County for fees of officers and witnesses incurred in a felony case wherein the accused was acquitted of the felony, but convicted of a misdemeanor of the same generic class. In that case we held that the county was liable for the costs, the defendant having no property out of which a judgment for costs could be made. The same rule applies here.
Section 2469 of Kirby’s Digest provides: “Fees allowed in criminal cases shall be paid by the defendant, but if sufficient property belonging to the defendant can not be found for that purpose, they shall be paid by the county where the conviction ' is had, except in such cases of misdemeanor where the county is not to be liable.”
Section 2470 provides: “In all criminal or penal cases pending under indictment in the circuit court, if the defendant shall be acquitted or nolle prosequi entered by the attorney for the State, except in cases where the prosecutor shall be adjudged to pay the costs, or, in case of felony, if the defendant shall be convicted and shall not have the property to pay the costs, the same shall be paid by the county.”
Under these statutes, where defendants are indicted for felonies and acquitted of the felonies and convicted of misdemeanors included in the indictment, if they “shall not have the property to pay the costs, the same shall be paid by the county.” Since the county in such cases is liable for and must pay the costs, as held in Boone County v. Mitchell, supra, it necessarily follows that the appellant could not be imprisoned or hired out to pay such costs. There is no provision in the statute authorizing imprisonment or hiring out of parties convicted of misdemeanors on indictments and trials for felonies, for the purpose of paying the costs that accrued on the trial of such felony charge.
The words “cases of misdemeanor,” as used in section 2469 of Kirby’s Digest, mean cases where parties are charged solely with the commission of a misdemeanor and tried and convicted on such charge, and not cases where the indictment and trial is for a felony, although finally resulting in conviction for a misdemeanor included in the indictment.
The words “cases of felony,” as used in section 2470, supra, refer to cases where the indictment and trial is for a felony, including a misdemeanor of the same generic class as the felony. Where parties are indicted and tried for felonies, such cases are regarded as felony cases under section 2470, supra, although the accused may only be convicted of a misdemeanor included in the felony charge.
The court therefore erred in overruling the motion to retax the costs for which error the judgment is reversed, and the cause remanded with directions to grant the prayer of the motion. | [
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■ Wood, J.,
(after stating the facts). The record shows that the circuit court of St. Louis is a court of general jurisdiction, and had jurisdiction of the subject-matter, and the only question presented for our decision is whether or not the finding and judgment of the circuit court of Missouri, holding that it had obtained jurisdiction by a proper service upon appellee, is res judicata.
The appearance of the appellee in the Missouri circuit court for the purpose of quashing the sheriff’s amended return of service of summons in that cause gave that court jurisdiction of the person of appellee for the purpose of quashing service, not only upon the ground stated in the motion, but upon any other ground that the appellee might have presented. The appellee, upon filing the motion to quash the service of summons, could have brought forward any grounds that it saw fit to allege other than that set up in the motion as a reason why the service should be quashed. The issue raised by the motion to quash was whether or not the service of summons should be quashed.
The appellee, having appeared in the circuit court of Missouri for the purpose of quashing ‘the service, is estopped not only from setting up the reason for quashing the service alleged in the motion, but also any reasons that it might have set up as grounds for quashing such service. The issue raised by the motion was, whether or not the Missouri circuit court had jurisdiction of the person of appellee, and it was the duty of the appellee, when it questioned that jurisdiction, to bring forward any cause that might have existed showing that the court did not have jurisdiction of the person of appellee. Not having brought forward such matters then, it is estopped from taking advantage of them in a subsequent proceeding to test the jurisdiction, and the judgment of the court on that question, whether right or wrong, is not subject to collateral attack on review by the circuit court of another jurisdiction.
“The judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the suit.” Church v. Gallic, 76 Ark. 428.
The doctrine of res judicata is correctly announced in 23 Cyc. pp. 1295-6; Cromwell v. Sac County, 94 U. S. 351-2.
“The rule is often stated in general terms that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been litigated and decided in that suit; and this is undoubtedly true as to all matters properly belonging to the controversy and within the scope of the issues, so that each party must make the most of his case or defense, bringing forward all his facts, grounds, reasons, or evidence in support of it, on pain of being barred from showing such omitted matters in a subsequent suit.” See cases cited in note, 23 Cyc. pp. 1295-6, supra.
Until the appearance of the appellee in the Missouri court to quash the service of summons, no issue was raised by it. It was not before the court at all for any purpose, unless it had been properly served with process; and while it was the duty of the circuit court of Missouri to examine the service to determine whether it had jurisdiction of the person of appellee, there was no issue on that question raised by the appellee. But when appellee appeared and moved to quash, it distinctly raised that issue, with all the reasons that were, or could have been, urged as to why the circuit .court had not acquired jurisdiction of the person of appellee.
In Hubbard v. American Investment Co., 70 Fed. 808, the court said: “The question of the jurisdiction of that court (a State court of Colorado) was raised and presented to that court for decision. It thereupon became the duty of that court to hear and decide the question of its jurisidction, and it was open to the defendant to then and there present every question of law and fact upon which it relied to show that the court was without jurisdiction.”
Appellee, having elected to submit the issue as to whether the circuit court of Missouri had jurisdiction of its person to render the judgment sued on herein, is bound by the judgment of that court on that issue, so long as same stands unreversed by the courts of Missouri.
As was said in Newcomb v. New York Cent. & H R. R. Co., 81 S. W. 1069: “If the defendant .was of the opinion that the return was not sufficient to bring it into court, and had confidence in its own opinion, it could have remained away and let the plaintiff take his course. That was a station in the progress of the case where the law requires the party to rely on his own judgment and take the risk of being sustained in the end.” See also other authorities cited in appellant’s brief.
It follows that the court erred in admitting the testimony of Ike Felsenthal. For. this error the judgment is reversed, and the cause is remanded for a new trial. | [
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McCulloch, C. J.
John Harper, a citizen of the State of Kentucky, died leaving a last will and testament, whereby he devised certain lands in that State to the children of his nephew, Adam Harper, “for their life only and at their respective deaths to go to such of their children or grandchildren, respectively, as by last will and testament they may direct; and, in case any fail so to direct, to be divided equally between their children or their descendants; the children of any that are dead to take the place of their parents.” Mrs. Susan Bedford was one of the children of Adam Harper, and the lands thus devised to her were sold for reinvestment under an order of a court of proper jurisdiction, and the proceeds were reinvested in the purchase of a plantation in Lee County, Arkansas, known as the “Pillow Mound” place. The deed from the vendor followed literally the terms of the John Harper will, and the lands were thereby conveyed to Mrs. Bedford “for and during the term of her natural life, * * * and at her death to go to such of her children or grandchildren as by last will and testament she may direct, and, in case she fails so to direct, to be divided equally between her children or their descendants, the children of any that are dead to take the place of their parents, all as provided by and in accordance with the terms, conditions and limitations of the will of the late John Harper of record in the office of the clerk of the county court of the county of Woodfore, State of Kentucky.”
Mrs. Bedford is still living, and has six children, all of whom are adults except the youngest daughter, Margaret O. Bedford, who is a minor under the age of fourteen years. Mrs. Bedford and her five adult children instituted this action in the chancery court of Lee County against Margaret O. Bedford, praying for confirmation of a sale of said land which they proposed to make, and had agreed to make, to one Thompson, for the purpose of reinvesting the proceeds in the purchase of other lands. They show, by allegations in their complaint and by proof, that only a small portion of said lands is in cultivation and yields but little income; that the farm is badly out of repair, and that they have no means with which to make repairs; that the lands suffer great injury from year to year on account of overflow of the Mississippi River, and that no protection is derived from the levees; that said lands do not constitute a fit place for the residence of the life-tenant and her said children; that they have negotiated a sale of the lands to Thompson for the sum of $10,000, which is a full and adequate price, and that it is to the interest of all parties that the sale be made and the proceeds reinvested in other lands. The court appointed a guardian ad litem for the infant defendant, and proceeded to a hearing of the cause. A final decree was rendered, approving the sale to Thompson on the terms mentioned, and ordering a deed to be executed by the court’s commissioner upon payment of the agreed price. The sum was ordered to be paid to the clerk of the court, subject to the. further orders of the court. An appeal to this court has been prosecuted by the guardian ad litem of the infant defendant.
There is a statute in the State of Kentucky authorizing the proceedings under which the Kentucky lands were sold for reinvestment. Section 491, Kentucky Code of Practice. Pursuant to the decree of the Kentucky court, the property there was sold and the proceeds subsequently invested in lands in this State, the conveyance from the vendor vesting the title in the same way as originally prescribed by the last will and testament by which the property was devised.
There is no statute in this State, such as the Kentucky statute, either directly or indirectly authorizing chancery courts to sell lands for reinvestment. In order to find such authority, we must look to the general powers of chancery courts.
It will be readily seen, from a consideration of the language of the will -of John Harper, and the conveyance of this property which followed closely its terms, that a life estate was conveyed to Mrs. Bedford, with contingent remainder over to such of her children as she should nominate or specify by her last will and testament. This evidently refers to such children of Mrs. Bedford, or their descendants, as shall survive at the time of her death, and a limited power of appointment is given to Mrs. Bedford to determine which of the class shall take the remainder. There is, therefore, a double contingency . attached to the remainder, as to whether any of the class shall survive at the death of Mrs. Bedford, and also which of them will take under the power of appointment if it should be exercised by her. All of the members of the class who may possibly take are adults save one, the defendant Margaret O. Bedford, and she is an infant.
This court held, in Watson v. Henderson, 98 Ark. 63, that courts of equity have no jurisdiction to order the sale of a minor’s lands for reinvestment, the exclusive jurisdiction over the estates of minors being vested by the Constitution in' probate courts.
The fact, however, that one of the class of contingent remaindermen is an infant does not deprive the chancery court of jurisdiction, if jurisdiction is otherwise conferred. The fact that the probate court has exclusive jurisdiction over . the estates of infants does not deprive the chancery courts of jurisdiction to sell parts of their estates, for instance, for the purposes of partition, or for the foreclosure of liens, or in other cases where, upon other grounds, jurisdiction is conferred upon chancery courts. The question in this case is not whether the jurisdiction is exclusively vested in some other court, but whether there is any authority to sell lands for reinvestment where there are different interests or estates, including contingent remainders. In many States there are statutes similar to the one in Kentucky referred to above, and we find numerous decisions in those States bearing upon the construction of such statutes. But, as before stated, we have no statute to guide us in this State, and there are few decisions to be found in States where there is no statute on the subject.
The case of Gavin v. Curtin, 171 Ill. 640, is directly in point. There the will of the testator devised certain property to his daughter for life, with remainder in fee to the children of the daughter surviving at the time of the latter’s death and to certain of the testator’s sons in the event that no children of the daughter survived. Suit was instituted in a court of equity, similar to this action, alleging the necessity for a sale for reinvestment in order to preserve the rights of all the parties in interest, and the court said:
“It remains to be determined whether a court of equity may assert and exercise the necessary jurisdiction and power. If not, it would seem we have an instance of the existence of a legal right which can not be protected and maintained because of a lack of an appropriate tribunal having adequate judicial power to render the necessary relief. * * * The right possessed by the defendant in error in this case is one which belongs to the purview of municipal law and comes within the scope of juridical action, but the power of the courts of law, or their modes of procedure, are inadequate to furnish a complete remedy. It may be that an instance can not be cited where a court of equity has been called upon to take jurisdiction and render relief in a case in all its aspects precisely the same as the case at bar, but that does not furnish a sufficient reason for declaring the jurisdiction does not exist.”
The relief prayed for was granted in all the cases, including the ones based upon statutes authorizing the sale of contingent interests for investment. It has been held that, where there is created a class of contingent remaindermen, some not in being at the time, the suit may be maintained, and those in being sufficiently represent the whole class. Ridley v. Halliday, 106 Tenn. 607, 61 S. W. 1025; Faulkner v. Davis, (Va.) 18 Grattan 651; Gavin v. Curtin, supra; Kent v. Church of St. Michael, 82 N. E. 704, 136 N. Y. 10.
{
This is treated as a doctrine of necessity, for otherwise the jurisdiction of the court would be entirely defeated, because of the fact that there might arise other parties not then in being. The theory upon which the rule rests is, as stated by the Illinois court, that “the possible persons not in esse are therefore represented by the parties before the court, and, if they ever come into being, will be bound and concluded by the decree.”
In the recent case of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581, we announced a doctrine which is not without considerable force in its application to this case. In that case there was a life estate with contingent remainder over, and one of the questions involved was, whether the contingent remainderman had a remedy to prevent waste and to recover for waste already committed. The court laid down the rule that there could be no recovery by the remainder-man at law, and, a fortiori, no remedy to recover damages for waste already committed; but that a different rule prevailed in equity. The court said:
“It is well settled that the rights of a remainderman, whether vested or contingent, are more extensive in equity than at law; and it is equally well settled that he may obtain relief in equity by injunction to prevent the life tenant of his grantee from committing waste. * * * The most serious question in the case is whether a contingent remainderman may seek relief in equity for waste already committed. The courts of this country have held that a contingent remainder-man can not maintain an action at law to recover damages for waste already committed. For a collection of the prin cipal cases on the subject, see 30 Am. & Eng. Enc. Law (2 ed.) p. 1. The reason a contingent remainderman has no standing in a court of law is that it can not be known in advance of the happening of the contingency whether he would suffer damage or loss by the waste; and, if the estate never became vested in him, he would be paid for that which he had not lost. On the other hand, it is a rule of universal application that a contingent remainderman may obtain relief in equity by injunction to prevent waste, and this remedy is. given him on the theory that he is entitled to prevent the loss or destruction of that which may become his at the termination of the life estate. * * * Two of the cardinal principles of chancery jurisprudence are, that equity will not suffer a wrong to be without a remedy, and equity looks to the substance rather than the form. * * * For these reasons it seems to us that the plaintiffs are entitled to equitable relief. They should not be entitled to it now by way of indemnity; but we are of the opinion that it is in accord with the principles of equity for the chancellor in cases like this to take an account of the amount of the damage suffered and impound the same and invest the proceeds for the benefit of the one to whom the estate tail would first pass according to the course of the common law by virtue of the deed in question, in which interest the plaintiffs have an expectancy.”
We are of the opinion that the doctrine thus announced is correct, and that the chancery court had jurisdiction to order sale of the property for reinvestment.
It is the duty of the chancery court, not only to safeguard the sale itself, but to follow up the reinvestment of the proceeds so as to see to it that the will of the original testator is carried out. This seems to have been done by the court in the present instance.
Another question arises as to the power of the court and the propriety of its action in approving a private sale, instead of ordering a sale to be publicly made by a commissioner. There is no statute expressly requiring chancery salés to be made publicly. It seems, however, to be the policy here for judicial sales to be made at public outcry, and that is manifested by all the statutes which authorize and attempt to regulate involuntary sales. This does not, however, exclude the power of the chancery court to order a private sale where the same does not fall within the terms of any statute, and we are of the opinion that such power exists. Cox v. Price, 22 S. E. 512, 2 Va. Dec. 170; Williamson v. Berry, 8 Howard (U. S.) 495.
The jurisdiction of the chancery court to order the sale does not arise from any statute on that subject, and is therefore not restricted by any of the statutes regulating other judicial sales.
Private sales under judicial decrees are not to be encouraged, and the courts should proceed very cautiously in taking that course. In the present instance, however, as we conclude that the chancery court is not entirely without power and jurisdiction to order the sale made in that manner, no error was committed, for the court seems to have inquired carefully into the propriety of approving the sale already negotiated by the adult parties in interest. The evidence taken in the case shows conclusively that the sale negotiated is a highly advantageous one, and the court was warranted in concluding that the terms were better than might be secured at a public sale. Therefore, we do not find that any error was committed in that respect, and the decree as a whole will be affirmed. | [
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McCulloch, C. J.
This is an action instituted by appellee against appellant in the chancery court of .Crittenden County to cancel a recorded deed purporting to convey a certain tract of land in that county. Both parties trace their title back to separate sales made by commissioners of the chancery court in actions instituted by the Board of Directors of St. Francis Levee District to enforce payment of delinquent levee taxes. Appellee claims under a sale made in the year 1898 pursuant to decree of the chancery court for the taxes of prior years; and appellant asserts title under a sale made in" the year 1899 for the levee taxes of 1898. The levee district itself was the purchaser at the sale made in 1898, and, the sale being confirmed, a conveyance was made pursuant thereto. On December 7, 1898, the board of directors commenced another suit to enforce payment of delinquent levee taxes for the year 1898, and this tract was included in the suit, and a decree was entered condemning it for sale to satisfy the lien for delinquent levee taxes. The commissioner on March 27, 1899, made sale of the lands embraced in the decree, and appellant was the successful bidder for the tract in controversy, ■ and received from the commissioner a certificate of his purchase. The commissioner made his report in writing to the court, and, the same coming on for hearing March, 1, 1900, the court made an order refusing to confirm the sale of this tract to appellant and vacating the sale. The sales of the other tracts of land embraced in the report were, with one or two exceptions, confirmed, and the commissioner was ordered to make deeds to the respective purchasers. On the same day the commis sioner presented to the court separate deeds to the purchasers at that sale, and included a deed to appellant for the land in controversy, which was, together with the other conveyances presented, examined by the court and approved, and indorsement to that effect was made by the chancellor upon each instrument. Appellant was not present in court on the day these proceedings were had, but was a nonresident of the State, and the deed so executed to him by the commissioner was forwarded by mail. Appellee purchased the land from the levee board on October 19, 1910, and received a quitclaim deed purporting to convey the same to him. He commenced this suit against appellant on December 16, 1910. The final hearing of the cause resulted in a decree in appellee’s favor, quieting his title and cancelling appellant’s deed, and an appeal has been duly prosecuted to this court.
The chancery court refused to confirm the sale made to appellant, and cancelled the same on the grounds that the lands were at the time of the decree the property of the levee board; that the sanie were not subject to taxation at that time; and the court was without jurisdiction to render a decree condemning the same for sale.
Conceding that the facts of the case bring it within the decision of this court in Robinson v. Gross, 98 Ark. 110, and that the decree adjudicating the lands to be subject to lien for levee taxes was a conclusive bar to further adjudication of that question, and that it could not be reopened as ground for refusing confirmation of the sale under said decree (Terry v. Logue, 97 Ark. 314), the fact remains that the court rendered its decree refusing to confirm the sale and vacating it. That was a final decree of the court which is open to attack only by such methods as may be available to set aside other decrees. State National Bank v. Neel, 53 Ark. 110.
The condition of the record, as indicated in the above statement of facts, does not fairly admit of a construction that the court made an order confirming the sale. It is true, as contended by learned counsel for appellant, that no formal order of confirmation is necessary, anything being sufficient which expresses unqualifiedly the approbation of the court. Ousler v. Robinson, 72 Ark. 339; Cowling v. Nelson, 76 Ark. 146; Jacks v. Kelley Trust Co., 90 Ark. 548. The fact that the chancellor made an indorsement upon the deed of his approval thereof is prima facie evidence of a confirmation of the sale and, ordinarily, would be the equivalent of an express order of court confirming the same; but such a presumption can not be indulged, in the face of an order of the court entered on the same day refusing to confirm the sale and setting it aside. Taking the whole record together, it is patent that the presentation of the deed by the commissioner to the court was a clerical misprision, and the action of the chancellor in indorsing his approval under those circumstances can not be treated as tantamount to a confirmation of the sale.
It is next insisted that the order vacating the sale is void for the reason that it was made in the absence of appellant as purchaser and no notice was given him of the proceedings.
A purchaser at judicial sale becomes a party to the proceedings and subject to the orders of the court. Porter v. Hanson, 36 Ark. 591.
In Requa v. Rea, 2 Paige (N. Y. Chancery) 339, Chancellor Walworth said:
“Where a person becomes a purchaser under a decree, he submits himself to the jurisdiction of the court in that suit as to all matters connected with such sale or relating to him in the character of purchaser.”
The sale is not complete until confirmed by the court, the theory being that the court is the vendor, and “will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require.” Sessions v. Peay, 23 Ark. 39; Thomason v. Craighead, 32 Ark. 391; Wells v. Rice, 34 Ark. 346; State National Bank v. Neel, 53 Ark. 110: Phillips v. Benson, 82 Ala. 500.
The purchaser having become a party to the suit “as to all matters connected with such sale or relating to him in the character of purchaser,” it is difficult to perceive why he is entitled to notice when the court is about to reject the sale. He must take notice of all proceedings with reference to the report of sale and confirmation or rejection thereof. We are aware that there are a few cases holding to the contrary; but the question seems to be confused with that of vacating a sale after it has been confirmed, and, of course, under those circumstances notice to the purchaser must be given, as the sale has become complete upon confirmation. It is, we think, a contradiction of terms to say that one who is a party to the proceedings, and therefore required to take notice of all steps, is entitled to have actual notice given to him.
Our conclusion is, that it was within the jurisdiction of the court, without actual notice to the purchaser, to refuse confirmation of and set aside the sale, and that this is conclusive unless other grounds are shown which warrant the court, in the subsequent proceedings, in setting aside that order.
Appellant makes his answer a cross complaint in the nature of a bill of review seeking to set aside the former order of the court disaffirming the sale. The basis of his contention in that respect is that he was not present in court when the order was made’; that he had no notice thereof; and that he was misled by the fact that the clerk executed to him a deed which was duly approved by the court and delivered to him.
A sufficient answer to this is that, as he was a party to the suit, it was his duty to be present and take notice of all steps in the proceedings. . It does not appear from the allegations of the complaint, nor from the agreed statement of facts upon which the case was tried, that the deed was delivered to him at a time which misled him to his disadvantage and prevented him from appearing in court before it adjourned in order to resist the disaffirmance. In other words, his failure to take notice of the order of the court refusing to confirm his sale was brought about by his own neglect in failing to attend the sittings of the court, either in person or by his attorney. Negligence in failing to discover the matter which he asserts as ground for review bars him from that remedy. Bartlett v. Gregory, 60 Ark. 453.
Another contention of learned counsel for appellant is that no confirmation of the sale by the court’s commissioner was necessary, and that the title completely vested upon the execution of the deed.
The statute authorizing foreclosures by the St. Francis Levee District provides that such suits “shall be conducted in accordance with the practice and proceedings of chancery courts in this State except as herein otherwise provided.” Acts 1895, p. 88.-
This question has never been expressly decided by this court and, so far as the writer knows, has never been raised in this court. In several instances the necessity for confirmation of a sale for levee taxes has, however, been distinctly recognized. In Banks v. Levee District, 66 Ark. 490, in discussing the right of the owner to redeem from the sale, the court said:
“The time for making the deed or deeds is after confirmation of sale; for, until the sale is confirmed, it can never be known what changes there may be made in the report of sale in order to its confirmation. In this respect the sale may be said to be incomplete until confirmation.”
In Robertson v. McClintock, 86 Ark. 255, we had under consideration the statute which authorized redemption within one year from the date of sale of lands under foreclosure proceedings for nonpayment of levee taxes, and the particular question raised was, whether the period of redemption ran from the date of the sale by the commissioner, or from the date of confirmation. In the opinion the court clearly recognized the legal necessity for a confirmation.
The statute itself which regulates this proceeding clearly contemplates that all the proceedings shall be “in accordance with the practice and proceedings of chancery courts;” and that necessarily implies a requirement that a sale pursuant to a decree of a court is not complete until it receives the court’s confirmation.
We are of the opinion that confirmation is essential as in all other judicial sales.
The only remaining question is upon appellant’s plea that appellee’s right of action is barred by his own laches.
The deed to appellant was executed March 1, 1900, and was in due time placed of record.
Appellee purchased the land from the levee board October 19, 1910, and began this suit about two months thereafter.
It is shown that appellant continuously paid the levee taxes on the land since the date of his. purchase except for the year 1904, and for that year it was again sold for taxes but redeemed by appellant in due time. He also paid the State, and county taxes for the years 1899 to 1904, inclusive, and for the years 1908 and 1909, before the commencement of this suit. The land was sold for State and county taxes for the years 1905, 1906 and 1907, but appellant redeemed from each sale in due time.
It is also shown that the land at the time of appellant's purchase was worth $5.00 an acre, and at the time of the institution of this suit its market value was about $15.00 per acre. The land is wild and unoccupied.
By many decisions of this court it has been held that, where the owner of land abandons it for a period of seven years, or longer, permitting another to bear the burden of paying the taxes, and the land in the meantime becomes greatly enhanced in value, he is barred by his own laches from asserting purely equitable rights.
It is equally well settled that the owner should not be deemed to have abandoned his land until there has been a valid lien for taxes which he has failed to discharge. In other words, he is not called upon to assert his rights, either legal or equitable, until there has been an interference with his possession, or until an incumbrance is placed upon his land which he is called upon to discharge. It is then only that his act in allowing another to bear the burden can be deemed to be an abandonment of his rights. Penrose v. Doherty, 70 Ark. 256; Chancellor v. Banks, 92 Ark. 497; Herget v. McLeod, 102 Ark. 60.
These lands, being the property of the levee district, were not subject to taxation during the period of delinquency, claimed by appellant to exist; therefore the district was not called upon to pay and was not in default in discharging the void assessment. Laches is not imputable to the levee district, nor to appellee, for he brought suit within a few months after he became the purchaser.
The fact that the lands were improperly assessed for levee taxes were from year to year paid to the collector did not estop the levee district to assert title to the lands. Board of Directors St. Francis Levee District v. Fleming, 93 Ark. 490.
Our conclusion is that the decision of the chancellor upon all the questions involved in the case was correct, and the decree is therefore affirmed. | [
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McCulloch, C. J.
The plaintiff’s intestate, Hans Nass, was run over and instantly killed by a freight train on a trestle of defendant’s railroad near Tyronza, a station in Poinsett County, Arkansas, and this action was instituted to recover damages for the benefit of the widow and next of kin.
Nass was a trespasser on the track, and the question in the case is, whether or not the train operatives failed to exercise care, after making discovery of the perilous situation of deceased, to prevent injuring him. The case was tried upon this theory, and the trial resulted in a verdict in favor of the plaintiff assessing damages.
The chief ground urged for reversal is that the evidence is not sufficient to sustain the verdict. Nass was a stranger in those parts, and had only been living at Tyronza for a short time. He was accustomed to using, on the railroad, a speeder which belonged to a timber inspector, but did so without permission of the railroad company. On the day that he was killed, he took the speeder and rode it to Deckerville, another station south of Tyronza, and was returning about sundown, when he was run over by the train. There is evidence tending to show that he went to Deckerville for the purpose of getting some whisky at a saloon located there. Only one person witnessed the occurrence, except the trainmen themselves. This was a man named Leonard, who was a farmer, living a short distance from Tyronza, and who was starting from his field towards his house when it occurred. He walked up on the track, started towards home, when a freight train came from the north, and he stepped off the track to allow the train to pass. As he did so, he noticed a man riding a speeder on the trestle. He testified that the man appeared to have stopped... He afterwards measured the distance and found that he was about 2,220 feet from the north end of the trestle when the train passed him. He states that shortly after the train passed, and obscured his view of the man on the trestle, the alarm signal was given by blowing the whistle, and was continued until the train reached the trestle and stopped. His measurement showed that the engine was 1,192 feet from the north end of the trestle when the alarm was first sounded. He did not go down to the trestle to see whether injury had been inflicted, as he supposed, so he states, that the train had been stopped in time to prevent injuring the man; but, after he learned that the man had been killed, he examined the place and saw the evidences of the speeder being knocked from the trestle ninety-four feet from the end of the trestle. Another witness, who lived at Tyronza, testified that as soon as he heard of the accident he went down to the scene and found the broken speeder lying in the water near the trestle, fifty or seventy-five yards from the north end. The trestle was 635 feet long and about thirty feet high, spanning a shallow body of water called Dead Timber lake. The evidence justified the jury in concluding that Nass, when struck by the train, was sitting on his speeder on the trestle from ninety to 150 feet from the end, and that the trainmen could see that he had stopped. The evidence warranted the conclusion that the trainmen did see him from the fact that they began to give the alarm 1,192 feet from the north end of the bridge, which placed them at that time at a distance of about 1,300 feet from deceased’s position on the trestle. There was also evidence to the effect that the train could have been stopped in a distance of from 100 to 200 yards, according to the favorable or unfavorable conditions with reference to the working of the air and the amount of tonnage in the train. In that state of the proof, it is our opinion that the jury was warranted in finding that the trainmen, that is to say, the engineer or fireman, discovered the perilous situation of this man in time to have avoided the injury. They could see him on the trestle, where he appeared to have stopped, and as they approached him should have known that he was in a position of peril of which he was insensible or from which it was impossible for him to extricate himself. He was facing north, and one who discovered his presence could see that he was unable to make his escape from the trestle. The fact that the alarm was continued down to the point where the train stopped shows that the trainmen were aware of his peril all during that time, and their failure to stop the train at an earlier moment is sufficient to sustain the charge of negligence. The evidence shows that the engine ran by him some distance before the train was stopped. None of the trainmen testified in the case; therefore, it is not shown just how far the engine went by before it was stopped, and the jury was left to draw inferences only from the situation as described by the witness Leonard and the other witness who testified with reference to the place where the broken speeder was found. The defendant did not attempt to account in any way for the happening of the injury or to introduce evidence explaining how it occurred. We are of the opinion that the situation described by the witness warranted the inference that the engineer or fireman saw the man on the trestle, and was aware of his perilous situation, but failed to exercise ordinary care to prevent injuring him. The verdict is therefore sustained by the evidence.
The court instructed the jury, upon defendant’s request, that if the employees in charge of the train saw Nass on the trestle at a distance ahead sufficient to enable him to get out of the way before the train reached him, “and they were not aware that he was deaf or insane or from some other cause insensible of danger or unable to get out of the way, they had the right to rely on human experience and presume that he would act upon the principles of common sense and the motives of self-preservation common to mankind in general, and get out of the way, and they had the right to go on without checking the speed of the train until they did see, if they did, that he was not likely to get out of the way,” etc.
The court, over the defendant’s objection, modified the instruction by adding the'following:
“If, however, Nass was seen upon the track and was known to be, or from his appearance gave the operatives of the train good reason for the belief that he was, insensible of his danger or unable to avoid it, then they would have had no right to presume that he would have gotten out of the way, but should have acted on the hypothesis that he might not or would not, and then should have used the proper degree of care to avoid injuring him. Failing in this, the railroad company would be responsible in damages if by the use of such care they might have avoided injuring him, if they did injure him. There is no presumption that Nass was insensible of his danger, but that is a fact that would have to be established by the plaintiff by the greater weight of evidence.”
The court also gave the following instruction, to which the defendant objected and saved its exception:
“4. The court instructs you further that if from the evidence in this case it has been shown that the decedent, Hans Nass, was upon a railroad bridge near Tyronza station on the date mentioned, and if it be further shown that the employees of the railroad company operating its railroad train saw him on the track far enough ahead of the train to get out of the way, if you believe from the evidence that they were not aware that he was deaf, or insane, or from some other cause insensible to the imminent danger of his position, or unable to get out of the way, then the agents and servants of the railway company had a right to presume that he would do so, and to go on without checking the speed of the train until they saw he would not do so it became their duty to give extra alarm by bell or whistle, and if the agents or servants of the railroad company then saw that that was not heeded it became their duty to stop the train, if possible, in time to avoid the injury to him. However, if you believe from the evidence in this cause that the servants and agents of the railroad company had reason, from the appearance of the decedent, to believe that he was suffering from drunkenness or other cause, and thereby was insensible to the imminent danger, or was in such a situation as to be unable to avoid it, then the servants and agents of the railroad company must presume that he might or would not get out of the way, and it became their duty tó use proper care to avoid injuring him, and, unless they did use proper care to avoid injuring him the railroad company would be liable, and your verdict should be for the plaintiff.”
The particular part of this instruction to which objection is made is that which submits the question of the appearance of the deceased as to his insensibility of danger on account of drunkenness or other cause. It is argued that the evidence fails to show that he was in any state of intoxication, and therefore it was erroneous to submit that question. The instruction is abstractly correct. St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513. It can scarcely be said that there is any testimony in the record that deceased was intoxicated at the time; but the point of the case for submission to the jury is whether or not he was in a position of danger which he failed to appreciate, or whether his position was such that he could not extricate himself from it. The evidence shows that he had stopped on the trestle, and this was sufficient to warrant the finding that he was not aware of his danger, and was making no effort to extricate himself. The question was, whether or not he was insensible of his danger, and not the cause of his insensibility. The question was submitted to the jury, and we fail to see how there could have been any prejudice from including drunkenness as the cause. Whatever the cause may have been, the jury necessarily found by their verdict under those instructions either that deceased was insensible of his danger and was making no effort to extricate himself from it, and that defendant’s servants were aware of this, or that he was in a position where he could not extricate himself from the danger, even if he knew of it, and the trainmen were aware of that, and failed to exercise ordinary care to prevent injuring him. In either event, defendant was liable, and there could not therefore havebeen any prejudice in submitting the question whether drunkenness was the cause of decedent’s insensibility to danger if such was his condition.
Our conclusion is that the case went to the jury upon instructions which fairly submitted the issues, and which were in no wise prejudicial to defendant. The judgment is therefore affirmed.
Mr. Justice Smith did not participate. | [
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Kirby, J.,
(after stating the facts). It is not disputed that the estates of both John and Mary A. Hare have been wound up and finally settled, and all the property belonging to both disposed of, except the said property sold to the said Tillman Shaw, nor can it be disputed that the Sisters of Mercy have realized out of said estate all they would have received, had the will of John Hare operated to convey his entire estate to Mary A. Hare, as they thought it did, except the $5,500 they had to refund to Tillman Shaw, by reason of their not being the owners of the one-half undivided interest they attempted to convey to him, and they say they would have been satisfied with this disposition of the property of these estates and willing to care for the imbecile, Ella Hare, throughout her life in consideration thereof, and took charge of her and the estate with the expectation of doing so.
It was the intention of Mary A. Hare, as plainly expressed in her will, to leave one-half of her estate, after the payment of her debts and the small bequests and legacies, to appellees, the Sisters of Mercy, for the support and maintenance of her daughter Ella Hare, during her life, and thereafter to said Sisters of Mercy to be used in educating poor Catholic children. It was doubtless, also, John Hare’s intention to leave all of his estate to his wife, Mary A. Hare, in accordance with his will, which was invalid under the law, as against Ella Hare, his only child, her name having been- omitted therefrom. It may bé, and doubtless is, true that the Sisters of Mercy believed that the will of Mary A. Hare conveyed, not only her own estate, but also all the estate that had formerly belonged to her husband and was attempted by him to be devised
to her, and, so believing, they took charge of Ella Hare under the provisions of the will and have since furnished her care, maintenance and support. The will of John Hare was inoperative to convey his estate to Mary A. Hare, and some of it has been recovered by Ella Hare, and the Sisters of Mercy have been required to refund $5,500, that portion of the purchase money received by them from the sale of the one-half undivided interest of certain of his said property, which they sold and attempted to convey, claiming to be the owner thereof under the will of Mary A. Hare. On that account, they claim that the consideration for their taking charge of Ella Hare and furnishing her maintenance and support, under the provisions of her mother’s will, has failed, and that they are entitled to pay for the reasonable value for the care, maintenance and support so furnished to Ella Hare for the past nineteen years.
It is manifest from the provisions of the will that Mary A. Hare was not incidentally stating the motive which led her to make an absolute gift of the property to the Sisters of Mercy, but intended, as clearly expressed, to impose an obligation for the support and maintenance of her imbecile daughter throughout her life, and an express trust was thereby created. Bloom v. Strauss, 73 Ark. 57. It was a gift in trust, with the right upon the part of the trustee to use all of said property, not required for the maintenance and support of said child, at their own discretion and without accounting therefor, and they accepted said trust. It is undisputed that they have received from the two estates of the parents of this imbecile ward the sum of $16,500, which they have not returned. It would be manifestly unfair and unjust now to permit them to repudiate the obligation and the trust and recover, upon a quantum meruit for services already rendered and maintenance furnished, a sum more than sufficient to consume the entire estate belonging to said imbecile, with no corresponding obligation on their part to maintain, support and care for her in the future, as the.decree rendered below does, thus defeating the obvious purpose of the testator and leaving entirely without protection for the remainder of her life the imbecile ward, Ella Hare, while permitting the consumption of all the remaining estates of both her father and mother by the trustee who expected, on accepting the trust and taking charge of her, to care for, maintain and support the said Ella Hare throughout her whole life for the one-half of said estates which they understood was devised to them for that purpose. It is true, as urged, that the imbecile has been as well cared for by them as she could have been by any one, and that it was the intention of her father to leave all of his estate to her mother, and of her mother to leave all of her estate to the church and appellee, except the few small legacies provided for, for her care and support during her lifetime and the church’s benefit thereafter; but it does not follow, as insisted, that it would be only equitable that they should have what they thought they were going to receive, and what their testator intended to give, and that they would receive nothing more if the judgment of the lower court was affirmed. The parties can not be placed in statu quo, and the majority of the court have concluded, since they have expressed a willingness to carry out the purpose of the trust and care for and maintain said Ella Hare for life, under the provisions of the will, if they had received what they thought they were going to get, that the court, in the administration of the principles of equity, will permit them to recover of the said Ella Hare the $5,500 they have had to refund of the purchase money of the lands sold to Tillman Shaw, afterwards recovered by Ella Hare, and charge the same as a lien against the property of Ella Hare. By so doing they will be placed in the position they would have occupied had no suits been brought by Ella Hare for the recovery of the lands of her father’s estate, and his will had, in law, as it attempted to do in fact, conveyed same to. her mother.
They are entitled to a judgment for that amount with interest from the time of its return, and the same to be declared a lien and enforced against her property, leaving the obligation of the trust created by the will for her support throughout the remainder of her life unimpaired.
The court should have rendered such judgment, and, for the error of the decree as rendered, the cause is" reversed and remanded with directions to enter a decree in accordance with this opinion. | [
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Hart, J.,
(after stating the facts). It is insisted by counsel for plaintiff that the judgment should be affirmed because it is not expressly stated in the bill of exceptions that it contains all of the evidence introduced at the trial. The record shows that the plaintiff, to maintain the issues on his part, introduced certain named witnesses, whose testimony follows. It then recites that the plaintiff rested. The defendant called certain witnesses, whose testimony is set out. The defendant then rested. The record then recites that the plaintiff recalled a witness, and then closed its testimony. The record then shows that the plaintiff abandoned his claim for the car of seed sued for in the third paragraph of the complaint, and that all consideration thereof was by the court withdrawn from the jury. The record then shows the court proceeded to instruct the jury.
It will be noticed that, while it is not expressly stated in the bill of exceptions that it contains all of the evidence introduced at the trial, such fact is to be inferred from its general tenor. We have frequently held that the requirement that the bill of exceptions contain all of the testimony in a case is sufficiently complied with if it appears inferentially that all of the evidence is brought up. Walker v. Noll, 92 Ark. 148; Overman v. State, 49 Ark. 364; Leggett v. Grimmett, 36 Ark. 496.
The cases cited by plaintiff on this question are not in point under the state of facts as disclosed by the record. In each of the cases cited by him there was an affirmative showing that the bill of exceptions did not contain all of the evidence.
It is contended by counsel for defendant that the court erred in refusing to give the following instructions, asked by it:
“The acceptance of a bill of lading from a common carrier by plaintiff for a car of seed shipped to Brown Oil Company at St. Louis constitutes a delivery to Brown Oil Company by the plaintiff; and, if the seed so billed and delivered was not by the carrier delivered, the plaintiff’s cause of action is against the carrier and the Brown Oil Company, if he has not yet received compensation therefor from some other source.”
We think he is correct in this contention. The plaintiff’s own evidence shows that he sold the car of seed in question to the Robert B. Brown Oil Company of St. Louis, Missouri, and shipped the same to it on November 21, 1910. The secretary of the Brown Oil Company, a witness for the plaintiff, testified that his company held the bill of lading issued by the Jonesboro, Lake City & Eastern Railroad Company, dated November 21, 1910, for the car of seed in question.
It is a settled law in this State that the delivery of goods to a common carrier, when made in pursuance to an order to ship, is in effect a delivery to the consignee. Harper v. State, 91 Ark. 422; Bray Clothing Company v. McKinney, 90 Ark. 161; Gottlieh v. Rinaldo, 78 Ark. 123, and cases cited.
Consequently, under the facts in this case as disclosed by the record, the plaintiff had neither the title nor the right to the possession of the car of seed in question, and had no right to maintain this action.
It is urged by counsel for plaintiff that the instruction was refused because Grady testified that under his contract with the Brown Oil Company the loading and consignment of the car to that company was not a delivery to it, and that it did not become liable to him for anything until the car was received, inspected and unloaded at St. Louis.
In answer to this, we have not been able to find any testimony to that effect in the record.
The facts as disclosed by the record are substantially as we have stated them, that is to say, the record shows that the plaintiff sold the car of seed in question to the Brown Oil Company of St. Louis and consigned the same to it, taking a bill of lading therefor from the Jonesboro, Lake City & Eastern Railroad Company. Under this state of the record (and we can only review assignments of error upon the record as presented to us), the instruction under consideration should have been given; for, as we have already seen, according to the uniform current of decisions in this State, where goods are delivered to a common carrier pursuant to a contract authorizing shipment, a delivery to the carrier is held to be a delivery to the consignee, so as to cast upon the latter a liability for any loss resulting in transit. Bray Clothing Company v. McKinney, supra, and cases cited.
For the error in refusing to give instruction numbered 2 at the request of the defendant, the judgment will be reversed, and the cause remanded for a new trial. | [
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Per Curiam.
Appellant, J. T. Temple, instituted this action in the chancery court of Bradley County against U. J. Culp, Jr., to cancel a tax deed and quiet title to a certain tract of land situated in that county, and on August 29, 1911, final decree was rendered in the cause dismissing the complaint for want of equity. An appeal was granted by the chancery court on the day of the rendition of the decree. The transcript of the record was not filed within the time prescribed by law for perfecting the appeal, but on August 15, 1912, which was within the year allowed for taking an appeal, transcript was lodged and appeal was granted by the clerk of this court. .Summons was issued for some — not all — of the heirs of the defendant, and was duly served on them. It appears, by affidavits filed, that U. J. Culp, Jr., died on October 7, 1911, and thé cause has not been revived. The heirs at law of U. J. Culp, Jr., now move that the cause be stricken from the docket on the ground that there has been no revivor within the time prescribed by law. Appellant seeks at this time to revive in the name of the heirs, and that motion is resisted.
The statutes bearing upon this question read as follows:
“Sec. 6311. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may be forthwith made in the manner directed in the preceding sections.”
“Sec. 6813. An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.”
“Sec. 6315. When it appears to the court by affidavit that either party to an action has been dead, or where he sues or is sued as a personal representative, that his powers have ceased for a period so long that the action can not be revived in the names of his representatives of- successors without the consent of both parties, it shall order the action to be stricken from the docket.” Kirby’s Digest.
It is insisted that these statutes only apply to causes pending before judgment in the circuit courts of the State. This contention is, however, against the rulings of this court in decisions which hold that the statute applies to cases pending in this court on appeal. State Fair Assn. v. Townsend, 69 Ark. 215; Anglin v. Cravens, 76 Ark. 122.
An appeal had been granted when the defendant died, and the time for perfecting the appeal-by lodging transcript in the office of the clerk of this court had not expired. The transcript could have been lodged in this court and the order for revivor made upon ten days’ notice. Kirby’s Digest, § 6307. The final order of revivor could, therefore, have been entered ten days after the death of the defendant, and the motion of appellant to revive was not filed in this court until October 28, 1912, which was more than twelve months after the time the order could first have been entered. The object of the statute is to give twelve months within which to obtain an order of revivor after the earliest moment at which the order could first have been obtained. Peay v. Pulaski County, 103 Ark, 601. One year having elapsed since the order of revivor could have been first made, the right is barred, and, following the plain mandate of the statute, the court is required to strike the case from the docket. The way was clear for appellant to file his transcript and procure an order of revivor, and it is through his own fault that he has suffered the time to elapse given by law to proceed in that way. The motion to revive is therefore denied, and the appeal is ordered stricken from the docket. | [
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Kirby, J.,
(after stating the facts). Appellant contends that the verdict is excessive, and that the court erred in giving instruction No. 2 over its objection and in refusing to give the three instructions requested by it.
Said instruction numbered 2 relates to the statute requiring persons desiroous of cutting and removing timber from any land in the State for the purpose of making staves or to be sawed into lumber, when the boundaries of.the land are not already ascertained and known, to have such lands surveyed and the metes and bounds marked and plainly established before cutting the timber therefrom.
The court’s action in giving this instruction can not be reviewed here, because of the general objection made to all three of the instructions given, as follows:
“To the giving of which the defendant objected and excepted and had its exceptions noted of record.”
This objection was general and embraced all the instructions in gross, and such objections are not considered here if any of the instructions are good. Wells v. Parker, 76 Ark. 42; Young v. Stevenson, 73 Ark. 480; Dowell v. Schisler, 76 Ark. 482.
Appellant’s exceptions to the refusal to give its three requested instructions were likewise in gross. “To the court’s refusal to give the three above instructions the defendant at the time objected and saved its exceptions, which were noted of record,” and it is equally true that a general exception to the refusal to give several instructions requested collectively will not be considered on appeal, if any of such instructions are bad. Young v. Stevenson, supra.
Two of the requested instructions were covered by one already given by the court, and it is doubtful whether the other was a correct statement of the law.
It was not claimed that the lands of the cooperage company adjoining those of the appellee, from which the timber was cut, had been surveyed and the boundaries ascertained and known, nor did appellant attempt to show that its employees engaged in cutting the timber were acquainted with the boundaries of its lands, further than to say they had a plat of the lands in their possession. A plat of land does not necessarily designate the boundaries thereof on the ground plainly and clearly where it could not be easily mistaken, and there was some testimony from which it could be inferred that the foreman of the employees engaged in cutting the timber knew where the boundary line of Clark’s land was before the timber was cut.
The questions whether appellant had reasonable cause to believe and did believe at the time the trespass was committed that the timber belonged to it, as well as the value thereof, were fairly submitted to the jury and upon conflicting testimony they found in appellee’s favor. The testimony is sufficient to sustain the verdict, if it was the intention of the jury to allow treble damages, which the law warranted under the circumstances. Doniphan Lbr. Co. v. Case, 87 Ark. 169; Newhouse Mill & Lbr. Co. v. Avery, 101 Ark. 34'.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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McCulloch, C. J.
Appellant is engaged in the sawmill business at Delight, Arkansas, and appellee, while engaged in the former’s service, received personal injuries alleged to have been caused by negligence of the employer, and sues to recover compensation therefor. He recovered judgment below for damages in the sum of $1,250, and an appeal has been prosecuted to this court, numerous errors of the- trial court being assigned.
Appellee, when injured, was driving a team of oxen and hauling logs from the woods to the skidway. He was riding on the wagon at the time, and the bolster tilted or dipped and threw him to the ground, one of the wheels striking him on the side of the face, inflicting severe injury. It is alleged that the tilting of the bolster resulted from the defective condition of the fifth wheel of the wagon, which permitted the bolster to drop down into the broken place and tilt. The evidence tends to show that a piece was broken out of the fifth wheel about a foot long, which left a gap between the bolster and hounds of the wagon, and that when the wagon was passing over uneven ground the bolster would drop down into the broken gap, sometimes causing the logs to roll off. Appellee had been working for appellant at times for several years, and on the day that he was injured he had been working there for two days, hauling logs. Appellant had a number of wagons for the use of log haulers. Some of them were eight-wheel wagons, equipped with fifth wheels, and some of them were four-wheel wagons. The fifth wheel is described as “a circular piece of iron, some thirty inches in diameter, situated beneath the rocking bolster half a foot, extending in a semicircle in front of the rocking bolster a half foot behind the bolster.” Appellee had used both kinds of wagons, but during the period of his last service he had, before the time of his injury, only used a four-wheel wagon, and this particular wagon with the broken fifth wheel was furnished to him early in the morning of that day, and he was making his first trip when he received the injury. He testified that he had not used this wagon before, and did not know of its defective condition until he received the injury. The testimony tended to show that a piece eight or ten inches long was broken out of the fifth wheel. It was a defect which was readily discernible to any one who looked. In other words, it was a patent defect. Appellee testified that he was driving along the road, when the wagon gave a tilt, the wheel of the wagon struck a small root, and the bolster dropped down and tilted so as to throw him to the ground.
It is earnestly insisted, in the first place, that the evidence does not sustain the verdict, in that it does not show that the tilting of the bolster was caused by the defect. A careful consideration of the evidence convinces us that this is a question which was properly left to the jury, and that there was sufficient evidence to justify the verdict. It is true, appellee testified that he did not know what caused the bolster to tilt over, and, so far as that statement is concerned, it may just as well be inferred that the tilting of the bolster was caused by the wheel striking the root as it was caused by the defect in the fifth wheel. But this omission is supplied by the positive statement of appellee that the bolster dropped down, and, considering this in the light of the testimony of other witnesses, the inference could properly be drawn that the tilting of the bolster was caused by its dropping down into the broken gap, and not by the wheel striking the root. The jury could, from the evidence, have found that either of the two things mentioned caused the plaintiff to be thrown from the wagon; but, if the statement of appellee be accepted as true, that, together with the other testimony, afforded substantial ground for the inference that it was caused by the defect in the fifth-wheel, and that it did not result merely on account of the wheel running over a root.
The state of the testimony also warranted the submission to the jury of the question of appellant’s negligence in furnishing its servant the wagon with a broken fifth-wheel, and also the question of appellee’s contributory negligence and assumption of risk. The defect in the wagon was a patent one, but the danger was not so obvious that a man of ordinary prudence would not have used it in that condition. Therefore, it can not be said as a matter of law that appellee was guilty of contributory negligence in failing to discover the defect and in using the wagon in that condition. The facts of the case, when subjected to the test of what constitutes contributory negligence, called for the submission of that question to the jury. Nor can it be said, as a matter of law, that appellee assumed the risk. The defect in this particular wagon, though patent to all observers, was not one common to all the other wagons in service, and therefore the use of it did not constitute one of the ordinary risks of the service which appellee assumed under his contract. Choctaw, O. &. G. Rd. Co. v. Thompson, 92 Ark. 11. He did not contract to use this particular wagon, and the use of it in that condition resulted from the negligence of the master, which was a risk not assumed by the servant unless he knew of the defect and appreciated the danger of using the wagon in that condition. St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424; St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102; A. L. Clark Lumber Co. v. Johns, 98 Ark. 211.
The next assignment of error is based on the refusal of the court to give the following instruction:
“6. You are instructed that the burden of proof rests upon the plaintiff to establish his claims to damage by a preponderance of the evidence. You are to indulge the presumption that the defendant was not guilty of negligence set out in plaintiff’s complaint, namely, that of furnishing a defective fifth-wheel in the wagon which the plaintiff was using when he is alleged to have sustained his injury, and that this presumption attends it throughout the trial until it is overcome by evidence. If, after a consideration of all of the evidence, you find that the plaintiff has failed to make out his case, by the preponderance of the testimony, then your verdict will be for the defendant.”
This was a correct instruction, but we think it was sufficiently covered by others which the court gave.
Appellant requested the following instruction, among others, and the court refused to give it, this being assigned as error:
“8. You are instructed that there was no duty resting upon the defendant to point out defects and dangers which were open, patent and easily seen. If you believe from the evidence in this case that the fifth wheel of the wagon was in a defective and broken condition, and that the plaintiff knew of the defective condition, he assumed the risk arising from the use of the defective fifth wheel. If he did not know it, but you find by the exercise of ordinary care he could have known it, then the court tells you that he was guilty of contributory negligence in failing to know it; and in either event your verdict will be for the defendant.”
This instruction is incorrect, and was properly refused for two reasons. In the first place, it was incorrect in telling the jury that, if plaintiff knew of the defective condition of the wagon, he assumed the risk arising from using it. This is not true. The defect having been caused by the negligence of the master, the servant did not assume the risk unless he appreciated the danger. He might have known that such a defect existed, and yet the danger might not have been so obvious that he must be deemed to have appreciated it and held to an assumption of the risk. See authorities supra. It was also erroneous in telling the jury that the servant was guilty of contributory negligence if by the exercise of ordinary care he could have discovered the defective condition of the fifth wheel. Even if the defect was an obvious one and could have been discovered by the exercise of ordinary care, yet, if the danger was not such as would have caused a man of ordinary prudence to desist from the use of the wagon, then it can not be said that he was guilty of contributory negligence in using it. So, for both of these reasons, the instruction was incorrect, and the court properly refused to give it.
The next and last assignment of error is that the court refused to give the following instruction:
“11. You are instructed that it is the duty of the master to exercise ordinary care to provide his employee with a reasonably safe appliance with which to discharge the. duties of his employment; and in determining whether or not the master has discharged his duty in this respect you are to take into consideration the facts and. circumstances surrounding the employment and the purpose for which the appliance is intended. If you believe from the evidence in this case that the wagon in question was not intended by the employer as a conveyance upon which the' employee should ride in the discharge of the duties of his employment, but was intended as a vehicle for hauling logs only, then you are instructed that the defendant did not owe plaintiff any duty with respect to rendering this wagon safe as a conveyance for plaintiff to ride upon.”
This instruction, while correct as an abstract statement of the law, was improper in this case because it entirely ignored one of appellee’s principal contentions, namely, that it was customary for the men to ride on the wagon while hauling logs. There was a sharp conflict in the testimony; that adduced by the appellant being to the effect that there was a positive rule of the company against men riding on the wagons; whereas the testimony adduced by appellee tended to establish the fact that, even if such a rule had been prescribed by the company, it was habitually violated with the knowledge of those in charge of the company’s business, and in that way had been entirely abrogated. Appellee was entitled to have that controverted question submitted to the jury upon proper instructions, and it would have been erroneous to give instruction No. 11, for the reason that it entirely ignored that issue, and in effect took it away from the jury.
None of the assignments of error pressed upon our attention is found to be well taken, and it follows therefore that the judgment must be affirmed.
It is so ordered. | [
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Hart, J.
Appellant, Freeo Valley Railroad Company, is a railroad corporation organized under the laws of the State of Arkansas, and, as such, presented, to the Secretary of State a certified copy of a resolution adopted by its stockholders for the purpose of surrendering its charter, claiming that it had a right to do so under section 957, Kirby’s Digest. The Secretary of State declined to file the resolution. Appellant then filed a petition in the Pulaski Circuit Court asking for a writ of mandamus against the Secretary of State to compel him to do so. To this petition the appellee filed a demurrer, which was sustained by the circuit court. The case is here on appeal.
The only issue raised by the appeal is, can. appellant surrender its charter by complying with section 957, Kirby’s Digest? It is as follows: “Any corporation may surrender its charter by resolution adopted by the majority in value of the holders of the stock thereof and a certified copy of such resolution filed in the office of the Secretary of State, and a copy thereof filed in the office of the county clerk of the county in which such corporation is organized shall have effect to extinguish such corporation.”
It is contended that the words “any corporation,” as used in the act, include railroad corporations. In the absence of a statute on the subject, the decided weight of authority is that strictly private corporations may surrender their charters and dissolve themselves except so far as creditors have a right to object. On the other hand, railroad corporations are invested with certain powers not enjoyed by strictly private corporations, and they also are required to perform certain duties to the public which the latter do not owe. Elliott on Railroads, § 608.
It will be presumed that the Legislature had knowledge of the state of the law as it existed at the time the act in ques tion was passed. The section of the act under consideration is a part of an act of the Legislature in regard to the dissolution of corporations. The act was passed April 12, 1893. At that time there was no board of railroad incorporation. Railroad corporations could be organized by the persons desiring to form such corporations complying with the requisites of the, statute and filing their articles of association with the Secretary of State. Manufacturing and other business corporations were required to file their articles of association and certificate with the county clerk of the county in which the corporation was to have its principal place of business, and then to file said articles and certificate bearing the indorsement of the county clerk in the office of the Secretary of State. The act provides that said certificate shall be recorded by the county clerk and Secretary of State in books kept by them for that purpose. Kirby’s Digest, § 845. The section of the act under consideration provides that any corporation may surrender its charter by filing a certified copy of the resolution with the Secretary of State and a copy thereof with the county clerk of the county in which such corporation is organized.
“Such” is defined by Webster as “having the particular quality or character specified; certain; representing the object as already particularized in terms which are not mentioned.” That is to say, it is used in the sense of previously mentioned or specified. It is evident then that the word “such” has reference solely to any corporation which was authorized and directed to file its articles of association with the county clerk by the act under which it was incorporated. As we have seen, manufacturing and business corporations alone are required to file their articles of association and certificate with the Secretary of State and also with the clerk of the county court of the county in which they are organized. Therefore, the phrase “in which such corporation is organized” limits the words “any corporation” to corporations which are required to file a copy of their articles and certificate with the clerk of the county in which the incorporation is to have its principal place of business, and such corporations, being corporations formed for manufacturing and other business purposes, alone have the right to surrender their charters without the consent of the State, and the act in question was for the purpose of providing a method by which voluntary dissolution should be made.
The judgment will be affirmed. | [
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Hart, J.
Joe Ksir instituted this action against H. M. Cooley to recover compensation for the use and occupation of a certain brick storehouse situated in the town of Jonesboro, Arkansas.
The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.
The facts adduced by the plaintiff are substantially as follows: Sam Bryan rented a storehouse from Ksir at fifty-five dollars per month, and was conducting therein a mercantile business. The defendant Cooley, as attorney for creditors of Bryan, recovered judgments against him and caused execution to be issued thereon. He threatened to have the executions levied on the stock of goods of Bryan unless payment was made at once. It was finally agreed between them that Bryan should turn over the keys of the storehouse to Cooley and let them remain in his possession pending negotiations for a settlement. In pursuance of this agreement, Bryan locked up the storehouse and turned over the keys to Cooley. Bryan did not thereafter exercise any control over the stock of goods, but allowed them to remain in the storehouse in the possession of Cooley for'about two months, at which time bankruptcy proceedings were instituted against him. The plaintiff Ksir testified that about four or five days after Bryan was closed up he went to see Mr. Cooley about his rent, and that Cooley told him he would get dollar for dollar; that later on he went to see Mr. Cooley again and asked him how long he was going to keep it, and that Cooley answered that he could not tell, it might'take him ten days or it might take him a month; that he again went to Cooley and told him he wanted his-house, and that Cooley replied he could not get his house, but would get his rent.
H. M. Cooley testified: “When the storehouse was locked up, the keys were handed to me, and my recollection is that I left the keys in the First National Bank, as it was the largest creditor. During the time the store was locked up, I went in there several times to see about fastening up things and to see if anybody was molesting the stock of goods. At the end of about two months a petition in bankruptcy was filed against Sam Bryan, and later on he was adjudged a bankrupt. Shortly after the keys were turned over to me, Mr. Ksir came to my office and wanted to know about his rent. I told him I was only representing the creditors, and would not be responsible for the rent. Some time later he came back and demanded pay. I told him that I was only representing the creditors and trying to make a settlement with Bryan, and told him I would not be responsible personally for the rent.”
It is undisputed that the storehouse belonged to Ksir, and that Bryan occupied it as his tenant. It is also undisputed that Bryan turned over the keys of the storehouse to the defendant Cooley, who represented certain creditors of Bryan. From this time on Cooley exercised sole control over the stock of goods and kept possession of the storehouse in which the goods were situated. He admits that he went in there several times to see that the store was properly fastened and to see if anybody was molesting the goods. Ksir, the owner of the store, acquiesced in him so holding it. From this evidence but one inference can be legitimately drawn and that is, that Ksir was the owner of the store, and that by his permission Cooley held possession of it for two months for the benefit of certain creditors of Bryan. In the case of Dell v. Gardner, 25 Ark. 184, the court held:
“Where the entry upon the lands of another is peaceable and the occupation acquiesed in, without any agreement, written or verbal, as to rent, the owner may bring an action for use and occupation.” See also Bright v. Bostick, 27 Ark. 55.
But the defendant contends that he told the plaintiff that he would not be personally responsible for the rent; that he was only acting as the representative of certain'creditors of Bryan in the matter. It will be noted, however, that he did not disclose to the plaintiff the names of the creditors for whom he was acting. This it was his duty to do if he would excuse himself from responsibility on the ground of agency. The rule is that, though the agent discloses the fact he is agent but does not disclose the name of his principal, he may be held personally liable as principal. Neely v. State, 60 Ark. 66, and cases cited. In this view of the case, it is not necessary to consider whether the circuit court erred in its instruction to the jury. The judgment upon the facts and the law upon the whole case is right, and will therefore be permitted to stand. Gibbons v. Dillingham, 10 Ark. 9; St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236.
The judgment will therefore be affirmed. | [
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Hart, J.
This is an action brought by a laborer against a railway corporation to recover balance due him for wages and the penalty imposed by statute upon a corporation for failing to pay the wages of a discharged employee within seven days from his discharge. The plaintiff recovered judgment in the sum of ninety-four dollars and thirty-five cents, and the defendant has appealed. The plaintiff testified substantially as follows:
“I was employed by the defendant as a carpenter at two dollars and fifty-five cents per day during the month of October and the first three days of November, 1911. During this time I worked four days at Benton, Arkansas, and the balance of the time- at Klondyke, Arkansas. On the third day of November Mr. Morrison laid me off. I asked him where our checks would come to, and he said they would come to Malvern, and I agreed to that. I called at Malvern several times, the first time about eight or nine days after I was laid off, and then again after the 15th or 16th of November, and six or seven times after that.
Cross examination: “We were working at Benton when I was laid off, and had been there three days working on the depot. Mr. Gephart was the foreman there. I never told him where to send my check. Mr. Morrison was the foreman at Klondyke, and was in charge of the work at Benton when I was laid off, Mr. Gephart at the time being in Little Rock.
G. H. Morrison testified substantially as follows: “Last October and November I was carpenter foreman for the defendant. I built a small depot at Klondyke. I was the foreman there, and kept the time for building that depot. Mr. Gephart was foreman of the depot building department at Benton, and he kept the time, I suppose; I did not. It was his business to keep the time. I did not think it was my duty to report the time the men worked at Benton. Gephart was foreman at Benton. He was away some on account of going in and out of Little Bock. He was there so as to keep the time, and I did not keep the time of the men.”
Cross examination: “I was in charge when he was not there, and directed Frank McMillan in the work when Gephart was absent. When Gephart and I were both at Benton, he was the boss.”
The defendant requested the court to instruct a verdict, in its favor. ' This the court refused to do, but at the instance of the plaintiff instructed a verdict in his favor. In the case of St. Louis Southwestern Ry. Co. v. Mulkey, 100 Ark. 71, we held: “Each party, by requesting a directed verdict for himself, without requesting other instructions, waived the right to a decision by the jury, so that the court’s direction would have the same effect as the jury’s verdict.”
In the application of this rule to the facts in the present case, we think the judgment should be affirmed.
The evidence of the plaintiff tends to show that Gephart was not present when he was discharged, but that Morrison was there acting as foreman in his stead, that Morrison told the plaintiff that the money due him would be sent to Malvern, and that the plaintiff, agreed to that place for receiving payment. The plaintiff was finally paid at Malvern, and it is fairly inferable from this fact and from the connection of the conversation between plaintiff and Morrison at the time of plaintiff’s discharge that Malvern was a station on defendant’s line of railroad. (Biggs v. St. Louis, Iron Mountain & Southern Ry. Co., 91 Ark. 122.)
Therefore, the judgment will be affirmed. | [
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Hart, J.
Appellant commenced this suit in justice’s court against appellee to recover upon two promissory notes. The appellee admitted liability on the notes, but filed a set-off, in which he claimed that appellant was due him an amount over and above that due by him upon the notes for goods and merchandise sold by him to Mrs. C. K. Cross for appellant. Appellee recovered judgment against appellant in the justice’s court on his set-off, and the case was appealed to the circuit court. There appellee again recovered judgment, and the case is here on appeal. The facts are as follows:
C. W. Riggs testified: “I am president of the appellant corporation, and have been since its organization. The amount due appellant by appellee on the first note sued on was $5.25 on August 5, 1909, and on the second note, $50, was due on July 1, 1910. Both of these sums are due and unpaid. On November 18, 1909, appellant entered into a written agreement with Mrs. C. K. Cross, by which she became its agent in Cross County for certain specified purposes, which were set out in the contract. She had no power to make a contract for us, but could only talk over contemplated contracts and present them to us for our approval. She never had any authority to make any contract for us, and I never gave her any authority whatever to use our credit, and never agreed with her or any one else to pay her debts, except in one instance, when she was taken sick on the Love place, which she had rented from us. On that occasion we received a letter that she was sick and needed assistance. We wired back that we would pay any one for taking care of her during her sickness. We never knew that she bought goods from the appellee and had same charged to our account, and never gave her any authority to buy goods from appellee and charge them to us. Mrs. Cross never had any authority to collect money for our company except one time she was given authority to collect ten dollars on a horse sold. At another time she collected twenty-five dollars and gave the company’s receipt therefor. This was done without authority, but owing to the distress she was in at the time we ratified her action.”
I. R. Dye, appellee, testified: “The plaintiff company owes me $149.17 for supplies furnished to Mrs. C. K. Cross bought from February to June, 1909, from me at my store in Parkin. I charged the goods to C. W. Riggs by Mrs. C. K. Cross. The plaintiff, company never told me to furnish her goods, nor promised to pay for any she got, but Mrs. Cross came there and took an oversight over the affairs of the company, making contracts, buying feed, selling stock and selling land, and I just supposed she had the right to charge things to them.
“When Captain Riggs was in my town, Parkin, 1907 or 1908, this Mrs. Cross was with him and appeared to be treated as one of the family. He ran an account at my store which he finally paid by receipting one of this same series of notes, one of which is sued on. While he was there at that time, Mrs. Cross came to the store to get goods several times, sometimes with an order, sometimes without. The goods were furnished her just as they would be to the member of any other man’s household, and they were charged to him. This is the reason when she came there again and wished to buy ■goods I sold them to her and charged them to C. W. Riggs by her. At the time Captain Riggs was in Parkin, when he ran a bill at my store, he wras in the show business, and was in Parkin in winter quarters with his show. This account that I have filed as a counterclaim has never been paid and is past due. It amounts to $149.17. I never did send the company or Captain Riggs a statement of the account to let them know that the goods were being charged to him. After she had run quite a bill, she came and insisted on my taking her personal note for the goods bought, and I reluctantly took it. Later she gave me another note when she had bought more goo'ds. I have these notes now at home. They have never been paid. I said to her that I was owing the company, and that we could settle it that way. I did not take the notes as a settlement releasing the Wales-Riggs Plantations Com pany from the debt due me. One of the series of notes to which the notes sued on belong fell due after I had furnished these goods to Mrs. Cross and charged them to Captain Riggs, and when the bank notified me the note was due I paid it. I did not then mention to the company the fact that I had anything against it, but paid the note in money.”
J. H. Hammett testified: “I was levee tax collector in 1908, and Mrs. Cross paid the levee taxes that year for Wales-Riggs Plantations. The next I knew of her was in the fall of 1909, after I had moved from Wynne to Earle. She had desk room in my office. I had a letter from Captain Riggs, saying she was general agent of the plaintiff, and she acted like it in every way, making contracts, drawing them and signing them, renting land, selling stock, and so on.”
On rebuttal Mrs. C. K. Cross testified: ‘Tn the spring-of 1909 I was agent for appellant company to show its lands and stock and submit to the company any propositions or offer of rentals that might come up. I had no authority whatever to close up contracts. The goods I bought from Mr. Dye were to be charged to me, and were not for the appellant company. I was not the agent of the company at that time. I was farming land which I had rented from appellant. I executed my notes to appellee for the goods I bought from him.”
It is not claimed that there was any express authority on the part of Mrs. Cross to bind appellant, and we think that the testimony falls short of showing that she had any •apparent or ostensible authority to do so. The contract of agency between appellant and Mrs. Cross made in the fall of 1909 has no probative force in this case. In proving authority of an agent for the purpose of binding the principal by the former’s transaction, there must be evidence of the agency at that time. The goods were purchased by Mrs. Cross from appellee in the spring of 1909 between February and June. The contract of agency between appellant and Mrs. Cross was not made until November, 1909. In the spring of 1909 Mrs. Cross was the tenafit of appellant. The fact that Mrs. Cross collected money for appellant at one time by its permission, and that it ratified her act in collecting money at another time without its permission, coupled with the fact that she also paid the levee taxes for it for one year, are not sufficient to show that she was the general agent of appellant, and as such had a right to buy goods and have the same charged to it.
The authority of an agent is never proved by the mere fact that the person claiming the power has exercised it. It must also be proved that the person to be charged as principal assented to such act. St. Louis, I. M. & S. Ry. Co. v. Bennett, 53 Ark. 208.
Riggs, the president of the appellant company, and Mrs. Cross both testified that she had no authority to buy goods and charge them to the account of appellant, and Mrs. Cross testified that she did not do so.
Appellee testified that in 1907 Mrs. Cross lived with C. W. Riggs, the president of the appellant company, as a member of his family, and, like any other member of the family, came to his store for goods for him, and had same charged to his account, and that Riggs paid for them.
It is contended by counsel for appellee that the agency of Mrs. Cross as established during, the winter of 1907 was ’ presumed to continue. But it will be noted that there was no testimony that Mrs. Cross was the agent for appellant in the spring of 1909. Any presumption of that fact was overcome by the positive and direct testimony of both Riggs and Mrs. Cross to the effect that she had no authority in the spring of 1909 to bind the appellant for goods sold her by appellee. At that time she was only the tenant of appellant, and was working its land just as other tenants were doing.
It follows that the judgment must be reversed, and, inasmuch as the case has been fully developed, judgment will be entered here for appellant in the amount of the balance due on the two notes sued on.
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Smith, J.
On May 25, 1912, George W. Greenhaw, the appellee, instituted a suit in the Lee Chancery Court, making J. C. Wells, doing business as the Jacks Transfer Company, and Dow Jacks defendants.
The complaint alleged that the defendant Wells had been engaged in- business in the city of Marianna for several years under the name and style of the Jacks Transfer Company, and that on the 20th day of March, 1911, he had executed to the plaintiff, Greenhaw, his note for $2,006.45, payable on the 20th day of December, 1911; that several payments had been made, leaving a balance due of $1,698.45; that on the date of the execution of the note the defendant Wells conveyed to F. N. Burke, as trustee, for the purpose of securing the payment of said note, certain personal property, consisting of mules and wagons and what appears to have been the outfit with which the business of the Jacks Transfer Company was conducted.
Default was made in the payment of the note, and the trustee undertook to take possession of the property and found it in the possession of the defendant Dow Jacks, who claimed to have been a partner with the said J. C. Wells at the time of the execution of the mortgage, and who refused to surrender the property to the plaintiff.
The defendant Dow Jacks filed a separate answer for himself and the Jacks Transfer Company, denying that J. C. Wells had been engaged in the business for the past number of years as the proprietor of the Jacks Transfer Company, but stated the truth to be that, for the past eight or nine years before the institution of the suit, the said Jacks had owned the transfer business, and that he had made an agreement with his codefendant, J. C. Wells', by which the said Wells was to actively manage the business for a salary of seventy-five dollars per month, with the understanding that he might become a partner when he paid off the partnership debts; that the note was not executed in the name of the partnership, but in the individual name of Wells, and the deed of trust was executed by him individually to secure this note, and the answer further denied that the money was borrowed for or used in the business of the transfer company, but states that it was for the use of Wells personally, and that the said Jacks had no knowledge of the deed of trust until in May, 1912, which was fourteen months after its execution.
It appears that the transfer company was a going concern when Wells was employed, making some money above expenses, but it also appears that its debts about equalled the value of its assets.
Wells filed no answer, but became the principal witness in the case, while Jacks did not testify at all. It appears that Jacks desired to start Wells, who was a brother-in-law, in the business, and that he placed him in charge of the transfer business. It appears that thereafter for more than six years Jacks gave no attention to the business and exercised no control whatever over it, although he lived within a mile and a half of Marianna. Wells’s control appears to have been absolute, and he conducted the business as if it were purely a private enterprise. The proof shows that he sold the property of the partnership at will, and bought other property when he pleased, and that he borrowed money and executed notes in the name of the Jacks Transfer Company or in his own name, without even consulting with or repoiting to his co-partner.
It appears that among the number from whom Wells borrowed money was the plaintiff Greenhaw, and that he had an arrangement with him by which he secured $800 to be used in the wood and coal business, which Wells was conducting as a branch of his transfer business. This arrangement was entered into with the understanding that Wells would share with Greenhaw in the division of the profits of that branch of the business, but no profits were earned. It appears, too, that, to furnish business for the transfer company, Wells became the agent of the Water-Pierce Oil Company in handling oil, but this was not in the name of the transfer company for the reason, as explained by Wells, the oil company would not give an agency to a company name. But it appears that the transfer company derived all the benefits that resulted from the wood and coal business and the oil business. The accounts were kept as accounts of the Jacks Transfer Company, and the collections made by it and applied to its use. Persons who had extensive transactions with this transfer company testified that they never knew it was not the sole business of Wells. Greenhaw so testified. He was taken into a partnership with Wells in a business which was a subsidiary enterprise of the main business, and he testified that he retired from this connection without having-ever known that Jacks was interested in any way in the business. No one contradicts this statement. Wells testified that Jacks knew what he was doing, and that he had authority for his acts, yet he does not appear to have disclosed to Greenhaw that the transfer business was not his private property. It appears that of this money, secured by the deed of trust which this proceeding was brought to foreclose, $438 was used to pay the oil company for oil furnished Wells, and $800 was for the money advanced by Greenhaw to operate the wood and coal business, and $262 was used in paying a balance due on the purchase price of some mules bought by the transfer company. Wells says that the remaining $500 was borrowed to buy wood and coal, and was “used for partnership business.” Greenhaw had never received a cent of profit, and was given a note only for the exact amount of money he had advanced Wells for the purposes here stated, and all of this was done, as he testifies without contra, diction, in utter ignorance of the fact that Wells did not have the unquestioned right to dispose of and manage the Jacks Transfer Company property as he had done. It appears further that when the note and deed of trust in suit were executed Wells took over for the benefit of the transfer company all of the assets that had belonged to Greenhaw and Wells in the wood and coal business, including outstanding accounts. It must be cpnceded that Wells was operating without due regard to the rights of Jacks, but those questions may be settled in a suit for accounting between themselves. After executing the deed of trust and after taking over such assets as Greenhaw and Wells owned at. that time, Wells continued to operate the business until some time after the maturity of this note.
The question here is, whose debt was evidenced by this note? and we conclude that the chancellor was warranted in finding that the debt which the note evidenced was that of Jacks Transfer Company, and the plaintiff has the right to have his deed of trust foreclosed. The power of one partner to bind firm property by a chattel mortgage given to secure a firm debt, without the consent of the copartner, is generally recognized. 30 Cyc. 497; Gates v. Bennett, 33 Ark..475.
And the application of the rule to the facts of this case is not defeated by the fact that the note secured by the deed of trust was signed in the individual name of Wells, for “as a rule the firm is liable on the individual negotiable paper of one or more of its members, when it is shown that such paper was intended to bind the firm, and was given and accepted for a firm indebtedness.” 30 Cyc. 510, and cases cited.
Affirmed. | [
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McCulloch, C. J.
The petitioner, Oscar H. Winn, is an attorney at law, licensed to practice in the courts of this State, and resides in the city of Little Rock; and on February 6, 1912, the police court of that city imposed a fine on him for contempt, alleged to have been committed in the presence of the court. The record was carried up to the circuit court by certiorari, and on trial de novo the petition for certiorari was by judgment of that court dismissed, from which judgment petitioner has prosecuted an appeal to this court.
No question is raised here by the respondent as to the form in which a review by this court is sought; therefore, we pretermit any discussion of that question, as the case may be treated as being either here on appeal or on writ of certiorari.
The circumstances under which the fine was imposed, as disclosed by the testimony adduced at the trial in the circuit court, were substantially as follows: Prior to the occasion in question, the police judge had announced from the bench, in the absence of petitioner, the latter’s suspension from the right to practice his profession in that court. On the morning of February 6, 1912, the petitioner entered the police court room, while the court was in session, and took his seat inside of the rail where space was reserved for attorneys and officers of the court. The judge, observing his presence, directed him to leave, saying “Get out of here; you have been disbarred,” or “You will have to get out of here; didn’t you know you had been disbarred from this court?” Petitioner immediately arose, and, in a somewhat excited and embarrassed manner and tone of voice, replied, saying something about wanting a hearing.' The witnesses do not precisely agree as to his words, but there is very little, if any, difference as to their meaning. One of the witnesses stated that he “said something in regard to wanting a hearing.” Another stated that he “asked what for, and asked for a hearing or something of that kind;” another that he replied, “Well, I don’t know about this; we will have to have a hearing of that;” others that he merely asked for a trial. Petitioner testified that his reply to the judge was that: “Well, Judge, I want to do what is right, and don’t know what this is about, but if I am charged with anything I would like to have a hearing.” The police judge himself testified that when he directed petitioner to leave, the latter replied, “I don’t know whether I do or not. I have not been given a trial.” The fine was then imposed, and petitioner was at once taken in custody by an officer.
All of the witnesses, except the police judge, stated that they observed nothing disrespectful in petitioner’s manner or tone of voice. The judge testified that petitioner had a “snarl” on his face, and that he fined him for his contemptuous look and for disobeying the orders of the court. Now, there is nothing in the testimony whatever, not even that of the judge himself, that petitioner refused to obey the order of the court. The only possible conflict in the testimony is as to the alleged manner of facial expression of petitioner. We conceive it to be our duty to give the same force to the findings of the trial court in this kind of case as in other cases where there is a conflict in the testimony, but it can hardly be said, we think, in this case that there is any substantial conflict in the testimony. We do not doubt that disrespectful manner or tone of voice may constitute such conduct as amounts to contempt of court; but interpretation of the expression on another’s face, especially that of one who is surprised, excited or embarrassed, as practically all the witnesses agree was the condition of petitioner at this time, is a matter about which observers may easily be mistaken, and when, as in the present instance, only one out of many witnesses could discern a disrespectful look on the face of the accused, we hesitate about sustaining a punishment hastily inflicted. The differences in the opinions of the witnesses on that point are too inconsequential to be treated as raising a substantial conflict in the testimony. The opinion of the judge must under the circumstances be attributed to a mistake on his part in interpreting the manner of petitioner, since all agree that no contemptuous words were spoken, and no one else discovered anything disrespectful in his manner. It is also undisputed that immediately after the fine was imposed the petitioner expressed himself in a way which amounted to a disclaimer of any intention either to disobey the order of the court or to offer anything disrespectful to the court. Upon the whole, we are convinced that neither the manner nor con duct of the petitioner on the occasion named was disrespectful to the court, and that there existed no ground for adjudging him to be in contempt. The judgment of the circuit court is therefore reversed, and the cause is remanded with directions to quash the judgment of the police court. | [
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McCulloch, C. J.
The plaintiff, John G. Turney, instituted this action to recover a sum of money deposited with the Marshall Bank of Leslie, Arkansas, in the name of his father, Dr: George Turney, during the latter’s lifetime.
The undisputed facts are that Doctor Turney held two notes, executed to him by one Pate, for balance of purchase price of a tract of land, and he turned the notes over to the plaintiff with instructions to collect the same and deposit the money in the bank. Plaintiff collected the sum of $561 at different times during his father’s lifetime, and deposited it with instructions to the cashier of the bank to place it to the credit of his father’s account. During his father’s lifetime he drew out a portion of it on checks to which he signed the former’s name, thereby reducing the amount to $513.60, which was in the bank at the time of his father’s death. Subsequent to that event he drew out further amounts for the purpose of paying debts of the estate, thus reducing the amount in the bank to the sum of $361.74. The bank paid those checks under an agreement with plaintiff that he would .return the same to the bank if the payments were found to be unauthorized. Thereafter John Allen was appointed administrator of the estate of Doctor Turney, and the balance then in the bank to the credit of Doctor Turney was paid over to the administrator. This suit is against the bank, and against Allen as administrator, and Sarah Turney, the widow of Dr. George Turney.
In the trial below the plaintiff recovered a judgment against all of the defendants for said amount, which was paid over to the administrator, and the defendants appealed to this court.
There are numerous assignments of error as to rulings of the court in admitting evidence and in giving and refusing instructions, but we pass them all over without discussion except the one assignment that the verdict is not supported by the evidence, as the conclusion we reach upon that assignment is finally decisive of the case. We are of the opinion that, according to the undisputed evidence, the money in bank was not the property of the plaintiff, and that he was not entitled to recover the same, It is unnecessary to determine whether the alleged gift of the money by Doctor Turney to the plaintiff, if consummated by delivery, constituted a gift inter vivos or a gift in view of death, “donatio causa mortis,” as expressed in the Latin phrase. In either kind of gift delivery of the thing is absolutely essential to the completed gift. Ammon v. Martin, 59 Ark. 191; Hatcher v. Buford, 60 Ark. 169. The plaintiff’s own testimony shows that his father never intended to deliver the notes to him otherwise than for collection, nor that he intended to hold the money thus collected otherwise than as agent for the purpose of depositing it in the bank. We quote his own statement of the facts concerning the placing of the money in his hands: “He says, ‘You take this money and protect me, and when I am gone I will expect you to pay all my debts, pay everything,’ and I said, ‘Father, I will place this money in the bank and in your name,’ and he objected to that and said, ‘Why?’ and I said, T might die before you, and if I should my own administrator might come in and get the money and turn you outside,’ and he said, T guess you are right.’ ”
The money was placed in the bank in the name of Doctor Turney, according to the understanding expressed above. This positively and absolutely excludes any idea of a delivery to the plaintiff, for it was not in his possession at all, either actual or constructive, after it was deposited in the bank. The other witnesses introduced by the plaintiff corroborate his statement, and the testimony of each of them goes to show that Doctor Turney turned the money over to his son to place in the bank and to attend to it for him, and not for the purpose of parting with his possession and losing dominion and control over it. This being true, plaintiff is not entitled to recover the money, and the judgment in his favor can not be sustained.
It is argued here by plaintiff that the judgment should be affirmed for the reason that the motion for new trial was not filed within the time prescribed by the statute. The record-shows that the motion for new trial was filed by express permission of the court; but, even if this were not so, the presumption would be indulged, in the absence of a showing in the record to the contrary, that the court granted special permission for the motion for new trial to be filed out of time. Fordyce v. Hardin, 54 Ark. 554.
The judgment is reversed, and, as the case is fully developed, it need not be remanded for a new trial, but will be dismissed here.
It is so ordered. | [
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Wood, J.
The only question on this appeal is whether or not the owner of land that has been sold for levee taxes, where there is no fraud or mistake made in conducting the sale, the same being in all respects according to law, can redeem from such sale by showing that he intended to pay the levee taxes on the land, and made an effort to do so, but failed through mistake of his agent.
It was shown on behalf of appellant that he owned a large acreage of land in and out of the levee district, and that he was desirous of paying all of the taxes assessed against his lands; that his agents made an effort to ascertain the total amount of taxes due by him, and that the secretary of the levee board promised to send him a map showing the lands embraced within the levee district, and failed to do so; that he had written to the secretary for a list of his lands within the district and for the amount of levee taxes due thereon, and when the secretary sent him the list the appellant immediately sent a check therefor. The lands in controversy, however, that were afterwards sold for the taxes, were not included in the list, for the reason doubtless that these lands at that time did not appear on the records of the county in which they were situated in the name of appellant. It was also shown in appellant’s behalf that his agent had a talk with appellee, who was engineer of the levee board, and endeavored to obtain from him a description of the lands within the levee district.
The question is, should the chancery court, for these reasons, have refused to confirm the report of the commissioner showing a sale of the lands under the chancery court decree to the appellee?
The reason appellant did not pay the taxes was because' his agent failed to ascertain that he owned the particular lands in controversy, and that the secretary of the board, in sending him the list of his lands with the amount of the levee taxes due thereon, failed to include the lands in controversy in the list.
It is unfortunate that appellant, through oversight or lack of information on the part of his agents, was unable to pay the taxes on his land which he fully intended to pay, but such mistake is in no manner attributable to appellee. It is not pretended that appellee in any manner misled or perpetrated a fraud upon appellant that caused him to fail to pay the taxes for which the land in controversy was sold.
The fact that appellee was preparing a plat of the lands in the levee district, and promised to send one to the agent of the appellant, which he failed to do, if it be a fact, did not tend to show any fraud upon the part of appellee in having appellant’s lands condemned and sold for taxes. The proof showed that the lands in controversy did not appear upon the records of the county where they were situated in the name of appellant at the time they were assessed, condemned and sold for taxes. There was nothing in the facts of this record that would have justified the chancery court in refusing to approve and confirm the report of the commissioner who made the sale of the lands under the decree of the court. Appellee therefore acquired by his purchase at that sale vested rights. Robertson v. McClintock, 86 Ark. 255, and cases therein cited. These rights are created by statute, and a court of chancery can not annul them.
It is not pretended that there was any fraud or mistake on the part of the officers or of the appellee in connection with this sale. Therefore, the appellee was entitled to have the report of the sale to him confirmed.
In Banks v. Directors of St. Francis Levee District, 66 Ark. 490, we held that “where a judicial sale of land has been conducted fairly and in substantial compliance with the law and the orders of the court directing the same to be made, it is error to permit the original owner to redeem before confirmation.”
Appellant contends that the sale was void for uncertainty of description because the lands were described as lots 5 and 14, section 6, township 4, range 3, and were sold to appellee under that description. Where lands in a section are laid off and platted into lots and numbered, a description as therein designated is not indefinite and would not render a sale void for uncertainty.
Appellant contends that he was entitled to redeem under act 97 of the Special Acts of 1911, which was an act to establish the White River Levee District, in which the lands in controversy are located, one object of which was to add other territory. In section 7 of the act it is provided, among other things, “that any land owner shall have the right to redeem any and all lands sold at such sale within one year thereafter.’.’
There was no provision for redemption in the general law under which the levee district was created, and the special act, supra, which appellant contends gives him the right to redeem, was enacted March 15, 1911, and took effect and was in force from and after that date. The report of the sale of the commissioner was filed in the court below February 14, 1911, showing that the sale was had and the report thereon made to the court ordering it long before the passage of the act upon which appellant relies.
In Thompson v. Sherrill, 51 Ark. 453, we held that “the right to redeem lands from a tax sale depends upon the statute in force at the date of the sale.”
Judge Cooley says: “The statute in force at the time of the sale governs the right of redemption.” 2 Cooley on Taxation (3 ed.) p. 1030.
In 37 Cyc. p. 1389, it is stated; “Where the statute provides that the owner shall have a certain length of time after the sale in which to redeem, this period begins to run from the day of the sale, and not from the time the purchaser takes a deed.” See also cases cited in note.
Appellant contends for the first time in his reply brief that there was uncertainty of description, and that the separate tracts and lots were sold en masse, and that the sale was void for these reasons. But no such contention was made in the court below, nor was such question raised in the appellant’s original brief. There were no exceptions of this kind to the report of the sale. Therefore we can not consider these questions here for the first time.
It follows that the court did not err in approving and confirming the sale to appellee and in refusing to allow appellant to redeem.
The judgment is therefore affirmed. | [
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McCulloch, C. J.
Many years ago the city of Fort Smith granted a franchise to a foreign corporation called the Municipal Waterworks Company, to establish and operate waterworks in the city for the purpose of furnishing water to the inhabitants. The contract contained a provision that the city should have an option to purchase the plant at the expiration of a stipulated period. Near the exp ration of that period the city council decided to exercise the option and purchase the plant; but a dispute arose between the city and the water company concerning the price to be paid, and it became necessary, as it was thought, to employ special counsel to assist the city attorney in the negotiations for the purchase and the litigation which might follow. Litigation did arise, and appellant, in ass'ociation with the city attorney, acted as attorney for the city, both in the preliminary negotiations and in the litigation. He claims to have been regularly employed by an authorized committee of the city council, and that a verbal contract was entered into whereby he was to receive as compensation for his services the same fee which the water company should thereafter agree upon and pay to its attorneys representing it in the litigation. At the end of the litigation the water company and its attorneys agreed upon a fee of $25,000 for the latter’s services, and that sum was paid. Appellant claimed that sum as his fee in the matter, and the city refused to pay it. This action was instituted by appellant against the city to recover the amount claimed. He alleged in his complaint that he was employed by a committee of the city council duly authorized so to do; that the aforesaid basis for fixing the fee was agreed upon; that he performed the service as agreed; and that the city council, during the period of the negotiations and litigation with the water company, ratified the contract made with him by the committee. The city in its answer denied the employment of appellant; denied that the committee was authorized to employ him; and denied that the council ratified such employment or agreed in any way that appellent should be paid the same fee agreed on between the water company and its-attorneys. It admitted that appellant acted as counsel for the city in the litigation, but alleged that the amount of the fee charged was unreasonable.
It appears from the testimony adduced at the trial that when the city council decided to exercise the option and purchase the water plant, a resolution was adopted, at the request of the special committee having the matter in charge, authorizing said committee “to employ an attorney to assist them in matters connected with the water company.” The aye and nay vote on the adoption of the resolution was not taken and recorded. Subsequently, when the controversy with the water company arose concerning the matter of taking over the plant, a resolution was adopted by the city council, by an aye and nay vote duly recorded, providing that said special committee “be and it is hereby authorized, empowered and directed to contract with the said Municipal Water Works Company for the purchase of said plant, with full power, if the purchase price and terms of sale can not be agreed upon by said committee and said water company, to appoint arbiters as provided by ordinances and contracts now existing, and if said company declined to submit to arbitration the question involved, then to take such action in the courts or otherwise as may be necessary to purchase said plant, and to do any and everything incidental thereto as may be necessary to accomplish the purchase of and paying for said water works plant, and said committee are further authorized and empowered to employ, if in its judgment the interest of the city will be better protected and promoted, an attorney to assist the city attorney in the performance of the duties imposed by this resolution, including representing the city in all negotiations and con troversies which may arise in purchasing or attempting to purchase said plant, until same is fully and finally disposed of.” The testimony further tends to establish the fact that said committee entered into a verbal contract with appellant to represent the city, and agreed that his fee should be the same as that agreed upon by the water company and its attorneys for their services in the same matter. During the progress of the litigation another resolution was adopted by the city council reciting the employment of appellant as attorney for the city and appropriating the sum of a thousand dollars “to pay the necessary expenses to be incurred in said suit and in taking the testimony for and against the city in said proceedings.” Appellant and other witnesses testified that he was present when that resolution was adopted, and that, during the discussion upon its adoption, he stated to the members of the council that he would charge the same fee that the attorneys for the water company charged it for their services in the matter. The testimony tends to show that at other times during the progress of the litigation he informed the city council that he would charge the same fee that the water company and its attorneys might agree upon as to the latter’s fee. He wrote a letter to the mayor, which was read in open council meeting, and in which he stated that “there is no agreement between the city and myself as to the fee to be paid me, further than that I am to receive the same amount as the water company pays its counsel.”
Each party introduced testimony to ghow what was a reasonable amount of fee for appellant’s services. The witnesses varied in their opinions as to the amount — some putting it as low as $7,500, and some as high as $30,000.
Appellant requested the court to give instructions submitting to the jury the issues as to the alleged agreement to pay the same amount of fee paid by the water company to its attorneys; but the court refused to so instruct the jury, and on its own motion gave instructions which in effect allowed the jury to return a verdict in appellant’s favor only for an amount found under the evidence to .be a reasonable and customary charge for the services rendered. The jury returned a verdict in appellant’s favor for the sum of $17,500 and he appealed to this court. The city has not appealed.
Counsel on both sides have devoted much time in the argument to the effect to be given to the provision of the statute that “on the passage of every by-law or ordinance, resolution or order, to enter into a contract, by any municipal corporation, the yeas and nays shall be called and recorded; and to pass any by-law or ordinance, resolution or order, a concurrence of a majority of a whole number of members elected to the council shall be required.” Kirby’s Digest, § 5473. This court has held that provision to be mandatory. Cutler v. Russellville, 40 Ark. 105. But the view we take of the case renders it unnecessary for us to follow counsel through the argument as to the full effect of that statute on the issues presented. The city council, by an aye and nay vote duly recorded, adopted a resolution authorizing the committee to employ appellant; the committee employed him; he performed the service; and the city accepted it and received the benefits thereof. The trial court instructed the jury, without objection from the city’s counsel in this case, that appellant was entitled to a reasonable fee for his services. The only controversy is, whether appellant is entitled to recover the same fee charged by the attorneys for the water company. It is not contended that the city made a contract with appellant fixing the fee or prescribing the basis for fixing it except through the special committee pursuant to the resolution hereinbefore set forth, or by ratification. The contention of appellant- is that said resolution authorizing the committee to employ counsel included, by necessary implication, the authority to agree upon the amount of the fee to be charged, or to agree upon a basis for fixing the amount; and that, even if the committee exceeded its authority in that respect, the city, with full knowledge of the facts, ratified the contract made by the committee. The fallacy of the first contention lies in the assumption that the amount of the fee, or a basis for fixing the amount, was embraced in the alleged agreement. The effect of the agreement was, not to prescribe the amount of the fee or a basis for fixing it, but to make the amount of the fee depend upon another agreement thereafter to be made between the water company and its attorneys concerning the amount of their fee, and thus to delegate to the water company and its attorneys the power to fix the fee to be paid by the city. The authority conferred by the city council could not be delegated by the committee to another. Conceding that the resolution adopted by the council included, by implication, the power to agree upon the amount of fee, the committee did not agree with appellant upon the amount of fee. It merely left the fee dependent upon the amount of fee to be charged by the attorneys for the water company. Citation of precedents is hardly necessary to sustain the proposition that such a power can not be delegated by the defendant in the absence of special authority to do so. That principle has been often announced and reiterated in decisions of this court. In the case of Cheatham v. Phillips, 23 Ark. 80, Judge English gave it application to a public agent in the discharge of his duties.
Now, as to the alleged ratification by the city council. It is not shown that the amount of fee fixed by the water company and its attorneys was brought to the attention of. the members of the council. The undisputed fact is, that the fee was not agreed upon until after the end of the litigation, and the members of the council could not have known what it would be. Nor is it shown that they knew whether or not the value of appellant’s services would be the same as that of the other attorneys. In the absence of the information on that subject, the city council can not be deemed to have ratified the alleged agreement as to the method of fixing the amount of the fee. Before an individual, much less a public corporation, can be said to have ratified the unauthorized act of another, it must be by the doing of some act or the acceptance of some benefit with knowledge of the facts concerning the transaction. Martin v. Hickman, 64 Ark. 217; 2 Dillon’s Municipal Corporations (5 ed.) § 797. At most, the council can be held only to have ratified the agreement as to a reasonable fee for appellant’s services, and the jury, under instructions not objected to, have determined what the amount of a reasonable fee is, and have given appellant a verdict for that amount. In a well considered opinion by Judge Field, then Chief Justice of the Supreme Court of California, it was held that “a ratification is equivalent to a previous authority,” and that “where an authority to do any particular act on the pait of a corporation can only be conferred by ordinance, a ratification can only be by ordinance.” McCracken v. San Francisco, 16 Cal. 591.
If that doctrine be applied here, it would render invalid the alleged ratification by the city council except as to the obligation to pay appellant a reasonable fee for his services which the city had accepted.
It is contended that appellant would have been bound by the alleged agreement, even though the water company and its attorneys had fixed the amount at less than a reasonable fee, and that as the obligation was mutual the city was also bound. That does not necessarily follow. Appellant might, by his express promise, have legally bound himself not to charge more than the water company’s attorneys charged their client, and yet the city not be bound except for a reasonable fee, on the ground that no one was authorized to enter into the contract.
We are of the opinion that, according to the undisputed facts in the case, the verdict of the jury fixing the amount of a reasonable fee, is decisive of the whole case, and that the judgment should be affirmed. It is so ordered. | [
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McCulloch, C. J.
The defendant, Chester Simms, is accused of the crime of murder in the first degree in killing one Kirk Morford, alleged to have been committed on December 30, 1911, at the town of DeValls Bluff, in Prairie County. He was convicted of the crime charged against him in the indictment, and sentenced to be hanged.
The dismembered body of Morford was found on the railroad track near DeValls Bluff on Sunday morning, December 31, 1911, about fifty or seventy-five yards distant from the house of a woman named Rosalind Mann. Though the body was greatly mutilated, very little blood had, according to the testimony adduced by the State, been discharged, and the evidence tends to establish the fact that death occurred before the body was placed on the railroad track. There were indications of a fatal knife wound in the body. A search of the house of Rosalind Mann developed the fact that a large area of the floor in one of the rooms had been recently scrubbed, but still disclosed human blood spots, as demonstrated by chemical analysis. A woman named Alice Walls testified that she witnessed the killing of Morford by the defendant and one Harvey Woods. She testified that she came to DeValls Bluff about a week before the killing, and was living in illicit relation with the defendant at the house of Rosalind Mann, but that she accepted the attentions of Morford and allowed him to spend the night with her on Friday night before the killing. She testified that the next day (Saturday) she had a fight with defendant, which he provoked on account of her refusal tq give him the money she had received from Morford. She staffed that she met Morford again Saturday night, and allowed him to accompany her to her room at the house of Rosalind Mann, both of them being to some extent intoxicated, Morford being intoxicated to the extent that he was unable to undress himself without her help; that after they had been in bed some time, and she had been asleep, she was awakened by a cry, and when she-roused up found Morford lying on the floor and defendant and Woods on top of his body; that she' heard the dying groans of Morford, and saw a large open knife in the hands of Woods. Woods secreted a knife at the house of Rosalind Mann, and there is testimony that he purchased the knife that morning, the defendant being with him at the time.
The evidence was sufficient to warrant the jury in finding that Morford was murdered, and that the crime was committed by the defendant and Woods.
The only ground for reversal urged by defendant’s counsel is that the court erred in refusing to give an instruction telling the jury that the defendant could not 'be convicted on the uncorroborated testimony of the witness Alice Walls. The effect of this instruction was to declare as an undisputed fact that Alice Walls was an accomplice; and if there is any dispute in the testimony on that point, it necessarily follows that the instruction was not correct, and that the court properly refused it. The witness admitted that she had made conflicting statements, and had endeavored to shield the defendant, but stated that she did so because she had been threatened with violence and was afraid of the defendant and Woods. If she withheld information out of fear for her own safety, and not merely from a desire to shield the guilty parties, she was not an accomplice. Melton v. State, 43 Ark. 367; Carroll v. State, 45 Ark. 539; McFalls v. State, 66 Ark. 16.
The defendant was entitled to an instruction submitting the question to the jury whether or not the witness was an accomplice; and if such an instruction had been asked for, it would have been the duty of the court to give it. But the instruction asked for was clearly erroneous, because it assumed as an undisputed fact that the witness was an accomplice.
We are unable to find any prejudicial error in the record, and as the judgment is amply sustained by the testimony it must be affirmed. It is so ordered. | [
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Frauenthal, J.
This is an action instituted in 1909 b the guardian of Ella Hare, a person alleged to be of unsoun^ mind, against the Fort Smith & Western Railroad Compan to recover damages for the appropriation by it for railroad purposes of certain land alleged to be owned by her. The defendant denied that Ella Hare owned said land, and pleaded in bar of any right she might have a judgment rendered in a suit instituted by it against said Ella Hare and others in which said land was duly condemned for its railroad purposes. The case was tried by the court sitting as a jury upon an agreed statement of facts. From this it appears that in 1901 the Fort Smith & Western Railroad Company instituted an action in the Sebastian Circuit Court for the condemnation of the land involved in the present suit. A number of persons were made parties to that action, amongst whom were said Ella Hare and Matt Grey, administrator of the estate of Mary A. Hare, the mother of said Ella Hare. After the filing of the complaint in that action, an order was made by said court directing the railroad company to make a deposit of a stated sum, in pursuance of the statute in such cases provided. In that order it is recited that, “it appearing to the court that due and sufficient notice has been given defendants herein, and that said motion is now properly presented, * * * and the court, being fully advised, doth sustain said motion and doth order that the plaintiff deposit, * * * subject to the order of the court, the sum of $2,000 for the purpose of making compensation to the defendants when the amount due them for the property herein sought to be appropriated shall have been assessed according to law.” In that suit Matt Grey as such administrator alone filed an answer. Thereupon the cause came on for trial before a jury to assess the damages sustained by the defendants by reason of the appropriation of said land by the railroad company, who returned a verdict in the sum of $8,000 damages. A judgment was thereupon rendered condemning said land to the use of said railroad company and adjudging a recovery against it in favor of the defendants for said damages. In that judgment it is recited “that the defendants (naming them and the said Ella Hare specifically) have each and all been regularly and legally served with summons herein the due and proper length of time before the beginning of this term.” None of the papers in said case could be found except the answer of said Matt Grey as administrator, and it does not appear in any order of the court in that action that said Ella Hare was laboring under any legal disability, or that any guardian was appointed or appeared for her or filed an answer for her in that proceeding.
Upon the trial of the present case the plaintiff offered to prove (and in said agreed statement of facts it is conceded) that Ella Hare was at the time of the institution of said condemnation suit, and has been continuously ever since that time, a person of unsound mind. The court refused to permit the introduction of any evidence other than the record entries made in said condemnation suit. It held that parol testimony was inadmissible to impeach the judgment rendered in said condemnation suit, and that by said judgment the plaintiff herein was precluded from any recovery in the present action.
It is urged by counsel for plaintiff that the court erred in the ruling made by it, because by the offered testimony it would be shown that Ella Hare was at the time of the institution of said condemnation suit and the rendition of said judgment laboring under the disability of insanity, and the record in said case does not disclose that service- of process therein was had both upon her and her guardian, nor that an answer was filed in that suit by any guardian for her; and for this reason the judgment is not valid. It will thus be seen that the object of the introduction of said testimony was to impeach said condemnation judgment in a collateral proceeding. The question, therefore, to be determined is whether said judgment is void or only voidable, in event the said Ella Hare was and has been continuously ever since the institution of said suit a person of unsound mind; for it is only when a judgment is absolutely void that it can be impeached collaterally.
When a judgment is not a mere nullity, but only contains some defect which may become fatal and render it invalid, then it is only voidable, and, until it is actually annulled, it has all the force and effect of a perfectly valid judgment. Until by a proper proceeding such judgment is reversed or vacated, it will be effective as an estoppel or as a source of title. A judgment rendered by a court without jurisdiction is void; and to have such jurisdiction the court must have jurisdiction both over the subject-matter of the suit and the parties thereto.
It is conceded that the court rendering said condemnation judgment had jurisdiction over the subject-matter of said suit, and it is only contended that it did not have jurisdiction over the person of Ella Hare for the reason that proper notice had not been given to her thereof. A judgment pronounced against one without notice is void; and section 4424 of Kirby’s Digest is a statutory declaration of that principle. But in all cases seeking to impeach a judgment for want of notice the question involved is, what is the character of the evidence which is necessary to show such notice or the want thereof? This question was fully and well considered by this court in the case of Boyd v. Roane, 49 Ark. 397. It was there held that, in the case of a domestic judgment collaterally attacked, “the question of notice or no notice must be tried by the the court upon an inspection of the record only.” This ruling has been adhered to so often that the doctrine thus laid down can be considered settled in this State. The judgment of a domestic court having general and superior jurisdiction is presumed regular and valid, and founded upon jurisdiction properly acquired. Our statute provides that when it appears from the recital in the record of the court that notice has been given it shall be evidence of such fact (Kirby’s Digest, § 4425); and in the case of Love v. Kauffman, 72 Ark. 265, it was held that when a judgment recited that the defendants “were duly served with summons herein as required by law,” it must be taken as true unless there is something in the record' to contradict it. Borden v. State, 11 Ark. 519; Marx v. Mathews, 50 Ark. 338; McConnell v. Day, 61 Ark. 464; White v. Smith, 63 Ark. 513; Porter v. Dooley, 66 Ark. 81; Clay v. Bilby, 72 Ark. 101; Ingram v. Sherwood, 75 Ark. 176.
It follows that, in a case seeking to impeach collaterally a domestic judgment, the question as to whether or not process has been served in the manner prescribed by law upon the parties defendant therein is tried alone by an inspection of the record, and the verity of such record can not be assailed by parol evidence. The judgment in the condemnation suit which plaintiff seeks in this case to impeach recites that process was duly and regularly served on said Ella Hare, who was made a party defendant in that suit. This recital is conclusive evidence upon collateral attack of this judgment that Ella Hare, whether sui juris or laboring under disability, was served with process in the manner prescribed by law.
It is urged that the circuit court in the condemnation suit was proceeding in the exercise of a special power wholly conferred upon it by statute, and that its jurisdiction in such special proceeding will not be presumed upon collateral attack. But the powers conferred by our statute upon the circuit court to condemn property for public use are not of a summary nature, but are exercised judicially. The action taken in such matter by the circuit court is not ministerial, but belongs to it as a court of general jurisdiction, and is exercised in the same manner as in any civil action in which powers are exercised by it judicially and according to the course of the common law.
In the case of State v. Rowe, 69 Ark, 642, this court held that a proceeding by a railroad company to condemn land for its right-of-way was a civil action, and was a proceeding brought in a court of justice for the enforcement of a private right, like any other cause of action confided to the general jurisdiction of the circuit court. The rules which govern the exercise of jurisdiction conferred upon the circuit court in such condemnation action as to persons, process and procedure are the same as those applicable to the exercise of its powers over matters generally confided to its jurisdiction. It follows that the same presumption of regularity and verity will be given to a judgment rendered in a condemnation suit as in those actions which fall within the general jurisdiction of circuit courts.
It is urged that said judgment could be collaterally attacked'because the record therein does not show that an answer was filed or a defense made by a guardian for the insane person, Ella Hare, but on the contrary that it affirmatively shows that an answer was only filed therein by the defendant Matt Grey, administrator. It is provided by our statutes that an action by an insane person must be brought by his guardian or next friend, and the defense of such person must be by his regular guardian or a guardian appointed by the court, and no judg ment can be rendered against him until after a defense by a guardian. Kirby’s Digest, § § 6026, 6029.
In the case of Peters v. Townsend, 93 Ark. 103, it was held that these statutory provisions apply whether such persons was judicially declared to be of unsound mind or not. A judgment, however, which is rendered without the appointment of or a defense by a guardian for such insane person is not void. It would be erroneous to render a judgment against an insane person without the appointment of, or a defense made by, his guardian, and a judgment so rendered would be liable to reversal upon appeal or to vacation upon a proper action being instituted to that end. But such judgment would be voidable only. The principle is thus stated in 1 Black on Judgments, section 193: “If a judgment is rendered by a court having jurisdiction of the parties and subject, it is held by a great preponderance of authorities that it will not be void because the defendant was an infant and no guardian ad litem was appointed, although it will be irregular and liable to a reversal upon a proper proceeding for that purpose. The theory is that the appointment of a guardian is not a prerequisite to the jurisdiction of the court. Omission to appoint a guardian does not impair the authority of the court to proceed in the case, but at most is an irregularity in the exercise of its lawful jurisdiction which on settled principles of law may impregnate its judgment with error, but can not render it absolutely null.”
The effect of the omission to appoint a guardian ad litem for one laboring under legal disability, therefore, will not be to vitiate the judgment on collateral attack, but to make it voidable only by appeal, or other direct proceeding.
It follows that the condemnation judgment could not be impeached collaterally for the reasons assigned by counsel for plaintiff, and that the parol testimony offered was inadmissible for that purpose.
The character of said judgment has really been determined by this court in the case of Hare v. Fort Smith & Western Rd. Co., 104 Ark. 187. In that case the present plaintiff sought to vacate this judgment in pursuance of subdivision 5 of section 4431 of Kirby’s Digest. In that case we said: “It is an error to proceed with the trial of a condemnation suit when a person of unsound mind is a party thereto and is not represented by statutory guardian or a guardian ad litem, but such proceeding and the judgment therein rendered is not absolutely void; it is only voidable, and may be vacated, at the instance of such party laboring under disability,” by a proceeding in pursuance of said statute.
The court therefore committed no error in the ruling which it made or in the judgment which it rendered. Said judgment is accordingly affirmed. | [
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Wood, J.
The appellee sued appellant in replevin to recover the possession of a horse. His affidavit set up the allegation of ownership and the usual statutory requirements. Appellant denied the allegations of the plaintiff, and set up that he had sold the horse obtained from the appellee, and that he was not in the possession thereof at the time the suit was brought.
The contention of the appellee was that he had traded horses with the appellant on condition that if the mare obtained from appellant in exchange for the horse of appellee did not possess certain qualities which appellant guaranteed her to possess, or if appellee was not satisfied with her, he should be permitted to rue the trade.
Appellee testified that the appellant, in making the trade, said to the appellee concerning the mare: "If you are not satisfied with her, and she don’t do what I say, you come back, and I will give you the horse back.” The testimony of appellee tended to prove that the mare was unsatisfactory to him, and that he attempted to have appellant take her back, but that appellant refused.
On the other hand, it was contended by appellant, and the evidence in his behalf tended to prove, that he traded his mare for appellee’s horse, and that the trade was in no manner a conditional one.
During the progress of the trial the court permitted the appellant to introduce an affidavit of the appellee, made before the justice of the peace before whom the suit was instituted, in which the appellee charged that the appellant “did obtain of affiant the possession of one horse of the value of $150 by false pretenses.” When appellant offered the affidavit, the court remarked: ‘You can introduce the affidavit if you want to, but it will not have anything to do with the contract between these parties as to the horse trade.” The appellant did not except to this remark of the court.
The appellant offered the following prayer for an instruction, which the court refused, towit:
“If you find from the testimony that after the consummation of the trade between the plaintiff and defendant, the plaintiff executed an affidavit in which he charged the defendant with having'obtained a horse from the plaintiff under false pretenses, that this is a circumstance which the jury may take into consideration in determining the question as to whether or not the trade for the horse was conditional or unconditional; and if you believe from the testimony, both direct and circumstantial, that, at the time the trade was made, the only condition existing between the parties was included in the contract of sale, and that in the event the mare should not prove to be as represented, the defendant would make compensation to the plaintiff, then the plaintiff is not entitled to recover in this action, and you will find for the defendant.”
The appellant contends that the refusal to give this prayer was error. In Railway Co. v. Lyman, 57 Ark. 512, we held that it was not error to refuse an instruction which singles out a particular class of testimony in the case and directed the jury to consider it in connection with the other evidence. See also Winter v. Bandel, 30 Ark. 362; Newton v. State, 37 Ark. 333; Carpenter v. State, 62 Ark. 287; Western Coal & M. Co. v. Jones, 75 Ark. 76; Quertermous v. State, 95 Ark. 48.
Appellant did not except to the remark of the court stating that the affidavit did not have anything to do with the contract between the parties, and therefore he can not complain of this language here. The affidavit was in evidence, and therefore must have been considered by the jury in connection with the other evidence; but the court did not err in refusing an instruction stating and emphasizing for what purpose the affidavit should be considered. The affidavit was not relevant evidence because the appellee did not deny that he made it, and there was nothing in the affidavit that tended to controvert the contention that the trade between appellant and appellee was a conditional one, as contended by the appellee.
The appellant presented the following prayer for instruction, which the court refused, towit: “You are instructed that, in determining the question as to whether or not the mare in fact came up to the representations of Mr. Jenkins, they must consider • only the question as to whether she possessed certain desirable qualities as then mentioned, or whether she failed to possess certain undesirable qualities as then mentioned, and any captious objection would not be pertinent for them to consider.”
In its oral charge the court instructed the jury in part as follows: “Mr. Jenkins contends that he guaranteed that this mare had certain qualities, was reliable, and that upon this guaranty he would have been responsible in damages, and, if that was the contract, this action is improperly brought, and should have been brought for damages, and not for the possession of the property; but if the contract was that it was only a conditional sale that Mr. Quick was to complete on trying the horse to see if it had certain qualities, then that would have been a conditional sale; if the horse had not come up to requirements or representations, then Mr. Quick could have demanded the return of his horse.” And, while the court was delivering his oral charge, one of the attorneys for appellant interposed with the following language: “There is some testimony whether the mare in fact came up to the recommendations of Mr. Jenkins, and they must only consider as to whether or not the mare in fact possessed certain desirable qualities, as those mentioned, or whether she failed to possess other undesirable qualities than mentioned, and any captious objection would not be pertinent for them to consider.” Whereupon the court responded, “Yes,” thereby virtually approving the above language of the attorney as a part of the oral charge.
Conceding that the prayer for instruction No. 2 was correct, it was fully covered by the instructions which the court gave, and to which appellant saved no exceptions. It is not error to refuse to grant prayers for instructions where such prayers are fully covered by other instructions. Chicago Mill & Lumber Co. v. Ross, 99 Ark. 597; Williams v. State, 100 Ark. 218; St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437.
In the closing argument counsel for appellee used the following language: “I want to say that any man who would commit the crime which I believe Harold Jenkins has committed against Uncle Tom Quick, as shown- by the testimony in this cause, ought to be in the penitentiary.” Upon objection being made, the court sustained the objection, and directed the jury not to consider the statement. The attorney for the appellee thereupon apologized to the jury and withdrew the statement. The remarks, although only the expression of the opinion of counsel, were highly improper, and tended to reflect upon the integrity of one of the parties, who was also an important witness in the case. But the conduct of the court in sustaining the objection to the language, and in directing the jury not to consider it, and the conduct of offending counsel in apologizing and withdrawing the improper statement, was sufficient to remove any prejudice that might have otherwise been created in the minds of the jury.
Finding no reversible error, the judgment is affirmed. | [
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Smith, J.
Appellant was the defendant in the court below in a suit for divorce and alimony. The complaint was filed on January 22, 1912, and there was a prayer for divorce “and for all and complete relief.” A decree was entered March 20, 1912, which provided that in lieu of dower and alimony, the plaintiff, Hattie B. Apple, shall during her life, or until her marriage, if she should remarry, have possession of their residence in Little Rock, and of certain personal property, and that defendant should pay thirty dollars each month for the support of plaintiff and their children, and the decree further provided: “The foregoing decree' as to property rights is made by consent and agreement of the parties. The court doth retain control of this cause fqr such further orders and proceedings as may be necessary to ascertain definitely and enforce the rights of the parties hereto in the property and the childern herein referred to.” After the close of the term at which this decree was rendered, the plaintiff on June 6, 1912, filed a petition in this same cause in which she alleged that at the time the agreement was entered into between plaintiff and defendant in reference to the disposition of the property involved in this action, the defendant agreed that plaintiff should have and keep possession of a carriage and a mare which had been used as the family driving horse, and that this agreement was a part of the arrangement by which the property was divided and she given the property to which she was entitled, under section 2684 of Kirby’s Digest, upon being awarded a decree of divorce from her husband.
There is no intimation here that there was any collusion between the parties in the suit for divorce, and no objection was made by the defendant to the form of action which plaintiff brought to recover the possession of the carriage and mare. The answer merely said: “That he denies that plaintiff is entitled to the horse and surrey, states that the same is now his own individual property, and denies that he ever made any agreement with the plaintiff by which she should be given such property.” The cause was heard upon the depositions of the plaintiff and the defendant, and the evidence presented a very close question of fact, and we can not say the findings of the chancellor are contrary to the clear preponderance of the evidence. The order of the chancellor recites that, after hearing the evidence, he “doth find that the plaintiff, Hattie B. Apple, is entitled to the horse and carriage involved in this controversy.”
Appellant insists here that the whole foundation of plaintiff’s cause of action was a disputed agreement in relation to a division or disposition of property in connection with a proceeding for divorce; that a court of equity will not carry into effect the private arrangements of parties to a divorce case in regard to their property matters, except by the agreement of the parties, and that, as there was no consideration for the agreement made, she could not have maintained replevin for the property; and that, if she could not maintain replevin for the property, she could not secure it-by the order of the chancery court.
But none of these questions were raised below, and will not be considered here. Blake v. Scott, 92 Ark. 46; Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81. Had fraud or duress been practiced upon the plaintiff in making the agreement for the division of the property, the court could have reconsidered its order in regard to the property, even though a proceeding for that purpose was not instituted until a subsequent term of court. So that the court might have had jurisdiction of the subject-matter of the controversy at the subsequent term, just as it had at the term at which the decree for divorce was rendered. The parties here litigated the property rights without raising any question in the court below as to the form of action, and we do .not feel called upon' to decide whether petitions in regard to’the division of property can ordinarily be heard and granted by a chancellor under the circumstances here recited. Talbot v. Wilkins, 31 Ark. 422; Moss v. Adams, 32 Ark. 562; King v. Payan, 18 Ark. 583; Hicks v. Hogan, 36 Ark. 303; Kampman v. Kampman, 98 Ark. 328; Organ v. Memphis & L. R. Rd. Co., 51 Ark. 235; Mooney v. Brinkley, 17 Ark. 340; Sexton v. Pike, 13 Ark. 193; Daniels v. Street, 15 Ark. 307; Goodrum v. Merchants & Planters Bank, 102 Ark. 326; Gerstle v. Vandergriff, 72 Ark. 261; Burke v. St. Louis, I. M. & S. Ry. Co., 72 Ark. 256; Love v. Bryson, 57 Ark. 589.
The plaintiff testified that she and her husband had agreed that she should have the,horse and the carriage; that the carriage was already in her possession, and the defendant gave her the horse, but told her not to take possession of it until a Mr. Pye, to whom it had been loaned, was through with it.
The plaintiff further testified that “when we came up here in the court room, when the decree for divorce was given, I asked in the presence of the judge and the lawyers, how about the horse? and Mr. Apple said: “That is all right; you can have the horse and carriage.” The chancellor may have treated the property here in controversy as disposed of under this arrangement prior to his decree, and that it was therefore unnecessary to make any order in reference to it.
The appellant does not deny that he agreed that appellee might have the use of the horse and carriage, and that she had possession of them pursuant to this agreement. But he says this agreement was a conditional one, and the conditions were not performed and that he therefore took the property back into his own possession. The existence of these conditions was denied by appellee; besides they were improper.
Upon the while case, we think the findings of the chancellor are correct, and the decree will be affirmed. | [
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Wood, J.,
(after stating the facts). The facts stated do not show any privity of contract between the appellant and the appellee. There, is nothing in the facts to warrant the conclusion that appellee authorized his agent, Black, to employ the appellant in connection with the business or procure a purchaser for the land about which the contract was entered into. There is nothing to show that the. appellee and Black, when they entered into the contract, contemplated that it might be necessary for Black to employ agents in order to procure a purchaser. Certainly, nothing to show that if Black did employ such agents appellee would be liable for their compensation.
The uncontroverted facts, as stated, did not take the case out of the operation of the general rule that an agent employed for a special purpose can not delegate his authority to some one else. Bromley v. Aday, 70 Ark. 354; North American Trust Co. v. Chappell, 70 Ark. 508.
We find nothing in the facts stated to bring appellant’s case within any of the exceptions to the general rule. There are cases where, from the circumstances surrounding the principal and agent at the time of entering into the contract of agency, authority may be implied for the agent to employ subordinates who are to represent the principal and for whose compensation the principal would be liable. For instance, where a nonresident owner of land employs an agent who is also a nonresident to procure a purchaser for the land or to sell the same for him, it might be implied from the circumstances that the agent was authorized by the principal to employ a subagent where the land is situated in order to enable him to procure a purchaser and to effect a sale. Such was the case of Eastland v. Maney, 81 S. W. 574, and Hurt v. Jones, 79 S. W. 486. In the former case the owners of the land and the agents enployed to sell the same were residents of California, and the land was situated in Texas. The agents employed a subagent living in Texas to procure a purchaser. The court, in that case, after recognizing the general doctrine that an agent, in the absence of any authority, expressed or implied, has no power to employ a subagent, said: “There are, however, exceptions and modifications of the rule, growing out of the necessities and-exigencies of a case, or based upon the custom or usage of trade in like cases. There are instances where the employment of subagents is essentially necessary in order to execute the agency, and the authority of the agent will be construed to include the necessary and usual means to properly execute it. * * * It is a fair presumption, growing out of the exigencies of the transaction, that it was contemplated that a purchaser should be obtained through a subagent.”
We recognized the principle in Arkadelphia Lumber Co. v. Thornton, 83 Ark. 403. In that case the owners of the land were residents of Texas, and they authorized an agent, who was also a resident of Texas, to sell the same. The land was situated in Arkansas. The agent authorized to sell employed a subagent to assist him in finding a purchaser. In determining whether the principal was bound by the acts of the subagent with reference to finding a purchaser and assisting in the consummation of the sale we said: “The land being situated in Arkansas and Head, the agent authorized to sell same, being in Texas, it may be fairly presumed that the owners in executing the power of attorney contemplated that W. B. Head would employ a subagent to find a purchaser, and to perform the other merely incidental and ministerial acts necessary to consummate the sale of the land if made to a purchaser in this State.” And, further, “Pledger' (the subagent) was not vested with any authority or discretion of his own, but only acted as the exponent of Head to do the things which, on account of the exigencies of the situation, Head could not do in person.” That case, however, was not a suit by the subagent against the principal to recover compensation for his services.
There is nothing in the facts stated in the present case to bring it within the doctrine of the above cases. Here the owner of the land lived in Indiana, and employed Black, who lived in an adjoining county to where the lands were situated, as his agent, and there are no exigencies in the case showing that the parties to the contract contemplated that it would be necessary for Black to employ the appellant or any one else as subagent, Appellant lived at Hazen, Prairie County, and was further away from the land than Black. Certainly, there is nothing to indicate that, if Black did employ subordinates to assist him in procuring a purchaser, they should look to the appellee for their compensation.
In J. B. Watkins Land Mortgage Co. v. Thetford, 96 S. W. 72, it is held that (quoting syllabus): “Where a sale of real estate is made by agents with the assistance of a broker under an agreement to divide their commissions with him, such broker is not entitled to recover a commission for the sale from the owners of the land.” See also Smith v. Jarvis, 105 S. W. 1168.
In our opinion the facts stated show that Black had no authority, either expressed or implied, to employ appellant to act as the agent of appellee so as to render appellee liable for his services. Under the facts of this record there is no privity of contract except between him and Black.
The facts stated in the record do not show that appellant at any time throughout the transaction claimed to be the agent of the appellee in procuring a purchaser for the land. On the contrary, the facts all show that he was only claiming to represent Black. He looked to Black for directions. He had no correspondence with St. John, and never saw him before the transaction was consummated. He reported all his actions to Black, and Black reported them to appellee. In none of the transactions of the appellant with reference to procuring a purchaser do we find him professing or assuming to have been employed by the appellee. It nowhere appears that appellee recognized the appellant as his agent, nor that appellee knew that appellant claimed to be his agent. Under the facts stated, it may be said that appellee knew that his agent Black had the appellant employed, and that appellant performed services in procuring a purchaser for the land. But it nowhere appears that appellee knew that the appellant expected the appellee to pay for those services. The interurban company, whom the appellant interested, and who, according to his statement, procured the purchaser, reported its acts to the appellant, and the appellant in turn reported to Black, and Black in turn reported to the appellee.
These facts fall far short of showing that appellant was looking to appellee for compensation for his services. On the contrary, they do show that he recognized that he was the agent of Black, and not the agent of appellee.
When appellee made the sale under these circumstances, he did not, in so doing, recognize any relation of agency existing between himself and the appellant. At most, his conduct could only be taken as a recognition of the relation of the agency between Black and appellant.
In Benham v. Ferris, 124 N. W. 538, the court held: “Where an owner employed a broker to procure a purchaser for a commission in excess of the specified sum received for the property and the broker without authority, employed a third person and brought about a sale for more than the specified sum, and the owner accepted from the broker the specified sum, and conveyed the land without knowing that the third person had claimed to act as his agent, the owner was not liable to the third person for commissions.”
In 1 Clark & Skyles on Agency, 340, it is said: “The doctrine of ratification properly applies to cases where one has assumed to act as agent for another, and then a subsequent ratification is equivalent to original authority.”
The judgment is correct, and it is therefore affirmed. | [
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McCulloch, C. J.
The grand jury of Pulaski County returned an indictment against the defendant, Clifton Monk, and one Davis, containing two counts, charging, respectively, the crimes of burglary and grand larceny. The charge is that they burglariously entered the dwelling house in the city of Little Rock of one E. G. Marlin with the intent to steal the latter’s property, and that they did steal a watch and a fob of the value of $25, the property of E. G. Marlin. The defendant was tried separately, and the jury convicted him of burglary under the first count and of petty larceny under the second count.
The proof tended to show that Davis entered the house of Marlin in the night time, and that while in the house he stole a watch and fob; that Davis and the defendant were acting together in the commission of the burglary, and that defendant stood watch at the gate while Davis entered the house. The proof also tended to show that Davis gave the watch and fob to defendant.
The evidence is sufficient, we think, to sustain the finding of the jury. The proof adduced by the State tended to establish the value of the watch and fob in excess of the sum of $10, but the jury gave defendant the benefit of all doubts on that point and convicted him of petit larceny. The circumstances, however, warranted the inference that the house was entered by Davis with intent to commit grand larceny, and therefore warranted the conviction of burglary, even though it turned out that the property he took was of less than $10 in value. Harvick v. State, 49 Ark. 514.
It is insisted, however, that, according to the undisputed evidence, the watch and fob were the property of Marlin’s wife, and that there was a variance between the allegations and the proof on that point. Mrs. Marlin testified that her husband purchased the watch and fob and gave them to her; that she gave them to him for safe-keeping, and that he had ■ not returned them to her, but that when the articles were stolen they were under the pillow of the bed occupied by them both. Marlin testified that the watch and fob belonged to his wife, but that she had turned them over to him for safekeeping, and that he had not returned them to her at the time the larceny was committed. We are of the opinion that the proof justified the finding that the property was in the exclusive possession of Marlin, and this was sufficient for the ownership to be laid in him.
There is another question not raised by counsel which has, however, given us some concern, and that is whether the defendant could be, under this indictment, convicted of petit larceny. The statute provides that burglary and grand larceny may be charged in one indictment. Kirby’s Digest, § 2231. It does not provide that petit larceny may be joined in an indictment for burglary, and it is worthy of notice that in other subdivisions of the same section, providing for the joining of larceny with other offenses, it is not restricted to grand larceny but to the crime of larceny generally. Prior to the year 1901 there was no authority for joining burglary and larceny in the same indictment, and this court held that they could not be joined. Crook v. State, 59 Ark. 326. But the General Assembly of that year amended the statute so as to allow burglary and grand larceny to be charged in the same indictment. From an early day it has been held that, “upon an indictment for a felony, the accused may be convicted of a misdemeanor, where both offenses belong to the same generic class, where the commission of the higher may involve the commission of the lower offense, and where the indictment for the higher offense contains all the substantive allegations necessary to let in proof of the misdemeanor.” Cameron v. State, 13 Ark. 712. It seems clear that, under the language of the statute, the charge of petit larceny can not be embraced in a separate count of an indictment for burglary, as the statute plainly provides only that the crime of grand larceny may be embraced therein. But there is no reason to believe that the Legislature meant to change the rule announced in the Cameron case, supra, so long adhered to, so as to prevent a conviction for petit larceny under a count for grand larceny. contained in an indictment charging burglary also. The lawmakers evidently meant to provide for the joining of the two offenses in one indictment, so that, according to the rule already established, there might be a conviction of any lower offense embraced in the charge named.
The defendant denied that he was with Davis that night or that he participated in the burglary, and undertook to establish an alibi. He stated that he slept with one Burt that night in a room in a certain office building. The State was permitted to introduce in evidence, over defendant’s objection, a letter purporting to have been written by him to Burt in which he requested the latter to testify that he (the defendant) slept with Burt throughout the night. The letter has a clear tendency to establish an attempt to induce Burt to swear falsely, and constituted a strong circumstance tending to show such conduct on the part of the defendant as indicates guilt of the crime charged against him. His name was signed to the letter, but he denied that he wrote it, or that it was in his handwriting, and the State made no effort to identify the handwriting as his. The letter was taken by the officers from a discharged prisoner who had been occupying the jail with the defendant, and it was in a sealed envelope addressed in defendant’s handwriting. He admitted that he addressed the envelope, but testified that when it left his hands it contained another letter which he gave to his fellow-prisoner to mail for him. The court allowed the letter to be read to the jury with instructions to the effect that they should not consider it unless they found that it. was written, or authorized to be written, by the defendant. It is true that the authenticity of the letter was not traced directly to the defendant himself, but it was sealed up in an envelope which was addressed by him, and the circumstances, we think, warranted the submission of the question to the jury whether or not he had written the letter or authorized it to be written.
It is argued that the case should be reversed because the court refused to give the following instruction at defendant’s request:
“The court instructs the jury that the reputation of the defendant shall not be considered by you for any purpose except as to his credibility as a witness. You can not convict the defendant of the crime of grand larceny on proof that he is or has been guilty of some other offense.”
The State did not introduce any testimony directly attacking the reputation of the defendant; therefore, the instruction was not called for, It is true that it was incidentally developed in the testimony that defendant and his brother and Marlin, the prosecuting witness, had all served together in the penitentiary; but this testimony came out unsought and merely as an incident to the answer of one of the witnesses. In fact, the defendant himself testified that he had been in the penitentiary with Marlin in order to establish the fact that he and Marlin had engaged in some kind of a difficulty while in prison together, and to show that Marlin was prejudiced against him and was testifying falsely in the case. We do not think that the circumstances under which the fact of defendant having been in the penitentiary was drawn out made it necessary to admonish the jury not to consider it in determining defendant’s guilt or innocence, and he was not prejudiced by the court’s refusal to give the instruction on that subject. In fact, the instruction which he asked was not directed to that particular fact, but dealt with the matter of the defendant’s reputation, and therfe was no evidence adduced on that point at all.
Judgment affirmed. | [
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Hart, J.,
(after stating the facts). The ordinance in regard to the impounding of animals in the city of Fort Smith provides that it shall be the duty of the chief of police to sell them under the orders of the police court. The testimony in this case shows that the sale was conducted by the day captain of police, and that the chief of police was not present at the sale, and, for aught that appears from the record, the chief of police did not know that the sale was to take place or that it did take place. The chief of police being the person designated to conduct the sale, the sale could be made only by him, or at least must be made under his immediate direction and supervision; that is to say, if he were present, he might employ an auctioneer or other person to cry the sale. It follows that there is no testimony tending to show that the defendant Johnston converted the horses to his own use.
It is contended by the defendants that the court erred in instructing the jury that the burden of proof was upon them to show that the ordinance in regard to the impounding of animals had been strictly complied with to justify an action brought against them by the owner of the horses, but their contention in this respect has been determined against them by the principles announced in the case of the city of Fort Smith, v. Dodson, 51 Ark. 447.
It is finally insisted by the defendants that the court erred in giving the following instruction:
“If the defendants, or either of them, purposely or knowingly misled plaintiff as to the horses being in the pound, such defendant so purposely or knowingly misleading him would be liable, notwithstanding .the ordinances were complied with in the impounding and sale of the horses.”
We agree with the defendants in this contention. As we have already seen, there is no testimony in the record upon which to base a verdict against the defendant Johnston; In regard to the defendant Williams, it may be said that there is no testimony tending to show that he made any statement whatever to the plaintiff in regard to the horses prior to the sale. What he said to the plaintiff was said after the sale had been made and after Williams had disposed of the horses. Hence there was no testimony in the record upon which to .predicate such an instruction against him. The necessary effect of the instruction was to confuse and mislead the jury, and the instruction is therefore prejudicial.
For the errors indicated, the judgment must be reversed, and the cause remanded for a new trial. | [
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Hart, J.
Appellee brought this suit against appellant in the circuit court to recover the amount of a beneficiary certificate issued January 6, 1899, to her husband, Nicholas Dreher, deceased. Appellant filed an answer in which it stated that it had issued the certificate upon an agreement with Nicholas Dreher that the same was issued to him subject to the laws of the order then in force or which might thereafter be adopted. The answer further states that Nicholas Dreher failed and neglected to pay his dues and assessments for the month of October, 1905, and refused to pay any dues and assessments from and after that time; that he thereby forfeited all rights of a beneficial member, and that he was never reinstated at any subsequent time; that at the time Dreher applied for his benefit certificate there was a law of the order in force to the effect that any member who should enter into the business of selling by retail intoxicating liquors as a beverage should be expelled, and that Dreher in disregard thereof entered into the occupation of selling intoxicating liquors as a beverage about the month of July, 1905, and continued until in October 1905, in the city of Stuttgart, where he resided. Wherefore it was claimed that he had forfeited all rights as a beneficial member of the association prior to the time of his death, and that Christina Dreher, as his wife and beneficiary, was not entitled to recover on the certificate.
The jury found for appellee in the sum of one thousand dollars, the amount named in the certificate, and the case is here on appeal.
The transcript in this case purports to consist of two separately bound packages of paper, both of which appear to have been filed with the clerk of this court on the same day. The first, which is properly the transcript, contains the plead ings, a skeleton bill of exceptions, containing the charge of the court, the motion for a new trial, orders and judgment. The only testimony in the skeleton bill of exceptions consists of seven preliminary questions and the answers thereto propounded to Mrs. Christina Dreher, appellee. Then we find a direction as follows: “Clerk here insert testimony.”
The case was tried at the November term, 1911, of the Arkansas Circuit Court, and the order overruling the motion for a new trial was made November 7, 1911. In that order it appears that sixty days was allowed appellant in which to file its bill of exceptions. The skeleton bill of exceptions shows that it was approved and signed by the circuit judge on the 6th day of January, 1912, and on the same day was filed in the office of the circuit clerk. What purports to be the testimony consists of one hundred and twenty typewritten pages which was filed in the office of the circuit clerk on February 1, 1912. It does not appear to have been examined, approved or authenticated by the circuit judge.
It is now contended by counsel for appellee that the one hundred and twenty pages of typewritten matter purporting to be the testimony taken at the trial is not properly a part of the bill of exceptions, and is therefore not a part of the record on this appeal..
The grounds upon which appellant seeks to reverse the the judgment can not be reviewed on this appeal without a consideration of the testimony taken at the trial. Therefore it is insisted by counsel for appellee that the judgment should be affirmed. They rely on the case of Dozier v. GraysonMcLeod Lumber Co., 100 Ark. 244. There the court held: “Where a bill of exceptions recited: ‘The following testimony was introduced before the court and jury, which was all the evidence introduced by either party (insert testimony)’ meaning that the clerk should insert the official stenographer’s notes of the testimony, and the certificate of the stenographer shows that the testimony was subsequently transcribed, and it does not appear that the transcribed testimony was ever presented to the circuit judge for examination, it did not become a part of the bill of exceptions, and can not be considered on appeal. See, also, International Order of 12 v. Jackson, 101 Ark. 555.
That case is squarely in point. There was no sufficient call for the testimony in the skeleton bill of exceptions. It is certain that nothing that is not reduced to writing can be embodied in the bill of exceptions by reference to it alone. Any other rule would make the final record of a case as uncertain as the memory or the will of the clerk to whom its final making up might be referred, and would place the rights of parties, who have judgments of record, entirely in the power of the person who eventually makes up the bill of exceptions for this court. In the case at bar the call for the testimony does not identify it, and the one hundred and twenty pages of typewritten matter which purport to be the testimony taken at the trial were not approved by the judge, and were not even filed by the clerk until after the time given for filing the bill of exceptions had elapsed. The reason for the rule is aptly stated by Mr. Justice Brewer in the case of A. & N. Railroad Co. v. Wagner, 19 Kan. 335, as follows:
“And in this we appropriate the language of the Supreme Court of the United States in the case of Leftwich v. Lecann, 4 Wall. 187, in which the court says: ‘If a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.’ And. these means of identification must be obvious to all. No mere memorandum, intelligible it may be to a single person, even the clerk, but indicating nothing to any one else, will be sufficient. They must be such that any one going to the record can determine what document is to be inserted, or, after insertion, that the clerk has made no mistake. The record must prove itself, and not the record and the testimony of the clerk. The clerk changes; the record endures. And, long after judge and clerk are both gone, the record, if good, must carry on itself the evidence of its own integrity.”
Therefore the judgment will be affirmed. | [
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Wood, J.
The appellant was convicted of the crime of carnal abuse under an indictment that charged' rape. One of the defenses was insanity. There was proof tending to show that the appellant at the time of the alleged offense was insane. There was also evidence tending to show that he was of sound mind.
The court gave instruction numbered 10, as follows:
“10. The court instructs you that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until evidence is adduced that raises in your mind a reasonable doubt as to his sanity; and to establish a defense on the ground of insanity it must be clearly proved that at the time of committing the act the defendant was laboring under such a defect of reason from disease of mind as not to know the nature or character of the act he was doing, or, if he did know it, that he did not know he was doing wrong.”
The court also gave instructions numbered 13 and 14, as follows:
“13. But it is not necessary, in order for the defendant to be acquitted, that it should be shown by the evidence that at the time of the commission of the act he did not know right from wrong as to his acts in general, but if you have a reasonable doubt from the evidence as to whether defendant’s act was caused by mental disease or unsoundness of mind which dethroned his reason and judgment with respect to that act, which destroyed his power rationally to comprehend the nature and consequences of the act, and which overpowered his will and inevitably forced him to its commission, then he is not in law guilty of any crime.
“14. If the jury have a reasonable doubt arising out of the evidence as to whether or not the defendant, at the time of the commission of the offense charged against him, knew right from wrong as to the act committed, or, if he so knew, you have a reasonable doubt from the evidence as to whether or not, on account of unsoundness of mind then existing, he was mentally incapable at that time'of adhering to the right and avoiding the wrong, and incapable by reason of such mental condition of guiding his conduct in accordance with such choice, he would not be guilty.”
The instruction numbered 10 puts the burden on the defendant to clearly prove that at the time of the commission of the act he was “laboring under such a defect of reason that he was not capable of knowing the nature or character of the act he was doing.” In this respect the instruction was inherently erroneous and highly prejudicial. Appellant was entitled to his defense of insanity if the evidence adduced in his behalf or the evidence in the whole case raised a reasonable doubt in the minds of the jury as to his sanity. The court so told the jury in the first part of the instruction numbered 10, but in the concluding part just quoted the court announced the contrary rule. It is contended that, when this instruction is considered in connection with instructions numbered 13 and 14, the jury could not have been misled, but we are of the opinion that the instructions were in hopeless conflict. Cogburn v. State, 76 Ark. 110.
The jury had no correct guide. In one part of the charge, considering it as a whole, they were told that the appellant’s insanity must be clearly proved. In another part they were told that it was sufficient if the evidence raised a reasonable doubt as to his sanity. These ideas are contradictory.
The defendant is not required to clearly prove his insanity before he can avail himself of that defense, yet the jury may have concluded from this language that it was his duty to make absolute proof of that fact before he could get the benefit of his defense. Raising in the minds of the jury a reasonable doubt as to his sanity is equivalent to saying that he is not required to make positive or clear proof of that fact. Both rules are given to the jury to guide them in their deliberation. How would they know which was correct, and which one they must obey? To clearly prove is to prove beyond a reasonable doubt or to the exclusion of any reasonable doubt, and that is not required of the defendant on any criminal charge. It is sufficient, as we have stated, if the evidence on his behalf or the evidence in behalf of the State raises a reasonable doubt in the minds of the jury of his insanity, where that is set up as a defense.
In instruction numbered 3 the court told the jury “that actual penetration was' necessary, but no particular depth is required, and the hymen need not be ruptured nor the body .be torn.” The instruction was not happily worded in stating facts that it was unnecessary to prove, but the physical condition of the private parts of the prosecutrix as the result of the alleged violence of appellant upon her was disclosed by the evidence, and it was undisputed. We are of the opinion that no prejudicial effect was produced by the instruction.
The other errors complained of will not likely arise on another trial, and it is unnecessary to now pass upon them. For the error indicated in the giving of instruction numbered 10, the judgment is reversed, and the cause remanded for a new trial.
Kirby, J., dissenting. | [
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HART, J.,
(after stating the facts). The indictment in this case was drawn under section 1927, Kirby’s Digest, which reads as follows:
“Any pei’son or persons who shall, by any boisterous or other noisy conduct, disturb or annoy any public or private school in this State, or any person not a student who, after being notified to keep off the school grounds during the school hours, by the board of directors or the superintendent or principal teacher in charge of any such school, shall continue to trespass or go upon said grounds, whether at recess or during the session of said school, shall be guilty of a misdemeanor,” etc.
The indictment charged.
“The said B. B. West and Mrs. B. B. West, in the county and State aforesaid, on the 14th day of July, 1911, did unlawfully disturb and annoy the public school in School District No. 34, in Randolph County, Arkansas, by boisterous and noisy conduct, by quarrelling, by fighting, by using loud, profane, abusive language, and by trespassing upon the school grounds, during the sessions of said school. Against the peace and dignity,” etc.
The section of the Digest m question states two offenses, the first of which is disturbing a school, and the second, trespassing on school grounds. It is contended by counsel for the defendant that the indictment in this case charges both of these offenses, and is therefore bad for duplicity. We do not think so. The indictment was evidently framed under the first part of the section. The indictment under the latter part of the section provides that any person, not a student, who, after being notified to keep off the school grounds during the school hours, shall continue to trespass or go upon said grounds, shall be guilty of a misdemeanor.
The indictment in question does not charge that the defendant trespassed upon the school grounds after being notified to keep off the same.. Therefore, we think there was no attempt to charge two offenses, and the clause “and by trespassing upon the school grounds during sessions of said school” should be treated as surplusage.
Counsel for the defendant asked the court to give the following instruction:
“You are instructed that, if you find from the evidence that the defendant, at the time mentioned in the indictment in this cause, had gone to such school house or grounds for a lawful purpose, and was demeaning himself in a lawful manner, and while there and so demeaning himself he was attacked by one Segraves with a knife and rock, or knife or rock, that he would be justified in defending himself against such assault, and if, in so doing, he disturbed said school without intending so to do, you should acquit him.”
The court refused to give the instruction, and in effect charged the jury that, if the defendant while at the schoolhouse became engaged in a difficulty with Segraves and while engaged in such difficulty, by boisterous or other misconduct, disturbed the school, he should be convicted. The court should have given the instruction asked for by the defendant. It is true that an intent to disturb is not a necessary factor in the crime, but, on the contrary, any act which is within the terms of the statute, the natural consequence of which is to disturb, and which is wilfully done, and which in fact does disturb the school, comes under the denunciation of the statute, though the actor may have had no specific intent to disturb the school. See Walker v. State, 102 Ark. 336.
The testimony of the defendant tends to show that he went to the school house for a lawful purpose, and was conducting himself in a quiet and peaceful manner when he was insultingly approached by Segraves; and the subsequent fight was thrust upon him. Up to the time of Segraves’s approach no disturbance had been created. The defendant insists that he tried to avoid a quarrel with Segraves, and did not strike him until after Segraves had assaulted him. From the imminent hostile demonstrations on the part of Segraves, as they appeared to him, the defendant had a right to stand upon his self-defense.
The defendant’s testimony shows that whatever disturbance was caused by his act was in his necessary self-defense, and that he did not wilfully do or say anything that would have the effect of disturbing the school.
Therefore, the court should have given the instruction asked for by the defendant, and for the error in refusing so to do the judgment must be reversed, and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). It is contended by counsel for appellant that the court erred in refusing to take the case from the jury. We do not think so, but are of the opinion that under the facts and circumstances of this case it was proper to submit to the jury the question of appellant’s negligence and appellee’s contributory negligence. The train upon which appellee was injured was a local freight train, and was required to carry both freight and passengers. Kirby’s .Dig., § 6705.
Appellee adduced testimony tending to show that where a person shipped a car containing live stock over appellant’s road it was the custom for appellant to permit a care-taker in charge of the live stock to ride free, and this much is conceded by appellant. Therefore, appellee was a passenger, notwithstanding he rode free. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298.
Appellee says that he was injured by a brace rod in the box car falling on him while he was riding in the car in charge of the stock. The rod fell because the tap which held it in position had come off. This was an injury caused by the run ning of a train, and made a prima facie case of negligence against the railway company. St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636.
At the same time it was the duty of appellee to use reasonable care in protecting himself, and we consider the question of his contributory negligence the most serious one in the case. It is true that, according to the testimony of appellant, it was against its rules and regulations for a care-taker to ride in the car with the live stock, and the conductor says that he had no knowledge that appellee was riding there until after the injury was received; that he told him to ride in the caboose and supposed he was riding there. On the other hand, the jury might well have inferred from the testimony of appellee that the conductor saw him riding in the car with the live stock, and made no objections thereto; in other words, that appellee rode there with the knowledge and acquiescence of the conductor. Additional testimony was adduced by appellee tending to show that it was the general custom of persons in charge of live stock shipped upon one of appellant’s trains to ride in the car with the live stock in order to take care of it. Appellee also says that when he took his place in the car he looked around in it, and it appeared to be a solid and substantial car. Looking at the matter from appellee’s standpoint, we think that he was justified in believing that the conductor’s action in permitting him to ride in the car with the live stock was equivalent to the act of assigning him to that place. If the place was one of hidden peril, since he was a passenger and could not be reasonably expected to know of such danger, the duty devolved upon the conductor to warn him that he was riding at a place on the train which was contrary to the rules of the company, and which would subject him to unusual risks. Lake Shore & Michigan S. W. Ry. Co. v. Teeters, (Ind.) 77 N. E. 599, 5 L. R. A. (N. S.) 425; New Orleans & N. E. R. Co. v. Thomas, 60 Fed. 379, 9 C. C. A. 29.
Hence we do not think that, under all of the facts and circumstances in this case, the court erred in refusing to declare as a matter of law that appellee was guilty of contributory negligence. It must be admitted that there is some conflict in the authorities upon this point, but after a consideration of the question we believe that the conclusion we have reached is in accord with the better reasoning and with the trend of our authorities on the subject. Little Rock & Fort Smith Ry. Co. v. Miles, supra; St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507.
It is next contended by counsel for appellant that the court erred in giving the following instruction to the jury:
“2. You are instructed that the duty of a conductor of a local train carrying passengers is to look after the safety and protection of all passengers on his train for the purpose of being conveyed from one point to another on the line of railroad over which his jurisdiction extends, and to assign them seats; and if he finds or sees a passenger in an exposed position, it is his duty to warn him of the danger to which he is exposed; and if you find in this case that the conductor of the local freight train on which plaintiff was injured saw plaintiff in the box car, and knew that he was travelling in said car, regardless of the fact whether said train was in motion or still, and failed to warn him of his danger, or permitted plaintiff to ride in said car, or acquiesced in his doing so, and plaintiff was injured thereby, your verdict will be for the plaintiff.”
We agree with counsel in this contention. The instruction in effect excludes from the jury the question of appellee's contributory negligence, and makes the company liable in damages for the injuries if the conductor acquiesced in his riding in the car with the live stock and failed to warn him of his danger. While the railroad company owed him the duty tó employ reasonable means and to exercise ordinary care to avoid injuring him, it was nevertheless his duty to use reasonable care in protecting himself; and, if the position he took in the train was one of such obvious danger that a person of ordinary prudence w;ould not ride there, appellee assumed the risk of doing, so, and can not recover against appellant merely because the conductor failed to warn him of his danger. As we have already seen, the question of appellee’s contributory negligence was one for the jury, and because the instruction under consideration practically excludes that question from the jury it was prejudicial to the rights of appellant.
. Other errors are pressed upon us for the reversal of the judgment, but we think the principles of law already announced practically cover the other assignments of error, and will be a sufficient guide for a retrial of the case.
For the error in giving instruction numbered 2, as indicated in the opinion, the judgment will be reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
Plaintiffs, Patrick Gallagher and Joe Miller, instituted separate actions against defendant, Arkansas Natural Gas Company, to recover damages for personal injuries caused by an explosion of gas during the construction of a pipe line from the Caddo fields to the city of Little Rock. The actions were consolidated and tried together, the trial resulting in verdicts in favor of each of the plaintiffs, awarding damages, and the defendant has appealed to this court.
The pipe line was laid by Booth & Flinn, a partnership, under a written contract with defendant, whereby the contractors agreed to furnish the material and do the work for a stipulated price. The contract provided that “all material furnished by the said contractor in the construction and laying of said pipe line, and all work done shall be subject to the inspection and approval of the company, or its duly authorized agent; and that the said inspection shall be made as work progresses, and that any defective material or workmanship shall be pointed out by it as soon as the same is discovered and the said defect shall be at.once remedied by the said contractor.” It further provided that the contractors should be responsible for the proper working of the entire pipe-line system for thirty days after the same should be completed and put into use, and that the line should remain in charge of the contractors after it was completed and put into use during the time that the contractors should be engaged in remedying defects’ pointed out by the company or its inspectors.
During the progress of constructing the pipe line, and after it had been laid as far north as Beime, a town or village in Clark County, one of defendant’s inspectors, in going over the line, discovered a leak near Beime, and gave notice thereof to the defendants as well as to the superintendent of the contractors. The contractors sent a force of men to that place to repair- the leak, and in doing so it became necessary to strip the pipes to ascertain the precise location and extent of leaks, and also it became necessary to turn the gas into the pipe line for that purpose. The plaintiffs were both employees of the contractors in doing the work in and about repairing the line, and while eating their lunches about the noon hour an accumulation of gas in the pipes caused an explosion, which resulted in severe personal injuries to them. They alleged that negligence of servants of the defendant in turning in an excessive quantity or pressure of gas, and leaving it in the line too long, caused the explosion. The defendant denied that the injury was caused by any negligence of its servants, and contends that the negligence, if any, was that of the contractors and their servants. The evidence shows, as before stated, that it was customary for one of defendant’s inspectors to go over the line for the purpose of inspecting for leaks, and when any were discovered they were marked and notice given to the contractors. In making inspections it was necessary to turn the gas into the line, which the inspector would do, and after he had marked the place of a leak he would again turn the gas off. When the contractors went about repairing leaks, it was necessary to again turn the gas into the pipes for their benefit in discovering the precise location of leaks, and for this purpose the inspectors were instructed by defendant to turn the gas into the pipes when requested to do so by the contractors, and to turn it off under their directions. No one but defendant’s inspectors were permitted to turn the gas on or off. On this particular occasion, W. H. Pitts, one of the inspectors, after he had discovered the leak, and the contractors had sent a gang of workmen to repair it, was requested by the foreman or superintendent to turn in the gas. This was done between 10 and 11 o’clock in the morning. The men were thereafter engaged up to the noon hour in stripping the pipes so that the leak could be repaired, and the gas was allowed to remain in the pipes until nearly 1 o’clock, when the explosion occurred. At that time Pitts had left the line and had started to Beime to get his lunch.
The contention of the plaintiffs is that the explosion was caused by the negligence of Pitts in handling the gas, either in turning it on or letting it remain too long in the pipes. They insist that in doing this Pitts was the servant of the defendant, and that the latter is responsible for all of his negligent acts. On the other hand, the contention of defendant is that Pitts, though in its general employment, was doing the particular service as a servant of the contractors, and that the defendant is in no wise liable for his alleged negligence.
According to the undisputed evidence in the case Booth & Flinn were independent contractors, and the defendant was not responsible for their negligence or for that of their servants. St. Louis, I. M. & S. Ry. Co. v. Gillihan, 77 Ark. 551. In that case we quote with approval the following statement of the law from Elliott on Railroads (vol. 8, § 1063): “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.” According to this well-settled principle of the law, the defendant was not liable for the negligent acts of the contractors or their servants merely because it furnished an inspector to see that the work was done according to the contract. The only question in the case is whether or not Pitts was the servant of the defendant at the time of his alleged negligent act, in the sense that the defendant is liable therefor under the doctrine of respondeat superior. The evidence shows that at the time the explosion occurred the pipe line was under the control and management of the contractors,. and the work of repairing was being done by them. The defendant furnished the services of Pitts merely to turn the gas on and off at the request of the contractors, and there is evidence tending to show that in doing this he was under the entire control of the contractors. There is testimony to the effect that Pitts was to regulate the manner of turning in the gas, but that the foreman or superintendent of the contractors should be the sole judge as to when it should be turned on and when it should be turned off, Pitts being as to those matters entirely under their direction and control.
“It is well settled,” says the Massachusetts court, “that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.” Coughlan v. Cambridge, 166 Mass. 268. The same principal is announced in many other cases. 1 Shearman & Redfield on Negligence, § § 160 and 161; 1 Dresser’s Employer’s Liability, p. 50; Deloy v. Blodgett, 185 Mass. 126; Wyllie v. Palmer, 187 N. Y. 248; Higgins v. Western Union Tel. Co., 156 N. Y. 75; Consolidated Fire Works Co. v. Koehl, 190 111. 145, 60 N. E. 87; Rourke v. White Moss Colliery Co., 20 Moak Rep. 469.
In Higgins v. Western Union Tel. Co., supra, the facts were .quite similar, so far as application of the principles here announced was involved. The court, in disposing of the case, said:
“The fact that the party to whose wrongful or negligent act an injury may be traced was, at the time, in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct, Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a particular transaction, and that, too, when their general employer is interested in the work.” ‘
In that case the defendant was the owner of a building in the city of New York which it was having repaired after injury caused by fire, and it was the duty of the contractor making the repairs, among other things, to place elevators in the building. ■ The elevator had been turned over as complete by the contractor, but at the time of the accident the owner was using it for carrying passengers, and the contractor was also using it for the purpose of doing some plastering in the shaft. On the day of the accident one of defendant’s servants employed to run the elevator suspended work about noon, while the contractor, during the rest of the day, used the elevator as a platform for the plasterer to stand upon, and the same servant employed by defendant to run the elevator remained in charge for the special work being done by the contractor under the latter’s direction and control. The court held that under those circumstances the servant at that particular time was engaged in the service, not of the owner of the building, but of the contractor, and that the latter was responsible for his neligent act.
The principle announced in those cases _ is, we think, controlling in the present one. To the extent that Pitts was working under the direction and control of the defendant, he remained the latter’s servant, and it alone is responsible for his negligence. On the other hand, to the extent that the direction and control was surrendered to the contractors for work being done by them, Pitts was in their service, even though he was in the general employment of the defendant, and the contractors alone are liable. It was the peculiar province of the jury to determine from the testimony the extent to which Pitts was acting for the defendant and was carrying out its directions, and to what extent he was performing service for the benefit of the contractors and under their direction and control. If the services of Pitts were lent by the defendant to the contractors, and 'he was required to proceed in the performance of their work entirely under their control and direction in turning on the gas and in turning it off, then he must be treated as the servant of the contractors, and they alone are responsible for his negligence. On the other hand, if, in turning on or off the gas, he had any duty to perform for the defendant, in whose general employment he was at the time, and in the performance of that particular duty he was guilty of a negligent act, then the defendant is responsible. The fact that defendant was interested in the work as owner would not make it liable for the injuries if the work being done was that falling within the duty of the contractors, and Pitts was acting under their direction in the particular act or omission which it is alleged constituted the negligence.
The case was not correctly submitted to the jury in accordance with the principles here announced, and the judgment must on that account be reversed. In the first instruction given at the request of plaintiffs the jury were told broadly that if the inspector, Pitts, w.as “in the entire or partial charge of the gate through which the gas was turned into and shut off from the pipes, and failed to exercise reasonable care and precaution for the safety of plaintiffs in negligently and improperly turning the gas into said pipes in such quantity and with such force, or negligently and improperly permitted said gas to remain turned into said pipes for an unnecessary length of time, or negligently failed to warn plaintiffs of the danger to which they were exposed by virtue of the gas being turned into and permitted to remain turned into said pipes,” and that his negligent act caused plaintiffs’ injuries, then the defendant would be liable.
This entirely ignored the proof adduced by plaintiffs tending to show that Pitts was not the servant of thé defendant in the particulars named.
Again in instruction No. 2 the jury were told that plaintiffs “had the right to rely upon the assumption that the defendant, in the exercise of reasonable care and precaution for their safety, would properly turn the gas into the pipes, and would properly shut the same off, and would give them, timely warning of any danger to which they were exposed,” etc.
This was wrong, because the proof on the part of the defendant tended to show that the business of repairing the leaks was altogether that of the contractors, and that the duties enumerated in the above instruction devolved upon them.
Other instructions along the same lines need not be discussed, for the errors contained in those mentioned are sufficient to call for a reversal.
, Some of the instructions requested by the defendant were refused and some modified so as to eliminate the submission of the questions hereinbefore indicated which the defendant was entitled to have submitted to the jury. We have not critically examined all of the defendant’s requested instructions for the purpose of determining whether they contain accurate statements of the law, and therefore do not mean to approve them all; but some of them, at least, contained proper submissions of the questions involved in this case, and should have been given.
For the errors indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). The appellant contends that the verdict was excessive, caused “partially at-least by the exploitation” in the testimony of a “disagreement amongst the doctors who treated appellee at the hospital and those treating him after he left the hospital as to whether his injuries were properly treated at the hospital, and as to the present and future results of his injuries as affected by that treatment.”
The testimony of physicians on behalf of appellee, one of whom had treated him for twelve days preceding the trial, tended to show that when they examined appellee his broken leg was unhealed; that, notwithstanding the efforts of the physicians at the hospital to save appellee’s foot from amputation, same was now necessary, in order to save appellee’s life, and that by reason of a failure to operate at first and on account of the prolonged treatment in trying to save the limb, the bone had decayed and the limb had become so infected that it would have to be amputated above the knee, whereas, in their opinion, if the limb had been amputated soon after the injury occurred it would have been only necessary to amputate between the ankle and the knee. In describing appellee’s injuries, the testimony of physicians in his behalf tended to show that he had a broken shoulder, the bones of which, on account of the long lapse of time since the injury, could not be knit together because of the decayed bone at the fractured ends.
The testimony of the physicians and surgeons on behalf of the appellant, who treated appellee at the hospital where he was taken immediately after his injury occurred, tended to show that the methods adopted by them were the latest and most improved methods for the treatment of injuries such as appellee had received, and were adopted because of the hope they entertained of saving the appellee’s limb. They gave appellee the same treatment that they gave other patients, under similar conditions, in order to save his leg; that the progress towards ultimate recovery had been satisfactory up to the time the patient was taken out of their charge, and that there had been no indication of death of the bone and no infection, and they still believed the bone could be saved.
Appellant contends here that this disputation among the doctors, as shown by the testimony, prejudiced the minds of the jury, resulting in an excessive verdict. It is sufficient to say of this contention that appellant did not make any objection at the trial to the testimony of the physicians on behalf of appellee describing the nature of appellee’s injuries. Appellant only objected to one of the physicians testifying as to the nature of these injuries arid giving the conclusions he arrived at as to the condition of the injury from an examination made by the witness of X-ray pictures, when the witness testified that he was no X-ray expert. This objection, reserved in the motion for a new trial, does not assign any error growing out of the ruling of the court in permitting testimony showing a controversy among the physicians as to the nature of appellee’s injuries and his present and future mental and physical condition as a result thereof.
Moreover, the verdict was not excessive. Appellee, at the time of his injury, was twenty-seven years of age and in good health. His wages were from $125 to $150 per'month, and he was in line of promotion, after three years service, to the position of engineer, whose average monthly wage was $175 to $250. The jury were warranted in the conclusion that appellee would be permanently incapacitated for performing the duties of the vocation that he had selected and for which he was qualified. In fact, it was practically certain from the testimony that appellee, by reason of his injuries, had lost his earning power. His left leg was so badly crushed as to necessitate amputation of same above the knee, and the bone of the left shoulder, that helps to support and gives motion to the arm, was broken; and one of the physicians testified that it had been broken so long that “it would be very difficult to get down in there and wire it together.” It was a question, says he, “whether the bone could ever be brought up together and kept in place.” “The effect of the failure of the broken bone to reunite would cause the shoulder to drop down and the bone to come up. As a consequence he could not use the left arm without a good deal of pain as the fragments would be rubbing together all the time, and it would be impossible for him to get around on a crutch at all.” There was a severe injury to the back that would give appellee “trouble with his spinal column and spinal cord for a good many years, and cause him to suffer with a nervous condition.”
Appellee at the time of the trial had endured intense suffering for a little over three months. He described his suffering as follows: “I suffered pain and didn’t sleep much of the time. I was awake most of the time at night. I couldn't sleep. My back hurt me. My leg and my heel hurt me so bad that they had to take the wrapping off of the bottom part of my foot, and my heel hurt so bad I couldn’t stand it, and it worked independent of the front part. Every time I would move, I could feel the bone. It hurt me every time I moved, and every time I moved my back hurt. My shoulder hurt all the way up in the back of my neck. I suffered all kinds of pain and everything.”
The testimony showed that for surgical treatment appellee would be at an expense of $500. Appellee at the time of his injury was receiving an average of $1,650 per annum for his work. It would require nearly $22,000 to purchase an annuity amounting to $1,650 for one during appellee’s expectancy of life. If at the end of three years he had been promoted to the position of engineer, then his yearly income for his work would have been $2,550, and it would have required over $30,000 to have purchased an annuity for appellee with his expectancy of life at the age of thirty years.
In Railway Company v. Sweet, 60 Ark. 550, this court, having under consideration the damages resulting to the family of Sweet from his death, said: “He was thirty-four years of age, in good health, a robust man. He had an expectancy, as shown by the Carlisle life tables, of twenty-five years. The jury doubtless weighed all the probabilities of loss from sickness and other various contingencies, likely to arise in the course of a man’s life, and balanced these against the probabilities also of an increase of efficiency in money-making power. They might have found from the evidence that Sweet’s life was worth at least eight hundred dollars per annum to his wife and children; * * * and, according to the Carlisle tables (which were in evidence), estimating money at the legal rate, it would require over ten thousand dollars to purchase an annuity of eight hundred dollars for one of Sweet’s age.”
So we say here, that the jury, weighing all the probabilities of loss from various contingencies, and also the probabilities of an increase in money-making power, might have well reached the conclusion that appellee would have earned for the term of his expectancy in life at least the sum of $1,650 per annum, and that he lost the power to produce this by reason of the injury, and that it wás a total loss to him. It would have taken about $22,000 to have compensated him for this loss alone. When to this is added the expense of his surgical and medical treatment and damages for the mental anguish which he has endured on account of his personal disfigurement and the pain and suffering which he has undergone and must continue to undergo by reason of his bodily injuries and infirmities, we can not say that the verdict is excessive.
While mortuary tables were not in evidence, it was shown that appellee at the time of his injury was in good health, and the jury could judge from the character of the work in which he was engaged as to his power of physical endurance. In St. Louis, I. M. & S. Ry. Co. v. Glossup, 88 Ark. 225, we said: “Introduction of mortuary tables is not the only method of proving life expectancy: The question may be submitted to the jury upon testimony showing the age, health, habits, physical condition, etc., of the individual, so that the jury may estimate the probable duration of life."
Appellant objected to an instruction given at the instance of appellee wherein the court told the jury, “If you find that while he was engaged in the performance of his duties as fireman, the cab of the engine on which he was working collided with a car which defendant in its failure to exercise reasonable care and precaution for the safe passage of plaintiff’s engine over its tracks had negligently placed and left standing on a side switch so close to the lead switch on which plaintiff’s engine was running at the time of the accident as to obstruct its free passage, and caused the collision, and as a result thereof plaintiff was injured, then the defendant is liable, etc.”
Appellant contends that the above instruction assumed that there was negligence on the part of the appellant. In Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, the court had under consideration an instruction reading as follows: “If the jury find from the evidence that the Brinkley Car Works had notice that children did frequent the place of this pool, or were from the nature of the surroundings likely to do so, and that it carelessly left a pool of hot water there concealed in such a way that one would reasonably expect it to occasion injury to such children, the company would be liable for damages to the plaintiff, who, by reason of its concealed nature, walked into the pool of hot water, and was burned.”
The court said: “Counsel for appellant insist that the instruction is erroneous in that it assumes the existence of facts which were disputed, viz., that the plaintiff walked into the pool of hot water on account of its being concealed, and that he was not aware of the presence of the water, or that it was hot. The instruction, standing alone, might be open to that construction, and would be objectionable; but not so when read with the other instructions given at appellant’s request submitting to the jury the question as to whether the plaintiff knew at the time that the water was hot, and that it was concealed.”
In other instructions following the one under consideration here, the court made it clear that it did not intend to assume as an established fact that appellant was negligent in placing the box car on the switch track,' but submitted that question to the jury. For instance, in an instruction given at the request of the appellant the court told the jury as follows: “It devolves upon the plaintiff to show, by the greater weight of the evidence, that the defendant was negligent in the manner alleged. If the proof shows that the defendant’s servants exercised ordinary care in the use of the precautions taken to prevent the cab and cars coming in contact,” etc. And in an instruction on behalf of the appellee the court told the jury: “If you find that the alleged collision between plaintiff’s engine and the car on the side switch was the result of the failure of the defendant railway company to exercise reasonable care and precaution to place said car on said side switch,” etc.
If the instruction, standing alone, is susceptible of the construction for which appellant contends, it could not be so construed when taken in connection with the instructions following it under the doctrine of the above case, and, when all are considered together, it is manifest that the court did not assume negligence on the part of appellant, but submitted that issue to be determined by the jury. There is no conflict in the instructions.
The appellant objects to the following instructions:
“2. You are instructed that if you find that the alleged collision between plaintiff’s engine and the car on the side switch was the result of the failure of the defendant railway company to exercise reasonable care and precaution to place said car on said side switch and to maintain it in such position as to provide a safe passageway for plaintiff’s engine, then plaintiff can not be charged with having assumed the risk of being hurt by said collision as one of the ordinary risks incident to his employment.
“3. You are instructed that plaintiff had the right to presume that the defendant railway company had discharged its duty towards him by the exercise of reasonable care and precaution for his safety by so placing the car upon the side switch and so maintaining it in a position that would provide a safe passageway for his engine, and that he can not be charged with having assumed the risk of being hurt by the collision with said car unless you find that prior to the time of the a'leged collision he actually knew of the dangerous position of the car on the side track and realized the danger of being hurt by a collision between said car and his engine, and that with such knowledge and appreciation of danger he voluntarily exposed himself to it.”
The appellant contends that these instructions, as well as that part of instruction No. 1 already quoted, absolved the appellee from any duty to exercise ordinary care 'for his own protection. In instructions Nos. 2 and 3 and that part of instruction No. 1 set out above the court was declaiirig the rule, under the statute, in regard to the assumption of risk. The court announced that doctrine correctly according to many decisions of this court since the passage of the act of March 8, 1907, making railway companies and other companies and corporations liable in damage- caused by the negligence of a fellow-servant. St. Louis S. W. Ry. Co. v. Burdg, 93 Ark. 88; St. Louis, I. M. & S. Ry. Co. v. Ledford, 90 Ark. 543; Aluminum Company of North America v. Ramsey, 89 Ark. 522; Ozan Lumber Co. v. Biddie, 87 Ark. 587.
The doctrine of the above cases is that a servant has the right to assume that a fellow servant will exercise due care in the performance of the duties imposed upon him; and if a servant is injured, while exercising ordinary care for his own safety, through the negligence of a fellow-servant, the master will be liable for the damages resulting from such negligence. While the servant does not assume any risk or danger arising from the negligence of the master or of a fellow-servant of which he has no knowledge and does not appreciate, he is not, under the act of March 8, 1907, supra, relieved of the duty of exercising ordinary care for his own protection. See cases supra.
The instructions criticised correctly declared the law under the statute on the issue of assumed risk, and they were directed solely to that issue. The court, in other instructions given at the instance both of the appellant and the appellee, presented the issue of contributory negligence. ' The instructions set out above are not obnoxious to criticism because they do not embrace the defense of contributory negligence. The defenses of assumed risk and contributory negligence are separate and independent. The former arises out of contract relations, while the latter does not. St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102; St. Louis, I. M. & S Ry. Co. v. Holman, 90 Ark. 555; Johnson v. Mammoth Cotton Oil Co., 88 Ark. 243; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458; Chicago, R. I. & P. Ry. Co. v. Jones, 77 Ark. 367.
The court did not err, on the specific objection of appellant, in refusing to modify these instructions so as to embody therein the issue of contributory negligence.
The appellant contends that the court erred in the latter part of the first instruction, in which it undertook to present the doctrine of comparative negligence under the act of 1911, which modifies the doctrine of contributory negligence theretofore existing in this State. We will not pass upon that statute and the court's instruction under it, for the reason that the undisputed evidence in this record shows that there was no negligence on the part of the appellee causing or contributing to his injury, and therefore the instruction of the court, even if erroneous, could not have prejudiced the rights of appellant. The court, in our opinion, might have very well declared as a matter of law that the appe lee, under the uncontroverted evidence, was free from negligence. Therefore, the instructions submitting that issue to the jury, even if erroneous, weredavorable to appellant, and it could not complain.
The appellee testified that he was not familiar with the switch tracks of the yard where he was injured; that he was called to the service about 9 o’clock that night, and was injured the next morning about 1:50 o’clock; that he did not know the position of the car on the switch track with which the engine collided; that, while it might have been his duty to look for cars on the switch track, he could not have seen the car, had he looked, for his eyes were at the time so blinded by the heat and bright glare of the fire that he had just replenished that he could not have seen had he looked; that he had no time to look out; that he was very busy firing the engine;had just got up on the seat box and was putting on the injector when the crash came. If appellee, while discharging his duties as fireman, had no time to look out, as this testimony shows, then it was wholly immaterial whether the reflection from the car would have blinded his eyes or not. Appellee’s testimony shows he was so busy he could not look for the car when the collision took place. The appellant offered no testimony to the contrary, and the burden was on it to do so. His testimony is reasonable and consistent. Therefore, it was the duty of the jury to consider it, and reasonable minds could have reached no other conclusion than that the appellee himself was diligent in discharging his duties.
The issue of appellant’s negligence was correctly submitted to the jury, and there was evidence to support the verdict. There was testimony tending to show that the foreman, who acted as conductor of the switch engine, ignored the rule introduced in evidence adopted by the company for the protection of the employees while switching. No brakes were set.on this car; it was not coupled to the other cars; the wheels were not blocked. The foreman having the placing of the cars in charge only endeavored to see that the lead track was clear by placing his hand out to ascertain if there was space sufficient for cars on the lead track to pass the car on the side track. He said if it cleared his fingers, holding his hand out straight, it would clear a car or engine, and he had adopted that method and used it for twenty-seven years; that it was the usual method. But the jury would have been warranted in finding that this method itself was negligent, or the jury might not have accepted his testimony. For the fact remained that the box car was too near the lead track. Either the foreman did not take the precaution he says he did, or else the car ran down too close to the lead track after he had held out his hand, showing that it had no breaks or blocks to check it. The rule required these. Had the foreman but observed the requirements of the rule to keep the lead track free and safe from collisions, the unfortunate accident would not have happened. The slightest diligence on his part would have prevented the occurrence of the accident.
The record shows that in the argument to the jury Mr. A. N. DeMers, of counsel for appellee, stated: “Now, gentleman, I want to be fair about this matter; I will ask you to place yourselves in the place of the Iron Mountain railroad, and see what you would do under the circumstances in this case, then put yourselves in the place of Mr. Brogan, and see what is fair and just to both of these parties.”
Mr. W. V. Tompkins, counsel for appellant, in his argument, said to the jury:
“Gentleman, as counsel ask you to put yourselves in the place of the parties, if you are going to do this, then I will ask you to consider how it would appear to you if you had accidentally injured a man on the 17th of October, and had sent him to a hospital and was caring for him as best you could, and he should sue you on the 6th of November, as Mr. Brogan has done in this case?”
Mr. T. N. Robertson, counsel for appellee, in his closing argument, said: “Mr. Tompkins has said to you to put yourselves in the place of the railroad company, and seems to criticise plaintiff for suing on the. 6th of November, when the injury occurred on the 17th of October. They had all that time to offer a settlement, and none had been offered.”
Appellant objected to the argument that appellant should have offered a settlement; counsel for appellee thereupon said: “Well, I withdraw the argument since he objects to it.”
Appellant’s counsel then said: “I object to these wrongful statements, and then, when an objection is made, letting counsel say he withdraws them. They have already had their ill effect.”
The court said to the jury: “Well, gentlemen, it is withdrawn; do not consider that statement.”
Appellant saved its exception to the action of the court in permitting counsel for appellee to make such argument, and in refusing to rebuke him for making such argument.
There was no prejudicial error in the ruling of the court. The improper argument of counsel for appellee was not so flagrant in character as to create a prejudice in the minds of the jury against appellant, especially after counsel had withdrawn the remarks and the court had admonished the jury not to consider them. This action of the court and counsel was sufficient, in our opinion, to remove any possible prejudice that the objectionable argument was calculated to produce.
Appellant complains of the ruling of the court in giving the instructions on the measure of damages. There is no error in the instruction. It is not open to the criticism which appellant’s counsel makes. The instruction is not argumentative, but only mentioned elements of damage proper for the jury to consider in the event that they find, from the evidence, such elements to exist. There was .evidence 'in the record limiting definitely the expense to which appellee had been and would be subjected by reason of his injured condition, to the sum of $500. The jury therefore were not allowed to speculate as to the amount of such expense.
There is no error in* the record, and the judgment is therefore affirmed.
The instruction on the measure of damages was as follows:
Instruction No. 5: “You are instructed that if you find for the plaintiff you will assess his damages at such a sum of money as will he a fair and reasonable compensation to him for the injuries he has received as a result of the alleged accident; and in arriving at the amount of said sum of money you will take into consideration, as you find from the evidence, the nature and extent of his injuries, whether temporary or permanent in character, results reasonably certain to follow, any disfigurement of his person as a result of his injuries, the bodily pain and mental suffering he has endured, and that he is reasonably certain from the evidence to hereafter endure, as a result of his physical injuries, the loss of earnings from his labor since he received his injuries, and the loss of earnings in the future of his life by virtue of his decreased capacity to earn money because of his injured condition, his age and reasonable expectancy of years of life, his vocation and earning capacity prior to his injury, with his probable chance of being promoted to a position of increased remuneration of his services had he not been injured, his condition of physical strength and health prior to his injuries, and the expenses to which he is subjected as a result of his injured condition.” | [
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McCulloch, C. J.
The plaintiffs, three of them, are owners of small tracts of land in Saline County, Arkansas, and instituted this action against the railway company to recover damages alleged to have been caused by reason of injury to saids lands from waters overflowing from Clift’s Creek. It is alleged in the amended complaint that the overflowing of the lands was caused by the act of the defendant in allowing obstructions to be placed and to accumulate in the culvert where the railroad passes over Clift’s Creek, the allegation being that, within three years before the commencement of the action, the agents and servants of the defendant, in repairing the culvert, dumped the old material, such as “guard rails, rotton ties, and ends of timbers cut off from fitting the material for said repairs, into the stream below,” and that said timbers were allowed to remain in the stream below the culvert and dam it up, so that it caused the lands of plaintiffs to be injured by the overflow. It is also alleged that within three years next before the commencement of the action defendant’s agents and servants, in repairing the culvert, had put new piling thereunder, “placing said new piling between the ends of the fill * * * and the edge of said stream; that the old piling was sawed off about two feet above the top of the ground, the stumps of the old piling being left sticking up out of the ground, and so near the channel of said stream, that, in times of high water, drift would lodge against said stumps and assist in backing the water up and forcing it to flow out of the original channel.”
In the original complaint there was an allegation of negligence in narrowing the culvert; but this is alleged to have occurred five or six years before the commencement of the action, and no effort was made to recover under that allegation. The case was tried entirely upon the question whether the injury was caused by negligence of the defendant within" three years before the commencement of the action. The cases were consolidated, and on trial before a jury a verdict was rendered in favor of the plaintiffs assessing damages in the aggregate sum of $70, and the defendant has appealed from the judgment.
It is insisted, in the first place, that the testimony is not sufficient to support the verdict. Much space is given in the brief to the argument of the question whether damages could be recovered for the injury, if any, which resulted from the narrowing of the trestle or culvert; but plaintiffs concede that there is no right of recovery on account of that act, and the case was submitted to the jury entirely upon the right to recover upon alleged acts of negligence which occurred within three years.
While the great preponderance of the testimony seems to be in favor of the defendant, we are of the opinion that there was enough to go to the jury, and that the verdict is sustained by the evidence. The trial jury was the sole judge of the credibility of the witnesses, and it is not our duty to reverse a case simply because the verdict appears to us to be against the preponderance of the evidence. Many witnesses testified that Clift’s Creek frequently overflowed, and that the alleged obstruction in the culvert did not and could not have any appreciable effect upon the flow of water; but there was some testimony to the effect that the stream did not overflow sufficiently to damage plaintiff’s lands until these obstructions were allowed by the defendant to accumulate in the culvert.
The following instruction was given over defendant’s objection, and the ruling is now assigned as error.
“If you believe from the evidence in this case that any obstructions put into the creek or negligently left in the creek by the defendant either caused the damage to plaintiffs’ land or contributed to cause the damage, then your verdict must be for the plaintiffs.”
It is insisted that this instruction is erroneous for the reason that it permits' the recovery of all damages caused by the overflow merely because the damages may have been increased by reason of the obstructions placed in the culvert. We scarcely think the instruction is open to that objection, as it is fairly susceptible only of the meaning that the defendant is liable for that part of the injury to which negligent acts of its servants contributed; but, even if this part of the instruction is not strictly accurate and is open to the objection now made to it, it is too late to complain for the reason that the defendant at the time based its objection upon an entirely . different ground. It objected on the ground that the first part of the instruction was erroneous, and asked that the court strike out the following' words, “any obstruction put into the creek or negligently left in the creek by the defendant.” The use of those words was proper, and was clearly within the issues, so the court did not err in refusing to sustain that objection; and it is now too. late to urge any other objection.
There are several other assignments of error which we do not deem of sufficient importance to discuss.
Finding no error in the record, the judgment is affirmed. | [
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Hart, J.
This was an action against a constable and the sureties on his bond for the sale and conversion of certain lumber alleged to be the property of the plaintiff, who was trustee in bankruptcy of the Robinson Timber & Lumber Company and the Robinson Lumber Company. The answer denied the plaintiff’s right to the property and justified under legal process. At the conclusion of the evidence the court directed a verdict for the defendants, and the plaintiff has appealed.
The facts, so far as are necessary for a determination of the issues raised by the appeal, are as follows:
Ed. Rhodes and Leake Young were partners under the firm name of the Waldo Lumber Company, and were engaged in running a saw mill. In 1908 the firm sold a quantity of lumber to the Robinson Lumber Company. The lumber was stacked out to itself on the mill yard, and was delivered to an agent of the purchaser. Between sixty and ninety days after the sale of the lumber was made T. M. Parr sued Rhodes & Young before a justice of the peace, and the lumber was attached. The Robinson Lumber Company was not made a party to the suit. The judgment rendered by the justice of the peace, caption and style of the case being omitted, is as follows:
“On this, October 10, 1908, comes the plaintiff, T. M. Parr, by attorney, T. W. Hardy, and also comes the defendants, Ed. Rhodes and Leake Young, by their attorney, Mr. Lile, and, said cause coming on for hearing, the following judgment is entered herein by consent of plaintiff and defendants.
“It is ordered, considered and adjudged by the court that the plaintiff, T. M. Parr, have and recover of and from the said defendants, Ed. Rhodes and Leake Young, the sum of two hundred and eighty-five dollars for his debt for labor and services performed in the manufacture of 28,000 feet of hardwood lumber, which has been attached in this cause. It is further ordered and adjudged by the court that the plaintiff, T. M. Parr, have laborer’s lien upon the said 28,000 feet of oak lumber to the amount of one hundred and forty dollars. It is further ordered and adjudged by the court that, in case the said one hundred and forty dollars is not paid within ninety days from this date, then the constable of this court is commanded and directed to sell said lumber under the attachment herein as required in cases of execution sales, and with the proceeds arising from said sale first pay the cost of this court and then with the residue to pay the said plaintiff the one hundred and forty dollars, for which he has a lien on said lumber.”
The justice of the peace gave the constable authority to take a bond from the Robinson Lumber Company for the lumber, and the lumber was released from the attachment. Then a new justice of the peace and constable succeeded those who were acting at the time the judgment was rendered. In December, 1908, the justice of the peace who had succeeded the one who had rendered the judgment issued an execution, and the constable levied it on the lumber. The Love Lumber Company became the purchaser at the execution sale for the sum of $223.75. After paying the costs of the suit, $210.05 remained, which was paid to T. M. Parr. Before the expiration of ninety days from the date of the judgment rendered in the justice’s court, the Robinson Lumber Company tendered one hundred and forty odd dollars, the amount of the bond given by it, and the tender was refused. The lumber at that time had already been sold under the execution.
T. M. Parr testified that he was the plaintiff in the suit brought before the justice of the peace in September, 1908, and that he had been working for the Waldo Lumber Company as a laborer. He said he had never authorized the constable or any one else to release the lumber, and that he had never agreed to take a bond therefor.
It is manifest that the court erred in directing a verdict for the defendants. The testimony, as disclosed by the record/ shows that the Waldo Lumber-Companyhad sold and delivered the lumber to the Robinson Lumber Company between sixty and ninety days before it was attached in the suit of Parr against the Waldo Lumber Company in the justice’s court. The Robinson Lumber Company was not made a party to the suit in the justice’s court in which the lumber was attached. If the lumber belonged to the Robinson Lumber Company at the time it was attached in the suit before the justice of the peace, the seizure of the lumber under attachment in the justice’s court was unauthorized and wrongful, and its subsequent sale under orders of the justice could only be justified by showing that the rights of the Robinson Lumber Company were adjudicated by the justice before ordering the sale. Albie v. Jones, 82 Ark. 414.
It is well settled that a judgment is only conclusive between the parties or their privies. Avera v. Rice, 64 Ark. 330; Treadwell v. Pitts, 64 Ark. 447; Doss v. Long Prairie Levee Dist., 96 Ark. 454.
As We have already seen, the Robinson Lumber Company was not a party to the attachment suit before the justice of the peace, and it is well settled in this State that a judgment is evidence of nothing in a subsequent action between different parties, except that it had been rendered. Thomas v. Hinkle, 35 Ark. 450; Doss v. Long Prairie Levee Dist., supra.
It will be observed that the record in this case shows that the lumber was sold and delivered to the Robinson Lumber Company before it was seized under the writ of attachment in the case of Parr v. Rhodes & Young, and the judgment of the justice of the peace is not evidence that Parr had a lien on the lumber superior to the rights of the Robinson Lumber Company. This is so because the Robinson Lumber Company was not a party to the suit. .So far as disclosed by the record in the present appeal, Parr had no right to assert a lien against the lumber. It is true he testified that he had been working for the Waldo Lumber Company as a laborer just prior to the bringing of his suit against that company before the justice of the peace, but he does not state how much, if anything, the Waldo Lumber Company owed him, nor does he testify to any state of facts from which it might be inferred that he was entitled to a lien on the lumber which had been sold and delivered to the Robinson Lumber Company.
In levying an attachment or execution which specifies no particular property to levy on, the constable is bound at his peril to know that the property he seizes is the property of the defendant in the writ and subject to execution. Meadow v. Wise, 41 Ark. 285.
It follows that the court erred in directing a verdict for the defendants, and for that error the judgment will be reversed, and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). The right of appellant to recover in this case depends upon the construction of the ninth clause of the contract, which is as follows: “This contract shall be and remain in force and effect as long as the party of the first part is operating their plant at that point, and until all the timber they now own and shall in future purchase shall have been cut into lumber.”
The purpose of all interpretation is to ascertain and give effect to the intention of the parties to the contract as expressed by their writing, and in doing this it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties and the sense in which, taking these things into consideration, the words used would be commonly understood; for it fairly may be assumed that the parties used and understood them in that sense. Applying this fundamental rule of construction, it is contended by counsel for appellee that the Walnut Lake Company in making this contract foresaw that it might wish to sell or be forced to quit business at any time, and therefore embodied in the contract the provision that the contract should remain in force only so long as it was “operating their plant at that point.” They insist that the further words, “and until all the timber they now own and shall in the future purchase shall have been cut into lumber,” were added to cover the possible contingency that the Walnut Lake Company, in case of fire or other casualties to its plant, might wish to rebuild at some other point and cut the timber at a new mill site. They contend that the evident intention of the parties, as expressed by the language of the contract, was that the contract should be in force only so long as both of the conditions may continue to exist, viz: While the Walnut Lake Company operates its plant at Walnut Lake, and its timber remained uncut. We can not agree with their contention. The Bennett Company was not engaged in the business of loaning money, but was engaged in the business of selling lumber for those who manufactured it. The lending of money to its customers was merely an incident to its principal business. It was principally engaged in the business of selling pine lumber at the time the contract was entered into, and, in order to carry out the contract with the Walnut Lake Company, it was necessary to make some changes in the conduct of its business in order to enable it to successfully sell cypress lumber. Under these circumstances, it is unreasonable to suppose that the parties to the contract contemplated an agreement which could be terminated by the Walnut Lake Company ceasing to operate its mill at Walnut Lake before its timber was sawed into lumber. Such a construction would not give any meaning to the clause, “and until all the timber they now own and in the future shall purchase shall have been cut into lumber.”
We are of the opinion that the contract as made clearly indicates that it was not intended that the contract should be terminated until the timber owned by the Walnut Lake Company, tributary to the site of the mill at Walnut Lake, should have been cut into lumber. As illustrative cases sustaining our contention, we cite the following: Mississippi River Logging Co. v. Robson, 69 Fed. 773; Lewis v. Atlas Mutual Life Insurance Co., 61 Mo. 534; Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522.
The next question we shall consider is whether or not the Walnut Lake Company was induced to make the contract by the fraudulent representations of the Bennett Company. To sustain the finding of the chancellor in behalf of the appellee, it is claimed that Bennett misrepresented his ability to sell cypress lumber. Concerning this matter, Ladd testified that some time-before the contract was entered into he met Mr. Bennett on the train, and they got into a conversation in regard to malting a contract to give Bennett the exclusive sale of the output of the saw mill when it was erected and put in operation. Nothing definite was arranged about the contract at that time. Bennett explained to Ladd that his company had a large selling force, and that they understood the handling of cypress lumber to good purpose; that they could handle it to better advantage than the manufacturers of the lumber. Craft conducted the negotiations leading up to the making of the contract. In regard to this he testified as follows: “We were desirous of a line of credit, and I went to see Mr. Bennett, and he represented that he had special ability to sell our stock, for the reason that he had a large selling force, and had experience in selling cypress, and represented that he would be able to help us out to the extent that we would probably need money until such time as we could make other arrangements. We insisted on . his going into the matter thoroughly, and he explained that he had had some four or five years' experience in selling cypress, and that, while he did not have any one in his office that had had more experience than he had, he would give the matter his personal attention. He related the experience he had had, and stated why he wished to make this contract with us; said that he had found our stock, that is, the stock that the old concern had turned out, to be a very superior grade; that he had found us hard competitors to get over, and for these reasons he specially desired the selling contract. In view of these representations and believing that he had the ability, we considered making the contract with Mr. Bennett, and Mr. Bennett and I went into the terms of the contract together. I made the contract with him under the representations made by him.”
In addition it is shown that, after the Bennett Company began to sell the lumber for the Walnut Lake Company, Ladd and Craft at different times each went to St. Louis and assisted Bennett in making sales of some lumber. At none of these times, however, did they go to St. Louis for that purpose. They went there for the purpose of borrowing money with which to run the mill, and while there went with Bennett to some old customers of Ladd who had bought lumber from him while he was engaged in the saw mill business prior to the time the Walnut Lake Compnay was organized. There is nothing in the testimony to indicate that Bennett’s corporation was not competent to handle, as sales agent, the putput of the Walnut Lake Company’s saw mill. The testimony shows that Alf Bennett, the president of the company, had had several years’ experience in the sale of cypress lumber, and that he employed another person to take charge of a department of the company for the sale of cypress lumber, and that the man so employed had had several years’ experience in selling cypress lumber. If it can be said that the representations made by Bennett amounted to anything more than a mere expression of opinion as to his company’s ability to act as sales agent for the Walnut Lake Company in the sale of the output of its mill, certainly it can not be said that the testimony is sufficient to sustain the charge of false representations as to the ability of the Bennett Company to act as sales agent under the contract.
It is also claimed that the decision of the chancellor should be upheld because the appellant committed certain breaches of the contract. One of these is that it failed to make certain remittances of the proceeds of the sales within the time specified in the contract. Another is that a customer who had purchased lumber put in a claim for damages due to the fact that the lumber shipped to it did not correspond with the grade mentioned in the order. The Bennett Company allowed this customer a reduction, but the deduction was not not large enough according to the contention of the Walnut Lake Company. It claimed that the Bennett Company damaged its reputation for fair dealing by not allowing the claim in full. Another alleged breach of the contract is that the Bennett Company did not sell the lumber in all instances according to the grades' of the Walnut Lake Company. The testimony shows that the Walnut Lake Company graded its lumber according to its own rules, and that its grading did not correspond with the grading rules of the Southern Cypress Manufacturers’ Association, which were considered standard throughout the territory in which the Walnut Lake Company’s stock was sold. To illustrate, the Walnut Lake Company’s number three common was equivalent to the association’s grade of number two common. In other words, the Walnut Lake Company graded its lumber one grade higher than the association’s corresponding grades. Old customers of Ladd understood this difference in the grading and purchased accordingly. New customers did not understand the difference in the grading, and on that account it was difficult to sell them. So in some cases the Bennett Company, in order to make sales to new companies, billed the lumber to them according to the grades of the association, but remitted the full amount of the proceeds, less its commission, to the Walnut Lake Company. Still another alleged breach of the contract is, that at one time the Bennett Company employed a sub-agent to sell some lumber and endeavored to charge up the Walnut Lake Company with his commission in addition to its own, but the testimony shows that when the Bennett Company’s attention was called to the matter it rectified the mistake. In regard to these alleged breaches of the contract but little need be said, for the reason that, if it be conceded they were breaches of the contract, the Walnut Lake Company waived them. The testimony shows that in the latter part of September, 1908, Mr. Ladd made a trip to St. Louis for the purpose of inducing Mr. Bennett to cancel the contract. At that time Mr. Ladd was in possession of all of the facts and circumstances connected with these alleged breaches of the contract. He told Mr. Bennett that he had not been living up to his contract, and that he wanted him to cancel it. He told Bennett that they needed more money. Bennett refused to cancel the contract but offered to secure for the Walnut Lake Company five thousand dollars, in addition to the fifteen thousand already loaned it. Ladd told Bennett that they had to have the money, and that, if he would not release them from the contract, they would take that. Bennett after-wards did arrange it and raised the five thousand dollars for the Walnut Lake Company, as he had agreed to do.
Thus it will be seen that Ladd acted with the full knowledge of all the facts and circumstances connected with the alleged breaches of the contract, and will be deemed to have waived them. Grayson-McLeod Lumber Co. v. Slack, 102 Ark. 79; Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9.
Can the appellant recover its prospective profits as damages? In the case of Ford Hardwood Lumber Co. v. Clement, 97 Ark. 523, it is held: “Where plaintiff agreed to perform certain work for defendant which he was prevented from doing by defendant’s fault, he is entitled to recover the profits which the evidence makes it reasonably certain that he would have made, had defendant carried out its contract.” See also Singer Mfg. Co. v. W. D. Reeves Lumber Co., 95 Ark. 363; Spencer Med. Co. v. Hall, 78 Ark. 336.
The burden was on the appellant to prove the amount of its alleged damages. Gay Oil Co. v. Muskogee Refining Co., 97 Ark. 502. In the present state of proof, as abstracted, the testimony for the appellant does not aid us in arriving at a correct conclusion as to the amount of damages suffered by appellant. It is true that Alf Bennett, the president of the company, testified as to the gross amount of profits his company would have earned, but, according to the terms of the contract, this would not be the compensation due it. In arriving at the prospective profits -we must look principally to the testimony of Mr. Craft, who was the secretary of the Walnut Lake Company, and who was introduced as a witness by it. Section 7 of the contract is the one which provides for the amount of commissions to be paid. Craft testified that, considering the invoices, appellant would not have made more than a gross profit of eighty cents per thousand feet. He also testified that it would cost appellant fifty cents per thousand feet to sell the lumber. This would leave it a net profit of thirty cents per thousand feet. Under clause 11 of the contract, local sales of lumber in less than carload lots were exempt from the commission. Lumber used by the Walnut Lake Company in the erection of its building was also exempt. Then, too, it will be remembered that appellant had been paid for the lumber sold by it up to the time that the Walnut Lake Company refused to permit it to continue to act as sales agent. Again, Craft says that in sawing up lumber a certain amount of stock is always accumulated, which can not be shipped at a profit. When all of these matters are considered, he estimates that no more than thirteen million feet of lumber could have been shipped by the Walnut Lake Company after the time it cancelled the contract. The net profits that would have accumulated to appellant from the sale of this lumber would be thirty cents per thousand feet on thirteen million feet, which amounts to $3,900, and this is the amount appellant is entitled to recover as damages ■in this case.
Section 958, Kirby’s Digest, provides that when any corporation has surrendered its charter the chancery court shall have jurisdiction to pay its debts and to distribute its assets among the stockholders according to their several interests. Pursuant to this section of the Digest, a receiver was appointed for the Walnut Lake Company when it surrendered its charter. During the pendency of the proceedings to wind up its affairs appellant filed its intervention claiming damages for the breach of the contract with it.
Inasmuch as we have held that the Walnut Lake Company had no right to cancel , the contract and that appellant was entitled to recover damages under it, it follows that the claim of appellant for damages was a debt of the corporation, and the assets of the corporation in the hands of the receiver are liable for the amount of this claim.
The decree of the chancellor will therefore be reversed, and judgment entered here for appellant in the sum of $3,900. | [
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Frauenthal, J.
This is an action instituted by the administrator of Lee Sullivan to recover from the St. Louis, Iron Mountain & Southern Railway Company damages for the pain and suffering endured by him by reason of being struck by one of defendant’s passenger trains, which resulted in his death. Sullivan was struck at a public crossing in the city of Malvern, where defendant’s tracks crossed Main Street. The depot was situated on the west side of the tracks, and next it was defendant’s main track. Just east of that track, and about nine feet therefrom, was a side track. On the east side of both tracks and a short distance therefrom was a hotel, at which Sullivan had boarded for several months just prior to the injury. On the morning of July 15, 1911, Sullivan left the hotel for the purpose of going to the depot, and to do this it was necessary for him to cross defendant’s tracks at Main Street. At this time a freight train was standing on the side track between the hotel and the depot, with its engine about one-half or three-fourths the distance across Main Street. Freight cars were attached to the rear end of the engine and extended southward for a distance of probably three hundred yards. The freight train was taking water at a standpipe located just south of Main Street, and was emitting large quantities of steam and making a great noise. Sullivan proceeded on foot to the crossing at Main Street and across the side track in front of the freight engine, and then stepped on the end of the ties of the main track, when a fast passenger train coming from the south on the main track approached the crossing, and Sullivan attempted to escape by drawing or stepping back, but he was struck by the pilot on the engine, and was so severely injured that he died sev'ral hours later. The trial resulted in a verdict for plaintiff for $1,500 damages. The defendant seeks a reversal of the judgment entered thereon, chiefly upon the grounds (1) that the undisputed evidence shows that Sullivan was guilty of negligence contributing to the injury he received, and (2) that the court erred in admitting certain testimony and in giving certain instructions.
Upon the trial of the case, there was testimony adduced upon the part of the plaintiff tending to prove that the defendant failed to ring the bell or sound the whistle on the passenger train, as required by the statute of this State, when it approached the crossing, and that said train was running at a high rate of speed through the city of Malvern.
While counsel for the defendant do not contend in their brief that there was no testimony sufficient to warrant a finding of negligence on the part of defendant, they chiefly contend that the undisputed evidence shows that the injury which Sullivan received was due to his own contributory negligence. They earnestly argue that if Sullivan had exercised ordinary care in looking or listening after passing the freight engine, and before he stepped upon the ties of the main track, he would have seen the approaching passenger train in the broad daylight, when this injury occurred.
The care that is required by law of a traveller at a public crossing over a railroad track has been repeatedly stated by this court. It has been held that it is the duty of the traveller along the highway attempting to cross a railroad track to look and listen for the approach of trains; and if he fails to do this, he is guilty of such negligence as will preclude a recovery for an injury resulting from the failure to exercise that care. The traveller must look in both directions, and continue that vigilance until the point of danger is passed; and where the undisputed evidence shows that the injured person hacj. an opportunity to see or hear the approaching train at or before the time of the injury, and that his opportunity was such that he could not have failed to have seen or heard such train in time to have avoided the injury if he had used ordinary care in looking and listening, then the law declares him guilty of negligence barring him of recovery. On the other hand, where the evidence is conflicting, the question as to whether or not a traveller at a public crossing did look and listen for an approaching train before attempting to cross, and whether or not he did continue that vigilance until the point of danger was passed, is ordinarily one of fact for the jury to determine. This is especially so where the moving train is hid from his view by reason of some obstruction. This exception is illustrated by the following cases:
Thus, in the case of St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227, a traveller stopped at a railroad crossing and looked and listened, but failed to hear an approaching train, which was making little noise on account of sleet, and he was unable to see its headlight by reason of an obstructing train and the converging rays of an arc light and the headlight of a freight train standing near; and it was under those circumstances held that the question as to whether in attempting to cross the track he was guilty of contributory negligence was properly left to the jury.
In the case of St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241, a traveller crossed several tracks at a public crossing and was injured, but there was evidence that he looked and listened before going on the track where he was injured, and on account of obstructions was unable to see the approaching train in time to avoid injury, and was unable to hear it on account of other noises. It was there held that the question as to whether he was guilty of contributory negligence was properly submitted to the jury.
In the case of St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19, a traveller at a public crossing attempted to pass over a railroad track while on foot. A freight train was standing upon a side track, and, the traveller, passed over this track in front of the freight engine. As he stepped on to the main track, a fast passenger train struck him and killed him. In that case there was testimony tending to show that the traveller looked and listened for the approaching train, but that he was prevented from discovering it on account of its rapid approach and the fact that his vision was obscured by the escaping steam from the freight engine. In that case this court said: “We are of the opinion that where the evidence shows, as it does in this case, that the deceased was making some effort to discover dangers on the track over which he was attempting to pass, and that the escaping steam brought about a condition which might have prevented his discovering the danger, even though by the exercise of greater care he might have discovered it, it was peculiarly a question for the jury to determine whether under all the circumstances deceased acted as a prudent person, or whether he was guilty of negligence in attempting to cross under those circumstances.”
In the case at bar, the freight train had been standing upon the side track for more than ten minutes just before Sullivan was injured, and during that time its engine was standing upon and obstructing the crossing at Main Street for a distance of from one-half to three-fourths the width of the street. The freight cars on the side track were between Sullivan and the main track,' and obstructed the view towards the south, the direction from which the passenger train came. The freight engine was emitting great quantities of steam and making a great noise. There was testimony tending to prove that, after passing in front of the freight engine, Sullivan listened and looked to the south, the direction whence the passenger train was approaching; and we are of the opinion that there was some testimony from which the jury were warranted in finding that the escaping steam from the freight engine obscured his view and prevented his discovering the approaching passenger train. Under these circumstances, we think it was fairly a question for the jury to determine whether Sulivan acted as a prudent person, or whether he was guilty of negligence in attempting to cross the main track.
It is urged that the court committed error in permitting the introduction in evidence of one of defendant’s rules or orders providing where its employees should stop its trains to take water in the city of Malvern. It appears that just south of the Main Street crossing there was a standpipe at which engines took water, and there was also a standpipe some distance north of this crossing, which was used for the same purpose. Some days before the injury there was posted at the depot at Malvern the following order: “Train and engine men. In taking water at Malvern by north bound trains, arrange to take water from north standpipe. This in order to keep from partially blocking the street crossing, about which we have received serious complaints from the mayor and marshal of that town.” It is argued that this was a private rule of the defendant company, intended simply for the guidance of its employees, and that it did not fix any standard of duty which it owed to any traveller at such crossing.
It has been held by some courts that a violation of the rules prescribed by railroad companies for the management of its trains and the conduct of its employees tends to show negligence, and evidence thereof is admissible for that purpose. 10 Enc. Ev. 570, and cases there cited in footnote. It has also been held by such courts that such evidence is also relevant on the question of contributory negligence, in the event such rules have been published or posted for such a time and so publicly as that they might have come to the knowledge of some injured person and were relied upon by him. Other courts, however, have held that the law itself fixes the degree of care which shall be exercised by a railroad company in the operation of its trains, and that such company could not lessen the degree of care thus exacted of it by law by the adoption of any rule or regulation, and that it would be unreasonable to exact a higher degree of care than that required by law on account of any such rule or regulation. Railroad Co. v. Clark, 136 Ala. 450; Isaackson v. Duluth R. Co., 77 N. W. (Neb.) 433; Fonda v. Railroad Co., 71 Minn. 438.
In the present case, however, we do not think it necessary to pass on this question, for the reason that the purpose of this rule or order which was introduced in evidence was to prevent the blocking of street crossings in the city of Malvern, and this same prohibition is prescribed by the statutes of this State. By the act of the Legislature approved May 10, 1907, it is made a penalty for any railroad company to suffer or to permit its freight trains to remain standing on any public highway or street for more than ten minutes, and for failure to leave a space of sixty feet across such highway or street. (Acts of 1907, p. 687). This is a public act, designed for the protection of the public, standing upon an entirely different footing from the private rules or regulations of the railroad company. The statute fixes the standard of care by which the conduct of the company must be tested; and a failure to observe that degree of care is negligence, fastening upon the company a liability for a consequent injury.
In the present case the testimony tended to prove that the engine of the defendant’s freight train stood upon and obstructed Main Street for more than ten minutes. The above statute forbade this, and the private rule made by the defendant for the government of its employees prescribed no greater care, and required of its employees no greater duty, than that which the statute prescribes. The defendant could not therefore be injured in its legal rights by the introduction of this order. It is, however, claimed that the fact that defendant’s engine obstructed the street crossing did not cause or contribute to the injury which Sullivan received, and on this account the order was an irrelevant matter misleading the jury. The fact that the engine was standing upon the street tended, we think, to further obstruct at this crossing the view of the train approaching from the south. The engine was between Sullivan and the direction whence this passenger train was coming, and if the street crossing had been clear of any obstruction he could more readily, and probably would, have seen the approaching train before he crossed over the side track. The situation was made more hazardous by the obstructing engine on the street, and this was doubtless one of the reasons for the passage of the above legislative act and the promulgation of the above order. We are therefore of the opinion that this was a matter that was relevant to the question as to whether or not Sullivan was guilty of contributory negligence.
It is urged that the court erred in instructing the jury in effect that, if Sullivan was struck and killed by a train when he was crossing over defendant’s track, this was prima facie evidence that it was due to defendant’s negligence. It is conceded that, by virtue of our statute making a railroad company responsible for all damages done to persons and property by the running of its trains (Kirby’s Digest, § 6773), a prima facie case of liability against the company is made by proof of such injury occurring by reason of the operation of its trains. St. Louis & S. F. Rd. Co. v. Carr, 94 Ark. 246. It is claimed, however, that the fact that plaintiff was not rightfully on the crossing at the time of the injury, or that he acted without' due care, overcame this statutory presumption. It is true that this statutory presumption of negligence could be rebutted by proof that the defendant was free from negligence, or that the plaintiff was barred from recovery by reason of proof of contributory negligence on the part of Sullivan. But neither of these principles is inconsistent'with or alters the rule that the negligence of the railroad company will be presumed from proof that the injury itself occurred by reason of the running of its trains. Plaintiff was therefore entitled to an instruction to that effect.
Objection is made to instruction No. 6, which was given in behalf of plaintiff, in which it is in part stated that if Sullivan, before going upon the crossing where he was struck and killed, had looked and listened both ways for the approaching train, “then it can not be said as a matter of law that he fáiled to look and listen as required by law.” It is claimed that under this instruction the deceased would have been free from negligence if he looked and listened at a great distance from the crossing, and then failed to look and listen again before he reached the point of danger. We do not think, however, that this instruction is open to this objection, especially when taken in connection with other instructions given by the court on this question. The instruction manifestly refers to the part of the crossing or track on which Sullivan was struck, and not to any other track or place, and it required him to look and listen in going on and crossing over that track, and therefore in effect required him to look and listen until he passed the point of danger. St. Louis, I. M. & S. Ry. Co. v. Prince, 101 Ark. 315.
In this connection the court gave the following instruction to the jury: “13. You are told that it was not sufficient for the deceased to have looked for the approaching train before he got on the track in front of the engine; but it was his duty to have continued to be on guard until he was entirely across the main track of the railroad. And ■ if you believe from the evidence that, after he passed the freight train, he could have looked and listened in time to have avoided the injury, then the plaintiff can not recover in this case.” In instruction No. 14, given on behalf of the defendant, the court further instructed the jury: “It is not sufficient for him to look once or even several times; but he must continue to look and listen until the danger is passed. In this case it was not sufficient for deceased to look and listen as he approached the freight engine, but it was his duty to look and listen after he passed the freight engine; but if you believe from the evidence that if he had looked immediately after' he passed the freight engine he could have seen the approaching passenger train in time to have avoided injury, the plaintiff can not recover in this case.”
The instructions given upon the part 'of the plaintiff and defendant on this issue were not contradictory, but were in harmony with each other, and correctly announced the law relative thereto.
At the request of the plaintiff the court gave the following instruction to the jury: “9. You are instructed that while the fact that there was a freight train standing on the side track, the engine of which partially obstructed the crossing and was making a loud noise, if such were the facts, would impose upon deceased a greater degree of care for his own safety in approaching said crossing, still if these conditions existed, and the defendant was responsible for them, this would impose upon the defendant company a corresponding greater degree of care in so operating its trains that, if deceased was rightfully using the crossing and in the exercise of ordinary care for his own safety, he might not be injured in so doing.”
It is urged that by this instruction a greater degree of care than ordinary care was imposed upon the defendant. This contention, however, we do not think is sound. The instruction itself does not state that the defendant was required to exercise more than ordinary care. In effect, it only says that, if the situation and circumstances were more dangerous, then greater care should be exercised to avoid doing an injury. But this does not mean that the defendant was required to exercise a greater degree of care than ordinary care. Ordinary care is but reasonable care; and the degree and the exercise of care necessary to constitute it depends generally upon the circumstances of each particular case. Ordinary care has been defined by this court to be such care as a reasonably prudent and cautious person would exercise under similar circumstances. Bizzell v. Booker, 16 Ark. 308; Hot Springs St. Rd. Co. v. Hildreth, 72 Ark. 572. The degree of care varies with the circumstances of each case, and necessarily depends upon the hazard or danger. It would not be improper to say that a greater degree of care should be exercised when the situation or circumstances is more dangerous or hazardous. Under such circumstances, a reasonably prudent and cautious person would exercise greater care than when the situation involved less or no danger. The exercise of the greater care under more dangerous and hazardous circumstances would therefore only be the exercise of that care which a reasonably prudent and cautious person would exercise under similar circumstances, and would therefore be at last only ordinary care. And this, we think, is but the meaning and effect of the instruction given.
The rulings made by the court relative to other instructions given and rejected are complained of and urged to be prejudicial. We have examined these, and find that the objections thus urged are similar in effect to those made to the instruction above referred to, and we are of the opinion that they were not erroneous, for the same reasons. On an examination of the entire case, we fail to find any error which calls for a reversal of the judgment. It is accordingly affirmed. | [
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•Kirby, J.,
(after stating the facts). The question for determination is whether appellees are entitled to a lien on the premises for the contract price of the work done, some of the materials not being placed upon the property, or only for the value of the pipe and fixtures actually put upon the premises. The statute provides: (sections 4970-1-2, Kirby’s Digest):
“Sec. 4970. Every mechanic, builder, or other person who shall do or perforin any work upon or furnish any material * * * for any building, erection, improvement upon land * * * under and by virtue of any contract with the owner or proprietor thereof, or his agent, contractor, upon complying with the provisions of this act, shall have his work or labor done,- or materials * * * furnished, a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or if such building, erection, or improvement be upon any lot of land in any town, city or village, then such lien shall be upon such building, erection or improvements and the lots or land upon which the same are situated.”
“Sec. 4971. The entire land, to the extent aforesaid, upon which any building, erection or other improvement is situated, including as well that part of said land which is not covered with such building, erection or other improvements as that part thereof which is covered with the same, shall be subject to all liens created by this act, to the extent and only to the extent, of all the right, title and interest owned therein by the owner or proprietor of such building, erection or other improvement for whose immediate use or benefit the labor was done or things furnished.”
“Sec. 4972. The lien for the things aforesaid, or work, shall attach to the buildings, erection or other improvements for which they were furnished or work was done, in preference to any prior lien existing upon said land before said buildings, erections, improvements, were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter,” etc.
Appellant contends that it is only liable for the agreed value of the material furnished and the work done upon the property belonging to the owner and actually placed thereupon, and that no lien could be fixed against it for work done and the materials furnished in laying the pipe through the lands of other persons, with their consent, to reach the water main.
The premises and appurtenances passed to appellant by the conveyance thereof, and it is not disputed that the water service was installed upon the property, as already indicated, and in use when it was conveyed. It became, when constructed, an appurtenance to the property and passed with it, so far as the rights of the original owner were concerned.
In Philbrick v. Ewing, 97 Mass. 133, the court held that a pipe line running from a sink in a house across the lot upon which it was situated, and across the lot of another by his consent to a source of water supply in which he had rights, passed to the grantee of the owner of the building as appurtenant thereto, although it was not mentioned in the deed of conveyance, and that he could not after a sale enter upon the lot of the other person and take the pipe therefrom arid carry it away; saying:
“The pipe was put in by his tenant, and afterwards purchased by him from the tenant as one entire thing. It was designed for the use of tenant’s house, and for no other purpose. If it extended into the land of a third person and into a highway, it does not appear that the owner of the land objects to its continuance or authorizes defendant to remove it. We are therefore of the opinion that the whole of it, at the time of its conveyance to plaintiff, was a fixture and annexed to the house and passed by the deed. We suppose that it is a common thing in cities for the owner of a house to connect it by pipe with the pipe in the street belonging to the water company, and that such a pipe would pass by the sale of the house, although the owner of the house did not own the soil of the street. So, in case of a drain pipe connected with a common sewer, on the sale of a house the vendor could not take it away.” See also Lampman v. Milks, 21 N. Y. 505; Paine v. Chandler, 134 N. Y. 385; Mulrooney v. O’Bear, 71 S. W. (Mo.) 1019; Beatty v. Parker, 141 Mass. 523.
In. this last case, a mechanics’ lien was enforced against the property for the whole cost for putting a drain pipe therein from the house to the sewer in the street; the court saying: “The drain pipe was part of the house, and the house was built upon a street in which there was a sewer and was fitted for the use of the city water to which connection with the sewer was essential. The pipe inside of the house and outside of it was necessary to the use of the house, and a part of it and was included in the contract for building it. The house will be incomplete without the pipe, and it would pass by deed of the house as a part of it. It is immaterial whether the fee of the land in the street was or was not in the owner of the lot. It must be assumed that the pipe was rightfully laid to the séwer, even if the fee in the street was not in the respondent. The pipe did not become the property of the owner of the fee of the street, but belonged to the owner of the house, and he had an interest in the soil of the street to sustain his pipe which could pass by deed of the lot. Currier was employed by the respondent to erect the house, including the laying of the pipe.”
It will not be questioned that the owner of the fixtures and service had the right to the use of it after its construction to supply the premises with water, the purpose for which it was constructed, and that it was an improvement thereon, within the meaning of the statute. Neither will it be questioned that it will pass appurtenant to the premises upon a conveyance thereof, so far as the owner is concerned, nor that upon a sale of the premises under the mechanics’ lien law the owner’s right, title and interest therein would pass to the purchaser at such sale. Appellants, therefore, have the right to such service and improvement with the property so purchased, so far as the record here shows, it not being claimed that the adjacent owners, through whose lands the pipe extended beyond this property to the main have complained or objected to the use thereof. The purpose of the mechanics’ lien law is to secure the workmen and mechanic for the labor done and materials furnished in the improvement to the property, and it is to be liberally construed to effectuate this purpose. It was necessary to lay the line of pipe from the building to the main, in order that the service could be installed and the improvement made, and it is assumed that the pipe was rightfully laid through the lands of the adjoining owners to the water main. It did not thereby become their property, and the right to the use thereof belonged to the owner of the house upon which the improvement was made and passed to appellants under their purchase. The lien attached to the premises, building and ground upon which it was situate for the entire'value of the improvement, notwithstanding part of the pipe line was situated off the property on adjoining lands. For other cases permitting a mechanics’ lien for pipes laid in the streets and not entirely upon the premises upon which the lien was sought to be foreclosed, see Steger v. Arctic Refrig. Co., 89 Tenn. 458, 14 S. W. 1087; Wells v. Christian, 76 N. E. 518; O’Neal v. Taylor, 53 S. E. (W. Va.) 471; Nat’l Foundry & Pipe Works v. O’Connor Water Co., 52 Fed. 43.
Appellants rely strongly upon the case of Eufaula Water Co. v. Addyston Pipe Co., 8 So. 25, in support of their contention! That suit was to recover for piping materials furnished to be used in the construction of water works in the city of Eufaula and to fix a lien therefor and enforce it against a one-acre lot of the water company situated just beyond the corporate limits of the city. The lot was the site of the water company’s pumping station which forced the water into its stand pipe one-half mile distant, and the piping furnished was used in making the line between the pumping station and the standpipe, a distance of three thousand feet, and extended from a point twenty-five feet within the" lot in question outside the building thereon to the reservoir or standpipe, being for its whole length, except twenty-five feet, on land which did not belong to the water company, but in which it had an easement for the purpose of laying the pipe. The court denied the lien for the full amount of the claim. That was an attempt, however, to enforce a mechanics’ lien for materials furnished, which were used in the construction of a waterworks system for a city against a particular part of it, the lot on which was situated the pumping station, when the improvement' was not made upon the particular lot, but was an improvement of the entire water plant, and a sale of the particular part of the property against which the lien was attempted to be enforced if the purchaser were permitted to remove the property bought, would have destroyed the water supply system in which the entire city was interested. There is no analogy between that case and this, and we regard it as entitled to little weight in favor of appellant’s contention here.
The decree is affirmed. | [
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McCulloch, C. J.
Both parties to this action claim title under certain tax sales to the forty-acre tract of land in controversy, appellee (who was plaintiff below) claiming title under a forfeiture to the State in 1877, and appellant claiming under a subsequent purchase at tax sale in the year 1901 for the taxes of 1900. The lands are wild and unoccupied. Appellee instituted this action to cancel appellant’s tax title, alleging that the same was void on several grounds. Appellant answered, assailing the validity of the tax forfeiture under which appellee claims title, and also denied that the alleged defects existed in his own title. The chancery court decreed in favor of appellee; holding that its title under the tax sale of 1877 was valid and conveyed the title to the land, and that the subsequent tax sale under which appellant claims title was void.
The deed from the State Land Commissioner to appellee’s grantor, and likewise the clerk’s tax deed to appellant, each constitutes prima facie evidence of a valid tax sale; but neither is conclusive against the other where tax titles are conflicting. Rhea v. McWilliams, 73 Ark. 557.
Appellee’s right to maintain this action is challenged on the ground that it is a foreign corporation and has not complied with the laws of the State by paying the franchise tax prescribed in the act of 1907. It does not appear in proof that appellee was transacting any business in this State, and did not therefore fall within the terms of the statute requiring payment of the franchise tax. Section 1, act May 29, 1907. See also White River Lumber Co. v. Southwestern Improvement Association, 55 Ark. 625; Rachels v. Stecher Cooperage Works, 95 Ark. 7.
Appellee’s title is assailed on the ground that the tax sale upon which it is based is void for two reasons, first, that the clerk failed to attach his certificate to the delinquent list or to the record of tax sales, and, second, that the sale was made on a day not authorized by law.
As to the first assault, it can be disposed of by the statement that there was no statute at that time expressly requiring the clerk to certify the delinquent list or to make any particular certificate to his record of the tax sale. The only certificate which the statute at that time required the clerk to make of sales to the State was the one to be transmitted to the Auditor after the date of the expiration of the time for redemption.
The revenue law then in force provided that tax sales should be made on the second Monday in June; but the General Assembly of 1877 passed a special act postponing the collection of delinquent taxes for the year 1877 in Monroe County, and providing that the tax sale should be held on the third Monday in August; and that was the day on which the sale in question was made. See act March 7,1877.
There is- nothing in the record upon which a successful assault on the validity of appellee’s tax title can be based, therefore it is our duty to treat it as valid.
There is an agreement to the effect that the record shows there was no warrant made by the county clerk authorizing the collection of the taxes for the year 1900. This renders the sale void. Keith v. Freeman. 43 Ark. 296; Liddell v. Stone, 101 Ark. 328.
It follows that the chancery court was correct in sustaining appellee’s title and in declaring appellant’s title to be void.
Decree affirmed. | [
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McCulloch, C. J.
Appellants executed to one J. O. Gunter two negotiable promissory notes, each for the sum of $837.10, due and payable three and six months, respectively, after date, and Gunter assigned the notes to appellee, a banking corporation doing business in the city of Fayetteville, Arkansas. Appellee instituted this action to recover of appellants the amount of the two notes with interest. Appellants, for defense to the action, pleaded want of valid consideration for the execution of the notes sued on, alleging that Gunter was the soliciting agent for a certain life insurance company; that the notes were executed to him for the first annual premium on life insurance policies issued by said company on the lives of eighteen young men, the amount of the several policies of insurance to be payable on the death of the young men to Special School District of Rogers, Benton County, Arkansas; that neither the school district, nor any of these appellants, had an insurable interest in the lives of the men mentioned in the policies, and that said insurance contracts were void, and, consequently, the said notes given for premiums were without legal consideration. It is further alleged that appellee had full notice of the above stated facts when it purchased the notes from Gunter, and was therefore not an innocent purchaser for value.
The court, on motion of appellee, struck out the allegations concerning the consideration for the notes, leaving in the answer only the allegation of payment of the notes by the school district, and on that issue evidence was introduced, upon which there was a finding in favor of appellee.
The question presented for our consideration on this appeal is whether or not the allegations of the answer, concerning the consideration for the notes, set forth facts sufficient to constitute a defense to the action. It is settled by a decision of this court, supported by the great weight of authority, that a policy of life insurance issued to one who had no insurable interest in the life of the person named, but who pays the premiums for the chance of collecting the policy at the death of such person, “is invalid because it is a wagering contract and against sound public policy.” McRae v. Warmack, 98 Ark. 52.
It necessarily follows that a written obligation to pay the premium on such a policy is without valid consideration, and therefore unenforceable. The defense is available against an assignee of a note who purchased with notice of the facts concerning the consideration, but not against an innocent purchaser for value before maturity of a negotiable note. German Bank v. DeShon, 41 Ark. 331; Joyce on Defenses to Commercial Paper, § 288.
No rule of evidence is violated by admitting oral proof of the consideration for a promissory note for the purpose of showing want or failure of consideration, or illegality of consideration. Martin v. Tucker, 35 Ark. 279; Taylor v. Purcell, 60 Ark. 606; Hencke v. Standiford, 66 Ark. 535; Joyce on Defenses to Commercial Paper, § 322; 2 Parsons on Bills & Notes, p. 501; 8 Cyc. pp. 252 et seq.
The answer stated facts sufficient to show that the consideration for the notes was illegal, and that appellant was not an innocent purchaser. 'It was error, therefore, for the court to require those allegations to be stricken from the answer.
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McCulloch, C. J.
C. J. Miller owned three lots in Cleburne County, Arkansas, described as lots 4, 5 and 6 of block 69 of West Addition to the town of Sugar Loaf (now changed to Heber). He mortgaged them to Mattison to secure a debt of $500, and subsequently sold and conveyed lot 6 and the west half of lot 5 to Mrs. Elsie Burt, wife of W. L. Burt, for the sum and price of $1,250, of which $450 was paid in cash at the time of the conveyance, $500 was to be paid to Mattison in discharge of said mortgage debt when the same matured, and the remainder was evidenced by two promissory notes for $150 each, payable at subsequent dates. It was agreed, according to the uncontroverted testimony, that the deed of conveyance should recite Mrs. Burt’s assumption of the Mattison debt as a part of the consideration, and also a reservation of the vendor’s lien to secure payment of the two . purchase money notes. W. L. Burt is a lawyer, and prepared the deed, Miller relying on him to properly incorporate said recitals as to consideration. But Burt failed to do that, and drew the deed reciting the consideration as being paid in full. Miller executed the deed in that form, relying on Burt’s representation that it contained the proper recitals as to the consideration, ánd had no knowledge of the omission, it appears, until this litigation arose. None of the indebtedness, either the mortgage to Mattison or the balance of the purchase money to Miller, has been paid, except that Burt paid some of the interest to Mattison on his mortgage. Subsequently, W. L. Burt, who represented A. B. Banks & Company in soliciting insurance business, became indebted to the latter in the sum of $1,684.96 on insurance premiums collected, and after the debt was incurred his wife, Mrs. Elsie Burt, executed a mortgage to secure $484.96 on real estate described as “lot 6 and west half of lot 5, in West Addition to the town of Sugar Loaf (Heber), Arkansas,” the number of the block being omitted. The mortgage deed described a note for $484.96, but no note for that amount was executed, the only one executed being for the sum of $1,684.96, the full amount of the debt, which was due and payable one year after date.
Mattison instituted this suit to foreclose his mortgage, and .made Miller, Mrs: Burt, and Banks & Company parties defendant. Mrs. Burt, being a nonresident of the State, was constructively summoned, but did not appear to defend. Miller filed his answer and a cross complaint, setting forth the facts concerning his alleged lien for purchase money, and prayed for a foreclosure against Mrs. Burt, subject to the mortgage of Mattison. Banks & Company also filed an answer and cross complaint against Miller and Mrs. Burt, denying the allegations of Miller’s cross complaint as to his asserted lien, and praying for the reformation and foreclosure of their said mortgage. After the commencement of the suit and the filing of the cross complaints, Mrs. Burt executed a new mort gage properly describing lot 6 and west half of lot 5, block 69, and this was introduced in evidence over Miller’s objection.
On final hearing of the cause the court rendered a decree, foreclosing Mattison’s mortgage; also reforming the mortgage to Banks & Company in accordance with the prayer of their cross complaint so as to properly describe the property, and foreclosing the same subject to the Mattison mortgage; also foreclosing Miller’s lien as vendor, subject to the mortgages of Mattison and Banks & Company. Miller appealed to this court.
The controversy here is solely between Miller and Banks & Company as to the priority of their respective liens.
The vendor of real estate, though he makes an absolute deed to the purchaser acknowledging receipt of the purchase money, has an equitable lien for unpaid purchase money as against the vendee and all others except innocent purchasers for value. Shall v. Biscoe, 18 Ark. 142; Scott v. Orbison, 21 Ark. 202; Holman v. Patterson, 29 Ark. 857.
The mortgage to Banks & Company was to secure an antecedent indebtedness, no new consideration passing to the mortgagor. In Johnson v. Graves, 27 Ark. 557, this court held that, where a creditor takes a mortgage merely as security for antecedent indebtedness, without advancing any new consideration, he is not entitled to the protection accorded.
In the recent case of Haldiman v. Taft, 102 Ark. 45, we reviewed the' line of decisions of this court holding that “one who takes negotiable paper before maturity, in payment of or as security for an antecedent debt, and without notice of any defect, receives it in due course of business, and is a holder for value and free from any equities of the maker or indorser.”
The distinction is thus marked between negotiable and nonnegotiable paper with respect to the consideration for an antecedent debt. But in the present case there is no note in existence as described in the mortgage, the debt being a part of the larger sum evidenced by negotiable note of that date.
The mortgage also fails to properly describe the lots sought to be conveyed. Therefore, the mortgage is not enforceable except by resort first to equity in order to reform it. The situation as between the parties claiming liens, both valid in equity, against the same debtor, calls for the application of the maxim that “between equal equities the first in order of time shall prevail.” Byars v. McDonald, 12 Ark. 285. Another statement of the principle is that, “as between persons having only equitable interests, if their interests are in all other respects equal, priority in time gives a better equity.” 16 Cyc. 189. Applications of this principle are found in the following cases: Phillips v. Phillips, 4 DeGex, F. & J. 208, 45 English Reprint 1164; Hardin v. Harrington, 11 Bush (Ky.) 867; Carlisle v. Jumper, 81 Ky. 282; Wailes v. Cooper, 24 Miss. 208; Perkins v. Swank, 43 Miss. 349; Briscoe v. Ashby, 24 Grat. (Va.) 454; Camden v. Harris, 15 W. Va. 554; Johnson v. Hayward, 74 Neb. 157, 5 L. R. A. (N. S.) 112.
It follows that the chancellor erred in giving priority to the equitable lien of Banks & Company over that of appellant Miller. The last mortgage from Mrs. Burt to Banks & Company, correcting the description of the lots, was executed during the pendency of this litigation and with full notice of Miller’s lien; therefore it can not avail anything.
As the cause must be reversed for further proceedings, we deem it appropriate to call attention to the fact that the cause proceeded to final hearing without service of process on Mrs. Burt, constructively or otherwise, as to the cross complaints. This was error. Ringo v. Woodruff, 43 Ark. 469; Pillow v. Sentelle, 49 Ark. 430. She was one of the original defendants in the action, and was constructively summoned as such; but it is essential, in order to give the court jurisdiction over her as to the causes of action of appellant Miller and Banks & Company, that she be summoned to answer the cross complaints unless she voluntarily enters her appearance. The decree is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Wood, J.,
(after stating the facts). The appellant’s abstract is a transcript of the record of the entire proceedings of the court below. This does not comply with rule 9 of this court, which requires “an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to the court for decision.”
This rule was intended to conserve the time of the court and to relieve it of the necessity of reading the entire record of the proceedings below in order to understand the questions upon which appellant relies for reversal of the judgment appealed from. Appellee does not complain' of this, and we will not affirm the case for want of a proper abstract, because upon an examination of appellant’s brief we find there is a sufficient abstract of the proceedings, with the exception of mention of the motion for a new trial, to comply with the requirements of rule 9.
After reading the entire record, we are of the opinon that the issues of appellant’s and. appellee’s negligence, as raised by the pleadings, were questions of fact for the jury, and it could serve no useful purpose as a precedent to set out and discuss in detail the evidence upon which the verdict was rendered. Suffice it to say that there was evidence on the part of the appellee tending to prove the allegations of negligence set up in her complaint, and, on the other hand, there was evidence on the part of the appellant tending to prove that appellee was negligent on her part, as set forth in appellant’s answer. These were questions of fact for the jury, and their verdict is amply sustained.
Appellant contends that instructions 1 and 2 are abstract and not applicable to the facts as presented by the testimony embodied in this record, but we are of the opinion that the instructions were bottomed upon the evidence and fairly submitted the issues to the jury.
The contention of appellant that appellee had to give it notice of the conditions existing here under the evidence, when the passengers were getting on and off the train, can not be sustained. It was the duty of the employees of appellant to be present and to take notice of these conditions. Appellant is presumed therefore to have had knowledge of them. No duty to notify it devolved on appellee.
These and three other instructions which the court gave, and which the appellant has not noticed in its brief, contain familiar principles of law which have already been announced and approved by this court, and it is unnecessary to discuss them. Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548.
Finding no error, the judgment is affirmed. | [
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McCulloch, C. J.
Appellants owned a tract of land, containing 591 acres, situated in Craighead County, and appellee was engaged in the mercantile business in the city of Jonesboro, being the owner of a stock of general merchandise. Negotiations were begun between the parties looking to a sale by appellants of their land to appellee, and a purchase by them from appellee of the latter’s stock of merchandise. The negotiations finally resulted in a bargain whereby appellee became the purchaser of the land at the sum of $25 per acre, and appellants purchased the stock of merchandise, the price thereof to be credited on the purchase price of the land. A written memorandum of the contract was made and signed by the parties, in which it was agreed that “the price of the above stock to be the wholesale cost of the same.” The parties proceeded jointly to take an inventory of the stock of goods, and it amounted to the sum of $10,233, which was credited on the purchase price of the land, and appellee paid the balance, receiving a conveyance. Appellant took possession of, the stock of goods, and put on a special sale, and thereby disposed of a considerable quantity of it. The inventory of the stock was taken according to the marks on the articles, which the evidence shows was at the original price paid and 10 per cent, added for the estimated expense of freight charges, drayage, etc. Appellee had been in business at Jonesboro for about thirty years, and the stock of goods contained accumulations of several years. . Appellants assert that they did not know, when the inventory was taken, that the marked prices on the goods included anything above the actual prices paid in the wholesale market, and that they did not make discovery of that fact until several months after the stock of goods had been delivered to them. They instituted this action at law against appellee, alleging that the latter had, by fraud, deceit and misrepresentation, induced them to accept the stock of goods under the belief that they were getting the same at original first cost without other charges, and they prayed for the recovery of damages in the sum of $930.27, which was the amount of the added 10 per cent. Appellee answered, alleging that the contract actually entered into by the parties was that the goods should be taken at marked cost, and that one of appellants reduced the contract to writing and changed the wording so as not to correctly represent the real agreement. He denied the allegations as to fraud, deceit and misrepresentation, and alleged that the inventory had been taken according to the contract and with full knowledge on the part of appellants of the fact that it was taken according to the marked cost on the goods, including estimated freight charges, etc. Appellee made his answer a cross complaint, and prayed for the reformation of the contract, and on his motion, without objection on the part of appellants, the cause was transferred to the chancery court, where it proceeded to a final hearing, resulting in a decree in appellee’s favor.
A considerable amount of testimony was taken, mostly of merchants of the city of Jonesboro, and it appears, by the preponderance of the testimony, to be customary in that city for merchants, in marking the cost price upon their goods, to add a percentage sufficient to cover the estimated expense of transportation and placing upon the shelves ready for sale. The testimony also warrants a finding that upon the class of goods held in stock by appellee 10 per cent, was approximately a correct estimate of such charges. The chancellor found that the contract did not correctly express the real intention of the parties, and that it should be reformed so as to make the marked cost on the packages the basis of the sale. He also found that there was no misrepresentation or bad faith on the part of appellee.
Let it be said in the outset that there is no testimony in the record tending to show any actual bad faith on the part of appellee. The utmost that appellants claim is that the contract, when interpreted according to the language used, meant the original price paid by appellee without any other charges added; that the inventory was taken without any knowledge on their part of the added percentage to cover charges of transportation, etc., and that appellee’s conduct in failing to disclose to them that 10 per cent, had been added for such charges amounted in law to fraudulent concealment.
Before proceeding to determine whether the chancellor was right in decreeing a reformation of the contract, it is first necessary that we decide what interpretation should be placed upon that part of the contract which fixes the price at which the goods were to be taken.
The term “wholesale cost” is not free from obscurity, and is to some extent ambiguous, making it necessary to look to the surrounding circumstances to determine what it really means as used by the parties in this contract. It has generally been said, in the adjudged cases, that such terms as “actual cost,” “estimated cost,” “first cost,” “original cost,” “prime cost,” and “wholesale cost,” are indefinite, and that surrounding circumstances must often be looked to in order to arrive at a proper interpretation. Goodwin v. U. S., 10 Fed. Cases 625; Hazleton Tripod Boiler Co. v. Citizens Street Ry. Co., 72 Fed. 317; Herst v. DeComeau, 31 N. Y. Superior Court, 590; McCoy v. Hastings, 92 Iowa 585; Holloway v. Frick, 149 Pa. St. 178; Eagan v. Clasbey, 5 Utah 154; Boaz v. Owens, (Ky.) 45 S. W. 876.
There is a difference between the terms “wholesale price” and “wholesale cost,” though they are often used interchangeably, as was done by many of the witnesses in this case. If the former had been made use of in the present case, it would doubtless be construed to mean the present price of the goods in the wholesale market; in other words, the present market value. It is evident, however, that the term “wholesale cost”-’ was nót used in that sense, for the subject of the sale was an old stock of goods, and the conduct of the parties in taking an inventory plainly shows that the prices paid by appellee were to be considered, and not present prices or market value. Now, when it is seen that the parties meant to fix a basis of sale according to the prices which had been paid by appellee, it is evident, when we construe this language in the light of the surrounding circumstances and the almost universal custom which prevailed in the city of Jonesboro, that the term was used in a sense which includes the transportation charges and means the wholesale cost of the goods in appellee’s house in the city of Jonesboro. It does not mean the selling price in the wholesale markets, nor the selling price at wholesale in Jonesboro; but it means the original cost of purchasing the goods in the wholesale market and of laying them down in the business house at Jonesboro. We are of the opinion, therefore, that the contract should have been construed to mean that, and that it needed no reformation to conform to the actual intention of the parties. Now, the proof shows, as before stated, that 10 per cent, was an approximately correct estimate of the cost of bringing the goods from the wholesale market and placing them upon the shelves ready for sale, that is to say, a correct estimate of the freight and dray charges. That is only an estimate, and the testimony is not conclusive that it is a correct one; but appellants were present when the inventory was taken and assisted in making it. They are chargeable with knowledge of what the language of the contract really means, even though they may, in good faith, have misconceived its meaning; and if they desired an ascertainment of the actual amount of the freight and drayage charges to be added to the original price, they should have demanded it at the time. Having accepted the inventory and the delivery of the goods and disposed of a considerable portion of them, it is too late now to complain of any discrepancy that might appear between the actual expense of transportation and the estimate marked on the goods. The views of the chancellor led to a correct decree, and the same is therefore affirmed. | [
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Hart, J.,
(after stating the facts). The statute of non-claim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title or for the recovery of property for the reason that claims of such a character can not in any just sense be said to be claims against the estate of the deceased. On the contrary, the right to recover is based upon the fact that the property claimed does not belong to the estate, but belongs to the party asserting title to it. 18 Cyc. 456; Krutsen v. Krock, 127 N. W. (Minn.) 11; Haven v. Haven, 64 N. E. (Mass.) 410.
It is also contended that the statute of frauds is a bar to the right of recovery by the 'plaintiffs. Mr. Pomeroy, in discussing the subject “of specific performance of parol contracts, recognizes the general rule that payments in money is not a part performance because the remedy at law is adequate for its recovery and there has been no irrevocable change of position, but in discussing the question of whether personal services is a sufficient act of part performance to take the case out of the statute said: “Where the consideration is paid, not in the form of money, but in the form of personal services of a character such that they do not readily admit of a pecuniary estimate or recompense, shall this be considered an act of part performance? On this question the American jurisdictions are very evenly divided; the answer must depend on the theory which is adopted as the basis of the whole doctrine. On the first theory stated in a former paragraph, payment in services no more points to a contract concerning specific land than does payment in money; in fact, in the ordinary case— domestic services by a relative or by an adopted child — the fact of the services rendered gives rise to no inference of any contract whatever.' On the other hand, if equitable fraud be taken as the basis of the doctrine, and the impossibility of restoring the complainant to the situation in which he was before the contract was made, the rendering of services, for a long term of years, the value of which can not be estimated by any pecuniary standard, must be considered an act of part performance of the highest character; the fraud upon the complainant is often greater than that resulting from either the taking of possession or the making of improvements. The promise, in these cases, has nearly always been to make a will devising lands to plaintiff; the services rendered, the care of an aged or invalid relative, often coupled with an abandonment of the plaintiff’s previous home or occupation; or, in a large group of cases, the entire change of situation resulting from a virtual adoption of the plaintiff, when a minor, into the promisor’s family, and the discharge of the domestic duties and obligations of affection flowing from such relation.”
The learned author cites the authorities on both sides of the question, but we do not deem it necessary to enter into a discussion of them here for the reason that our court has adopted the latter theory. In the case of Hinkle v. Hinkle, 55 Ark. 583, Mr. Justice Hemingway, in discussing the question, said:
“But the defendant pleads the statute of frauds, and the question is, if the statute applies, whether there has been such performance as to take the case out of its operation. Martin did everything he agreed to do. He gave up his employment, changed his residence, .assisted in caring for his mother and in managing and conducting the business, moved upon the land and expended money in improving it. If the statute could defeat his claim, it would become a means of fraud, not of its prevention. He did more than pay for, move on, and improve the land; he surrendered his employment and changed his home and avocation, and no return of the money expended would compensate him for annulling the contract.”
What was said in that case applies with equal force here. The parol contract under consideration was not only mutual but was definite and certain, both in its terms and as to its subject-matter. It was clearly proved, and the services performed were referable to the contract alone, and were done for the purpose of carrying it into effect. Chas. Asbury was a young man, and had a good position in Indiana when the contract was entered into. He did not wish to leave that State and come to Arkansas. In pursuance of the contract between Jacob Fred and his wife and himself, he left that State and came to Arkansas with Jacob Fred. He and his wife provided a home for Fred, and nursed and cared for him during the remainder of his life. Although Fred was a cripple and an invalid during all this time, they tenderly nursed and cared for him and provided him with all the comforts they were able to furnish. Their testimony, both in regard to the terms of the contract and the services they performed in carrying it out, is clear and explicit, and is corroborated by the testimony of their neighbors, as well as by the testimony of some of the relatives of Jacob Fred. It is not contradicted in any material point by any witness. They assumed a peculiar and personal relation to Jacob Fred, and, according to their testimony, which is not disputed, rendered him services of such character that it is practically impossible to ascertain their value by any pecuniary standard. By entering into the contract with Jacob Fred, they changed the whole course of their life and devoted themselves to making his last days comfortable and pleasant, and, as said in the Hinkle case, if the statute could defeat their claim, it would become a means of fraud, and not of its prevention.
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Hart, J.
This is the second appeal in this case. The first appeal is reported in 95 Ark. 421, under the style of Emerson v. Stevens Grocer Company. The issues and facts are fully stated in that decision, and, as counsel for appellants concede that the facts on the retrial of the case are the same, they need not be restated here. Appellee brought this suit against appellants to recover damages for failure .to deliver a car of potatoes which the former alleges the latter had sold it. There was a verdict and judgment for the appellee, and the case is here on appeal.
It is first contended by counsel for appellants that the court erred in refusing to give instruction numbered 6 asked by them. The instruction is as follows:
“The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the defendant accepted plaintiff’s counter proposition.”
There was no error in this. Instruction numbered 1 given by the court is in part as follows: “The first contract between the parties has been abandoned by the plaintiff, and the only thing left in the case, and the only question for you to decide, is whether or not the defendants accepted the said counter proposition and agreed to deliver the potatoes at Marianna at the same prices it had quoted for their delivery at Newport; and, before you can find for the plaintiff, you must find from a preponderance of the evidence in this case that the defendants did accept the offer thus made by plaintiff, and did agree to deliver said potatoes at Marianna at the same prices that it had previously quoted for a delivery of them at Newport.”
It will be observed that the concluding part of this instruction is practically the same as instruction numbered 6 requested by appellants and refused by the court.
The court instructed the jury as follows:
“3. You are instructed that the request of the plaintiff contained in its letter of January 6 was a counter proposition to buy a car of potatoes for delivery at Marianna at the same price as quoted by the defendants for delivery of a car of potatoes at Newport, and that you must find that this counter proposition was accepted by the defendant before you can find for the plaintiff in this case, and that the receiving and depositing of said check for $100 contained in said letter of January 6 was not an acceptance of said counter proposition in itself, but merely evidence of such acceptance, and that it is the intent with which such check was received and deposited that is to guide you in determining the weight to be given such acts as showing an acceptance. Now, if you find that the defendants received and deposited said check upon the ■terms and with the intention of assenting, to the terms of said counter offer, or retained said check an unreasonable time without notice, then you will find for the plaintiff; but, if you find that it was received and deposited and merely held by the defendants for a reasonable time, pending negotiations between plaintiff and defendants for the purchase of the Marianna car, such holding would not be an acceptance of the counter offer, and you will find for the defendants.”
“4. If you find that, upon the plaintiff ordering a car of potatoes on Newport quotations delivered at Marianna, defendants notified plaintiff that delivery at Marianna would require a deposit of $100 for future delivery, and that plaintiff remitted the amount, but asked a modification to the Newport rate, and if you further find that the defendants accepted the check upon the terms and in assent to the offer set out in plaintiff’s letter of January 6, or that, under the circumstances of this case, the defendants retained such check for an unreasonable time, then you may find for the plaintiff the amount sued for.”
It is now insisted by counsel for appellants that ■ the court erred in giving instruction numbered 4. They contend that the two instructions are contradictory and confusing, and say that the jury must have understood instruction numbered 4 to mean that appellants were liable if they retained the check for an unreasonable length of time, no matter what they did or said to indicate their refusal to accept appellee’s offer; that the simple retention of the check outweighed everything else.
In the former opinion the court said: “The mere retention of the check was only evidence of such acceptance, and not conclusive proof thereof. If the appellants retained the check for an unreasonable time without notifying appellee that they only retained it for the purpose of waiting negotiations looking to the agreement of the parties to the terms of the contract, or failed to return it within a reasonable time, then the jury might infer from such action and conduct on the part of appellants that they actually did accept the terms of the offer contained in the letter of January 6 for the purchase of the potatoes. We think that, under the testimony, it was a question of fact for the jury to determine whether or not the appellants accepted the check upon the terms and in assent to the offer set out in appellee’s letter of January 6, or whether they only held it awaiting negotiations; and that it was also a question of fact for the jury to determine whether under the circumstances of this case they retained it for an unreasonable time.”
By the letter of January 6, appellee made a counter proposition to appellants that it would take the car of potatoes if it was delivered at Marianna at the same price as made in the original proposition of appellants for delivery at Newport. The disputed question of fact in the case is as to whether appellants accepted the counter proposition of appellee. In our former opinion we held that the fact of appellants retaining the check sent with the counter proposition was evidence of acceptance, but was not conclusive thereof. We reversed the case because the court in effect told the jury that the retention and collection of the check by appellants constituted, as a matter of law, an acceptance of the counter proposition made by appellee.
In the case of Kempner v. Cohn, 47 Ark. 519, which was cited in our decision on the former appeal, it was held that, where an offer is made, and the time of acceptance is not limited, the proposition is open until it is accepted or rejected, provided an answer is given in a reasonable time. In the decision on the former appeal we held that, under the facts and circumstances of this case, it was a question of fact for the jury whether appellants retained the check for an unreasonable time, and also held that, if appellants did retain the check for an unreasonable time without notifying appellee that they only retained it for the purpose of further negotiations in regard to the counter proposition made to them by appellee, the jury might infer an acceptance.
It is the contention of appellee that appellants unconditionally retained the check for an unreasonable time, and that from this the jury might infer an acceptance. On the other hand, appellants claim that they retained the check pending further negotiations in regard to the counter proposition made to them by appellee on January 6, and that the facts and circumstances adduced in evidence were such that the jury should find appellee had notice that they so held it.
Instructions numbered 3 and 4 immediately followed each other, and it is evident that in them the court endeavored to submit to the jury the respective theories of the parties to the suit. If instruction numbered 4 was .not satisfactory to appellants for the reason that they thought it might be confusing and misleading to the jury, in fairness to the court, they should have specifically pointed out their objections, to it to the end that the court might correct it. If they had done so, doubtless the court would have changed the verbiage of the instruction so as to meet their objection. Having failed to make a specific objection to the instruction, we do not think that the judgment should be reversed for giving it.
We think that the respective theories of the parties in regard to the disputed question of fact were fairly submitted to the jury, and the judgment will be affirmed. | [
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Smith, J.
On the 18th day of April, 1903, the appellants, Wm. Fletcher and others, sole heirs at law of James Fletcher, deceased, filed their complaint in the Lawrence Circuit Court against A. W. Shirey, claiming to be the owner of east one-half southwest quarter section 22, township 17 north, range 1 east, Lawrence County, Ark. The cause was transferred to the equity side by consent of all parties, and the plaintiffs filed an amended complaint, the substance of which is as follows: That on the 14th day of December, 1872, James Fletcher died seized and possessed of the above-described land, which was his homestead, leaving him surviving Harriet Fletcher, his widow, and the plaintiffs, who were his children and grandchildren.
The complaint further alleged that, on the death of . said Fletcher, one A. B. Israel was appointed administrator of his estate on the 30th day of January, 1873, and that he applied to the probate court of said county for an order to sell said lands for the payment of debts, and that the land was ordered sold by the court, and in pursuance of said order, the administrator sold the land on December 6, 1873, to A. W. Shirey, and on the 9th day of December, 1873. executed to him a deed therefor.
The administrator made no report of this sale, and it was never approved or confirmed. Plaintiffs further alleged that the defendant knew he had acquired no title, and failed to have the sale confirmed, because he knew the court had no right to confirm it, but took the deed to have some color of title, and conceived the plan of defrauding plaintiffs of their rights, and, in pursuit of said plan to defraud, he purchased from the said Harriet Fletcher her right of dower and homestead in said land, her dower then not having been assigned, and at the same time advised her, and induced her to believe, that the rights of her children would be fully protected by him, and that at her death said land would go to them, and that he was only endeavoring to buy her life interest therein; and, relying upon said assurances so made by defendant, she conveyed to him on January 22, 1874, all her right of dower therein. And the complaint further alleged that, desiring to conceal the effect of the conveyance of the said Harriet Fletcher, the defendant withheld said deed from record.
The complaint further alleged that some of the plaintiffs were present when the trade was made and heard the assurances given their mother that the defendant desired to buy only her life interest, and that as soon as she died the land would become the property of her children, and that the only effect of the deed he desired was to enable him to have the use of the land and its rents until the death of their mother; and that all this occurred before the deed was executed, and until recently plaintiffs understood defendant was claiming only the life estate of their mother, and that only by reason of the fraudulent assurances of defendant have they allowed' bim to occupy said land through all of these years, without making any claim therefor, or asserting their rights.
The answer of the defendant Shirey specifically denied the allegations of the complaint and set up adverse possession for seven years, and for more than three years after all minor heirs had attained their majority.
Before the final hearing, the death of defendant A. W. Shirey was suggested and proved, and the cause revived in the name of Louis Josephs, his executor.
At the final hearing, a copy of the petition of the administrator to the probate court was offered in evidence, showing the personal property was exhausted and praying a sale of the lands to pay debts. There was also offered in evidence the order of the court directing the sale of the land, which order was made on October 3, 1873. There was also offered the petition of the widow, filed on the 17th day of November, 1873, praying that the land be set aside to her as a homestead and the order of the court, made on the same day, granting the prayer of that petition. The certificate of the county clerk was also offered, showing there had been no report of said administrator’s sale and no confirmation thereof.
The deed from the administrator to Shirey was not recorded until the 8th day of February, 1878.
The deed from Harriet Fletcher was made on the 22d day of January, 1874, and the material portion of the same is as follows: “I, Harriet Fletcher, do hereby relinquish all of my right of and title to dower to the following land, towit: east one-half, southwest quarter, section 22, township 17north,' range 1 east, for the consideration of the sum of $400, paid to me by Arthur W. Shirey, and he is to have and to hold the same forever, and I do hereby warrant and defend the same to him and his heirs forever against the lawful claim of all persons.”
For proof of the allegations of misrepresentation and fraud, the plaintiffs relied principally upon the evidence of two of the sons, who testified they heard the conversation between Shirey and their mother. One of these witnesses was eleven or twelve years old at the time, and the other was eight or nine. Another witness testified that at the time he was between seventeen and eighteen years old, and that he overheard a conversation between Mr. Shirey. and a Mr. Henry, for whom witness was picking cotton, in which Shirey said: “I just bought the old lady’s lifetime dower.” A daughter of Harriet Fletcher, who was older than her brothers, also testified and substantially corroborated their statement.
The defendant denied all the material statements of the plaintiff, and the chancellor accepted his version of the transaction as the truth, and, after careful consideration of the evidence, we can not say that his finding is contrary to the preponderance of the evidence.
Shirey stated that this was his first land transaction, although he afterwards became a large land owner. He stated that he bought the land at a public sale, as he was the highest bidder; that he did not look to see that the sale to him was reported and confirmed for the reason that he did not know this was necessary, and that he supposed it was only necessary for him to pay his money and get his deed; and that he did this, and that the $600 which he paid the administrator for the land was a fair price for the land at the time it was sold, under the circumstances. He supposed he had a perfectly good title to that land, subject to the widow’s dower, and he pro cured the deed from her to get possession of the land, and he had occupied it for nearly thirty years without suspecting that any one questioned his title. Mrs. Fletcher died January 20, 1902.
We are of opinion that, although the administrator’s sale for the payment of debts was void for want of jurisdiction in the court to order the same, and although no confirmation of the sale seems to have been made, yet the administrator’s deed is such an "appearance of title” as to constitute color of title. White v. Stokes, 67 Ark. 184, and cases cited; 1 Cyc. 1093; 2 Ene. L. & P. 513; 2 Words & Phrases, 1264.
It is urged with great force that the language of Shirey to the widow amounted to such fraudulent misrepresentation as would prevent the running of the statute, but we do not think the evidence sufficient for this purpose, and we concur in the chancellor’s finding that, “during the many years that have elapsed since the alleged conversation, these plaintiffs, all of whom have grown to manhood or womanhood long ago, should have made some further investigation as to the rights claimed by Shirey, who during all the time was openly in possession of the land under a recorded deed from the administrator of their father’s estate. No claim of fraud could be based upon the failure to record the widow’s deed, because all admit that they knew of that deed at the time it was made.”
But appellants insist here that Shirey’s possession could not be adverse for the reason that the deed of the widow put him in possession of the whole tract, and that this deed gave him that right of occupancy which in equity he was entitled to have under Mrs. Fletcher’s deed, and that such possession would not ripen into title because he was a tenant in common with the heirs.
The fallacy of this argument grows out of a misconception of the effect of the deed from the widow to Shirey. Many cases have held that the widow’s rights in the homestead are personal and can not be transferred, and that by conveying the homestead to another she will be held to have abandoned her rights therein, and the homestead thereupon becomes vested in the minor children. Gatlin v. Lafon, 95 Ark. 256, and case there cited.
It was held in the case of Griffin v. Dunn, 79 Ark. 412, that the widow’s right to hold the dwelling house and the farm attached until dower shall be assigned is a personal privilege, and not an estate in the land which can be transferred to another. She may rent out the farm and receive the rents and profits, but can not convey it or transfer her rights. If she does, she thereby abandons it, and the right of entry of the heirs becomes complete, subject only to the right to have dower assigned. The same case holds, upon the authority of the case of Weaver v. Rush, 62 Ark. 57, that the conveyance by the widow carried with it an equitable transfer to the grantee of her unassigned dower right, but this outstanding right to have dower assigned did not postpone the heir’s right of entry.
“A widow’s dower in the realty of her deceased husband, before it is assigned to her as the statute directs, is a mere 'thing in action’ that can not be the subject of a conveyance by her to a stranger, so as to confer on him any rights that he can enforce in a court of law.” Weaver v. Rush, supra.
Shirey’s possession, both in fact and in law, was adverse to the heirs, and the cause of action here sued upon was barred many years before the suit was instituted. Carnall v. Wilson, 21 Ark. 62; Padgett v. Norman, 44 Ark. 490; Barnett v. Mecham, 62 Ark. 313; Garibaldi v. Jones, 48 Ark. 230; Killeam v. Carter, 65 Ark. 68; McAndrews v. Hollingsworth, 72 Ark. 446; Griffin v. Dunn, 79 Ark. 408; Gannon v. Moore, 83 Ark. 196; Stubbs v. Pitts, 84 Ark. 160; Harris v. Brady, 87 Ark. 428; Burrel v. Boken, 89 Ark. 168; Smith v. Scott, 92 Ark. 143; Gatlin v. Lafon, 95 Ark. 356; Felton v. Brown, 102 Ark. 658.
The findings of the chancellor are supported by the evidence, and are in accordance with the law as declared in the; above cited cases, upon the subjects here discussed, and the decree is accordingly affirmed. | [
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Kirby, J.,
(after stating the facts). It is no longer questioned that, in ascertaining the meaning of words written to determine whether or not they are libelous, the entire article must be construed. Miller v. State, 81 Ark. 363. It is also true, the rule now is that the words used are to be taken in their plain and natural meaning and understood by courts and juries in their ordinary acceptation as other people would understand them and according to the sense in which they appear to have been used and the ideas they are adapted to convey to those who heard or read them. Jackson v. Williams, 92 Ark. 489.
If the words, “A man’s motive is no excuse for his steal-ling,” had been spoken alone or used in such connection as to show or indicate that appellee was guilty of larceny, there is no question but that it would be libelous per se. Murray v. Galbraith, 86 Ark. 55; Greer v. Whi e, 90 Ark. 119.' This sentence, however, does not appear alone, but as a conclusion to an article criticising appellant for taking the school census at a time not authorized by law and his reasons for so doing, and expressly states that it was used by way of illustration.
It is not disputed that the census was taken at a time not authorized by law, nor that appellant made statements relative thereto and the reasons in explanation thereof, as stated in the published article. If the sentence complained of as charging the commission of a crime was used by way of illustration only, as the article expressly says, it would not have amounted to a charge of larceny against appellee, who was only charged in the article in which it appeared with taking the census earlier than the law warranted, because, as he said, he had the time and needed the money. It but only accentuated the criticism that no good motives warranted the taking of the school census earlier than the law required, nor rendered one so taken valid. It could not have amounted to charging appellant with stealing, in the sense of committing the crime of larceny, and is not libelous per se, and the court erred in declaring it so. It was a question for the jury to say, under proper instructions, whether the article was libelous within the meaning of the statute defining libel, and said instruction withdrew it from them.
We do not set out the other instructions with a view to approving them for the reason that on the next trial the case will be submitted to jury on the issue as to whether or not defendant meant to impute moral turpitude in an actionable manner.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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