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Per C.uriam.
On September 18, 1961, this Court rendered its opinion affirming the conviction of the appellant; and in due time appellant filed Petition for Rehearing. On October 18, 1961, while the Petition for Rehearing was pending, the appellant filed in this Court her petition for leave to file in the Garland Circuit Court a Petition for Writ of Error Coram Nobis. The germane portion of said Petition reads: “ Appellant, in the past two weeks, has received reliable information that the Jury which convicted her of manslaughter in the Circuit Court of Garland County, Arkansas, on September 22, 1960, decided its verdict by lot in that the number of years suggested by each individual juror were totalled and di vided by twelve in order to fix the length of the sentence imposed on Appellant by the Jury. Under Section 43-2204 of the Arkansas Statutes it will be necessary that said jurors be examined so as to determine the validity of said verdict.”
Supporting the said petition are the affidavits of the appellant and two other persons to the effect that J. M. Thompson, who claimed to be a juror in the trial of Mrs. Bonnie Connelly in the Circuit Court of Garland County, had stated in the presence of the affiants that the jurors wrote “down the number of years from 0 to whatever each of them thought she should have and that they would add these together and the total amount would be divided by 12 and that this would be their verdict and they would be bound by it.” This alleged statement by Thompson was made after our opinion of September 18, 1961. It is claimed that these affidavits show that the verdict of guilt was reached by lot; and, for that reason, the appellant desires leave to file a Writ of Error Coram Nobis.
These affidavits do not show that the verdict against Mrs. Connelly was reached by lot. The worst that can be said of the verdict is that it was a quotient verdict, and not a verdict reached by lot. It is only in a case of a verdict reached by lot that a juror may be heard to impeach his verdict (§43-2204 Ark. Stats.). The difference between a quotient verdict and a lottery verdict is clearly stated by Mr. Justice Humphreys in Speer v. State, 130 Ark. 457, 198 S. W. 2d 118:
“Lastly, it is urged that the verdict of the jury was determined by lot. Lot involves an element of chance. The quotient verdict is not the result of a lottery. It is a certain result ascertained by adding twelve separate amounts together and dividing the sum total by twelve. Only one result can be reached. It would be a lottery if twelve different amounts were placed on separate slips of paper and one slip then drawn out, which by agreement would become the verdict.”
Other cases to the same effect are: Snow v. State, 140 Ark. 7, 215 S. W. 3; Steed v. Wright, 179 Ark. 812, 18 S. W. 2d 340; St. Louis-San Francisco Rwy. Co. v. Steele, 185 Ark. 196, 40 S. W. 2d 628; Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034; Martin v. State, 189 Ark. 408, 72 S. W. 2d 539; Coca-Cola Bottling Co. v. Davidson, 193 Ark. 825, 102 S. W. 2d 833; and Kennedy v. Griffin, 195 Ark. 379, 112 S. W. 2d 644.
The Petition for Leave to File a Writ of Error Coram Nobis is denied; and the Petition for Behearing is likewise denied.
No such petition may be filed in the Trial Court without leave of this Court when the ease has been before us on appeal. State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858. | [
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George Rose Smith, J.
This is an application by the appellant, as the widow of Thomas J. Robinson, for an award of statutory allowances from her husband’s estate. Ark. Stats. 1947, § 62-2501. The administrator contested the petition on the ground that Mrs. Robinson had joined with her prospective husband in an antenuptial contract by which she relinquished all claims to “dower, homestead, widow’s award, or other right” in her husband’s estate. The probate judge held the contract to be valid and accordingly denied the widow’s application for statutory allowances.
The controlling question is whether the antenuptial contract was valid under the law of Missouri, where Robinson was living before the marriage and where the contract was executed in 1957. The agreement recites that it is to be governed by Missouri law, and in any event that law would be controlling, since the contract was signed in that state. Simpson v. Weatherman, 216 Ark. 684, 227 S. W. 2d 148, 18 A. L. R. 2d 755.
The parties were in their late fifties when they were married in August of 1957. On the morning of their wedding day they executed the antenuptial agreement, in the office of Robinson’s Missouri attorney. In substance the agreement provided (a) that Robinson would provide reasonable support for his wife while the two were living together as husband and wife, and (b) that each spouse relinquished any claim whatever to an interest in the other’s estate. The appellant received no transfer of any property under the contract.
It cannot be doubted that the appellant’s attempt to release her rights as Robinson’s widow would have been void under the law of Missouri as it existed before the enactment of a new probate code in 1955. From 1825 until 1955 Missouri had a statute that read in part as follows: “If any woman prior to and in contemplation of marriage shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the estate of her husband.” Mo. Rev. Stats. Anno. (1939), § 334.
This statute was construed by the Missouri courts to mean that a woman’s antenuptial release of dower in her prospective husband’s estate was valid only if she received under the agreement a conveyance of property as a provision for her support during life. As the court said in the leading case of Mowser v. Mowser, 87 Mo. 437: “Even if a parol agreement can be allowed to defeat dower, the widow must receive under it, real or personal property as a provision for her support during life; it is against public policy to allow a man, by an agreement before marriage, which does not secure to the wife a provision for her support during life after his death, to bar her right to dower. The statutes sanction no such agreement.” Later cases include King v. King, 184 Mo. 99, 82 S. W. 101, and Reger v. Reger, 316 Mo. 1310, 293 S. W. 414.
Despite these cases the appellee insists' that the ancient Missouri rule was abrogated by the 1955 probate code, which revised the former statute to read as follows: “If any person prior to and in contemplation of marriage in agreement or marriage contract with his intended spouse, or other person, receives any estate either real or personal to take effect after the death of his spouse, or any other time, as a provision for his support during life, and expressed to be in full discharge of all his rights of inheritance or any other statutory rights in the estate of his spouse, such estate shall be valid, and a bar to his rights of inheritance and other statutory rights in the estate of his spouse.” Mo. Rev. Stats. (1959), § 474.120.
We are not convinced that the legislature intended the suggested change in the law. The appellee relies largely upon a treatise by Almon H. Maus on Missouri Probate Law and Practice, published in 1960. In § 1241 of that work the author discusses the possibility that the settled Missouri rule may have been changed by the probate code. To support this view it is pointed out that the Missouri statute now applies to both spouses instead of to the woman alone. It is also pointed out that under the probate code a woman may, before or after marriage, waive her right to take against her husband’s will if she receives for the waiver “a fair consideration under all the circumstances.” Mo. Rev. Stats. (1959), § 474.220.
Neither of the two provisions mentioned lends persuasive support to the appellee’s argument. The probate code abolished dower and curtesy, § 474.110, and provided instead that a surviving husband or wife should have identical statutory interests in the other’s estate. § 474.010. The law governing antenuptial contracts was apparently amended to conform to this policy of treating the two spouses exactly alike. And, in permitting a woman to waive her right to take against her husband’s will, the legislature was careful to insert a requirement that she receive a fair consideration for the waiver. This is essentially similar to the protection long afforded her by the antenuptial contract statute.
The Missouri probate code of 1955 was a comprehensive statute that necessarily required careful draftsmanship. It must he assumed, and really cannot he doubted, that the framers of the code were familiar with the settled judicial construction of the statute controlling antenuptial agreements. That law was rewritten to make it harmonize with other provisions in the code, but there is no sound basis- for saying that the legislature meant to change what had been the state’s declared policy for a hundred and thirty years. The vital clause in the older law was that the woman receive “a provision for her support during life.” This clause was carried forward almost verbatim in the section as rewritten in 1955. When we consider how simple it would have been for the lawmakers to have expressly made a change in the law if that had been their desire we are not convinced that they intended to achieve the same result by indirection.
Reversed. | [
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Paul Ward, Associate Justice.
Prior to May 19,. 1961 appellant, the Arkansas Highway Commission, pursuant to a condemnation order entered bj? the County Court of Pulaski on October 24, 1935, began widening' and reconstructing Highway No. 10. The county court order provided that all claims for land taken or damages done must be filed within one year or they would be forever barred. On the date first mentioned nine affected property owners filed a complaint in the Chancery Court of Pulaski County to enjoin appellant from going on their lands or attempting to use the same for the purpose of widening Highway No. 10. Appellant, in its answer, alleged that it was proceeding to widen the highway under authority of the said county court order and asked to have the complaint dismissed. After a hearing, at which much testimony and many exhibits were introduced, the trial court granted the landowners the requested relief.
Pertinent Facts. The portion of the highway involved, generally speaking, runs west and northwest from Hughes street for a distance of approximately one-fourth of a mile through White City addition to Little Eock and (apparently) along the south side of Plunkett’s subdivision of Forrest Park. Abutting the highway on the south side: Kraftco Building Supply, Inc. owns lots 3, 4, 5 and 6, block 3, White City addition; D. H. Garner and his wife own lots 4, 5 and 6, block 2, White City addition. Abutting the highway on the north side: James G. Ealph and Travis V. Talley own lot 1, block 1, White City addition; Tony Anderson and his wife own lots 2, 3 and 4, block 1, White City addition; William L. Humphries owns lots 5 and 6, block 1, White City addition; Eobert F. Wallace and his wife own lot 10 and part of lot 9, block 1, White City addition; Carl D. Smith owns, a parcel of land, approximately 50 feet by 100 feet,, described by metes and bounds and (apparently) a part, of Plunkett’s subdivision of Forrest Park; Bert E. Hubbard owns the east 90 feet of block 5 in the subdivision last mentioned above. The above named persons are the appellees and the affected property owners.
It is not disputed: that for many years (dating prior to 1935) there has been a public highway running by the above described properties along the present location of Highway No. 10; that the right-of-way was 40 feet wide; that the road was graveled or paved to a width of approximately 18 feet; that appellant for many years has graded the shoulders on both sides of the gravel or pavement to the extent of approximately five feet; and, that all the appellees acquired their property several years ago, but no one of them acquired his property prior to 1935. It is likewise undisputed that the 1935 court order purported to condemn a strip of land ten feet wide along each side of the original right-of-way.
The Issues. It is undisputed that the 1935 court order was not published. A thorough search of the county records fails to reveal any claims that might have arisen under the order were ever presented or paid. Essentially it is the contention of appellant that the 1935 order was a lawful order of condemnation of the extra ten feet of land on each side of the old right-of-way and that the work it did in improving the road and grading the shoulders constituted notice to appellees, and that all claims are barred because they were not filed within one year after such notice. It is also contended by appellant that the burden was on appellees to show they did not have notice of the 1935 condemnation order, and that they failed to meet that burden.
We are unable to agree with appellant in either of the above contentions. The first contention was resolved against appellant in the case of Arkansas State Highway Commission v. G. A. Dobbs, et al, 232 Ark. 541, 340 S. W. 2d 283, and, therefore, need not be discussed at length. In the cited case the condemning order (unpublished) was made in 1929 and the Highway Commission undertook to widen the existing street in 1959. There, since 1933 the Highway Department had improved and surfaced the street but had done nothing to indicate it was claiming control over any of claimants’ property. We held there that such acts were not sufficient to constitute an entry on the part of the Highway Department and did not constitute notice to the land owners. On rehearing we, after careful consideration, again affirmed our original holding. We think the facts in the Dobbs case are SO' similar to the facts in this case as to call for an affirmance of the trial court. We do not understand appellant, to contend there is any material difference between the factual situations in the two cases except in two respects, noted hereafter.
One. Appellant points out that in the Dobbs case the road ran through an incorporated town while here the affected property lies outside the corporate limits of the City of Little Rock. We cannot see, and it is not pointed out, how this difference is material as bearing-on what constitutes reasonable notice. Certainly theDobbs opinion was not based on that theory. Moreover,, the property affected here is located in platted additions that show lots, blocks and streets.
Two. Appellant relies on the testimony of a Mr. Efird to show he had notice of an actual taking of his land by appellant. Efird, of course, is not a party to this, suit and we are unable to understand how any notice to him in 1935 or later can be construed as notice to appellees in the absence of proof to that effect. We find no such proof in the record.
Burden of Proof. We do not agree with appellant, that under the facts in this case, the burden was on appellees to prove they had no notice of the 1935 order or no notice later of an entry on or taking of their property. Article 2, Section 22 of our Constitution forbids appellant from taking appellees’ land “without just compensation therefor”. In Ark. State Highway Commission v. Cook, 233 Ark. 534, 345 S. W. 2d 632, this Court, in discussing the condemnation of property by a county court order, said: “Notice is essential, however, for the landowner is entitled to a hearing upon the issue of compensation.” The corollary of what we have just said is that the Highway Commission cannot take appel lees’ property without first giving them notice so they can have their day in court on the issue of compensation. If appellant prevails in this case it will amount to taking appellees’ property without compensation. So, for appellant to prevail, it must show appellees had notice of taking. Therefore we are driven to the conclusion that the burden is on appellant to show proper notice was given, and not on appellees to show notice was not given.
Appellant says that all the points decided by the trial court adversely to it in this matter were decided clearly and concisely by this Court in the Cook case, supra, copying about two pages from the middle portion of the opinion. The pertinent question there presented was whether Mrs. Cook had sufficient notice of the full extent of the taking by the Highway Department. The essence of the opinion insofar as it deals with the question here involved is set forth in a paragraph following the portion copied in appellant’s brief. It reads:
“Here it is shown by undisputed proof that the department actually entered the appellee’s land in 1940 and built a road. To put the matter beyond any possibility of doubt it also appears by the appellee’s own admission that she filed a claim for crop damage. Thus she had actual notice of the proceeding in the county court and is as fully bound by the order as if she had been served with a summons or had entered her appearance. Her right to compensation was lost by her failure to file a claim within the one year allowed by the statute.”
It cannot be contended that any such notice, or notice of such import, was given to appellees in this case.
The decree of the trial court is accordingly affirmed.
Affirmed.
Bohlinger, J., not participating. | [
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Neill Bohlinger, Associate Justice.
This is an action brought to recover a commission paid to the appellee in connection with the. sale of some property in Conway, Arkansas, which is known as the Bachelor Hotel property.
It appears from the record before us that on July 25, 1959, the appellant entered into an agreement with the appellee whereby appellee was to sell the property of the appellant, which is known locally as the Bachelor Hotel, for the sum of $85,000.00 in cash. The facts in regard to the negotiations, the procurement of the purchaser, and other matters are well set forth in the case of Carrick v. Gorman, 232 Ark. 729, 340 S. W. 2d 377. From the facts therein set forth and the record in this case, it appears that the appellee procured a purchaser for the property who inspected the property, agreed to buy it, and deposited $8,500.00 on the purchase price.
The appellant granted the prospective purchaser additional time to complete financial arrangements and when the balance of the purchase price was not forthcoming, the appellant brought .his suit against the purchaser [Carrick, by name] procured by the appellee upon the note which Carrick had executed for the balance of the purchase price. During the trial of that action it developed that appellant Gorman’s title was defective in that a part of the wall of his building was on property belonging to the United States. In the Carrick v. Gorman case, supra, this court cancelled the agreement between Gorman and Carrick, voided the note Carrick had given for part of the purchase price, and restored to Carrick the down payment of $8,500.00 which appellant appears to have repaid.
The appellant brings this suit contending that the sale between him and Carrick was never completed and that the appellee failed to find a buyer for the property ready, willing and able to pay because the offer and acceptance contract between the buyer and the appellant which the appellee negotiated provided for a cash transaction and cash, was never forthcoming. Further, that in the absence of fraud or misrepresentation or concealment, equity would demand that the real estate agent, as well as the seller, be on an equal footing, as far as the payment of the purchase money, where the sale is not completed.
We do not agree. In this case the appellee undertook to present a purchaser for appellant’s property ready, willing and able to buy said property at appellant’s price, or at any other price and terms acceptable to appellant. That the appellant deemed the purchaser procured by the appellee to be within the terms of the agreement is shown by the fact that the appellant brought, suit against the purchaser not to foreclose a lien on the property, but upon the note which the purchaser had given as part of the purchase price. Thus the appellant is in the position of acknowledging that the sale had been completed. The result of that suit did not disclose that the purchaser was not ready, willing and able to complete the transaction but that the appellant, the vendor, did not in fact have the title to the property which he had held himself out as possessing.
We think this case is well covered by our holding in Orlicek v. Dockins and Spikes, 224 Ark. 593, 275 S. W. 2d 630:
“Should doubt exist that the Orliceks and Spikes had in mind the procurement of a purchaser ready, willing, and able to buy upon acceptable terms, that doubt is dissipated by the suit for specific performance. After mentioning the offer made March 5th and accepted the following day, appellants refer to their warranty deed deposited with the abstract company, the participation of their wives in the sale, and assert that insofar as they are concerned all things necessary had been done, and that Dockins was equally bound with them. Since Spikes was their agent with authority to make the sale, and since they expressly affirmed that as the result of his negotiations a purchaser was found who should be required to specifically perform, it can hardly be said that appellants did not treat the transaction as a consummated sale.”
See also Hartzog v. Dean, 216 Ark. 17, 223 S. W. 2d 820; Scott v. Patterson & Parker, 53 Ark. 49, 13 S. W. 419; Stiewel v. Daily, 89 Ark. 195, 115 S. W. 1134; Hodges v. Bayley, 102 Ark. 200, 143 S. W. 92; and Barton v. Jordan, 215 Ark. 504, 221 S. W. 2d 21.
In the present case the listing agreement which appellant signed with appellee had the following provisions:
“(c) I agree to pay you forthwith as commission 5% of the selling price, when a purchaser is procured through you or your representative at the stated price and terms, or at any other price and terms acceptable to me.” [Emphasis added]
We find nothing that the appellee was required to do which he had not done. He had through his exertions procured a purchaser and the failure of the sale is chargeable not to appellee, but to the failure of appellant’s title.
We hold that the finding of the chancellor is correct and this finding is here and now affirmed. | [
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Kirby, J.,
(-after stating the facts). In Durfey v. Thalheimer, 85 Ark. 552, the court said:
“A livery stable, even in a -city or (town, -is not necessarily or prima facie a nuisance. It may become so by the manner in which it is constructed or conducted. It is the duty of every one to so use his property as not to injure that of another; and it matters not how well constructed or conducted a livery stable may be, it is nevertheless a nuisance if it is so built or used as to destroy the comfort -of persons owning and occupying adjoining' premises, creating annoyances which renders life uncomfortable; and it may be abated as a nuisance.”
Cyc. says: “A private nuisance is anything done to the hurt, annoyance or detriment .of the lands, tenements or hereditaments of another, and not amounting to a trespass, thus any unwarrantable, unreasonable or -unlawful use by a person -of his own property, real or personal, to the injury of another, constitutes -a private nuisance.” 29 Cyc. 1152.
In Blass v. Reinman, 102 Ark. 293, the court said:
“A livery stable in a town or city is not necessarily a nuisance * * *, but if it is conducted or kept or used in an improper manner, if by the unwarrantable and unreasonable use thereof it destroys the comfort of the adjoining owner so as to palpably and sensibly diminish or destroy the lawful use and enjoyment of his property, then the livery stable becomes a nuisance.”
The keeper of a jack in a town was held to be a nuisance in Ex parte Foote, 70 Ark. 12.
The burden of proving that the keeping of the stable deprived appellant of the comforts of home or rendered life in her home uncomfortable, rested upon her and it was necessary to show it by a preponderance of the testimony, as said in the Durfey case, supra.
There was testimony introduced, supporting the allegations and contention, but the majority of the court is of the opinion that the finding of the chancellor is not against the clear preponderance of the testimony and it will not be disturbed. If it could be shown that the stallions were kept in such close proximity to appellant’s home and used there for breeding purposes, it would have constituted a nuisance that could have been abated, but from the testimony it does not appear that they were so used, but may have been kept in training for racing only, these being staibles of the fair association where a track was maintained and racing conducted. The stables can be abated by appropriate proceedings hereafter if they shall become a nuisance.
Finding no error in the record, the decree is affirmed. | [
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Hart, J.,
(after stating the facts). In a case note to 16 Am. & Eng. Ann. Cases, at page 213, it is stated that the rule seems to be well settled that after a bank has certified a check, the drawer can not stop payment on it, and that the mere fact that the drawer has notified the bank not to pay the check does not release the bank from its liability thereon. A number of cases from various States are cited to support the rule.
In the ease of Merchants’ Bank v. State Bank, 10 Wallace, U. S. 604, Mr. Justice Swayne, speaking for the court, at page 647, said:
“By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is g'ood then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Tims it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is extinguished by payment.
“It can not be doubted that the certifying bank intended these consequences, and it is liable accordingly. To hold otherwise would render these important securities only a snare and delusion.
“A bank incurs no greater risk in certifying a check than in giving a certificate of deposit. In well-regulated banks, the practice is at once to charge the check to the account of the drawer, to credit it in a certified check 'account, and when the cheek is paid to debit that account with the amount. Nothing can be simpler or safer than this process.
“The practice of certifying checks has grown out of the business needs of the country. They enable the holder to keep or convey the amount specified with safety. They enable persons not well' acquainted to deal promptly with each other, and they avoid the delay and risks of receiving, counting,, and passing from hand to hand large sums of money.
“It is computed by a competent authority that the average daily amount of such checks in use in the city of New York, throughout the year, is not less than one hundred millions of dpllars.
“We could hardly inflict a severer blow upon the commerce and business of the country than by throwing a doubt upon their validity. ’ ’
This is conceded to be the correct rule, by counsel for the defendant, but it is contended by them, in the first place, that the notation on the margin of the check is not equivalent to a certification by the bank, and that if it were, because the cheek was payable at a future time, it became to all intents and purposes an inland bill of exchange, and some authorities are cited by them in support of the latter contention.
In regard to the first contention made by counsel for the defendant it may be said that the check was made payable on November 1, 1911, and on the 29th day of June the drawer of the check caused this notation to be made on it by the cashier of the bank: ‘ ‘ Certified for $2,000. 6/29/1911. B. O. Powell.” On the 1st day of July, 1911, the check was delivered to A. C. Stuart to be by him and in turn delivered to John J. Lentz in compliance with the terms of the contract on that day executed between Lentz and the Ritchies. When Ritchie presented the cheek to the bank for certification it was manifest that he intended to negotiate it and when certified by the bank the certification became an acknowledgment by the bank that Ritchie would have funds on deposit which the bank would pay over to the holder of the check upon its being presented after November 1, 1911. The word “certify” clearly meant an absolute promise on the part of the bank to pay the check when presented to it on the day named. The language clearly and unequivocally imported an absolute promise to pay by the 'bank.
In regard to the second contention of counsel for the defendant, it may be said that in the Case of Bill v. Stewart, 31 N. E. 386, the 'Supreme Court of Massachusetts said that a check is a negotiable instrument and a holder of it in good faith and without notice of any infirmity of title is entitled to maintain an action upon it against the maker, although the latter has a good defense as against the payee. The court further held that the fact that it is postponed does not take the case ont of the rule.
In the case of Champion v. Gordon, 70 Pa. St. 474, 10 Am. Rep. 681, the same contention was made as is made by counsel for defendant in the present case. Mr. Justice Sharswood, who was not only a very able and learned judge, but also a law writer of great renown delivered the opinion of the court, and said:
“The law merchant recognizes clearly a distinction, in many respects between checks en banks and ordinary bills ef exchange. One difference is that, when the former are payable on demand or at sight, no days of grace are allowed. The same rule holds when they are postdated. Byles on Bills, 14, note; 3 Kent’s Com. 104, note; In re Brown, 2 Story’s Rep. 502; Daniels v. Kyle, 1 Kelly, 304; Mohawk Bank v. Broderick, 10 Wend. 304; Salter v. Burt, 20 Id. 205; Andrew v. Blachly, 11 Ohio, St. 89; Westminster Bank v. Wheaton, 4 R. I. 30. Whether it applies also to checks payable at a future day named, is a question upon which there is a contrariety of opinion and decision. Mr. Justice Story says: ‘The argument pressed is that checks are always and properly payable on demand, and .that, when payable at a future time, they become to all intents and purposes inland bills of exchange. But I am not, by any means, prepared to admit the validity or force of this distinction; and no case has been cited which, in my judgment, satisfactorily establishes it. A check is not less a check, because it is postdated, and thereby becomes, in effect, payable .at a future and different time from that on which it is drawn or issued. This is sufficiently apparent -from the case of Allen v. Keeves, 1 East. 435.’ ”
The learned justice further said: “If such an order drawn upon a bank, payable at a future day named in it, must be considered as .an inland bill of exchange, and not a check, then the payee or holder has the right to present it at once for acceptance, protest it at once for nonacceptance, and sue the drawer immediately. Should it be accepted, however, the funds of the drawer in the bank would necessarily be thereby tied up, until the day of payment. All the objects of directing payment at a future day would thus be frustrated. What the drawer undertakes is, that on a day named he will have the amount of the cheek to his credit in the bank. In the meantime he wants the full and free use of his entire deposit. It is not denied that a post-dated check can not be presented for acceptance. That is, by implication, payable on a future day. Why, then, is a check expressly so made payable, to stand on a different ground?”
Lentz, the holder of the cheek in this instance, resided in Columbus, Ohio. On the 26th day of February, 1912, he presented the check to the New First National Bank of that place, with which bank he transacted his banking business. The bank received the check as cash because it was certified and placed the amount to the .credit of Lentz. It was then forwarded for collection in due course of business and payment was refused by the Merchants & Planters Bank of Camden because it had been enjoined from making payment by the chancery court and the check was, therefore, protested for nonpayment.
Before the New First National Bank of Columbus had learned of this fact, Lentz had checked out of the bank all of his deposit and his account on March 4, 1912, showed an overdraft of $872.67. The testimony of the bank in this respect is not contradicted, and it is, therefore, shown to be an innocent purchaser for value in the usual course of business.
The fact that Lentz deposited the check with a bank at Columbus, Ohio, instead of collecting’ it from the bank on which it was drawn, is a matter of no moment as tending to put the bank on notice that the check was subject to any infirmity. This is so because Lentz resided in Columbus, Ohio, and deposited the check with a bank there with which he usually transacted his business. The bank there being a bona fide holder for value in the usual course of business, was not affected by any fraud in the transaction between the Ritchies and Lentz. Bothell v. Fletcher, 94 Ark. 100; Exchange National Bank v. Little, 110 Ark. 263; Harbison v. Hammons, 113 Ark. 120, 167 S. W. (Ark.) 849; Blake v. Hamilton Dime Savings Bank Co., 20 L. R. A. (N. S.) 290, 16 Am. & Eng. Ann. Cases, 210.
In the last mentioned case the Supreme Court of Ohio held: The object of certifying a check is to enable the holder to use it as money. The drawer or indorser of a certified check can not, 'alter its delivery, revoke it or stop payment upon it by notice to the drawee not to pay, and a bank that has received .a certified check for deposit and has credited the depositor with the amount of it, is a bona fide holder ond may enforce payment of it, notwithstanding the fact that it may, before payment to the depositor, have received notice that the check was fraudulently obtained by the depositor.”
It follows that the decree must be affirmed. | [
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Smith, J.
This cause was tried upon the following agreed statement of facts:
“It is agreed by counsel representing the plaintiff and defendant that' the town of D ardan elle, prior to the arrest of the defendant herein, had enacted an ordinance prohibiting any person from keeping a pool hall or operating a pool table in the incorporated town of Dardanelle, and the mayor of the town, without the repeal of the ordinance, had issued a license to the defendant, permitting the defendant to keep a pool hall and operate pool tables therein; that said table or said pool hall was not used as a gambling device, and no gambling was allowed at the playing of the said pool games therein, but the same was carried on alone for the amusement of the customers, each of whom paid — cents for the use of the table to the owner on each game played.”
Under this agreed statement of facts the court, .sitting as a jury, found the appellee not guilty and ordered him discharged, and the town has prosecuted this appeal from that judgment.
Appellee can claim no immunity under the license issued to him by the mayor. The mayor could issue no license unless some ordinance of the town authorized him so to do, and from the agreed statement of facts it appears that there was, not only no such ordinance, but that keeping a pool hall or operating a pool table was declared to be an unlawful act in said town.
We think, without question, the Legislature might declare the keeping of a pool hall to be unlawful, and it might, no doubt, confer upon town councils the authority to prohibit them; but no such action can be taken by the council without legislative sanction. In re Jones, 31 L. R. A. (N. S.) 548, 109 Pac. 750. It is urged that this authority is conferred by section 5438 of Kirby’s Digest. So much of that section as is applicable here reads as follows:
“They (town councils) shall have power to license, regulate, tax, or suppress (various occupations named) * * * billiard tables or other instruments used for gaming,” and in the same sentence there is also named tippling houses, dram shops, gaming, gambling houses, etc. But it has been held that the authority to license dram shops could he exercised only when this could be done without violating the laws of the State, and that “license could never be issued to authorize gambling,” because gambling was a violation of the laws of the State, and those laws are supreme. The authority here is not to tax, regulate, .or suppress billiard tables, but to tax, regulate, or suppress “billiard tables or other instruments used for gaming. ’ ’ The town council has the authority to prohibit the keeping of pool or billiard tables for gaming, but the agreed statement of facts shows that appellee’s pool hall was not kept for that purpose and that no gambling was allowed in playing games in his place. Pool halls 'and billiard parlors are uniformly held to be proper subjects for police regulation. They are places which may become nuisances, but are not such places as must necessarily be so, and the town council has no authority to declare that to be .a nuisance which is not a nuisance in fact. Arkadelphia v. Clark, 52 Ark. 23. If a pool hall or billiard parlor was so conducted as to become a nuisance the town council could order its suppression. But, not being nuisances per se, town councils would have no .authority to prohibit their maintenance, unless that authority was conferred by express legislative enactment, or unless their maintenance was made unlawful by the laws 'of the State. In the absence of any showing that appellee’s pool hall was operated for the purpose of gaming, or was so conducted as to be a nuisance, the town council would have no authority to pass the ordinance in question, and the court below, therefore, properly discharged appellee. Judgment affirmed.
Kirby, J., dissents. | [
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Hart, J.,
Appellant, R. L. Lucius, was indicted, tried before a jury, and convicted of the crime of grand larceny, charged to have been committed by stealing forty oak logs, the property of John Shadwell. From ■the judgment of conviction he has duly prosecuted an appeal to this court.
It is contended by counsel for the appellant that the evidence is not sufficient to warrant his conviction. He insists that the evidence goes no further than to raise a -suspicion of guilt. We can not .agree with him in this contention. It is true the appellant testified positively that he did not take any of Shadwell’s logs and introduced evidence tending to corroborate his testimony. He .also introduced evidence to show that he was careful not to take any of Shadwell’s logs and that, during the process of loading his own logs, he laid .aside 'some logs there 'that belonged to Shadwell and said that he did not wish them loaded.
But in determining the guilt or innocence of the defendant tilie jury had a right to consider the testimony in its strongest probative force against appellant. Both the appellant and Shadwell hauled some logs to the station on the railroad, to be shipped out. A. negro named Ben Caraway hauled about 129 or 139 logs for Shadwell there and piled them in three piles. He says that he marked all the logs he hauled there for Shadwell £ÍB. C.” with blue keel.
Shadwell testified that the logs hauled for him by Caraway and marked ££B. C.” with blue keel scaled from 250 to 700 feet each. He .said they were worth $12 per thousand and that the average value of each log was ■about $4.80. He did not help Caraway haul the logs but knows that there were about 129 logs there marked ££B. O.” with 'blue keel when he counted them.
Appellant shipped' out some logs and in a few days Shadwell counted his logs again and found in the neighborhood of about forty of them missing. He stated that he did not give appellant permission to ship any of his logs.
Appellant admitted that he pointed out to his loaders what logs should be shipped. One of the witnesses testified that appellant told them to load all of the logs marked in pencil ££ J. L.” Another witness said that he saw the defendant marking his logs with a pencil with the letters ££J. L.” and that he was marking one or two logs ■ which had already been marked with the letters ££B. O.” with blue keel. It was also shown that five or six logs marked with blue keel with the letters ££B. C.” and with pencil, “ J. L.,” were shipped out by the appellant. We think this testimony was sufficient to warrant the .conviction of appellant.
It is insisted by :his counsel that if he shipped out any logs marked with blue keel with the letters “B. C.” it was done by mistake. The jury were the judges of the credibility of the witnesses and of the weight to be attached to their testimony. As we have already shown, the appellant himself admitted that he directed what logs should be shipped out. It was shown 'on the part of the State that he directed the loaders to load on the oar all logs that were marked with a pencil “J. L.,” and that five or six of the logs so marked were also marked “B. C.” with blue keel. It was a question for the jury to say whether these logs were marked and shipped out by mistake or whether it was done under -the direction of the appellant with the intent to steal them. It is true Shad-well only knew what logs had been delivered there for him through what Caraway told him. Caraway testified, however, that he did not mark any logs with' the letters “B. C. ” with blue keel except those that he hauled there for Shadwell. It is not shown that any one else had logs there marked “B. C.” with blue keel. As above stated, five or six logs so marked were loaded on the ears and shipped out by appellant. It may be, as argued by appellant, that Caraway marked logs with the letters “B. C. ’ ’ which did not belong to Shadwell, but there is nothing in the record to show that he did so. He testified positively that :he only so marked logs which he hauled there for Shadwell. It does not appear from the record that any other logs were so marked except the ones Caraway hauled there for Shadwell.
Shadwell says his logs were worth $12 per thousand, and that the scale varies from 250 to 700 feet. If it is conceded that they scaled only 250 feet per log, five logs of this dimension would amount in value to more than $10, and there is no testimony in the record tending to ■show that they were worth less than the value placed upon them by Shadwell.
Again, it is contended by counsel for the appellant that the logs were piled so close together that if appellant shipped out .any of Shadwell’s logs he did so by mistake and. not with the intent to steal them. The jury might have properly so found from his evidence, but they believed the testimony of the 'witnesses for the State and the testimony on the part of the State tends to show that the logs were piled in separate piles and that there was no occasion for the logs to have become •so intermingled that appellant would have shipped out Shadwell’s logs by mistake. Therefore we are of the opinion that there was some testimony of' a substantial character to establish the guilt of the appellant, and under the settled rules of this court, we are not at liberty to disturb the verdict of the jury on appeal.
• It is next contended by counsel for appellant that the court erred in refusing to give instruction No. 3, asked by the appellant. That instruction is as follows:
“The law lets the defendant become a witness on the same plane it lets any other witness testify. When he becomes one, he assumes no extra burden from the fact that he is the defendant, and stands charged with a. crime. His credit is for the jury to determine, just as the credit of any other witness, and he is not to be suspected or discredited on the ground alone that he is the one accused. While the jury are not required to give his testimony any greater weight than any other witness, it goes with, no less weight because of the fact that he is the defendant.”
The court properly refused to give the instruction. In the first place, it is 'argumentative and for that reason it was not error to refuse it. The instruction is otherwise erroneous. The jury were the exclusive judges of the weight to be given to the testimony of the defendant and in determining what weight should be given it, this court has held that the jury has a right to take into consideration the interest of the appellant in the result of the verdict. Hamilton v. State, 62 Ark. 543; Blair v. State, 69 Ark. 558; Weatherford v. State, 78 Ark. 36.
The instruction, as requested by appellant, in effect, told the jury that they should receive the testimony of the appellant with no less weight because of the fact that he was a defendant in the ease. This was in plain violation of the decisions which we have just cited. The jury, in considering his testimony and in determining what weight should be given it, had a right to take into consideration, his interest in the result of the verdict and the instruction should have been so framed. Under our rules of practice it is well settled that it is appellant’s duty to ask a correct instruction upon any phase of the case that he wishes presented to the jury before he can complain of the ruling of the trial court in denying such a request. Allison v. State, 74 Ark. 444; Smith v. Weatherford, 92 Ark. 6; Holmes v. Bluff City Lumber Co., 97 Ark. 180; Jackson v. State, 92 Ark. 71, and cases there cited.
Finally it is contended by counsel for the defendant that the court erred in refusing to give the following instruction: “If it has developed to your satisfaction from the evidence that in this case the logs of Shadwell, if any of 'his are taken, do not amount in value to as much as ten dollars, or if you have reasonable doubt about their being of that value, even though you should find that what logs of Shadwell were taken were unlawfully and with criminal intent taken by defendant, you can not convict of a higher offense than that of petit larceny, and assess a fine against defendant in a sum not more than three hundred dollars nor less than ten dollars, and imprisonment in the county prison not more than one year. ”
The court read to the jury section 1826 of Kirby’s Digest. That section is as follows: “Whoever shall be guilty of larceny, when the value of the property stolen exceeds the sum of ten dollars, shall be- punished by imprisonment in the penitentiary not less than one nor more than five years. And when the value of the prop erty stolen does not exceed the sum of ten dollars, by imprisonment in the county prison not more than one year, and shall be fined in any sum not less than ten nor more than three hundred dollars. ’ ’
By a comparison of the section read with the instruction refused, it will be noted that every advantage the defendant could have derived from the giving of the instruction asked he obtained by the reading to the jury of section 1826 of the digest!
The court in other instructions had fully instructed the jury on the question of reasonable doubt and the section of the digest quoted plainly told the jury that if the value of the property stolen did not exceed the sum of ten dollars' the defendant could only be punished by imprisonment in the county prison and by fine.
The judgment will be affirmed. | [
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Hart, J.,
(after stating the facts). Section 4941 of Kirby’s Digest provides that the board of directors shall call a meeting of the land owners of said district at some place convenient to some part of the work. The meeting of the land owners in this case was called and held in the Board of Trade building at Helena, in Phillips County, a place outside the boundaries of the district. It is contended by counsel for the plaintiff that this rendered the whole proceeding void.
The plaintiff did not charge the board of directors with any design to perpetrate a fraud in selecting the city of Helena as the meeting platee of the land owners. The only contention of counsel in this respect-is that the city of Helena is not within the boundaries of the levee 'district, and that the section of the statute above referred to contemplates that the meeting of the land owners shall be held within the boundaries of the district. The statute does not so provide. It provides that the meeting shall be held at some place convenient to some part of the work. It appears from the language of the complaint that the city of Helena was .situated near some part of the work which was contemplated to be done. Doubtless the city of Helena was designated by the board of directors because that was the most convenient place for the land owners to assemble.
It is conceded by counsel for the plaintiff that under section 4961 of Kirby’s Digest the board of directors had authority to levy and collect off the land reported as benefited by the assessors of the levee district, a tax not to exceed five mills on the dollar of the value of such lands as assessed for State and county purposes for the purpose of keeping the levees in the district in repair and to meet incidental and contingent expenses. But it is contended by them that the board of directors had no power to levy .the 72 per cent tax for the purpose of enlarging the levee, and providing banquettes along the same.
As we have already seen, the levee district in question was organized pursuant to the provisions of chapter 100 of Kirby’s Digest. The lands in the district were ■all situated in Phillips 'County. .Section 4927 of the Digest provides that the county courts of the several counties in this State containing lands .subject to overflow may divide the territory of their respective counties subject to overflow into one or more districts having' reference to the locality of the land and the character of the river front, including in each of said districts as nearly as possible all lands subject to overflow from the same crevasses or direction and which can be protected by the same system of levees.
Section 4929 provides a method (by which the districts may .be formed or altered.
Section 4938 pertains to the duties of the levee directors and reads as follows: “It shall be the duty of said board of directors to determine what work is necessary to be done, or levees to be constructed to protect their said district from overflow. They shall cause accurate surveys of al'l work deemed necessary by them, and accurate estimates and calculations, to be made by some suitable and competent engineer or other person, .who shall make a written report thereof, showing the amount, character, and kind of work, the exact location thereof and the probable cost thereof, and return the same with all plans and specifications to the board of directors.”
It is a fundamental rule of construction that in statutes of this kind the grant of powers includes the incidental powers reasonably proper and necessary for carrying into execution the powers specifically granted. The purpose of the Legislature in framing the statute must be gathered from the statute as a whole, and if to effectuate the purpose intended a liberal interpretation must be reached, it is the duty of the courts to so construe' it; if, on the other hand, a literal interpretation would defeat the statute in whole or in part, such interpretation can not be given.
In the case of an improvement district organized to pave a street or to build a road when the improvement has been accomplished the power of the improvement commissioners is exhausted and the improvement constructed by them is turned over to the city or county authorities. There is in such case no provision in the statute for a continuation of the board of improvement commissioners and their authority ceases when the improvement is accomplished. Under the provision of the statute in question, however, we think the authority given to construct the levees to protect the district from overflow is to be regarded as a continuing power.
Section 4938 of the Digest provides that it shall be the duty of the board of directors to determine what work is necessary to be done or levees to be constructed to protect the district from overflow. The act under which levee districts are organized provides for a continuation ■in office of the board of directors and other officers provided in the act. The purpose of the organization of the levee district in question was to protect lands in the district from overflows of the Mississippi River. The very nature of the ever shifting yet ever present danger ■of overflow from that river, against which the levee was intended as a guard, makes it imperative that the board should have the broadest latitude in dealing with the situation which confronted it. If the board did not have the power to perform the work in question, then the whole purpose intended to be effected by the statute would be defeated. The object of the statute'was to protect the lands within the district from inundation and devastation by floods and overflows which annually occur in the Mississippi River. It is well known that the rivers of this State and those upon its borders are constantly shifting their .channels and that their banks are constantly caving. For .this reason, the construction of the levee is never completed and work is constantly necessary to be done on it for the purpose of accomplishing the results intended by the organization of the levee district. If the power were exhausted bjr a single exercise the very purpose of the statute would be defeated. The work in its nature is continuing, and in view of the broadness of the terms of the statute, we are of the opinion that the powers granted by the statute have not been exhausted because the levee board had already established a levee.
We are of the opinion that the terms of the statute are broad enough to confer upon the board of directors the power at their discretion to perform the work necessary to be done on the levee system for- the purpose of protecting the property of their district from loss and destruction by overflow.
There is no allegation in the complaint that the board proceeded arbitrarily or fraudulently.
It follows that the decree must be affirmed.
Kirby, J., dissents. | [
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Hart, J.
Section 7544 of Kirby’s Digest provides that the county court shall have the right to form new school districts or change the boundaries thereof upon a' petition of the majority of all the electors residing upon the territory of the districts to be divided.
Section 7540 of Kirby’s Digest reads as follows: “When a change is proposed in any school district, notice shall be given by the parties proposing the change, by putting up handbills in four or more conspicuous places in each district to be affected, one of said notices to be placed on the public school building in each affected district. All of said notices to be posted thirty days before the convening of the court to which they propose to present their petition; said notices shall give a geographical description of the proposed change.”
Under these statutes, appellees, who are electors of school district No. 3 in/Columbia county, Arkansas, filed a petition with the county court and gave the notice providing that a new school district would be formed out of school district No. 3 and the boundaries of the new district were described in the petition and notices. After the notices were posted and while appellees were circulating the petition they discovered from the county court records that a part of the territory included in the description of the proposed new district was in district. No. 64, instead of district No. 3. Both of these districts were common school districts. There were fourteen electors living in district No. 64, who believed themselves to be living in district No. 3. For many years they had voted and paid their taxes on personal property in district No. 3. These fourteen persons were white persons and the remaining electors in district No. 64 were negroes. After the mistake was discovered the petition was presented to the electors in school district No. 64 and every one of them.signed the petition.
Appellants filed a, counter petition remonstrating ■against the formation ¡of the new 'district.- The county court made an order changing the boundaries of the districts so as to form the new district prayed for in the petition. Upon appeal to the circuit ¡court the judgment of the county court was affirmed. The case is here on appeal.
It is conceded that a majority of the electors in school districts Nos. 3 and 64 signed the petition and also that no notice as prescribed by the statute was posted in district No. 64.
The giving of the notices prescribed by the statute was a prerequisite to the exercise of jurisdiction by the county court, and this is the effect of our de'cision in the the ease of McCray v. Cox, 105 Ark. 47.
A part of the territory in the new district was in district No. 64 and the action of the county court in dismembering districts No. 3 and No. 64, both common school districts, to form a new district out of a part of the territory of both of these districts, was without validity, because the court acquired no jurisdiction to deal with any part of district No. 64, the notice required by the statute not having been given. This principle of law is recognized by counsel for appellee but they contend that it is not applicable under the facts in the present case because all of the electors residing in district No. 64 signed the petition and to have given notice would, they say, have been a useless thing.
But it ¡may be that property owners within district No. 64 did not reside within the district, and, therefore, did not sign the petition. They were interested in the question as to whether or not a school district in which their property was situated should be dismembered, and for that reason notice should have been given so that, in the event they saw fit to do so, they might have used whatever influence they might have had with their tenants ¡and other electors residing within the district to cause them not to sign the petition.
Therefore it can not be said that giving of the notices required by the statute would have served no useful purpose. The notice required by the statute, not having been posted in district No. 64, the county court had no power to take a part of the territory embraced in that district and transfer it into another district, or to form a new 'district with it and a part of district No. 3.
The judgment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
Appellants are contractors engaged in building houses, and, while putting up a building in the city of Hot Springs for one Maurice, they employed appellee as a laborer. He received personal injuries while engaged in his work and instituted this action against appellants and Maurice to recover compensation for his injuries. After all of the testimony was introduced, the court gave a peremptory instruction in favor of Maurice, but submitted to the jury the issues raised by the pleadings as to the liability of appellants, and the jury found against them, assessing damages in the sum of $1,500.
Appellee was a common laborer, engaged in doing any kind of work about the building which he was called to do by Glenn, the foreman. He assisted the brick masons 'by carrying up brick and mortar, and also assisted the carpenters when directed to do so. At the time he was injured, the workmen had just raised a heavy iron beam called an “I” beam, and after it was raised it fell to the pavement, and appellee being, as the evidence tends to show, ascending a ladder from the cellar below, to the pavement, it fell on him and fractured his arm and also his leg and inflicted other serious injuries. He was confined to a hospital for ten days and suffered great pain. He expended about $600 in hospital and physician fees and in paying other expenses of his illness. There is no question about the assessment of damages being excessive if he is entitled to recover anything at all.
It was a two story building and the walls of the upper story had been built, the front of the building still being open. The beam was to be raised to the floor of the second story and placed, or “seated” as it is termed, with the ends projecting into the walls on each side. It was very heavy and was raised by means of a block and tackle, suspended on a snub-beam, extending out a few feet over the sidewalk. The snub-beam was constructed of two 2x14 pieces of timber, twenty-six feet long,, extending over two other upright pieces 2x14, which carried the weight. The two pieces forming the snuib-beam were placed together, resting on edges, and at the back ends were fastened by cleats. Two braces were used over the front end of the snuib-beam, being pieces 2x6 in dimensions, and extending.from either wall over the beam, being spiked together and also spiked to the beam. Appellee and four or five other men were placed in the cellar to raise the beam by pulling on the rope, and when it was raised up above the place where it was to be seated, the rope was tied to a beani or pillar in the cellar to hold it in place until ready to be lowered into its seat. The beam was raised in that way and the rope tied in the cellar and appellee went up a ladder to the pavement for the purpose of going up to the second story to wait on the brick masons, and just as he got up to the pavement on the ladder the “I” beam fell from above and struck him. The testimony shows that one of the 2x6 braces broke loose, which released the two pieces constituting the snub-beam, and they rolled over, which caused the “I” beam to fall. The negligence of appellants, if any, consisted in failing to securely fasten the braces so that they could not come loose. It is not contended that any of the timbers broke; therefore, there was no negligence in any other respect.
It is insisted that the evidence is not sufficient to sustain the charge of negligence. Appellants introduced a number of witnesses who testified that the appliance for raising the “I” beam was constructed in the most approved method and was the customary way of doing it, and their testimony tended to show that there was no negligence in the way in which this appliance was con structed. We think, however, the jury were warranted in finding that the braces were not spiked or nailed with sufficient strength — either that the nails were too small or not driven in far enough, and that there was negligence in this respect. While the doctrine of res ipsa loquitur is not applicable, the jury were warranted in finding from a description of the appliance, and the manner in which the braces came loose, that they were not nailed with sufficient security, and that there was negligence in that respect. This was an appliance which was furnished by appellants and they owed the duty to the servant to exercise ordinary care to see that it was reasonably safe. The happening of the injury itself did not necessarily make out a case of neglgence, but under the circumstances the jury could draw the inference that these braces were not put together with sufficient strength.
It is also contended that the undisputed evidence shows that the plaintiff was directed not to come out under the beam, and for this reason he was guilty of contributory negligence and the verdict in unsupported. There is a conflict in the testimony as to what took place and our conclusion is that there was enough to go to the jury on the question of contributory negligence. Mr. Jones, one of the appellants, and .also the foreman, testified that they gaye appellee specific directions along with the other workmen not to go underneath the beam. They testified also that when the beam was raised, and the rope was tied so as to keep it suspended until they were ready to seat the beam, the other men in the cellar were called out, but that the appellee and another one of the workmen were told to remain there for the purpose of holding the ropes. The testimony of appellee, while not as definite in detail as that of the appellants, tends to show that he was not given any such direction,'but that the foreman called out to the men in the cellar to come out for the purpose of waiting on the bricklayers. The jury might have found from the testimony that they were told to come out of the cellar for the purpose of waiting on the bricklayers in the upper story and that the plaintiff came out to perforin the duty he was called to do. The question of appellee’s contributory negligence was, under the circumstances, one for the jury to determine. He had the right to rely to some extent on the assumption that appellants had performed their duty in providing a reasonably safe appliance to hold the beam and that it would not drop on him. Therefore, in passing beneath it to get to his work, he was not guilty of negligence, unless, as claimed by appellants, he was specially warned not to place himself there. He was not, as a matter of law, guilty of contributory negligence, unless he was warned not to place himself in that position. In other words, it was, under the proof, a question for the jury to determine whether or not he was guilty of negligence in passing under the beam, and as that question was properly submitted to the jury the verdict on that issue should not be disturbed.
Error is assigned in permitting to be read to the jury the contract (between appellants and Maurice, containing the following clause: “Art. 11-A. 'Contractor to carry accident insurance on persons working on buildings on premises.” No objection was made to the introduction of the contract except the particular clause quoted above. The contract was introduced for the purpose of showing the relation between appellants and Maurice, for the jury to determine whether appellants were employees or agents, or whether they were independent contractors. The contract related exclusively to the question of the liability of Maurice and could not affect the question of appellant’s liability, for it is conceded that appellee was working for them and that they were responsible for the appliance furnished for raising the beam. The ground of the objection to the introduction of this clause of the contract was that it conveyed to the jury the information that the contractors were to furnish insurance and might have induced the jury to find a verdict against them because they were protected by insurance. There was no attempt to prove that they carried accident insurance, but, on the contrary, the court instructed the jury that they could only' consider the contract in evidence for the purpose of determining whether or not appellants were independent contractors. We think it was proper, with that explanation, to let the whole contract go to the jury so that they might, in passing on the question of Maurice’s liability, determine whether or not the contractors were his servants or whether they were independent contractors in the sense that he was not responsible for their conduct. This particular clause had some bearing upon the question as to whether they were independent contractors or mere employees. We find no error in that ruling of the court.
It is insisted that the court erred in giving instruction No. .1 on the subject of assumption of risk. ■ The principal ground of the objection to this instruction is that appellants did not plead assumed risk as a defense and the court should not have isubmitted it to the jury. It may be said at the outset that if their position be well taken, the error was not prejudicial. Be that as it may, however, if there was an error of the court it was acquiesced in by appellants, who requested several other instructions which, in fact, submitted the issue of assumption of risk. This is particularly true of instruction No. 10, given -at appellant’s request, which told the jury that if the plaintiff and other employees were warned by the foreman in charge of the work to stay out from under the beam, there could be no recovery. While this instruction did not specifically use the words “assumed risk,” it necessarily referred to that principle.
Another objection made to the same instruction is that it in effect told the jury that appellee would not be deemed to have assumed the risk if he was called upon to perform service at that place without warning of the danger. It is said that this is erroneous because it fails to specify that the call to service must have been made by one authorized to make the call, otherwise the appellee would not be relieved from the assumption of risk by obeying the call.' This argument is not sound, for the language of the instruction implies the call to service by one in authority. The instruction necessarily means that if the employers, acting through constituted agents, called the servant to do a. certain work and failed to warn him of the danger, he would not not be deemed to have assumed the risk if the danger was unknown to him and was not so obvious that a reasonably prudent man would not have undertaken to perform the service.
There are other assignments with respect to the instructions given by the court, but we are of the opinion that the case was properly submitted to the jury. The other assignments are not of sufficient importance to call fpr a discussion.
Judgment affirmed.. | [
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Smith, J.
On August 4, 1906, appellee Warren Vehicle Stock Company purchased from one Mrs. Heath the timber on 400 acres of land owned by her for a consideration of $900 cash. On November 7, 1912, Mrs. Heath conveyed the timber on the same lands to appellant, and this litigation involves the title to that timber.
The deed to appellee, Warren Vehicle 'Stock Company, appears to have been what is called an “Expeditious Timber Deed. ’ ’ This deed contained the following stipulation:
£ £ The party of the second part shall cut and remove said timber as expeditiously as possible, and it is agreed that unless it shall have removed all the same within a period of ten years from the date hereof, that it shall be responsible for and pay to the first party the full amount of taxes assessed against said lands after the expiration of said period of ten years from this date until such times as said timber is removed and said possession returned to said first party. The said second party shall have free and uninterrupted possession of said land during the term of this indenture for the purpose herein set forth, and shall have free ingress and egress thereto and therefrom, with the right to build and operate tram or railroad on to or across said land for the purpose of transporting the timber therefrom, or for transportation of timber belonging to or that may belong to said second party, and to this end shall he regarded as the holder of said land, to sue for and recover the same from all persons whatever, holding or attempting- to hold the same; provided, that the said first party, its heirs or legal assigns, may retain such possession of said land, at all times, as shall not interfere with the rights of the second party under this 'deed for the purpose aforesaid.” The provision for free and uninterrupted possession of the land, with the right of ingress and egress, does not add anything to the time given for the removal of the timber, but only undertakes to deal with the question of possession.
By comparison it will he seen that the contract for the sale of the timber is identical with the instrument set out in the case of Earl v. Harris, 99 Ark. 112, except that in that case the period of removal was limited to five years, whereas in the instant case ten years were given for that purpose.
Appellee out and removed some of the oak timber, but says that the larger and more valuable portion of it still remains standing thereon. As an excuse for its failure to remove the timber, it offered evidence tending to establish the following facts: It operated the mill until the panic of 1907, when the lumber market was so affected that the mill began to lose money, and continued to operate at a loss until September, 1908, by which time the company’s capital w-a-s wiped out and it was insolvent, and for the want of funds with which to run, and a market for its output, the company closed the mill down, expecting to again operate it as soon as it could recover, and the price of the products should go up, but its intention was, preferably, to sell out its holdings and get another company to operate its plant. In its efforts to sell and get -another mill in operation and get the Heath timber off, a sale was effected to a concern, which was made a party to this proceeding, known as the Texas Hardwood Lumber Company, in December, 1912. After cutting and removing some of the timber the vehicle company ceased cutting it entirely for several years, during all of which time it was apparently waiting for an improved market, or an advantageous opportunity to sell its interest.
The exouse given for appellee’s failure to remove the timber was insufficient. Ingham Lumber Co. v. Ingersoll, 93 Ark. 447.
But appellees insist that, under the terms of their contract, they 'had at all events at least ten years in which to remove the timber, and as much longer as might be necessary, providing they were proceeding expeditiously to remove it.
This contract was construed in the case of Earle v. Harris, supra, where it was said: “Viewed in-this way, we think that by this provision (the one set out above) the parties intended that the defendant should out and remove the timber from the land as expeditiously as possible, and that it was within the contemplation of the parties at the time that it might take, the defendant longer than five years from the date of the deed in which to cut and remove the timber, although he proceeded with all possible expedition. One of the primary purposes, however, of this stipulation, we think, was that the defendant should begin to cut and remove the timber promptly after the contract was made, .and that he should continue to cut and remove the same as expeditiously as possible from that date until it was all out and removed. While this was considered essential, yet it was thought by the parties that, under the conditions and circumstances then surrounding the land and removal of the timber therefrom, it might take the defendant longer than five years in which to cut and remove the same, though he proceeded with proper dispatch; and in that event it was agreed that he should have longer, than five years in which to out and remove the same; and, the length of time which he should have after the five years not being specified, defendant had a reasonable time after the five years in which to remove the timber if he proceeded during all such time as expeditiously as possible. The specification of five years was made, we think, only for the purpose of fixing the amount which the defendant should pay for the timber. If, by proceeding with all possible expedition, he should cut and remove the timber within the period of five years, he should pay no further consideration than that which was named in the deed; /but, if, while proceeding with all possible expedition, he should require longer than said five years in which to •cut and remove the timber, then he would be required to pay an additional sum therefor, which was the amount of the taxes assessed against the land. In any event he was required to cut and remove the timber as expeditiously as possible, and he did not therefore have either five years or .any other definite 'time in which to cut and remove the timber if he did not proceed continuously with all possible expedition from the date of the deed.”
A contract with similar, if not identical, provisions was again construed by this court in the case of Yelvington v. Short, 111 Ark. 253, in which it was said (to quote the syllabus) :
“Where a contract for the sale and removal of timber provides, that the vendee shall cut and remove the timber as expeditiously as possible, and that unless it is removed within a period of two years the vendee shall be responsible for the taxes until it is removed, the grantee is required to cut and remove the timber as expeditiously as possible, and he did not have either a period of two years or 'any ether definite time in which to cut .and remove the timber, if he did not proceed expeditiously and continuously from the date of the deed. Earl v. Harris, 99 Ark. 112, followed.”
Upon the authority of those two cases we must hold that the contract in suit did not give absolutely and at all events any definite time for the removal of the timber. The purpose of this contract was to require the timber to be removed expeditiously,' and sufficient time for that purpose was given. This might exceed ten years, or it might not require that length of time, but the right to cut and remove the timber expired when a reasonable time had been given for its expeditious removal.
The case of Earl v. Harris, supra, explains the provision in reference to the payment of taxes and need not be repeated here..
The decree of the chancellor is, therefore, reversed and the cause will be remanded with directions to set aside the decree cancelling the deed of appellant and to dismiss this cause at the cost of appellee.
Hart, and Kirby, JJ., dissent. | [
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Hart, J.,
(after stating the facts). In The case of Bunch v. Chaffin, 106 Ark. 306, the court held that the provision fixing the time within which an election shall be held under section 7669 .of Kirby’s Digest was mandatory and that the election to be valid'must be held not less than seven nor more than fifteen days after the order designating a day therefor is made by the county judge.
In the case of Bonner v. Snipes, 103 Ark. 298, the court held that a special school 'district is established under the statutes referred to if a majority of the qualified electors within the territory named in the petition before the county judge shall have voted for the establishment of the district, and that the net does not require that the county court shall make and enter of record any order .as to such special election or relative to the establishment of the special school district.
Under the authority of these decisions it is contended by counsel for the appellants that the residents of School District No. 65 did not have a right to file a remonstrance in the county court against the formation of the McRae Special School District and that for that reason the judgment of the county court and the subsequent judgment of the circuit court upon appeal were erroneous.
They further insist that inasmu'ch as the county judge on the 17th day of January, 1912, gave public notice that the special election should be held on February 3, 1912, there was no authority to hold the election, the time being more than fifteen days from the time the order was made, and that for these reasons no valid election was held.
■ It may be conceded, for the purpose of this decision, that the contention of counsel for appellants in both these respects is correct, and still the decree of the chancellor must be affirmed.
It will be noted that the Attorney General instituted an action in the circuit court against the parties who had been elected directors of McRae Special School Dis triot, in which all these facts were set up, and the circuit court rendered a judgment dismissing the complaint of the Attorney General and from this judgment no appeal was prosecuted.
In the case of Beavers v. State, 60 Ark. 124, the court held that an action by the Attorney General in the nature of quo warranto proceedings against 'the directors of a school district is a proper method to test the legality of 'the organization of the school district. The court said: “This action was brought by the Attorney General in the name of the State, in lieu of quo loarranto. Its object is to test the legality of the organization of the town of Waldron in Scott County into a single school district. The directors of the district, whose existence is being questioned, were made defendants. No valid objection can be urged to the form of the action or the parties litigant.” Several authorities are cited by the court in support of the position assumed by it.
So it will be seen that the legality of the organization of McRae Special School District was distinctly put in issue and directly determined by a court of competent jurisdiction in the suit instituted by the Attorney General against the parties claiming to be directors of McRae Special School District. The particular issue sought to be determined in the present suit is the validity of the organization of McRae Special School District. That precise question was involved in the suit instituted by the Attorney General and the judgment in that case is conclusive in the present suit on tall matters raised and determined in that action. No appeal was prosecuted from the judgment in the suit instituted by the Attorney General against the directors of McRae Special School District and the judgment in that case is res adjudicata, because the issues raised in that ease and those raised in the present case are precisely the same. See National Surety Company v. Coates, 83 Ark. 545; Morgan v. Kendrick, 91 Ark. 394; Pulaski County v. Hill, 97 Ark. 450; Fourche River Lumber Company v. Walker, 96 Ark. 540; and Fogel v. Butler, 96 Ark. 87.
It follows that the decree must be affirmed. | [
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Kirby, J.,
(after stating the facts). It is well settled that the probate court is without jurisdiction to try contested claims of title to property. In Shane v. Dickson, 111 Ark. 357, the court said: “The probate court has no jurisdiction of contests between an executor or administrator and third parties over property rights or the collection of debts due the estate. Its jurisdiction is confined to the administration of assets, which come under its control, and incidentally to compel the discovery .of .assets. ” Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166; Mobley v. Andrews, 55 Ark. 222.
It is also unquestionably true that the probate court has no jurisdiction to adjust partnership accounts between an executor or administrator of a decedent and a surviving partner. In Choate v. O’Neal, 57 Ark. 299, the court held, quoting syllabus: ‘ ‘ The probate court has no jurisdiction to settle partnership accounts between a decedent and his surviving partner.” See, also, Nelson & Wife v. Green, 22 Ark. 547; Tiner, Admr., v. Christian, Admrx., 27 Ark. 306; Culley & Son v. Edwards, Admr., 44 Ark. 423.
The probate court was without jurisdiction to try the question of title to the property and render judgment for it or the value thereof, or to. adjust the partnership accounts and make a settlement thereof and allow the claim for any amount found to belong to the surviving partner. The testimony tended to show that the suit was for the recovery of specific articles of property, or the value thereof, or for the appellee’s share and interest in the partnership property, no settlement of 'the partnership having been shown to have been made between the partners by agreement or otherwise, nor ascertainment of such interest.
It follows that the probate court was without jurisdiction of the cause, and since upon appeal the circuit court tries the case de novo and renders such judgment or makes such order as the probate court should have made, it acquired no jurisdiction on appeal. ■
The court erred in not granting appellant’s motion to dismiss the suit for want of jurisdiction. The judgment is reversed and the cause dismissed. | [
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Hart, J.
J. H. Hall sued Yince Gage to recover damages on account of the .alleged negligence of the latter in allowing his wall to fall on the former’s building. The facts, so far as are necessary to determine the issues raised by the appeal,'briefly stated, are as follows:
Hall .and Gage owned adjacent lots in the city of Hot Springs upon which they had buildings. On September 5, 1913, the buildings on both of these lots were destroyed by fire. On the lot of Gage a wall was left standing about twenty-four feet high and one and one-half inches of this wall was on Hall’s land. Almost immediately after the fire Hall cleared away the debris from his lot and proceeded with the erection of a concrete building. The wall of his new building was sixteen feet high and in making the concrete wall he used the brick wall of Gage as a part of the form. After the erection of Hall’s new building the wall of Gage’s building’ fell over on it and materially injured it. The break in Gage’s building was one and one-half feet above the wall of Hall and the undisputed testimony shows that the wall left standing on Gage’s land after the fire was not in any way undermined by the erection of the building of Hall, but, as a matter of fact, was strengthened by it. The fall of the wall of Hall’s building occurred on the 18th day of October, 1913. Gage resided in Hot Springs and knew that the wall was standing there and had taken no steps to remove it or to make it safe.
There is some testimony from which it might be inferred that a rain accompanied by wind occurred in the city of Hot Springs on the day the wall fell, but the extent or violence of the wind is not shown by the record.
After the fire Hall, in erecting his building, used “reinforced concrete with iron,” and at that time there was a city ordinance which required that a building be constructed of stone, brick or iron.
The plaintiff requested the court to give instruction No. 1 as follows: “The court instructs the jury that the collapse of a building or falling of a wall is prima facie evidence of negligence, and imposes a burden upon the owner to show that the accident happened without his negligence.” The court, over the objection of the plaintiff, modified the instruction by adding thereto the words: “Unless such presumption has been sufficiently explained or rebutted by other proof shifting such burden.”
The plaintiff also asked the court to give instruction No. 2, which is as follows: “It is the duty of an owner of a building to take reasonable care that it shall not fall and injure others; and therefore, the mere fact of the fall of a building, whereby a-person lawfully on adjoining premises, is injured, raises a presumption that the owner of the 'building has been negligent. ’ ’ The court, over the objection of the plaintiff, modified in the same manner as in instruction No. 1.
The plaintiff requested instruction No. 4 as follows: “The jury are instructed that the fact, if shown by the evidence, that Hall was erecting a building on his property in violation of a city ordinance, is no defense to this action, and, if true, will not permit the owner from recovering for his injuries if otherwise entitled thereto.” The court modified this instruction by adding thereto the words: “Unless such violation of the city ordinance was the proximate and contributing cause of his injury.”
The court, over the objection of the plaintiff, also gave at the request of the defendant instruction No. 1, as follows: ‘ ‘ The court instructs the jury that before you can find for the plaintiff you must find from the evidence that the injury to the property of plaintiff was caused by the negligence of the defendant, unless you find that the falling of said wall was negligence within itself, and unless the plaintiff has established the negligence of the defendant, and the injury was the result of such negligence, by a fair preponderance of the evidence, then you will find for the defendant.”
The jury returned a verdict for the defendant and the plaintiff has appealed.
In the case of Ainsworth v. Lakin, 57 L. R. A. 132, the ’Supreme Court of Massachusetts held: “The owner of walls left standing by a fire, which can not be used for rebuilding, owes adjoining owners the duty, after a reasonable time for investigation, to exercise such care in the maintenance of walls likely to fall on their property as will absolutely prevent injuries except from causes over which he would have no control, such as vis major, acts of. public enemies, or wrongful acts of third persons which human foresight could not reasonably be expected to anticipate and prevent.”
In the case of Earl v. Reid, 18 Am. & Eng. Ann. Cases, page 1; 21 Ontario Law Reports, 545, Teetzel, J., said: “I think it is the plain duty of every owner of land to keep the buildings or structures thereon in such a condition that they shall not, by falling or otherwise, cause injury to persons lawfully on adjoining lands. In ether words, every owner of a building is under a legal obligation to take reasonable care that his building shall not fall in the street or upon Ms neighbor’s land and injure persons lawfully there.
“While the owner can not be charged for injuries caused by inevitable accident, the result of vis major or of the wilful act or negligence of some one for whom he is not responsible, he is liable for injuries caused by the failure on his part to exercise reasonable care.”
The fact that the wall fell is prima facie evidence of negligence in conformity with the maxim, res ipsa loquitur. Thompson’s Commentaries on the Law of Negligence, volume 1, paragraph 1213. See, also, paragraph 1060 of the same volume. To the same effect see Earl v. Reid, supra.
It follows from these principles of law that the court erred’in modifying instructions Nos. 1 and 2, asked by plaintiff, and in giving instruction No. 1, asked by defendant. Moreover, in the present case, the undisputed evidence shows that there was left standing on the de fendant’s land after the fire, which occurred on September 5, 1913, a wall twenty-four feet high, and that the upper part of this wall could not be used should the defendant decide to rebuild on his lots. The defendant saw the wall standing there after the fire, and it was patent and obvious to him that -the upper portion of it could not be used by him again in rebuilding upon his property. He permitted it to stand there without any effort to remove it or to prop it up so it would not injure the property of persons on the adjoining land. It was his duty not to suffer such a wall to remain on his land where its fall would injure his neighbor, without using such care in the maintenance of it as would absolutely prevent injuries, except from causes over which he had no control. According to the undisputed evidence, he permitted it to remain there in this dangerous condition from September 5 until October 18 without any effort whatever to remove it or to prop up the upper portion of it. There was, therefore, no testimony in the case upon which to predicate the modifications to instructions Nos. 1 and 2, asked by the plaintiff.
We are also of the opinion that the court erred in modifying instruction No. 4, asked by plaintiff, by adding the words: “Unless such violation of the city ordinance was the proximate and contributing cause of his injury.” There was no testimony upon which to base this qualification of the instruction. According to the undisputed testimony, plaintiff, in erecting his. building, did nothing whatever to undermine or cause to fall the wall of the defendant. If he had erected his building of stone, brick or iron, the falling of the wall would have injured it just the same. There is no testimony in the record tending to show that plaintiff’s erecting a concrete building in' any way caused the injury to his property.
The plaintiff insists that the judgment should be reversed and a judgment entered here in his favor because, he says, the cause had been fully developéd and the undisputed evidence shows the amount of damages 'Suffered by him. He states in his abstract that his damages amounted to $1,700. But lie does not abstract his testimony on this point, and we are not required to explore the record to see whether the testimony on this point is undisputed. Counsel for the defendant deny that it is undisputed and aver that the damage sustained by the plaintiff, as shown by the record, amounts to only about half the amount claimed by plaintiff.
For the errors indicated, the judgment will be reversed and the cause remanded for a new trial. | [
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Smith, J.
Eoad Improvement ■ District No. 1 of Cross County was organized in 1917 under the Alexander road law for the construction of an improved road from Wynne, at Station 0, to the Crittenden County line at station 980+35. For some reason the improvement was not completed as planned, but, after the road had been built from Wynne to what is known as the “Bay,” an arm of the St. Francis Eiver, at station 405+85, the work was discontinued.
At the special session of the General Assembly of 192Ó an act was passed for the relief of this district, which, among other things, appointed new commissioners, who advertised for bids for completion of the road. Appellants were the lowest bidders, and in April, 1920, a contract was awarded them for the construction of the road.
' In their proposal to do the work appellants inserted a provision that the method of determining the measurement of a yard of gravel should be agreed upon ■between themselves and the engineer of the district before beginning the work; and appellants insist that such an agreement was made, and that it was agreed that a yard of gravel should be fixed at 2,800 pounds, railroad weights.
It is undisputed that the parties had agreed to fix the rate which should constitute a yard of gravel, but it is denied by the district that a final agreement had ever been reached. This became a very important question in the litigation which arose between the contractors and the district, and the court found in favor of the contractors, and the district has appealed from that finding.
The contractors entered upon the work and proceeded with its construction, and were thus engaged when, on January 20, 1921, they received a notice from the engineer of the district reading as follows':
“ Wynne, Ark., Jan. 20, 1921.
“Messrs. Perdue & Hill, "Wynne, Ark.
“You are hereby notified that you will not be called on before the first of May, 1921, to resume your work under your contract with Road Improvement District No. 1 of Cross County. This does not mean that you will be authorized to resume work upon that date, but only that you will not be called upon before that time, the idea of the board being to suspend work until after the expiration of unfavorable weather conditions.
‘ ‘W. S. Newsum, Engineer. ’ ’
This notice suspended the work, and this litigation, which grew out of it, must be decided by a consideration of the conditions under which, and the purpose for which, the notice was given.
The contractors assert this notice' was a breach of their contract, and afforded ample justification for this litigation. Of it we shall have more to say.
' • By this suit the contractors seek toYecover for work and labor performed under the contract, and for damages for its alleged breach, and there is a counterclaim by the road district to recover certain construction costs in completing the improvement.
The big question in the case is, Who breached the contract? And the court below decided that question in favor of the road district. Other questions grew out of this one, some of which were decided in favor of the contractors, while others were decided in favor of the ■ road district; and the contractors have appealed, and there is a cross-appeal b}^ the road district. These other questions will also be discussed.
The record is remarkable alike for its size and for the numerous irreconcilable contradictions in the testimony, and the conclusion one reaches depends entirely upon the testimony which is credited and accepted. The contractors present a story of wrong and oppression. They insist that the engineer of the district had colluded with certain of the commissioners, if not all of them, to so oppress them (the contractors) that they would be compelled to surrender their contract. It is asserted that the purpose of this oppression and corrupt plan was to give the work to another contractor, who was a favorite of one of the engineers and one of the commissioners.
We will not set out the testimony of the numerous witnesses, but we will give a summary of it. According to the contractors, the district’s engineer was incompetent, inefficient and inattentive, and was rarely on the job. According to the engineer, he was over the job personally every other day, and the cause of the friction between himself and the contractors was not inattention but his assertion of the district’s rights.
The contractors say the plans of the improvement were incomplete and insufficient, and were especially defective in failing to provide drainage. They also say the engineer did not furnish sufficient and proper grade stakes.
The plans complained of were' those on which the contractors had based their bid, and they no doubt had the opportunity to familiarize themselves with these plans before bidding. The engineer testified that the plans were not defective, and no delay occurred on that account; and, in regard to the grade stakes, the testimony on the part of the district is to the effect that no complaint on that account was ever made except upon one occasion, and the engineer was then nailed upon the carpet by the board, and explained that there were stakes at all places where he wished the work done, but the contractors were insisting on working at another place where there were no grade stakes.
The district appears never to have been satisfied with the weight agreed upon as constituting a yard of gravel, and, while it is admitted that there was an agreement fixing 2,800 pounds as a yard, it is insisted that this agreement was tentative and subject to correction, and that it was later ascertained that 2,800 pounds did not make a yard. On November 8, 1920, the engineer wrote the contractors that he had made a test of a car of gravel, and that a mistake had been made against the district, and the contractors were asked when they would be ready to join in an accurate test. The contractors answered this letter the next day, and stated in their reply that they were not interested in the subject, as 2,800 pounds had already been agreed upon as the weight of a yard of gravel, and estimates had been given and paid upon that basis, and they regarded the question as settled.
This is a very important item, but, without further re'cital of the testimony in regard to it, we announce our concurrence in the finding of the court below that 2,800 pounds of gravel constituted a yard, .under the contract and agreement of the parties.
This and certain other contentions between the contractors and the engineer had resulted in friction and disagreement between them, and the contractors say. they had become convinced that the'engineer was not acting in good faith with them, and intended, by his ex-, actions, to drive them off the job, and that he had the active support of some, if not all, of' tlie commissioners in accomplishing that result. It .is ctintended that the notice set out above was a part of this plan, and was given for the purpose of depriving the contractors of the opportunity to earn the profit which compliance with the contract would have given them.
The testimony does show that construction costs had fallen materially between the date of the engineer’s notice to them and the contract, and it is very earnestly insisted that the testimony also establishes the-following facts: that the suspension of the work was unnecessary; that the reason assigned (the condition of the weather) was a mere subterfuge. In this connection, it is pointed out that the contractors were put to work in June following a month of unusual rainfall, and they were taken off the work following a period when the precipitation had been below the average for the preceding month. The records of the weather bureau show that November, 1920, had less rainfall than any November for three years preceding. The rainfall for December, 1920, was 6.48 inches, which was 1.70 inches above the average, but of this December rain 2.40 inches fell on December 22 and 2.30 inches fell on December 26.
The contractors also insist that the tesitimoiry not only shows that it was unnecessary to suspend work at all, but that it was wholly unnecessary to suspend for the long period intervening between January 20 and May 1, and that the engineers must have known, and did know, that the suspension would be very expensive to them, and would, in effect, drive them from the job, and did have that effect.
The commissioners and engineers denied categorically that they had airy purpose of driving the contractors from the job. They admit the contractors were put on the job following a spring of unusual precipitation, but they say this was the season when the soil finally dries out.
The testimony does not impress ns that January is a better month than June to Tguild roads in the St. Francis bottom. Commissioners who had lived in that district for fifty 3rears ur more testified that the soil was largety gumbo, and that when it becomes thoroughly saturated in winter, it did not dry out until the spring, and they testified that it was after conference with the contractors that May 1 was fixed as the earliest date when the work could be resumed.
The testimoi^ on the part of the district is to the effect that the commissioners understood the contractors were not objecting to the suspension of the work, but we are of opinion that the contractors did not consent. In fact, we think their attitude was one of protest against the suspension. However, we accept the statement of the commissioners that the3r did not understand the contractors had taken the position that the suspension of the work would be treated as a breach of the contract. The testimony shows that the commission- ■ ers had determined at the meeting of the board on January 10 to suspend the work, but had not then determined the period of suspension. The contractors frankly concede that the3r went to the board meeting on January 20 for .the purpose of fortifying themselves for the prosecution of the litigation which they had alread3r decided to institute. They admit this was their purpose, and to that end they brought their attorney to the meeting, but they sa3r they did this because they had become convinced that litigation had become inevitable.
.We have carefully considered the testimony in regard to the meeting of January 20, for it is upon the happenings there that the contractors predicate their cause of action. They say it was then and there the district breached the contract.
We have said that the contractors did not asseut to the suspension of the work, but we are equally as certain that their never advised the commissioners, or the ■ attorney for the district, who also attended the meeting of January 20, that they would treat the suspension of tlie work as a breach of the contract. It may he that the commissioners would have ordered the suspension of the work even though the contractors had stated their position candidly, but their failure to say they would treat the suspension of the work as a breach of the contract does appear, in a measure, to support the contention of the commissioners that the suspension was ordered by the consent of the parties.
The attorney for the road district testified that he understood the contractors preferred to proceed with the work, hut he did not understand they would treat the order of suspension as a breach. In fact, when the attorney for the contractors stated that they wanted the order of suspension in writing, the attorney for the district wrote up an agreement to that effect, and the district’s attorney testified that the objection made to what he had written was that it appeared to he by consent, and this would not be satisfactory to the surety company which had made the contractors’ bond, and that company would not agree to the suspension except upon the order of the district. Thereupon the attorney for the contractors dictated to the attorney for the district the notice set out above, the same being written as dictated, on the typewriter.
There are charges and countercharges of lack of candor and good faith. The contractors frankly admit that they had this notice so prepared as to serve their purpose in the litigation which they had already determined to bring. We think, under the circumstances, they should have stated that they would treat the suspension of the work as a breach of the contract.
The commissioners testified that they did not intend to discharge the contractors, and that they never suspected the contractors would not complete the work when called upon to do so, until they were served with summons notifying them the district had been sued. There was offered in evidence a letter from the engineer to the contractors dated Feb. 21, 1921, in regard to spreading gravel on a certain part of the road. The contractors replied to this letter in one dated March 3, 1921, in which they stated that the hoard had taken from them any liability or discretion, and on that account they declined to act on the board’s request; but not even in that letter was it stated that the contractors considered the contract at an end.
As soon as the notice of suspension had been delivered, the contractors repaired to Little Rock, where they emploj^ed three civil engineers to go over the district. These engineers immediately went over the district, and all testified that, in their opinion, the order of suspension was not justified by the condition of the road on which the contractors were, proposing to place gravel, or on account of the state of the rveather. The contractors insist that this testimony shows the weather had nothing to do with the suspension.
This testimony is by no means undisputed. Many landowners in the district testified that the road had become a long mud-bed, and in many places had become nearly impassable, and at once plhce for about a mile had become entirely so, and that, to enable the people to travel the road with any degree of safety from Prince-dale to Parkin, two points on the road, would have required the road to be planked like a bridge for a distance of two or three miles, and in some places this was done to make the road passable.
The commissioners insist their action in suspending the work, under the facts stated, was justified by a clause of the contract which reads as follows: “Temporary SUSPENSION op WORK. The board of engineers may stop the work, wholly or in part, for such period or periods as they ma3?' deem necessary because of unsuitable weather, or such other conditions as are considered unfavorable for the prosecution of the work, or for such time as they may consider necessary because of the failure on the part of the contractors-to carry out orders given,” etc.
This clause is in the contact, and we cannot refuse to give it effect. Of course, this clause did not authorize the commissioners to act arbitrarily or in bad faith; but, if their action in ordering the suspension was not arbitrary or in bad faith, the suspension of the work was not a breach of the contract. It could not be a breach of the contract for the commissioners to do a thing the contract authorized them to do; so if, in good faith, they did conclude that the conditions were too unfavorable to continue the work, they were within their rights in ordering the work suspended. Williams v. Board of Directors, 100 Ark. 166; Drainage District v. Kochtitzky, 146 Ark. 494; Lewelling & Price-Williams v. St. Francis County Road Imp. Dist. No. 1, 158 Ark. 91; LeRoy v. Harwood. 119 Ark. 418; Whitener-London Realty Co. v. Ritter, 94 Ark. 263; Hot Springs Ry. Co. v. Maher, 48 Ark. 522.
We do not think the testimony supports the appellants’ contention that the commissioners did not act in good faith, and we conclude therefore that the suspension of the work did not constitute a breach of the contract. The chairman of the board testified that he said to one of the contrators, “You know I would like the best in the world for you all to stop until spring,” and the contractor answered, “I think it is a good thing myself, but you need not say anything about it, or what I said, for I will deny it. Don’t tell anyone I told you that.” The contractor with whom this conversation is said to have occurred did not deny its occurrence.
On April 30 the engineer notified the contractors to resume work, but they did not do so, and they seek to excuse their failure to do so by saying that they did not believe the notice had been given in good faith.
One of the commissioners was asked: “Did not the board get this letter along about the 5th of May, asking, if they resumed work, what the board would do about the • matter of determining gravel weights ? ’ ’ and answered: “I dp not remember; the board might have got it.”
The letter was not produced and does not appear in the record, and we do not know its contents, hut nothing else appears anywhere in the record about it. We do not understand this letter gives any support to the proposition that the contractors would have returned to work if the commissioners had waived their position in regard to gravel weight. They nowhere say they would have done so. On the contrary, they admit the purpose then existing to sue the district in equity. In fact, they had instituted a suit at law on March-, 1921, and had on April 20 taken a voluntary nonsuit with the expectation of suing in equity.
The court gave the contractors judgment for the retained percentage, and this we affirm. The court found that tile gravel should he paid for on the basis of 2,800 pounds to the jard, and this we approve. The court allowed $108.51 for unestimated excavation, and this we approve, although the contractors say it should he more, and the commissioners say nothing should he allowed on that account.
We concur also in the other .findings of the court, which we think require no discussion, except an item of $3,903.03, designated, as difference in construction costs.
Appellants say the testimony shows their anticipated profits were $28,861.79, and that they should have a judgment for this amount in addition to the other allowances made them by the court, amounting in all to $42,515.83. ■ The answer to this insistence is that they did not resume work, pursuant to the notice of April 30, and thereby earn the profits for which they now seek judgment.
But, notwithstanding the fact that we think anticipated profits were properly disallowed toy the court below, we think the court properly allowed the contractors the item for difference in the cost of construction.
. This seemingly anomalous result arises from section 61 of the contract, which reads as follows: “ANNULMENT or contract. Should the contractor fail or'refuse to begin work under contract within the time specified, or fail or refuse to prosecute the work with sufficient rapidity and with such materials and equipment as, in the opinion of the engineer, is necessary to complete the work within the time specified, tlie engineer shall be empowered, ten days after he has given in writing a notice to the contractor and his surety, to secure such additional labor, equipment and material as may be necessary to properly proceed with the work. The cost thereof shall be deducted from any moneys due or that may hereafter become due the contractor. In case the expense so incurred by the board shall be less than the sum which would have been payable under the contract if it had been completed by such contractor, then the contractor shall be entitled to receive the difference; and in case such expense shall exceed the sum which would have been payable under the contract, then the contractor and the surety will be liable and shall pay to the State or board, as the case may be, the amount of said excess.”
This provision of the contract can have application only in the event of the failure of the contractors to comply with the contract in the particulars stated, and the parties have stipulated what the recovery shall be in that event. By this stipulation it is provided that, if the conduct of the contractors shall result in the annulment of the contract (the situation we have here), the district may complete the work, and charge the cost thereof to the contractors and their surety; and, to make the provision reciprocal, it is also provided that, if the cost of doing the work is less than the contract price, the contractor shall be entitled to the difference.
In other words, it is the purpose of this section of the contract to held the contractors and their surety liable for the cost of completing the work upon the failure of the contractors to complete it, even though this additional cost should run the total cost to a sum in excess of the contract price, with the reciprocal provi tion that the 'Contractor shall he entitled to receive the difference, if the cost does not exceed the contract price.
This section of the contract is, in effect, a stipulation as to what the measure of damages shall be in the event the contractors do not complete the work; and we perceive no reason why the parties might not contract against that contingency.
Chief Justice McCulloch: does not concur in this view, it being* his opinion that the district should not be charged with this item of difference in cost of construction; but Justices Wood and Humphreys do concur with the writer and Justice IIaRt on this item and make the opinion, although Justices Wood and Humphreys dissent on other features of the case, they being of the opinion that the suspension of the contractors constituted a breach of the contract, but on that question the Chief Justice joins with Justice Hart and the writer in making the opinion of the court.
■ Upon the whole case Ave think the decree of the court below was correct, and avg therefore affirm it. | [
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Wood, J.
This action was instituted by the appellant against O. P. Morrison and John T. Davis. The appellant alleged that Morrison executed a note to appellant in the sum of $1,652.68, and that Davis indorsed the note; that the note was past due, and that no part thereof had been paid. No service was had on Morrison.
On June 12, 1922, the appellee, Davis, answered and denied that he indorsed the note at the time same was executed and delivered to the appellant. He averred that he indorsed the note at the request of the appellant, and solely for his accommodation, and not for the purpose of guaranteeing the payment thereof, but to enable the appellant to obtain an extension of time on his past due indebtedness to the Murray G-in Company.
The cause came on for trial on the 20th day of June, and the bill of exceptions states the following: “* * * the plaintiff appearing by D. C. Arnold, his attorney, and the defendant by his attorney, Louis Josephs, and this cause is. regularly reached upon the docket and called for trial. Before the jury was selected and list thereof furnished the parties, the plaintiff stated to the court that the defendant, John T. Davis, is the clerk of this court, and has prepared the list of eighteen names from which the jury to try this cause'is to be selected, and moves the court to grant a panel in order that the jurors trying this cause should he drawn according to the provisions of law found in 6383 and 6384 of Crawford & Moses’ Digest. The court refused to grant the said motion, and overruled said motion for a drawn jury; to which the plaintiff at the time excepted and ashed that his exceptions be noted of record, which is acQordingly done. The court then to oh the list of jurors, and ashed plaintiff’s counsel if he desired the court to call from the top or bottom of the list as prepared bjr the elerh, whereupon plaintiff’s counsel requested the court to call the jurors from the bottom of the list, which was done. Thereupon the plaintiff was required to go to trial before a jury of twelve men selected from the list of eighteen names of jurors from the regular panel, said list of eighteen names of jurors from the regular panel having been, prepared by said defendant, John T. Davis, in the usual manner, the said John T. Davis being the elerh of this court, upon which said list each of the parties made three peremptory challenges. ’ ’
The cause was submitted to the jury thus formed. The trial resulted in a verdict and judgment in favor of the appellee, Davis, from which judgment is this appeal.
The only question presented by the appellant for our consideration is whether or not the court erred in the manner of forming the jury. The appellee contends that there would have been no reversible error even if the court had refused a jury trial, under the undisputed evidence. But we find that no reversible error was committed by the,.trial court in the manner of forming the jury, and it is therefore unnecessary to consider any other issue. Sec. 6383 of C. & M. Digest provides as follows: “If either party shall desire a panel, the court shall cause the names of twenty-four competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen shall be drawn, and entered on a list in the order in which they were drawn, and numbered,”
See. 6384 provides as follows: “Each, party shall he furnished with a copy of said list, from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining on said original list shall constitute the jury.”
Sec. 6385 provides: “Before the drawing of the list above mentioned, the court shall decide all challenges for cause which are presented, and, if there are not twenty-four 'competent jurors, bystanders shall be summoned, as hereinbefore provided, until the requisite number of competent jurors is obtained; from which said list shall be drawn. Where there are several persons on the same side, the challenge of one shall he the challenge of all, under this chapter.”
Learned counsel for the appellant assumes that the record above set forth shows that the trial court refused him a panel drawn in accordance with the requirements of the above statutes, and, in doing so, erred. To sustain his contention he cites Gulf, C. & S. F. Ry. Co. v. James, 48 Fed. 148; Gulf, C. & S. F. Ry. Co. v. Washington, 49 Fed. 437; Gulf, C. & S. F. Ry. Co. v. Martin, 49 Fed. 359; Gulf, C. & S. F. Ry. Co. v. Shane, 157 U. S. 348. The decisions of the Federal courts in these cases are to the effect that the above provisions of the Digest are mandatory. In the case of Gulf, C. & S. F. Ry. Co. v. Shane, supra, Judge White, speaking for the court, said: “Under these sections (Mansfield’s Digest, which correspond to the sections under review) then, the parties are entitled, after the challenges for cause have been exhausted, to have a list of eighteen drawn according to the terms of the statute, upon which list their peremptory challenges are to be made. The action of the court below was in violation of this statute. It refused to make up the list of eighteen, as requested, and confined the right of peremptory challenge to the twelve jurymen called to be sworn, on the ground that such was the cus tom and rule of practice of the court. • Manifestly, the ‘rule’ or custom of the court could not override the mandatory terms of the statute. That to thus impanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error, is clear.”
We concur with the -Supreme Court of the United States in this interpretation of our statute, but we do not agree with counsel for the appellant that the above record shows that the trial court denied appellant a panel as the statute requires. On the contrary, as we view the record, the method that the court adopted of selecting the trial panel was a substantial compliance with the provisions of the statute. The record shows that a list of eighteen jurors was prepared by the clerk from the regular panel, as the statute requires, upon which list each of the parties made three peremptory challenges, and the court then called the jurors from the bottom of the list, .at the request of the appellant. It seems that the only reason of the appellant’s counsel for demanding the panel was that the appellee was the clerk of .the court, and had prepared the list. These were mere clerical duties which the appellee had to perform. Even if the appellant had been entitled to have -some one else appointed to perform these duties, which we do not decide, he did not make such request, and he cannot complain therefore because the court did not have some one else prepare the list, if the court had such power under the statute. The appellant does not allege or show that there was any fraud perpetrated upon him by the appellee in the preparation of the list from the regular panel in the usual manner. The judgment is therefore correct, and it is affirmed. | [
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Smith, J.
Appellant filed suit in ejectment to recover from appellee the possession of a town lot in the City of Helena. Appellant’s title is based on a deed to him from the State of Arkansas dated April 18, 1945. The title of the state to the lot was based on the forfeiture and sale to it for the non payment of the 1935 general taxes, and a decree confirming this sale rendered June 9, 1943, under the provisions of Act 119 of the Acts of 1935. Trial was had before the court, sitting as a jury, and the court found from the records offered in evidence that the tax sale was void through lack of power to sell, for the reason that no taxes had been assessed or extended against the land.
Upon this issue the following recitals appear in the transcript before us, read from the tax books, “The tax estimation for 1935 as disclosed by the records in the office of the County Clerk of Phillips county reflect the following:
“ ‘Lot 1, Block 3, of Pillow Addition, the same being the property now under consideration.
“ ‘Under the caption of Name of Owner appears Winnie Warren; under the caption of description of property in “Lot 1, Block 3 of Pillow Addition”; under the caption of Valuation $190 ; under the caption of School District (Blank); under caption of Bate of School Tax (Blank); under caption of State Tax (Blank); under caption of County Tax (Blank); City Tax (Blank); under caption of Total Tax, State, County, School City (Blank); under caption of First-Installment is (Blank); under caption of date paid is (Blank); under caption of Second Installment is (Blank); under caption of date paid is (Blank); under caption of Third Installment is (Blank); under caption of date paid is (Blank); under caption of Final date paid is (Blank). The record of taxes for the year 1935 for Lot 1, Block 3 of Pillow Addition is perfectly blank from the amount of valuation to the whole extent of the page upon which the assessments and extensions are made. That is from the real estate tax books for the year 1935 at Page 75 of the volume entitled “West Helena and Sub-Divisions for year 1935, ’ ’ and is taken from the regular volume of the extension of taxes for the year 1935 as now disclosed in the records in the office of the County Clerk of Phillips county, Arkansas.’ ”
Appellant questions these recitals and says that the tax books show the rate of taxation for the various purposes for which taxes had been assessed as follows: Bate for school district taxes, 18 mills; state taxes 8.7 mills, and county taxes, 1 mill. This statement appears, however, only in brief' of appellant, and does not appear in the record. We must of course try the case on the record and not oh the brief of counsel.
For the reversal of the decree from which is this appeal holding the confirmation decree ineffective to cure the invalidity of the tax sale, counsel for the appellant relies principally upon the opinions of this court in the cases of Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442 and Faulkner v. Binns, 202 Ark. 457, 151 S. W. 2d 101.
In the case first cited it was held that the invalidity of the tax sale had not been cured, although confirmed pursuant to Act 1191 of the Acts of 1935, for the reason stated in the opinion, “that the taxes were never made and extended on the books of White county where the land was located) as provided by law.” The opinion does not reflect in what respects there had been a failure to extend the taxes. This opinion was followed by the Federal Court of Appeals of this circuit in the case of Lundell v. Wood, 115 Fed. 2d 697.
In the latter case of Faulkner v. Binns, supra, it was held that a confirmation decree rendered pursuant to Act 119 of the Acts of 1935 was effective to cure the tax sale there involved, where the taxes had not been extended as required by law. But in that case the tax record showed the assessed valuation of the land and the rate of taxation for the various purposes for which taxes had been levied. Here, however, the record shows only the valuation and there was therefore no tax levied against the land in question. In this Binns case, supra, we quoted, with approval, the following statement from the case of Berry v. Davidson, supra, “If there are any taxes levied or assessed against the land, however defectively that may have been done, and when the taxes shall not have been paid, the state had the power to sell. ’ ’ The corollary of that statement is that if no taxes are assessed, the power to sell would not exist, and the confirmation did not cure the defective sale.
While the judgment 'did deny appellant’s right to possession of the land, he was awarded judgment for all taxes which he had paid, with interest thereon, and the judment is affirmed. | [
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Smith, J.
Arthur Holloway and Beba, his wife, filed suit in the Crawford Circuit Court for damages to compensate a personal injury sustained in a collision with appellant Wilson’s truck. His brother, Earl and Earl’s wife, filed a similar suit in Crawford county, based upon the same collision, in which all the plaintiffs sustained personal injuries more or less serious.
Thereafter appellant Wilson filed suit in the Franklin Circuit Court against appellees for damages arising out of the collision. He recovered a judgment against Arthur Holloway in this suit to compensate the damages to his truck, but the trial court set this judgment aside for the reason that a member of the jury, which had tried the case, visited the scene of the collision unaccompanied by other members of the jury.' The Franklin Circuit Court convened prior to the Crawford Circuit Court, and demurrers filed in the Franklin Circuit Court to Wilson’s complaint were sustained as to all the defendants except appellee, Arthur Holloway. The suits brought in the Crawford Circuit Court were consolidated for trial and judgments were rendered in favor of all the plaintiffs for various sums, and from the judgments upon these verdicts is this appeal.
A motion was filed to dismiss the suit of Arthur Holloway upon the ground that he was a resident of ■Sebastian county at the time of the collision causing the injury which had occurred in Franklin county. The motion was overruled, but we find it unnecessary to consider this motion in our view of the testimony, and the legal effect thereof.
As stated the suits arose out of the collision between an automobile in which the plaintiffs were riding, and a truck owned by Wilson, on October 22, 1946, at about 10 p. m. at a place about four miles west of Ozark, in Franklin county, on Highway No. 64. The pictures of the locality where the collision occurred and a map thereof, offered in evidence, show that the collision occurred at a curve in the highway which began near an elevation in the highway, which the parties refer to as a hill. The photographs indicate that the road is comparatively level, with a slight grade. It had been raining and was raining at the time of the collision, and the visibility was low.
A party of four, consisting of Arthur and his brother, Earl, with their wives, left the home of Earl in Yan Burén at about 5' p. m. and went to Ft. Smith for their evening meal. They remained in the restaurant about an hour and a half. All admitted that they drank beer while in the restaurant, but all testified that they drank only two' bottles each. They returned to Van Burén where they decided that they would drive to Alix to visit another of the Holloway brothers, and they were on their way there when the collision occurred.
Appellant Wilson operated under the name of Wilson Transfer Company, doing a general trucking business, and he has his trucks designed to service disabled cars and other trucks. Another collision had occurred earlier that night, near the curve above referred to, between another car and a truck, and Wilson had answered the call for a service truck, and after servicing the automobile, he returned to get the truck. Before leaving with the car, which he had serviced, he pushed the truck off the highway onto the side road.
Wilson was accompanied by two men when he returned for the disabled truck. On arriving at the scene of this first collision he drove his truck across the highway and backed it up to the disabled truck. He got out of his truck and went to the end of it to get flares to place on the road, but before getting them, appellee’s automobile collided with Ms truck, which was parked on the side of the road, and he escaped injury only by jumping into a ditch which paralleled the side road.
Wilson had driven west to the place of the collision and his truck was facing in that direction after crossing' the road and backing up to the disabled truck. Appellees were driving east traveling, according to their testimony, at a speed of about 35 miles per hour, although another person, traveling in a car, testified appellees were driving at a speed of from 50 to 55 miles per hour when they passed him. The testimony is conflicting as to whether Wilson had dimmed Ms lights. He and the two men who were in the truck with Mm testified that he had dimmed the lights, and that he had done so as it was safer to drive in the rain, then falling, with dim lights than- with lights burning brightly. All appellees testified to the contrary, and as the failure to dim his lights was the sole allegation of negligence submitted to the jury, we must assume that Wilson had not dimmed his lights.
Arthur Holloway, who was driving the car, testified that “As I topped the top of a rise or hill, I noticed car lights and it looked like I was just meeting a car. I had my fog lights on and my head lights. His (Wilson’s) lights blinded me. I dimmed my lights two or three times, and turned my fog lights out. He (Wilson) never did dim his lights. I had been driving about 35 miles per hour, but when I crossed the hill I took my foot off the accelerator, and the closer I got to the truck the more its lights blinded me. ’ ’ He further testified that he kept getting over as far on the slab (or highway) as he could, without getting completely off. In 40 or 50 yards of the place of collision, he felt his right front wheel and the rear right wheel get -off the slab. It looked like someone was trying to hog the road. He put his foot over on the brake, but before he could stop he had run into the truck and the collision occurred. His left wheel did not get off the pavement. He signaled what he presumed to be an oncoming car to dim its lights. He dimmed his lights two or three times. The truck did not dim its lights, which were shining right straight up the highway and blinded him. There were no other lights on the truck, and no flares or flags were out. The testimony of the other occupants of the car was to the same effect.
The complaint alleged several acts of negligence on the part of Wilson, .but the only question submitted to the jury was whether Wilson was negligent in failing to dim his lights. There was submitted, however, the question whether occupants of the car were guilty of contributory negligence. On this issue the jury was correctly instructed that if the occupants of the car were, at the time of the collision engaged in a joint enterprise, the negligence, if any, of the driver of the car would be imputed to all of its occupants.
It is not seriously questioned that under the testimony in this case this instruction was properly given. It is insisted, however, that the motion for a new trial did not call to the trial court’s attention the fact that contributory negligence had been pleaded and interposed as a defense. But the several instructions given on this issue make clear the fact that this defense was interposed and was seriously relied upon. Separate instructions were asked as to each plaintiff to the effect that a verdict should be returned in Wilson’s favor if the occupants of the car were guilty of contributory negligence, and were engaged in a joint enterprise and the motion for a new trial assigned as error the failure to give each of these instructions.
Two defenses were interposed. First, that Wilson was guilty of no negligence, and second, that if the parties were engaged in a joint enterprise, the negligence of the driver of the car, if he were negligent, would be imputed to all persons engaged in the enterprise, and an instructed verdict against all the plaintiffs was asked. Wilson was entitled to the requested instruction if the testimony established either defense, both of which questions were submitted to the jury. We concede, therefore, that the motion for a new trial was sufficient to call to the attention of the court both these issues, although the verdict of the jury apparently reflects the finding that Wilson was guilty of negligence and that the occupants of the car were not guilty of contributory negligence.
That the issue of a joint enterprise was properly submitted to the jury does not appear to be seriously questioned. After eating in Port Smith, where it was admitted that each member of the party had drunk two bottles of beer, although it was denied that any one had drunk any more, the party returned to Yan Burén where it was agreed they would pay a social visit, notwithstanding the inclement weather. After the collision a pint whiskey bottle, nearly empty, was found near the car. The ownership of this bottle was denied by appellees, but a few feet from it, another bottle of whiskey, a fifth of a gallon in size, was found. The stopper of both bottles was missing, but the stopper to the larger bottle was found in appellees’ car, and the ownership of that bottle was admitted, although it was denied that any member of the party had drunk any of the whiskey. Both bottles were nearly empty, but there was more whiskey in the larger bottle than in the smaller one, and it was explained that the party was taking what whiskey there was in the larger bottle to the home of the person they were expecting to ■ visit.
After the collision appellees were picked up by two boys. They stopped at the home of a Dr. Porter, who said he could do nothing for them. They then drove to the home of a Dr. Pillstrom at Altus, who gave emergency treatment, including the sewing up of a cut over Arthur’s eye. All four of the party had been injured to some extent, but the doctor gave emergency treatment only to Arthur Holloway and his wife who had ridden on the front seat of the car with her husband.' The doctor testified that they smelled of whiskey and that all of them had been drinking. He would not say that any of them were drunk or how drunk, but maybe too much to drive a car. He stated they could not talk too plain and that they were not too steady on their feet. The testimony abundantly warranted the submission tó the jury the question whether the parties were engaged in a joint enterprise, and appears susceptible of no other conclusion than.that they were on a joint enterprise.
It was held in the case of Mo. Pac. Transportation Co. v. Howard, 201 Ark. 6, 143 S. W. 2d 538, that where a number of persons, -drinking intoxicants and driving around in an automobile for pleasure are engaged in a joint or common enterprise, the negligence of the driver of the car would be imputed to each member of the party. The case of Albritton v. Ferguson, 197 Ark. 436, 122 S. W. 2d 620, to the same effect was there cited.
In the case of Sparks v. Chitwood Motor Co., 192 Ark. 743, 94 S. W. 2d 359, Justice Mehafey approved the following statement from Berry on Automobiles, § 5.181: "If the occupants and driver of an automobile drink together and become intoxicated, each is as responsible as the driver for negligent driving, and none can recover for injuries due to such negligence. ’ ’
We might dispose of this appeal by saying that under the undisputed evidence, no negligence on the part of Wilson was shown. The only issue of negligence submitted to the jury was that the lights on Wilson’s truck were burning brightly and that he failed to dim them after being signaled to do so. No issue was submitted as to whether Wilson was negligent in parking his truck on the wrong side of the road, but that contention could not be sustained if made. The testimony of all the witnesses who saw the truck, except that of appellees themselves, was that the lights had been dimmed, but'in view of the jury’s verdict, we must assume that they had not been. But even so, the testimony is undisputed that neither appellant’s truck nor the one he was about to service was on the highway proper. Both were resting on the shoulder of the road, but appellees say that the truck had been so parked that the head lights shone directly in front of appellee’s approach. The driver of the car testified that he was about 160 yards from the truck when he first blinked his lights, and that when he first saw the truck he supposed it was an approaching car, and he began to blink his lights as a request that the truck driver do the same. If the lights of the truck blinded the driver of the car, it was his duty to take greater precaution, yet he continued down the hill or grade at a speed of 35 miles per hour until his car went off the concrete portion of the highway. When this occurred, Holloway must have known that the truck was parked on the shoulder of the highway, yet he made no effort to turn the car back on the concrete. There were 18 feet of concrete on which he could have passed the truck safely, to say nothing of the width of the side road on both sides of the concrete, and even though the lights from the truck blinded him, they were from sis to eight hundred feet from the place where the collision occurred when he saw them and he did not apply his brakes to stop the car until he was too near the truck to do so. He was asked, “When you were 40 or 50 yards away did you apply the brake?” He answered, “I put my foot on the brake pedal.” Question, “But did you apply it?” And he answered, “No sir,” and he did not apply the brake until he was within 20 or 30 feet of the truck, at which time he was traveling at about 20 or 25 miles per hour. Wilson had put out no flares as time to do so had not been afforded, but he had not parked his car on the concrete, but on the side road.
A state patrolman who investigated the accident the morning after it occurred, and who made a report as to the conditions which he found, testified that the tracks of the car indicated that one of the wheels of the car went over the pavement a distance of 50 feet from the place of collision, and that the tracks of the truck were “clear off the highway, a distance of 12 to 18 inches from the concrete. ’ ’ This witness could tell where the collision occurred from the debris and the glass, and he could tell the truck tracks from the car tracks. One of the Holloways admitted to this witness that he had drunk some of the whiskey, but denied being drunk. The witness made no arrests for drunken driving, because Wilson asked him not to do so.
From this testimony it appears to us that only one conclusion can fairly and reasonably be drawn, and that is that Wilson was guilty of no negligence as he had not stopped his truck on the concrete, but that even so if the driver of the car had been alert and in full possession of his faculties, he must have observed the situation which required that he place his car iii full control, which he did not do. Fox these reasons the judgments must be reversed and as the causes appear to have been fully developed they will be dismissed. | [
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Minor W. Millwee, Justice.
John Martin owned and resided on lots 17 and 18, block 8, Evandale Addition. to the City of Little Rock, Arkansas, at the time of his-death intestate on December 8, 1928.. His widow,, Carrie1 Thomas Martin, married L, K„ Travis in March, 1929,, and they continued'to reside on the property until her death in October, 1943. Carrie Martin Travis was survived by her husband, L. K. Travis, and the appellant, Bernice Martin, who is the only child of John Martin and Carrie Martin.
Appellee, Nathaniel Martin, claims to he the son and legal heir of John Martin, deceased, and instituted this suit against the appellant, Bernice Martin, and L. K. Travis for partition of the above-described property. The complaint alleged that John Martin was married to Lena. Watkins prior to his marriage to Carrie Thomas and that appellee was the son of John Martin by the first marriage; that after the death of appellee’s mother, John Martin married Carrie Thomas Martin, the mother of appellant, Bernice Martin; and that appellee and Bernice Martin each owned an undivided one-half interest in the above-described property as tenants in common.
Appellant, Bernice Martin, filed an answer in which she denied that John Martin was- ever married to Lena Watkins and further denied that appellee was the son or legal heir of the said John Martin, deceased. Bernice Robbins and Birdie Cook, who are appellant’s- aunts, intervened in the partition suit and disclaimed any interest in the property by virtue of a quitclaim deed which Bernice Martin had executed to them in October, 1943.
The trial court found the issues in favor of appellee and a decree was entered adjudging him to-be the owner of an undivided one-half interest in the property and a tenant in common with appellant, Bernice Martin. It was further decreed that L. K. Travis had no interest in the property, and the deed to Bernice Robbins and Birdie Cook was cancelled.
Bernice Martin lias appealed from this decree and the only issue presented is the correctness of the trial court’s finding' that appellee, Nathaniel Martin, is the legal heir of John Martin, deceased.
Appellee testified that he was born December 4,1897, and that John Martin was his father and Lena Watkins Martin was his mother; that he lived with his parents in Little Rock where he attended the public schools until shortly before his mother’s death in 1910 when he moved to the home of his grandmother at Scott, Arkansas.
Otelia Stancil testified that she was John Martin’s sister and that John Martin and Lena Watkins married about 49 years ago and that appellee was their son. Other witnesses testified that John Martin and Lena Watkins were cohabitating, and holding themselves out, as husband and wife about the time appellee was born. There was other evidence tending to show that Carrie Thomas Martin recognized appellee as her stepson.
In rebuttal of this evidence appellant introduced certified photostatic copies of the marriage and divorce records of Pulaski county showing the marriage of John Martin to Fannie Woods on April 11, 1895, and that this marriage was dissolved by a divorce granted John Martin on October 23,1902. A pliotostatic copy of the deposition of John Martin in the 1902 divorce suit recites that he lived with Fannie Martin from the date of his marriage in 1895 until May, 1898. These records also show the marriage of John Martin to Annie Morris on November 3, 1903. The signatures of John Martin to the applications for license and the deposition given in the divorce suit were identified by appellee and other witnesses. These signatures- appear to be identical with those ap-’ pearing on several tax assessment lists which were admittedly signed by John Martin. There was other evidence by neighbors of John Martin showing that he and Annie Morris Martin were living together in 1905 and 1906 and that he subsequently divorced Annie and married Carrie Thomas, the mother of appellant.
In order for appellee to establish his right of inheritance it was necessary for him to prove the marriage of John Martin and Lena Watkins. In Furth v. Furth, 97 Ark. 272, 133 S. W. 1037, this court held that a common law marriage was not a legal marriage in this state in view of our statutes regulating the method of solemnizing marriages and designating the persons who are authorized to solemnize them. Mr. Justice Hart, speaking for the court in that case, said: “It will be seen that, before the common law was adopted here, statutes had been enacted which regulated marriages, and which prescribed the manner and form in which they might be solemnized. Such statutes having directed that marriages should be solemnized in a particular manner before certain authorized persons, that way is exclusive; and we hold our statutes regulating-and prescribing the manner and form in which marriages may be solemnized are mandatory and not directory merely. In short, we hold that the doctrine of so-called common law marriages has never obtained or become a part of the laws of this State.”
Appellee relies on the cases of Farmer v. Towers, 106 Ark. 123, 152 S. W. 993, and Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808. These cases hold that marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation. In the case first cited there was evidence of the time and place of marriage and that the parties lived together for seven years claiming to be married. The marriage records of the county had been destroyed by fire and it was impossible to show the marriage by record evidence. In the Thomas case there was evidence of the issuance of a license and the performance of a ceremony together with cohabitation of the parties for several years. In neither of these cases was there evidence to rebut the presumption which arose from the cohabitation and reputation of the parties.
The general rule applicable to the proof of marriage by cohabitation and reputation is stated in 35 Am. Jur., Marriage, § 200, as1.follows: “Cohabitation and repute do not constitute a marriage, but are only evidence tend ing to raise a presumption of marriage, of more or less strength, according to the circumstances of the case, and such strength increases with the passage of time in which the parties cohabit as husband and wife. This presumption of marriage from a cohabitation apparently matrimonial, is one of the strongest presumptions known to the law, especially where the legitimacy of a child is involved. Such presumption is not conclusive, however, and it is rebuttable by sufficient evidence to overcome it.” ' See, also, 38 C. J., p. 1339.
The testimony offered by appellee in the case at bar tends to show that John Martin and Lena Watkins held themselves out as man and wife and were cohabiting as such about the time of appellee’s birth in 1897. While one witness testified that the parties were married, there is no evidence of a marriage ceremony or the issuance of a marriage license. Can the .presumption of marriage arising from this proof be allowed to stand in opposition to the positive record showing that John Martin married Fannie Woods in 1895 and was not divorced from her until October, 1902?
The early case of Jones v. Jones, 28 Ark. 19, involved a state of facts somewhat similar to those in the case at bar. In that'case Delilah Jones claimed to be the widow of Elbert Jones and the court said: “The cohabitation and acts of Elbert Jones and Delilah Jones, although' extending through many years, did not amount to marriage, but are facts from which a marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and on the other hand, might be met with other circumstances which would entirely overturn that presumption.
“Delilah Jones says she was married to Jones in 1831, but does not state how or by whom she was married, but only shows acts of cohabitation and holding out to the world that they are man and wife. On the contrary, J. M. Jones, a brother of Elbert, says he was well acquainted with these parties, and in 1831, and several years afterwards, Elbert had a lawful wife living, by the name of Matilda Jones, from whom he was never divorced. No effort on the part of the complainant was made to overturn or weaken this evidence. It is positive, direct, conclusive.” See, also, O’Neill v. Davis, 88 Ark. 196, 113 S. W. 1027.
Other jurisdictions support the rule followed by this court in the Jones case, supra. The case of Petition of Frisby, 12 Del. Ch. 431, 110 Atl. 673, involved a petition for the assignment of dower, and the Delaware court said:
“There was in addition to cohabitation some evidence of a reputation in the community as to "William Frisby and Charlotte Smith being husband and wife, as tending to establish a presumption of a valid marriage between them. But the presumption arising from cohabitation and repute is not effective where, as here, during all the cohabitation one of the parties had a lawful husband living and undivorced. The law will not presume that a man will commit bigamy by marrying another woman during the life of one to whom he had previously been lawfully married. Jones v. Jones, 48 Md. 391, 30 Am. Rep. 466; Moore v. Moore, 102 Tenn. 148, 52 S. W. 778; Spencer v. Pollock, 83 Wis. 215, 53 N. W. 490, 17 L. R. A. 848; 26 Cyc. 891.”
John Martin was under a legal disability which prevented his marriage to Lena Watkins during the period of their cohabitation, and the presumption of marriage arising from such cohabitation and reputation has been overcome by positive record proof showing that he was still married to Fannie Woods Martin at that time. It follows that so much of the decree as adjudges appellee to be the legal heir of John Martin, deceased, and entitled to an undivided one-half interest in the property involved herein is reversed, and the cause will be remanded with directions to the trial court to amend the decree accordingly. | [
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Grifein Smith, Chief Justice.
In sustaining the judgment — which we do — it is necessary to hold that where records made by separate coordinate departments of the State government are in conflict in circumstances where neither department is required, by express language of the Constitution, to include or exclude a particular method, the dignity of one is not superior to that of the other; hence, in resolving differences, effect must be given to the act or transaction most strongly supported by accepted presumptions of verity.'
In 1936 Independence County adopted Initiated Act No. 3, fixing salaries of its officers.- House Bill No. 306— later Act 430 of the Fifty-Sixth General Assembly — if effective, and if constitutionally capable of accomplishing the purpose intended, — would repeal the Initiated Act, with the result that general salary laws would apply to Independence County.
Appellant is Tax Assessor and filed salary claims, contending compensation was payable under Act 223, approved March 18, 1947. County Court disallowed, and on appeal Circuit Court did likewise. The question is whether the Governor in vetoing Act 430 exercised an existing authority.
It is conceded that House Bill 306 was adopted by the Senate and House by votes greater than two-thirds of each body. On March 5,1947, when Senate formalities had been completed and the bill sent back to the House, the chairman of the committee on enrolled bills reported that the measure had been delivered to the Governor at 2:00 o ’clock p. m. This is reflected by an entry in the House journal. The General Assembly adjourned March 13. An indorsement on the wrapper of the bill shows it was in the hands of the Chief Clerk of the House March 6th, for enrollment. This information is followed by the writing, “Delivered to the Governor. H. M. McCastlain, Chief Clerk”. Date of this memorandum of delivery is not shown unless it be assumed that the rubber-stamped “March 6” following reference to enrollment was intended.
March 28th the Governor sent the bill to the Secretary of State, with a veto message.
Article VI, Sec. 15, of the Constitution, deals with duty of the General Assembly to transmit all bills to the Governor for his approval or disapproval. If during a legislative session a bill presented to the Governor is not returned within five days (Sunday excepted) it shall become a law “in like manner as if he had signed it”, unless by adjournment the Assembly prevents such return. In case of adjournment the bill becomes a law unless within twenty days after adjournment the Governor shall file it in the office of the Secretary of State, accompanied by his objections, and give notice thereof by public proclamation.
If the Governor received the bill March 5th or 6th, he had more than five days before the Assembly adjourned, and his failure to return it within the constitutional period would prevent effective veto at a later time. On the contrary, if the bill reached the Governor’s office March 10, he had twenty days after March 13th within which to act.
House Eesolution No. 20,-adopted in February 1947, contains a requirement that all bills originating in that body and received from the Senate upon which action in both branches has been completed shall be transmitted to the Governor the same day received.
When effectiveness of the veto was questioned, the Journal Committee, composed of five members, made an investigation of records relating to the alleged delivery of March 5th. Among those interrogated was Miss Beth Riley, House Enrolling Clerk, who testified that she delivered House Bill No. 306 to Mrs. Helen James of the Governor’s office March 10th. Mrs. James verified this date of delivery and identified the original receipt she issued at that time, and a carbon copy retained in the executive office.
From all of the evidence before it, the Journal Committee concluded, and so reported to the Secretary of State April 18th, that the bill in question was not delivered to the Governor until March 10.
But, it is insisted, this oral testimony, given before the Committee and heard by Circuit Court, was inadmissible to impeach recitals of the Journal; and so it was. Nor is it essential that we determine whether the Committee had power at that late date to correct Journal entries made prior to adjournment of the lawmaking body.
Attention is called to pertinent expressions in such cases as State Fair Association v. Hodges, 120 Ark. 131, 178 S. W. 936, Ann. Cas. 1917C, 829; Rice v. Lonoke-Cabot Road Improvement District No. 11, 142 Ark. 454, 221 S. W. 179; Niven v. Road Improvement District No. 14, 132 Ark. 240, 200 S. W. 997; Ruddell v. Gray, 171 Ark. 547, 285 S. W. 2; Booe v. Road Improvement District No. 4, 141 Ark. 140, 216 S. W. 500, and others dealing with the conclusive verity to be accorded journal entries.
Argument is that weight of authority for the proposition advanced by appellant precludes judicial consideration of any act, circumstance, or event, however closely related to the subject matter, unless shown by Journal entries. It is insisted that when we reach thé certified photostat showing action of Chairman Plunkett of the Committee on Enrolled Bills (who reported that on March 5th he delivered House Bill No: 306 to the Governor) all inquiry must end. It is urged that the Journal entry of this report, whether true or false, whether induced by fraud, occasioned by error, or brought about by failure of mechanical precision or want of personal accuracy— that whatever the reason may have been, and irrespective of the true status, the Journal must be taken at full face value and its recitals accepted ,as a constitutionally-erected wall barring further investigation, and perpetuating what all men might agree was patent error.
We do not think the cases go to such an extent.
It is true that in the case of Rice against Road District a Governor’s receipt evidencing delivery of a legislative bill had been given, but the date of delivery, as stated in the opinion by Mr. Justice Humphreys, was not shown. A question there was which of two bills was valid. Three Judges did not agree with all that was said in the prevailing opinion, Chief Justice McCulloch and Mr. Justice Hart having written separate dissents, while a third Judge concurred in the majority holding. In the majority opinion it was said 142 Ark. 454, 221 S. W. 180: “ The' only effect resulting from the unauthorized approval of the bill by the Governor was to corroborate the presumption that it was presented to him. In other words, . . . approval . . . lends credence to the presumption that the Enrolling Committee performed its duty by presenting the bill to him within the time required by law. ’ ’
A review of our cases shows there has been no deviation from the rule that conclusive verity must be given Journal entries in respect of those things required by the Constitution to be recorded.
A conflict between House and Senate Journals was presented in Harrington v. White, 131 Ark. 291, 199 S. W. 92. The Senate Journal did not show that four counties were included in a Senate-adopted amendment, hence the question, What presumptive effect should the Court give in favor of regularity arising from the' fact of the enrolled bill when signed by the Governor, “notwithstanding the. silence of the Senate Journal on the subject of including these four counties in the exemption clause?”
An Act of the Legislature, says the opinion, when signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly. Mere silence of the Senate Journal is not sufficient to overcome the presumption”. The opinion contains this significant statement: “The application of this rule is, of course, limited to those things which the Constitution does not require that the' Journals of the respective Houses of the General Assembly shall show. The rule does apply, however, to a case like this where there is no constitutional requirement that the Journal shall recite the substance of an amendment”. Effect was given the House Journal, containing affirmative recitals.
Here, appropriately emphasized, is a recognition that inviolable verity must attach to Journal entries as to all matters required by the Constitution to be recorded.
There is no requirement that the date a completed bill was delivered to the Governor he entered on. the J ournal.
When joint rules were adopted in 1947 it was provided that the Clerk of each branch should keep a “register”, recording under appropriate headings the progress of bills from the time introduced “to the time of their transmission to the Governor”. The Clerk was “also” required “to have the Journal of the House recorded in a well-bound book”, and each day’s proceedings signed by the Speaker and attested by the Clerk.
Whether the “register” referred to is identical with the Journal is not disclosed. The requirement of Art. V, Sec. 12, of the Constitution, is that “Each House shall keep a Journal of its proceedings”. We are unable to say, as a matter of law, that “register” is synonymous with Journal; nor may we have recourse to extrinsic evidence. House Rules, Sec. 12, directs that when a bill has been signed by the Speaker and otherwise completed, “It shall be delivered to the G-overnor by the Joint Committee on Enrolled Bills”. There is no requirement, however, that the date of delivery or the fact that there was delivery be recorded in the Journal. It follows that these rules are not clothed with that degree of constitutional sanctity preventing an examination of other records in quest for truth.
There is no distinction in degree between duties imposed upon the Governor under the Constitution and those inhering to the General Assembly when a bill has been completed by the lawmaking body. The measure has no force unless sent to the Executive in a timely manner. Once a bill is received by the Governor the legislative function is ended unless within the appropriate period before adjournment it is returned with a veto. Incidental matters relating to the manner of receiving the bill, who transmitted it, or what may have been said at.the time — as to such things neither the Governor nor any of those attending him may testify in contradiction of official records. Booe v. Road Improvement District, 141 Ark. 140, 216 S. W. 500.
Certain language in Road Improvement District No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825, is emphasized in Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. The opinion says: “An enrolled statute signed by the Governor and deposited' with the-Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and . . . this presumption is conclusive unless the records, of which the Court can take judicial knowledge, show to the contrary”.
Under this holding we come directly to the issues presented in the case at bar, i. e., May Journal recitals of a character not required by the Constitution to be made create a conclusive presumption that House Bill No. 306 was sent to the Governor March 5th? or does the constitutional requirement that all bills be sent to the Chief Executive confer upon the Governor, by necessary implication, the right to evidence such receipt in a reasonable manner?
If the answer is that there is the implied power, then we must determine whether an official receipt (given the legislative agent who delivered the bill, and by such person filed with the Clerk of the House) was an appropriate acknowledgment, reaching the dignity of a record which may, in the absence of ambiguity, be received in evidence because it is a part of the record pertaining to the bill. '
We think the receipt was such a document and that the rule barring extrinsic evidence to impeach legislative records was not transgressed when Circuit Court accepted it as an essential part of the chain of events.
It could not liave been the intention of those who framed the Constitution, or the interpretation placed upon it when adopted, that records made by one branch of the government should have greater weight in determining a fact than recorded acts of the designated head of another department; hence, where there is equality of dignity, as here, the presumption of verity attaching to the Governor’s course in vetoing the bill must sustain the proposition that he did not receive it within five days before legislative adjournment.
Finally, it is argued that because the General Assembly, was not, in the first instance, concerned with adaption of Initiated Act No. 3 of Independence County, a bill by the legislature attempting to repeal it was not the kind of a measure required by the Constitution to be presented to the Governor. Amendment No. 7 might have been written in such manner as to supersede the existing mandate in that regard, but it was not.
Affirmed.
It is conceded by all parties that if in fact the bill was not transmitted to the Governor on March 5th, no misrepresentation was intended. The Chairman was acting pursuant to custom. Under this theory the report was merely perfunctory, there having been no purpose to do other than deal with the bill as the House intended, | [
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Griffin Smith, Chief Justice.
G. C. Douglas has appealed from a judgment that he pay Robert Franks $1,250 as the balance of a broker’s commission on sale of a sawmill.
The property, including timber, was in California. Franks resides at Glenwood, this State, and in the complaint alleged that he was a licensed realtor, doing business in Pike County.
When Douglas expressed his purpose to sell a half interest in the mill, Franks discussed the matter with him. He testified that Douglas “offered him” an equal partnership in the business if he would go to California and operate the mill. This proposal was declined by Franks, who in the alternative said he thought a buyer could be procured. Initially Douglas insisted he would require $10,000 in cash for a half interest, but when Pranks countered with the assertion of a belief that he could “sell tomorrow,” but probably would be unable to get the full amount in cash, Douglas agreed that with a down payment of $5,000 the deal could be closed and Pranks’ commission would be any sum in excess of $10,000. After Douglas had been paid $5,000, the next installment was to go to Pranks; or, as he testified, “ . . . from the next money he got I was to get $1,250, and the mill was to pay it out. ’ ’
Edward A. Goble, referred to by Pranks as being a playboy who was “afraid he would have to go to war,” readily agreed to buy, and made the payment demanded. A short time later Goble and Douglas went west, presumably to look after the sawmill business. March 28th, 1945, Douglas wrote Pranks from Nevada City, Calif., stating that Goble had paid $1,250. In the letter Douglas said: “I [have received my bank statement], so I guess [Goble’s check] cleared, so am sending you check. Please cash it out of town so people won’t know our business. In writing me, don’t mention the check, as Ed [Goble] gets our mail.”
When Douglas returned to Glenwood lie told Pranks that as a partner Goble was unsatisfactory. Pranks testified he knew all the time Goble didn’t know anything about running a sawmill. Douglas is alleged to have told Pranks he did some trading with Goble, “and roekered around to get out with some engines. ’ ’ But, said Pranks, “when Goble came back to Arkansas he didn’t have any engines or motors: Douglas owned them all.” Pranks asserted that Douglas then told him Goble hadn’t paid, ‘ ‘ and I’m not going to pay you until I get all my money. ’ ’ In answer to this declaration Pranks says he told Douglas he would sell the interest to someone else, “and Douglas agreed that if I sold to somebody else upon any kind of terms it would be all right.”
Pranks testified he sold the Goble half interest to O. W. Vaughan, a resident of Nevada City. In a deposition Vaughan explained that he purchased for $4,000. Appellant objected to introduction of the deposition for want of notice, but inasmuch as Douglas admitted the sale and conceded the agreed price was $4,000, no possible harm attached to the use made of it.
Testimony given by Douglas regarding his sale to Goble corresponds substantially with Franks’ version. Variance was that Douglas said he agreed to accept a first payment of $5,000 “on condition that the rest be paid out this year.” There is no dispute about the next payment of $1,250, and it went to Franks.' However, Douglas testified that Franks asked him not to let Goble know, a commission was to be paid, adding, “ [because] I am going to get a good suit of clothes off of Ed.”
Douglas admitted receiving an additional $750 from Goble, but undertook to explain that ‘ ‘ in reality ’ ’ the item of $4,000 was not all in cash, “but was considered as such.” The items of $5,000, $1,250, $750, and $4,000 total $11,000.
On cross-examination it was sought to get an admission from Douglas that in various ways he had received $12,250. This was strenuously denied. On direct questioning mention was made of a saw in connection with the payment of $4,000. The witness had said, “I got $4,000 out of Mr. Vaughan — that was, I think, just a little bit more. .There was a saw in it — four thousand and some odd dollars; it would cut me down. That didn’t go in the deal, but cut me down $435 and didn’t go in this.” Then Douglas added, “I have never got any ten thousand dollars yet.” Cross-questioned, Douglas was asked, “Now then, what did you do about those engines that you got from Mr. Goble?” The answer was (quoting from appellant’s abstract) : “Franks said he had a man that could run the mill. I was ‘stuck.’ There wasn’t any way in the world I could get out without taking a loss. . . . We had been going in the hole every day. ' I said [to Goble], ‘Ed, what will you take for your interest? ’ [And he replied] :' ‘ What will you give me ? ’ It turned out that we sold one engine for $600 and I gave him credit for $1,250 on the contract, but I didn’t get it. I had to take a loss — it was painful the loss I had to take.”
Counsel for appellee undertook to construe this testimony as an admission that Douglas received from Goble $5,000, $1,250, $750, “and then you credited him with $2,000, didn’t you?” Answer, “Oh, no!” Q. “Didn’t you say you gave him credit on some notes for $2,000 for the engines?” A. “Half interest in the engines: he didn’t have them under the deal, but,” (interrupted) — “how much did you give him for that half interest in them?” A. “I gave him credit for $1,250 to get out.” Q. “Isn’t $1,250 plus $7,000, $8,250?” A. “There was no $1,250.” Q. “There was $12,250 and the whole deal closed?” A. “No, sir. There was a saw in there for $435.”
We must concede our inability to say with reasonable assurance of certainty just what this witness meant by some of the references. However, he definitely testified that entire receipts from the sales were less than $10,000. The only reference to $2,000 as a separate item was put into the record by appellee’s counsel in the form of a question. Probably this was intended as the sum of $1,250 plus $750, but whether Douglas had in mind the admitted payment of $1,250 made by Goble and then sent to Franks, or the nebulous transaction connected with engines, is not clear enough to raise a reasonable inference against the witness. Apparently Douglas owned a half interest in the engine or engines, for he mentions receiving $600, “but gave credit for $1,250.”
What appears most probable is that the jury took the items aggregating $7,000 (that is, $5,000, $1,250, and $750) and added to the result Vaughan’s payment of $4,000, making $11,000. To this total the difference of $1,250 was inferred from appellant’s statement that he received $600 from sale of the engine and gave credit for $1,250. But the error in this calculation lies in the fact that Douglas was to have received $10,000 net, with excess to Franks. It is true Douglas received Goble’s second payment ($1,250), but this immediately went to Franks, with the result that Douglas got the initial pay ment of $5,000, the Vaughan payment of $4,000, then $600 from sale of the engine; (with his interest in the engines unsatisfactorily apportioned) but Douglas says he did not collect the second item of $1,250, and there is no-proof to the contrary.
Franks is in no position to complain that Douglas extended a gratuitous credit. After that had been done he appears to have again sold the half interest. In order to make the property available Goble had to be eliminated, and the settlement with Goble was to Franks ’ advantage in that title was cleared and Vaughan’s $4,000 payment inured to the agent’s benefit.
■ There is no substantial evidence from which the jury could have determined just what was intended by the references to engines, saws, etc. The case presents a fair example of undetermined facts — some of which were hinted at, but not established. It follows that the verdict was based on speculation. But, because some of the vague testimony was given by appellant, fairness requires that an opportunity be given for development of all essential facts. Hence, while the judgment is reversed, the cause is remanded for a new trial.
It is not shown whether the timber was standing, or in the form of logs to be cut into lumber.
Vaughan began making payments May 1, 1946, and completed them September 1, 1947. | [
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Holt, J.
Appellee, a taxpayer, brought this suit to enjoin the Director of the Bureau of Legislative Research, the State Auditor and the State Treasurer, from disbursing funds allocated to the Legislative Council by the State Board of Fiscal Control.
He alleged in his complaint “that the defendant, the Director of the Bureau of Legislative Research of the State of Arkansas, is about to cause the transfer of funds from the State Treasury in the sum of $9,408.33 for the purpose of paying salaries to himself and other employees of said Bureau claiming as authority therefor certain action on the part of the Board of Fiscal Control of the State of Arkansas done and had at its meeting in Little Rock, Arkansas, on the 22hd day of July, 1947, wherein said Board of Fiscal Control attempted to appropriate money appropriated by Act 292 of 1947, being an Act to make an appropriation for emergency funds to be used by the State Board of Fiscal Control. Plaintiff states that said Director has no right to cause the transfer of such funds to him under the authority given by the State Board of Fiscal Control or anyone else and that the State Board of Fiscal Control had no authority to make appropriation from the emergency fund set up in said Act for the purpose of paying salaries of employees of said department, said action being in direct contravention with art. V, § 29, and art. 16, § 4 of the Constitution of the State of Arkansas, and unless enjoined by this court, the said Director of the Bureau of Legislative Research will cause warrants or vouchers to be issued against said fund and that the defendant, J. Oscar Hum plirey as State' Auditor, and the defendant, J. Yance Clayton as State Treasurer, will honor said warrants and cause the fu¿ads of the State- of Arkansas to be paid out thereon. ’ ’
TIis prayer was that appellants be enjoined “from paying out any moneys from the Treasury of the State of Arkansas for salaries of the Director of the Bureau of Legislative Research or any other employees thereof, etc. ’ ’
Appellants filed a demurrer, which the trial court overruled. Appellants elected to stand on the demurrer, refused to plead further, and from the decree granting injunctive relief as prayed, comes this appeal.
March 6, 1947, the State Legislature, by Act 192, provided for a Legislative Council, prescribed its duties and authority, and established “a Bureau of Legislative Research to include a Director to be selected by the Legislative Council and clerical help of at least one stenographer and such other assistants as may be provided for by the Biennial Appropriation Act covering such departments.”
It was further provided that the salary of the Director should be $5,000 per annum and “the employees of the Bureau of Legislative Research shall receive such remuneration as may be provided by biennial appropriations.” (§12.)
There was no appropriation by the Legislature to cover salaries of the Director and the employees provided for in the Act. In fact, the Journals of proceedings in the 1947 session of the Legislature, of which we take judicial notice, show that House Bill No. 432 was introduced for this very purpose, but failed of passage. However, Act 292 of the 1947 session provides: “Section 1. There is hereby appropriated, to be payable from the General Revenue Fund, the following: FOR THE FISCAL YEAR ENDING JUNE 30, 1948, (1) For the use of the State Board of Fiscal Control in emergencies as defined in § 10 of. Act 53 of 1945 the sum of...............$100,000. FOR THE FISCAL YEAR ENDING JUNE 30,1949, (1) For the use of the State Board of Fiscal Control in emergencies as defined in § 10 of Act 53 of 1945 the sum of............... $100,000.” *
Section 10 of Act 53 of 1945 contains the provision that “in the event of riot, sabotage, public insurrection or threatened insurrection, storm, flood, famine, or other public calamity, including but without limitation to emergencies which may arise by reason of war, or in the event the General Assembly has imposed public duties upon some officer or department of State without making appropriation therefor, and the discharge of such public duties is necessary for the efficient operation of the State Government, the Governor shall call the Board into session for the purpose of considering all facts presented in connection therewith; and, if in its opinion the emergency is of sufficient import to require such action, the Board is authorized and directed, by resolution duly adopted to set aside from appropriations made available to the Board for such emergencies, funds in sufficient amount to alleviate the prevailing conditions. . . . All voucher-warrants drawn as provided in this section, shall be payable from the General Revenue Fund.”
The primary and decisive question presented is whether the State Board of Fiscal Control possessed the power to allocate to the Legislative Council from funds made available to it by Act 292, supra, the sum of $9,408.33, for the purpose of paying the unappropriated salaries of the Director of the Bureau of Legislative Research and an undetermined number of other employees.
As indicated, the trial court held that no such power existed, and granted the injunctive relief as prayed by appellee.
It is our view that the action of the court was correct and that the decree should be affirmed for the reasons which we shall presently point out.
It appears obvious that the Legislature, by Act 192, supra, has created a new State Agency, along with the Bureau of Legislative Research, consisting of a Director, at least one stenographer and other clerical help without number. Only the salary of the Director is mentioned and an appropriation for the payment of the Director’s salary and the other employees provided for under the Act, was specifically denied by the Legislature when as indicated a bill was introduced for that purpose.
It further appears that the State Board of Fiscal Control has directed that $9,408.33 be taken from the $100,000 emergency fund appropriated from the General Revenue Fund under Act 192, and used to pay the salary of said Director and the other employees under Act 192, after the Legislature had refused to supply the funds for these salaries. The power, which the Board of Fiscal Control attempted to exercise — however worthy its intentions were — is, we think, denied to it, under the plain and unambiguous terms of the following provisions of, the Constitution of Arkansas:
“Article V, § 29. No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents • and no appropriations shall be for a longer period than two years.”
“Article XVI, § 4. The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law. ’ ’
“Article XVI, § 12. No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation. ” '
These provisions of our Constitution have been many times construed by this court. In Oliver v. Bolinger, 146 Ark. 242, 225 S. W. 314, we find this language: “In construing these sections of the Constitution (meaning art. 5, § 29, and art. 16, § 12), this court said, in the case of Dickinson v. Clibourn, 125 Ark. 101, 187 S. W. 909, that ‘ a specific appropriation is an absolute prerequisite to the drawing from or payment out of the State treasury of any money therein required to be appropriated. No money for general, ordinary, special, contingent or other expense, no money at all, can be legally drawn therefrom, except under the forms of law in accordance with an appropriation properly made.’ The effect of this construction is to prevent money, which has been deposited in the State treasury through forms of law, from being withdrawal without specific appropriations first made by the Legislature.”
Quoting further from the opinion of Dickinson, Auditor, v. Clibourn, supra: “The framers of the Constitution intended to place an unmistakable limitation upon the authority of public officials in paying out public funds, and to declare that all the State funds which are within the purview of the provision must be held in the treasury, until a specific appropriation thereof has been made by the Legislature. The power of the General Assembly, with respect to the public funds raised by general taxation is supreme, and no State official, from the highest to the lowest, has any power to create an obligation of the-. State, either legal or moral, unless there has first a specific appropriation of funds to meet the obligation.' The Constitution provides, too, that no appropriation shall be for a longer period than two years, and thus a period is fixed over which the lawmakers hold complete control over the purse-strings of the.State.
“An unmistakable purpose is shown in said'provisions of the Constitution and statutes quoted, to prevent the payment out of, or drawing from the State Treasury, any money raised under the operation of any statute, until the same is appropriated by law, which appropriation is required to be specific, and the purpose distinctly stated in the bill and the maximum amount which can be drawn, specified in dollars and cents.” See, also, Arkan sas Game & Fish Commission v. Page, Treasurer, 192 Ark. 732, 94 S. W. 2d 107.
Attention also is called to art. XVI, § 4 of our Constitution, which provides: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.”
In construing this section Mr. Justice Wood, in Nixon v. Allen, 150 Ark. 244, 234 S. W. 45, said: “The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function, which, within the limits of the Constitution, is lodged in the supreme lawmaking power of the State — the Legislature. Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768; Humphrey v. Sadler, 40 Ark. 100; Throop on Public Officers, § 500. The General Assembly cannot delegate this legislative power to any individual, officer, or board.”
The ruling in this case was reaffirmed in Pulaski County v. Caple, 191 Ark. 340, 86 S. W. 2d 4.
It thus appears that the primary purpose of the above provisions of the Constitution is to prevent the expenditure of the people’s tax money without having first procured their consent, expressed in legislative enactments which do not contravene these constitutional provisions.
On appellants’ argument that there has arisen such an emergency as contemplated under § 10 of Act 53, supra, such as would warrant the withdrawal of the amount of money s.ought to be withdrawn here from the fund created under Act 292, supra, we think little need be said for the reason that no such emergency, as contemplated by the Constitution, has been shown.
Finding no error, the decree is affirmed. | [
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Smith, J.
Suits were filed by the next friend of two minors to recover damages to compensate personal in juries which they sustained as a result of a collision between an automobile and a truck, which occurred in the City of Stuttgart, in the Northern District of Arkansas county. The suit originally was against three defendants, one of these being the Arkansas State College. A demurrer filed by the college was sustained, and the cause was dismissed as to it, leaving only one T. B. Smith, a resident of the Southern District of Arkansas county, and one Joe Hill, a resident of Clark county, as defendants.
Hill filed an answer denying liability. Smith filed a motion to quash the service, upon the ground that being a resident of the Southern District of Arkansas county, he was not subject to suit in the Northern District of that county. This motion was sustained in an order entered February 19, 1947. But on the next day this order was set aside, and the motion to quash was overruled and the case was set for trial on the. first day of the ensuing June term of the court. Whereupon, Smith filed here a petition for- prohibition against the court from proceeding with the trial, as is about to be done.
Three statutes must be considered in determining whether the writ should be granted. The first of these, is Act 314 of the Acts of 1939, p. 769, entitled “An Act to Fix the Venue of Actions for Personal Injury and Death.” Section 1 of this Act reads as follows: “All actions for damages for personal injury or death by. wrongful act shall be brought in the county where the accident occurred which caused the injury or death, or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of -such party, and on duty at the time of such service.”
This act has been construed in numerous cases as holding that actions of this character have been localized and that the venue thereof is fixed either in the county in which the injury occurred or in the county where the plaintiff resided when injured.
Section 2 of this Act provides: “This act shall not repeal any provision of venue of actions except such as are inconsistent herewith and all laws and parts of laws in conflict herewith are repealed.”
Another act to be taken into consideration is Act 21 of the Acts of 1941, p. 48, entitled “An Act to Provide for Statewide Service of Process in Local Actions.” Section 1 of this Act reads as follows: “In any action which may lawfully be brought only in some one or more particular counties in this state, and not in any county of the State in which service may be had on the defendant, so that the venue of such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this state.”
This statute appears to be conclusive that the writ should be denied.
Petitioner concedes that the action here sued on has been localized in Arkansas county, but he insists that the act creating two judicial districts in Arkansas county requires that he be sued in the Southern District of that county, and that § 2 of Act 314 above quoted, leaves unr affected the provisions of the Act creating two judicial districts in Arkansas county, but requires suits against residents of Arkansas county to be brought in the district of the county in which they reside.
Act 63 of the Acts of 1913, p. 192 is, “An Act to Establish Two Judicial Districts in Arkansas County,” and was construed in the case of Williams v. Montgomery, 179 Ark. 611, 17 S. W. 2d 875. See, also, Murrell v. Exchange Bank, 168 Ark. 645, 271 S. W. 21, 44 A. L. R. 1391.
In the Williams case, supra, Chief Justice Hart said: * ‘ As above stated, Arkansas county was divided into two judicial districts by the Legislature of 1913. Acts of 1913, p. 192. Section 4 of the act prescribed the terri torial jurisdiction of the' circuit court for the Northern District, and in like manner for the Southern District. It contains a proviso that no citizen or resident of the Northern District shall be liable to be sued in the Southern District, nor shall any citizen or resident of the Southern District be liable to be' sued in the Northern District, in any action whatever. Section 6 provided that, in order to ascertain in which of the respective districts actions cognizable in the circuit and chancery courts shall be returnable and tried, the said districts, for all the purposes of the acts, shall be considered as separate and distinct counties, and the mode and the ’ place for trying suits shall be determined by the general law applicable to different counties.”
In that case defendants residing in the Northern District of Arkansas county were sued in the Southern District thereof, and a motion was filed to quash the service in that case on the ground that the defendants were not sued in the district of the county in which they resided. The motion to quash the service was sustained and that action was affirmed on the appeal, although that was a suit for a personal injury, but that opinion was delivered before the passage of the 1939' act.
Under this act suits for personal injury must -be brought in the county of the plaintiff’s residence, or in the county where the injury occurred. As said by Justice Hart, the Northern and Southern Districts of Arkansas county are, so far as. venue is concerned, to be regarded as separate counties. So, therefore, inasmuch as the plaintiffs resided in the Northern District of Arkansas county, and the injury occurred in that district, the suits must be brought there, and the place of residence of the defendants is unimportant. Process against them may be served in the Southern District of the county, just as it might be in any other county of the state in which the defendants are found.
The writ must therefore be denied and it is so ordered, | [
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Smith, J.
Appellee had a contract with the City of West Memphis to blacktop certain streets in that city, the performance of which required the use of a large quantity of limestone chips and liquid asphalt. These materials were unloaded on a lot referred to as the gin lot, with the permission of the owner thereof, but a considerable quantity of the chips was unloaded on an adjoining lot owned by appellant, and this was done without her knowledge or consent. She testified that she several times requested appellee to remove the chips from her property, and upon his failure to do so, she employed an attorney to compel that action. The attorney renewed the demand that the chips be removed, and when the demand was not complied with, appellant built a fence on her lot which enclosed a quantity of the chips. Thereafter a conference was held between appellant and her attorney with appellee, which resulted in the execution of the following agreement:
“West Memphis, Ark., 10/28/46
“In consideration of Mrs. Pearce allowing Mr. Hollis to use her property to unload and remove limestone chips now thereon for 30 days from this date Mr. Hollis agrees:
“1. To blacktop Mrs. Pearce’s drive by 2 coats— on Avalon Street in W. Mfs. Ark. to Mrs. Pearce’s satisfaction.
“2. To pay J. P. Williamson his fee of $100.
“3. To leave said property used for unloading in a good condition satisfactory to Mrs. Pearce and to replace any fence cut or removed by him.'
“(Signed) Mrs. M. C. Pearce,
“(■Signed) Hollis Const. Co.
“By Charles Hollis.”
The $100 fee mentioned was paid the attorney as agreed, but appellee did not at once begin work on ap.pellant’s driveway, although he continued to use her lot for storage purposes. She demanded immediate performance of the contract, and appellee graded the driveway to prepare it for blacktopping, but he did not blacktop it, whereupon appellant notified, appellee that if he did not begin blacktopping the driveway the next morning, she would file suit against him, and this she did on November 23, 1946.
Appellee testified that before the blacktop is put on it is necessary to’ get the street or driveway to a proper grade, and in proper condition, and that he graded the driveway and that nothing remained to be done except to apply the blacktop material, and this he intended to do and would have done, but for a suit for damages for breach of contract. He testified that he told appellant he would do the work as soon as he had completed his contract with the city, and that this contract was not completed when the suit was filed, and that there had. been only 17 working days between October 28th, the date of the contract, and November 23rd, the date suit was filed. The testimony shows that appellee’s contract with the city had not been completed when the suit was filed.
It was further shown that while employed under his contract with the city, appellee blacktopped the space around certain churches, in front of the- Bank of West Memphis, in front of a drug store and a mercantile store, but appellee testified that these spaces thus blacktopped were public property, and in fact a continuation of streets, or parts thereof, and that the work was done at the request of the city, but that he did no work for private individuals during that time.
Appellant insists that if appellee could do this work, he could have and should have done hers, and that appellee should have done her work while he was occupying her premises and within the time granted for such occupancy, but the contract does not so provide.
It was conceded that the work contracted to be performed had not been done, but appellee never at any time refused to do it.
The trial court was of the opinion that appellee had, under the contract, a reasonable time within which to do the work, and we concur in that view. This question of fact was submitted to the jury under the following instruction:
“11. If you find by a fair preponderance of evidence in the case that the defendant failed and refused to blacktop plaintiff’s driveway as agreed within a reasonable time after the execution of the contract, or otherwise perform his contract with her according to its terms, then and in that event you should find for the plaintiff. ’ ’
The verdict of the jury in appellee’s favor reflects the finding that the suit had been brought before appellee had been allowed a reasonable time in which to comply with the contract, and the judgment from which is this appeal must therefore be affirmed and it is so ordered; but this is without prejudice to another suit for damages if appellee does not blacktop tbe driveway as be contracted to do, and if be does not perform tbe contract within 30 days from tbe date of this opinion, appellant may renew ber snit.
It is said in tbe chapter on Actions, 1 R. C. L., page 340, that: “Tbe general rule is that tbe plaintiff’s right to a recovery depends upon bis right at tbe inception of tbe suit, and tbe nonexistence of a cause of action when tbe suit was started is a fatal defect which cannot be cured by tbe accrual of a cause pending suit, and that when it has been shown that an action was prematurely brought, it should be dismissed without prejudice to tbe plaintiff’s right to begin a new action on the accrual of tbe cause of action.”
A number of our own cases announcing tbe same rule are cited in § 20 of title Actions, Crawford’s Digest of tbe decisions of this court. See also cases cited in Yol. 2, West’s Digest of our decisions- under tbe same title. | [
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Holt, J.
The State Hospital Board and the Board of Trustees of the University of Arkansas, acting together, have adopted a plan for establishing a modern medical center upon land which is a part of the grounds of the State Hospital in Little Rock. In this action appellant, a taxpayer, has challenged the power of the State Hospital Board to make available property to the University Board for a medical center and the power of the University Board to accept the site and construct the medical center, to be composed of a memorial hospital and medical building, thereon.
Appellant alleged in his complaint, (omitting the' formal parts): “On October 3, 1947, at a meeting of the State Hospital Board held in the City of Little Rock, a resolution was unanimously adopted whereby it was proposed to make available to the Board of Trustees of the University of Arkansas a site on the grounds of the State Plospital in the City of Little Rock .for the construction of a memorial hospitalnnd medical school building. There was also authorized by said resolution the construction of a unit adjacent to said medical school and hospital-building for the care of patients of the State Hospital. The expenditure of funds for the employment of architects for the construction of said State Hospital unit was authorized. A copy of said resolution is attached hereto, made a part hereof and marked Exhibit ‘A’.
“On October 5, 1947, at a meeting of the Board of Trustees of the University of Arkansas held in tbe City of Fayetteville, a resolution was unanimously adopted accepting tlie offer of a site on tlie grounds of tbe State Hospital and authorizing the construction of a memorial hospital and medical school building thereon. The said resolution purported to authorize the removal of the medical school from its present location at 11th and McAlmont Streets in the City of Little Rock and to relocate the medical school upon the grounds of the State Hospital in the City of Little Rock. It also authorized the expenditure of funds for the employment of architects for the construction of said medical school building and memorial hospital. A copy of said resolution is attached hereto, and made a part hereof and marked Exhibit ‘B’.
“Plaintiff states that the State Hospital Board has no authority to make available to the University of Arkansas a site upon the State Hospital grounds for the erection of a medical school building and memorial hospital. The Board of Trustees of the University of Arkansas has no authority to remove the medical school from its present location or to relocate it upon the grounds of the State Hospital. The said Board of Trustees has no authority to construct a medical school building or a memorial hospital upon the grounds of the State Hospital. The expenditure of funds for the purposes aforesaid is not authorized by law and would constitute an illegal use of public funds.
“Wherefore, plaintiff on behalf of himself and other taxpayers of the State of Arkansas prays that the -defendants be permanently enjoined from expending public funds and from taking other action with a view to carrying out the course of action contemplated by tbe resolutions heretofore adopted by them, and for such other relief as may be equitable.
“Exhibit ‘A’. Resolution — Whereas, Acts 357 and 428 of the Legislature of'the State of Arkansas for the year 1947 authorized the Board of Trustees of the University of Arkansas to construct a memorial hospital for its School of Medicine; and
■ “Whereas the property upon which the School of Medicine in the City of Little Rock, Pulaski county, is now situated is insufficient in area to permit the construction of the proposed hospital upon said property; and
“Whereas the said Board of Trustees desires to relocate the School of Medicine upon a part of the grounds of the State Hospital in the City of Little Rock and to erect upon said grounds a combined Medical School and memorial hospital; and
“Whereas the State Hospital Board desires to construct a unit adjacent to said hospital building for the purpose of providing treatment for the patients of the State Hospital, such unit, however, to be under the control of the State Hospital Board; and
“Whereas the proposed construction of a medical school and hospital upon the State Hospital grounds, together with a unit adjacent thereto for the treatment of State Hospital patients, will enable the State Hospital to provide the highest quality of medical care for its patients, will enable it to obtain the most modern equipment, and will effect great savings to the State of Arkansas by eliminating the duplication of facilities; and
“Whereas the grounds of the State Hospital are amply large to provide for the proposed building and for future expansion of both the School of Medicine- and the State Hospital, without additional expense to the state for the acquisition of building sites;
“Now, Therefore Be It Resolved: 1. That this Board shall make available to the Board of Trustees of the University of Arkansas a sufficient part of the grounds of the State Hospital, the exact area and location to be mutually agreed upon, to provide for the erection of a combined Medical School and memorial hospital, such property to remain under the permanent and exclusive supervision and control of the said Board of Trustees of the University;'
“2. That this Board cooperate with the Board of Trustees in the erection of the proposed building by con structing a unit adjacent to be used for the care of tbe patients of the 'State Hospital, such unit, however, to be under the permanent and exclusive supervision and control of the State Hospital Board. The cost of construction of the proposed unit by the State Hospital Board shall be paid from such funds as may then be available, or .which thereafter may become available for said purpose;
“3. That the firm of Burks & Anderson, architects, be employed and be instructed to proceed immediately with the preparation of plans for the construction of the proposed State Hospital unit adjacent to the proposed Medical School and memorial hospital building.
“Exhibit ‘B’. Resolution — Whereas Acts 357 and 428-of the Acts of 1947 appropriated the sum of One Million Six Hundred Thousand Dollars ($1,600,000) for the construction of a memorial hospital for the School of Medicine of the University of Arkansas; and
“Whereas the School of Medicine is now located upon a single block owned by the State of Arkansas in the City of Little Rock which area this Board finds would be insufficient for the construction of such memorial hospital and the necessary building for the contemplated medical center; and
“Whereas the State Hospital Board has offered to make available by deed or otherwise to this Board a sufficient part of the grounds of the State Hospital within the City of Little Rock to provide for the erection of a combined medical school and memorial hospital, such property to remain under the permanent and exclusive supervision and control of the Board of Trustees of the University; and
“Whereas this Board finds that it would be to the best interest of the University to relocate the School of Medicine upon the grounds of the State Hospital in the City of Little Rock, Arkansas, and to construct a combined medical school and memorial hospital, with consequent saving in cost and increase in efficiency; and
“Whereas the construction of a wing of said building for the treatment of patients of the State Hospital would enable such patients to receive the highest quality of medical care and to have the benefit of the most modern medical and hospital equipment and at the same time would provide the students at the School of Medicine with an invaluable opportunity to observe the care and treatment of nervous diseases — a field in which there exists an acute shortage of physicians throughout the nation; and
“Whereas the proposed joint construction of a medical school and hospital will provide both the memorial hospital and the State Hospital with the most modern facilities at a great saving to the state by the elimination of duplication.
“Now Therefore Be It Resolved by the Board of Trustees of the University of Arkansas: 1. That this Board accepts the offer of the State Hospital Board to make available to it a site on the grounds of the State Hospital, the exact area and location to be mutually agreed upon, for the erection of a medical school and memorial hospital building, such property to remain under the permanent supervision and control of the Board of Trustees of the University;
“2. That this Board-cooperate with the State Hospital Board to the end that a wing of the proposed building be constructed by the State Hospital Board with funds heretofore appropriated for the use of that Board, such wing to provide a place for the treatment of patients of the State Hospital and to be under the permanent and exclusive supervision and control of the State Hospital Board;
“3. That the funds appropriated by the aforesaid Acts 357 and 428 be utilized in the construction of said memorial hospital, together with an anticipated grant of federal funds in the amount of Eight Hundred Thousand Dollars ($800,000);
“4. That on or about the date of completion of the aforesaid medical school and hospital the present medi cal school building on McAlmont Street and between 12th and 13th in Little Rock be disposed of as the Board of Trustees may determine;
“5. That in order to raise funds to finance tbe construction of that part of the proposed building which will be used as a medical school the Board authorize the issuance of ‘4 per cent bonds which shall be obligations only of the Board of Trustees, issued under the authority of Act 62 of the Acts of 1947,. payable from and secured- solely by a specific pledge of the revenues to be derived from tuition fees, laboratory fees, library fees, and other fees and rentals to be paid by the students who matriculate in the medical school, which shall be plainly recited on the face of the bonds. In no event shall such bonds be considered a debt for which the faith and credit of the State of Arkansas or any of its revenues are pledged, and no mortgage or lien on the medical school or upon any lands or buildings belonging to the state shall be given as security, which also shall be plainly recited on the face of the bonds, etc.’ ”
Provision is also made for the employment of architects for the preparation of plans, etc.
Appellees in their answer “admit the adoption of the resolutions as alleged in the complaint but deny that they are without authority to take the action contemplated by said resolutions.
“The State Hospital was created by Act 66 of the Arkansas Acts of 1873. Pursuant to that Act the Board of Trustees of the Arkansas Lunatic' Asylum purchased in the year 1875 eighty acres of land in the City of Little Rock. In 1888 an additional eighty acres were acquired, and the State Hospital now owns one hundred sixty acres in the City of Little Rock. The conveyance of said lands was made to the Board of Trustees of the Arkansas State Lunatic Asylum by warranty, deed and without restrictions of any kind. The State Hospital is not using and has never used approximately thirty acres of said property, which constitute a part of the grounds of the hospital. These thirty acres will not be needed in the future for State Hospital purposes, as the remaining one hundred thirty acres are adequate to provide for the needs of the State Hospital and as the hospital also has extensive facilities in Saline County for the care of its patients. The State Hospital accordingly has ample land available for the proposed medical school building and memorial hospital and for such future expansion of both the medical school and the State Hospital as may be reasonably expected.
“The State Hospital is designed primarily for the care and treatment of patients suffering from nervous diseases. There is- a need for hospital facilities providing-treatment for other types of diseases to which the State Hospital patients may be subject, but at present the State Hospital is without adequate facilities of this kind.
“The medical school of the University of Arkansas was originally organized as a privately owned benevolent corporation, called the Arkansas Industrial University Medical Department. This private corporation was affiliated with the Arkansas Industrial University, but it was not state owned nor state operated. The facilities of the school then consisted of a school building at 611 East Markham Street in the City of Little Rock and a clinic at Second and Sherman Streets in the City of Little Rock. In the year 1911, pursuant to Act 360 of that year, the Board of Trustees of the University of Arkansas took over said benevolent corporation and its facilities, and thereafter the medical school was state owned and state operated, being incorporated as a part of the University of Arkansas. In the year 1912 the Board of Trustees of the University of Arkansas removed the basic science department of the medical school to the War Memorial Building at Markham and Center Streets in the City of Little Rock. Thereafter the school building at 611 East Markham Street was sold by the Board of Trustees.
“In 1931 the Board of Trustees purchased the block at 11th and McAlmont Streets in the City of Little Rock, on which the medical school building is now situated. The conveyance was made by warranty deed to the Board of Trustees of the University of Arkansas* without restrip tions of any kind. Upon the completion of the present medical school building the Board of Trustees sold the property at Second and Sherman Streets and removed the medical school to 11th and McAlmont Streets.
“By Acts 357 and 428 of 1947, the Arkansas Legislature appropriated the sum of $1,600,000 for the construction of a memorial hospital for the medical school. Additional funds in the amount of $800,000 for the construction of said hospital will be available to the Board of Trustees under the provisions of the Hospital Survey and Construction Act of 1946 (42 U. S. C. A. § 291 et seq.) The block of ground which is now owned by the Board of Trustees is insufficient to provide for the construction of a memorial hospital such as is contemplated by the said Acts 357 and 428. Said block of ground is also wholly insufficient to permit the future expansion of the medical school, as through the construction of additional buildings to be used for purposes of instruction, for the training of nurses, for dormitories, and for other purposes which are essential to the expansion of the school.
The Board of Trustees has found that it would be to the best interest of the medical school for it to be relocated upon the grounds of the State Hospital and has so relocated the school. In order for the medical school to continue its status as an acci edited school according to the standards of the American Association of Medical Colleges it must have- access to a modern and well equipped hospital. The proposed construction of a combined medical school building and memorial hospital will better enable the Board of Trustees to continue to maintain the school according to the standards of the American Association of Medical Colleges. The location of the medical school upon the grounds of the State Hospital will be directly beneficial to the patients of that institution and will also provide the students of the school with an invaluable opportunity to observe the care and treatment of nervous diseases.
“Wherefore defendants pray that the plaintiff’s complaint be dismissed for want of equity,”
Appellant filed demurrer to appellees’ answer in which he alleged that it did not state facts sufficient to constitute a defense to the complaint. The trial court overruled the demurrer, appellant refused to plead further, and his complaint was dismissed for want of equity. This appeal followed.
For reversal, appellant says: “It is the contention of the appellant that the respective Boards which-are appellees in this casé are attempting to assume unto ■ themselves powers which inherently belong to the Legislature and which have not been delegated to them, neither expressly nor impliedly. They have, by practically contemporaneous resolutions undertaken to exercise their judgment in matters which appellant thinks are the sole prerogatives of the legislative branch of the government. ’ ’
Both boards involved here are agencies of the State, which is the beneficial owner of all property held by each as trustees for the people of the State.
Bid those boards exceed their powers in the circumstances here?
The trial court held that they did not, denied injunctive relief, and we think was correct in so -holding.
We consider first the powers of the Hospital Board to permit the University Board to build a medical center on property belonging to the Hospital Board.
Act 66- of the General Assembly of 1873 created the “Arkansas State Lunatic Asylum’’ with a board “who shall be a body politic and corporate by the name and style of the ‘Trustees of the Arkansas State Lunatic Asylum,’ and shall manage and direct the concerns of the institution, and make all necessary by-laws and regulations not inconsistent with the constitution of the State or of this act; and shall have power to receive, hold, dispose of and convey all real and personal property conveyed to them by gift, devise or otherwise for the use of said institution; and they may sue and be sued; and they shall have power and authority to hold and purchase property for tlie benefit of such institution, and to purchase or erect suitable buildings for the same.
At repeated intervals, the Legislature has enacted legislation relating to the State Hospital, but in none of these acts was any change made in the broad general powers given the Hospital Board by Act 66. See Acts 126 of 1893, 15 of. 1905, 108 of 1915,( 49 of 1925, 37 of 1927. See, also, Act 240 of 1933 where the name of the institution was changed to the “State Hospital,” and created a new board.
The present board was created by Act 1 of 1943 and given full power of management, control and all duties and authority conferred on its predecessors.
The rule appears to be well established that trustees have not only all powers specifically delegated, but such additional or implied powers that may be necessary to carry out the trust.
In § 186 of the Restatement of Trusts, the rule is stated as follows: “In addition to the powers conferred in specific words by the terms of the trust, the trustee has such powers as are necessary or appropriate to carry out the purposes of the trust and are not forbidden either in specific words or otherwise by the terms of the trust. It is to be inferred that the settlor intended to confer upon the trustees such powers as under the circumstances, known to or anticipated by the settlor are necessary or .appropriate to carry out the purposes of the trust.
“The trustee can properly exercise such powers as it appears from the language used in the trust instrument were intended to be conferred upon him, although not conferred in specific words. Thus, a general authority to manage or control or dispose of the trust property may, depending on the circumstances, be interpreted to confer a power of sale both of real and personal property. ’ ’
This rule has been recognized by this court in cases involving powers of school directors and what we said in the case of East End School District No. 2 v. Gaiser-Hill Lumber Company, 184 Ark. 1165, 45 S. W. 2d 504, applies with equal force here. There we said: “It is true that school directors are public officers and derive their powers from the statute. ‘The law is well settled that school districts are not only authorized to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom, and from the duties which are expressly imposed upon them, and such powers are implied when the- exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them.’ American Exchange Trust Co. v. Trumann Special School List., 183 Ark. 1041, 40 S. W. 2d 770; A. H. Andrews Co. v. Delight Special School Dist., 95 Ark. 26, 128 S. W. 361;” and again in Lewis v. Keating, 191 Ark. 422, 86 S. W. 2d 417, this court said:
“If a settlor has directed the trustee to reach a certain end, he must be deemed to have intended that the trustee use the ordinary and natural means for obtaining that result. The court reads such a desire into the trust instrument, not because the court is adding something to the trustee’s authority for the sake of bringing about a result which it thinks would be just, but for the reason that chancery believes that the settlor actually wished the trustee to have such power, although he did not in so many words grant the authority. . . . Where a trustee conforms with the provisions of the trust in their true spirit and meaning, he has authority ‘to adopt measures and to do acts which, though not specified in the instrument, are implied in its general directions and are reasonable and proper means for making them effectual.’ ”
In view of these authorities, we think it clear, in the circumstances here, that the Hospital Board had the power, as indicated, to make the property available to the University Board for the purpose intended which will obviously be of great benefit to the State Hospital.
The University Board, through legislative enactments, also had the power to accept the site offered bv the Hospital Board and to erect the memorial hospital and medical school building thereon.
''The “Arkansas Industrial University” was created by Act 44 of 1871. Section 19 of that act provided for a Board of Trustees to be formed in a body corporate and politic, under the general laws of the . State and to exercise all powers and privileges allowed by law to any like corporation. Act 95 of 1887 made the Board of Trustees a body politic and corporate, with all the powers of a corporate body, and that it should possess all the power and authority of its predecessor Board.
Act 155 of 1899 changed the name of the University to the “University of Arkansas” and Act 302 of 1941 increased the Board membership to ten.
It will be observed that specific authority was given to the University Board to construct the memorial hospital “at its School of Medicine in Little Rock” by Acts 357 and 428 of 1947, supra, appropriating $1,600,000 for the purpose, and with federal aid in the additional-amount of $800,000 anticipated. The power to construct may carry with it the power to acquire a site upon which to build. “ It is an incidental power because indispensable to attain the end.” See State Ex Rel. Post v. Board of Education of Clarksburg School Dist. et al., 71 W. Va. 52, 76 S. E. 127, and Ann. Cas. 1914B, p. 1238.
Both Boards have a broad discretion in the discharge of their respective trusts, and unless it is made to appear that this discretion has been abused their actions cannot be restrained. We find no abuse of discretion here. In fact, appellant makes no such claim.
The answer alleges, and the demurrer admits, that the block of ground now owned by the Board of Trustees on which the present medical school is located is insufficient to provide for a memorial hospital such as is contemplated by Acts 357 and 428, and insufficient to permit the further expansion of the medical school/ In order to continue its status as an accredited school according to the standards of the American Association of Medical Colleges, it must have access to a modern and well equipped hospital.
It is further alleged, and the demurrer admits, that the construction of a combined medical school building and memorial hospital will better enable the Board of Trustees to continue and maintain the school according to the standards of the American Association of Medical Colleges, and that the location of the medical school upon the grounds of the State Hospital will directly benefit the patients of that institution and also provide the students with an invaluable opportunity to observe the care and treatment of nervous diseases.
Courts have nothing to do with the appropriate exercise of discretionary powers vested in public trustees, when so used as in the instant case. It must be presumed that the two Boards, in reaching an agreement to utilize State-owned lands now controlled by the State Hospital group, found that through resulting economies and preferential location, each institution and the public at large would be benefited.
We think it clear that the lawmakers intended that the University Board should acquire a site for the memorial hospital within the City of Little B-ock not unreasonably distant from the medical school. As indicated, it could acquire this site without needless expenditure of money.
We hold that the University Board had the power to build a medical school building in connection with the memorial hospital. Such authority is found in Act 62 of 1947, which authorized the University Board to construct building's or structures of the character known as self liquidating projects “which the Board deems proper ór suitable for the school.” The act also provides that it should be liberally construed to effectuate its purpose. Such authority of the Board under the act was upheld by this court in Jacobs v. Sharp et al., 211 Ark. 865, 202 S. W. 2d 964.
Finding no error, the decree is affirmed.
McFaddin; J. concurs. | [
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Ed. F. McFaddin, Justice.
Appellee sought to compel the city engineer and city collector of Little Rock to issue to him a permit for the construction of a four-room residence. The complaint alleged that the plaintiff had “complied with all the prerequisites established for obtaining the necessary building permit, but the defendants arbitrarily, unreasonably and capriciously refused to issue to him the requested permit.” The defendants (City of Little Rock and its engineer and collector) denied the allegations of the complaint. The cause proceeded to trial in the chancery court; and, from a decree granting the desired relief, there is this appeal.
Appellee testified that, when he first made application to the city'engineer’s office for a building permit, he was told that all that he lacked was a foundation plan drawn to scale; that, when he submitted such plan to the city engineer’s office, he was then told that he “had to have several other things”; and that, when he obtained such other required data, he was even then refused a permit. Appellee also testified that he then consulted an attorney, who talked with the city engineer and advised appellee to renew his request for permit; but that, again, the desired building permit was refused. The various matters which appellee submitted to the city engineer’s office were offered in evidence; they were: (a) a blueprint showing the floor plans and side elevation; and giving information as to footing, siding, roof and height of the residence; (b) blueprint showing foundation plan and piers; (c) a magazine picture showing the front of a residence similar to the one appellee was planning to build; and (d) letters of July 14th and 16th, 1947, containing other details and a check for the permit fee. Appellee testified that he was going to do a portion of the work on the house in order to save expenses, and that the city engineer was trying to compel appellee to pay an architect to prepare the plans and thus subject appellee to considerable unnecessary expense.
Appellants showed that the building code of the City of Little Rock, as construed by the city engineer for many years past, requires that the applicant file both a front elevation and side, elevation drawn to scale; that appellee had furnished only the side elevation; and that the picture could not be used in .lieu of the front elevation. Appellants’ contention is summarized in their brief in this language:
“In the instant case, L. V. Tate, Jr., made application for a permit for the construction of a house, and submitted therewith the necessary plans with the exception of a front elevation. A photograph from a magazine was tendered to the city engineer in lieu of the required front elevation.
“The city engineer rejected the photograph as an elevation drawn to scale, because it did not supply the necessary information needed by him in his execution of the building code, and refused to issue the building permit requested.”
The city engineer, Mr. Zander, testified that all he was trying to do was to enforce the city’s requirements, all of which he considered to be reasonable; that a high school student could draw the required front elevation; that the cost of such a drawing would be only a few dollars ; and that the city engineer did not have the time to prepare such a drawing, neither did he have the personnel with knowledge to do it.
Without lengthening this opinion by detailing all the evidence, we conclude that the question here is, not whether the city’s requirements are reasonable — we hold that they are — ; but, rather, the question is, whether the city officials were arbitrary in their method of dealing with appellee. Why first require only a foundation drawing, and then later other matters ? Why require appellee to make four trips and consult a lawyer, if all appellee needed was a drawing “that a man from high school” could do ¶
This case affords an excellent example of the wisdom of the rule that the findings of the chancellor will not be disturbed on a disputed question of fact, unless such findings are against the preponderance’of the evidence. The witnesses in this case testified in open court, so the chancellor heard them, and observed their demeanor. He could tell whether the attitude of the city engineer’s office was bureaucratic or cooperative. Likewise, the chancellor could tell whether the appellee was (a) anxious to argue on every point or (b) bewildered and thwarted by regulations. The chancellor saw the parties; we see only the printed page. So, in a case like this one — where the attitude of the parties is the decisive issue — we necessar ily affirm the chancellor’s findings, since they are not contrary to the preponderance of the evidence.
Affirmed.
Mr. Justice Millwee not participating.
For eases stating and applying this rule, see West’s Arkansas Digest, “Appeal and Error,” § 1009(4). | [
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Griffin Smith, Chief Justice.
Appellant was a passenger on Inter City Transit Company’s Bus No. 118 en route from Little Rock to Jacksonville when it was hit by the trailer of a truck operated by East Texas Motor Freight Lines. The bus was forced off the highway and turned on its side. Appellant was injured and sued both companies. Appeal is from a directed verdict in favor of each defendant.
On direct examination appellant was asked whether “the two buses” had a collision. Her reply was, “I wouldn’t call it a collision. This trailer was trying to pass the bus and the back end of the bus hit the trailer and knocked it off the highway. The bus turned over an embankment ’ ’. She had previously testified that ‘ ‘ The East Texas trailers tried to pass this bus and knocked it off the highway”.
When the Court indicated the cause might be taken from the jury, appellant’s attorney was allowed to present additional testimony. When appellant was asked how fast the bus was traveling she replied, “From what little I know about it, it seems like the driver was making between 30 and 35 miles an hour”. She also testified that the bus was on the right side of the highway. In reply to a direction that she “give the facts”, appellant said:
“The best I can tell it was just like this: a car is going ‘this way’ and another car comes around on ‘this side’, which is the left side of the [bus] and tries to pass it. That is the way this trailer was; and when [the trailer] got almost by the trailer part of the truck hit the bus . . . toward the center and knocked it off the highway. . . . The truck went on and the front end went into a ditch on the other side of the road”.
Appellant, continuing her testimony, said she did not see- the truck “until it hit. The man was trying to keep the bus on the highway. We looked out the window and this trailer is what we saw”.
It is argued that because appellant admitted she did not see the trailer until the bus was hit it necessarily follows that she did not know how the contact occurred, hence negligence cannot be imputed. This contention failed to consider the undisputed testimony that the bus was on the right side of the highway and was proceeding at a speed approximating 35 miles per hour; that it was suddenly struck with such force that the driver “tried to keep it in the road”; that “we” looked out and saw that the trailer, after the impact, was out of control and stopped with the front end in a ditch on the opposite side of the highway.
From this evidence it does not appear that the bns driver was negligent; bnt certainly the jury could have found that the truck-trailer, without justifiable cause, struck the bus while it was on the right side of the highway.
Affirmed as to Inter City Transit Company; judgment reversed and cause remanded as to East Texas Motor Freight Lines. | [
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JOSEPHINE LINKER HART, Judge.
| Appellant, Alliance Steel, Inc. (Alliance), appeals from the circuit court’s judgment rejecting both its fraud and negligence claims against appellee Tillman Adkins, but awarding it judgment against appellee TNT Construction, Inc. (TNT) on Alliance’s contract claim against TNT. On appeal, Alliance asserts that the court erred in rejecting the fraud and negligence claims. We affirm the circuit court’s decision.
On June 10, 2002, TNT contracted with the Omaha School District to construct a metal building for the sum of $168,000. Also on June 10, 2002, TNT executed a contract with Alliance for the purchase of a metal building for the sum of $83,611. The contract was signed by Tillman Adkins, as president of TNT, and subsequent change orders were made to the contract increasing the price to $83,655.
|2Before executing the contract with TNT, Alliance prepared and required TNT to complete a document entitled “Jobsite Information Sheet,” which in part asked, “Is the project bonded?” The question was answered, “Yes.” The document further provided, “If yes, attach a copy of the bond.” A bond, however, was not attached. In fact, no payment bond was ever applied for or issued.
Alliance completed manufacture of the building and delivered it to TNT. The Omaha School District paid TNT as agreed, but Alliance was not fully paid by TNT. Alliance brought a cause of action against TNT alleging breach of contract. Alliance also sought recovery from TNT and Adkins, alleging that “[pjrior to Alliance entering into the contract, and to induce Alliance to enter into the contract, Adkins expressly represented to Alliance that TNT had obtained a payment bond to assure all amounts that may become due to Alliance under the contract,” that “Alliance reasonably relied on Adkins’s representation by entering into the contract,” that “Alliance would not have entered into the contract but for Adkins’s representation,” that “contrary to Adkins’s express representation, TNT did not obtain a payment bond,” and that Alliance suffered damages “[a]s a direct consequence of Adkins’s misrepresentation.” Further, Alliance sought recovery against Adkins, alleging that Adkins “undertook the obligation and duty to obtain a payment bond,” Lthat Adkins “represented to Alliance that he had obtained a payment bond to assure all amounts that may become due and payable to Alliance under the contract,” that “Adkins failed and neglected to actually obtain the payment bond in breach of his duty to Alliance,” and that “[a]s a result of the negligence of Adkins in failing to obtain a payment bond,” Alliance suffered damages.
Following a hearing, the circuit court found in favor of Alliance on its breach-of-contract claim. On the claim of fraud, the circuit court found that the representation in the Jobsite Information Sheet that there was a payment bond was false. The court noted, however, that no bond was attached as requested. The court opined that, to claim fraud or constructive fraud, one has an affirmative duty to make further inquiry into conflicting information, and Alliance’s failure to require a copy of the bond before entering into the contract precluded Alliance from claiming fraud or constructive fraud. On the negligence claim, the court concluded that Adkins “merely failed to obtain the bond,” and that this was “nonfeasance which will not give rise to a tort claim against him.”
On appeal from the circuit court’s decision, Alliance raises two points. First, Alliance asserts that the court erred in rejecting its fraud claim against Adkins. Specifically, Alliance argues that the circuit court “imposed on Alliance a duty to investigate the truth of Adkins’s representation” when “[n]o such duty exists.” Second, Alliance asserts that the court erred in rejecting Alliance’s negligence claim against Adkins. It argues that Adkins, “as the party acting on behalf of TNT, owed a duty to subcontractors and materialmen like Alliance to obtain a bond, that it negligently breached that duty, and that Alliance suffered damages |4as a result of that breach.” Alliance cites to Ark.Code Ann. § 18-44-508(a) (Repl.2003), as requiring TNT to post a bond.
The statute cited by Alliance provides in part that “[n]o contract in any sum exceeding twenty thousand dollars ($20,000) providing for the repair, alteration, or erection of any public building, public structure, or public improvement shall be entered into by ... any ... school district ... unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.” Ark.Code Ann. § 18-44-503(a). Further, “[bjefore any work is performed under the contract, the bond shall be filed with the clerk of the circuit court of the county in which the repairs, alterations, or erection of any building, structure, or improvements are made.” ArlcCode Ann. § 18-44-507 (Repl.2003).
The effect of these statutes was discussed in Beebe School District v. National Supply Co., 280 Ark. 340, 658 S.W.2d 372 (1983). There, a school district contracted with a contractor to supply materials and perform labor in connection with work on a school gymnasium. The contractor neither furnished nor filed a contractor’s bond as required by the statutes. The contractor purchased building supplies from a materialman, but after the school district paid the contractor, the contractor failed to fully pay the materialman for the materials purchased and used in the gymnasium. After the project was completed, the materialman discovered that no bond existed and that the contractor was insolvent.
|fiThe Arkansas Supreme Court reversed the chancellor’s imposition of an equitable lien on the gymnasium, and further, found no merit in the materialman’s allegations of constructive fraud and unjust enrichment. The court stated, “Although the statute does require a contractor’s bond, we have placed the burden on materialmen dealing with a contractor to check the public records to verify the fact that such a bond has been obtained before selling supplies to the contractor.” 280 Ark. at 343, 658 S.W.2d at 374. Further, it stated that the “duty was clearly on the [materialman] to ascertain whether a contractor’s bond was filed.” 280 Ark. at 344, 658 S.W.2d at 374.
Thus, Beebe School District answers both issues raised by Alliance. While Alliance argues that it had no duty to investigate the truth of Adkins’s representations, in Beebe School District, the Arkansas Supreme Court rejected a claim of constructive fraud and squarely placed the burden on the materialman to check public records to determine if there was a bond filed of record. Thus, contrary to Alliance’s assertion, it cannot make out a claim of fraud, as it did not determine that there was not a bond until after it had provided supplies to Alliance. As for Alliance’s assertion that Adkins owed a duty to Alliance to obtain a bond, again, the Arkansas Supreme Court in Beebe School District indicated that it was instead Alliance’s duty to determine whether a bond was filed. Thus, as Alliance had a duty to determine whether a bond was filed, Alliance cannot make out a claim of negligence based on its assertion that TNT and Adkins had a duty to obtain a bond. Accordingly, we |fiaffirm the circuit court’s decision.
Affirmed.
ROBBINS and BAKER, JJ., agree.
. We may affirm the trial court where it is correct, but states wrong reason for its ruling. See, e.g., Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). | [
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OPINION OF THE COURT. The declaration contains two counts. The first is the common count in an action of assumpsit for money lent and advanced by the plaintiff to the defendant The second is also in the form of a count in assumpsit upon a promissory note under seal. The defendant filed a general demurrer to the declaration, which was sustained by the court and judgment rendered in his favor, from which the plaintiff has appealed to this court
If the declaration contains one good count,, a demurrer to the whole declaration will not be sustained, unless there is a misjoinder of actions. The first count is in assumpsit and is clearly a good and valid count It is equally clear that the second count is also in the form of a count in the action of assump-sit. It is true that the cause of action set out in the second count will not support an action of assumpsit; debt or covenant being the appropriate action upon a writing obligatory. But because the second count is faulty and defective, and might have been reached by a general demurrer, it does not follow that it is a count in debt, although it states a cause of action for which debt is the appropriate remedy. We are of opinion, then, that there is no misjoinder of actions, notwithstanding the second count is palpably defective, and sets out no cause of action for which assumpsit will lie. The first count being good, the demurrer to the declaration should have been overruled. The case of Judin v. Samuel, 1 Bos. & P. (N. R.) 43, is, in principle, analogous to the present case. The declaration contained three counts. The first was in trover for bills of exchange, and the second and third counts, after stating the delivery of the bills to the defendant, in order that he might get them discounted for a certain commission, and his having got them discounted, stated that he converted and disposed of the money to his own use. The defendant demurred generally, on the ground of a misjoinder of tort and contract; the subject of the two last counts being matter of contract; but the court held, that, on a general demurrer, as all the counts were in the form of tort, judgment must be for the plaintiff if any one. count was good. We think the principle decided in the above case is decisive of the case now before the court. Judgment reversed. | [
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Bunn, C. J.
The appellant, being the holder of two certain warrants on the treasury of Franklin county, presented and tendered the same to the appellee, as collector of revenue of said county, in payment of certain county taxes assessed and charged against him, and appellee refused to accept the same. Appellant then sued out his writ in the Franklin circuit court to compel the acceptance of his said warrants in payment of said taxes. The appellee filed his response, setting up the previous order of the county court of said county debarring the holder- of said warrants from any benefit therefrom.
The sole issue in the case is as to the validity of the order of the county court mentioned in the response; and the facts will more definitely appear from the following history of the proceedings in that court: On the first day of May, 1884, the same being a day of its regular April term, the said county court made the following order, to-wit: “In .the Matter of Calling in the Outstanding Warrants of Franklin County, Ark. Whereas, it appearing to the court that, on the 27th day of October, 1880, there was a call made by the court for the bringing in and producing all the then outstanding Franklin county scrip or warrants that had been issued prior to the first day of January, 1880, for re-issuance ; and it further appearing to the court that three years and upwards have transpired and passed since that time; and it further appearing to the court, for the purpose of ascertaining the present indebtedness of the county, it is necessary, under the law authorizing each county in the state every three years to call in her outstanding scrip or warrants for reissuance, that the same be ordered in, — it is therefore ordered that all holders of Franklin county scrip or warrants issued prior to the first day of May, A. D. 1884, shall present the same to the clerk of the county court of said county of Franklin, at Ozark, in said county, at the next July term, on the 10th day of August, 1884, of said court, for reissuance; and it is further ordered that all persons who shall hold any warrants of said county, and neglect and refuse to present the same at the time and place aforesaid, as required by this order, shall thereafter be forever debarred from deriving any benefit from their claims ; and it is further ordered that the sheriff of Franklin county notify the holders of said county warrants to present the same to the county court at the time and place fixed as aforesaid for reissuance, by putting up at the court house door, and at the election precincts in each township in said county, at least thirty days before the time appointed by the order of the said county court for • the presentation of said warrants, a true copy of this order, and by publishing the same in newspapers printed and published in the state of Arkansas for two weeks in succession, the last insertion to be at least thirty days before the time fixed by said county court for presentation of said warrants.”
The return of the sherifE, showing in what manner hé gaye the notice thus directed to be given, was ex pressed in general terms, to the effect that the notice had been given as directed in said order, by “posting, as required, in each township, and advertising in two newspapers, — Ozark Democrat and the Weekly Sun,— this July 11th, 1884.” Andón October 2d, 1889, during the pendency of the present proceedings, said sheriff, then out of office, on motion, and by leave of the court, and over the objection of appellant, filed the following amended return, to-wit: “State of Arkansas, County of Franklin': I hereby certify that I have before this, the 10th da37 of July, 1884, executed the within order, as therein commanded, bj" posting notices as required at the courthouse door, and at each election precinct in eách township in said county, and published the same, as therein commanded, in two newspapers printed and published in the State of Arkansas, and having a bona fide circulation therein, at least thirty days before the first insertion of said notice. Returned by me on this 11th day of July, 1884.”
On the 11th day of August, 1884, the day after the day fixed in said original order, the exact day being Sunday, the county court proceeded to an examination, reissuance and cancellation of warrants, as provided by said original order, and entered the following final order to-wit: “In the Matter of Calling in the Warrants Outstanding, Issued Prior to May 1, 1884. And now on this, the 11th day of August, A. D. 1884, being the day after the time stated in the order for calling in the outstanding county scrip of Franklin county, Arkansas, it appearing to the satisfaction of the court that the order was made by the county court, fixing the time for the presentation of the above named county scrip or warrants, and that the full time of three months was given for the presentation of the same as required by law, and it appearing that the said order has been duly published, as required by law, for two consecutive weeks in two newspapers, published and printed in the state of Arkansas, to-wit: The Ozark Sun and thé Ozark Democrat, and that the last insertion was at least thirty-days before the time set by said order for the presentation of said scrip or warrants ; and it further appearing that the clerk of said court furnished A. H. Sadler, sheriff of said county, with a true copy of said order within ten days after the adjournment of said court; and it further appearing that the sheriff, above named, did notify the holders of the aforesaid county scrip or warrants to present the same to the county court, at Ozark, in Franklin county, Arkansas, on the 10th day of August, 1884, for examination and reissuance, by putting up at the court house door and at- the election precincts in each' township of said county, at least thirty days before the time appointed by the order of said courjt for the presentation of said scrip or warrants, a true copy of the order of said court in the premises ; and it further appearing that full publication has been made, and all legal notice has been given, — it is, therefore, ordered and adjudged that all persons who hold scrip or warrants on Franklin county, Arkansas, issued prior to the 1st day of May, 1884, who have neglected or refused to present the same as required by the order of this court and notice aforesaid, shall hereafter be forever barred from deriving any benefit from such scrip or warrants, and that they shall hereafter be declared null and void.”
It is unnecessary to consider the effect of the amendment of the sheriff’s return made after so long a time and for use in a different jurisdiction from that in which the original proceedings were had, and after the term of the county court had expired, and he himself had gone out of office, except to suggest that in this proceeding we are considering what was before the county court, when it made its final order, not what has been certified to since then. The uniform holding of this court has been that, in proceedings under the statute authorizing and directing the calling in of county warrants for cancellation and reissuance, “no presumption can be indulged in favor of the legality of the notice of an order of the county court for calling in county warrants.” In the present case, then, we are to inquire if sufficient appears, affirmatively, either expressly or by implication, from the record, to constitute the service of notice required by statute.
We may treat the return of the sheriff, (since it is general in its terms, and shows that the notice was given as commanded,) in connection with the original order of the county court, there being no conflict between the two, so that it is sufficient if from both it may be ascertained that all the essentials of the notice were given and proved to the court proceeding thereon. Lusk v. Perkins, 48 Ark. 238.
We do not find that it is recited in the order of the court, or certified in the return, that one of the newspapers in which the publications were alleged to have been made was published in the county where the proceedings were had ; nor do we find this essential fact recited in the final order. Section 1, act approved 15th February, 1875 (Acts 1874-5 p. 152).
We find, further, that, notwithstanding the recital in the final order of the county court that it appeared that notice had been given as required by law, yet, in specifying, in the same recitals, how and in what manner the said notice appeared to have been given, it is not recited that one or the other of said newspapers was such as the law designates for such publication ; in other words, the recitals in this respect contradict themselves, and the defect is not cured by anything else contained in the record. The general recital seems to have been a mere conclusion of law, upon the part of the county court, drawn from what follows in the way of particular and specific recitals.
We deem it unnecessary to call attention to other irregularities and differences in the record, since, for the particular error pointed out, a majority of us are of the opinion that the judgment of the court below should be reversed.
We do not regard the fact that the day fixed by the ' . county court for the presentation of the warrants was Sunday, as materially affecting the validity of the proceedings.
Adhering to former rulings of this court, we do not consider the statute of limitations applicable in this kind of case. Reversed and remanded. | [
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Riddick, J.,
(after stating the facts.) The lands upon which appellant claims a lien were held by Bucius E. Polk and his wife, Sallie M. Polk, under a joint conveyance executed to them by Clarence Quarles, commissioner. This joint conveyance to husband and wife vested in them an estate in entirety. Robinson v. Eagle, 29 Ark. 202; Kline v. Ragland, 47 id. 116; Den v. Hardenbergh, 18 Am. Dec. 377; Bertles v. Hunan, 92 N. Y. 152.
After receiving this' conveyance, each of the grantees gave to Mary P. Branch a mortgage on an undivided half interest in said land to secure notes executed to her by Lucius ID. Polk. These mortgages were executed at different places and at different times. The one by Lucius E). Polk was executed on the 4th day of April, 1892, and his wife executed one on the 31st day of May, 1892. Neither of them joined in the mortgage executed by the other. Now, the right of survivorship is a distinctive characteristic of an estate of entirety, and neither of the tenants holding by entireties can by a separate deed affect the right of survivorship existing in the other. Ames v. Norman, 4 Sneed (Tenn.), 683; S. C. 70 Am. Dec. 269; Den v. Hardenbergh, 18 Am. Dec. 371, and note; Kerr on Real Property, vol. 3, sec. 1975.
In order to convey the entire estate in land held by entirety, the husband and wife must convey by a joint deed, or the deeds, if separate, must each purport to convey the entire estate. Neither of the mortgages set up by the appellant purport to convey more than an undivided half interest in the land. It is contended by appellant that these two mortgages, being executed for the same purpose, must be taken and construed as one deed. If this be conceded as correct, it would not strengthen the position of appellant for it would still be a deed conveying an undivided half interest only. When persons owning lands as tenants in common each convey an undivided half interest therein, they have conveyed the title to the whole, for neither of them held more than an undivided half interest, and the deed of each conveys his entire interest; but the entire estate is vested in each of the tenants by the entireties, for they hold, not by moieties, but by entireties, and a conveyance of an undivided half interest by one tenant does not purport to convey his whole interest. The deed of the husband can have no effect after his death. When that happened, Mrs. Polk became the sole owner, his interest passing to her by right of survivorship. If ’appellant has any lien upon Mrs. Polk’s land, it must be by force of her own deed, for she did not join in the deed of her husband, qnd is not affected by it.
As the mortgage executed by Mrs. Polk only purported to convey an undivided half interest in the land, we think it clear that in no event can appellant claim a lien beyond this undivided half interest.
But the most serious question for us to determine is whether Mrs. Polk, during coverture, had the power by a separate deed to mortgage her interest in the lands held by herself and husband as tenants of the entirety. Whether a wife may, in this state, convey an interest held by her as such a tenant, as she may her interest in other real property, has not been determined by this court. The question decided in Robinson v. Eagle, 29 Ark. supra, was that estates of entirety were not abolished by the constitution of 1868. This ruling was approved in Kline v. Ragland, 47 Ark. 116. In neither of those cases was any question concerning the power of the wife to convey her interest in such an estate by a separate deed considered by the court. At common law the husband had, during marriage, the exclusive control of such estate. Fairchild v. Chastelleux, 1 Pa. St. 176, S. C. 44 Am. Dec. 117; Barber v. Harris, 15 Wend. 615; French v. Mehan, 56 Pa. St. 287. But the authority of the husband to dispose of the rents and profits of land held in entirety did not arise from any peculiarity of this estate or from any special powers conferred upon him as a tenant of the entirety, but arose out of the rule at common law that, during coverture, the husband had the control of the real estate of the wife. 2 Kent’s Com. 130; Hiles v. Fisher, 144 N. Y. 306; S. C. 43 Am. St. Rep. 766., Hence we find that, in many of the- states where the wife has been clothed with the power to manage, control and Use her separate property, “the courts, following the logic of the situation, have extended this right to estates by entireties, to the extent of denying the right of the husband or his creditors to deprive her of the use and enjoyment of her interest in such an estate during the life of her husband.” 1 Ballard’s Real Prop. sec. 241 ; Hiles v. Fisher, 144 N. Y. 306; S. C. 43 Am. State Rep. 766 ; Buttlar v. Rosenblath, 42 N. J. Eq. 651; S. C. 59 Am. Rep. 52; McCurdy v. Canning, 64 Pa. St. 41; Chandler v. Cheney, 37 Ind. 391; Shinn v. Shinn, 42 Kas. 1.
In this state a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our constitution and statute have excluded the marital rights of the husband, therefrom during the life of the wife. Const. 1874, art. 9, sec. 7; Sand. & H. Dig., sec. 4945; Neelly v. Lancaster, 47 Ark. 175; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions was to give the wife control of all the property owned by her, including her interest in an estate by entirety as well as other .real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in the rents and profits of such an estate during the life of her husband, and would establish an exception .to the operation of the constitution and statute resting on no valid principle or 'reason. Hiles v. Fisher, supra. On the other hand, to-say that, neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate, and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach of the creditors of either of them, and such is the rule followed in several of the states. McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182, S. C. 35 Am. St. Rep. 595, and note.
But it would seem that this rule is to a certain extent illogical, for under it the effect of the statutes giving married women control of their own property is also in this instance to curtail the power of the husband over his own interest in real estate. The object of these laws was not to affect in any way the control of the husband over his own property. Their sole purpose was to give to the wife what she did not have at common law, the right to control and convey her own property as if she were unmarried. Bertles v. Nunan, 92 N. Y. 152; S. C. 44 Am. Rep. 361.
While such legislation has taken away the control of the. husband over the interest of the wife in estates of entireties, as it has removed his control from her other property, yet.it does not seem reasonable to hold that it also affected his right to control his own interest in such an estate, or that it exempted such interest from seizure by his creditors. As was said in Buttlar v. Rosenblath, 42 N. J. Eq. supra: “Any device of this character for the protection of the husband’s property from his creditors is unknown to the common law, and so contrary to public policy that it ought not to be en-grafted upon our system of laws, by interpretation of the statute, unless the intent to do so is clearly expressed.”
The rational construction of these provisions of our constitution and statute, which “uprooted principles of the common law hoary with age,” swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the. control of her own interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or to charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher, 144 N. Y. 306; S. C. 43 Am. St. Rep. 762; Buttlar v. Rosenblath, 42 N. J. Rq. 651; S. C. 59 Am. Rep. 52.
[Note. — This case is annotated in 30 L. R. A. 324. Rep.]
This rule, as was said by Chief Justice Andrews, in the recent case of Hiles v. Fisher, “best reconciles the difficulties surrounding the subject. The estate granted is not thereby changed. It leaves it untouched, with all its common-law incidents; * * * * and gives to each party equal rights so long as the question of survivorship is in abeyance, thereby conforming to. the intention of the new legislation to take away the husband’s rights jure uxoris in his wife’s property, and to enable the wife to have and enjoy whatever estate she gets by any conveyance made to her or to her and others jointly, and does not enlarge or diminish that estate.”
Our conclusion is that, Mrs. Polk having survived her husband, and become the sole owner of the land, her mortgage deed is valid and binding as to the undivided one-half interest in said land conveyed by her as security for the notes executed by her husband. The court erred, therefore, in not sustaining the demurrer to that extent. The decree is reversed, with an order that the demurrer be sustained to the answer so far as it undertakes to set up a defense to the mortgage executed by Mrs. Polk for said undivided half interest; otherwise, the decree is affirmed. | [
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BatteE, J.
This action was brought in the Pulaski chancery court by Jackson Hoard against George E. Jones to cancel a lease by which Hoard demised to Jones a certain town lot in the city of Little Rock, for three years from the first day of May, 1888, at the annual rent of $24, payable quarterly ; and to restrain the lessee from erecting costly improvements on the demised premises.
The lease was executed in duplicate, and each party retained a counterpart. By the terms of it the lessee was permitted to build five fences and dig a well on the lot, and the lessor ag-reed that one-half of the rent should be appropriated to the payment of the expense of building the fences until it was paid in full. The lessor was to pay all taxes and assessments on the lot and improvements ; and at the end of the term was to pay for the improvements at their value at that time, or continue the lease at the same rate until he should pay for them.
During the term of the lease, Jones, the lessee, erected two small frame houses on the lot, and was erecting a third, of brick, when this action was instituted.
The main contention in this action grows out of the-clause: “ The lessee is allowed to build three houses.’’' This clause appears in the counterpart of the lease which was retained by Jones, but is not in the one held by Hoard. As originally written, nothing was said in the lease about houses. Hoard insists that the clause was inserted after the execution of the lease, without his consent or knowledge, and Jones says it was inserted by him by permission of Hoard, and that the lease was. thereafter acknowledged before a justice of the peace by both parties.
As to the first two houses erected by Jones, there is no controversy. The parties agree that they were built by Jones under an agreement that Hoard would pay the value of the same to Jones when the possession of the lot. was delivered according to the terms of the lease, and that the lease should continue in force, at the annual rent of $24, until such payment should be made. As to-the third house, Hoard says that he protested against the erection of it at the time Jones commenced to build it, but Jones insists that plaintiff requested him to build a store-house, and, after he commenced to do so, objected to the kind of building he was putting up, but told him, “if it wouldn’t cost more than $500, to go ahead and build it.” It appears, however, that it cost $1150 or more.
At the hearing both parties adduced evidence in support of their respective contentions. The appraisement of the buildings by persons selected by the parties, showing the value thereof to be $1550, was introduced and read as evidence. .
The court decreed that Hoax'd should pay to Jones the sum of $1550 for the three houses ; that Jones should surrender possession on the payment to him of that amount, and of the sum of $36.75 due him- for fenciug, less the sum of $14 due Hoard for rent of the lot from the first day of October, 1890, until May 1, 1891, the date of the expiration of the lease ; and that Jones pay to Hoard for the use of the lot the sum of ten dollars a month from the 1st of May, 1891, until the improvements are paid for, and pay all the taxes, present and future, and retain possession of the lot until the amounts due him under the decree are paid ; and that each party pay one-half of the costs. Both parties have appealed.
As to the alteration of the counterpart retained by Jones, it is sufficient to say, we find from the evidence that it was made by Jones, without the consent or knowledge of Hoard, after the execution of the lease. But this does not affect the rights of Jones under the contract actually made by the parties, for, the lease being executed in duplicate, there were two leases, and both were originals. Although the alteration of the lease held by Jones annulled that, the lease retained by Hoard was sufficient to sustain the contract of the parties. Lewis v. Payn, 8 Cow. 71; 1 Taylor on Landlord and Tenant (8th Bd.), sec. 165; 1 Wood on Landlord and Tenant (2nd Bd.), sec. 222 axxd notes.
As to the third house, which was in the course of construction when this action was brought, it being erected, as we find from the evidence, without the consent of Hoard, and against his protest, Jones is entitled to nothing; and as to the other houses he.is entitled to ■the payment of a sum of money equal to their value at the time when he shall deliver the possession of them to Hoard; and he is entitled to hold the lot and improvements, he paying annually $24, as rent, until the first two houses and the fences built and well dug on the lot shall be fully paid for by Hoard.
The decree of the chancery court is, therefore, reversed, and the cause is remanded for proceedings consistent with this opinion. | [
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Wood, J.
On the 11th of March, 1911, D. T. Harris sold to Gr. T. Hale a certain house and lot situated in Arkadelphia, Clark County, Arkansas. Harris and Hale ’ lived at Junction City, in Union County, Arkansas. Hale was the father-in-law of Harris.
On the 17th of March, 1911, the Merchants & Farmers Bank, of Junction City, brought suit against D. F. Harris, in the Union Circuit Court, on a promissory note for $2,500, and caused a general attachment to be issued, directed to the sheriffs of Union and Clark Counties. The sheriff of Clark County, on the 18th day of March, levied on the property in controversy, and filed his certificate of such levy, giving a full description of the property, with the recorder of deeds, in compliance with the provisions of section 5152 of Kirby’s Digest. The deed from Harris to Hale to the property in controversy was recorded before the levy of the attachment.
At the October, 1911, term of the Union Circuit Court, the appellant bank obtained judgment against Harris and the attachment was sustained. Between the date of the levy of the attachment and the rendition of the judgment, the property in controversy was sold by Hale to McMillan and by McMillan to Mrs. Taylor.
Appellant then instituted this suit in the chancery - court of Clark County to set aside the deeds from Harris to Hale, and from Hale to McMillan, and from M.eMillan to Mrs. Taylor, alleging that the conveyance from Harris to Hale was fraudulent and void, and that subsequent purchasers had notice of appellant’s lien by its attachment.
The appellees, except Harris, answered, denying that the conveyance from Harris to Hale was fraudulent, and setting up that appellees McMillan and Taylor were inno cent purchasers, having no notice of the attachment proceedings, and that they paid the value of the land. Appellees McMillan and Taylor filed a cross-complaint with their answer, setting up that McMillan had paid Hale $1,500 for the property, and prayed that in the event the court should set aside and cancel the deed mentioned that McMillan have judgment against Hale for that sum, with interest.
1. The first question presented by the record is one of fact, as to whether or not the deed from Harris to Hale was fraudulent.
Harris himself did not answer the complaint. Therefore, so far as he is individually concerned, the charge of fraud must be taken as admitted; besides, the testimony tending to show that he sold the land in controversy to Hale for the purpose of defrauding creditors is overwhelming.
It could serve no useful purpose to enter into detail in discussing the facts. It suffices to say that Harris was heavily indebted, and that being pressed by his creditors, he conveyed all of his property, of every description, in a short while, to his near relatives and friends, under circumstances which showed clearly that he intended to place his property beyond the reach of creditors, and by these conveyances he rendered-himself wholly insolvent.
As to whether or not the appellee Hale participated in the fraudulent purpose of Harris in making the conveyance, the salient facts are as follows: At the time the deed was made, Harris and Hale lived in the same yard. Harris owed Hale more than $1,500. Nevertheless, Hale gave him a check for $1,500 in cash, the agreed price of the land, because he said that Harris- was down and out, and he married his baby girl. He might have a settlement with him some time, and might never. He didn’t request Harris to pay him at that time because it was almost in the family. He had done- that much for all of his children. He didn’t however, intend to make a gift to Harris; expected some day to have it all in writing. He didn’t say anything to Harris at the time about letting it apply on Ms debt, and Harris didn’t offer to pay the debt. Hale supposed that Harris was able to pay all Ms debts. Knew, however, that he was tangled up with the Harris Lumber Company. He knew that Harris was needing some money and thought that to buy the property for $1,500 was a bargain. He had never seen the property. He gave Harris a check on the Citizens Bank for $1,500. At that time he could not say whether he had only about $165 to his credit or not. He had not noticed his account. He did not have any agreement in advance with the bank as to honoring this check for $1,-500. He had never overdrawn before to that amount. He made no arrangements with the bank to cash tMs check, any more than it was understood'that he would overdraw and that his checks would be honored. He didn’t pay any interest on the amount. The bank never made any demand on him for any interest.
It was unusual for him to give $1,500 for property he had never seen. The explanation he gives as to why he bought it is as follows: “I had a daughter that had a boy she wanted to keep in school, 'and she talked about moving to Arkadelphia where she could keep him in school there and buy some property there. There was some property over in Harrison we had a mortgage on, and we thought maybe we could swap this ArkadelpMa property, and we thought my daughter,. Mrs. Blackburn, would move there. Mrs. Blackburn and the boy had seen the ArkadelpMa property, and I thought I would dispose of the property in that way. I thought I could sell it to Mrs. Blackburn. I expected to turn it over to Mrs. Blackburn and let her make the trade. She went and looked at the property. I think the owner of the house in Arkadelphia went to Harrison and looked at that property, and they hammered around and could not trade. So that stopped that part of it. There was nothing more to that. Then Mrs. Blackburn was trying to buy some other property and move to Arkadelphia, and about that time Harris came to me to sell this, and we made the trade. Mrs. Blackburn was then clear out of the notion, and that left it on my hands. * * * I suppose I gave Harris this check in payment for the land when the deed was delivered. I might have given him the check a day or two before that; I don’t remember. The check paid for the land. I closed it out with very little negotiations any way. Thought if I could locate Mrs. Blackburn, that it was a bargain. Didn’t know at the time I bought the property that Harris was financially embarrassed, and that he was selling at a sacrifice. I was going on what he said. He said it was a bargain on the land, and that he needed some money, and from what I heard about the property, I thought it ought to be well worth that. He didn’t promise to make good any loss I might sustain. Didn’t have any agreement as to loss. I kept the property a few months and sold it for $1,500. I lost interest on my money for several months, unless I got a little rent on it. Don’t think I collected any rents. No one particularly was looking after the property for me. McMillan was the man I sold the property to. I negotiated the sale. I didn’t find it such a bargain as I thought. I didn’t do what I expected. I bought it whether I was going to make anything or not. The price I sold for was paid by check payable to me. I deposited the check in the Citizens Bank; don’t remember about what date it was. I might have consulted Harris about things. I just had the $1,500 at the Citizens Bank on deposit and got credit for it, and maybe went and drew on it, or it might have been held there for a while. Don’t remember when I received this check; it was a little later than the check I paid for the place with, if I mistake not.”
The testimony of the cashier of the Citizens Bank, of Junction City, was, in substance, to the effect that on March 1, 1911, Gr. T. Hale, who was a customer of the bank, had a balance to his credit of $165.22, and on March 15, $164.07. At no time during the month of March did he have as much as $1,500 to his credit. About $500,- or a little over, was the highest balance he ever had during the year 1911. He had an overdraft of $8.20 which appeared June 9 and continued until November 16.
The cashier didn’t remember who presented the check of Hale for $1,500, but Mrs. D. F. Harris, wife of D. F. Harris, was credited with it March 15, 1911. The check was not credited to Harris’ account. It was carried as a cash item. The bank occasionally carried checks as cash items. The rule was to charge the drawer, except on special occasions. The special occasion this time that caused the bank to carry it was that Doctor Hale didn’t have the money. The check was carried several months before he took it up. The bank got no interest for that time. The $1,500 was subject to check by Mrs. Harris while carried as a cash item. The bank had no agreement that the check should remain in the bank until Doctor Hale took up the $1,500 cash item. There was no collateral security put up by Hale for the $1,500. The cash item was carried from March 15 until August 28, 1911. Then the item was charged to his account and carried as an overdraft until September 12,1911. The overdraft of $1,500 was paid by his giving the bank a draft for $1,500 that was entered for collection and paid September 12, 1911. No interest was paid on the overdraft. The bank was not necessarily out of the interest as Hale still had an account with the bank. The cashier stated that he carried the $1,500 as a cash item himself. Doctor Hale agreed to take it up in a few days. Six months was a long time to carry an item that way. ' During the time the cashier had a conversation with Doctor Hale, in which Hale said he was arranging to take up the $1,500 overdraft in the sale of the property. The cashier had no conversation with Harris as to carrying the cash item; the only way he talked to him was about the property. Harris told the cashier that Doctor Hale had a deal on, and if he consummated the deal — the $1,500 was actually placed to Mrs. Harris’ credit, and she was free to draw on it. That was the same $1,500 Gr. T. Hale gave check to Harris for. Hale had "done business with the bank for many years. He had been a stockholder since its organization, and the cashier stated that Hale had the confidence of the bank. During the time that- the bank was carrying the check as a cash item, Hale, five or six times, asked about how his credit stood. He asked whether or not any money had been deposited to apply on what he owed for this $1,500 check. He didn’t say who he expected to deposit the money to cover the check, or how it was to be paid. Every time he asked about his account, the cashier called his attention to the fact that his account was overdrawn, and that the overdraft did not include the $1,500 check.
Without going into detail in discussing the above facts, arguendo, we are of the opinion that they clearly show that the conveyance from Harris to Hale was for the purpose of defrauding Harris’s creditors, and that Hale participated in such fraud. But if we are not correct in that, certainly the facts and circumstances were sufficient “to put a man of common sagacity upon inquiry, and with the use of reasonable diligence, to lead him to the discovery of the fraudulent purpose of the vendor,” and Hale, having neglected to make inquiry that would have enabled him to discover the fraud, is, charged with notice thereof, and-must be held to have assisted Harris in carrying out his fraudulent purpose. Dyer v. Taylor, 50 Ark. 320. The facts bring this case well within the doctrine announced by this court in the above case and numerous other cases. See, Bryan-Brown Shoe Co. v. Block, 52 Ark. 459; Adler-Goldmcm Com. Co. v. Hathcock, 55 Ark. 579; Rosewater v. Schwab Clothing Co., 58 Ark. 453.
We are of the opinion that a clear preponderance of the evidence shows that the conveyance was made for the purpose of enabling Harris to appropriate the $1,500 to his own use in fraud of his creditors, and that the facts and circumstances are such as to make Hale a participant in the fraudulent purpose of Harris, or, at least, to make him chargeable with the fraud.
2. The next question is, did the appellant, by its levy on the property in controversy under the order of general attachment, acquire a lien which a court of chancery will enforce against the appellees?
This court, in Doster v. Manistee National Bank, 67 Ark. 325, held that under the statute giving a judgment-creditor a lien on the real estate ‘ ‘ owned by the defendant in the county in which the judgment is rendered” (Kirby’s Digest, § 5152, 5153), a judgment is not a lien upon land which the judgment-debtor, prior to the rendition of the judgment, had conveyed in fraud of his creditors. In that case the court said: “Where a debtor has fraudulently conveyed his real estate before any judgment is rendered against him, or hás procured same to be fraudulently conveyed to another, he is not in any sense the owner of such real' estate, nor is he thereafter seized in law or equity of such real estate, nor is the grantee seized for his use. The authorities generally recognize the fact that a deed to land, although fraudulently conveyed, carries the title of the grantor.”
In that case we further held that a fraudulent conveyance is not void absolutely, but conveys the legal title, subject to the creditor’s right to avoid it for fraud.
Section 360 of Kirby’s Digest provides that an order of attachment “binds the defendant’s property in the county in which it might be seized under an execution against him from the time of the delivery of the order to the sheriff or other officer.”
The appellees contend that the words “real estate owned by the defendant” in the judgment lien statute (Kirby’s Digest, § 4438), and the words “defendant’s property” and “property of defendant” in the attachment lien statute are, in legal effect, precisely the same, and that under the doctrine in Doster v. Manistee National Bank, supra, the appellant Acquired no lien by virtue of its attachment because before the issuance of the order of attachment the property in controversy had been conveyed to the appellee Hale.
Conceding the correctness of the contention of the appellees that the language of the above statutes is the same in legal effect it by no means follows that the appellant did not acquire a lien on the property in controversy by virtue of its levy of the writ of attachment. In Doster v. Manistee National Bank, supra, while holding that there was no statutory judgment lien on the lands which had been fraudulently conveyed before the rendition of the judgment, we distinctly recognized the rule that a lien might be fixed by the levy of an execution on lands which had been fraudulently conveyed by a debtor prior to the rendition of a judgment against him. On this point, in the Doster case, above, we said: “We must discriminate properly • between the statutory judgment lien and the lien acquired by virtue of an execution issued under a general judgment.” And, quoted from the Supreme Court of Pennsylvania as follows: “A lien is, indeed, a necessary and inseparable incident of seizure in execution, except where the execution is merely instrumental in enforcing a prior and superior lien by judgment.” And from Herman on Executions, p. 265: “Where the judgment is a lien .on land, there can be no independent lien acquired by the issue of an execution. But where the land is seized by virtue of a judgment, which is no lien, the execution becomes a lien.”
In the later case of Ward v Sturdivant, 81 Ark 78, this court, with reference to the Doster case, said: “One reason for holding that a judgment was not a lien in such case is that where .a creditor 1ms obtained judgment, but taken no steps to attack the fraudulent conveyance, or to subject the property conveyed to his judgment, innocent parties might be misled into dealing with such property as the property of the fraudulent grantee, and might be exposed to injury if a judgment was held to be an absolute lien in such cases. But that reason does not apply where the creditor not only recovers a judgment, but levies an execution upon the property and sells it as the property of the fraudulent grantor; for that conclusively shows that the creditor has elected to treat the conveyance as void, and to subject the property to his debt.”
In Ward v. Sturdivant, supra, we held that a judgment-creditor who has levied upon and purchased at an execution sale -land fraudulently conveyed by the debtor previous to the rendering of a judgment can recover pos session of the land without first going into equity, to set aside the fraudulent conveyance. In the recent case of Sears v. Setser, 162 S. W. 1083, 111 Ark. 11, we reiterated the doctrine of Doster v. Bank, and Ward v. Studivant, supra, holding that: “A judgment is not a lien upon land which the judgment-debtor had previously conveyed to defraud his creditors, such conveyances not being void, but only voidable, and there is no lien on it until the levy of an execution on it. ’ ’ These cases, by analogy, rule the present case. Here the appellant not only had its writ of general attachment issued, but had the same levied upon the property in controversy as the property of the appellee Harris. It acquired a lien on the property by virtue of the levy of the attachment, which lien, by analogy to the doctrine of the above cases, it had the right to enforce as against the fraudulent grantee Hale, by treating the property, notwithstanding the fraudulent conveyance, as the property of the vendor Harris. This the appellant has done by this suit to set aside the fraudulent conveyance and asking that the lien be enforced by a sale of the property to satisfy appellant’s judgment.
3. Appellees McMillan and Taylor are not innocent purchasers for value. They had notice of the lien acquired by appellant by virtue of the levy of the writ of attachment, under the provisions of the lis pendens statute (Kirby’s Digest, § § 5152 and 5153), which were fully complied with. The evidence also tends to show that appellee, Mrs. Taylor, had actual notice. See, Shinn on Attachments, § § 54-87.
4. The chancery court having acquired jurisdiction for the purpose of setting aside the fraudulent conveyance, should not only grant the relief prayed for in that respect, but should proceed to enforce the lien by ordering the land in controversy sold to satisfy the judgment in favor of appellant. The chancery court, having assumed jurisdiction for one purpose, will retain it for all and grant a,11 the relief, legal or equitable, to which the parties are entitled. See, Apperson v. Ford, 23 Ark. 746; Apperson v. Burgett, 33 Ark. 328; Cribbs v. Walker, 74 Ark. 104; Dugan v. Kelly, 75 Ark. 55; Dickinson v. Arkansas City Imp. Co., 77 Ark. 576.
5. Appellees McMillan and Taylor, in their cross complaint, prayed for judgment against Hale in the sum of $1,500, provided the deeds were cancelled. We are of the opinion that they are entitled to such relief, and that judgment should be entered for them against appellee Hale in said sum, with interest from the date that same was paid by McMillan to Hale. While McMillan and Mrs. Taylor had notice of appellant’s, lien, they did not participate in the fraudulent conveyance, and as against Hale, are entitled to relief.
The court erred in its decree. The same will be reversed, with directions- to enter a decree in accordance with this opinion, and for such further proceedings as may be necessary, not inconsistent herewith. | [
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Jim Johnson, Associate Justice.
On August 26, 1961, a petition in the matter of the Contempt of J. L. Tupy was filed in the Newton County Circuit Court by the prosecuting attorney. On August 28, 1961, Judge Woody Murray, the Circuit Judge of Newton County, issued a citation to the appellant, J. L. Tupy, to show cause why he should not be found in contemnt of that court for statements published by him in a pamphlet entitled “Inside Information About Wrong Doings of Election Commissioners and County Judge of Newton County, Arkansas.” A hearing was held on the citation September 5, 1961, with the court finding 'Tupy guilty of contempt and fixed his punishment at a fine of $25.00 and ten days in jail. The jail sentence was suspended upon his good behavior. The conviction is here for review by writ of certiorari.
Tupy admitted that he was the individual who took the galley sheets to the printer and picked them up and mailed and distributed more than 2,300 slick copies of the pamphlet in question. The objectionable portions of the pamphlet are as follows: At page seven the following language appears — “Because in our opinion the Grand Jury of March 6, 1961, was a set-up. Read end part of accompanying Affidavit, March 17, 1961, where Judge Murray is alleged to have selected the Grand Jury Commissioners on recommendation of Newton ‘County Courthouse Officials’ in defiance of the rule that creditable electors be consulted for that purpose. County Courthouse Officials’ include persons whom we have asked to be indicted.” The affidavit referred to above appears at page 17 of the pamphlet and reads as follows:
“The undersigned, Hugh Sparks, H. W. McCraw and J. L. Tupy, all members of the Citizens Committee of Newton County, hereby do solemnly affirm the truth of the following: That at 11:45 a.m. of March 10, 1961, they visited the Honorable Woody Murray, Judge 14th Circuit of Arkansas, in his chambers in the Boone County Courthouse, Harrison, Arkansas, where he told them, among other things, that the Resolutions adopted by the Newton County Grand Jury on March 9, 1961, of which a certified copy was supplied the Citizens Committee by Howard Norton, County and Circuit Clerk, was not an Order of the Court, and that they were not enforceable nor valid at law; and that in his selection of the Jury Commissioners for choosing the panel of Grand Jurors, from which 16 were sworn in on March 6, 1961, he made the selection on advice of County Courthouse Officials of Newton County.”
At page 19 of the pamphlet the following appears: “We believe that justice in this matter is being denied the citizenry of Newton County because of:
(a) A Set-up Grand Jury;
(b) The sterile legerity of the Prosecutor (who is supposed to be the Citizens’ attorney);
(c) and a seeming complot to white wash the accused.”
The primary question presented here is whether the pamphlet tended to interfere with the orderly conduct of the judiciary.
In the very early case of State v. Morrill, 16 Ark. 381, this Court said:
“Any citizen has the right to publish the proceedings and decision of this court, and if he deem it necessary for the public good, to comment upon them freely, discuss their correctness, the fitness or unfitness of the judges for their stations, and the fidelity with which they perform the important trust responsed in them, but he has no right to attempt, by defamatory publications, to degrade the tribunal, destroy public confidence in it, and dispose the community to disregard and set at naught its orders, judgments, and decrees. Such publications are an abuse of the liberty of the press, and tend to sap the very foundation of good order and well being in society, by obstructing the course of justice. If a judge is really corrupt, and unworthy of the station which he holds, the constitution has provided an ample remedy, by impeachment or address, where he can meet his accuser face to face, and his conduct may undergo a full investigation. The liberty of the press is one thing, and licentious scandal is another. The constitution guarantees to every man the right to acquire and hold property, by all lawful means but this furnishes no justification to a man to rob his neighbor of his lands or goods.”
The petitioner, in his response, said that he had no design to impugn the Court’s integrity by the distribution of the pamphlet. This same allegation was made and discussed in Lancaster, Ticer and Trevathan v. State, 208 Ark. 412, 186 S. W. 2d 673, as follows:
“It is also inissted that there was a purge of contempt by defendants, when by their sworn responses, they alleged that the language did not, could not, and was not intended to refer to the circuit court of Stone County. Defendants say that they are absolved by this statement under oath, which should have been taken and accepted as true by the court. If the language used in the circular is fairly susceptible of different interpretations, defendants’ contention should be sustained. The rule which this court has followed is laid down in 17 C. J. S., p. 109 as follows: ‘ Thus it is frequently held in cases of indirect criminal contempt where the acts charged are ambiguous and capable of two constructions that a disclaimer of intent under oath is conclusive and entitles defendant to a discharge. However, a defendant is not entitled to a discharge on filing a disclaimer of intent under oath if the contempt relied on as constituting the offense amounts to a contempt regardless of want of intention . . . Further, a sworn disclaimer of intent is unavailing even in cases where intention is an element of the offenses charged, if the alleged contemptuous acts are unambiguous and subject only to the one reasonable construction that a contempt was intended.”
The facts are undisputed that the petitioner, J. L. Tupy, distributed over-2,300 copies of the pamphlet in question in the State of Arkansas. Thus, the question arises whether the statement in the pamphlet “in our opinion the grand jury of March 6, 1961, was a set-up” is susceptible of different interpretations.
As we view the matter, this statement implies some fraudulent act connected with the Circuit Court in choosing jury commissioners and in choosing members of the grand jury.
It is obvious that this is what the petitioner intended when he refers further to the accompanying affidavit of March 17, 1961, “where Judge Murray selected the Grand Jury Commissioners on recommendation of Newton ‘ County Courthouse Officials ’ in defiance of the rule that creditable electors be consulted for that purpose, ‘County Courthouse Officials’ include persons whom we have asked to be indicted.”
The petitioner primarily bases his argument for reversal and dismissal on Bates v. State, 210 Ark. 652, 197 S. W. 2d 45. That case must be and is hereby limited to its own particular facts and the situation there existing. It is not to be considered a precedent in future contempt cases. However, the controlling language even in that case is:
“Essence is that unless the writing precipitates a clear and present danger, in consequence of which justice will be affected, recourse of the aggrieved person is prosecution for libel.”
But when considered in context, the statement made in the pamphlet by petitioner destroys public confidence in the courts and Grand Juries as such because the statement is to the effect that he cannot obtain justice in the court of Newton County for the reason of a rigged Grand Jury engineered by the Circuit Court which is “a seeming complot to white wash the accused”. It follows, therefore, that these statements create a clear and present danger to the administration of justice. This being true, the judgment is affirmed except for the suspended sentence which is quashed. In contempt actions a suspension is within itself a remission. See Stewart, et al, v. State, 221 Ark. 496, 254 S. W. 2d 55.
George Rose Smith, J., concurs. | [
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Hughes, J.,
(after stating the facts.) In Flower v. Pennsylvania Railroad Company, 69 Pa. St. 210, the facts were as follows: “A train of defendant’s coming into the city, the engine, tender and one car were detached from the remainder, and run, under the charge of the fireman in the engineer’s place, to a water-station belonging to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn . on the water; while he was climbing the tender to put in the hose, the,remainder of the train came down with their ordinary force, struck the car attached to the engine, the jar threw the boy under the Ayheels, and he was killed.” In action by the parents for his death, it was held that, it not being in the scope of the engineer’s or fireman’s employment to ask any one to come on the engine, the defendants were not liable; that the boy, in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him. The appeal in this case was before Justices Agnew, Sharswood and Williams. Judge Agnew delivered the opinion of the court. He said : “Whether the boy could be treated as a mere trespasser is scarcely the question. His youth might possibly excuse concurrent negligence, where there is clear negligence on the part of the company. The true point of this case is that, in climbing the side of the tender or engine, at the request of the fireman, to perform the fireman’s duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. * * * Nor can the mere youth of the boy change the relations of the case. That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy,'but cannot create rights or duties which have no other foundation.”
In Eaton v. Delaware, etc. R. Co. 57 N. Y. 382, it is said that railroad companies have the right to make a complete separation between their freight and passenger business. When this is done, the conductor of a freight train has such general authority only as is incidental to the business of moving freight, and no power whatever as to the transportation of passengers; and notice of this limited authority will be implied from the natural and apparent divisions of the business. “In the great transactions of commercial corporations, convenience requires a sub-division of their operations among many different agents. lOach of these may have a distinct employment, and become a general agent in his particular department, with no powers beyond it,” p. 389.
In Stone v. Hills, 45 Conn. 47, it is said: “The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not in these conditions, the servant alone is responsible.”
In Storey v. Ashton, Cockburn C. J. said: “We cannot adopt the view of Erskine J. in Sleath v. Wilson, that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only-responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.” L. R. 4 Q. B. 476. “Thus, it will be seen that, in the absence of express orders to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment.” Wood’s Law of Master and Servant, 546.
In the case at bar the section foreman was not only not authorized, expressly or by implication, to permit persons to ride on the hand car, but had been expressly forbidden by the rules of the company and otherwise to permit it, and there was no custom to permit persons to ride on the hand car shown to have been known to, or acquiesced in by the officers of the railroad company. “In order that the corporation should be made responsible by reason of such a custom, it was necessary to show that it was actually known to the officials who conducted its business, or that it was so general and of such long continuance that it must be fairly inferred that it was known and assented to by them.” Powers v. Boston, etc. Rd., 153 Mass. 191. Such is not shown to have been the case here. The court deems it needless to set out or discuss the instructions. The court is therefore of the opinion that there is a total failure in this case of evidence to show any liability upon the part of the railroad company. Wherefore the judgment is reversed, and the cause is dismissed.
Wood, J., being disqualified, did not participate in the determination of this cause.
. 9 C. & P. 607, 612. | [
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Hughes, J.
(after stating the facts.) The first and third instructions given for the appellee were ambiguous and misleading, and almost identically the same instructions were condemned by the court in the case of the Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 236, where the court said of similar instructions: “They may be reasonably interpreted to mean that a master is bound to furnish his servants with a reasonably safe place in which to work, and with safeguards against accidents. This is not the law.” It is well settled, said the court, in substance, that when one enters the service of another, he takes upon himself the ordinary risks of the employment in which he engages. On the other hand, the employer takes upon himself an implied obligation to provide the persons employed with suitable instruments and means with which to do his work—when exercising due care himself—safely, or without exposure to dangers that do not come within the obvious scope of his employment.
The seventh and eighth instructions are in contravention of the doctrine announced by this court in St. Louis, etc. R. Co. v. Harper, 44 Ark. 559, where the court said : “ It is not an absolute duty of the master to maintain suitable and safe engines and machinery for ' his servants. There is no warranty that they are safe in the beginning, or that they will be so at any time. The master’s duty is performed if he uses due care and diligence to effect this end, and this is rigidly required of him.” “When there is no notice' to the master of defects, and no blame imputable to him for not discovering them, he is not liable, if injury results to his employee therefrom.” Noyes v. Smith, 28 Vt. 59. “When an injury has occurred to the servant in consequence of machinery furnished by the master, to warrant a recovery the servant must show negligence, or the want of care and diligence by the master, in relation to the defect. The onus of proof is not shifted to the master, as in the case of a passenger injured by a common carrier, by proof of the fact that an injury has resulted from the defect.”
In Little Rock & Fort Smith Ry. Co. v. Eubanks, 48 Ark. 474, Judge Smith, quoting from Patterson’s Railway Accident Law, sec. 284, said: “Railways do not warrant to their servants the safe condition of their line and machinery; and they guarantee only that due care shall be used in constructing and keeping in repair and in operating the line, appliances and machinery.” Little Rock & Fort Smith R. Co. v. Duffey, 35 Ark. 602; Probst v. Delamater, 100 N. Y. 266. Though instructions adopting a different theory to these were given at the request of the defendant, they were contradictory, and not explanatory of those given for the plaintiff, and did not cover the defects in them. “The court should harmonize the instructions, else they are calculated to confuse and mislead the jury.” Selden v. State, 55 Ark. 397.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.
Bunn, C. J., was disqualified. | [
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Riddick, J.,
(after stating the facts). It is first contended that this case had been properly removed to the United States circuit court, that said court erred in remanding it, that therefore the circuit court of Jefferson county had no jurisdiction of the case, and that its decree is void. We need not stop to consider this point, for we are of the opinion that, under the act of congress of March 3, 1887, which controls this question, the order of the United States circuit court in remanding the case was an order from which no appeal or writ of error will lie, and that the jurisdiction of the State court cannot now be questioned. In re Pennsylvania Co., 137 U. S. 451.
It is next contended that the evidence does not show that, at the time the conveyances in question were executed, Neel contemplated contracting the debts to plaintiffs, and that, even if the court should find that said conveyances were voluntary, they would not be fraudulent as to plaintiffs, for they are all, except Jones, subsequent creditors. The chancellor found that the con veyances in question were made without consideration, and, after considering the evidence, we have arrived at the same conclusion. On the question of what circumstances are sufficient to give a subsequent creditor the right to have a prior voluntary conveyance by his debtor declared void, there is much difference of opinion between the courts of the several States. Our own decisions are not entirely harmonious on this question. In the case of Toney v. McGehee, 38 Ark. 427, it was said by Justice Harrison, who delivered the opinion, that “a voluntary conveyance may be impeached by a subsequent creditor, on the ground that it was made in fraud of existing creditors ; but to do so he must show either that actual fraud was intended, or that there were debts still outstanding which the grantor owed at the time he made it.” Afterwards, in Cunningham v. Williams, 42 Ark. 173, it was held, Mr. Justice Smith delivering the opinion of the court, that a subsequent creditor, to impeach a conveyance made by his debtor before the creation of his debt, must show that such conveyance was “made with an intent to put the property out of the reach of debts which he intended thereafter to contract, and which he did not intend to pay, or had reasonable grounds to believe he would not be able to pay.” This case seems to conflict with the case of Toney v. McGehee, supra, but no reference is made to that case by the court in its opinion.
The same question came again before the court in the case of Driggs & Co.'s Bank v. Norwood, 50 Ark. 47, and the opinion of the court was again delivered by Judge Smith. In this case the conflict between the decisions in the two cases above mentioned was noticed, and Judge Smith, after stating the rule that, to avoid a prior voluntary conveyance on the part of his debtor, the subsequent creditor must show actual or intentional fraud, puts this question: “But is it necessary in every such attack to show a specific intent to defraud future-creditors? Or may the transfer be avoided at the suit, of a subsequent creditor, on proof that it was a fraud upon the rights of previous creditors?” He then states, the ruling of the court in both Toney v. McGehee and Cunningham v. Williams, and, without determining the-question propounded, he proceeds to dispose of the case-before him by saying that under either rule the transfer-in question was fraudulent. In the still later case of Rudy v. Austin, 56 Ark. 81, it was said by Mr. Justice-Battle that, as “against subsequent creditors, a voluntary conveyance executed by a grantor in debt at the time is. not void unless actually fraudulent. To make it fraudulent proof of actual or intentional fraud is required.”' The same rule was announced by the court in the case-of Crampton v. Schaap, 56 Ark. 256. In neither of' these two last mentioned cases does the court determine the question asked by J'udge Smith in Driggs & Co.'s Bank v. Norwood, to-wit: ’ “Is it necessary for the subsequent creditor to show an intent to defraud future-creditors, on the part of the debtor making the conveyance, or is it sufficient to show that there was an actual intent to defraud existing creditors?” In this connection counsel for appellees have called attention to our statute in reference to fraudulent conveyances. The-section referred to (3274 of Mansfield’s Digest) is as follows: “Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods, and chattels, or things in action, * * * * made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors, and purchasers prior and subsequent, shall be void.”
In the statute of 13th Elizabeth, and in the statutes-of most of the States on the same subject, subsequent, creditors are not expressly referred to. But it will be no ticed that our statute expressly includes them within its provisions by saying that all such conveyances, “as against creditors and purchasers prior and subsequent, shall be void.”
The rule that, in order for a subsequent creditor to impeach a voluntary conveyance by a debtor prior to the creation of his debt, he must show an actual intent to defraud has been repeated and followed so often by this court that it has become to a certain extent a rule of property which should not be overturned. But, considering these decisions in connection with the statute, we hold that a voluntary conveyance made with an actual intent to cheat, hinder or defraud either existing or subsequent creditors is void as to creditors both prior and subsequent.
A conclusion quite as favorable to subsequent creditors, if not more só than this, has been reached by many of the courts, even when the statute does not expressly include the subsequent creditor within its terms.
In Day v. Cooley, 118 Mass. 527, Morton, J., delivering the opinion of the court, said : “It is well settled that if a debtor makes a conveyance with the purpose of defrauding either existing or future creditors, it may be impeached by either class of creditors.” Citing Parkman v. Welch, 19 Pick. 231; Thacher v. Phinney, 7 Allen, 146; Winchester v. Charter, 12 Allen, 606; Wadsworth v. Williams, 100 Mass. 126. In the old case of Reade v. Livingston, 3 Johns. Ch. 481, Chancellor Kent, following the rule as laid down by the English courts, came to a conclusion on this question very similar to that now followed by the courts of Massachusetts, and Mr. Bigelow, in his work on Fraud, after making an historical examination of the cases upon this question, concludes that the weight of authority in this country is on the side of the English rule substantially as expressed by Chancellor Kent. 2 Bigelow on Fraud, 105; Belford v. Crane, 16 N. J. Eq. 265; S. C. 84 Am. Dec. 156 and note; Bassett v. McKenna, 52 Conn. 437; Wyman v. Brown, 50 Me. 139; Lowry v. Fisher, 2 Bush, 70; S. C. 92 Am. Dec. 475; King v. Wilcox, 11 Paige, Ch. 589; Dewey v. Moyer, 72 N. Y. 70; McLane v. Johnson, 43 Vt. 48; Claflin v. Mess, 30 N. J. Eq. 211; Kirksey v. Snedecor, 60 Ala. 198; Lawson v. Alabama Warehouse Co. 73 Ala. 293; Williams v. Avery, 38 Ala. 118; Hutchison v. Kelly, 1 Rob. (Va.) 130; 1 Am. L.Cas. 44; Hagerman v. Buchanan, 45 N. J. Eq. 292. The cases on this question, which are numerous and conflicting, are collated in a note to the above case of Hagerman v. Buchanan, in 14 Am. St. Rep. 732. We do not undertake to decide what rule the weight of authority on this question supports, for the- peculiar language of our own statute controls us.
The case of Cunningham v. Williams, 42 Ark. supra, holding that the subsequent creditor must show that the debtor made the conveyance with the intent to put the property out of reach of debts which he intended thereafter to contract, seems at variance with our ■conclusion in this case, but there is nothing in the report ■of that case to show that the debtor whose conveyance was attacked owed any debts at the time he made the, conveyance in question. If he made the conveyance while free from debt, then the rule announced by Judge Smith would be correct as applied to the facts of that ■case, for where one owing no one makes a voluntary conveyance of his property, then the subsequent creditor, in order to set it aside, must show that the conveyance was made in contemplation of future debts, and with a ■view to put his property beyond the reach of future ■creditors, for there would be no possibility of showing an intent to defraud an existing creditor if none existed. The rule was rather too broadly stated in that case, and seems to conflict with our own statute.
This section of our statute, while different from that of most of the States on the same subject, is very similar to a section in the statute of Missouri. In a recent case-before the Supreme Court of that State, Mr. Justice-Sherwood, who delivered the opinion of the court, after-quoting the statute, said: “It will be observed that the statute makes no distinction between the two classes of creditors, and that it is unlike 13 Elizabeth, chapter 5, in that it specifically mentions subsequent creditors,, something which the English statute does not do.” Under our statute, he adds, “subsequent creditors are as-much within its protection as prior creditors.” Snyder v. Free, 114 Mo. 367.
While it is now settled by the repeated decisions of this court that actual fraud must be shown to avoid a. voluntary conveyance in favor of a subsequent creditor, yet by this is meant only that, as to the subsequent credit- or, an intention to defraud must be proved, while, as to-the existing' creditor under the same circumstances, it. may be presumed, even though the transaction be entirely honest. Thus in Belford v. Crane, 84 Am. Dec. 156, in a case where a husband, engaged in business and involved in debt, made a voluntary settlement on his wife, it was-said that, as against existing creditors, “it was fraudulent, no matter how pure the motive which induced it and in same opinion it was said “that as to subsequent, creditors there is no such necessary legal presumption,, and there must be proof of fraud in fact.” This intention to defraud may be shown by the circumstances surrounding the transaction, as any other fact may be proved.. Direct proof of fraud is seldom forthcoming, and not required. The court will take into consideration the condition and relation of the parties to such conveyances, whether the debtor was, at the time of such conveyance, solvent or in an embarrassed and failing financial condition, the amount of the property transferred as compared with the remainder of his estate, and other circumstances in proof, in order to arrive at the intention of the debtor in making the conveyance. The court will also consider the length of time elapsing between the date of the conveyance and the creation of the debt to the subsequent creditor, for, while it is true that a voluntary conveyance made with an intention to defraud creditors is void as to creditors both prior and subsequent, yet it does not follow that such a transfer may be set aside by any subsequent creditor, however remote the creation of his debt may be from the execution of the conveyance. Even the existing creditor may be refused relief if he delay too long before bringing suit, for, as was said by Chancellor Rose in the case of Cunningham v. Brumback, 23 Ark. 338, the law wisely holds that “it is better that ancient wrongs should go unredressed than that ancient strife should be renewed.” So the courts will properly refuse to interfere with such conveyances in behalf of subsequent creditors when they are not merely colorable, and have been long acquiesced in; or when the length of time elapsing between the conveyance and the creation of the debt, taken in connection with other circumstances in proof, is sufficient to raise a belief that the plaintiff was not injured or defrauded by the conveyance. Each case must depend upon its own surrounding circumstances.
Rooking at the circumstances surrounding the conveyances complained of in this case, we find that Neel, while heavily in debt and in embarrassed financial condition, owing over three hundred thousand dollars, with assets not greatly exceeding that amount, made voluntary conveyances to his nephew and his sister of land embracing a valuable portion of his estate. Deducting the property thus conveyed, he was left practically in solvent. After the conveyances were made, he still used the property as his own, placing expensive and valuable improvements upon it. At the time these conveyances were made he was engaged in large business enterprises, running a bank, building and operating a railroad, buying and selling and cultivating many farms and doing this immense business mostly on a credit basis, compelled each year to borrow large sums of money. He continued in this business with debts steadily increasing down to the time of his failure, which occurred in November, 1886, less than two years after these conveyances were made. While it may be possible that Neel’s intentions were honest, yet the evidence points the other way, and with these circumstances in proof we think the chancellor was right in finding that there was an intention to defraud, and that the conveyances were void as to both prior and subsequent creditors.
There were other points raised, but we find it unnecessary to discuss them.
Bunn, C. J., did not participate in the decision of this cause. | [
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Wood, J.,
(after stating the facts.) 1. Neither the . . deed of assignment, nor the claim of exemptions thereto attached, justifies the conclusion that there was a withholding of any real estate by the assignor. The granting clause of the deed is all-embracing as to the earthly possessions of the assignor, “except what are exempt to him by the laws of the State of Arkansas.” The lands conveyed were specifically described in the deed and schedule, and the land claimed by the assignor as' a homestead was included.
The law, upon the evidence of the assignor, determines that the lands claimed as a homestead were never so impressed, and therefore are not exempt. Hence the title passed absolutely to the assignee. The language of the granting clause is unambiguous, and should be held to mean what it says. Only property “exempt” was reserved. This property was not exempt. Therefore, this property was not reserved. Nothing could be plainer. . This is not a case of conveying all in the deed, and at the same time secretly or intentionally withholding a portion for the debtor’s benefit. All was conveyed by the definite description, and this, so far as the deed itself, and the claim of exemptions thereto attached, is concerned, argues most strongly the good faith and honesty of the transaction.
But if the land claimed as a homestead was in fact reserved, it would not follow that there was an intentional withholding of valuable assets to defraud creditors. Appellee contends that Gnthrie knew, or should have known, that the land claimed was not exempt. Suppose he did. If withheld, it was not exempt from the claims of creditors ; and, this being so, the assignor could hardly have adopted a more effectual method of inviting anxious creditors to subject it to their demands. It was “conspicuously pointed out” to creditors in the deed, and is a cogent reason for saying there was no fraudulent withholding. A reservation of the kind mentioned would not invalidate the assignment. German Bank v. Peterson, 35 N. W. 47; Ingraham v. Griggs 13 S. & M. 22; Carpenter v. Underwood, 19 N. Y. 520; Baldwin v. Peet, 22 Tex. 709; Heckman v. Messinger, 49 Pa. St. 465; Knight v. Waterman, 36 id. 258; Goll v. Hubbell, 61 Wis. 293; First Nat. Bank v. Hackett, id. 335; Dodd v. Hills, 21 Kas. 707.
The seventh instruction, therefore, which told the jury “that the land claimed by Guthrie as a homestead should not have been reserved from the assignment, and such a reservation would render the assignment fraudulent and void,” was erroneous and prejudicial. This disposes also of the eighth.
2. The third and ninth were likewise erroneous, . # abstract and misleading*. There was no proof whatever that the assignee took possession of any of the property assigned before filing his inventory and bond. The only proof upon the subject is to the contrary. The assignee testified that he did not take possession of any of the property until after he had filed his bond and inventory. He brought replevin for some mortgaged property, but did it because he apprehended the mortgagor was about to make way with it. Never got possession of it. He assisted the assignor, at his request, in making his inventory attached to the deed, and copied from it. Knowing that said inventory was correct, he advertised the property for sale after he had filed his bond, and while he was making the inventory. The assignor testified that the assignee made and filed his bond as such assignee, and was making his inventory, when, before it was completed, and before assignee had received possession of the property, the attachments were levied. Instructions, therefore, assuming that the assignee might have committed a fraud in taking charge of the property or executing the trust were abstract and prejudicial. They were likewise erroneous in assuming that any conduct of the assignee subsequent to the execution of the deed of assignment would render it void. Hempstead v. Johnson, 18 Ark. 124; Cornish v. Dews, id. 172; Lowenstein v. Finney, 54 Ark. 124; Excelsior Mfg. Co. v. Owens, 58 Ark. 556; Burrill on Assignments, sec. 320, p. 440.
Of course the requirements of the statute must be pursued where parties make and undertake to carry out an assignment under it. And, as has been held by this court, the assignor must not deliver, nor the assignee take possession of, the assigned property in pursuance of a contemporaneous agreement, whether parol or expressed in the deed, before inventory and bond are filed. Such conduct will vitiate the assignment. Smith v. Patterson, 57 Ark. 537; Gilkeson-Sloss Com. Co. v. London, 53 Ark. 88.
3. The court in the sixth instruction for appellee told the j ury ‘ ‘ that if the property assigned belonged to a partnership of which Guthrie was a member, he would have no power to assign it, and their verdict should be against the interpleader.”
. In addition to the facts already appearing in the statement as to the partnership, a letter of Baer, Seasongood & Co., dated September 21, 1891, to S. G. Guthrie & Co., asking of said company a statement of its. business affairs, was introduced; also the statement made in response to said letter. After setting out the various items, in answer to the questions propounded, the statement concludes as follows : “The above statement, both printed and written, has been carefully read by us, and is a full and correct exhibit of our financial condition, which we make for the purpose of obtaining credit from Baer, Seasongood & Co., St. Gouis, Mo., for merchandise which we may now or hereafter purchase from them. (Signed) S. G. Guthrie & Co., by Guthrie, a member of the firm.”
S. G. Guthrie testified as to the partnership as follows: “ About February, 1891, I offered to take in as partners J. W. and W. G. Hastings, if they would put in three or four thousand dollars. They assented, provided I could use their promissory notes for that amount with my merchants; but, not being able to use them, I returned the notes to them in four or five days after I received them. It was still agreed that they should become my partners the next fall by putting in ■ the amount agreed on, and that in the meantime I should use their names. I did so until about the 10th of October, 1891, when they told me they could not raise the money, •and could not become my partners, and requested me to use their names no more. They were never in fact my partners. They never contributed a cent of capital, never received or claimed any interest in the business, and never took anything from it. They were my customers, and I kept accounts against them as against my ■other customers, and collected them in the same way.”
It is unnecessary for us to discuss the question as to whether a partner has the right to make assignment of all the partnership assets to a trustee for the benefit of creditors with preferences, in his individual name and without the assent of his copartners. It may be conceded, and has been decided by this court, that such a thing cannot be done; that “ an assignment of all the effects of the partnership, including the means necessary for carrying it on, is not within the scope of a partner’s implied powers.” Drake v. Thyng, 37 Ark. 228.
The appellee assumes that there was a partnership. There is no proof of one. The fact that appellees sued S. L. Guthrie, J. W. and G. W. Hastings, and obtained judgment against them under the firm name of S. L. Guthrie & Co., and that the attachment was issued and levied upon the property in controversy as the property -of the firm, did not establish the fact that the partnership existed, or that the property levied upon was its property. The record does not show that such an issue was raised in the action for debt. It is not shown that either of the Hastingses filed an answer. Whether the judgment was obtained against them by default, or otherwise, does not appear. They are not here complaining. The testimony of S. L. Guthrie, uncontradicted, ■shows that they had no interest whatever in his business, did not contribute to the capital of the business, and never received anything from it. He explains how their names were used, and that, after the 10th of October, 1891, he, at their request, and upon their failure to-comply with the conditions upon which they were to form a partnership, ceased to use their names any more. So-that, if the partnership ever existed, the proof is that it had ceased long before this assignment was made. The most that could be claimed upon the proof on the partnership question is that it was a mere holding out—not an actual partnership inter sese—and, such being the case, there was nothing to inhibit Guthrie from making-the assignment. He was the real owner of the business. 17 A. & E. Ene. p. 1046, U.; Whitworth v. Patterson, 6 Lea, 119; First Nat. Bank v. Hackett, 61 Wis. 335.
4. The statement signed “ S. L. Guthrie & Co., by S. E. Guthrie, a member of the firm, ’ ’ was admissible. It was a statement, as the proof shows, of Guthrie’s assets-but a few months prior to the assignment, and was made out by Guthrie himself, though in the firm name, as a. basis of credit. It tended to’ show the existence of a. partnership at the time it was made.; and, as what is-once shown to exist is presumed to continue until the contrary appears, it was admissible to go to the jury for the purpose of showing a partnership, and was subject to any explanations that could be made of it. The man who made it fully explained it. 1 Greenleaf, Ev. 41.
It is not necessary to discuss the propositions of law presented by appellant and refused. For the error indicated the judgment is reversed, and cause remanded. | [
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Wood, J.
Appellant was charged with murder in the first degree, convicted of murder in the second degree, and sentenced to the penitentiary for five years. The defense was insanity. Deceased was the husband of appellant, and, if she was sane, the crime was most unnatural and diabolical. As we would not disturb the verdict from the evidence presented by this record, no good purpose could be subserved by setting out the details of the shocking transaction. If the appellant was insane, the proof tended to show that her insanity was superinduced by the cruel and inhuman treatment by deceased of her and of their children. The evidence on the question of insanity, on the part of the defense, was confined to a period of eight or ten years before the murder, and much proof was had as to her eccentricities and strange conduct during all that time. Suffice it to say that she seemed to have been brooding over family troubles growing out of the ill treatment of herself and children by her husband, and her manner and conduct was so peculiar and unnatural as to impress many of her neighbors, and others who saw her, that she was insane. Others were not so impressed, but thought her sane. Experts pronounced such conduct as disclosed by the record as that of an insane person. The verdict of the jury on all these controverted questions must be taken as conclusive, since there was evidence legally sufficient to support it. Williams v. State, 50 Ark. 511. Appellant insists upon reversal here for only three of the sixteen assignments of error in the motion for new trial.
1st. Because the court erred in refusing to give instructions numbered two and four as asked for by the defendant.
2d. Because the court erred in permitting the State to prove, by David Summers, J. A. Alexander and G. D. Painter, the life and relations of the defendant some twenty years ago in the State of Tennessee, and that she had separated from a former husband in said State.
3d. Because the court erred in permitting the State to prove by M. H. Patterson statements of the deceased, G. N. Green, made to him on Monday morning after he had been injured on Friday night, which statements were in part made in the absence of the defendant.
1. There was no error in refusing to give the prayers asked. This court, through Justice Hemingway, in the cases of Bolling v. State, 54 Ark. 588, and Smith v. State, 55 Ark. 259, treated the questions presented by these requests exhaustively, and announced the law applicable in such cases. We find nothing new calling for our discussion. The law declared by the court in this case is in harmony with the doctrine of those cases. The rejected prayers, if applicable at all to the facts proved, were covered by the seventh given at the instance of the State and the third given on behalf of defendant.
2. David R. Summers, over the objection of the dedefendant, testified that he knew the defendant about twenty years ago in Rutherford county, Tennessee ; that she was then married to one Phelps, and had three children ; that Phelps moved to Nashville, but the defendant soon returned with the children ; that, shortly after this, she and the deceased, Green, disappeared, and witness carried her children to Phelps at Nashville. The testimony of the other witnesses objected to was substantially the same as this.
In Clinton v. Estes, 20 Ark. 219, where the question under consideration was the mental capacity of a party to make a contract at a particular time, Chief Justice English said: “To determine the mental capacity of an individual at a particular time, it is often necessary to inquire into the state of his health, his appearance, conduct, habits, etc., for some time before and ■after the period in question. No absolute rule, limiting the extent of the examination to fixed periods, can therefore safely be laid down, in consequence of the variety of cases which occur.” This is applicable also to criminal cases. Where the issue is insanity, the examination of witnesses may take the widest range, going into the personal history of the defendant for any number of years prior to the commission of the act for which he is accused, showing temper, character, disposition, etc. And if it appears that the insanity alleged is hereditary, the inquiry may extend even beyond—to the ancestors and collateral relations of the defendant, if so near in blood as to indicate that the insanity of which proof is made may have been transmitted. Buswell on Insanity, p. 249; People v. Garbutt, 17 Mich. 10; United States v. Holmes, 1 Clifford, 98.
But this broad statement of the rule is, of course, subject to the salutary limitation which must govern in the production of all evidence, i. e., “the evidence must tend to prove the issue.” 1 Greenleaf, Ev. sec. 51.
Had the evidence on the question of insanity covered the whole of defendant’s life, it would have been perfectly legitimate for the State in rebuttal to have gone ■ over the same ground, and to have show nany acts tending to prove sanity. But the inquiry on behalf of defendant was directed only to a period of eight or ten years antedating the killing. It is not shown that defendant gave any evidences of insanity before that time. Sanity .is the normal condition, and will be presumed until the contrary is proved. The only effect of this testimony, so far as the question of insanity is concerned, was to show that defendant was sane twenty years before, at a time when the law itself presumed her sanity. 1 Wharton & Stille’s Med. Jur. sec. 247 ; Sayres v. Com. 88 Penn. St. 291; United States v. Holmes, 1 Clifford, 98, and authorities there cited.
The testimony of these witnesses did not even throw a glimmer of light upon the condition of defendant’s mind at the time of the killing, and was wholly disconnected with any circumstance that did. It was therefore irrelevant, and should not have been admitted for any purpose. If the defendant was sane, the isolated fact that, twenty years before, she had abandoned her husband and three children for a liaison and marriage with another man, could afford no explanation of her conduct in killing that man.
What was the most probable and natural effect of such testimony with the jury ? It revealed a character wanting in virtue, oblivious to social refinements, and forgetful of the obligations of the marital state. Evidence of such moral obliquity could only tend to degrade the defendant before the jury, and prejudice their minds against her. We can not say, with this evidence before the jury, that the legitimate proof received that impartial consideration to which the accused was entitled.
3. The statements of deceased to the sheriff were not prejudicial to appellant.
For the errors indicated, the judgment is reversed, and the cause remanded. | [
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Battle, J.
On the 27th of October, 1887, C. H.. Ferrell & Company delivered to the Louisville & Nashville Railroad Company, at Humboldt, in Tennessee,, five boxes of fruit trees and plants, to be carried, delivered and forwarded to G. W. Dodd and W. W. Burnwath, at Hackett City, in this State, upon the following conditions: (1) The Louisville & Nashville Railroad Company, and the steamboats, railroad companies, and forwarding lines with which it is connected, and which received said property, should not be liable for loss by fire; (2) The contract of shipment should be executed, and the liabilities of “the companies,” as common carriers thereunder, should terminate, “as to the forwarding carriers, respectively, on delivery to the next connecting carrier, and, as to the delivering carrier, on the arrival of the goods or property at the station or depot of delivery ; and (3) the delivering company should be liable as a warehouseman thereafter;” and (4) it was “distinctly agreed and understood that the consignee or consignees should promptly receive and take away the fruit trees and plants as soon as the same were ready for delivery.” The property was shipped under this agreement, and was received by the St. Louis & San Francisco Railway Company as a connecting carrier, and carried by it to Hackett City, and was stored in its warehouse for delivery to the consignees, on the 4th and 7th days of November, 1887; and while in the warehouse, and on the 13th day of the same month, between 6 and 7 o’clock p. m., were consumed by fire.
On the 24th of September, 1888, Dodd & Burnwath brought an action against the St. " Louis & San Francisco Railroad Company to recover the damages sustained by the loss of the trees and plants. They alleged in their complaint that the trees and plants were delivered, as before stated, to be shipped to them at Hackett City, “a point on the railroad line of the defendantthat “the Louisville & Nashville Railroad Company, and its connecting lines', which connected with the defendant under an operating arrangement for through shipment of freight, as common carriers, in due course of transit, after delivery as aforesaid, delivered the trees and plants to the defendant, * * * as a common carrier, to be by it transported thence on its line to Hackett City, Arkansas, and there delivered to the plaintiffs that the defendant received the trees and plants “from the Louisville & Nashville Railroad Company and its connecting line as aforesaid, and undertook to transmit them over its lines as a common carrier, and to deliver them to plaintiffs; and that it has never delivered them to plaintiffs, or any one for them, to their damage.’’ The defendant, in its answer, specifically denied all these allegations.
In the trial of the issues the facts were proved as-we have stated them; and evidence was adduced tending to prove the following : The trees and plants were the property of plaintiffs, and were of the value of $800.. The defendant’s depot at Hackett City, in which they were stored at the time they were consumed by fire, was very near its railway track. Two hundred bales of cotton, which had been received by the defendant for shipment, and for which it had issued bills of lading, were on the platform and piled around the depot, and were thirty to thirty-five feet from the track. A mixed train of the defendant arrived at the depot on the morning of the 13th of November, 1887, and remained there ten or fifteen minutes. At this time it was very dry, and the cotton was highly inflammable, and without any protection. About ten or fifteen minutes after the departure of the train a fire originated in the cotton, and spread thence rapidly to the depot, and in a short time destroyed it and its contents, among which were the trees of the plaintiffs.
Upon these facts the court instructed the jury, substantially, as follows:
“ The determination of this case turns upon the single question as to whether defendant’s employee or employees at Hackett City were guilty of negligence in the care of the trees, from which negligence the loss occurred.”
“Before the plaintiffs can recover they must prove, by a fair preponderance of the evidence, negligence on the part of the defendant.’’
“Negligence is the want of ordinary care, that is, such care as an ordinarily prudent man would exercise in the place of, and under the same circumstances as, the party charged with negligence.”
“ The fact that the defendant had no watchman at the depot at the time of the burning is not necessarily negligence on its part; it is simply a circumstance for you to consider, for what it may be worth, in determining whether defendant was exercising ordinary care in preserving the trees from loss.”
At the same time the defendant asked the court to instruct the jury, among other things, “that because the defendant did not keep a watchman is no evidence to charge neglect upon the defendant;” and 'the court refused to instruct in the form asked, but did in 'the manner we have stated.
While the jury were considering their verdict, the court, over the objection of the defendant, permitted the plaintiffs to amend their complaint as follows : “Plain tiffs further allege that said defendant company received fruit trees and plants at its depot at Hackett City, and ’. •so negligently and carelessly kept said goods that they were, by defendant’s fault and negligence, wholly destroyed by fire in its depot building at Hackett City, .and so wholly lost to these plaintiffs.”
The jury returned a verdict in favor of plaintiffs against the defendant for $800.15 and six per cent, per annum interest thereon from the 13th of November, 1887, . the day of the fire; and the court rendered judgment accordingly. The defendant saved its exceptions, filed a motion for a new trial, which was overruled, tendered a bill of. exceptions, which was signed, and filed the ■same, and appealed.
1. The first contention of the appellant is, the . . , trial court erred m permitting the amendment of the complaint. The ground of its contention is, the amendment converted the action from an action ex contractu to an action ex delicto. But this was not done. The amendment showed only a breach of the contract that the appellant entered into when it undertook to hold the property of the appellees as a warehouseman. Every warehouseman for hire undertakes to exercise ordinary care and diligence in the preservation of the property intrusted to him. If he fails to use such care and diligence, he is guilty of negligence and a breach of his contract, and is liable for damages.
2. The appellant contends that the court erred in .... , . what it said m its instructions to the iury in respect to a watchman. In support of this contention, it says: ‘ ‘ There was not a word in the testimony directed to the •question of a watchman being employed or not employed. There was no allegation or proof directed to this point. There was absolutely nothing to apprise defendant that negligence would be insisted upon for the reason that no watchman- was employed, and yet the court takes this single circumstance in the case, and! directs the attention of the jury to it, and from the-instructions given the jury doubtless concluded that they were authorized to infer negligence from this circumstance.” In attacking the instructions of the court in this manner, the appellant obviously failed to call to" mind that it asked the court to instruct the jury “ that because the defendant did not keep a watchman is no-evidence to charge neglect upon the defendant.” It virtually conceded that no watchman was employed, and the court, in response to its requests, told the jury that fact was not necessarily negligence, but a circumstance-for them to consider, for what it was worth, in determining whether the defendant was exercising ordinary care in preserving the trees from loss. After it had called forth this instruction, it had no right to complain because the court had given an instruction upon the subject upon which it had demanded one, and to say that the instruction was calculated to lead the jury to believe that they had a right to infer negligence from the failure to employ a watchman. There is nothing in the instruction that intimates such a thing. It left to the jury to determine whether, in the exercise of ordinary care, it was negligence to fail to employ a watchman, having first defined ordinary care to be such care as an ordinarily “ prudent man would exercise in the place of, and under the same circumstances as, the party charged with negligence;” that is to say, the defendant in this-case. Under such circumstances, we see nothing in the instruction prejudicial to the appellant.
3. Appellant insists that there was no evidence to show negligence, and sustaih the verdict of the jury. In the contract in this case it was expressly stipulated that the liability of appellant as a common carrier should terminate on the arrival of the trees and plants at the station or depot of delivery, and that it should be liable- as a warehouseman thereafter. When, therefore, the property was stored in the appellant’s depot at Hackett City, it became liable as a warehouseman, and bound to exercise ordinary care and diligence in the preservation •of the property, which is such care and diligence as men of ordinary prudence in the same business usually bestow on property placed in their custody, and similarly situated in its exposure to loss. What constitutes such care and diligence is a question which depends for its answer upon the peculiar circumstances of each case, such as the nature and value of the property, its exposure to damage and loss, its proximity to danger from fire, the means employed to prevent or arrest the progress of fire, the location, character and construction of the storehouse in which it was placed; and in cases like this is a question peculiarly proper for the determination of the jury.
The depot or warehouse of the appellant, in which the property of appellees was stored at the time it was ■destroyed by fire, was, and had been for many days, surrounded by cotton—a highly inflammable material—at a time when the weather was very'dry; and was near a railway track on which trains were passing daily. The ■cotton was liable to take fire from these trains, and ■communicate it to the depot. One of them passed ten or fifteen minutes before it was destroyed. The cotton ■caught fire, and the depot was consumed by it. These were facts from which the jury might have inferred that the fire originated in sparks from the engine of the train which had just passed, there being no evidence to ■.explain its origin upon any other theory. All these facts tended to show that the property of appellees was ■destroyed through the negligence of appellant, and are ■sufficient to sustain the verdict of the jury in this court. Barron v. Eldredge, 100 Mass. 455; Smith v. Railway Co. L. R. 6 C. P. 14; Chicago & Alton R. Co. v. Scott, 42 Ill. 132; Illinois Central R. Co. v. Frazier, 64 Ill. 28; Pittsburgh, Cincinnati & St. Louis Railroad Co. v Nelson, 51 Ind. 155; Troxler v. Richmond & Danville Railroad Co. 74 N. C. 377.
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Paul Ward, Associate Justice.
Appellant filed a complaint in Chancery asking for specific performance of an oral contract whereby Samuel C. Oates agreed to sell him a farm consisting of 285 acres of land in Conway and Faulkner Counties. Defendants were Mr. Oates and his wife, and also Morris W. Gray who claims to be an innocent purchaser of the same land from the Oates after the alleged oral contract was made.
In his answer Oates denied making the oral contract to sell; admitted writing a letter acknowledging a rental agreement, hut denied that the letter constituted a contract to sell; admitted deeding the land to Gray, and; pleaded the Statute of Frauds. Gray, in his answer, admitted receiving a deed to the lands from Oates on November 25, 1958, but claims as an innocent purchaser without notice. By way of cross-complaint against Oates he asked, in case of specific performance, to recover the money paid on the purchase price and damages.
After a full hearing the trial court found that appellant “has failed to prove that he had a valid and binding-contract to purchase the lands involved in this action and his complaint should be dismissed for want of equity.” The court accordingly found that Gray was entitled to immediate possession under his deed from Oates. From the above decree appellant prosecutes this appeal for a reversal.
We have concluded that the trial court was in error in dismissing appellant’s complaint. Numerous issues are discussed by all parties to support their relative contentions, but, under the view we have taken, it will be unnecessary to discuss most of them. After a careful examination of the entire record we think the evidence clearly and convincingly shows: (a) that appellant had an oral contract with Mr. Oates to purchase the land; (b) that Mrs. Oates knew or should have known of the contract; (c) that the contract was made before appellant went on the land; (d) that, relying on the contract, appellant made valuable improvements on the land; (e) that such possession and improvements preclude operation of the Statute of Frauds, and; (f) that appellant’s occupancy prevented Gray from being an innocent purchaser.
Factual Background. Mr. and Mrs. Oates live in Little Rock and appellant lived between Martinville and Damascus in Faulkner County. In the fall of 1957 appellant went to see Mr. Oates about renting the land for the year 1958 when (as claimed by appellant) Mr. Oates offered to sell him the farm (and also rent it for 1958) on definite terms. The farm had been overflowed ini 1957. Accordingly appellant occupied the farm, improved it, paid 1/3 of crops rent, and in the fall of 1958 offered to make the agreed down payment which Mr. Oates refused. Immediately thereafter Mr. Oates deeded the farm to Mr. Gray.
(a) We are bound to conclude from the testimony that there was an oral agreement whereby Mr. Oates was to sell appellant the farm for $12,500 with the first payment of $1,000 in the fall of 1958 and the balance to be paid by installments of $1,000 each year thereafter. This was the positive testimony of appellant and it was not denied by any witness. Confirmation of appellant’s contention is found in the letters written by Oates. In the first letter written on January 23, 1958 there appears the following: “However, I do hereby agree to sell to you, and enter into contract anytime prior to Jan. 1st, 1959, at the sum and price mentioned, viz: $12,500.00 when ever you are able to make the initial down payment of $1,000.00 with annual like payments for the balance.” The evidence further shows that appellant lived up to the agreement by offering to pay Oates $1,000 in October, 1958 and that this payment was refused' by Mr. Oates. In fact, appellant stated he was ready, able and willing to pay the full amount of $12,500 at that time but it was also refused. It is undisputed that just a few days later Mr. Oates wrote appellant a letter (dated October 28, 1958) stating he had a better offer for the place from another party and that he had “decided to let him have it.” Later Oates deeded the land to Gray for the price of $15,000.
(b) The evidence shows that Mrs. Oates knew of and consented to her husband’s agreement to sell the land to appellant, because she admits she either wrote or knew the contents of two letters written to appellant in February, 1958. In the first letter there appears the following sentence: “Just hoping that you can make so much money that you’ll have $1,000 at the end of the year to pay down on the place and we would go from there on.” In the second letter we find this: “Let’s look forward to getting together at the end of the year on an outright deal on the whole place.”
(c) In view of the next two matters to be discussed we deem it pertinent to know when the oral contract of sale was made. The undisputed evidence is that Oates’ offer to sell was made before (or at least at the same time) the lease contract was made, and this date was before appellant went on the farm. The testimony of appellant, as before stated, shows it was made in the fall of 1957, before appellant took possession of the farm on or soon after January 1, 1958.
(d) The testimony clearly shows appellant made valuable improvements on the farm, in excess of what would be expected of the usual tenant. The substance of appellant’s testimony relative to improvements is set out, at some length, below:
Q. “What improvements did you make on the land other than what an ordinary tenant would make?
A. “Well, I cleaned up land that I wouldn’t have cleaned up at all if I hadn’t had a chance to have bought it.”
I cleaned up close to 30 acres on the south side of the creek where the sprouts, as big as your arm or bigger were as thick as they could stick on the ground; also cleaned around the edges of the fields where it had grown up for years — cut back from 20 to 40 feet. I figure it would have cost $300 to $400 to do that cleaning job. I also cleaned logs and “stuff” off the land that had been left by the overflow the year before. Also I graded a mile of roads on the farm which had washed so bad they were almost unusable. On the north side I cleared off and dug up oak and elm trees, some six inches in diameter, and put the land in cultivation. The land is now in a good state of cultivation. I also built a quarter of mile of fence near the house and furnished most of the wire; I put 19 acres in lespedeza for a permanent pasture, and paid about $50 for the seed, and also put four ditches, each about 1/4 mile long, across the land for drainage. Also, I cleaned about 700 bales of rotten hay out from under the shed, and across the creek I sowed 600 pounds of seed that cost me about $100. In addition I sowed 25 acres of oats in the fall of 1958, and they are growing now.
When appellant was asked the value of all improvements he had made to the farm his estimate was around $2,500. Appellant’s two sons and two other witnesses, all familiar with the farm and the improvements made, corroborated in varying degrees the testimony of appellant as to improvements.
Only two witnesses attempted to contradict appellant’s testimony concerning the extent and value of the improvements. One witness who lived 3/4 of a mile from the farm stated that the county road grader made a trip over one particular road, but the others he didn’t know about. Also, a brother of appellee (Mr. Oates) testified in substance:
I am acquainted with the farm, and am on the land two or three times a year — was over it ten days ago; I heard appellant’s testimony about improvements. When asked about the 30 acres in bushes and sprouts, he testified in substance:
I was fishing by the edge of the land in 1957 before the flood — I drove my car over the road down to the creek and saw no obstructions — the land was heavily sprouted, and they are still there; I know nothing about the lespedeza land; I did see 17 acres of oats — I have not traveled the road since the 1957 flood; I didn’t know the condition of the fence rows before appellant went on the place but they are clear now; appellant did some work there, but I didn’t see any new fences.
All the testimony indicates, with nothing to the contrary, that appellant made these extensive improvements in reliance on Oates’ agreement to sell. Appellant makes the positive statement that this is true, and no one disputes it. Moreover, Mr. Oates is bound to have known his conduct might have misled appellant into thinking he could make the improvements with impunity, and thereby, he would stand to profit by such deception. In a letter from Mr. Oates to appellant, dated January 23, 1958, there appears this significant sentence: “This assures you of being able to looking forward to buying the place, and puts you in position [to] make any improvements or repairs this year that you want to without possible sacrifice.”
(e) The vital question for decision is whether appellant’s action in this case is barred by the Statute of Frauds. We have concluded that it is not under the facts and circumstances of this case. In reaching this conclusion we by-pass a decision on whether the three letters heretofore referred to constitute sufficient memoranda to circumvent the statute. Appellant contends the letters do and appellees take the opposite view. The reasons upon which we base our announced conclusion are set out below:
The Statute of Frauds, which is Ark. Stats. § 38-101, in all parts pertinent here, reads:
“No action shall be brought ... to charge any person upon any contract for the sale of lands . . . unless the . . . contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith. . . . ”
Since the early case of Pindall et al. v. Trevor & Colgate, 30 Ark. 249, this Court has consistently held that the delivery of possession under an oral contract for the sale of real estate will take the case out of the Statute of Frauds. We do not cite other cases because we understand appellees recognize this general rule of law. This Court also recognizes that a significant equity aspect arises where the one in possession makes improvements on the land. This is obvious, otherwise the owner would be in position to reap unjust benefits. In the ease of Moore v. Gordon, 44 Ark. 334, 342, the court quoted, with approval, this statement:
“the making of valuable improvements on the land by the vendee or lessee, in pursuance of the agreement, and with the knowledge of the other party, is always considered to be the strongest and most unequivocal act of part performance by which a verbal contract to sell and convey, or to lease is taken out of the statute.”
See also: Young v. Crawford, 82 Ark. 33, 100 S. W. 87: Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Hunt v. Boyce, 176 Ark. 303, 3 S. W. 2d 342, and Dillard v. Kelley, 205 Ark. 848, 171 S. W. 2d 53.
We think the rule above announced takes this case out of the statute. We are not unmindful of appellees’ strong insistence that appellant went into possession solely as a tenant and not under an oral contract to purchase. If the facts were as contended by appellees their contention would have to be conceded. However, as we have already set out, that is not the factual situation here. Trying this case de novo we find that appellant took possession of the farm not only as a tenant but also under an oral contract to purchase and that he, as a purchaser, with the knowledge and sanction of Mr. Oates, made valuable improvements thereon. There is no logical or sensible reason why a court should recognize the rental agreement to the exclusion of the purchase agreement.
Almost the exact situation obtaining here was presented in the case of Grant et al. v. First Nat. Bank of City of Superior et al., 224 Wis. 463, 272 N. W. 363. There the purchaser was originally in possession solely as a tenant, but later the owner orally agreed to sell him the land. After that the purchaser made certain improvements, relying on the oral promise. The Court posed the issue as follows:
“The only question is whether, since the Grants were at the time of this contract in possession as some sort of tenants, their continued possession can be considered to be referable solely to the oral contract.”
The Court then held the improvements were referable to the oral- agreemnt to sell, and took the agreement out of the Statute of Frauds.
Also in the case of Herbstreith et al. v. Walls et al., 147 Neb. 805, 25 N. W. 2d 409, there appears this statement:
“ ‘Thus, in cases where a tenant continues in possession under an alleged agreement for a new tenancy, the purpose is answered by proof of any act on his own part, done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of the parties— as when he makes improvements upon the premises, this fact is of great weight to show a change in the holding. ’ Underwood v. Underwood, 48 Mo. 527. See Bresnahan v. Bresnahan, 71 Minn. 1, 73 N. W. 515.”
(b) Finally, again trying the case de novo we are bound to deny Gray’s claim to be an innocent purchaser. Under well established principles of law Gray was charged with the knowledge that appellant was in possession of the farm. It was his obligation to inquire of appellant the nature of such possession. This he failed to do. He did not contact appellant until after he received his deed from Oates, and he was then advised of appellant’s interest in the farm.
Particular attention should be given to one of appellees ’ contentions. In the first letter Mr. Oates wrote appellant, dated January 23, 1958, there appears this paragraph:
“I have been studying a lot about our land deal since I was up there a few days ago. It has been hard for me to decide just what I want to do in the matter of selling, yet I do prefer to sell. But I have come to this decision, i. e., we will not enter into any definite contract, in writing, as to the sale at this time.”
Appellees attach much significance to the sentence we have emphasized, contending it shows there was no oral agreement to sell. In our opinion, however, this sentence must be construed together with other written statements later made by Mr. Oates. When so construed the conclusion is inescapable that Mr. Oates did agree to sell the farm to appellant for a fixed sum on definite terms of payments. The facts and circumstances have already been enumerated. The subsequent written statements (in the letters) are, in substance, as follows: (a) In the first letter he said, “I do hereby agree to sell to you”; (b) Further on in the same letter he told appellant he could make improvements “without possible sacrifice”; (c) In the second letter (written 16 days after the first letter) he said he hoped appellant would be able to make the $1,000 down payment on the place by the end of the year; and, (d) In the last letter (written one week after the second letter) he said to appellant they' would be looking forward to making “an outright deal on the whole place.” So, even though Mr. Oates was not ready to make a written contract in January, 1958, he clearly shows that his intention was to make an oral agreement to sell, conditioned only on appellant’s being able to make the down payment, which payment appellant offered to make even sooner than the date fixed by Oates. For us to reach any other conclusion would amount to lending the offices of a court of equity to assist in perpetrating deception.
The decree of the trial court is accordingly reversed, and the cause is remanded for the entry of a decree in accordance with this opinion, and also for any other necessary proceedings relative to Gray’s cross-complaint.
Reversed and remanded.
Robinson, J., not participating.
McFaddin and Johnson, JJ., dissent. | [
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Wood, J.
This was an action at law, brought in the Pulaski circuit court, to recover the possession of a tract of land, embracing a rock quarry, belonging to the plaintiff, Elizabeth S. Shall, and leased to the assignor of the defendant, the Eittle Rock Granite Company, in 1887, for a period of ten years. The lease contains certain covenants whereby the lessee bound himself to pay seven cents per cubic yard for all rock sold or taken from the quarry, to be paid as the work progresses, “or at least as often as once per month for all rock delivered to that date;” and also to furnish copies “of all contracts to deliver rock before the delivery of the same.” He further agreed that a failure to do a reasonable amount of work—that is, to work at least an average of ten men per month for three consecutive months—“should forfeit the lease at the option of the lessor;” and also, at her option, the lease should be forfeited by a failure to perform either of the other covenants mentioned, or to use the quarry in a workmanlike manner, and with proper drains.
The lease was assigned to the defendant in October, 1889, with the consent of the plaintiff’s agent, and this suit was commenced in February, 1891. The complaint alleges the non-payment of any rent or royalty by the Granite Company, and that it has broken all the other covenants of the lease. The prayer is for a judgment forfeiting the lease, and for recovering the rent due, and for the possession of the demised premises.
The answer alleges a tender of all sums due under the lease, and denies a breach of either of the covenants. It contains a statement of the reason why the rents were not paid, and alleges a readiness and willingness at all times to settle, and that it was not the company’s fault that the settlement had not been made. In short, the answer contains matters of equitable defense against forfeiture, and concludes with a prayer that the cause be transferred to the Pulaski chancery court. On motion of defendant the case was transferred to the chancery court, without objection, where the cause was heard upon conflicting evidence as to the material matters in issue, and a decree rendered forfeiting the leasehold estate of the defendant, and for the possession of the premises, and the recovery of a sum found due as rent. The defendant appealed.
It is well settled that equity, as a general rule,- will not enforce a forfeiture. In Marshall v. Vicksburg, 15 Wall. 146, it was said: “Equity never, under any circumstances, lends its aid to enforce a forfeiture.” The rule is not less broadly stated in Story’s Equity, and by the authorities generally. 2 Story, Eq. sec. 1319; 4 Kent. Com. 131. Mr. Pomeroy says that there are some apparent, but no real, exceptions to this doctrine, and that it is well settled “that a court of equity will not enforce a forfeiture, but will leave the party entitled to it to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture.” 1 Pom. Eq. Jur. secs. 459, 460.
The plaintiff, desiring a forfeiture, Selected the proper forum to declare it; and she was clearly entitled to have the law court pass upon the question, notwithstanding the filing of an answer containing some grounds of equitable defense. Mansf. Dig. secs.. 1380, 1381, 4929; Act April 1, 1885, sec. 12: see, also, Mansf. Dig. secs. 5033, 5408, 5409. All the breaches complained of, that could be held sufficient to forfeit the lease, were denied, and the answer' does not set up any matter to avoid a forfeiture that would not have been available in the circuit court; for a court of law, though not clothed with all the powers of a court of equity to grant relief in such cases, will construe with strictness the conditions on which a forfeiture is claimed, and a cause of action to recover damages for a breach of the covenant does not necessarily carry with it the right to a forfeiture. A forfeiture is odious to the law, and a court of law may not only grant relief against it, upon an equitable defense, but will ordinarily refuse to enforce it because of a failure to perform an act the performance of which has not been demanded, or where compensation can be made io the party complaining. Atkins v. Chilson, 11 Met. (Mass.) 117; Insurance Co. v. Norton, 96 U. S. 242; Bowman v. Foot, 29 Conn. 341; Tate v. Crowson, 6 Ired. (N. C.) 65.
But, while it was the right of plaintiff to have the •court of law determine this cause, it appears that she waived this right by not objecting to the transfer, provided the answer contains matters of equitable cognizance. The answer, as to the failure to pay rents and furnish copies of contract, was in the nature of confession and avoidance. It admitted that the rents had not been paid, and, virtually, that copies of contracts had not been furnished. But it seeks to avoid a forfeiture on account of such failure (especially to pay rents) by setting up matters which would give a court of equity jurisdiction. And while the answer does not pray for affirmative relief, and is not made a cross bill, in express words, such was the evident purpose of the motion to transfer; and the only legitimate effect of the equitable •defense, when proved in a court of chancery, would be relief against the forfeiture. The question then is, should appellant be relieved against a forfeiture ?
This cause, being here on appeal from the chancery •court, must be determined according to the practice and principles prevailing in courts of equity.
Mr. Pomeroy says : “If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.” 1 Pomeroy, Eq. Jur. sec. 452. But equity will not relieve against a forfeiture where the ‘‘violation of the contract was the result of gross negligence or was wilful and persistent.” 1 Pomeroy, Eq. Jur. sec 453.
Measuring the conduct of the parties litigant by these fundamental principles, we conclude, if there was a forfeiture in this case, appellant should be relieved against it. The testimony shows conclusively—there being no proof to the contrary—that, for a period of over two years from the execution of the lease to the time the appellant took possession under the transfer, there had been no certified copies of contracts for rock, quarried furnished appellee. She had not asked for any, and none were given. But during all this time there was no demand for a forfeiture on account of such failure. On the contrary, it appears that appellee received the rents or royalty for all this time, and there is-no proof of any complaint because of the failure to furnish copies of contract, as per the stipulations of the lease in this particular. The proof shows, during this period, all the other conditions of the lease were fully complied with. Nor does it appear that there was ever any demand for copies of contracts until some time in November, 1890—something more than a year after appellant had been operating the quarry-—and even this-testimony as to demand for copy of contracts is contradicted by two witnesses.
But it is conceded in' the answer, and the proof shows, that the rents were not paid, nor the copies of contracts furnished, according to the provisions of the lease; and it was doubtless for these reasons that the chancellor declared a forfeiture; for the proof as to the quarry being worked continuously, and in a workmanlike manner, and with the quota of men as required by the covenants of the contract of lease, was not sufficient to support a finding of forfeiture—only the positive testimony of one witness on these points, and that contradicted by a number of witnesses, who, so far as we are able to judge from this record, were in a position to know more about the facts, for they were connected with the quarry, and were familiar with its management, and the work done there, and so far as we know the witnesses are equally credible.
As to the failure to pay rents, it is the law that a court of equity will relieve the lessee and set aside a forfeiture for a breach of the condition to pay rents at a time specified or forfeit the lease, “upon the notion tha,t such condition and forfeiture are intended merely as a security for the payment of money,” the amount of which can be ascertained. 1 Pomeroy, Eq. Jur. 453; Wood, Landlord & Tenant, sec. 449; *2 Story, Eq. sec. 1321, 1322; Hill v. Barclay, 18 Ves. 58.
The provision with reference to furnishing copies of contracts was doubtless intended to furnish appellee a method for the ascertainment of the correct amount of royalty coming to her from all rock taken from her quarry under written contracts. The words “certified copies” used in the lease indicate this, It is conceded that this was not done, but we are of the opinion that the conduct of appellee was a clear waiver of her right to a forfeiture on that account. Por years the quarry had been worked, large amounts of rock had been quarried, royalty received, and no copy of contracts furnished, and none ever demanded, until a few months prior to the institution of this suit—if they were demanded at all, which is denied. It will be borne in mind that appellee had the option, under the lease, to forfeit same upon the failure on the part of the lessees to comply with the terms of the lease. When she failed to avail herself of that option, knowing that the lease had been broken in that respect by Wiegel & Co. and by the appellant for so long, but, instead, demanded and received the rents, and expressly recognized the continuance of the lease, notwithstanding the breach of this condition, appellant had the right to consider that she had waived a compliance in this respect, according to the authorities already cited.
In Insurance Co. v. Norton, 96 U. S. 234, the court, after citing and quoting from a number of cases, says : “These cases show the readiness with which courts seize hold of any circumstances that indicate an election or intent to waive a forfeiture.” The principle here announced would apply to the conduct of appellee, as showing an acquiescence in any of the other alleged breaches to work a forfeiture, had the proof shown such breaches. We find no element of wilfulness or gross negligence in the breaches confessed.
Therefore the chancellor erred in declaring a forfeiture, and his decree in that respect is reversed. As to the amount of royalty decreed, it is affirmed.
Note. I am indebted to .Mr. Justice Mansfield for all that part of this opinion which relates to the doctrine that a court of equity will not enforce a forfeiture. He had prepared, before his resignation, an opinion in this case. Since then, however, the court has modified its views as to the propriety of the transfer of this case to the chancery court, and while I have copied verbatim much of the opinion of Judge Mansfield, he is not responsible for anything expressed in the opinion in its present shape. | [
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Hughes, J.
The appellant was convicted of giving away intoxicating liquor in Logan county, in this State, on the day of a general election for State officers; and appealed to this court. The liquor given awa}^ was wine. He contends that the court improperly refused an instruction which he asked, and committed error in the three instructions given. These instructions are as follows : (1). “The jury are instructed that if the defendant, in Hogan county, Arkansas, on election day mentioned in the indictment, within one year next before the-finding the indictment, gave or sold to witness, Weeks, any quantity of intoxicating liquors, you will find him guilty, and assess his punishment at a fine,” etc. (2). “If defendant conducted witness to the place,, and assisted him in procuring intoxicating liquors in any quantity, defendant is as guilty as if he sold or gave it. from his own hand.”- The defendant objected to the giving to the jury each of said instructions, but the-court overruled his objections, and the defendant at the-time excepted.
The defendant asked the court to instruct the jury as follows: “If you find from the evidence that defendant was not a dealer in liquors, and was in no way connected with the sale of, or traffic in, liquors of any kind, and that the wine given by him to the witness had no-connection with, or reference to, the election then being held, you will find the defendant not guilty.” The court refused this instruction, and the defendant excepted.
After argument of counsel, the jury retired to consider their verdict at about 2:30 p. m., and during the-afternoon were called into court twice, and interrogated by the court why they could not agree upon a verdict,, and they replied that they differed as to whether the-wine given to witness by defendant was intoxicating or not, and the court instructed them that such was a question of fact which they alone should decide ; and kept them together until adjourning time, when they,under instructions, were permitted to disperse until 8 o’clock next morning, when they were called into court, and the court then further instructed them as follows : (3). “Wine is an intoxicating liquor within the meaning of the statute, and its sale or gift on election day is prohibited.” Defendant objected to the giving of this instruction to the jury, but the court overruled the objection, and the defendant at the time excepted.
Section 1850 of Mansfield’s Digest makes the giving ° o o away of any intoxicating liquors on the day of any election, or the succeeding night, in any county, city, town or township in which said election may be held, punishable by fine of not less than $200, or imprisonment for not less than six months, or both. It matters not that the giving away of the intoxicating liquor has no reference to the election. The statute makes no exception.
The court takes judicial knowledge of the fact that 0 wine is an intoxicating liquor. It is a matter of common knowledge. Black on Intoxicating Liquor, sec. 5; 11 A. & E. Enc. Law, 582; Jones v. Surprise, 64 N. H. 243; State v. Packer, 80 N. C. 439; State v. Williamson, 21 Mo. 496.*
The judgment is affirmed. | [
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Carleton Harris, Chief Justice.
Appellants, David Kasinger, age 18, Dale Kasinger, age 19, and Ray Kasinger, age 18, were charged by Information with the crimes of burglary and grand larceny. The cases were consolidated for trial. On trial, appellants were acquitted on the charge of grand larceny, but were found guilty of burglary, and punishment fixed at confinement in the Arkansas State Penitentiary for a period of two years; the jury recommended, however, a suspended sentence. The Court did not follow the recommendation, but entered its judgment sentencing all appellants to a term of two years. From such judgment, comes this appeal.
On the evening of Saturday, January 30, 1960, the McCabe Tractor and Implement Company, located in Mountain Home, was burglarized, and the following Monday morning, the burglary was discovered by an employee of the company. A safe containing approximately $350 had been removed from the premises. The Sheriff of Baxter County commenced his investigation on the morning of February 1, and appellants were arrested on March 16, 1960, and subsequently charged with the crime. For reversal, appellants assert a number of alleged errors, which we proceed to discuss.
First, appellants argue that the State failed to prove that the crime was committed in Baxter County, Arkansas. We find no merit in this contention. § 43-1426, Ark. Stats., provides:
“It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.”
The Informations charged that the offenses were committed in Baxter County, but no one directly testified to that effect; however, there are several references in the evidence to the fact that the McCabe Tractor and Implement Company building was located in Mountain Home, county seat of Baxter County. In Henley v. State, 210 Ark. 759, 197 S. W. 2d 468, this Court, in passing upon this question, said:
“The evidence in the case at bar does not affirmatively show that the crime was committed ‘otherwise’ than in the jurisdiction of the court where defendanl was tried. On the contrary, we think the evidence do»» show affirmatively that the offense charged in the information was committed in Lee County. Several witnesses testified that the home of Jessie Day, where the killing occurred, was located on the state highway between Marianna and the village of Aubrey. We judicially know that the village of Aubrey is in Lee County and an inspection of the maps of the county discloses that any point on the public highway between Marianna and Aubrey is well within the territorial limits of Lee County.”
Likewise, we judicially know that Mountain Home is located in Baxter County. Actually, this Court upheld a conviction in Meador v. State, 201 Ark. 1083, 148 S. W. 2d 653, on appeal from the Grant Circuit Court, where the offense had been committed, though the Information erroneously charged that the crime was committed in Hot Spring County.
Appellants contend that error was committed when the Sheriff of Baxter County was asked by the State’s attorney why he moved the appellants to a jail in Yell-ville, Marion County, and he replied, “They’d broke jail here before”; also, error is asserted because of a question asked appellant Bay Kasinger by the State’s attorney, “How many times has Jack Gregory arrested you?” In each instance, the Court instructed the jury not to consider this question and answer. In Davis v. State, 155 Ark. 245, 244 S. W. 750, the prosecuting attorney made certain remarks which the appellant contended to be prejudicial, but this Court said:
“It will be noted that the court instructed the jury to disregard the remarks made by the prosecuting attorney and this, we think, had the effect to cure any prejudice that might have resulted to the defendants from the remarks.”
See also Washington v. State, 227 Ark. 255, 297 S. W. 2d 930. Accordingly, we find no merit in this contention.
Appellants assert that the Court erred in not following the recommendation of the jury that sentence be suspended. This was not error. We have held on several occasions that the Court is not bound to accept the jury’s recommendation to suspend sentence. See Clarkson v. State, 168 Ark. 1122, 273 S. W. 353; Warford and Clift v. State, 214 Ark. 423, 216 S. W. 2d 781.
Appellants question the sufficiency of the evidence to sustain the convictions. We have previously held that the extra-judicial confession of a defendant, accompanied by proof the offense was actually committed by someone, will warrant a conviction. See Monts v. State, 233 Ark. 816, 349 S. W. 2d 830; also, Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32, and cases cited therein. In the case before us, there was ample proof that the McCabe Tractor Company of Mountain Home had been burglarized, and all three defendants confessed their participation in the crime. Accordingly, if the confessions were voluntary, the evidence was sufficient to sustain the conviction. This last statement brings us to a discussion of the confessions, and whether, under the proof in the record, same have been established as having been given voluntarily.
In discussing this point, it is necessary that we review the facts from the time the boys were arrested. Dale Kasinger was arrested soon after the noon hour on Wednesday, March 16th, and was questioned for a brief period by the Sheriff of Baxter County. He was then lodged in jail, and later in the day taken to Yell-ville, county seat of an adjoining county, where he, on the same night, confessed his participation in the burglary. The Sheriff stated that he took Dale to Yellville because he wished to separate the boys, and did not have adequate facilities in the Baxter County jail to do this. Dale was returned to the Baxter County jail on Friday night, March 18th. Bay and David were also arrested on the afternoon of the 16th, and were lodged in the Baxter County jail. They confessed their participation in the burglary on March 19th; this confession was also signed by Dale, and was witnessed by Sheriff Gregory, State Policeman Bill Manes, and Earl Rife, Criminal Investigator for the State Police. These men, who witnessed the statement, also testified that two other officers, Sergeant Bowden of the State Police, and Fred Brunson, Deputy Sheriff, were present when the statement was taken. All of these boys were arrested without warrants, and none were taken before a magistrate. Shortly before the arrest of Dale, a fourth alleged participant, J. W. Studdard, had been arrested and placed in the Baxter County jail. According to the evidence, Dale’s first confession was made at the Marion County jail (Yellville) in the presence of the Baxter County sheriff, the Marion County sheriff, and Claude Wynn, a visitor at the jail. The confession was written out in longhand, partly by the sheriff of Baxter County, and partly by the sheriff of Marion County, and signed by this appellant. The witnesses to the confession stated that it was given voluntarily, though Kasinger stated that he was threatened while the drive was being made to Yell-ville; that the sheriff “pulled my hair”, and that he signed the statement through fear of physical mistreatment. As far as this confession, standing alone, was concerned, the voluntariness of same appears to have been a matter for the jury to determine, but, as previously stated, Kasinger also signed a second confession with his brother and cousin. It is the latter confession which gives us much concern.
The fourth man arrested, Studdard, testified that while in jail, he was beaten by one of the officers, suffering a bloody nose, and bruised face and lips. Studdard stated that he was subsequently taken to the hospital by Deputy Sheriff Brunson, where he was examined and observed by Dr. Guiñee, and that the doctor took x-rays. The witness further testified that the Kasinger boys saw his condition, and each appellant also stated that they observed Studdard’s face, and blood in his cell. Rex Baker, a prisoner in the jail on a drunkenness charge, testified that he saw one of the officers strike Studdard with his fists several times; that later he again saw Studdard, and “His nose was smashed, and he had blood on his handkerchief.” All three of the appellants testified that they were threatened with similar treatment, and because of their fear, signed the confession.
Jess Dover, grandfather of Studdard, Mr. and Mrs. Leonard Kasinger, parents of Bay, and Ben Kasinger, father of Dale and David, visited the boys several days after they had been arrested, and all testified either that they observed evidence of Studdard’s having been beaten, or saw blood on the floor. The officer who was accused by Studdard and Baker of striking the former, denied the charge, and the other officers, previously listed, who were present when the statement was taken, testified that they saw no evidence of any mistreatment of Studdard, and that the three appellants executed the statement voluntarily. All of the defendants stated that they requested the services of an attorney, but this was not allowed. The officers denied that such a request was made. Appellants also testified that the weather was very cold at the time they were arrested, but that inadequate cover was furnished. According to Dale, there was no heat at night, several of the jail’s windowpanes were broken, and snow and ice coated the ground. David testified likewise that some windows were broken; that there was no heat at night; that he was given a blanket, but no mattress, and had nothing else to wrap up in; that all appellants had to sleep on the floor.
To summarize the evidence from the record, as testified to by appellants and their witnesses: They were arrested without a warrant (the information was filed and a warrant was issued on March 18th), and held in jail from the 16th until the 19th before the confessions were obtained (excluding the first confession signed by Dale). During this time, they were without an attorney, did not see their parents, observed the condition of Studdard ’s face and were told by him that he had been beaten by one of the officers, saw blood in his cell, were placed in a cell which was very cold at night, and were without adequate cover, and were threatened with the “same treatment” received by Studdard unless they confessed. From the State’s standpoint, the officers who witnessed the confession stated it was given voluntarily, and the boys were not pressured or threatened. The officer (not one of those present when the statement was signed) who was accused of striking Studdard, denied the charge.
We have reached the conclusion that, under the testimony shown in this record, the jury should not have been permitted to consider this confession. Perhaps none of the facts mentioned, separately, would justify this conclusion. But we particularly scrutinize confessions when there is no corroborating evidence, standing alone, to implicate a defendant. The fact that the arrests were made without a warrant, and further, that appellants were not taken before a magistrate, does not, in itself, render the confession(s) inadmissible. Browning v. State, 206 Ark. 791, 178 S. W. 2d 77. The fact that they were held for several days does not, standing alone, invalidate the confession. Of course, the question of whether the boys requested an attorney was a question of fact, which the jury could properly determine. There are two matters that were mentioned in the testimony which we particularly notice. One relates to the statement of Studdard that he was taken to the hospital to see Dr. Guiñee (apparently the coroner of the county) relative to the beating that he had received, and that Dr. Guiñee took x-rays. We particularly note this testimony, because it was not denied. Nor was it denied that the boys had the opportunity to see Studdard, or his cell, after the alleged beating occurred. Dr. Guiñee’s testimony could have been most enlightening on this question. It may be that Studdard was taken to Guiñee for some other ailment (if at all taken), but this testimony by Studdard should have been easy to refute. Lest it be said that appellants could have brought Dr. Guiñee into court, we point out that the burden is upon the State to establish by a preponderance of the testimony that a confession is voluntary. As the Court told the jury:
“The presumption of law is that any confession made by a defendant, when he is in the custody of officers, whether these officers be sheriff, detectives, State Policemen, Prosecuting Attorney, or any other, a confession given them is involuntary and cannot be considered of value. The effect of that presumption is to cast the burden of proof upon the State and to prove that by a preponderance of testimony the confession was voluntary. The State must overcome that presumption of law to your satisfaction, and the burden is on the State to show that the confession was voluntary.”
Since Studdard made a definite identification of the doctor who treated him, and there was independent evidence (testimony of Baker) that the beating had taken place, we think Guiñee’s testimony would have been particularly important in bearing upon this question. For that matter, Deputy Sheriff Brunson, who, according to Studdard, took him to the hospital, made no comment relative to Studdard’s statement, though he appeared in rebuttal, subsequent to the former’s testimony.
The other fact that has some significance is the testimony relative to the condition of the jail, i.e., broken windows, sleeping on the floor, no heat at night, and inadequate cover. It was established, even by the State’s evidence, that snow was on the ground, but no officer denied these particular facts. Of course, if these statements were true, the conditions testified about could well contribute to breaking down the will of the boys, and, with the hope of obtaining better conditions, influence them in signing the confession. An examination of the testimony reveals that not a single officer denied, or commented upon, this particular testimony by the appellants.
Having mentioned these facts, perhaps it is well to point ont explicitly that we are not saying that the confessions were obtained by duress; we are not saying that they were given involuntarily. We are saying that on the record before us, the voluntariness of the confessions is not established. Of course, the matters heretofore referred to could have had no effect on the first confession signed solely by Dale, since he had had no opportunity to view Studdard, nor had he been in the Baxter County jail overnight at the time this confession was given. However, the jury had to consider the second confession in order to convict Ray and David, and we have no way of knowing whether Dale’s signature on this second confession caused, or contributed to, his conviction. Under these circumstances, our finding, that the voluntariness of this confession is not shown, also calls for a reversal of the conviction of this appellant. In Binns v. State, (Amended opinion, April 24, 1961) 233 Ark. 259, 344 S. W. 2d 841, we reversed the judgment of the trial court because it was not sufficiently shown that the confession was given voluntarily. The case was remanded, with the direction that the voluntariness of the confession might again be considered in a new trial. We follow the same procedure here, and this question may again be considered for further development.
While it follows that the judgment must be reversed, we deem it well to mention a few other contentions which might arise at another trial. The sheriff of Baxter County was permitted to testify orally to the contents of the written confession, and it is contended that this was error. We do not agree (provided statements are voluntary). Statements made to an officer are admissible. In Smith v. State, 230 Ark. 634, 324 S. W. 2d 341, oral statements made to an officer, which were supplemental to a written confession, were held admissible. In the present instance, of course, the sheriff’s statements only related to matters contained in the written confessions, and the written confessions were offered in evidence.
Alleged error is asserted because of the court’s failure to give certain instructions requested by appellant. We find no error in this connection. The matters complained of were covered by prior instructions of the Court, and there was no necessity to instruct on each detail. For instance, appellants desired an instruction that the fact the arrests were made without a warrant, and the further fact that appellants were not taken before a magistrate, were circumstances for the jury to consider in determining whether the confessions were voluntary. This was proper argument to make to the jury, but no instruction was required.
One instruction probably should be commented upon. We have reference to the instruction relating to an accomplice. The Court’s instruction was as follows:
“Now, you are instructed that one who stands by and aids, abets, assists, advises, or encourages another in the commission of a felony is guilty as an accomplice, and is punishable as such. Therefore, if you find from the evidence beyond a reasonable doubt that someone other than the defendants committed the felony or if you further find that these defendants or either of them were at the time present, aiding, abetting, assisting, advising or encouraging such person or persons in the commission of the felony as charged in the information, then it is your duty to find him guilty, and if you so find him guilty, to fix his punishment as provided in these instructions as heretofore given you with reference to burglary.”
We think the italicized portion might possibly be confusing to a jury. Of course, having read the record, we understand that the Court was referring to the fact that Studdard might have been the principal, with appellants as accomplices. “Or” means “as an alternative, choice of alternative things.” The clause following the word “or” and ending with the word “information” is correct, but if this clause be left out, and “or” indicates a choice, then the instruction is left to read, “Therefore, if you find from the evidence beyond a reasonable doubt that someone other than the defendants committed the felony, then it is your duty to find him guilty, * * We realize this is a matter of verbiage, but we suggest a rewording of same.
For the reasons herein set out, the judgment is reversed, and the cause remanded to the Baxter Circuit Court.
McFaddin, J., dissents.
David and Dale are brothers, and are cousins to Ray.
The statement was written in longhand by Manes.
Studdard did not confess, and apparently has never been brought to trial.
Baker had been in jail several days before appellants were arrested.
The sheriff testified there was snow on the ground.
Emphasis supplied. | [
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Sam Robinson, Associate Justice.
R. A. Carr died on April 23, 1959. His widow, Sarah Ellen Carr, died January 14, 1960. William Carr is administrator of the R. A. Carr estate, and Bob Wallace is administrator of the Sarah Ellen Carr estate. Appellant Leon Carr is an heir of R. A. Carr and one of the devisees under R. A. Carr’s will.
The administrators of both estates jointly petitioned the probate court to authorize the distribution of about $6,000 in cash in the two estates. The court authorized such distribution but the administrators paid nothing to appellant Leon Carr because they contend that he is indebted to the estates in a greater sum than he had coming to him as an heir or devisee under the will.
Leon Carr petitioned the probate court for an order requiring the administrators to distribute to him a por* tion of the cash an an heir and devisee. The administrators answered, alleging the indebtedness of Leon Carr to the estates. There was a hearing, the issue being whether Leon owed the estates more than he had coming to him as an heir and devisee. It was shown that R. A. Carr and Sarah Ellen Carr had as an accommodation endorsed Leon’s promissory note in the sum of $1,155 and of this sum Leon had repaid only $200 and the endorsers had paid the balance.
It was further shown that Leon had given to R. A. and Sarah Ellen Carr his note in the sum of $2,500; that only $400 had been paid on this note and the balance was long past due. Leon contended that $1,500 had been paid in addition to the $400; that he had paid his father $1,500 in cash and that this amount was accepted by R. A. Carr as payment in full. The probate court heard the evidence and saw the witnesses, and we cannot say the court’s finding that the $1,500 in cash had not been paid is against the preponderance of the evidence.
Affirmed. | [
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Jim Johnson, Associate Justice.
The issue in this case is whether a writ of prohibition shall be granted. Petitioner, Co-Ark. Construction Company, Inc., seeks the Writ to Prevent the Circuit Court of Perry County from hearing this case alleging that such Court does not have jurisdiction to determine the cause of action since the Workmen’s Compensation Commission has exclusive jurisdiction of the claim of June Evelyn Cody, Administratrix, et al.
On October 12, 1960, Calvin Cody (deceased) was employed by Co-Ark. Construction Company, Inc., to haul rock in his dump truck and deliver it to a location on the Arkansas River. On the same day Cody was fatally injured when a cable attached to the front end of his truck broke causing his truck to overturn.
In a letter dated December 2, 1960, copy of which was mailed to Mrs. Cody, the insurance carrier of Co-Ark. requested that a hearing be set before the Referee of the Workmen’s Compensation Commission to determine dependency and to establish the average iveddy wage. The Workmen’s Compensation Commission sent a notice of the hearing to the respective parties, stating that the hearing would be held January 9, 1961, “to determine who are dependents of the deceased.” Mrs. Cody appeared at the hearing but was not represented by counsel.
Even though the hearing before the Workmen’s Compensation Referee was instigated entirely by the insurance carrier and such hearing was limited by the Commission to the questions of dependency and average weekly wage, the Referee not only made findings relative to those matters but went further and found that the worker, Calvin Cody, was an employee of Co-Ark. Construction Company on the date of his death; that Cody sustained an accidental injury arising out of and in the course of his employment and directed the insurance carrier to pay maximum compensation benefits to Cody’s widow and the two children.
A Petition for Review by the Pull Commission was filed by Mrs. Cody objecting to and appealing from the findings of the Referee.
Meanwhile, on February 20, 1961, a complaint at law was filed in the Circuit Court of Perry County by Mrs. Cody alleging that Calvin Cody was an independent contractor and sued for damages due to the negligence of Co-Ark’s, employees. Co-Ark. Construction Company, Inc., filed a Motion to Dismiss the complaint alleging that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction of the matter.
On April 5, 1961, the Circuit Court of Perry County rendered its Order overruling the Motion to Dismiss, from which comes the Petition for Writ of Prohibition.
This Court has repeatedly held that prohibition will not be granted in any case where the jurisdiction of the court is dependent upon the determination of contested facts. See: Clement v. Williams, Chancellor, 227 Ark. 199, 297 S. W. 2d 656; Twin City Lines, Inc., v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438; Murphy v. Trimble, 200 Ark. 1173, 143 S. W. 2d 534; Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1145, 97 S. W. 2d 64; Stockburger v. Combs, 190 Ark. 338, 78 S. W. 2d 816; Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421.
In the instant case, the jurisdiction of the Circuit Court is dependent upon the establishment of the worker’s status, i.e., the question of fact as to whether he was an independent contractor, or whether he was an employee of Co-Ark. Construction Company. This finding of fact will determine the forum of adjudication of this cause.
It follows, therefore, that the Circuit Court of Perry County has jurisdiction to determine the fact question as to the worker’s status in the trial of the cause there pending, and to issue such orders to the parties, upon proper petition, to stay the proceedings before the Workmen’s Compensation Commission until the case is decided in the Circuit Court. If it should be found in the Circuit Court that the worker was in fact an employee of Co-Ark. Construction and not an independent con tractor, then upon further determination by the Workmen’s Compensation Commission the employer or carrier will be entitled to claim the allowance provided for such situations as set out in § 81-1318 (3) of the Workmen’s Compensation Act.
Writ of Prohibition denied. | [
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Wood, J.,
(after stating the facts.) This court has sustained the act of 1885 as a proper delegation of the police power. James v. Pine Bluff, 49 Ark. 199. Therefore the only question for our consideration is, does the power “to build and maintain suitable pavement or sidewalk'improvements ” confer upon the city the power to require of the abutting owner such excavation as may be necessary to bring the sidewalk to the grade of the remainder of the street? The power to require grading not being granted in express terms, it should not be included by interpretation unless reasonably or necessarily implied. 1 Dill. Mun. Corp. sec. 89. “Pavement” or “sidewalk improvements,” as used in the act, are convertible terms. ‘ ‘A pavement is not limited to uniformly arranged masses of solid material, as blocks of wood, brick or stone, but it may be as well formed of pebbles or gravel or other hard substances which will make a compact, even, hard way or floor.” Burnham v. Chicago, 24 Ill. 496. The term “ sidewalk,” as used in the ordinance, means the same as pavement as above defined. “Sidewalk,” when used to designate a part of the highway, means that part of the street intended only for pedestrians, and is thus distinguished from that part of the street set apart especially for vehicles and horsemen. “ Street ” is the generic term for all parts of the way—the roadway, the gutters, and sidewalks. Elliott ■on Roads & Streets, p. 17.
By secs. 5141, 5209 of Sandels & Hill’s Dig., “the care, supervision and control of streets” is given to the city council. They have power to lay off, open, widen, straighten and establish, to improve, keep open, and in repair, “to enter upon, or take for such of the above purposes as may be required, land or material, and to assess and collect a charge on the owner or owners of any lot or land, or on lots or lands through or by which a street * * * shall pass for the purpose of defraying the expenses of constructing, improving, repairing such streets, such charge to be in proportion to the value of such lot or land as assessed for taxation under the general'law of the State.” “To provide for the improvement of the streets, sidewalks, etc., they shall have power to direct and require that any or all male persons between the ages of eighteen and forty-five, residents of the city, shall be subject to street duty performable by work and labor in or upon the streets, sidewalks,” etc. Sec. 5179, S. & H. Dig. ' See also, sec. 5321, et seq., S. &. H. Dig., in regard to local improvement districts.
We think it clear that the removing of embankments- and filling gulches for the whole of the street, including sidewalks, in order to conform to the established grade, is to be done under some of the above provisions. Abutting owners or occupants may be required only to lay sidewalk or pavement. This includes “all that is necessary, usual, or fit, for laying a pavement.” 2 Dill. Mun. Corp. sec. 794. Mere surface grading, such as-removing inequalities of the surface after the sidewalk has been brought to the general grade of the other part of the street, may be required ; for a sidewalk of the kind prescribed could not be laid properly without, smoothing and leveling the surface. But such a thing as cutting down hills and filling hollows—substantial grading-’-in our opinion is not included in the grant of power, and was never contemplated.
We are not without authority to support this conclusion. The legislature of Connecticut vested exclusive power in the court of common council of the city of New Haven to construct and maintain streets within its limits. The court of common council ordered proprietors-on either side of a certain street to construct a sidewalk in front of their lands respectively. The charter of New Haven provided, among other things, for “the placing of a lien on the laud of any proprietor of land or buildings, fronting on any highway or street in the city who should1 neglect or refuse to perform the thing or things required by an order of the court of common council for the making, raising, grading, paving or flagging any sidewalk or gutter in said city adjacent to the said land or building in the manner and within the time specified in such order.” A certain corporation, under the above order, proceeded to construct a sidewalk. Extensive repairs-had to be made in a sea wall which supported the walk, before same could be properly laid. In a suit to recover for the cost of the repairs and walk, the supreme court. of Connecticut say : “Before a court of common council can legally require an owner abutting upon a street to construct a sidewalk in front of bis premises, the city must construct the street for the entire width at the proper grade.” Pres. Yale College v. New Haven, 17 Atl. 139. And, in a late case, where the plaintiff was seeking to set aside a lien claimed by the city for the expense of cutting down ten or twelve feet lower than the original grade of plaintiff’s land, the contention was that, under the charter provisions, owners of abutting lands should be required to grade and construct sidewalks at their own expense. The court quoted the language used in the Pres. Yale College v. New Haven, supra, and reiterated with emphasis the doctrine there announced. Hillhouse v. New Haven, 26 Atl. 393.
A statute of Tennessee granted'power “to regulate and construct sidewalks and foot pavements,” the same as ours, and gave a lien on abutting lots for cost of same. The ordinance made it the duty of lot owners to construct good and substantial “sidewalk or foot pavement.” In a suit seeking to enforce the lien for cost of pavement, including an amount for an “ embankment or fill made in order to bring the grade of the sidewalk to the established grade of the street,” Chancellor Cooper said: “It is obvious, in the case before us, that neither the law nor the ordinance contemplates any charge upon the owner of the lot beyond the cost of improvement.” Only the cost of the sidewalk proper was allowed. Smith v. St. Louis Mutual Life Ins. Co. 3 Tenn. Ch. 631.
The cases cited by Judge Dillon in his second volume, at page 798, sec. 797, when critically examined in view of the statutes upon which they are based, we believe, will not discover any conflict with the opinion we have expressed. Schenley v. Commonwealth, 36 Pa. St. 29; McNamara v. Estes, 22 Ia. 246; State v. Elizabeth, 30 N. J. Law, 365. We should decline to follow therm if they were contra.
The act of 1885, on which the ordinance is founded,, contravenes every principle of criminal jurisprudence in giving power to cities to require the performance of an act which in some instances may be impossible, and to-treat such failure as a criminal offense, and punish accordingly. In every case we have been able to find upholding such legislation as a proper exercise of the-police power, the city has proceeded under the power by civil proceedings, and not criminal. All the cases cited by Judge Smith in James v. James, supra, are cases of this kind. Generally it is sought to subject the property for the cost of the improvement. But this act is-highly penal; also the ordinance, in that it seeks by criminal process to subject the party failing or refusing-to the payment of a fine, and makes each day of such, failure or refusal a separate offense. We think the act', approaches the very verge of constitutional sanction.
The Supreme Court of Connecticut, in Hillhouse v. New Haven, supra, uses this language: “Judge Cooley says in his work on Constitutional Limitations : ‘ Lots, above and below an established grade are usually less, benefited than the others, because the improvements subject them to new burdens in order to bring the general surface to the grade of the street which the others-escape.’ So that, if the contention of the defendant, were sanctioned, * * * he to whom the improvements would be of the least benefit would be subjected, to the greatest expense in making them.” So we say in. the present case, if the city’s contention could be maintained, the defendant, according to the proof, would, have to cut down the sidewalk seven or eight feet to-bring it to the grade of the rest of the street; while: those opposite him on Water street would have a deep-gulch to fill, requiring an embankment of earth twenty- two feet wide at the base. All this expense to the lot owners thus situated, in addition to the laying of the sidewalk, while their near neighbors on the same street, whose lots happen to be on the level of the grade established, have only the expense -of laying the pavement. An ordinance which operates thus partially and unfairly would be unreasonable and void as to the locality thus affected, even if grading were included in its terms. 1 Dillon, Mun. Corp. sec. 322.
Since the legislature has not in express terms conferred the power to require grading, and since we do not find that it is fairly or necessarily implied in the power to “build and maintain sidewalks or pavements,” we will not, by construction, say that they contemplated the laying of such unequal and oppressive burdens upon abutting property owners. 1 Dillon, Mun. Corp. sec. 321.
The judgment of the Pulaski circuit court is therefore affirmed. | [
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Neill Bohlinger, Associate Justice.
These are two original actions filed by the petitioners, citizens of Pulaski County and of Jefferson County, to review the 1961 reapportionment of the House of Representatives. The respondents are the members of the Board of Apportionment created by Amendment 23 to the state constitution. Citizens of Miller, Ouachita, Poinsett, and White Counties have intervened and joined in the defense of the Board’s apportionment.
Section 2 of Amendment 23, which was re-enacted by Amendment 45, provides that the House shall consist of 100 members, that each county shall have at least one representative, and that the remaining members “shall be equally distributed (as nearly as practicable) among the more populous counties of the State,” in accordance with a ratio to be determined by population. Section 4 of Amendment 45 requires the Board of Apportionment to reapportion the House after each federal census. Section 5 provides for original proceedings like these, in which the court may revise any arbitrary action or abuse of discretion on the part of the Board.
Bach of the seventy-five counties is entitled to one representative. The problem is that of allocating the remaining twenty-five seats among the more populous counties in the fairest possible manner.
The entire subject was carefully considered in Shaw v. Adkins, 202 Ark. 856, 153 S. W. 2d 415, which effectively settles every question presented by the cases at bar. As that opinion indicates, the theories of apportionment have been thoroughly analyzed with reference to the similar problem of allocating the seats in Congress after each census. In the Shaw opinion the late Chief Justice Grieein Smith, speaking for a unanimous court, discussed in detail the five recognized mathematical formulas for apportionment. The five methods are called that of smallest divisors, equal proportions, major fractions, harmonic mean, and greatest divisors. In the earlier case we quoted with approval this language from a treatise on the problem of apportionment:
“It is generally agreed that Congress, consciously or unconsciously, has had two principal aims in view: First, to equalize the ‘congressional districts’ among the several states; and secondly, to equalize the ‘individual shares’ among the several states. What the modern mathematical theory has done is to establish clearly the relations between these two aims and give the possible methods listed above.
The mathematical facts are as follows: The method of smallest divisors and the method of greatest divisors fail on both these aims; the method of major fractions fails oil the first aim; the method of harmonic mean fails on the second aim; the method of equal proportions, achieves both aims.
In view of these facts, the method of equal proportions was approved by two scientific bodies: The Advisory Committee to the Director of the Census, in 1921; and the National Academy of Sciences, in 1929.”
In the Shaw case, after considering all five methods,, the court approved the method of equal proportions as-the fairest known formula. We accordingly revised the 1941 apportionment to conform to the results achieved by the method of equal proportions. This precedent was followed by the Board as a matter of course after the 1950 census. In that instance the Board applied the rule of equal proportions after one of its members had explained that the apportionment of the House “presents no problem whatever” in view of the court’s decision in Shaw v. Adkins.
Between 1950 and 1960 a few counties showed an increase in population, but the State’s total population declined. In the reapportionment now under review the Board made only one change: One seat was taken from Mississippi County and was given to Miller County. In all other respects the Board continued in force the apportionment adopted in 1951.
"When the facts are studied the new apportionment appears to he domonstrahly arbitrary. For example, during the decade in question Pulaski County gained 46,295 people, but the Board gave this county no additional representation. By contrast, Miller County lost 928 people, but the Board nevertheless gave it an additional representative. It is clear that such inconsistencies as this one could be justified if, but only if, the Board was attempting to correct pre-existing inequalities in the 1951 apportionment. No such intention is suggested by the Board’s record of its proceedings, nor do the facts support that conclusion.
In fixing the 1961 apportionment the Board declared that it had chosen the method of smallest divisors because that method would “cause the fewest dislocations in the present representation of the more populous counties.” That this method does cause the fewest changes is confirmed by the following tabulation, which the parties concede to be a correct summary of the 1951 apportionment of the 25 additional seats and of the results to be achieved in 1961 by each of the five recognized methods of apportionment:
The Board was unquestionably mistaken in seeking that method of apportionment that would cause the least change in the existing representation. That point of view is contrary to the clear intention of the people in the adoption of Amendment 23. It was because the allocation had not been changed for many years and had become inequitable that the voters declared in Amendment 23 that the apportionment must be adjusted every ten years. There is implicit in Amendment 23 the conviction that a fair distribution of the people’s representatives in the House is an essential element of our system of state government. The Board of Apportionment was therefore created for the purpose of making changes, not for that of preserving the status quo. Hence the Board misconceived its own reason for existence when it consciously looked for a way of making as few changes as possible.
The Board’s selection of the method of smallest divisors cannot be reconciled with the decision in Shaw v. Adkins. There we compared the five recognized methods of apportionment and concluded that the rule of equal proportions was the most just and the most equitable of all the methods. Every argument that is now made in favor of the Board’s choice of the method of smallest divisors could have been made in favor of that same method in the Shaw case. It would be impossible for us to approve the Board’s action in this instance without overruling the decision in the Shaw case.
Counsel for the appellees call our attention to one sentence in the earlier opinion in which we disclaimed any purpose to assert “that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made.” That observation merely conceded the possibility that another formula might someday be discovered that would be superior to the method of equal proportions. The rule of smallest divisors obviously does not fall within that category, for it was known, considered, and rejected as inferior when the Shaw ease was decided.
In demonstrating the mathematical superiority of the rule of equal proportions the court used this illustration in the Shaw opinion:
‘ ‘ Lonoke County has a population of 29,802 and has two house members. Theoretically each represents a population of 14,901. Mississippi County has a population of 80,217 and has three members. Each, therefore, represents a population of 26,739. In theory each Mississippi County member represents 11,838 more constituents than does each of Lonoke’s members, the differential being 79.4 per cent. If one member should be taken from Lonoke County and given to Mississippi [as required by the method of equal proportions], each of Mississippi’s four members would represent 20,054 persons and Lonoke’s one remaining member would represent 29,802, an absolute difference of 9,748, or 48.6 per cent, against Lonoke. The disparity difference against Mississippi County at present is much larger than the disparity against Lonoke County if the latter is reduced to one member.”
In this way the court demonstrated that the method of equal proportions effected more nearly complete abstract justice than did the apportionment adopted by the Board.
Similar calculations can readily be made in the present instance. Under the rule of equal proportions Pulaski County, with a population of 242,980, has eleven representatives, so that each theoretically represents 22,089 people. Poinsett County has a single representative for its 30,834 people. The absolute difference is 8,745, or a disparity of 39.5 per cent against Poinsett County. If one representative is taken from Pulaski and given to Poinsett the disparity is increased to 57.5 per cent against Pulaski, so that the superiority of the method of equal proportions is demonstrated. In fact, if Pulaski is reduced to eight members, which was the result of the Board’s action, the disparity jumps to 97 per cent in favor of Poinsett. (It may be observed that Poinsett County is hardly in a position to oppose the method of equal proportions. As a petitioner in the Shaw case Poinsett County gained an additional representative by reason of the court’s adoption of the rule of equal proportions. Having enjoyed the benefit of the rule for twenty years the county cannot very well insist that some other method should be adopted now that its population has declined while that of other counties has increased.)
In the Shaw case it was considered significant that the method of equal proportions and that of major fractions, the only other method to have been approved by statute, gave the same results. That is almost true in this instance as well, the single difference being that the method of major fractions would take one seat from St. Francis County and give it to Washington County. The system of comparison used in the Shaw case shows that in its result the method of major fractions produces a disparity against St. Francis of 79 per cent, while the method of equal proportions leads to a disparity against Washington County of only 68.9 per cent. Once more the latter method is shown to be preferable.
In conclusion, we find it impossible to approve an apportionment which holds that one county, having gained 46,295 in population, is entitled to no additional representation, while another county, having lost 928 in population, is to be rewarded with an added seat in the House. We adhere to the method of equal proportions because (a) Amendment 23 requires that the membership of the House be reapportioned according to population after each federal census, (b) the method of apportionment by equal proportions can be demonstrated to be the fairest of all the known methods, (c) that method has the approval of Congress and of scientific analysis, (d) that method was adopted by this court in Shaw v. Acllcins, which is a controlling precedent, (e) it was adopted and applied by the Board of Apportionment in 1951, and (f) after the court had construed the language of Amendment 23 in the Shaw case the people re-enacted the pertinent language in exactly the same form in Amendment 45. No valid argument to the contrary has been presented in these cases.
It is to be regretted that no plan has been or can ever be formulated in a situation like this that will be so mathematically balanced that no disparity will exist. But the method of equal proportion is the fairest that has yet been devised to meet the situation that confronts us here. In an effort to follow the mandate of the people, it is our duty to accept the best fixed formula proposed, be its defects what they may, rather than to leave a situation with the potentialities of the present one relying upon a rule-of-thumb sense of equity that may find expression in a Board of Apportionment in the years that follow when we know not the membership that will compose those future boards. The situation demands a clear and precise procedure as an alternative.
The Board’s apportionment will be revised to conform to the results achieved by the application of the rule of equal proportions. By this method Pulaski County, having gained 46,295 in population, is entitled to three additional representatives, and Jefferson County, having gained 5,298 in population, is entitled to one additional representative. White, Mississippi, Ouachita, and Poinsett Counties lose one seat each from the present apportionment. It is so ordered.
George Bose Smith, J., concurs.
Ward and Johnson, JJ., dissent. | [
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Hughes, J.
The appellee sued out an attachment in a suit brought by him for rent of land, and had the order of attachment levied upon crops of corn and cotton of the defendants, J. S. Whitecotton, Willis Wise, John Whitecotton, and Ned Cravens. The appellee recovered judgment for $200. His attachment was sustained, and the property attached was ordered sold by the justice of the peace before whom the judgment was-rendered. The appellant, Jansen, before the sale, filed an interplea, and claimed the property by virtue of mortgages executed by J. S. Whitecotton, Ned Cravens, and Mary Wise. In his interplea, Jansen alleged that the relation of landlord and tenant did not exist between the appellee, Strayhorn, and the defendants. The-justice of the peace rendered a judgment in favor of the interpleader, stating that “W. B. Jackson acknowledged judgment for the property.” Strayhorn, the appellee here, appealed to the circuit court, and there Jansen, the interpleader, filed the following amendment to his interplea: “ That on the-day of ■- 1887, the plaintiff, as he has been informed and believes, sold the farm on which said crops were grown, to J. S. Whitecotton, defendant herein, who went into possession thereof,, under and by virtue of his said purchase, and was holding possession, by virtue thereof, continuously until and after this suit was brought by plaintiff; that defendants, Willis Wise and Ned Cravens, were tenants under the said Whitecotton, and holding by virtue of their rental contract with him; and that there never was any contract between plaintiff and defendants, or any of them, that they should pay plaintiff rents for the year 1889, or any rents whatever upon said lands.” There was a demurrer to this amendment to the interplea, which was sustained, to which appellant excepted, and appealed to this court.
It is contended that Strayhorn, having confessed # ^ ° judgment before the justice of the peace, could not thereafter appeal to the circuit court. We cannot treat the judgment by the justice in favor of Jansen, for the property, as a judgment by confession. It was not such under the statute (secs. 5185 to 5187, Mansfield’s Digest). W. B. Jackson, who, the entry says, “acknowledged judgment for the property,” was the attorney for Stray-horn, and resisted the interplea, and no authority is shown to have been possessed by him to make any confession of judgment for Strayhorn.
It is contended that the demurrer to the interplea is . . good because the mterplea raised an issue as to the title to land, which the justice of the peace had no jurisdiction to try. This is incorrect. The interplea raised the question whether Whitecotton, Wise and Cravens were tenants of Strayhorn, and whether they had contracted to pay, or were obliged to him for, rent, to recover which he was suing. Their contention was that they did not hold under him as tenants ; that he was not their landlord. An answer of this kind to an action in a justice’s court, setting up a want of title to the land, is not, of itself, sufficient to oust the jurisdiction of the court, without evidence on the trial tending to bring the title into question. Bramble v. Beidler, 38 Ark. 200.
The judgment is reversed, with directions to overrule the demurrer to the amendment to the appellant’s interplea. | [
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Hughes, J.,
(after stating the facts). It is sufficient to say that there seems, upon close examination by the court, to be no tenable objection to the instructions. They sufficiently and strongly declare the law applicable to this case.
The tenth instruction given is very vigorously assailed by the counsel for appellant in their brief, and they have supported their objections to it with much earnestness and ability. The court has given it a close and full consideration, and have reached the conclusion that it is not obnoxious to the objections urged against it. It was not improper for the court to instruct the jury, as it did in the first part of this instruction, that “the burden of showing an alibi is on the defendant, but if, on the whole case, the testimony raises a reasonable doubt that defendant was present when the crime was committed, he should be acquitted.” That this is correct seems to be well settled by a decided weight of authority. 1 Bish. Cr. Pro. sec. 1066; Whart. Cr. Ev. sec. 333; State v. Fry, 67 Ia. 478; State v. Rivers, 27 N. W. 781; State v. Jennings, 81 Mo. 185; State v. Waterman, 1 Nev. 543; State v. Freeman, 5 S. E. 921; Commonwealth v. Choate, 105 Mass. 451; Garrity v. People, 107 Ill. 162; Ware v. State, 67 Ga. 349; Fife v. Commonwealth, 29 Pa. St. 429; McCoy v. State, 46 Ark. 152; Blankenship v. State, 55 Ark. 244.
Another portion of the tenth instruction is as follows: ‘‘The jury should scrutinize the testimony of the witnesses to see if some of them may not be mistaken as to dates and times they saw the defendant, and it is proper for the jury to consider the lapse of time since such occurrence happened, and whether witnesses are likely, after such lapse of time, to be certain as to the precise time or hour they saw the defendant on the night that the shooting occurred. In other words, in arriving at their conclusion on this point, the jury should, if witnesses testify that defendant was, at the time of the shooting, at a different place from where the shooting occurred, consider whether it may not be true that the defendant may have been present at the time Geo. Black was shot, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendant on the said night.” Counsel for appellant urge that ‘‘this invades the province of the jury.” The State has offered no evidence contradicting the witnesses who testified in behalf of the defendant as to an alibi, except that of Henson, a self-confessed murderer and assassin, and they ask what possible theory suggested to the court its right to attempt to impeach them from the bench? They say: ‘‘It is a charge upon the weight of evidence, and an expression of the court’s personal views, and clearly erroneous.” While this part of the instruction is strongly cautionary, when carefully considered, it will be seen that it does not intimate any opinion upon the part of the judge upon the weight of the evidence, nor does it tend to impeach or disparage the testimony introduced to prove an alibi, or to cast suspicion upon it.
The counsel for appellant cite, as directly in point, to support their contention, the case of People v. Pearsall (Mich), 15 N. W. 98. The reason why the court condemned the instruction in that case was, as stated by the court, that “the charge was an indirect, but evident, instruction that the people’s evidence was worthy of being used, and might be used, as a standard by which to test the truth of that given on this subject -on the part of the defense.” The court said: “The charge isolated this testimony for the defense, and, because it was not consistent with the evidence for the people, the jury were told that they should weigh it with the other testimony to see whether the defendant’s witnesses were not mistaken. This discrimination, and the ground of it, were disparaging, and it was a natural inference that the circuit judge regarded the testimony thus pointed out as suspicious.”
In the case, of People v. Wong Ah Foo (Cal.) 10 Pac. Rep. 375, the court gave the following charge in reference to evidence introduced to prove an alibi : * ‘Now, in determining that fact, gentlemen, I instruct you that evidence to establish an alibi, like any other evidence, may be open to special observation! Persons may, perhaps, fabricate (it) with greater hopes of success, or less fear of punishment, than most other kinds of evidence; and honest witnesses often mistake dates and periods of time, and identity of people seen, and other things about which they testify.” On appeal, the Supreme Court of California said : “Upon a close ex- animation of the whole charge, including the part quoted, and giving it an unrestrained interpretation, we do not perceive that the court charged the jury upon the weight, of evidence. It is undoubtedly true, as a matter of fact, that untruthful witnesses may fabricate anything, and testimony of an alibi, may, perhaps, be more easily fabricated than most other kinds, and those facts are-within the knowledge of most persons of ordinary understanding and experience; * * * and, viewed in the-light of good sense, we do not see that the language complained of went beyond a reasonable and fair latitude-of observation permissible from the judge to the jury’.”'
In the case of People v. Lee Gam (Cal.) 11 Pac. Rep. 183, the jury were told in an instruction as to evidence-to establish an alibi: ‘‘Still you are to scrutinize the-testimony offered in the support of an alibi with care, that you may be satisfied that a fabricated defense is-not being imposed upon you.” On appeal, this was approved by the supreme court of California. The court instructed them, of course, that if they had a reasonable-doubt on the whole case, they should acquit.
In the opinion of the court, there . was testimony tending to corroborate the witness Henson, and tending to connect the defendant with the commission of the offense, and the evidence was sufficient to support the verdict of the jury.
The judgment is affirmed.
Riddick, J., being disqualified, did not participate in the determination of this cause. | [
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Battle, J.
Bud Smith was indicted for voluntary manslaughter, committed by killing John Boyd at Sulphur Springs, in Benton county, in October, 1892. “The evidence adduced at his trial tended to show that the deceased was drinking, and that as he came out of a saloon he gave a ‘whoop.’ Sharp, the town marshal, and Poindexter, his deputy, came to where he was, and asked who did the hallooing. The deceased replied that it was he, and they arrested him, and a scuffle ensued, in which the deceased succeeded ‘in getting loose.’ ” When he had freed himself from the hands of the officers, he immediately attacked the marshal, and knocked him down ; and a friend, coming to his assistance, felled the deputy. As soon as the marshal recovered from his fall, he fled toward and around a crowd which was looking on, the deceased following. The defendant was then standing on the outskirts of the crowd whittling with a knife. Sharp, the marshal, in his flight, approached him and said, “I deputize you to help me arrest Boyd.” The defendant made no reply, but moved a step or two toward the marshal, and stopped. The deceased ran up to them with a club or gas pipe, about 20 or 24 inches long, in his hand, and asked the defendant what he had to do with it, and, without waiting for a reply, struck him on the head with the club or gas pipe, and knocked him down, and, as he partially recovered, and before he was erect, struck at him again, and the defendant threw up one hand to ward off the the blow, and as he did so stabbed the deceased with a pocket-knife in the other. Only one' wound was inflicted, and from that the deceased died on the third day. Evidence was also adduced tending to prove that the defendant had never seen the deceased before his arrest by the marshal, and that the deceased threatened to kill him when he was attacking him.
The court instructed the jury, over the objections of the defendant, as to what constitutes murder in the first and second degrees, and defined express and implied malice; and, among others, gave the following instructions to the jury, over the objections of the defendant:
“In order to justify the killing on the grounds of self-defense, it must appear from the evidence that the circumstances surrounding the defendant at the time were sufficient to excite the fears of a reasonable person, and that the defendant really acted under the influence of such fears, and not in a spirit of revenge. It must appear that the danger was not only impending, but was so urgent and pressing that, in order to save his own life or to prevent his receiving great bodily injury, the killing of John Boyd was necessary. It must also appear from the evidence, in order to justify the killing, that the defendant had employed all reasonable means within his power, and consistent with his safety, to avert the necessity of taking life.”
It also gave the following instruction : “ The jury are instructed that if the deceased, Boyd, wilfully or maliciously disturbed the peace and quiet of the town or village or neighborhood of Sulphur Springs by loud or unusual noises, or by abusive, violent, obscene or profane language, and such disturbance was committed in the presence of a peace officer, then such peace officer would have authority to arrest him, and summon others to assist him in making such arrest. In making an arrest for the disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, the officer or person acting under him can exert such physical force as is necessary, on the one hand, to effect the arrest by overcoming the resistance he encounters, or, on the other hand, to subdue the efforts of the prisoner to escape ; but he cannot in either case take the life of the accused, or even inflict upon him great bodily harm, except to save his own life, or to prevent great bodily harm to himself.”
The defendant asked, and the court refused, to instruct the jury that a peace officer, or person summoned to assist him, in making an arrest of a criminal for a disturbance of the peace, or other misdemeanor, or in attempting to prevent the escape of the person arrested, is not required to retreat from resistance made to efforts to compel submission to arrest, but may use such force as is apparently necessary to compel such submission, and may, if, in an effort to do so, he is assaulted by the criminal under such circumstances as lead him to believe he is in danger of losing his life or receiving a great bodily injury, repel force with force to the extent of taking the life of the criminal.
Upon the submission of the cause to them, the jury found the defendant' guilty of voluntary manslaughter, and assessed his punishment at two years imprisonment in the penitentiary. He filed a motion for a new trial, and stated, as the grounds of the same, among other things, that one of the jurors had formed and expressed an opinion as to his guilt or innocence of the crime whereof he was accused, before he was selected to try him; that the court erred in giving instructions to the jury over his objections, and in refusing to give others asked for by him; and that the jury received evidence after they retired to consider of their verdict. To sustain the last ground, the affidavit of one of the jurors was read, to the effect that, after the jury had retired, and had taken a ballot finding the defendant guilty, Ragsdale, a juror, detailed certain circumstances of the killing as of his own knowledge. The State read the affidavits of the twelve jurors, saying that they had found the defendant guilty of voluntary manslaughter before Ragsdale said anything about what he knew of the facts in the case, and, in arriving at the verdict, were governed solely by the evidence adduced at the trial and the instructions of the court.
The motion was overruled, and the defendant appealed to this court.
When a juror or talesman is placed on the stand to be accepted on a jury in a criminal case, or challenged, either party may ask him whether he has formed or expressed an opinion as to the guilt or innocence of the accused. If both fail to do so, the defendant is not entitled to a new trial on the ground that the juror had formed and expressed such an opinion before he was selected. Having failed to avail himself of the means provided by law for obtaining an impartial jury, he has no right to complain of the results of his own negligence. Casat v. State, 40 Ark. 515.
We find nothing in the record in this case, outside of the motion for a new trial, which shows that any juror was asked whether he had any opinion about the guilt or innocence of the defendant; and that there is no error in the refusal of the court to grant a new trial because a juror had formed or expressed an opinion before he. was selected to serve on the jury.
The instructions as to what constitutes murder in the first and second degrees, and express and implied malice, should not have been given, but, as the defendant was only accused and convicted of voluntary manslaughter, they were not prejudicial.
The instruction of the court upon the right of self-defense is not correct. It is true that, “in ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary.”. But to whom must it appear that the danger was urgent and pressing? According to reason and the weight of authority, it must so appear to the defendant. To be justified, however, in acting upon the facts as they appear to him, he must honestly believe, without fault or carelessness on his part, that the danger is so urgent and pressing that it is necessary to kill his assailant in order to save his own life, or to prevent his receiving a great bodily injury. He must act with due circumspection. If there was no danger, and his belief of the existence thereof be imputable to negligence, he is not excused, however, honest the belief may be. The law, says Judge Campbell, of Michigan, “does not hold men responsible for a knowledge of facts, unless their ignorance arises from fault or negligence.” 1 Bishop’s New Crim. Law, secs. 304, 305; 1 Wharton’s Cr. Law (9th ed.), secs. 487#-493; Kerr on Law of Homicide, sec. 169.
Professor Wharton, in his work on Criminal Law, explains what we have said as follows:
“A is assaulted by B, with what appears to be a loaded pistol in his hand. A kills B, believing the pistol to be loaded, when it is not. This, it is agreed, may constitute a good case of self-defense. When we come to analyze A’s belief, however, we find that it is an ordinary conclusion of inductive reasoning ; a conclusion which is erroneous, because its minor premise is false. Putting this process in syllogistic form, it stands as follows:
“Whoever assaults me with a loaded pistol endangers my life.
“B assaults me with a loaded pistol, etc.
“Supposing, however, we substitute for the subject of the major premise the term ‘garroter’—slightly varying the predicate, the process may be then thus stated:
“A garroter taking me by the throat is likely to do me great bodily harm.
“B is a garroter taking me by the throat, etc.
‘ ‘ Now, in the first case, it is enough if I honestly, though erroneously, believe that B’s pistol is loaded; and, in the second case, it is enough if I honestly, though erroneously, believe that B is a garroter. In ' both cases the error of the conclusions is one of the apprehensive powers. I err in my apprehension; I do not see aright; or I have been misinformed; or I have not heard aright. But in each case the error for which I am to be put on trial is my error, not somebody else’s error. It is no excuse to me, if I resort to self-defense, that some ‘ reasonable ’ looker-on believes the pistol to be loaded, when I know that it is unloaded. So it is no excuse to me, if I shoot down a person suddenly hustling me, that some reasonable looker-on believes the supposed assailant to be a garroter, when I know him not to be a garroter. So if I, according to my own lights, conclude the pistol to be loaded, or the assailant to be a garroter, then I am to be acquitted of malice if I act upon, this belief, though I cannot be acquitted of manslaughter if I arrive at this belief negligently. In other words, I cannot be convicted of murder, which involves a malicious intent, unless I have malicious intent; though I may be convicted of manslaughter if I have killed another by aiming at him a dangerous weapon without due consideration.”
In the instruction given upon this subject, in this case, the court virtually told the jury that the defendant could not be justified on the ground of self-defense, unless it appeared to them from the evidence “that the danger was not only impending, but was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of John Boyd was necessary,” and that he “had employed all reasonable means within his power and consistent with his safety to avert the necessity of taking life.”- This was error.
As to the other instructions, given or refused as before stated, it is sufficient to say: A peace officer may arrest any one committing a misdemeanor in his presence, without a warrant, and, if necessary, orally summon as many » persons as he deems necessary to aid him in making the arrest. In making the arrest, or in preventing an escape after the arrest, the officer or person assisting him in obedience to a summons, when resisted by the offender, is not bound to retreat, but may use such physical force as is apparently “necessary, on the one hand, to effect the arrest by overcoming the resistance he encounters, or, on the other, to subdue the efforts of the prisoner to escape ; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself. ’ ’ Thomas v Kinkead, 55 Ark. 502.
Affidavits of jurors are not admissible to show that the jury received evidence after they had retired to consider their verdict. Under the statutes of this State a juror cannot be examined to establish any ground for a new trial, except that the verdict was made by lot. Mansfield’s Digest, sec. 2298; Wilder v. State, 29 Ark. 293.
For the error indicated the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Joseph W. Martin, Special J.
The bill of complaint in this case was filed by appellants, certain owners of real estate along Louisiana street, in the city of Little Rock, between Tenth and Fourteenth streets, to enjoin the collection of an assessment made by order of the city council to pay for an improvement made on that street. They allege that the assessment is without authority of law, and that their property is not legally bound therefor. The defendants (appellees here) claim that the proceedings under which said assessment was made are in substantial compliance with the law, and that, even if there were irregularities or defects, the appellants are estopped to deny the liability of their property for the same.
What is by law required to be done? Our State constitution, after very carefully guarding and limiting the general powers of taxation of the State and counties, in section 27 of article 19, provides as follows : “Nothing in this constitution shall be so construed as to prohibit the general assembly from authorizing assessments on real property for local improvements in towns and cities, under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected.” The law enacted in pursuance of this constitutional provision provides for the following steps to be taken : First. Ten resident owners of real estate in the proposed district shall apply by petition for the formation of an improvement district. Second. The city council shall lay off' the district. Third. A majority in value of the owners of real estate in said district shall present to the council a petition praying that such improvement be made, which petition shall designate the improvement to be undertaken. Fourth. The council thereupon appoints the board of improvement of the district. Fifth. The board is immediately to form plans and procure estimates of the cost of the “improvements as prayed for in the petition.” Sixth. The board reports plans and estimates to the city council. Seventh. The city council by ordinance shall assess the cost upon the real property in the district, and, if more than one per cent, of the value, shall provide for its payment by annual instalments of one per cent, each year. Eighth. The board is to go forward with the work, and may do it by contract, and may borrow money and pledge the assessments for payment. Ninth. If first assessment is not sufficient to complete the improvement, may have additional assessment levied by the council as at the first. Mansf. Dig. 826 to 837. The other sections of the act deal mainly with the collection of the tax and the condemnation and sale of real estate thereunder, and are very peremptory and summary in character.
What was done in this case?
First. About July 22, 1890, a petition, signed by ten and more resident owners, was presented to the city ■council, “to form said part of Louisiana street from 10th to 14th streets into an improvement district, for the purpose of “grading, rolling and graveling it.”
Second. On July 22, 1890, the council passed an ■ordinance creating “Improvement District No. 33,” for the purpose of “grading, rolling, graveling or otherwise improving said Louisiana street.”
Third. About same time a number of the owners ■of real estate in District No. 33, as is recited in the application, presented to the city council a petition in which they pray that Louisiana street within said district be “graded, rolled, shaped, and graveled, and that the cost thereof be assessed and charged upon the real •property situated within said district.” To this petition is attached the certificate of the county clerk, as by the .act provided, showing that the petitioners constitute a majority in value of the owners of real estate in the district. Aggregate value as shown $75,475; petitioners property $44,325.
Fourth. On August 26,1890, the board of improvement presented to the city council the following report: “We, the Board of Commissioners of Grading District No. 33, beg to report that we have organized by the • election of H. P. Edmonson as chairman, and that we have caused an estimate to be made, which amounts to :$750, which being one per cent, of the assessed valuation, we respectfully ask the passage of the attached ■ ordinance,” signed by the members of the board.
Fifth. On September 22, 1890, the council passed •Ordinance No. 277, as follows: “An ordinance to .assess the cost of grading that part of Louisiana street lying between Tenth and Fourteenth streets, in Grading District No. 33, in the city of Little Rock, upon the -.real property of said district. Whereas, a majority of the property holders owning real property adjoining the locality to be affected and situated in Grading District No. 33, of the city of Little Rock, organised for the purpose of improving the street therein, have petitioned the ■city council of the city of Little Rock for the construction of such improvement, and that the cost thereof be assessed against the real property in the said district; and whereas the estimated cost of said improvement is ■seven hundred and fifty dollars ($750), amounting to one (1) per centum of the assessed valuation of the said property ; therefore, be it ordained by the city council of the ■city of Little Rock: Section 1. That all the property situated in the said district be assessed at the rate of one (1) per centum on the dollar of the assessed valuation, as the same appears in the assessment last made by the assessor of this (Pulaski) county, now on file in the county clerk’s office, which assessment shall be paid in one annual instalment of one per centum, which shall be paid •on or before the 20th day of October, 1890; and when said assessment shall have been paid, if the same shall prove insufficient to complete the said improvement, the board of improvement of the said district shall report the deficiency to the city council for further action as required by law.”
This ordinance is inserted in full, as it shows the ■status of the proceedings up to that time, and which seems to have been all regular and in conformity to law, ■except as hereinafter noted. And, doubtless, if the work had progressed on the plan adopted and up to that time acted upon by all parties, there would have been no disagreement. But here the trouble began. The board •about this time became satisfied that the “graveling” would be more expensive than had been estimated, and that “ macadam ” would be more desirable, and could be •obtained at little, if any, increased expense ; and accordingly entered into a contract, of date October 25, 1890, with the Little Rock Granite Company, for an improvement of stone “guttering, curbing, and macadam,” to cost $5,359.20, instead of the “graded and graveled” street at $750, as at first estimated and reported to the council. And here we take occasion to say that there is nothing in the record to impeach in the least the integrity, good faith and conscientious motives of the gentlemen constituting the board of improvement. They were resident citizens of prominence in the district, interested in the improvement, whose property had to bear its proportion of th& tax, and who gave their time and labor gratuitously to the accomplishment of the work. Under this contract the work was shortly afterwards begun by the contractor, a.nd by the 18th of November, 1890, the greater part of the street along the four blocks from Tenth to Rourteeenth had been plowed up,. partial excavations made, preparatory for the macadam, and considerable stone had been hauled for the curbing and guttering, and some of the curbing was being put in place. At this juncture, many of the property owners—a majority in value—for the first time, as is alleged, made aware of changes in the character of the work proposed by the board, and of its vastly increased expense, prepared and sent to the board, on the 18th of November, a remonstrance as follows :
“Gentlemen: We, property owners in said district, respectfully state that when we petitioned the city council for the formation of said district, we did so with the distinct understanding that the improvement would be grading, rolling and graveling only, at an expense not to exceed $10 a lot. We now understand that the contemplated improvement is stone curbing and gutterings and macadam, at an expense of over $100 per lot, which the value of the property in the district will not justify without greatly'oppressing the owners. .The contemplated change from gravel to stone, at the price to be paid, is an entire change from the desire and expectation of the owners who asked for the improvement, and one that they would not have originally asked for or desired. We further think that there is no power, under the ordinances creating the district, to make so radical a change in the sort of improvement to be made against the will of the property owners, and respectfully notify the commissioners, if the work of macadamizing, curbing and guttering with stone is continued, we will resist the levy and payment of all taxes to pay for it, in excess of the stipulated cost of the original improvement specified in our petition to the city council, and now notify the commissioners of our intention, that they may take such a course in the matter as they may deem advisable.”
This wras signed by owners representing nearly two-thirds in value of the real estate in the district. Upon its presentation to the board, the gravity of the situation was realized, the work was suspended, and a public meeting called by the board at the law office of a member, for consultation with the property owners as to what was best to be done. As to the attendance at this meeting, the value of property represented, and the results attained, the evidence is somewhat conflicting. At all events, the board, deeming itself justified by the expression of sentiment obtained, ordered the work forward, and the contractor continued, and sometime in the early part of April, 1891, without further objection made to the board, it was completed. It appears to have been well done, and to have been a valuable improvement to much, if not all, of the property along the street, and to have been worth the contract price.
In the meantime, along in January and February, 1891, the assessment of one per cent, made by Ordinance No. 277 had been paid in full, and turned over by the board to the contractor. There remaining a balance of nearly $5000 on the contract, the board, in December, 1891, applied to the city council for an additional assessment of seven £er cent, to complete the ‘ payment. Against this application a very strenuous resistance was made before the council by the property owners, through their attorney; but the board prevailed, and, on the 18th of January, 1892, the following ordinance was passed : “Ordinance No. 393. An ordinance to authorize the Board of Improvement of Grading District No. 33 to collect an additional assessment of seven per cent, upon the real property of said district for the improvement contemplated thereby. Be it ordained by the city council of the city of Bittle Rock : Section 1. That the real property in said Grading District No. 33 be, and the same is hereby, assessed at the rate of seven per centum on the dollar of the assessed valuation of the real estate within said district, as the same appears by the last assessment made, and existing on the first day of December, 1891, in the assessment rolls of Pulaski county, subject to such later assessments upon the said rolls as may. be contemplated by law ; which assessment shall be paid in seven annual instalments of one per centum per annum at the same period of the year as has been heretofore adopted by the said board of improvement for the payment of prior assessments therein.” This action of the council was taken without any report whatever from the board as to the deficit to be made up, the estimated cost, or change in the character of the work. The collector, defendant Griffith, was proceeding to collect the first annual instalment under this ordinance when the appellants filed their bill in this case.
The first step to be taken by the city council is to lay off the district “designating the boundaries of such district, so that it may be easily distinguished.” By reference to the description given in the ordinance creating the district, it will be seen that no boundaries were defined. It is as follows: “On Louisiana street, between the following points, that is to say, on Louisiana street, from a straight line drawn at right angles with the center line of Louisiana street along the center line of Fourteenth street, to a straight line drawn at right angles across the center line of Louisiana street, along the center line of Tenth street, be and the same is hereby laid off,” etc. * ‘On Louisiana street” means nothing. It is for the council to determine how far back on either side of the street real estate is “adjoining the locality to be affected.” And in Little Rock v. Katzenstein, 52 Ark. 112, the court say: “Fxcept when attacked for fraud or demonstrable mistake,” the finding is conclusive. Neither the act or the decisions of our court in any way relieve the difficulty. Whether district No. 33 extends out one foot or three hundred feet from the street in no way appears, and, strictly construed, the district is nothing but a straight line down Louisiana street. But as all parties have treated it as extending to the center of the blocks on either side, as is usual, we only advert to it here in passing.
The next and all-important step is the petition of “a majority in value of the owners” for the improvement, for which not only their property, but that of all other owners in the district, shall be taxed, even those who are unwilling to be burdened for any kind of improvement ; for we must bear in mind the very object is, by means of the law, to force their neighbors into what the petitioners are willing to help pay for. This petition is “to designate the nature of the improvement to be made.” No owner is expected to sign unless he is willing that his property shall be assessed to pay for the improvement named, nor does he in any way bind his property for any other improvement than that for which he prays. There is little room for discussion or controversy as to whether such a provision as this is merely directory or is mandatory. It is based on the fundamental provision of the constitution allowing the general assembly to confer such power on any municipal corporation, and is carefully preserved by the express language of the act. That such a provision is mandatory, and a condition precedent to the exercise of the power by the city, its officers and agents, is settled law. Such attempted exercise is strictly scrutinized by the courts, and any substantial departure from the mandatory provisions of the statute granting the power will render the act utterly nugatory and void; and of this rule all persons invoking the power, or claiming under it, must, at their peril, take notice.
“Statutes which impose burdens or liabilities unknown at common law are construed strictly in favor of those upon whom such burdens are imposed.” “Mandatory statutes are imperative; they must be strictly pursued.” “When a statute is passed authorizing a proceeding which was not allowed by the general law before, and directing the mode in which an act must be done, the mode pointed out must be strictly pursued. It is the condition on which alone a party can entitle himself to the benefit of the statute that its directions shall be strictly complied with. Otherwise the steps taken will be void.” Sutherland on Statutory Construction, secs. 390 and 454; Bndlich on Interpretation of Statutes, secs. 345, 352 and 434; Beach on Public Corporations, secs. 1166 and 1177 ; Cooley on Taxation, p. 283; Welty, Law of Assessment, sec. 221.
Says Judge Dillon, one of the ablest and clearest law writers in the books: “As the authority to make local assessments does not exist unless legislatively conferred, so it can be exercised no further than it is clearly given, and if the mode in which the authority shall be exercised is prescribed, that mode must be pursued.” 2 Dillon, Mun. Corp. sec. 769. And, further, he says: “Where the power to improve depends upon the assent or petition of a given number or proportion .of the proprietors to be affected, this fact is jurisdictional, and the finding of the city authorities or council that the requisite number had assented or petitioned is not, in the absence of legislative provision to that effect, conclusive. The want of such assent makes the whole proceeding void, and the non-assent may be shown as a defense to an action to collect the assessment.” 2 Dillon, Mun. Corp. sec. 800.
“Where a petition of a certain number or proportion of the owners of property is necessary to set the machinery of the statute authorising the improvement in motion, a petition meeting all the requirements is an indispensable prerequisite to the jurisdiction of the municipal authorities.” Beach on Pub. Corp. sec. 1180; Zeigler v. Hopkins, 117 U. S. 683.
“A statute delegating authority to charge property with the expense of local improvements must be strictly pursued. What the legislature has prescribed must be done, and cannot be declared to be merely directory and immaterial.” Merritt v. Port Chester, 71 N. Y. 309; Matter of Pennie, 108 N. Y. 373.
“The duties and powers of officers of a public corporation or its agents are prescribed by statute or charter, which all persons not only may know, but are bound to know.” 1 Dillon, Mun. Corp. sec. 457.
In State v. Railway, 31 Ark. 720, this court say: “Judge Dillon, in his work on Corporations, paragraph 419, says: ‘Where the authority to act is solely conferred by statute, which is, in effect, the letter of attorney of the officer, all persons must, at their peril, see that the act of the agent on which they rely is within the power under which the agent acts.’ ”
This court, in the recent case of Newport v. Railway Co. 58 Ark. 275, quoting from Schumm v. Seymour, 24 N. J. Equity, 144, say: “It is a general and fundamental principle of law that all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation, or its officers, to make the contract.”
That the consent of a majority of the owners, where the statute requires it, is jurisdictional, and that the failure to obtain it is fatal to all proceedings under it, and renders them null and void, see, in addition to above, Keese v. Denver, 10 Col. 122; Jefferson Co. v. Mt. Vernon, 145 Ill. 80; Mulligan v. Smith, 59 Cal. 206; Hudson v. Jefferson Co. 28 Ark. 360; Ladd v. Spencer, 31 Pacific R. 474; Holland v. Baltimore, 11 Md. 186; Bouldin v. Baltimore, 15 Md. 18.
In Mulligan v. Smith, supra, the court, in dismissing this question of a majority petition which had been omitted in that case, say: “The presentation of the petition required by the statute was therefore essential. It was, as other courts have expressed it, a jurisdictional fact, that may not be presumed or inferred, upon which rested all the subsequent proceedings.” And further on: “A common requirement, says Mr. Cooley, is that, the improvement shall be asked for or assented to by a majority or some portion of those who would be taxed. The want of' compliance with this is fatal in any stage of the proceedings.”
This case is peculiar in the fact that there was a. petition in due form, and signed by a majority of the owners, for an improvement. But the improvement designated in that petition was to have the street “g'raded, rolled, shaped and graveled.” The expense of this improvement, as duly reported to the council by the board, was $750. And that is about what the owners alleged and testified they supposed it would cost, and that they were willing to pay, and did really pay in the first assessment collected while the work was progressing. The improvement for which they are now assessed and asked to pay is “stone curbing, guttering and macadam" at an expense of $5,359.20. The first would have been paid ofE in one assessment; the last, bearing interest at ten per centum per annum, will require many years to liquidate. To hold that such a departure from the original petition can be sustained would be to strip the property owners of all possible protection, so carefully provided for them, both in the constitution and the statute. The approval of such a proceeding would necessarily put a quietus on all effort at anything less than the most expensive improvement tolerated by the statute, when there would be no danger from this indefinite expansion. Nor if a petition for a ‘‘''graded and graveled street,” at $750, can be stretched to cover a stone curb and macadam improvement, costing over $5Q00, then a property owner could hardly dare ask for a dirt road street past his house, lest he should, in the marvelous evolution of the power conferred in his simple petition, find his home burdened with the cost of a most extravagant granite pavement, erected by his more energetic and progressive neighbors.
That there was a radical change made here is obvious at a glance. Dr. Stark, one of the board, who had actively participated in the original movement for the ‘‘graded and graveled" street, very frankly told the other members that he could not consistently vote for the “change.” He knew that was not what the owners signing the petition wanted or expected or asked for in their petition. The engineer refers to it as a change to “macadam” from “grading and graveling.” Indeed, throughout it was recognized by all parties as such a change, but one which the board thought desirable, and they, doubtless in perfect good faith, entered upon the last improvement, thinking it for the advantage of the property owners, whom they claimed to represent as their agents in doing the work. And, in a certain very limited sense, where the law has been complied with, they may be regarded as their agents. But it must be borne in mind always that the terms of such quasi agency are rigidly prescribed by the law of their creation, and that law is the measure of their power beyond which they cannot go. The petition prescribed the extent of their power, and everything beyond that was without authority of law, and void. The assent of the owners for this improvement was never obtained, no petition was ever made for it, and no power ever given to the board to make it.
Bstoppel by Acquiescence.
There is much plausibility in the argument that the owners of property, having seen the improvement made, and enjoying its benefits, without active steps to prevent it, are now estopped by their acquiescence. If the defects were mere irregularities in the exercise of a power conferred, this contention, in a proper case, might be maintained. But this rule has no application in a case like the present, where there is an absolute failure on the part of the board to secure the power to act through the essential prerequisite—the petition of the property owners for the improvement to be made.
The court say, in Starr v. Burlington, 45 Iowa, 90: “As the proceedings for the assessment upon plaintiff’s property are void—were without jurisdiction from the beginning, he is not estopped to deny their validity on the ground that he made no objection while the improvement was in progress. As to mere irregularities, he would be estopped.” In Keese v. Denver, 10 Col. 122: “The objection goes to the power, and is jurisdictional. The principles of estoppel have no application to the facts in this case.” And in same case: “The consent of the majority of property owners is jurisdictional.” In Chicago v. Wright, 32 Ill. 193: “As the objection goes to the origin of the proceedings, the parties are not estopped to object because they failed to object in time before the council, as they might have done.” And in a recent case (Newport v. Railway Co. 58 Ark. 275), this court states the rule to be thus : “The doctrine of equitable estoppel has no place in a case where usurped powers have been exercised by the officers.” On this point see, also, Tone v. Columbus, 39 Ohio St. 299; Motz v. Detroit, 18 Mich. 495; Zottman v. City of San Francisco, 20 Cal. 98; Kankakee v. Potter, 119 Ill. 324; Coggeshall v. Des Moines, 41 N. W. 617; McLauren v. Grand Forks, 43 N. W. 710; Matter of Sharp, 56 N. Y. 259. In Mulligan v. Smith, 59 Cal. 233, the rule is thus forcibly stated: “Nor does the failure of the defendant to resort to legal remedies against the proceedings while in fieri constitute an equitable estoppel. It was the duty of those who were authorized to exercise powers which might bind the real property of defendant to see that the provisions of the statute under which they acted were complied with.”
But independent of this proposition of law, which precludes the defense of equitable estoppel in this case, we think the facts, fairly considered, furnished no grounds of estoppel. The appellants were not silent. On the other hand, as soon as they learned of the illegal •action of the board in entering upon the changed work, they at once filed with them their earnest remonstrance, And advised the board and the contractor that they would not be bound by it, and would resist any assessment to pay for it. It will hardly be contended that the public meeting called by the board would have any material effect to validate the proceedings. The statute under which the board was acting has no' place in it for procuring the assent of a majority of property owners by the vote of a mass meeting. If the board was proceeding, as we have seen, without legal author ity or power, an appeal to such source was a vain and futile thing to do. Indeed, most of the property owners in the supposed district, in their depositions, either deny attending the meeting, or assert they did nothing there to assent to the change in the work. The “remonstrance” put the board and all persons dealing with it upon full notice that the property owners proposed to stand squarely on their legal rights. That they did not afterwards make further objection to the effort to impose the additional seven per cent, assessment was consistent with their attitude of declared opposition. They could not prevent the prog-ress of the work upon the public streets. They had made their protest in distinct and definite -terms, and could only await developments. And when the time came, as indicated in their protest, they are found making very earnest and continued opposition, all along the line, to the imposition of any assessment beyond the one percent., which had been, as conceded, leg-ally made under Ordinance 277; and its payment furnished no ground for equitable estoppel as to the seven per cent, assessment, which all parties had express notice they would resist.
The power of taxation, especially for local improvements, is the highest attribute of sovereignty. It involves the right to take the private property of the citizen without his consent, and without any other consideration than that of the public good. Such statutes' must be construed with the greatest strictness, and he who would, by these proceedings, force his unwilling and perhaps-more prudent neighbor into such an enterprise must see to it that he strictly complies with all the substantial requirements of the law which he invokes. In Matter of Sharp, 56 N. Y. 259, the court very fairly presents the great and mischievous consequences which result from an attempt to apply too freely the doctrine of equitable estoppel in making public improvements, where some are made to pay and some are released, according to the attitude of each individual, and take the ground, which seems based on wise considerations of public policy, that the proceedings ought to be such that “all are barred or none.” While we will not say that this rule is one of universal application, yet there is no question but that the public interests and the protection of private property rights alike imperatively demand that the utmost vigilance and caution be exercised in the use of a power so dangerous in its abuse.
In this case, when the board found it impracticable to make the improvement the property owners had petitioned for, there was but one course for it to pursue— stop the work, and go back to the beginning, and get a. petition signed by the necessary majority for this new work. Failing to do this, omitting to get the legally expressed assent of a majority in value of property owners for this new improvement, from that time forward the board and the city council were absolutlely without power to act; and the ordinance to assess the seven per cent, tax and all proceedings under it were and are null and void.
The decree of the court below is accordingly reversed, and the appellees are perpetually enjoined from any further proceedings under said Ordinance No. 393, or to charge the real estate of appellants with the costs of said improvement.
Judge Battle disqualified.
Judge Riddick, who was not present at the submission, did not participate in the opinion and judgment. | [
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Sam Robinson, Associate Justice.
The issue here is whether the lessee of property, sold to the Highway Department by the fee owner, is entitled to damages by reason of being dispossessed.
In connection with its highway building program, on September 10, 1959, the Arkansas State Highway Commission purchased from W. B. McHaney, property on which was located a filling station. It was agreed that McHaney was to remove the filling station equipment from the property 60 days after he received payment. On June 14, 1960, McHaney had not removed the equipment and on that date the Highway Commission filed this suit asking that a Mandatory Injunction be issued requiring McHaney to remove the equipment from the property purchased by the Highway Department in September, 1959 and praying judgment for rent on the property at the rate of $500.00 per month from September 21, 1959.
S. J. Ezelle filed an intervention in which he alleged that he was a sub-lessee in possession of the property in question under the terms of a lease agreement between McHaney and C. E. Clawson, dated September 1, 1955; that the lease had been assigned to the intervenor by Clawson on April 1, 1959 with the approval of McHaney, the lessor; that the intervenor paid $3,500.00 for the lease which would expire September 1, 1960 but was subject to renewal for an additional five years at the option of the sub-lessee; that the sub-lessee had valuable rights under the lease, and should be compensated by the Highway Department for the loss he sustained by reason of the taking of the property. Upon a trial of the issues involved, the Chancellor found for the intervenor in the sum of $5,140.00. The Highway Department has appealed.
The Highway Department is not an innocent purchaser. Before buying from McHaney the Highway Department was informed of the Clawson lease. The issue is, therefore, the amount of damages sustained by Ezelle, the assignee of the lease, by reason of being dispossessed of the leased property. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81.
Ordinarily, the measure of damages in a ease of this kind is the difference between the amount of rent reserved in the lease and the fair rental value of the property at the time of the taking. Orgel on Valuation Under Eminent Domain, Vol. 1, Sec. 121. In Thomas v. Croom, 102 Ark. 108, 143 S. W. 88, the Court said: ‘ ‘ The measure of damages for the breach of this implied covenant for possession is the difference between the rental value of the demised premises and the rental price named in the lease, together with such special damages as have necessarily resulted from such breach.” The Court further said: “The probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and can not be considered in determining the amount of such damages.” See also Person v. Williams, 125 Ark. 174, 187 S. W. 1063. To the same effect is Reeves v. Romines, 132 Ark. 599, 201 S. W. 822. There, in addition to pointing out that the measure of damages in an implied covenant for possession, the Court said: “By rental value is meant not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for or by evidence of other facts from which the fair rental value may be determined.” Special damages are allowed only where such damages were contracted by the parties at the time they made the lease. Morrison v. Weinstein, 151 Ark. 255, 236 S. W. 585.
In the case at bar, the fair rental value of the property is shown by the evidence to be from $150.00 to $175.00 per month, but no amount is mentioned in the lease that the lessee is to pay as rent. In fact, the so-called lease agreement does not provide for the payment of any amount as rent. The so-called lessee was merely selling gasoline for the lessor on a commission basis. Actually, Ezelle was being paid per gallon for selling gasoline at McHaney’s place of business. McHaney furnished the building, the gasoline, and paid the utilities. The appellee, Ezelle, testified: ‘ ‘ Q: What rent do you pay Mr. McHaney? A: I operate on a commission basis.” Mr. McHaney testified: “Q: How much rent is Mr. Ezelle paying you per month for these premises? A: He is not paying me any rent whatever, never has.” For his services Ezelle was to be paid 2>‡ per gallon for gasoline sold, but he had the privilege of selling other things such as motor oil and other articles on which he retained all the profits, if any. The profits of a business is not the proper criterion for the value of property or of a lease. Hot Spring County v. Crawford, 299 Ark. 518, 316 S. W. 2d 834, Arkansas State Highway Commission v. Addy, 229 Ark. 768, 318 S. W. 2d 595.
Ezelle paid to Clawson, the original lessee, $3,500.00, of which $3,000.00 was for the assignment of the lease and $500.00 was for stock in trade. At the time Clawson’s rights were assigned to Ezelle the lease had 17 months to run of the original five-year term, and an additional five years if the option to renew was exercised, making a total of 77 months Ezelle could have the privilege of selling gas for McHaney at 30 per gallon. For this privilege Ezelle paid $3,000.00 or $38.96 per month. He actually used the property 14 months which, at $38.96 per month, would total $545.44. This sum deducted from the $3,000.00 paid by Ezelle leaves the sum of $2,454.56, and this is the amount of Ezelle’s damages and the amount he is entitled to recover.
In view of the fact that the Highway Department had knowledge of Clawson’s rights at the time of the purchase from McHaney and the additional fact that no amount of rent is named in the lease, we do not think the Highway Department is entitled to recover any rent.
The decree is modified and Ezelle is awarded a judgment in the sum of $2,454.56 and, as modified, the judgment is affirmed.
Bohlinger, J., not participating. | [
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Riddick, J.,
(after stating the facts). The most serious question that confronts the court in this case is whether the complaint is sufficient to sustain the judgment. The deed set out in the complaint does not contain the statutory words, “grant, bargain and sell,” from the use of which certain covenants are implied by virtue of our statute, and, without going into a discussion of the question, we hold that it only contains a covenant of warranty. In order to recover for the breach of such a covenant, an eviction, either actual or constructive, must be alleged and proven. “Although there must be an eviction, it is not necessary that there should be an actual dispossession of the grantee. If the paramount title is so asserted that he must yield to it or go out, the covenantee may purchase of the true owner, and this will be considered a sufficient eviction to constitute a breach.” McGary v. Hastings, 39 Cal. 367; Loomis v. Bedel, 11 N. H. 74.
As a general rule, there must be some hostile assertion of the paramount title ; but when the United States are the owners of the paramount title, and the land is subject to entry and settlement, it has been held that this is a sufficient assertion of the hostile title to authorize the grantee to submit to it and purchase. “While it is true,” says Chief Justice Horton, of the supreme court of Kansas, speaking for the court in the case of Kansas Pacific Railway Co. v. Dunmeyer, “that under the covenant of warranty, as usually expressed, a purchaser cannot, as a general rule, buy in any paramount claim and elect to consider himself evicted to the extent of the purchase money of such claim, yet when the title to the land in controversy is in the United States, and liable to-entry and settlement under the provisions of the homestead law, that of itself is such a hostile assertion of the paramount title as would authorize the purchaser to-voluntarily submit to it.” Kansas Pacific Ry. Co. v. Dunmeyer, 19 Kas. 539.
As tending to support this rule, see McGary v. Hastings, 39 Cal. 360; Abbott v. Rowan, 33 Ark. 593; Green v. Irving, 54 Miss. 462; Glenn v. Thistle, 23 Miss. 42. The reason given for this rule in some of these decisions is that the statute of limitations does not run against the United States, and that no length of adverse holding will secure a title to the grantee in possession. In addition to this, we think that the United States should be considered as always asserting title to their lands, and it is so held in some of the cases mentioned above. In the old and leading case of Loomis v. Bedel, 11 N. H. 74, it was held, in a case where the administrator of the estate of the person who held the paramount title offered it for sale at public auction, that this was a sufficient assertion of title to justify the grantee in purchasing such paramount title, arid that such sale and purchase would amount to a constructive eviction sufficient to sustain an action on the covenant of warranty, although there was no actual eviction or disturbance of possession. The lands belonging to the public domain of the United States, that are subject to entry and settlement, may be considered as always being offered for sale to those who possess the proper qualifications, and we hold that a grantee in possession of such lands may purchase the same, and such purchase will be treated as a constructive eviction sufficient to sustain an action on a covenant of warranty. As was pointed out in the case of Loomis v. Bedel, supra, there is no injustice done the grantor by this rule, for no action can be maintained against him upon his covenant in such a case, except upon proof of the actual existence of a title superior to the one he conveyed, and which his grantee could not withstand at law.
Looking at the complaint in the light of the law as ° A stated above, we see that' it is defective in at least one respect. Instead of alleging an eviction by the United States by virtue of their paramount title as one of the ultimate or issuable facts, the plaintiff, without such allegation in her complaint, has set out the evidence tending to show such eviction. • This is not good pleading ; for the evidence may prove, though it does not constitute, the cause of action, and the pleader should set out the material or issuable facts. But it does not necessarily follow that the demurrer should be sustained because the complaint is defective in this respect. “In passing upon the demurrer,” says Mr. Bliss, “the court will only inquire whether it can gather from the pleading the requisite facts, however loosely or defectively stated.” Bliss on Code Pleading, sec. 425a. After some degree of doubt we have concluded that the complaint in this case shows a cause of action, although it is shown in an argumentative way. , The remedy, for such a defect, which is one of form and not of substance, is a motion for an order to compel the party offering such pleading to make it more definite and certain. The complaint alleges, in substance, the purchase of the land from the defendant by plaintiff’s intestate, sets out the covenants in the deed, and, although it does not specifically allege eviction, it sets out facts which in our opinion show an eviction, and this was sufficient to justify the court in overruling the demurrer.
In the assessment of the damages, we, also think that the lower court was right. The general rule is that the measure of damages in actions of this kind is the purchase price, with interest from the time of the eviction. But where the covenantee has extinguished the adverse title, his recovery will be limited to the amount necessarily paid by him for that purpose, including the incidental expenses and reasonable compensation for his trouble, not exceeding in all the purchase price and interest. 2 Suth. Dam. (2 ed.) sec. 610; McGary v. Hastings, 39 Cal. 360; Loomis v. Bedel, 11 N. H. 74; Collier v. Cowger, 52 Ark. 322; Estabrook v. Smith, 6 Gray, 572; Hurd v. Hall, 12 Wis. 112.
It is earnestly contended by counsel for appellant that the fact that plaintiff’s intestate was in possession of the land at the time he purchased and received his deed from the defendant company, and that the defendant was not in possession, and had no title at that time, nor ever acquired title afterwards, entitles the plaintiff to recover the full amount of the purchase money and interest. We cannot agree with them in this contention. Plaintiff’s intestate was in the possession of land to which the defendant claimed title. He purchased the land from defendant, and it gave him a deed with covenant of warranty. By reason of the want of title in the defendant, he was compelled to pay out twenty-six dollars to purchase the, paramount title of the United States. When defendant has returned to his estate this sum with interest from date of its payment, it will be in the same condition as if the title conveyed by defendant had been perfect.
As the fact that plaintiff’s intestate was in possession at time of purchase from defendant, and received no title under the conveyance, does not warrant a recovery for the full amount of purchase money, neither, on the other hand, is it a defense to this action for defendant to say that, at the time plaintiff’s intestate received its deed, he knew that the United States claimed title to the land, and had already taken steps to enter it as a homestead. He was no doubt seeking to protect his title by buying from the railroad, but, as there was a dispute about the title, there was more reason why, as a prudent man, he should protect himself by having a covenant of warranty in the deed from defendant. It would be strange if the doctrine of estoppel applied in such a case so as to prevent a recovery, and, after considering the authorities cited by counsel, we are satisfied it does not.
Opinion on rehearing delivered Dec. 15, 1894.
A sum representing the actual injury occasioned by the breach of warranty was awarded by the court, and, although contended to the contrary, we believe the evidence sufficient to support the verdict. We are convinced that it was right, for, as is said by a learned writer on this question, “in every variety of circumstances the recovery will be graduated to the actual injury.”
The judgment of the circuit court is therefore affirmed.
Mr. Justice Wood, being absent, did not participate in the determination of this cause.
Riddick, J.
The judgment of affirmance entered in this case was set aside at the end of the last term to give the court further time to investigate the questions arising on the motion to rehear. Counsel for appellant insist that the measure of damages in this case should be the price paid for the land without regard to what was paid by the grantee to procure the outstanding title. We find only one case that seems to support this contention, the case of Thiele v. Axell, 5 Tex. Civil Ap. 549; S. C. 24 S. W. 803. No authorities are cited in the opinion in that case, and we are not sure that the court intended to announce the rule contended for by appellant, but, conceding that it did, we must think that such ruling is not only against the great weight of authority in this country, but directly in conflict with many well considered cases in that State.
In McClelland v. Moore, 48 Tex. 355, it was held that the measure of damages on a breach of warranty of title to land, where the purchaser has voluntarily removed the incumbrance or acquired the paramount title, is “limited to the amount reasonably paid for that purpose.” The same rule was announced in Denson v. Love, 58 Tex. 471, where it was said to be-“established by the great weight of authority, in fact, the almost universal rule.” In a late case—somewhat similar to the case at bar—it was held that “where the title to land conveyed under general covenants of warranty fails, and the purchaser is compelled to acquire the title of the State thereto, the measure of damages, in the absence of fraud or misrepresentation on the part of the grantor, is, not the whole purchase price paid to the grantor, but the amount paid the State in order to perfect the title to such land.” James v. Lamb, 21 S. W. Rep. 172 (syllabus); 2 Texas Civil Appeals, 185.
• When at the time of the conveyance a third person is in possession of the premises holding under a paramount title, the covenant of warranty is at once broken. Rawle -on Cov. (5 ed.) sec. 139. In such a case the grantee may sue for and recover as damages for breach of his warranty the full amount of his purchase price. But if the grantee is in possession, this rule does not apply, and there is no breach of the warranty until there has been an •eviction, either actual or constructive. So it has been held that when a grantee in a warranty deed holds a title or incumbrance on the real estate conveyed, he can mot set up such title as a breach of the covenant of warranty, for “covenants of warranty-only extend to a title -existing in a third person which may defeat the estate granted by the covenantor. They do not embrace a title already'vested in the covenantee.” Carson v. Cabeen, 45 Ill. App. 265; Smiley v. Fries, 104 Ill.416; Furness v. Williams, 11 Ill. 240; Fitch v. Baldwin, 17 Johnson, 161.
In the case at bar the grantee was in possession of the premises at the time the conveyance was executed, and the measure of damages is the amount he was compelled to pay to procure the outstanding title. If it had been necessary to incur other expense in order to procure the title, that also, if proved, could have been included. Sedg. on Dam. (8 ed.) sec. 989; Rawle on Cov. Title, sec. 195 ; Pate v. Mitchell, 23 Ark. 590.
Finding no error, it is ordered that the judgment of affirmance be re-entered.
Judge Wood.not participating. | [
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Neill Bohlinger, Associate Justice.
The petitioner, William Clifton Byrd, has filed in this court his motion for leave to proceed in forma pauperis. His affidavit is sufficient and this motion is granted.
The petitioner is requesting a writ of mandamus directed to the Pulaski County Circuit Court, First Division, requiring that court to grant a speedy hearing' on a cause which the petitioner states is pending against him in the Little Bock Municipal Court, which cause seems to be bottomed upon an information filed by the Prosecuting Attorney in Pulaski County charging the petitioner with forgery.
The record that is presented to us consists of the petitioner’s statement embodying ten items purporting to be instances in which his rights have been denied him and seven copies of letters which the petitioner states were sent by him to the Judge of the First Division Pulaski County Circuit Court and to the Clerk thereof and the Prosecuting Attorney of this district.
On the strength of this fragmentary showing -we are asked to mandamus the Circuit Judge to hear and make orders in a cause which is not before him and on which we are not advised. This we must decline to do and his petition for mandamus is denied.
The filings in this cause, as shown by the record presented, do not inform us of the information nor any proceedings that have been filed in the court in which the petitioner states his cause is pending. Neither do we find, in his presentation, any record of proceedings filed in the Circuit Court. The letters the petitioner says he sent to or received from the judge, clerks and prosecuting attorneys do not make a record that can be properly presented to us.
We are, however, impressed with the fact that the petitioner is in the Federal Penitentiary serving a sentence under conviction of a federal offense; that he is without money or friends and that he is in need of counsel.
To that end competent counsel has been appointed by this court to represent him and this counsel will make the necessary filings in the court wherein the petitioner states his cause is pending and will take all necessary steps to present the cause by appeal or other means to such other courts as to which he deems it necessary to apply in order that his client’s cause may be properly evaluated, and this counsel will do with the least possible delay.
The filing by petitioner contains statements that conflict with our Buie No. 6 under which no motion filed or made in this court shall contain language showing disrespect for the trial court. Since his petition is being dismissed on other grounds, we do not make resort to this rule except to strike from our files those items which show disrespect for the trial court and the presiding judge there. It is so ordered. | [
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Bunn, C. J.
This is an action of ejectment instituted in the Arkansas county circuit court, on the 10th February, 1891, by the appellee against the appellant, for the recovery of the frl. W. | of S. E. i of section 12, township 8 south, range 4 west, and in said county of Arkansas.
Plaintiff, Williams, claimed title by purchase from the State Band Commissioner, December 17, 1890, and that the State had derived its title by a forfeiture' of the land in 1869 for the non-payment, of the taxes of 1868, and from a sale in accordance therewith had August 4, 1869. Plaintiff also, in the alternative, claimed the value of the improvements he and his father (half owner of an adjoining tract) had placed on the tract in controversy, by mistake as to the lines between the two tracts, during a period of many years previously to his purchase from the State as aforesaid. Plaintiff also, in the alternative, claimed the amount of taxes he had paid on the land in controversy, penalty and lawful interest thereon, and that these sums be made a lien on the land as security for their payment.
Defendant denied plaintiff’s title, and controverted his claim for improvements and taxes paid; and claimed title in himself as follows, to-wit: That he had purchased from J. D. Kimbeli, May 29, 1890, and that Kimbeli had purchased from the State in 1861, the lands having come to the State under the swamp land grant from the federal government.
Under the authority of the decision of this court in the case of Boehm v. Porter, 54 Ark. 669, presumably, the circuit court held the forfeiture to the State in 1869 to be void, the sale having been made on a day other than that designated by law. It also held that the county taxes levied in that county for that year were illegal. The plaintiff’s title from the State was therefore held to be invalid, and defendant’s title was sustained. The circuit court then adjudged the sum of $75 to be due to plaintiff for improvements, and $125 for taxes, etc., paid by him on the land, and declared the aggregate of these two sums to be a lien upon the land. Prom this latter part of the decision the defendant appealed to this court.
As to betterments. In Beard v. Dansby, 48 Ark. 183, this court said: “The only requirements of the act are, that the occupant should have had peaceable possession, at the time the improvements were made, under color of title, and under the belief that he was the owner of the land.” It seems that the improvements were made, if at all, before the appellee acquired his colorable title from the State, and for that reason, and under that claim alone, would not be entitled to betterments. The other ground of his claim to the value of improvements is still more untenable if possible. He was a joint owner, with his father, of the improvements, and had made them by mistake, thinking they were being put upon adjoining lands belonging to his father and another. He does not seem to have had or claimed any interest in any land up to the purchase from the State in 1890, and, besides, during the time he was making these improvements, if he made them at all, he was a minor working under his father. It is not made to appear very satisfactorily to us how he made these improvements believing at the time that he was the owner of the land upon which they were being made. He could not have believed himself to have been the owner of any of the lands referred to, especially of those in controversy. Carelessness, under the milder term of mistake, ought not, perhaps, to be rewarded by a bestowal of the benefits of the betterment act. The allowance of the value of improvements, under the circumstances, was erroneous, and for that cause the judgment is reversed.
It does not appear from the abstract of the appellant, (the only one filed in the case,) that there was any proof as to the items of taxes paid by plaintiff. The appellant claims there was none to. abstract. We are left in the dark as to this, and therefore can only direct what should be done on the case being remanded. The circuit court will ascertain the amount of taxes, penalty and costs actually paid out by appellee, and allow him that amount, with lawful interest from the date of pay ment or payments, as the case may be, and render judgment accordingly. The appellee' will pay the costs of this appeal.
Reversed and remanded. | [
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Hughes, J.
R. M. Johnson, on June 7,1856, (being-the owner of lot 1, block 8, in the city of Port Smith, situated at corner of Garrison avenue and Ozark or first street, fronting seventy feet on Garrison avenue, and running back on Ozark street 100 feet, abutting at the rear end on lot 3 of said block 8,) by warranty deed conveyed to the father of appellees twenty-three and one-half feet of said lot fronting on Garrison avenue, and running back ninety-six feet to “an alley four feet wide, leading to Ozark street.” This is the description shown to have been in the deed, so far as relates to the alley. The deed was filed for record, but the record and deed were destroyed by fire, and its contents were proved by parol.
On the 3d of October, 1885, R. M. Johnson conveyed by deed to appellant an unsold portion of said lot one, fronting on Garrison avenue and Ozark street, and between the lot previously sold to appellees’ ancestor and Ozark street, and described it as extending back 100 feet, saying nothing about an alley. This extent took in and included the four foot alley in rear of the lot. The proof shows that Bollinger and his heirs used this alley as a passage way from the rear of his store-house, on the part of the lot he purchased, to Ozark street; and there is some controversy as to whether they had abandoned it, and were barred by lapse of time from claiming the right to use it, before this suit was brought, which is a suit in equity to perpetually enjoin the maintaining over said alley a small brick house erected by the appellant over said alley, after her purchase, against repeated objections and protestations of appellees, and warning given by them to appellant or her agent (her husband) that appellees claimed the right to use and would insist upon having said alley kept open.
Upon the evidence, the court granted a perpetual injunction, and ordered the removal of the structure from over the alley. This appeal is taken to reverse that decree.
The conveyance by Johnson to the appellee’s ancestor describing the lot sold by him as bounded at the rear end upon 1 ‘ an alley four feet wide leading to Ozark street,” estops the grantor, and those claiming under him with notice of the conveyance, from shutting it up, •so as to prevent his grantee making pse of the alley for his own accommodation in the enjoyment of his purchase. Smith v. Lock, 18 Mich. 59. This was not merely a description, but an implied covenant that there was such an alley. Parker v. Smith, 17 Mass. 413; Livingston v. Mayor, 8 Wend. 85; Thomas v. Poole, 7 Gray, 83; 2 Herman on Estoppel, sec. 615; Washburn, Easements and Servitudes, p. 155; Tufts v. Charlestown, 2 Gray, 271; 2 Deylin on Deeds, sec. 1027. This covenant is ■binding upon the grantor, and subsequent purchasers, with notice of the conveyance. There was notice by the •record of the deed.
The proof was conflicting as to the abandonment of the alley by the appellees, and perhaps pretty nearly balanced. We are pursuaded that the chancellor was ■correct as to this.
The decree is affirmed. | [
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Carleton Harris, Chief Justice.
On September 17, 1957, R. H. Duncan and Vivian Duncan, his wife, owners of certain lands in the southern district of Prairie County, and which embraced a body of water known as Horseshoe Lake, entered into a lease contract with W. S. Malcomb, appellee herein. The term of the instrument was for ten years from January 1,1958, with an optional renewal right for a period of ten years. Appellee entered into possession of the lands on January 1, 1958, and has continuously occupied same since that time. The agreement set the rental for the premises at $200 per year, payable annually on January 1 of each year, and allowing a grace period of thirty days. The lease provided for the forfeiture of possession by appellee upon his failure to pay rent when due.
In 1958, Malcomb paid $100 on the rent in January, but did not pay the other $100 until the latter part of November, and in 1959, he paid the full rent of $200 in the middle of July. In the latter part of March, 1960, Duncan sent word to Malcomb to come to his store in Biscoe, and appellee arrived at the store on March 30th. According to Duncan, he demanded his 1960 rent, and appellee replied that he did not have it. This appellant then told appellee that he had already waited three months, and was declaring the lease null and void. Duncan then handed Malcomb a written notice declaring the lease cancelled. Appellee testified that no demand for the rent was made by Duncan on the occasion of going to the store. “That was the first time that I had saw Mr. Duncan in the year 1960 and when he told me that he was going to forfeit the lease, he did not ask me anything about the money at all. He asked if the boy was going to move the boats back down there and I told him they would on Friday and he told me he was going to forfeit the lease. ‘Here it is the middle of March and I have not received my money yet.’ ” Malcomb left the store, obtained the money, and according to his evidence, returned to the store, but Duncan had left. He then took the full amount of money to Mrs. Duncan, who, so he stated, accepted it, and said that she would later give him a receipt. This testimony was disputed by Mrs. Duncan, who testified that she simply took the money as an accommodation to Malcomb, and explained that she would see her husband and find out what he “wants to do about it.” She stated that her husband would not accept the money, and she so advised Malcomb, but the latter told her “let the old man cool down”, and “keep it until morning”, but that Malcomb did not return.
Suit was instituted by appellants in the Prairie County Chancery Court praying that the lease contract be declared breached by the appellee; that same be declared null and void, and that Malcomb be ordered to vacate the premises and deliver possession to appellants. Malcomb answered asserting that the 1960 rent had been paid, and by amendment to his answer, pleaded estoppel, ‘‘ That lessor on several occasions by words and conduct, told lessee that he was behind him one hundred percent in the development of the leased premises and for him not to worry, and other words and actions to that effect, led lessee to believe that he would not enforce a forfeiture provided for in lease and therefore plaintiff is equitably estopped from seeking to avail himself of a forfeiture for the non-payment of rent as provided for in the lease.” On hearing, the complaint was dismissed, the $203 on deposit in the registry of the court ordered paid to Duncan, and a decree entered accordingly. From such decree, comes this appeal.
While the trial court did not give its reason for dismissing the complaint, such action was apparently based on a finding that Duncan, by his conduct, waived the requirement for prompt rental payments, and was therefore not entitled to the forfeiture (at least, that is the contention advanced and strongly argued by appellee). Of course, it is elementary that equity abhors forfeitures, and in one of our more recent cases, Vernon v. McEntire, 232 Ark. 741, 339 S. W. 2d 855, we quoted from 1 Pomeroy Eq. Jur. 452, as follows :
“If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.”
In the cause before us, Malcomb testified that in December, 1957, he told Mr. Duncan that he would have to borrow the money to pay the first rent, and that Duncan told him not to worry about it; “he was behind me one hundred percent on that thing, just so I got the money paid, not to worry about it being paid on the first day. The second year came up and the same story. We had a conversation and he repeatedly told me not to worry about that, pay it when I could.” Appellee contends that Duncan waited until he. (appellee) had made valuable improvements on the property, and then deliberately declared the forfeiture in order to gain repossession of the improved premises. Duncan denied both the testimony and contention of Malcomb, stating that he was only interested in obtaining his rent, and had frequently made demand for same.
Irrespective of the testimony by the parties, we think the conduct of Duncan clearly establishes that he waived prompt payment of the rent. Admittedly, he accepted the 1958 and 1959 rent from seven to eleven months late, including interest for the latter year. In Pierce v. Kennedy, 205 Ark. 419, 168 S. W. 2d 1115, this court quoted from § 894 of the chapter on Landlord and Tenant, 32 Am. Jur., page 757 as follows:
“A court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a forfeiture incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and interest by a defaulting lessee. The grounds upon which a court of equity proceeds in this connection are: That the rent is the object of the parties, and the forfeiture only an incident intended to secure its payment ; that the measure of damages is fixed and certain; and that when the principal and interest are paid, the compensation is complete. This relief may be granted where there is a mere power of re-entry, and it has been granted in various situations.
Of course, the fact that Duncan had previously accepted late payments of the rent, did not preclude him from enforcing the forfeiture provision contained in the lease, in the future, provided that he first gave reason able notice to appellee of Ms intention to cancel the lease if the rent were not paid on time.
In 31 ALR 2d 377, we find: “Where a lessor, for several rent installment periods, consistently with a set-led course of dealing, accepts overdue payments of rent without warning or notice to the lessee of objections to tardiness, he cannot summarily terminate the lease for such default even though the right to do so is granted by the terms of the lease, and the lessee is entitled to appropriate relief in a proceeding to enjoin termination of the lease therefor and the lessor from taking possession of the premises.” Quoting further: “Although a lease specifically gives the lessor the right to declare a forfeiture of the term for nonpayment of rent when due and provides that the lessee waives his right to notice of an election by the lessor to do so, a settled course of dealing whereby rent is accepted on or before the tenth of the month instead of on the first, as provided by the lease, can be construed only as a waiver by the lessor of his right to prompt payment, and he cannot predicate a forfeiture upon failure to pay on the first without first having notified the lessee that thereafter strict conformance in the matter will be expected.”
It is undisputed that no notice was given to Malcomb that Duncan expected prompt payment of the 1960 rent. In fact, both parties agreed that the 1960 rent had not been discussed prior to March 30th. It is noticeable, that Duncan, in sending word to Malcomb that he wanted to see him, did not state that he would be expecting the payment of the rent. It is also noteworthy that Duncan already had his written notice prepared to give to Malcomb before the latter arrived. This lends credence to appellee’s statement that no demand was made on that occasion, but only a demand for the repossession of the lands.
In accordance with the reasoning herein set out, we are unable to say that the Chancellor erred and the decree is, in all things, affirmed.
The amount given Mrs. Duncan was $203, the $3.00 being given voluntarily by Malcomb as interest. Three dollars interest had also been paid voluntarilv by Malcomb on the 19'9 rent. The $203 was subsequently placed in the registry of the court.
The property eoncededly had been improved, though the extent of the improvements or cost of same is not in the record.
Milbourn v. Aska, 81 Ohio App. 79, 77 N.E. 2d 619.
Donovan V. Murphy, 217 Ill. App. 31. | [
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Jim Johnson, Associate Justice.
This case involves interpretation of the provisions of a farm lease.
On September 20, 1952, appellants, Dr. Joe Shuffield and Ralph R. Harrell, entered into a written lease with B. M. Hartón, now deceased, whereby appellants rented from Hartón certain lands in Faulkner County, Arkansas, for a period of five years. The lease covered the years 1953, 1954, 1955, 1956 and 1957.
The lands were primarily leased by appellants for the purpose of cultivating rice, these lands being contiguous to Cadron Creek which was then a natural source of water for use in cultivating the rice. At the time of the lease the parties did not measure the land, but the description in the lease calls for 770 acres more or less. The lease was prepared by Hartón’s attorney. It pro vided for the payment of $8,000 per year rental for the “cleared lands”, and the sum of $2,000 per year rental for the “woods land”. The lease treats the “cleared land” and the “woods land” as separate parcels. Five notes were executed for the annual rental payment of $8,000 per year for the cleared land, and five separate notes were executed for the payment of $2,000 per year for the rent on the woods land.
As an incentive to the clearing of the “woods land” by the appellants, the lease provided that if the lessees cleared 50 acres of the woods land in any one year, the $2,000 note given as rental for the woods land would be cancelled in that year. The lease further provided that in the event more than 50 acres of land was cleared in any one year, the excess acres over 50 could be carried forward to the cancellation of the $2,000 notes for subsequent years. In other words, the acreage of woods land cleared for credit on the $2,000 note was cumulative and could be carried forward by the lessees for credit. This point is not in dispute in the case.
Since the land had apparently been rented primarily as rice land, a paragraph was placed in the lease as follows:
7. “Now it is further agreed that if during the term of this lease the government should restrict the acreage allowed to be planted in rice the parties of the second part shall pay to the party of the first part, as annual rent on the cleared lands the following, to-wit: $20.00 per acre for all land planted in rice; and $15.00 per acre for all land planted in other crops, or available for other crops, for each year that said iiee acreage may be restricted.”
Pursuant to § 28-355, Ark. Stats., there was propounded to appellant Ralph R. Harrell certain interrogatories. Two of the questions and appellant’s answers are as follows:
“3. State how many acres of woods lands have been cleared by Lessees under that contract since the date of the contract.
“A. Approximately 205 Acres.
“4. Give the number of acres cleared each year for the years 1953, 1954, 1955 and 1956.
“A. About 40 acres in 1952, but under this lease and for 1953 crop.
“About 150 Acres in 1953.
“About 15 acres in 1954 . . .”
Appellee doesn’t contest the correctness of appellant Harrell’s conclusion as to the number of acres of woods lands cleared during the term of the lease.
Appellants paid the rental in 1953 and 1954 by paying the $8,000 notes for cleared land and by taking a credit on the payment of $2,000 notes for the woods land cleared by them. In 1955 the amount of rice which could be grown was restricted by the Government so that paragraph 7 of the contract came into effect and this brought about the dispute which has culminated in this appeal. The Government restriction also continued for 1956 and 1957. The owner claimed that, under the terms of the contract, when the cultivation of rice was restricted, the appellants became liable to him for acreage rental not only on the “cleared land”, but also lost their credit for “woods land” cleared, and became liable as well for acreage rent on all “woods land” which was cleared by them, said acreage rental to be on the basis of $20 per acre for all lands planted in rice and $15 an acre for all other lands subject to cultivation. The owner claimed that in addition to the acreage rental for all land available for cultivation in 1955, 1956, and 1957, the lessees owed the $2,000 notes for rental on woods-lands which remained uncleared. The appellants’ contention was that they were liable only for an acreage rent on the “cleared lands” and that having cleared a. sufficient amount of woods lands to completely satisfy four of the $2,000 notes and to partially satisfy the fifth $2,000 note, they were entitled to plant the cleared woods lands free of any acreage rental charge, except the balance owing on the last $2,000 note.
The parties also were unable to agree on the amount of land available for cultivation in the “cleared land”.
The lease contained a clause which provided that the lessees agreed to keep all of the lands, both the cleared lands and additional lands they might clear and put in cultivation, in good condition during the period covered by the lease. Appellee contended that the lessees had not kept the property in good condition but had allowed same to grow up in coffee beans and that there was a breach of this part of the contract and damages were sought therefor.
The trial court interpreted the contract as contended by the owner (who died during the pendency of the case and who was succeeded as plaintiff by his administratrix), and also found for the owner with reference to the amount of land available for cultivation and the damage to the land. The appellants thereupon prosecuted this appeal.
After a careful review of the record on trial de novo, we cannot say that the Chancellor’s findings in the following eight particulars are against the weight of the evidence.
1. That the land which was cleared and tillable on the date of the lease consisted of 328 acres.
2. That appellants cleared 205 acres of the “woods land” which according to the terms of the lease cleared or paid four of the $2,000 notes with 5 acres to apply as a credit of $200 on the fifth $2,000 note, leaving a balance of $1,800 due on that note.
3. That the lease provided the lessees should keep the land in good condition and in annual cultivation and that they breached this provision of the lease and that appellee is entitled to damages in the sum of $1,000.
4. That appellants paid on the rent due for the year 1955, $4,803.75, which was without prejudice to either side.
5. That no rice was planted on the original 328 acres of cleared land in the year 1955.
6. That no rice was planted on the original 328 ’ acres of cleared land in the year 1956.
7. That 89 acres of rice were planted on the original 328 acres of cleared land in the year 1957.
8. That interest at the rate of 6 per cent per annum should be paid on the unpaid amount found due for the year 1955 to run from November 1, 1955, and from November 1, 1956, on the amount found due for that year; and from November 1, 1957, on the amount found due for that year.
We cannot agree, however, with the Chancellor’s interpretation of the meaning of the words “cleared lands ’ ’ as contained in the lease. The question presented for our consideration is whether the words “cleared lands” used in the lease refer to lands cleared at the time of the execution of the lease, or do they refer to land then cleared and to be cleared in the future?
As we view this matter, paragraph 7 of the lease, which is set out above, was obviously inserted in the lease for the protection of the lessees in the event all the land could not be placed in the cultivation of rice. It provides that should the Government restrict the acreage allowed to be planted in rice, the parties of the second part (appellants) shall pay to the party of the first part (appellee) as annual rent on the cleared land the sum of $20 per acre for all land planted in rice, and $15 per acre for all land planted in other crops. The term “the cleared lands” used here is exactly the term used in paragraph 3 to identify the lands on which the $8,000 rental would be paid, and is the same term used in paragraph 4 to describe the lands for which the $8,000 note was to be executed.
The woods land was dealt with separately. The parties agreed that the woods land would be leased for $2,000 per year and notes were executed for the rent of that particular part of the farm. The contract further provided that if the lessees cleared 50 acres of the woods land the note for the woods land for that particular year would be cancelled, and if they cleared 100 acres two notes would be cancelled, etc., so that if 250 acres were cleared in the five-year term all the notes for the woods land would be cancelled and there would remain only the rent payment for the land which was cleared when the farm was rented. The contract says “if the parties of the second part do clear more than 50 acres of the woods land in any one year, they may count the excess over 50 acres cleared that year on the 50 acres required for cancellation of the rent note on the woods land due the next year.”
We have carefully noted that there was no mention made of the cancellation of the notes on the woods land in the event of government restrictions on rice. The contract merely provided for a new basis of rent on “the cleared lands”. The lease, in our view, must be interpreted in the light of the facts and circumstances as they existed at the time of the lease. At the time of the lease the cleared lands were the lands which were then cleared. Had the lease used the words “cleared or to be cleared’, the interpretation would be different.
We reach this conclusion by following the principle of law that Equity Abhors Forfeitures. Cordell v. Enis, 162 Ark. 41, 257 S. W. 375. To find contra would effectuate a forfeiture which in our view was clearly not in the contemplation of the parties. Further, it is uncontradicted that appellee, through his attorney, prepared the contract. This being true, even if the language of the contract was doubtful we would be bound to follow the well settled rule of construction that contracts so prepared are construed in the strongest manner against the party who prepared them. See: Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522, 135 S. W. 343; Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S. W. 150; American Insurance Co. v. Rowland, 117 Ark. 875, 8 S. W. 2d 452; Gen. American Life Ins. Co. v. Schwarz, 193 Ark. 663, 101 S. W. 2d 963; Meers v. Tommy’s Men’s Store, Inc., 230 Ark. 49, 320 S. W. 2d 770; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98.
It follows, therefore, that since the case has been fully developed we find that the appellee is entitled to receive as rent for the year 1955, $15 per acre for 328 acres, such amount to be credited with the $4,803.75 previously paid by appellant on such indebtedness, the bal anee for that year to bear interest at the rate of 6 per cent per annum from November 1, 1955.
For the year 1956, $15 per acre for 328 acres with interest at the rate of 6 per cent per annum from November 1, 1956.
For the year 1957, $20 per acre for 89 acres which were planted in rice, and $15 per acre for 238 acres, with interest at the rate of 6 per cent per annum from November 1, 1957, plus the $1,800 balance owing as rent on the woods land note, with interest as provided in the note.
In addition to the rent as set out above, appellee is to receive the $1,000 damage as found by the Chancellor, which of course bears interest at 6 per cent from the late of the Chancellor’s decree.
Therefore, the Chancellor’s decree is reversed and the cause remanded with directions to enter a decree and have further proceedings in accordance with this opinion. Costs of this appeal are taxed equally.
“Farm Lease, Know all men by these presents: That this contract of lease, made and entered into this 20 day of September, 1952, by and between B. M. Hartón, party of the first part, and Joe F. Shuffield and Ralph R. Harrell, parties of the second part, witnesseth:
“That the party of the first part has this day leased to the parties of the second part, for the years Nineteen Hundred and Fifty-three (1953), Nineteen Hundred and Fifty-four (1954), Nineteen Hundred and Fifty-Five (1955), Nineteen Hundred and Fifty-six (1956), and Nineteen Hundred and Fifty-seven (1957), the following described lands lying in the County of Faulkner, State of Arkansas, to-wit:
“All that of Section Sixteen (16) ; and all that part of the North Half (N%) of the North Half (N%) of Section Twenty-one (21); and all that part of Section eight (8), lying East of Cadron Creek. And all of that part of S% SW14 of Section nine (9), lying South of Cadron Creek.
“All of the above described lands being in Township six (6) north, Range fourteen (14) West, and containing in the whole 770 acres, more or less.
“The parties of the second part agree to pay to the party of the first part, as rent for said lands for the years 1953, 1954, 1955, 1956, and 1957, the sum of Eight Thousand Dollars ($8,000) per year for all the cleared lands, and the further sum of Two Thousand Dollars ($2,000) per year for all the woods lands, said annual rentals to be due and payable as soon as the crops thereon are harvested, and not later than November 1st of the year in which said rents fall due.
“The parties of the second part agree to execute a note for $8,000.00 for each year covered by this lease for the cleared land, and also agree to execute a note for $2,000.00 for each year covered by this lease for the woods land, said notes to be due and payable on or before the 1st day of November of the year in which the rent represented by said notes accrues, said notes to bear 8% interest from maturity until paid.
“Now it is agreed by and between the party of the first part and the parties of the second part that in any year in which the parties of the second part clear fifty (50) acres or more of the woods land covered by this lease, the party of the first part will cancel the note of $2000.00 given by the parties of the second part for the rent on the woods lands for that year. It is further agreed that the parties of the second part may clear and put in cultivation as inuch of the woods lands as they wish in any year covered by this lease, but credit for such improvement shall be limited and applied to the $2000.00 notes given for rent on the woods lands only, and if the parties of the second part do clear more than fifty acres of the woods land in any one year, they may count the excess over fifty acres cleared that year on the fifty acres required for cancellation of the rent note on the woods land due the next year.
“The parties of the second part agree to keep all of the above described lands which are cleared and tillable at this time, and all such additional lands as they may clear and put in cultivation hereafter in good condition and in annual cultivation during the period covered by the lease.
“Now it is further agreed that if during the term of this lease the government should restrict the acreage allowed to be planted in rice the parties of the second part shall pay to the party of the first part, as annual rent on the cleared lands the following, to-wit: $20.00 per acre for all land planted in rice; and $15.00 per acre for all land planted in other crops, or available for other crops, for each year that said rice acreage may be restricted.
“It is further agreed that the parties of the second, their heirs or assigns, shall have the right, and are hereby given the right, to purchase the above described lands from the party of the first part at any time during the term of this lease at the same price offered by any other person, firm or corporation, provided the party of the first part desires to sell said lands at the price so offered.
“In the case of failure of the parties of the second part to pay any annual rental due under this lease when the same falls due, then the party of the first part, at his sole option, and by written notice to the parties of the second part, declare all rent notes and rental for the balance of this lease due and payable at once.
“I, Mildred J. Hartón, wife of the said B. M. Hartón, do hereby join in the execution of this contract of lease, and agree to join and cooperate in the execution of all conveyances which may become necessary in carrying it out.
“Executed in duplicate copies at Conway, Faulkner County, Arkansas, the day and year first above written.
/s/ B. M. Hartón
Party of the First Part
/s/ Mildred J. Hartón
/s/ Joe F. Shuf field
Party of Second Part
/s/ R. R. Harrell
Party of Second Part” | [
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George Rose Smith, J.
This is an action at law by the appellant landlord to recover possession of a farm that he orally leased to the appellee in the fall of 1958 for a term of four years. At the close of the plaintiff’s proof he asked for a directed verdict on the ground that the principal allegations in the complaint had not been denied by the answer and were therefore admitted. The court denied the motion for a directed verdict; the correctness of that ruling is the only issue on appeal. The case was fully tried on its merits and resulted in a verdict for the defendant.
The lack of complete clarity in the pleadings was due to the fact that this is the second lawsuit about this lease. In January of 1960 the appellant filed his complaint in the first case, alleging among other things that the tenant had violated the lease agreement during the 1959 crop year by allowing the riceland to become infested with coffee beans, indigo, and other weeds. That case was tried in March of 1960. The jury awarded the landlord only $75 in damages and found specifically that the tenant was entitled to remain in possession of the land until December 31, 1962.
The present complaint was filed by the lessor in February of 1961. After alleging that the tenant took possession on January 1,1959, the plaintiff asserted that the tenant had allowed the land to become infested with weeds. There is no specific statement of just when this occurred. In response to this complaint the defendant pleaded the first judgment as res judicata.
At the trial the plaintiff introduced proof to show that weeds had been permitted to grow up on the land during the 1960 crop year. It is evident that the plea of res judicata would not be a defense to this charge of waste, since the events took place after the first trial, which had involved the 1959 crop year. Upon closing his case the plaintiff moved for a directed verdict, pointing out that the allegations of the complaint had not been denied.
The court reporter did not take down the ensuing colloquy, but counsel have stipulated that this is what occurred: “Whereupon, the appellee’s attorney called to the court’s attention the fact that there were no allegations in the complaint with reference to any matters occurring since the former trial on March 14, 1960, with reference to which res judicata had been pleaded. . . . The appellee asked the court to treat the complaint as amended to conform with the proof, and the answer as amended to deny the allegations of the complaint as amended. The court, without specifically ruling thereon, asked the appellant’s attorney whether he desired to plead surprise and ask for a continuance, whereupon said attorney answered in the negative and stated that he was standing on the pleadings. Thereupon, the appellant’s motion for a directed verdict was denied.”
The appellant recognizes the settled rule that the matter of allowing pleadings to be amended in the course of the trial is largely discretionary. The trial court’s action will he sustained unless there has been a manifest abuse of discretion, materially prejudicing the complaining party. Rucker v. Martin, 94 Ark. 365, 126 S. W. 1062. Here, however, the appellant insists that the trial court did not expressly grant the appellee’s request that the answer be treated as amended. Hence, it is argued, the request was tacitly denied, and the plaintiff was entitled to a peremptory charge.
The appellant is mistaken in construing the trial court’s ruling as a denial of the appellee’s request that his answer be treated as amended. It is important to remember that the court first asked the plaintiff’s attorney whether he desired to plead surprise. This inquiry had no relevancy to anything before the court except the request for leave to amend the answer. Unless we are to assume that the judge was making a useless inquiry we must conclude that he was seeking information as a basis for ruling upon the appellee’s request. It was only after the appellant disclaimed surprise that the court denied the motion for a directed verdict. We are convinced that he was merely stating the ultimate result; that is, the answer would be treated as amended and therefore the motion for a peremptory instruction would be denied. Thus the court by implication actually granted the appellee’s request. There is no indication of an abuse of discretion or of prejudice to the appellant. To the contrary, when it is recalled that the defendant’s oversight was invited by the plaintiff’s original failure to make a specific allegation we are inclined to believe that a denial of the appellee’s request might have been an abuse of discretion.
Affirmed.
McFaddin, J., concurs. | [
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George Bose Smith, J.
In 1960 a used car was sold to the appellant by Union Motors, Inc., under a contract by which the dealer retained title until the purchase price was paid. The seller assigned the contract to Universal C.I.T. Credit Corporation, which brought this action to repossess the car. Thompson filed a cross- complaint against both the finance company and the dealer, asking that the contraact be canceled for fraud and that he recover $355 as damages for breach of warranty.
Upon trial by jury the court directed a verdict in favor of the finance company. The jury awarded Thompson damages of $14.90 upon his cross-complaint against Union Motors. Thompson has appealed from the ensuing judgment without bringing up any of the testimony taken at the trial.
It is first argued that the court erred in directing a verdict for Universal C.I.T., inasmuch as the jury might have found that the finance company never obtained title to the car. In making this argument Thompson relies upon a sentence in the contract reciting that title is retained “by Seller” until the purchase price is fully paid. It is contended that the jury might have seized upon this provision as a basis for finding that the title remained in the seller and never passed to Universal C.I.T. The dealer, however, executed an assignment transferring not only the contract but also “all interest in the chattels thereby sold.” "When the printed instrument is construed as a whole the title so plainly passed to the finance company that the trial court could not properly have submitted this question to the jury as a disputed issue of fact.
Thompson also insists that two erroneous instructions were given at the request of Union Motors. The trouble is that on this phase of the case Thompson is appealing from a verdict and judgment in his favor. We have held that such an appeal is permissible (a) if the appellant was entitled to substantial damages and received only nominal damages, or (b) if an award of substantial damages is inadequate and is accompanied by other error. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411. With no evidence whatever before us we cannot say that an award of $14.90 is either nominal or inadequate, for it is possible that the jurv gave Thompson every cent of damages established by his proof. If so, a reversal might afford him the opportunity of introducing additional proof that should have been presented at the first trial. Under the rules laid down in the Smith case no prejudicial error has been shown, and we cannot presume that the matter omitted from the record on appeal would require a reversal of the judgment. Kimery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442.
Affirmed. | [
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Paul Ward, Associate Justice.
Appellee, C. I. Myers, sued appellant, Farmers Union Mutual Insurance Company (hereafter referred to as “Company”), to recover (under the provisions of policy No. 48879) the amount of $936.78 for damage to his dwelling and $493.26 for damage to his furniture, both caused by fire. From an adverse verdict and judgment the Company prosecutes this appeal, urging six points for a reversal. These points will be discussed in the order they are presented, after first setting out the material pleadings and facts.
The complaint filed by Myers mentions the policy insuring his dwelling for $4,000 and furniture for $2,000 and further alleges that the policy was in effect when a fire damaged both items to the extent previously noted; that all terms of the policy had been complied with; that demand had been made for $1,430.04, and that all liability had been denied by the Company. The prayer was for the above amount and also for statutory penalty and attorney’s fee. The answer, in addition to a general denial, stated that Myers failed to comply with policy provisions providing for written notice and filing of proof of loss. In his reply Myers stated that he did give notice and requested blanks to make written proof of loss; that the Company’s agent refused to furnish blanks, and also denied liability.
At the conclusion of appellee’s testimony he moved to amend his complaint to ask for only $1,055.54. Over appellant’s objections the court allowed the amendment to be made. At that time appellant moved for an instructed verdict which, as will later appear, the court correctly overruled. After the introduction of appellant’s testimony the jury (upon instructions not challenged here) returned a verdict for appellee as asked for in the amended complaint. Thereupon the court rendered judgment in accordance with the verdict, and also gave appellee judgment for attorney’s fee and the statutory penalty.
The first assignment of error is that the court allowed the complaint to be amended. This was a matter which addressed itself to the sound discretion of the court. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645. Except for the matter discussed below, there is no attempt to show the trial court abused its discretion.
It is, however, earnestly contended by appellant that the court allowed the amendment “for the sole purpose of invoking a penalty statute”. It is then further contended that the amendment came too late to invoke that statute. To support this contention appellant cites several cases which announce the general rule that “the insured is not entitled to recover a penalty and attorney’s fee when he demanded in his complaint more than he recovered”. The cited cases are not applicable here because they deal with situations where the only issue vías the amount of recovery. The reason underlying those decisions appears clearly to be that if the assured had demanded the lesser or correct amount the insurer would have the opportunity to pay and avoid the trouble and expense incidental to preparing for and trying a law suit. That was not the situation here, however, where appellant refused to pay any amount and relied on appellee’s alleged failure to give proper notice and to file a proof of loss. The jury’s verdict, however, resolved those issues against appellant upon evidence and instructions not here challenged. The rule applicable under the facts of this ease has been clearly stated and settled by many of our decisions.
In Progressive Life Insurance Company v. Hulbert, 196 Ark. 352, 118 S. W. 2d 268, appellee (as beneficiary in a life insurance policy on E. D. Hulbert) sued for $400 and appellant defended on the ground Hulbert was not an insurable risk at the time the policy was issued. During the trial appellee was allowed to amend his complaint to ask for $266.67. That amount was allowed by the jury, and the court rendered judgment for attorney’s fee and penalty. In affirming the trial court we made this statement:
“But the sum finally sued for was $266.67, and it was within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended, it would have been proper to enter a judgment for that amount without penalty or attorney’s fee.”
It is noted of course that, in the case under consideration here, appellant did not offer to pay the sum of $1,055.54 when the complaint was amended. Also, in conformity with appellant’s defense in this case, it would not have paid $1,055.54 had only that amount been demanded in the original complaint.
To the same effect is the case of Kansas City Fire & Marine Insurance Company v. Kellum, 221 Ark. 487, 254 S. W. 2d 50, where we cited and approved the Hulbert decision. There also attorney’s fee and penalty were allowed, based on facts set out by the Court as follows:
“The record reflects that at the conclusion of the evidence in the case, appellee was permitted to amend the complaint and reduce the amount for which he sued to $2,096.96. The extent of appellant’s liability was $3,000. Appellant refused to accept the correctness of appellee’s claim after the reduction and continued to deny all liability. The jury returned a verdict in favor of appellee for the reduced amount of the claim, $2,096.96, upon correct instructions by the court limiting recovery to $2,096.96.”
It is our conclusion, therefore, that the trial court was correct in allowing attorney’s fee and penalty in this case since appellant did not offer to pay the sum of $1,055.54.
It is next contended that the court erred in refusing to direct a verdict in favor of appellant because there is no substantial evidence to support the jury’s finding it waived notice and proof of loss. We see no merit in this contention. This was a question of fact presented to the jury on instructions not here questioned, and we find substantial evidence in the record to support the jury’s findings. Appellee, in substance, stated lie talked with appellant’s representative after the fire and that the representative said appellant was not going to pay the loss. This same representative admitted he had reported the loss. Another representative of appellant indicated that had a proof of loss been submitted he would have denied liability. This was substantial evidence to support a finding by the jury that appellant denied liability for the loss. In Queen of Arkansas Insurance Company v. Forlines, 94 Ark. 227, 126 S. W. 719, the Court, in this connection, said: “. . . by the repeated rulings of this court a denial of liability, based upon reasons other than a failure to furnish proof of loss, constitutes a waiver of the provisions of the policy requiring proof of loss to be made.” Also, in Yates v. Thomason, 83 Ark. 126, 102 S. W. 1112, the Court said: “And it has long been settled by many decisions of this court that a denial of liability waives proof of loss.”
There is no merit in the contention that there is no substantial evidence to show proof of damages. On this point appellee was the only witness to testify. He gave his estimate of the amount of damages both as to his house and furniture, based, as to the house, on estimates and repairs made. There was no objection to his testimony, and there was no cross-examination on this point.
During the trial the court refused to allow appellant to introduce testimony allegedly to show facts surrounding the cause of fire, presumably to show appellee may have originated the fire. This issue was not raised by the pleadings and the court’s ruling was correct. Moreover, appellant, in his argument, has not pointed out what testimony was offered.
We find no error in the court permitting appellee to testify to certain conversations with appellant’s agent relative to cancellation of the policy after the fire. Again appellant, in argument, does not point out the objectionable testimony. It might have been ma terial to show the authority of the agent to deny liability.
Appellant is wrong in its contention that the insurance law (relative to attorney’s fee and penalty) does not apply to mutual aid associations. See Act 159 of 1955 (Ark. Stats. § 66-514) which amended Act 71 of 1939 to include a “farmer’s mutual aid association”.
Affirmed. | [
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Sam Robinson, Associate Justice.
Petitioner, John Lutber Ham, bas filed a petition in tbis Court for a writ of error coram nobis. He alleges that in December, 1955, he was coerced into signing a confession to the crime of forgery and further coerced into pleading guilty to that offense in the Dallas County, Arkansas, Circuit Court. He alleges that he was sentenced to three years in the Arkansas Penitentiary and after serving one year he was paroled hut that his parole has now been revoked. It appears that he is at this time in a penitentiary at Springfield, Missouri, and that after completing his sentence there he will be turned over to Arkansas authorities to finish serving his sentence in the Arkansas penitentiary.
The issue of whether a defendant has been coerced into pleading guilty to an offense may be raised by a petition for a writ of error coram nobis. State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858. But that case points out that a writ of error eoram nobis lies for the purpose of obtaining a review and correction of a judgment by the same court which rendered it, unless, however, the judgment has been affirmed by this Court, in which event petitioner must have the consent of this Court before he can file the petition in the trial court. Ham did not appeal from the judgment rendered by the Dallas Circuit Court and therefore, of course, the judgment has not been affirmed here and we have no record from which we can reach a conclusion as to the facts.
Petition denied.
Johnson, J., not participating. | [
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Jim Johnson, Associate Justice.
This is an eminent domain action. Appellant, Arkansas State Highway Commission, brought suit to acquire an easement across land owned by Mrs. S. E. (Eliza) Kennedy, appellee. This land was part of a larger tract of 2.6 acres upon which Mrs. Kennedy’s residence was located. Appellant deposited $650 as estimated just compensation.for the tract taken. Appellee claimed severance damages to the entire property. The jury returned a verdict in the amount of $2,500 for Mrs. Kennedy.
For reversal, appellant relies upon the following points:
1. The trial court committed reversible error in not striking all the testimony of O. E. Guinn.
2. The trial court committed reversible error in permitting the landowner’s attorney to tell the jury that they could in effect return a quotient verdict.
3. The trial court committed reversible error in not granting appellant’s motion for new trial based upon the ground that there was no substantial evidence to support the verdict of the jury.
STRIKING TESTIMONY
The testimony of O. E. Guinn which appellant complains of was obtained by it on cross examination and is as follows:
“A. Let me answer your question in this way. I had no previous knowledge of any land selling there and Mr. East came in my office and asked if I knew of any land being sold or had been sold there and I told him I did not, that Mr. Hinkle handled most of the land in that area, that I had no knowledge, that he could talk to Mr. -Pratt.. I didn’t arrive at any..figure while I was at Mr. Kennedy’s house. I did check into some land that had been taken by the Highway Department and that definitely did enter into my figure.
“Q. In other words, the figure that you got from checking what the Highway Department had paid for lands taken entered into your opinion as to market value of this property?
“A. No, sir. I would say the land of the property taken. I would definitely say yes.”
The trial court instructed the jury as follows:
“You are instructed to disregard that portion of the testimony of the witness O. E. Guinn which was based on settlement payment by the State Highway Commission on certain property owners in this vicinity. The Court has instructed you on the proper measure of damages; and insofar as damages are concerned, that is the rule you will follow in the determinations in this case.”
Notwithstanding the trial court’s instruction appellant argues that it was reversible error for the court to refuse to strike all of Mr. Guinn’s testimony. In support of its argument appellant cites Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886, wherein this Court said:
“It is next contended by appellant that the court erred in admitting testimony as to what other lands in the vicinity cost plaintiff. This testimony was not competent. This court and many others have held that it is proper to admit testimony as to the price at which other lands in the vicinity sold, together with testimony as to the similarity or dissimilarity of the lands, but that means sales in the ordinary course of business, and not sales to the service company who were seeking to condemn land for their dam and reservoir. Evidence showing what the company seeking to condemn has paid for other lands would probably be taken by the jury as indicating the market value, when, as a matter of fact, it does-not tend to show the market value of the land. A company condemning land might be willing to give more than it was worth and the owner of land might be willing to take less than it is worth, that is, less than its market value, rather than have a lawsuit. Moreover, when a company seeks to get land or condemn it for public uses, having the power to condemn, the land owner would probably come to some agreement with him rather than have a lawsuit, and this agreement would shoAV a compromise rather than the market value of the land.
“What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of the value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons, such sales do not seem to be competent evidence of the value in any case, whether in a proceeding by the same condemning party, or other cases.”
This Court has frequently said the jury is accorded great latitude in considering testimony relative to damages in such cases as here presented. Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173; Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; Arkansas State Highway Commission v. Jelks, 203 Ark. 878, 159 S. W. 2d 465. Even so, under the rule in the Yonts case, supra, we Avould have no choice but to reverse the instant case had appellant introduced evidence as to the figures of any evaluations by the State Highway Commission or the figures for which any land was acquired by it, but such is not the case here. As stated above, the answer by Mr. Guinn, of which complaint is made, was elicited on cross-examination; no figures were given but no doubt such figures would have been given if the cross-examiner had further pursued his line of questioning. The rule in the Yonts case, supra, is a prohibition against the introduction of certain testimony by the landowner and not a prohibition against the knowledge a witness may possess. Mr. Guinn said that he had checked the appraisals by the appellant in the area and this information was a part of his knowledge upon the subject of valuation; he candidly stated that such knowledge entered into his figure.' The record reveals that Mr. Guinn’s evaluation was the lowest introduced by appellee.
Mr. Guinn gave his opinion as to the value of the property before the taking, detailing the size of the tract, the location and square footage of the residence, the type of construction and the area and trees taken absolutely. He is in the real estate business at Newport, Jackson County, and has knowledge of market values in Jackson County. He was well qualified to give his opinion testimony as to the values before and after the taking. Therefore, we are impelled to the conclusion that the trial court committed no error in refusing to strike Mr. Guinn’s testimony.
QUOTIENT VERDICT
Appellant contends that the landowner’s attorney told the jury that they could in effect return a quotient verdict. The record in regard to this matter is as follows:
By Condemnor’s Attorney:
“In his closing argument to the jury attorney for the landowner stated to the jury that if you added the differences of the testimony of all of the landowner’s witnesses you would get an average difference of a certain sum of money; that if you added the differences between the testimony of all eight witnesses you would get another average figure and that if you added the average differences between, tbe .top witness for the landowner and the top witness for the State you would get a certain figure.
“The plaintiff objects to the attorney for the landowner being permitted to make such an argument to the jury as it tells the jury they can rise an improper method in arriving at .the damages sustained by the landowner, and that the failure of the court to so instruct the jury prejudiced the .State of Arkansas.
‘ ‘ That it was agreed prior to arguments by counsel that the record might be preserved with respect to this objection.”
By Landowner’s Attorney:
“I would like for the record to show that counsel for the property owner has said at the same time that he stated in his argument he was not suggesting this was a proper method of arriving at a verdict but was simply pointing out the range the testimony took from the stand. I would like to point out also the blackboard used simply gave the testimony of the witnesses and did not add or average up the figures.”
By The Court:
“Thereupon, the Court remarks that because of agreement that counsel for the State Highway Commission might make up his record after argument was completed rather than interrupt argument of counsel for the landowner and recalls that Mr. Hodges stated to the jury that he did not suggest that averaging the figures testified to by witnesses -would be a proper measure of damages but merely that these were the result of averaging the figures testified to by these witnesses. Therefore, the Court overruled Counsel for the State.”
By Landowner’s Attorney:
“In closing argument counsel for the landowner added in closing argument, he pointed out the almost exact similarity of figures before the taking and that the only question for the jury to decide was the fair market value of the land after the taking.”
There was not testimony to the effect, ñor was there any indication that the jury returned a quotient verdict. Therefore, we find no merit in appellant’s second point urged for reversal. See: Kennedy v. Griffin, 195 Ark. 379, 112 S. W. 2d 644.
SUBSTANTIAL EVIDENCE
This Court has repeatedly held that a jury verdict will he affirmed where there is any substantial evidence to support it. Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330. In the case of State Highway Commission v. Jelks, 203 Ark. 878, 150 S. W. 2d 465, the Court stated the rule as follows:
“. . . the rule is that where fair-minded men might differ honestly as to the conclusion to be drawn from the facts, either controverted or uncontroverted, the question should go to the jury, and it is the province of the jury to pass on the weight of the evidence and the credibility of the witnesses, and, even if it appears that the verdict is contrary to the preponderance of the testimony, this furnishes no ground for reversal. Citations. ’ ’
The question presented for our consideration by appellant’s third point urged for reversal is whether the evidence introduced by appellee falls within the above stated rule. Appellees’ evidence is summarized as follows:
Mr. John Q. Adams has been a real estate broker and appraiser for more than forty years, was familiar with the property, inspected it in October 1959 and found that the front door was brought within forty-three feet of the highway right of way. Mr. S. E. Kennedy, husband of appellee, negotiated for purchase of the property, was a licensed real estate broker for four to five years after 1940, was a nearby landowner, recounted the front door was forty feet from a red clay sand and rock bank, bas bought and sold land in Jackson County and adjoining counties and described in detail the numerous shade trees taken and destroyed. Mr. Claude Cole owned nearby land, was familiar with the property and had made a tentative agreement to pay $8,000 for the property before he learned the highway would take the front of the property, so gave up his plan to buy, and stated the value of the remainder was $4,000, after taking of the right of way. Mr. Guinn, in the real estate business knew the market value of such property and recalled the right of way was thirty-six feet at the closest point. He opined its value was $11,500 before the taking and $8,500 thereafter, damaging Mrs. Kennedy in the sum of $3,000. Mr. James Parish, a realtor for twelve to thirteen years, was familiar with real estate values in the area and the Kennedy property, having made a detailed appraisal in October 1959. He said the diminution in the market value was $3,150. Mr. A. F. Fraser, an officer of the nearby Citizens State Bank at Bradford, had appraised the property for loan purposes and had made a loan on the house. Further, he knew real estate values in the area and had himself built a similar house on the same highway at Bradford, only a few miles distant. He believed the before value was $9,000, and after value was $6,000 and appellee had lost $3,000.
All of these six witnesses for appellee properly testified as to the before and after value of the property and had especial reasons to be familiar with the amount for which such property would sell in the area. The four realtors had bought, sold and handled the sale of such real estate in Jackson County. Mr. Fraser was a banker making loans on such property, had built such a house and had bought and sold real estate in the area. Mr. Cole had bought and sold such real estate and had, in fact, traded for this property at $8,000 before learning the highway right of way would cross it. He related that the diminished value because of that fact was $4,000. All these witnesses were peculiarly well qualified to speak upon the one subject of the jury’s inquiry; that is, the price at which the remainder of the land would have sold in the Jackson County market. The jury’s answer of $2,500 was well within their testimony and substantially supported by it.
Affirmed.
Bohlinger, J., not participating. | [
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McCulloch, C. J.
This is an action instituted by appellants-against appellees to recover commissions alleged to be due on the sale of a plantation in Hempstead County, Arkansas, owned by .appellees. Appellants are real estate brokers at Hope and appellees entered into a contract, giving them exclusive right during a period of six months, to sell the plantation for a commission. That period expired without any progress being made toward a sale, -and thereafter appellees continued the auauthority of appellants to sell or exchange the property and agreed to pay them a commission, but the agreement did not contemplate an exclusive privilege on the part-of appellants. On the contrary, appellees reserved the right to list the lands for sale or exchange with other dealers, and did place them with other dealers.
An exchange of the lands for other real estate was finally made with one Aiken, and the trade was brought about and consummated through Colter & Co., a firm of real estate brokers at Muskogee, Oklahoma, with whom appellee had listed the lands. Some months prior to that time, appellants had corresponded with Colter & Co., with reference to an exchange of the lands for real estate in Muskogee owned by a man named Robinson, and Colter & Co. endeavored to bring about 'the exchange but failed. It was after the failure to effect that exchange (appellees having, after examining the Robinson property, declined to enter into the trade), that Colter & Co. brought appellees and Aiken together for the trade which was consummated. Appellees agreed to pay a commission to Colter & Co. and executed their note for the stipulated amount. When appellants asserted a claim to the commission, the note was held up until it could be determined whether or not they were entitled to the commission. Upon this state of facts, adduced in evidence at the 'trial, the circuit court peremptorily instructed the jury to render a verdict in favor of appellees, which was done, and judgment rendered accordingly.
The question for review is whether the testimony, in any phase of it most favorable to appellants, warranted a submission of the issues to the jury. Our conclusion, .after considering the testimony, is that there was no evidence tending to justify a recovery by appellants, and that the court was correct in giving a peremptory instruction. The contract between appellants and appellee was that the latter should pay appellants a commission for bringing about or negotiating a sale or exchange of the lands, and it is undisputed that the exchange was not brought about through the efforts cf appellants. In other words, they 'did not procure the exchange and are not entitled' to a commission.
We have had cases where the parties agreed that a commission should be paid if the broker procured a sale or procured some other person to bring about a sale, and in those cases we held that where one broker procured a sale or exchange through another broker he was entitled to a commission. Simpson v. Blewitt, 110 Ark. 87; Meyer v. Holland, 116 Ark. 271. There is no contention that .such was the effect of the contract in this case between appellants and appellees, and in order to entitle them to a commission it must appear that they procured a sale or exchange for appellees. This they did not do. Appellees reserved the right; as before stated, to place the lands in the hands of other dealers for sale or exchange, and under this reservation they •had the right to accept a purchaser brought to them by Colter & Co., or any other dealer, and pay the latter a commission, without becoming liable to appellants, even though appella.nts originally brought that firm of brokers and appellees together. Colter & Co. were not acting as the agents of appellants in negotiating the exchange between appellees and Aiken, but were proceeding independently. It may be that Colter & Co. did not act in good faith with appellants, and there is some testimony of admissions on the part ■ of Colter & Co. which tend to establish that fact. But that does not render appellees Hable, for they had the right to employ Colter & Co. to make the sale or exchange, and did so, and agreed to pay them a commission. So there is no theory deducible from the evidence in this case upon which appellants are entitled to recover from appellees a commission for the exchange made with Aiken. They did not bring albout the exchange and their contract with appellees was not broad enough to entitle them to a commission on an exchange brought about by Colter & Co., or any other brokers.
The judgment is therefore affirmed. | [
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McCulloch, O. J.
Elizabeth Stewart, a childless widow, died in Arkansas County, in this State, where she resided, on January 4, 1913, and this is an action instituted by her collateral heirs in the chancery court of that county to set aside a deed executed by her to the defendant, Jones, a short time before her death.
Mrs. Stewart was 72 years of age at the time of her death and had resided in Illinois all of her life until about three years before her death, when she purchased the lands in controversy, which are situated in Arkansas County, and removed to that locality to reside. She owned considerable property at Shipman, Illinois, but 'disposed of a portion of it about the time she purchased the lands in Arkansas. She was a thrifty, business woman of more than ordinary intelligence, energy and business sagacity until her health became poor shortly before she removed to Arkansas. It is claimed that her mental capacity then became such that she was not capable of executing a conveyance.
The defendant was a physician in Alton, Illinois, when Mrs. Stewart went to that place for treatment. She boarded at the home of an acquaintance and was treated by the defendant .and other physicians. The testimony tends to show that defendant was favored by her above other physicians, and the testimony adduced by the plaintiffs tends to show that soon after the two became acquainted he acquired a profound influence over her. She went back to Shipman with her brother, but shortly thereafter she and the defendant came to Arkansas together and from then until the time of her death they occupied a home together on the land in controversy. Defendant had been married, but was divorced from his wife, and he also brought with him to Arkansas a young woman who had been his housekeeper in Alton, and who resided with him and Mrs. Stewart until the latter died,
The lands in controversy consist of 190 acres, which the testimony tends to show are oif the aggregate value of ten or twelve thousand dollars. There was a mortgage on the lands for four thousand dollars. The conveyance executed by Mrs. Stewart to the defendant bears date of August 6,1912, and recites a consideration of the sum of “$1.00 paid and other good and valuable considerations.” The deed was not placed of record by the defendant until four days after' the death of Mrs. Stewart. According to the testimony of the defendant himself, Mrs. Stewart’s health became poor during the summer or early part of the fall of 1912, and she was treated for chronic malaria. Three or four days before her death she was coming down the stairs, and as she reached the bottom of the stairs a misstep caused her to fall against a door and injure her head. She was confined to her bed and a few days thereafter sustained a stroke of paralysis and became unconscious and died in that condition. A post-mortem disclosed the fact that her skull was fractured. The evidence 'adduced by the plaintiff®, tends to show that while Mrs. Stewart was formerly a woman of strong and active mind, when her health became poor, about the time she went to Alton for treatment,* she became mentally weak and easily influenced and seemed to be under the influence of the defendant. It appears, however, that this was her first acquaintance with the defendant. ’
Many witnesses were introduced who had known Mrs. Stewart for a lifetime and their testimony is sufficient to establish the fact that she was not of sufficient mental capacity to intelligently manage her business— at least, that she was easily influenced, and when subjected to the influence of others that she was not of sufficient mental capacity to resist such influences. The testimony adduced by the defendant, on the other hand, tends to show that Mrs. Stewart’s mental capacity and her activity of mind continued unabated up to the time of her death. If the testimony is measured by numerical strength, it perhaps preponderates in favor of the defendant as to the mental capacity of Mrs. Stewart, but, the witnesses adduced by the defendant were persons who, in the main, had merely a casual acquaintance with Mrs. Stewart, while those who testified on behalf of the plaintiffs were in better position to judge of her mental capacity. The chancellor found in favor of the plaintiffs and cancelled the conveyance, and we are unable to discover from the record that the testimony on the issues involved preponderates against his finding.
The defendant does not attempt to give any reason why Mrs. Stewart conveyed to him this valuable tract of land. He states in general terms that he became interested with her. in the land® purchased in Arkansas, but he does not say what interest that was and in what way be became interested. The lands were purchased in her own name and he doesn’t say that he furnished any of the consideration. He states that the consideration of $1.00 and other valuable considerations expressed in the deed correctly represented the consideration, but he does not undertake to show that, there was in fact any other consideration except the $1.00 recited. We must assume, therefore, from this condition of the record that the deed was executed without any valuable consideration whatever, .and if it be sustained at all it must be upon the theory that it was a gift. When the testimony in the record is earefully weighed, in the light of common experience, the conclusion is irresistible that the defendant exercised some peculiar influence over Mrs. Stewart which induced her to execute this conveyance conveying to him the valuable property in. controversy without any consideration whatever. He employed an attorney to prepare this deed and there was nothing in the record to show that Mrs. Stewart initiated the plan of conveying the property to him, and nothing to show that it was her desire to do so. The officer who took the acknowledgment was not called to testify, nor was any one else called who was present when the deed was executed.
In Kelly’s Heirs v. McGuire, 15 Ark. 555, the court said: ‘‘If a person, although not positively non compos-, or insane, is yet of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract made by him under such circumstances, will he .set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility, the natural incapacity of early infancy, the infirmity of extreme old age, or those accidental depressions which result from sudden fear, constitutional despondency, or overwhelming calamities. And although there is no direct proof that a man is non compos, or delirious, yet, if he is of weak understanding, and is harassed and uneasy at the time; or if the deed is executed by him in extremis, or, when he is a paralytic, it can not be supposed that he had a mind adequate to the business which lie was about; and he might he very easily imposed upon.”
■ When the facts of this case are measured by the standard thus announced, we are of the opinion that the conveyance of Mrs. Stewart to the defendant was not executed for a valuable consideration, and was not her deliberate act, free from fraud or undue influence. In fact, there is nothing in the record to sustain the conveyance except the 'bare fact of its execution. It is not fortified by any other fact which would tend to form a reasonable basis for it.
The conclusion of the chancellor will not be disturbed, and the decree is therefore affirmed. | [
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McCulloch,-C. J.
This case involves the right -of'' the apellan!, Lizzie Kendall, to dower in the estate of one Bailey Kendall, wiho died in Phillips -County, Arkansas, without issue, in the year 1913, leaving an estate consist-’ • ing of certain lands which are described in the -complaint. Appellant was the wife of Bailey Kendall, but upon her compláint a divorce was granted by a court of competent jurisdiction in the State of Illinois in the year 1894. Appellee is the nearest collateral heir of-said decedent, and he challenges the right of appellant to take dower in the estate on the ground that she was' not the wife of said decedent at the time of his death and is therefore not the widow within the meaning of the laws of this State on the subject of dower.
The statute reads as follows: “If a husband die, leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which such husband died seized* where said estate is a new acquisition and not an ancestral estate; and one-half of the personal estate, absolutely and in her own right, as against collateral heirs, but, as against creditors, she shall be endowed with one-third of the real estate in fee simple if a new acquisition and not ancestral, and of one-third of the personal property absolutely. Provided, if the real estate of the husband be an anees-* tral estate she shall be endowed in a life estate of one-half of said estate as against collateral heirs, and one-third as against creditors.” Kirby’s- Digest, § 2709.
The statute just quoted was an amendment introduced into the laws of this State by the act of March 24, 1891; iand it enlarged the widow’s dower to a very considerable extent; but the prior statutes on the subject, which sitill remain in force, except insofar as amended or repealed by the Act of 1891, provided only for allotment of dower to the widow of a decedent. There is not now -and has never been in existence any statute of this State which in express terms gave dower to one who was not the wife of a decedent -at the time of -his death. Another section of the revised statutes provides that “in case of divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. ’ ’ Kirby ’s Digest, § 2694. The effect of the statute last quoted, as bearing upon the right of ia divorced wife of a decedent to take dower, was quite fully discussed by Judge Battle in the case of Wood v. Wood, 59 Ark. 441. In that' case the court decided that a 'divorced wife could not be the widow of a decedent within the meaning of our divorce laws so as to be entitled to dower. It is pointed out in that case that .section 2694, of Kirby’s Digest, was copied from the New York statute without borrowing other statutes from that State which gave it any effect. Decisions of the New York courts, which are quoted from and discussed, show the purpose of the Legislature in that State by tiffs enactment to restore the law as it existed in England prior to the statute of "^Vestm. 2 (13 Edw. I), c. 34, but our divorce laws needed no statute to thus restore the condition of the law because the change brought by the English statute had never been introduced here. The effect of the statute is a little more plainly indicated by Judge Riddick in his opinion in Grober v. Clements, 71 Ark. 565, where it is shown 'that the Legislature meant to declare 'the law to be different than that expressed in the English statute which barred the widow’s dower if she deserted her husband and went away with another in adultery, and to provide, contrary to the terms of the English statute, that such misconduct should not bar her right of dower unless if was followed up by a divorce dissolving the bonds of matrimony. It turns out that the Legislature was mistaken in finding a necessity for this statute, for under other sections of the statutes the widow was entitled to dower unless divorced, but the mistake of the Legislature in that respect does not alter the effect of the statute! It can be treated only as a legislative declaration of the '¡state of the law to be contrary to that .announced in the English statute which made the misconduct of the wife, without a divorce, a bar to her right of dower. At any rate, we regard the opinion of this court in Wood v. Wood, supra, as de cisiv-e -of the question that a divorced wife is not entitled to d-ower, and the reasons given by Judge Battle in that opinion are convincing. Learned counsel for appellant insist that Judge Riddick;s opinion in Grober v. Clements, supra, is to the contrary, but we do -not find it to be s-o. Judge Riddick was not -discussing the question of the right of a divorced wife to dower, for he had already announced the conclusion of the court that the widow of Grober had not -been legally divorced and was not on that ¡account to be denied her right of dower. His discussion had reached that point where he was treating the question -of the mere -misconduct of the widow as a bar of dower, and he compared -our statute with the English statute referred to and held that it was merely a declaration on the part of the Legislature of the State of -the law different from that existing under the English statute. In other words, he w-as merely holding that the misconduct -of the wife did not bar heir dower, ,and that under the statute referred to it required a divorce to bar the right of dower.
The statutes on the subject of divorce, provide that when a wife is granted a divorce she ‘ ‘¡shall be entitled to one-third of the husband’s personal property, absolutely, and -one-third of all the lands whereof her husband was -seized -of an estate of inheritance -at any time during the marriage for her life, unless the -same shall have been reliquished by her in legal form,” and that the judgment for divorce “shall -designate the specific property, both real and personal, to which such wife is entitled.” Kirby’s Digest, § 2684.
Of this statute the court, in Beene v. Beene, 64 Ark.. 518, said: “The Legislature -seems to have enacted that statute for the purpose of putting an -end to all after-controversies -as to dower rights-, -and -to settle the matter when a divorce is granted dissolving the marital bonds.”
The Illinois court which granted the divorce -did not, -of -course, have jurisdiction to -award to appellant lands in this State; and as it -d-oe-s not 'appear from the record in this -ease when appellant’s husband acquired the lands in controversy, whether during 'the -coverture or since, it ended upon the granting of the divorce, the question does not arise whether ¡or not appellant could, subsequent to the divorce have maintained a separate action in this State to have a part of her husband’s lands here awarded to her.
Another question presented is that the judgment of the probate court of Phillips County was a final adjudication of appellant’s right of dower ¡and that the question could not be further inquired into. There appears in the record a judgment ¡of the probate court reciting that appellant had filed her petition in that court to have dower ¡set aside and that the court “adjudged that an undivided. one-half interest in and to the above named tracts, pieces ¡and parcels of land be and the same is hereby vested in the said Elizabeth Kendall in fee simple, together with all rights and appurtenances thereunto belonging. ’ ’ Probate courts of this State ¡are vested with jurisdiction in matters of dower. Kirby’s Digest, § 2720; Carter v. Younger, 112 Ark. 483; 166 S. W. 547, and other cases cited. The statute provides that if ¡dower be not assigned to the widow within a certain time, she may file in the probate court her petition for the allotment of dower and give the names of those having an interest in the property, and that summons shall be served upon the persons named as in other cases at law. The statute then provides for a contest of the right of the petitioner, and that upon final hearing if the widow be found to be ¡entitled to dower the court shall appoint ¡commissioners to- allot the same. Nothing is brought into this record except the judgment and it ¡does not appear that appellee or any interested parties were brought in. Passing that, however, it is observed further that the judgment of the court is not for the allotment of dower, but merely an ¡adjudication that the appellant is- entitled to dower. Now, the statute itself vests the title in the widow to' one-half ¡of the lands as dower ¡and no adjudication of a court is necessary. The proceeding ¡authorized by the statute to be 'had in the probate court is merely for the 'allotment of -dower and the inquiry ¡as to the right of the widow to dower is a mere incident to tbe allotment. There was no .allotment óf dower by the probate court, and therefore there was no final judgment of that court which hinds any of the issues involved in this case. It is contended ‘that the case of Carter v. Younger, supra, is decisive of this question that the judgment of the probate court bars the present suit, but we do not think so, for the reason stated above, if for no other, that there was no judgment of allotment of dower rendered by the probate court. The court had no jurisdiction of a suit merely to determine the widow’s right of dower, und any determination of that issue in a proceeding of that kind does no,t bar the present proceeding originating in the chancery court.
The decree of the court was therefore correct, and the same is affirmed. | [
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Hart, J.
Ben H. Goza, by his next friend, E. B. Goza, instituted this action against the Garretson-, Greeson Lumber Company to recover damages for injuries suffered by him on account of the alleged negligence of the defendant company. At the time of his injury the plaintiff was a minor eighteen years of age and was employed by the defendant to haul sawdust away from its mill, and to clean up around the boiler. Prior to that time he had worked at a sawmill for three weeks at the cut-off saw and, except for that, had never worked around a sawmill during his life. He was substituted for another employee on the morning of the day of his injury and was injured about 3 o’clock in the afternoon. His duties were to haul sawdust from behind the boiler and also from a place under the mill to which it had been conveyed and deposited by means of a trough. The sawdust was carried from the saw through a trough or box by means of an endless chain working over a sprocket wheel. The wheel was fastened to large blocks which were in turn fastened to upright posts, so that the en tire diameter of the wheel, which was about eighteen inches or two feet, extended out ¡beyond the posts. The trough did not quite come to the wheel and the chain dragged along the bottom of the trough. When it emerged therefrom it passed on over the sprocket wheel into a trough leáding 'back toward the saw. The conveyor chain dragged loosely along the trough and by that means carried the sawdust along with it. The saw-' dust was deposited in the space between the mouth of the trough and the post where the conveyor chain passed over the sprocket wheel.
One of the witnesses stated that when the chain passed .over the mouth of the trough and came up over the sprocket wheel it had cogs on it which tightened up and caused the chain to further sag or jump at the point where it caught into the cogs of the sprocket wheel, and that one side of the chain was very much worn, causing it to rmuunevenly.
According to the testimony of Ben H. Goza, he would first haul away a load of sawdust in a cart from behind the boiler and would then go to the space between the end of the trough and the sprocket wheel and carry away a load of sawdust from there. The sawdust accumulated there very rapidly while he was carrying away the sawdust from behind the boiler. At the time he was injured he was standing beside the face of the sprocket wheel shoveling sawdust into the cart and stated that this was the only way in which he could do the work. He had noticed that when the chain left the end of the trough and came up to fasten into the cogs of the sprocket wheel, it tightened up and jumped. This caused the chain to sag down. In some manner, while he was shoveling the sawdust into the cart, his arm got caught in the space between the chain and the sprocket wheel and he was severely injured. He stated that there was not room enough for his arm to have caught in that space unless the chain tightened up and sagged down. He knew that if his arm should be caught it would be injured, but said that he was doing his work in the only practicable way it could be done, and that he did not appreciate the danger from having his arm caught 'between the chain and sprocket wheel. He had not been warned or instructed that'there was any danger in doing the work this way. He also stated that there were cogs on the sprocket wheel and .that when the chain passed over the end of the trough and caught in these cogs it would tighten and then sag.
Evidence was adduced in behalf of the defendant tending to show that the sprocket wheel had no cogs on it and that the chain was carried over it by means of the friction of the chain passing over the wheel.
The jury returned a verdict in favor of the plaintiff in the sum of $1,250.00 and the defendant has appealed.
It is first contended by counsel for the defendant that the court erred in giving instruction No'. 2, at the request of the plaintiff. The instruction is as follows:
“You are instructed that if you find from a preponderance of the evidence in this case, that the plaintiff while in the discharge of his duties as an employee of the defendant, and while exercising the care which a reasonably prudent man would have exercised under like circumstances, was injured by the negligence of the defendant in failing to exercise reasonable care to provide him a reasonably safe place in which to work and discharge the duties of his employment, and failed to exercise reasonable care in hooding or protecting the sprocket wheel complained of, then your verdict will be for the plaintiff.”
Counsel for the defendant insist that the instruction is erroneous because, they diaim, it in effect assumes that the defendant was guilty of negligence in failing to hood or protect the sprocket wheel. We do not think the instruction is open to that objection; on the other hand, we are of the opinion that it left that open as a question of fact to be determined by the jury. If counsel for the defendant thought it susceptible of the construction now complained of, they should have made a specific objection to tbe instruction on that ground. Then, doubtless, tbe court would have changed the wording of the instruction to meet their objection. It is apparent from all the instructions given by the court that this question was submitted to the jury as a question of fact. It will be noted that the sprocket wheel extended out eighteen inches or two feet beyond the post to which it was fastened and that there was no covering of any kind to protect an employee whose duty it was to shovel away the sawdust which accumulated near it. Goza testified that he placed his cart into which he was shoveling sawdust at the only place where he could perform his work and that he was standing in the only position in which he could stand and shovel the sawdust into the cart. The sprocket wheel was wholly unguarded and the plaintiff testified that it would have been guarded by nailing a piece of tin to the post to which i't was fastened, and that the tin would not have in any way interfered with the operation of the chain over the sprocket wheel.
This evidence on the part of the plaintiff was not denied, so that it will be seen that it was practicable to keep a guard over the cog wheel, and this simple and inexpensive device would have afforded complete protection to any one whose duty it was' to carry away the sawdust. It was the duty of the defendant to exercise ordinary care to furnish a reasonably safe place for the protection of employees' whose duty it was to haul away the sawdust, and we are of the opinion that under the circumstances the question of whether the defendant was negligent in failing to place a guard around the sprocket wheel was a question of fact for the jury, and that it was properly submitted to the jury.
It is -also contended by counsel for the defendant that the court erred in refusing to give instruction No. 5, asked by it, the instruction being as follows:
“You are instructed that under the testimony in this case, the question of the defendant’s negligence has narrowed down to one issue; that is, whether the defendant was negligent in not warning and instructing the plain tiff as to the dangers to be encountered by him in coming in contact with- the dnst conveyor chain in question, and whether .such failure to so warn and instruct the plaintiff was the proximate cause of plaintiff’s injury.”
Counsel contends that this instruction should have been given because the only question of negligence was whether or not the defendant ought to have warned or instructed Goza in regard to the dangers connected with working near the sprocket wheel. We do not agree with them in this contention. The evidence shows that one side of the chain was worn .and that this caused the chain to work unevenly. It also shows that when the chain left the mouth of the trough and passed over the sprocket wheel it tightened up and jerked or sagged. Jerking and sagging would, to some extent, occur in any event, but, on account of one side of the chain being very much worn, so that the chain passed unevenly over the sprocket wheel it naturally caused the chain to sag more; at least, the jury were warranted in finding this to be a fact, and, on that account, it was proper to submit to the jury the question of the negligence of the defendant in •failing to furnish Goza a safe place in which to work.
Again it ds insisted by counsel for the defendant that it owed the plaintiff no greater duty than it owed to Thompson, who hired plaintiff, as a substitute in his place. Thompson was the regular employee whose duty it was to remove the sawdust from under the mill, and for this service and the use of a mule which he furnished, he was paid $2.50 per day. On the morning of the day plaintiff was injured, Thompson was sick and asked that he be relieved from work. Hughes, the man who employed Mm, pointed out the plaintiff and told Thompson to hire him in his place and Thompson did so. He says that when he hired a substitute to take his place it was his custom to pay the substitute and the defendant would pay him Ms regular wages. The manner of this payment of plaintiff’s wages did not in any way change his relation to the defendant. He was hired by Thompson at the suggestion of defendant’s manager and the defendant owed him the same duty as if its manager had employed Mm.
It is also earnestly insisted by counsel for the defendant that the court erred in not directing a verdict in its favor. It is admitted that no warning or instruction was given Goza in regard to the danger of working near the sprocket wheel. It was his duty to shovel sawdust away from .that place and it accumulated so rapidly that it was necessary for him to give Ms whole time and attention to his work in order that he might keep it from accumulating to such an extent that it would retard the work of sawing. The plaintiff was a youth, eighteen years of age, and had practically n'o experience in working around a saw mill, and no experience whatever in doing the work he was engaged to perform. The end in view to be accomplished by instructions from the master is to make the servant aware of the danger and the means of avoiding it. Goza says he knew, and he must be held to have 'known, that if his sleeve should get caught between the sprocket wheel and the chain his arm would be hurt. But it is a different question whether he should be held to have understood and appreciated the risk that his arm or sleeve might be drawn in between the cog wheel and chain while he was at work. Goza stated that there was not room enough for Ms arm to have been caught between the chain and the sprocket wheel unless the chain sagged to such- an extent that his arm or his sleeve might be caught between them. Of course, when-the chain emerged from the mouth of the trough and passed over the sprocket wheel it would tighten up and jump to some extent, but the undisputed testimony shows that one side of the Chain was very much worn so that the chain was uneven. Naturally this had something to do with the sagging of the chMn. The jury might have found that the chain sagged to a greater extent because it passed unevenly over the cogs of the sprocket wheel. Therefore we are of the opinion that the question whether the plaintiff had knowledge -and appreciation of the danger were matters to be determined by the jury from all the facte in the oaise, 'fcakmo.g into consideration his youth and his inexperience in the work which he was performing and the 'character of the dangers attending it, and the failure >of the defendant to give him any warning or instruction concerning them.
We think the case was fairly submitted to the jury under the well settled principles of law which this court has repeatedly held to apply under a similar state of facts. We find no prejudicial error in the record and the judgment will be affirmed. | [
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Kirby, J.,
(after stating the facts). Appellee’s right to maintain the action was based upon his ownership of the land, which was denied by the answer, and the court erred in not giving said instruction requested by appellant and in giving said instruction requested by appellee. Appellee deraigned his title through a grant from the State, of date December 16, 1873, and appellant showed the lands had been purchased from the State by Thos. J. Jarnigan, and a certificate issued therefor in 1862. That Jarnigan conveyed the lands to others and that they had been finally conveyed to her father, from whom she -and the other defendants inherited. A complete chain of title was not shown.
Appellee’s right to recover, however, rested upon the strength of his own title, since he had no possession of the lands from which the timber was taken. Price v. Greer, 76 Ark. 426. The land was purchased from the State by Jarnigan in 1862, and certificate issued therefor showing such fact. Jarnigan thereby acquired the equitable title to the lands and thereafter the State was but a naked trustee of the legal title, charged with the simple duty to issue him a patent at the proper time, and could not lawfully sell it to another. Hibben v. Malone, 85 Ark. 587; Coleman v. Hill, 44 Ark. 452.
The purchaser under the certificate from the State, and his successors could protect his right to the land by an action of ejectment or sell and convey the same. Alexander v. McCauley, 22 Ark. 553; Coleman v. Hill, 44 Ark. 452; Smithee v. Mosely, 31 Ark. 426; Brummett v. Pearle, 36 Ark. 472; Chowning v. Stanfield, 49 Ark. 87; Kirby’s Digest, § 2741.
The owner of the equitable title to the land had the right to the timber growing thereon and could not be compelled to pay damages for removing same, to the owner merely of the naked legal title, and had the right in a suit at law to set up the fact as a defense to such action. There is some testimony tending to show that appellee’s grantors had paid the taxes upon the lands which were wild and unimproved for more than seven years, under color of title, three of the payments being after the approval of the statute of 1899. Kirby’s Digest, § 5057. No title was acquired thereby, however, although a'witness stated that an examination of the tax books disclosed that W. C. Sheldon paid the taxes from 1884 until 1904. ¥m. C. Sheldon, the grantee trustee in the deed from the State, died in 1896, and the taxes could not, of course, have been paid by ’him thereafter, and if they were paid by.W. ,C. Sheldon, Jr., a devisee in the will and one of the executors thereof, who made the deed conveying the lands to the grantors of 'Warnock, he had no color -of title thereto at the time of paying the taxes after the death of said W. C. Sheldon, for the will contains no description of any lands and did not constitute color of title. The court erred, therefore, in instructing the jury that they should render a verdict for appellee, if they found from a preponderance of the testimony that appellants removed the timber from the land without requiring it to first find that the land belonged to him.
For the error in refusing said instruction the judgment is reversed and the cause remanded for a new trial. | [
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Hart, J.,
Ike Stiel Co. prosecutes this appeal to reverse a judgment on account.
This suit was instituted in the circuit court by Geo, P. Ide Co. against Ike Stiel Co. The complaint, omitting the caption, is as follows:
Plaintiff states that the defendant is indebted to them on account in the sum of three hundred and twenty-seven dollars and eighty-eight cents. An itemized verified account of said indebtedness is filed herewith and made part of this complaint.
Wherefore plaintiff prays judgment in the sum of $327.88 and for interest and ooists and all proper relief.
Attached to the ¡complaint was an itemized statement of the .account which was. duly verified by the plaintiff. The defendant filed a general demurrer to the complaint which was overruled by the court. The defendant elected to stand on its demurrer and refused to plead further. Whereupon the court rendered judgment in favor of -(he plaintiff for amount with accrued interest. The defendant has duly prosecuted an appeal to this court.
It is contended by counsel for the defendant that the court erred in overruling its demurrer. We do not think ,so. In the case of the Arkansas Life Insurance Co. v. American National Life Insurance Co., 110 Ark. 130, the court said: “In testing the sufficiency of a pleading by general demurrer every reasonable intendment should be indulged to support it. ’ ’ The court further stated that if the facts stated, together with every reasonable inference therefrom, constituted a cause of action, then the demurrer should be overruled. The complaint states in general terms that the defendant was indebted on account to the plaintiff in the sum of $327.88. This was a sufficient allegation to notify defendant that it was due to the plaintiff that amount of money on account and the court properly overruled the general demurrer to the complaint. At most it was a complaint defectively stated. An objection to it should have been made by motion to make more specific and definite instead of by general demurrer. The exhibit filed to the complaint contained an itemized statement of the account, duly verified by the plaintiff in accordance with the provision 3151 of Kirby’s Digest. When the defendant refused to plead further and failed under oath to deny the correctness of the account, either in whole or in part, it was the duty of the -court, under the' provisions -of the statute just referred to, to- render judgment in favor -of the plaintiff.
On a ¡subsequent day -of the court the defendant made -a ni-otion to set aside the judgment on the ground that the president of the defendant company was out -of the city -and -that judgment had been rendered without his knowledge -or consent. That through -some misunderstanding, the attorneys of the defendant permitted the judgment to be entered against the defendant, ¡and that the defendant had certain rights which could only be •set up by answer. The court refused to- open the judgment -and there was no error in the action of the court in this respect. The attorney who represented the' defendant at the time the judgment w-as rendered was its duly -accredited -attorney and no diligence in making any defense the -defendant had i-s shown. Therefore the the court did -not abuse its discretion in refusing to open the judgment. See Hershy v. McGreevy & Yantis, 46 Ark. 498.
It follows that the judgment must he affirmed. | [
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Kirby, J.
This appeal is brought from a judgment for damages for an alleged personal injury, resulting in the death of appellee’s intestate. He was working for the appellant company at the time of the alleged injury in trucking lumber to the planer.-' The lumber was loaded on a frame, which was on two wheels, constituting a truck, and one man stood at the end of the lumber behind and kept it in balance and helped to push, while the other, the deceased in this instance, rolled one of the wheels by pushing’ it along’ to the planer, the floor of which was an inch and a half higher than the runway adjoining it, and to enable the helpers to more easily push the truck over this raise, a plank about an inch thick and ten feet long was usually kept against the edge of the rise in the planer floor. When the truck deceased was helping to push reached this rise, the plank had been moved away from against it and one wheel of the truck struck the rise first, causing it to stop. '
Appellant contends that it caused a severe jerk of the deceased, who was rolling the wheel that did not strike the obstruction. The man at the end of the lumber who was keeping it balanced, said it was the business of the employees trucking the lumber to put a plank up against the edge of the planer floor to better enable them to roll the lumber up, and that he did not notice that the plank was not up against the rise until after the wheel struck the obstruction and the truck stopped. He said that deceased was in a better position to see whether the plank was in place than he was, and that it was his duty also to notice the condition and remedy it. He testified further that there was no severe jolt or jerk of the truck when it struck the rise in the floor, that he did not notice any at all, and also that deceased made no complaint of any jolt or jerk, or of being injured at the time. It is true he answered “Yes, sir,” when asked if he didn’t remember in giving a statement in the case saying, “When we run the buggy against the offset, it caused a considerable jerk.” Shortly after deceased went to work at the re-saw, and in probably twenty minutes thereafter complained of feeling bad, and went home, and died within a month and a half. The testimony of the physicians tended strongly to show that he was afflicted with cancer of the stomach, and had been for some time, and that his death was due to that.
Two witnesses who were familiar with the trucking of lumber and the trucks used by appellant company, •stated that if one of the trucks heavily loaded was pushed rapidly against the rise in the floor, one wheel striking before the other, that the tendency would be to jerk the other wheel and the man who was pushing it with sufficient violence maybe to produce a severe injury. No one saw the deceased when the wheel struck the rise in the floor, the man at the end of the lumber being behind and on the other side of it from him, and it does not appear that he had hold of the wheel at the time.
Appellant only contends here that the court erred in refusing to direct a verdict for it, and we agree with this contention. There is no testimony showing negligence on the part of the lumber company that resulted proximately in injury to and death of the deceased.- It may be that he was jerked or shaken by the sudden coming in contact of the opposite wheel of the truck with the rise in the planer floor and injured thereby, but the man who was at the end of the load of lumbér and holding the truck in balance and who must necessarily have been slung around or affected by the jerk, testified that there was no jerk or jolt resulting from the contact, that he noticed none, and that he must have noticed it if there had been. He testified further, and it was not disputed, that deceased made no complaint whatever of being jarred or injured at the time. If his stomach was weakened by the inroads of the disease from which he suffered, he might the more easily have been injured, it is true, by a jolt or jerk, but the jury would have been compelled to speculate upon the cause of his injury in arriving at a verdict in favor of the appellee, which they doubtless did do as indicated by the small amount awarded as damages.
The testimony does not even show that deceased had hold of the wheel of the truck at the time the other wheel struck the obstruction. The death of deceased could have resulted from the disease from which he suffered, as well as from the injury claimed to have been inflicted, and the jury are not permitted to speculate as to its cause.
3 Bailey on Personal Injury, page’ 2136, states the rule as follows: “It may he correctly staged as a rule that proof of an alleged act or omission as causing injury is not sufficient to establish it as the cause, so long as other causes exist and were present, which might as well have caused it. Surmise and conjecture can not supersede proof. There must exist some degree of certainty. There need not (be absolute certainty or freedom from reasonable doubt but sufficient must be shown to overcome or more than balance ■ any presumption that other causes may have produced it. ’ ’
The most the evidence establishes is a condition which could have been caused by an injury at the time, or resulted from the disease of the deceased, and whether an injury did occur was under the evidence but a surmise or conjecture. The existence of a fact is not proved by evidence of a subsequent condition which is merely consistent with its existence, and does not warrant a submission of the question to the jury.
In St. Louis, I. M. & S. Ry. Co. v. Andrews, 79 Ark. 437, the court said: “The jury are not allowed to indulge in presumptions. Upon a charge of negligence of this sort, there must be proof, otherwise the injury complained of must be held to have resulted from an accident for which no one is legally liable to respond in damages. Such shows no more than that plaintiff’s injury resulted in an accident. ’ ’
In Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, the court said:
“The evidence tends to show as before stated, that he fell under the ears right at the frog and was run over. It is purely a matter of conjecture how he came to fall under the cars. Juries are not permitted to rest a verdict purely upon speculation, but there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts;” See, also, Patton v. Texas & Pacific Ry. Co., 179 U. S. 658; L. H. & St. L. Ry. Co. v. Jolly, 90 S. W. 977; Chesapeake & Ohio Ry. Co. v. Heath, 103 Va. 64.
Moreover, the raised floor of the planer was .an obvious defect, if a defect at all, and it was the duty of the deceased or those engaged in trucking the lumber to place the plank up next to the rise if they desired to use it.' There was nothing to conceal the condition, and there was no negligence shown upon the part of appellee in failing to exercise ordinary care in furnishing deceased a safe place in which to work. He assumed the risk of the employment, and can not recover on that account.
The judgment must be reversed, and as the cause seems fully developed, will be dismissed. It is so ordered. | [
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Hart, J.
Geo. P. Taylor sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the alleged negligent killing of his dog by one of defendant’s passenger trains. The facts were as follows:
On July 31, 1913, one of defendant’s north-bound passenger trains struck the dog of the plaintiff and killed it while the dog was on the railroad crossing in the town of Forrest City. The train did not slow down before or after striking the dog. The crossing was ninety steps north of the depot. The track curved there and the dog came on the track at the crossing about fifteen or twenty feet ahead of the engine.
According to the testimony of the witnesses for the plaintiff, there was no obstruction along the right-of-way at that point, and, in their judgment, the employees of the railroad company who were in the cab of the engine could have seen the dog 'approaching the track.
Neither the engineer nor the fireman of the train which struck the dog testified. Another engineer, who had run on that particular piece of road for many years, testified that the engineer sat on the right-hand side of the cab, and that at that particular crossing where the dog was killed he could not have seen the dog go on the track fifteen feet ahead of the engine. He also testified that it was the custom for the fireman to commence coaling the engine after the train left the station.
The value of the dog was proved.
The court directed the jury to return a verdict for the defendant, and the plaintiff has appealed.
Dogs are personal property, for the negligent killing of which railroads are liable. Proof that a dog was killed by the running of a train makes a prima facie ease of negligence on the part of the railroad company. St. Louis, I. M. & S. Ry. Co. v. Rhoden, 93 Ark. 29; El Dorado & Rastrop Ry. Co. v. Knox, 90 Ark. 1; St. Louis Southwestern Ry. Co. v. Stanfield, 63 Ark. 643; St. Louis, I. M. & S. Ry. Co. v. Philpot, 72 Ark. 23.
Here the dog was killed by the operation of the train by actually coming into contact with it, and the prima facie case of negligence thus made is not changed by the lookout statute of 1911, Act 284, p. 275. St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431.
The engineer and the fireman of the train which struck the dog did not testify at the trial. It is true another engineer testified that the engineer could not have seen the dog come upon the track fifteen feet ahead ' of the engine, and that it was the custom of the fireman to begin to coal the engine immediately after the train left the depot, but this testimony was not sufficient to overcome the prima facie case of negligence made against the defendant by killing the dog. . The statute requires that an efficient lookout be kept. It is not required that every employee upon the train should be constantly upon the lookout. It is sufficient that the lookout be kept by one person, unless by reason of curving track or other ■obstructions an efficient lookout can not be kept by one person alone. St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236.
The injury occurred at a public crossing in a populous town, and the jury might have found from all the evidence that the engineer alone could not have, kept an efficient lockout.
The dog was killed at a public crossing in the town of Forrest City about ninety steps north of the depot. It is true that there was a curve in the track there, that the dog approached from the left-hand side, and that the engineer usually sat on the right-hand side of the cab. But the witnesses for the plaintiff testified that there was no obstruction on the right-of-way there, and that, in their judgment, the engineer could have seen the dog approaching the track. From the testimony the jury might have found that the engineer was not keeping a lookout, or that if he was keeping one if he had blown the whistle, the dog might have been frightened away from the track. Thus, from the testimony of the plaintiff’s witnesses who saw the train hit the dog, the jury might have found that the defendant was guilty of negligence.
It follows that the judgment must be reversed and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). The statute provides that no person shall maintain an action for the recovery of any lands, or for possession thereof, against any person who may hold such land by virtue of a purchase thereof at tax sale without filing an affidavit setting forth that the claimant had tendered to the person holding the lands “the amount of taxes and costs first paid for said lands, with interest thereon from the date of payment thereof and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the value of all improvements made on such lands by the purchaser, his heirs, assigns or tenants, after the expiration of the period allowed for the redemption of lands sold for taxes, and that the same hath been refused.” Kirby’s Digest, § 2759.
The court erred in instructing a verdict for the ap-. pellee, for these reasons:
First. It is the duty of the circuit court, where the above statute is not complied with, “to dismiss -said action at the cost of the plaintiff.” Kirby’s Digest, § 2760. This statute contemplates that the court shall dismiss the action where the affidavit is insufficient, without submitting the issue raised by the pleadings in the case to the jury. It is a matter that must 'be disposed of in limine. It is erroneous procedure to have the cause submitted on the merits to the jury and then direct the jury to return a verdict in favor of the defendant in the action because the plaintiff has failed to file a sufficient affidavit. The judgment of the court based on the jury’s verdict was not one dismissing the action, but was tantamount to a judgment in favor of the defendant oh the merits.
Second. While the affidavit does not, in form, comply strictly with the requirements of the statute, it does state that Dent, as agent for appellants, had tendered to the appellee all the taxes, interest, fees and costs of improvement made by the appellee, “as required to be tendered before suit filed, and that the said Carrie D. Phillips refused to accept the same, but stated that she would not receive the same, and that it was unnecessary for further tender to 'be made.” We think-the affidavit, taken as a whole, showed that all the taxes, interest and costs of improvements “as required to be tendered before suit filed,” were tendered. This was a substantial compliance with the statute and was sufficient to authorize the appellants to maintain their suit.
In Anthony v. Manlove, 53 Ark. 423, the court, speaking through Judge Hemingway, c«f this statute, said: “There is no wise or beneficent purpose to be aoeomplished by the act which would' justify the extension of its operation beyond its letter; besides, being penal in its nature, it should be strictly construed. ”
The purpose of the lawmakers was to make sure that a person claiming lands held by another under tax title should be 'willing to reimburse the latter for all the sums he had expended on the lands in the event that his title proved defective by reason of irregularities and omissions of the officers making the tax sale. The affidavit under review is sufficient to show that the appellants were willing to do this.
The judgment is therefore reversed and the cause remanded for a new trial. | [
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Hart, J.
This suit was instituted in the circuit court by Eugene Williams and the Bank of Forrest City against the city of Forrest City, to recover the sum of $5,196.43 alleged to be due plaintiffs by 'the defendant. The pleadings and proof introduced established the following state of facts:
Forrest City is a city of the second class and on the. 8th day of June, 1906, its common council passed a resolution whereby its mayor was authorized and directed to execute to Eugene Williams, two notes, one for $3,160, due and payable February 8, 1907-, for oash borrowed, and one for $2,196.43, due and payable one year after date, being for the purchase of material and stock for an electric light plant, said notes to bear 8 per cent, interest from maturity. T'he yeas and nays were called on ,the passage of the resolution and it was duly adopted. At a subsequent meeting of the council the mayor reported that, pursu'ant to the first resolution, he had executed the two notes to Eugene Williams, that one was for ■ $2,196.43, due twelve months after date, for stock and .merchandise on hand at the light plant at the time of delivery and not included in the purchase price of the plant; that the other one was for $3,160, due eight months after date, and that the loan was made for the purpose of removing the pumping station of the water plant to the lot occupied by the light plant. His report was accepted and approved by the council.
On the 20th day of September, 1910, the council passed a resolution authorizing ¡the mayor and recorder to renew said notes. The yeas and nays were not called on this resolution. Pursuant to the resolution the mayor and recorder executed renewal notes in place of the orig iñal notes. On September- 24,1910, a payment was made on the notes.
The case was tried before the court sitting as a jury and the court found that the city was not liable for interest and rendered judgment in' favor of plaintiffs for the sum of $5,196.43, the amount of the principal of the notes. The defendant pleaded the statute of limitations and to reverse the judgment relies upon the statute of limitations of three years.
It is the -contention of counsel for the defendant that because section 1 of article 16 of our Constitution prohibits a municipal corporation from issuing interest-bearing evidence of indebtedness, it thereby prohibits municipal corporations from executing -any written evidence acknowledging its debt and stipulating therein the terms of payment.
Counsel admit that under section 5443 of Kirby’s Digest which provides in -effect that municipal corporations shall have power to provide for and construct or acquire works for lighting its streets, alleys, parks and other public places, the city council had authority t-o incur the indebtedness of $2,196.43 -for the material purchased by it from Williams for its light plant. But they insist that it had no authority to issue its promissory note in evidence of said debt.
Section 5473 of Kirby’s Digest provides that on the passage of every by-law or ordinance, resolution or order to -enter into a contract by any council of any municipal corporation, the yeas and nays shall he called and recorded.
It will be noted that the original contract was entered into with Williams on the 8th day of January, 1906, and the yeas and nays were called on the passage of the resolution authorizing the contract. The renewal was provided for by resolution passed on September 20, 1910, but the yeas and nays wer-e not called on the passage of the resolution.
The present suit was instituted on the 4th day of March, 1914. This was more than three years after the passage of the resolution on September 20, 1910, authorizing the renewal. It is the contention of counsel ■ for the defendant that the notes executed by the city are void and that the city was only liable on its contract for the purchase of the material for the electric light plant and that the claim therefor is barred by the three years statute of limitations.
The same contention is made in regard to the procurement of the loan of $3,000 and in addition counsel for the defendant contend that the city had no authority whatever to borrow $3,000 for the purpose of moving the pumping station to the electric light plant. In regard to this latter contention it may be §aid that section 5442 of Kirby’s ’Digest provides in effect that municipal corporations’ shall have power to provide a supply of water by constructing or by acquiring by purchase or otherwise, wells, pumps, cisterns, reservoirs or waterworks, to regulate the same, and to prevent unnecessary waste of water, etc.
The power expressly conferred by this section carries with it as a necessary incident the authority to make such subsidiary contracts as are necessary to effectuate the purposes of the act. Therefore we are of the opinion that the city council had the power to borrow the money to pay the expense of moving the pumping station of the water plant to the site of the light plant. Hence, the right to recover on both notes is the same.
In the case of Merrill v. Monticello, 138 U. S. 673, the court held that the implied power of-a municipal corporation to borrow money to enable it to execute powers expressly conferred upon it by law, if it exists at all, does not authorize it to create and issue negotiable securities to be sold in the market and to be taken by a purchaser freed from equities that might be set up by the maker. Under the authority of this decision and others to the same effect, it is contended by counsel for the defendant that the notes originally given by the municipal corporation sued on herein were void.
After stating the facts in the case of Merrill v. Monticello, supra, Mr. Justice Lamar said: “The decisive question presented by the record in this case is, did the town of Montieeilo have authority, under the laws of Indiana, to issue for sale in -open market, negotiable securities in the form of bonds and coupons on which recovery is here sought. After discussing the question thoroughly the -court held that -it did not. In the course -of the discussion, however, the learned justice said:
“It is admitted that the power to-borrow money, or to incur-indebtedness, carries with it the power to issue the usual evidences of indebtedness, by the corporation, to the lender or -other creditor. tSuch evidence© may be in the form of promissory notes, warrants and, perhaps, most generally, in that of a bond. But there is a marked legal -difference between the power to give a note to a lender for the amount of money borrowed, or to a creditor for the amount due, and the power to issue for sale, in open market, a bond, as ia commercial security,-with immunity, in the hands of a bona fide holder for value, from equitable defenses.”
Judge Dillon in his work on Municipal Corporations stated the rule to be as announced by the Supreme Court of the United States and among the cases cited is the ease of Merrill v. Monticello, supra. See Dillon on Municipal Corporations, vo-1. II, § 872.
In section 873 of the same volume the learned author added the following: “It is the generally accepted doctrine that, when á municipal -corporation has the power to -contract a debt, such power carries with it, by implication where there is nothing to rebut it, the right to give an appropriate acknowledgment of the debt and to agree with the creditor as to the time and mode of payment; and it has been frequently declared that, in the absence of any statutory provision, there is no rule of law limiting the extent of the credit. From this broad general principle it has been laid down that where a municipal corporation has lawfully contracted a debt, and especially where it is expressly authorized to borrow money, it has the implied power, unless restricted by its charter or by statute, to evidence the same by an appropriate written acknowledgment.”
We also think the language of our court in the case of Altheimer v. Board of Directors of Plum Bayou Levee Dist., 79 Ark. 229, has a direct bearing on the questions of law raised by this appeal. In that case at page 233 the court said:
“We think it is clear that the Legislature meant to provide for the building and maintenance of a levee sufficient to protect the real property in the district, and that the cost thereof was not limited to the .amount of money which the directors were authorized by the statute to borrow and to issue bonds to cover. The primary duty and power of the 'board of directors is to cause the levee to be constructed, and the power to bind the district for the payment of the cost thereof necessarily follows, whether it exceeds the amount of money the board is authorized to borrow or not. The limitation upon the power to borrow money and issue bonds does not restrict or impair the power to construct and maintain the levee and to contract debts in the performance of that duty. Hitchcock v. Galveston, 96 U. S. 341.
“The board, therefore, having the power to contract debts for the construction of the levee, it may also issue written evidences of the indebtedness to the creditors of the district. Such writings do not enlarge the liability of the district, but only evidence the liability. Merchants Nat. Bank v. Citizens Gas Light Co., 159 Mass. 505; City of Williamsport v. Commonwealth ex rel., 84 Pa. St. 487. ‘The power to contract a debt,’ says the Pennsylvania court, ‘carries with it by necessary implication the right to give appropriate acknowledgment of such debt, and to agree with the creditor as to the time and mode of payment; that, in the absence of any statutory provision, there is no rule of law limiting the extent >of the credit. ’ ’ ’
We think the principles of law in the authorities above cited sustain the finding of the circuit court rather than call for a reversal of its judgment. In the case be fore us the facts are that the note was transferred by Williams to the Bank of Forrest City, tout there is no claim of any equities between Forrest City, the maker of the note, and Eugene Williams, to whom it was payable. Williams is a party plaintiff to the action.
We think it follows from the above authorities that if the municipal corporation had the power to make the contract for which the notes were given, such power carried with it the right to agree with the creditor as to the time and mode of payment of the debt, and to give a proper written acknowledgment thereof.
As we have already stated, the municipal corporation had the authority to execute the contract and as a necessary incident thereto it had the power to execute its note for the amount of the indebtedness.
It is true that under article 16, section 1, of our Constitution it was prohibited from issuing interest-bearing evidence of indebtedness, tout it is neither expressly nor impliedly prohibited from issuing any evidence of indebtedness.
The act of the city in binding itself to pay interest toeing forbidden by the Constitution, its attempted exercise of such power was in excess of its authority and the circuit court was right in holding that the city was not liable for interest. It does not follow, however, because it provided that the notes should bear interest, that this tainted the whole transaction and rendered the notes themselves void.
The provision in the note calling for the payment of interest was in excess of the authority of the city council and may be regarded as surplusage.
The payee in the note was the plaintiff in this action and had a right to recover upon the notes.
The record shows that a payment was made in September, 1910, and this payment prevented the action from being barred by the statute of limitations.
Tt follows that the judgment must be affirmed. | [
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Hart, J.,
(after stating the .facts). Equity was the proper forum in which to institute this action. The loss or destruction of a written instrument in no way affects the liabilities of the parties to it or changes the nature of the demand. 25 Cyc. 1608.
In an extensive case note to 48 L. R. A. (N. S.) 648, the jurisdiction of courts of law and equity in actions on 'lost instruments is discussed. In some of the States courts of law have enlarged their jurisdiction by their own acts and in other States such jurisdiction has been conferred by statute.
Article 7, section 15, of the Constitution of 1874, provides that until the General Assembly shall deem it expedient to establish courts of chancery, the circuit courts shall have jurisdiction in matters of equity. By this is meant such jurisdiction as a court of chancery properly exercised at the time of the adoption of the Constitution. The jurisdiction of courts of equity under our Constitution is fixed and permanent and its jurisdiction oan not be enlarged or diminished. Gladish v. Lovewell, 95 Ark. 618; Hester v. Bourland, 80 Ark. 145; Walls v. Brundidge, 109 Ark. 250.
It has long been settled that courts of equity have jurisdiction of suits brought to recover the amount due on lost instruments. Pomeroy’s Equity Jurisprudence (3 ed.), vol. 2, § § 831-2.
Inasmuch, as courts of equity originally had jurisdiction in actions on lost instruments, even if courts of law were given jurisdiction in such cases by statute or otherwise, such action would not deprive courts of equity of .the jurisdiction which they originally had.
Our courts and the courts of many other States have held that a negotiable instrument payable to the order of a particular perspn but not endorsed can not be made the issue of an action against the maker except in the right of the payee. Case note to 48 L. R. A. (N. S.) at page 655, and in Lewis Mercantile Co. v. Harris, 101 Ark. 4, this court held that the' drawee of a draft payable to o‘rder who pays upon a forged or unauthorized endorsement does so at his peril.
It is, therefore, insisted'by counsel for plaintiff that the instrument sued on, being payable to the 'order of the plaintiff, and not having been endorsed, by him at the time it was lost, only the plaintiff could sue on it and, such being the case, no indemnity is needed. . Hence they contend that in all cases where the. lost instrument, though negotiable, is payable to the order of the payee and unendorsed it does not come within the rule requiring indemnity to be furnished.
On the other hand, it is contended by counsel for the defendant that the maker upon payment of the instrument has a right to its possession as a voucher of its payment and that this right should not be taken from him without an equivalent.
Again, they contend that it piay be subsequently ascertained, that the instrument had, been endorsed by the plaintiff and that it had passed into the hands of an innocent purchaser before maturity and that it would thus be forced to pay the instrument again because the holder thereof, not being a party to the action, would not be concluded by the judgment.
The decisions bearing upon both sides of the question have been ably discussed by counsel in their respective briefs and many of them are reviewed in the case note above referred to. No useful purpose could be served by again citing them in this opinion. The case is one of first impression in this State and, after a careful consideration of the question we have concluded not to adopt either rule in its severity. We are of the opinion that the rule which will be most conducive to justice in all cases and which will be in accord with the principles of equity, is 'that in cases of this kind the question of whether the plaintiff should have judgment without furnishing the defendant a reasonable indemnity is addressed to the sound discretion' of the court, to be determined by the facts of each particular case.
This brings us to the .question of whether the chancellor abused his discretion by rendering judgment for the plaintiff on the lost instrument without requiring him to furnish bond of indemnity. In the case before us the plaintiff had been a customer of the bank for the cotton season before he deposited the $4,000 with the bank. The deposit was made on the 14th day of January, 1913, and was payable to the plaintiff’s order twelve months after date with interest to maturity at the rate of 4 per cent per annum. The plaintiff put his deposit certificate in the safety vaults of the defendant and took it out and placed it in an envelope with other valuable papers a,t the time he started .south for his health. According to the .statement of facts, which need not be repeated here, he lost it in a perfectly’natural manner and there is no testimony whatever tending to show that he intended to practice any fraud upon the defendant. He immediately notified the defendant of his loss and of the way in which it occurred. He went back to the place where he lost it and made a diligent effort to locate it. After the instrument became due he went to the defendant and rqade demand for the payment of it in the usual course of business. The defendant refused to pay him until it had been furnished indemnity. The plaintiff endeavored to comply with this demand but was unable to do so. He then did not institute this action until the 14th day of October, 1914, which was ten months after the amount represented by the certificate of deposit be came due. These facts are undisputed. There is not a particle of testimony in tihe record tending to show that the plaintiff endeavored to practice any fraud upon the defendant and there is nothing tending to impeach his integrity and good faith in the whole transaction. He was not a stranger at the bank at the time he made the deposit with it, but had been a customer of the bank. So far as the record discloses, his character was above reproach and under these circumstances we do not think the chancellor abused his discretion in rendering judgment for the plaintiff without requiring him to furnish indemnity to the defendant.
It follows that the decree will be affirmed. | [
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Wood, J.
This suit was instituted by the appellants, the widow and certain heirs of J. J. Mewes, deceased, against the Home Bank of DeWitt and M. J. F. Mewes, to restrain the bank from paying over to M. J. F. Mewes the sum of $6,600 on deposit in said bank, and to have M. J. F. Mewes account to them and to recover of him the dower interest of the widow and the interest of the heirs in the funds, alleging that the same was the prop erty of the estate of J. J. Mewes, deceased. They alleged, in short, that J. J. Mewes had contracted to sell 960 acres of land to one Tindall at the sum of $27.50 per acre, or for a total sum of $26,400; that included in the sale were 280 acres belonging to M. J. F. Mewes, and that he was entitled out of the proceeds of the purchase money, to the sum of $7,000, which was at the rate of $25 per acre. They prayed that M. j. F. Mewes be required to account for the sum of $24,000, and the difference between $26,400, for which J. J. Mewes contracted to .sell the land and the sum of $24,000, which M. J. F. Mewes accepted therefor; that the $6,600 in the bank be ordered paid into court, and that the widow have- her one-third interest thereof and also one-third of all the moneys due from M. J. F. Mewes to the estate of J. J. Mewes, and that the remainder be distributed among the- heirs of J. J. Mewes according to their respective interests.
The answer admitted the sale of the lands, but alleged that the amount for which they sold was $24,000 in cash. Alleged that M. J. F. Mewes was to receive for his lands included in the sale the sum of $13,600 instead of $7,000, as alleged in the complaint; that according to a contract made with the widow and the other heirs of J. J. Mewes, certain mortgage indebtedness on the land was to be paid out of the proceeds of the purchase money and was chargeable to the estate of J. J. Mewes. The answer is a lengthy one, setting forth, in its admissions and denials, the grounds for the contention of appellee M. J. F. Mewes in the trial court that out of the proceeds of $24,000, which was actually received in .cash from the sale of the lands, which were owned by himself and his father, he was to receive the sum of $13,600, and that when this sum was paid him there would be nothing left of the $6,600 on deposit for which the appellants were seeking to have him account. The issues raised by the pleadings are principally issues of fact.
The facts are substantially as follows: J. J. Mewes owned 680 acres of land; his son, M. J. F. Mewes, owned 280 acres. They were both anxious to sell the land, and either one of them had the right to sell all of it, and both were trying to sell it. J. J. Mewes entered into a contract with one Tindall to purchase all the land. The understanding was that the purchaser should pay $24,000 in cash if it were possible to do so at the time the sale was completed, .but, if not, then he was to pay, on a time basis, the sum of $27.50 per acre. The purchaser succeeded in raising the $24,000 in cash, and that was the ■consideration paid.
To enable J. J. Mewes to carry out his contract for the sale of the lands, including those belonging to his son, it was necessary for him to get deeds from his son for these lands. Accordingly deeds were prepared from M. J. F. Mewes to J. J. Mewes, one deed conveying 160 acres, in which the consideration named was $10,000, and the other conveying 120 acres, in which the consideration named was $3,600. These deeds were sent to M. J. F. Mewes, who lived at Golden, Illinois, and they bear date April 2,1909, the same date that the deeds were executed from J. J. Mewes to Tindall, conveying the entire 960 acres of land, and in which the consideration named was $24,000. The deeds from J. J. Mewes to Tindall were deposited in the German-American Bank of Stuttgart and were delivered to the purchaser by the cashier of the bank, under prior instructions from J. J. Mewes, upon payment of $24,000 in cash. J. J. Mewes died May 2,1909.
After the death of J. J. Mewes appellee M. J. F. Mewes took charge of his father’s affaire. The German-American Bank paid over to him the $24,000. Out of this sum he paid to himself $7,000 and other amounts, debts of the estate of J. J. Mewes, which brought the total sum paid out to $17,400, leaving on deposit in the Home Bank of DeWitt the sum of $6,600.
Soon after the death of J. J. Mewes the widow and heirs entered into an- agreement whereby the widow was given certain articles of personal property and was to have one-third of all the personal property of the estate, and it was agreed that the indebtedness of the estate was to be paid out of the money obtained from the sale of the lands to Tindall.
The principal contention of appellants, and the only one necessary to be considered here, is that the $6,600 in the Home Bank of DeWitt belongs to the estate of J. J. Mewes. They claim that the lands of M. J. F. Mewes were sold for him by his father, J. J. Mewes for the same consideration as were the individual lands of J. J. Mewes, and that in the division of the purchase money for these lands M. J. F. Mewes was only to receive for the purchase price of his lands per acre the same that J. J. Mewes was to receive.
The appellee M. J. F. Mewes contends, on the other hand, that he was to receive the consideration named in the deed which he executed to his father, towit, $13,600; that this was the price that his father intended that he should receive as the consideration for the sale of his lands.
The testimony of Tindall, the- purchaser, bearing upon this subject is as follows: “I asked Mr. Mewes about the time of making our deal if M. J. F. Mewes would make a deed for his land. He said that he would; that they were both anxious to sell the land and that either one had the right to sell all of it, and that both were then trying to sell the same. M. J. F. Mewes verified his father’s statement in this regard.”
Nowhere does M. J. F. Mewes deny the fact, which this testimony establishes, that he knew before the lands were sold that the consideration for the whole tract, including his lands, was $25 per acre in cash. He did not object to the sale of his lands at this price. He states that his father wrote him about the contract between himself and Tindall a few days before the deeds were received for him to execute. The above testimony shows, he was anxious to sell the lands and knew the consideration that his father was receiving for the same. His half of the purchase price at $25 per acre would be $7,000, and this is the sum that 'he allowed himself when he had full control of the entire sum received as a consideration for the sale. Instead of taking ont the sum of $13,600 as his part of the purchase price for which the lands sold, he took $7,000, and his own testimony shows that he was proceeding to divide up the remaining $6,600 as follows: He gave one sister a check for $1,650, another a check for $1,650, and had) intended to send to the children of another deceased sister the sum of $1,650, and to keep the remaining $1,650 for himself as one of the heirs. This division of the $6,600 was not consummated because the injunction suit was commenced against him and the checks for that reason were not honored.
This testimony convinces us that before the institution of this suit appellee M. J. F. Mewes regarded the $6,600 now in controversy as the property of his father’s estate, and that t'he thought of claiming the same as his individual property was horn in his mind after the institution of the injunction suit.
Appellee’s contention now is that the consideration he was to receive in the sale of the lands was $13,600. In other words, that his lands were to bring him in the sale the sum of nearly $50 an acre, whereas if he received this price, his father, according to the total purchase money actually received, would only get the sum of about $15 per acre for his portion of the lands. It is not pretended by appellee M.' J. F. Mewes that his father bought his lands and was to pay him nearly $50 per acre therefor, while he was selling the same lands at $25 an acre. It is not claimed by him that there was any contract between himself and his father by which his father was to purchase his lands before the sale. Appellee only contends that he is entitled to $13,600 as his portion of the purchase mo'ney because that was the consideration named in the deeds to his father. He was asked: “By what right do you' claim it?” and answered,, “By the consideration of my father’s deed. I considered what my deeds called for.” He was asked this question: -“If your deeds called for $10,000 and it sold for $5,000 you would go by what was in the deed and not what it sold for?” and answered, “Yes, sir.”
But the well settled rule of law is that “the only effect of a consideration in a deed is to estop the grantor from alleging that the deed was executed without consideration. For every other purpose it is open to explanation and may he varied by parol proof. ’ ’ Vaugine v. Taylor, 18 Ark. 65; Pate v. Johnson, 15 Ark. 275; Carwell v. Dennis, 101 Ark. 603; J. H. McGill Lbr. Co. v. Lane-White Lbr. Co., 90 Ark. 426; Morton v. Morton, 82 Ark. 492; St. Louis & N. A. Rd. Co. v. Crandell, 75 Ark. 89.
It was wholly immaterial, as to whether or not the appellee M. J. F. Mewes had bought and paid for, or whether his father had given him the lands which were included in the sale made by hi's father to Tindall. For the purposes of this case, it may be conceded that he had fully paid for these lands, but it is beyond oontrovers3r that he intended that his father .should sell the same for him for a consideration of $25 an acre. The clear preponderance of the evidence shows that this was the sum that he was to receive. There is no testimony in the record to warrant a finding that his father intended to advance him the sum of $6,600 and in this way to prefer him over his other children. The mere fact that the father'had the sum of $13,600 named as the consideration in the deeds for the purposes of the sale to Tindall did not tend to prove that he intended an advancement of all above the consideration of $25 per acre to his son M. J. F. Mewes.
Our conclusion, therefore, on the evidence, is that the $6,600 on deposit with appellee Home Bank of DeWitt is the property of the estate of J. J. Mewes, and that the ■court erred in dismissing the appellants’ complaint for want of equity. This conclusion makes it unnecessary to consider the other questions presented.
The administrator was not a necessary party to this suit for the purpose of determining -as to whether the $6,600 on deposit with the Home Bank of DeWitt was the individual property of M. J. F. Mewes, or the property of the widow and heirs of J. J. Mewes. The ad onmistrator .however will he a ¡necessary party when the assets of the estate are distributed.
The judgment is therefore reversed and the cause is remanded with directions to grant appellants ’ prayer for injunction against the appellee ibank, to set aside the judgment rendered against appellant Frederika Mewes, and the sureties on her injunction bond, and, with permission to appellants, if so advised, to amend their pleadings, and to make the administrator of the estate of J. J. Mewes a party, and for such other and further proceed- ■ ings as 'may be necessary, conformable to law and not inconsistent with this opinion. | [
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WAYMOND M. BROWN, Judge.
| ¶ James Kelley appeals from a February 8, 2011 ruling by the Workers’ Compensation Commission that he failed to prove a compensable left knee injury and that the total knee replacement recommended by his physician was not reasonable and necessary. Because the Commission’s decision was supported by substantial evidence, we affirm.
Factual and Procedural Background
Appellant James Kelley was hired by Courtyard Marriott as a maintenance man around March of 2008. He testified that, while at work on April 12, 2009 (which fell on a weekend), the hotel manager asked him to retrieve a gas can that had been left on the parking lot. In the course of performing that errand, he twisted his foot and heard his left knee pop. He testified that his knee immediately began throbbing and that as he continued working, his leg swelled and he began to limp. At that time, he went to the front desk and reported his injury to the Rnight clerk. The hotel manager was contacted and sent Kelley to the emergency room at St. Edwards Hospital in Fort Smith for treatment. The ER record reflects that he reported “ten” on a zero-to-ten scale for pain and was placed in a knee immobilizer. The physician who examined him diagnosed him with left-knee sprain and possible meniscal injury and noted that there was mild joint effusion, no swelling, and no limited range of motion, but pain with flexion. X-rays taken at that time were interpreted by the radiologist as showing mild medial joint-space narrowing and possible mild swelling of the soft tissue anteri- or to the lower patella, but no fracture or joint effusion.
Kelley was next seen on April 30, 2009, by Dr. Robert Williams, his family physician, who diagnosed him with a sprained left knee and referred him to Dr. Edward Rhomberg for an orthopedic evaluation. Kelley first saw Dr. Rhomberg on May 8, 2009. Dr. Rhomberg noted a chief complaint of left-knee pain and diagnosed Kelley with degenerative joint disease of the left knee, recommended glucosamine and over-the-counter anti-inflammatories, and gave Kelley a corticosteroid injection. Dr. Rhomberg saw Kelley several times over the following months for continuing left-knee pain and recommended that Kelley undergo a total knee replacement to relieve his pain. Dr. Rhomberg also placed Kelley on light duty and instructed him to limit his work to sedentary, sit-down activities.
Kelley had a history of problems with his left knee starting in 1984, when he was injured in a motorcycle accident and fractured his patella. As a result of that injury, he | underwent two surgeries on his left knee in 1985. The medical records also show that in March 2007, Kelley sought medical treatment from Dr. Keith Bolyard, an orthopedic surgeon, after he experienced pain and difficulties with his left knee for several weeks. Dr. Bolyard twice drained fluid from the knee in 2007 or 2008. The evidence was that from then until the April 12, 2009 incident, Kelley did not complain of or seek treatment for knee problems, and was able to perform physically strenuous work duties.
At the request of appellees, Dr. Theodore Hronas, a radiologist, reviewed x-rays and an MRI of Kelley’s left knee taken in March 2007, when he was treated by Dr. Bolyard, and x-rays from April and May 2009, following the incident at Courtyard Marriott. In a report dated October 5, 2009, Dr. Hronas stated that in his opinion, to a reasonable degree of medical certainty, all of the films showed degenerative changes and a small joint effusion, but did not show that the condition of Kelley’s knee had changed or worsened over the time period between the films. Dr. Hro-nas further stated, “There is a report of an injury on 4/12/09, but there are no radio-graphic manifestations to suggest any acute injury or interval change from the studies in 2007.”
Dr. Rhomberg gave a deposition on March 12, 2010, concerning his treatment of Kelley. When asked if the April 12, 2009 incident was significant in light of the patellar fracture of 1984, Dr. Rhomberg stated, “There was nothing in my initial examination to suggest to me that there had been some new exacerbation of whatever underlying condition |4he might have had, something that was new.” Dr. Rhom-berg testified that the joint effusion noted in the ER record of April 12, 2009 could be the sign of an acute problem or could be a manifestation of a chronic problem, but he could not state with a reasonable degree of medical certainty which was the cause of Kelley’s symptoms following the April 12, 2009 work-related incident. Dr. Rhomberg also said that it was just as reasonable to conclude that Kelley had a stable joint effusion caused by a chronic degenerative condition that required him to seek emergency treatment because of pain, as it was to conclude that such joint effusion pain and the need to seek emergency treatment were caused by the April 12, 2009 incident.
Dr. Rhomberg testified that the main criteria for recommending total knee replacement surgery is the presence of pain that unacceptably interferes with the patient’s life. He stated that regardless of Kelley’s chronic knee problems, he would not have been treating him if the condition were not actively symptomatic. At the time of his deposition on March 12, 2010, Dr. Rhomberg stated that it would still be appropriate for Kelley to be on light duty, since the total knee replacement had not been performed.
In terms of the effect of his condition on his ability to work, the evidence was that Kelley was given light-duty work by appel-lees for a brief period of time but was unable to perform the sedentary duties he was given and was eventually sent home until he got his knee fixed. At a hearing before an administrative law judge (ALJ) on April 20, 2010, Kelley testified that he still had to wear a full-length leg brace and was unable to work because he |,/‘cannot stand on [his] leg all day or bend and squat without [his] foot and leg swelling tremendously.”
The ALJ determined that Kelley had sustained a compensable injury to his left knee in the form of an aggravation of a pre-existing condition and that the recommended additional treatment was reasonable and necessary. The Commission reversed the ALJ’s decision and dismissed Kelley’s claim in its entirety, finding that he had failed to prove by a preponderance of the evidence that he sustained a com-pensable injury in the form of an aggravation of a pre-existing condition or that the total knee replacement recommended by Dr. Rhomberg was reasonable and necessary.
Standard of Review
This court will not reverse the Commission’s decision unless it is convinced that no fair-minded person with the same facts could have reached the conclusions arrived at by the Commission. We view the evidence and reasonable inferences deducible therefrom in a light most favorable to the Commission’s decision, and we must affirm if the Commission’s decision is supported by substantial evidence. Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The question [ (¡presented to this court is not whether the evidence would support findings contrary to those made by the Commission, but whether evidence supports the findings made by the Commission. Even if the decision of the Commission is against the preponderance of the evidence, this court will not reverse where the Commission’s decision is supported by substantial evidence.
Discussion
The issue in this case is whether the claimant sustained a compensable injury. Arkansas Code Annotated section 11-9-102(4)(A)(i)(Supp.2009) defines a com-pensable injury as
[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
A compensable injury must be established by medical evidence supported by objective findings. Objective findings are “those findings which cannot come under the voluntary control of the patient.” Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. The claimant must also prove by a preponderance of the evidence that there is a causal relationship between the employment and the claimed 17injury. However, objective medical evidence, while necessary to establish the ex-istehce and extent of an injury, is not necessary to establish a causal relationship between the injury and the work-related accident.
An employer takes an employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. An aggravation of a preexisting non-compensable condition by a compensable injury is itself compen-sable. However, an aggravation, being a new injury with an independent cause, must meet the same requirements as other compensable injuries.
It is within the Commission’s province to weigh all the medical evidence and determine what is most credible. The Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief.
In support of its decision in this case, the Commission cited a lack of radio-graphical [¿proof or sufficient medical-opinion testimony that the April 12, 2009 incident caused Kelley’s degenerative left-knee condition to become symptomatic. In addition, there was Dr. Hronas’ opinion, stated to a reasonable degree of medical certainty, that x-rays taken immediately after the April 12, 2009 incident did not show that the condition of Kelley’s knee was any worse or different than it had been two years before, and that there was no evidence in the films to show that an acute injury had occurred. On the other hand, Dr. Rhomberg, Kelley’s treating physician, was not able to say within a reasonable degree of medical certainty whether the reoccurrence of symptoms was due to Kelley’s chronic pre-existing condition or the April 12, 2009 incident. This was relevant evidence that a reasonable mind might accept as adequate to support a conclusion that Kelley failed to meet his burden of proof for a compensa-ble injury.
We note that Kelley’s testimony concerning his symptoms, the immediate temporal connection between the April 12, 2009 incident and the emergence of those symptoms, and the absence of any symptoms for the preceding two years could also lead a reasonable person to conclude that the April 12, 2009 incident did have an aggravating effect on Kelley’s pre-existing knee condition. However, objective medical findings to that effect would still be required to prove a compensable injury, and no such findings were offered in this case. In contrast, Dr. Hronas’ opinion that there was no evidence of a new injury or an aggravation was stated to a reasonable degree of medical certainty. Under these circumstances, there is no ground for reversal. Because the Commission’s decision was supported by substantial evidence, we must affirm.
| ¡Affirmed.
WYNNE and ABRAMSON, JJ., agree.
. No medical records from this injury or the surgeries related to it were entered into the record.
. The record does not contain any functional capacity evaluation or independent medical evaluation addressing Kelley’s ability to perform work duties following the April 12, 2009 incident.
. Dorris v. Townsends of Ark., 93 Ark.App. 208, 218 S.W.3d 351 (2005).
. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000).
. Ward v. Hickory Springs Mfg. Co., 97 Ark.App. 311, 248 S.W.3d 482 (2007).
. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001).
. Snow v. Alcoa, 15 Ark.App. 205, 691 S.W.2d 194 (1985).
. Id.
. Ark.Code Ann. § 11-9-102(4)(D).
. Ark.Code Ann. § 11-9-102(16)(A)(i).
. Ark.Code Ann. § 11-9-102(16)(B).
. Crawford v. Single Source Transp., 87 Ark.App. 216, 189 S.W.3d 507 (2004); Horticare Landscape Mgmt. v. McDonald, 80 Ark.App. 45, 89 S.W.3d 375 (2002).
. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
. Heritage Baptist Temple v. Robison, 82 Ark.App. 460, 120 S.W.3d 150 (2003).
. Oliver v. Guardsmark, 68 Ark.App. 24, 3 S.W.3d 336 (1999).
. Ford v. Chemipulp Process, Inc., 63 Ark.App. 260, 977 S.W.2d 5 (1998); Ark.Code Ann. § 11-9-102.
. Smith-Blair, Inc. v. Jones, 77 Ark.App. 273, 72 S.W.3d 560 (2002).
. Id. (citing Arnold v. Tyson Foods, Inc., 64 Ark.App. 245, 983 S.W.2d 444 (1998)). | [
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JOHN B. ROBBINS, Judge.
1 Appellants Kenneth Hipp and Daniel Hipp brought a complaint against appel-lees Vernon L. Smith and Associates, Inc., and Chesapeake Exploration, Limited Partnership, alleging fraudulent inducement and violation of the Arkansas Deceptive Trade Practices Act with respect to mineral leases executed between the parties. The primary term of the leases was for five years, with a renewal provision allowing the appellees to extend the leases for an additional five years. In their complaint, the appellants asked the trial court to declare the lease options void and issue judgment that the leases terminated five years after their execution. Appellants attached to their complaint copies of the leases and a cover letter generated by the appellees’ agent.
|2The appellees filed a motion to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(6), asserting that the complaint failed to allege facts upon which relief can be granted, and that all causes of action were barred by the applicable statutes of limitation. The appellants responded to appel-lees’ motion to dismiss, and both parties filed corresponding briefs. After a hearing on appellees’ motion, the trial court entered an order dismissing appellants’ complaint with prejudice. The trial court found that (1) appellants’ claims for fraud in the inducement and violation of the Arkansas Deceptive Trade Practices Act were barred by the statute of limitations, and (2) appellants failed to plead sufficient facts to maintain their claims of fraud in the inducement and violation of the Arkansas Deceptive Trade Practices Act.
Kenneth Hipp and Daniel Hipp have timely appealed from the order granting the appellees’ motion to dismiss. For reversal, they argue that the trial court erred in concluding that their claims were time-barred and further erred in finding that they failed to plead sufficient facts to maintain their claims. We affirm.
When reviewing a trial court’s order granting a motion to dismiss pursuant to Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most [¡¡favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In viewing the facts most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Watkins v. Dale, 2011 Ark. App. 385, 2011 WL 2039345. Our standard of review for the granting of a motion to dismiss is whether the trial court abused its discretion. Id.
The following facts are not in dispute. Kenneth Hipp and his former wife, Tammy Hipp, executed two oil-and-gas leases on July 13, 2005. The mineral leases pertained to a 40-acre tract of property and a 200-acre tract of property. Subsequently, Ms. Hipp’s interest in the minerals was conveyed to Daniel Hipp.
The leases at issue were prepared by Vernon L. Smith & Associates, which was an agent of Chesapeake Exploration. A1 Beal, an agent for Vernon L. Smith, mailed the leases to the Hipps along with the following cover letter:
Dear Mr. and Ms. Hipp:
Pursuant to our trade, please find enclosed originals and copies of paid-up Oil and Gas Leases for five (5) year terms calling for one-eighth (l/8th) royalty along with drafts in the amounts of $35,000.00 covering your 200.00 net acres at $175.00 per acre, and $7,000.00 covering your 40.00 net acres at $175.00 per acre.
Please execute the leases before a Notary Public exactly as your name is styled, endorse the drafts and place them in your bank for collection. Please retain the copies for your files.
Thank you for your prompt attention to this matter and should you have any questions you may contact me at the number below or Toll Free at 1-800-889-3374.
hEach lease consisted of three pages, and each was signed by Kenneth Hipp and Tammy Hipp at the bottom of pages two and three. The first page of the leases contained the provision, “This lease shall remain in force for a primary term of Five (5) years and as long thereafter as oil, gas or other hydrocarbons are produced from said leased premises or from lands pooled therewith.” The third page of the lease contained three paragraphs, the second of which provided:
Lessee is hereby given the exclusive right and option to extend the primary term of this lease as to all or any portion of the land covered hereby for an additional five (5) years from the expiration of the original primary term. This option may be exercised by Lessee at any time during the original primary term hereof by paying the sum $75.00 per net mineral acre to Lessor and other parties designated by Lessor. Payment shall be considered made and option exercised by mailing payment to last known address of Lessor and or assigns. If this option is exercised as to just a portion of the acreage, Lessee shall execute and place of record an instrument identifying the land as to which the option has been exercised. Should this option be exercised as herein provided, it shall be considered for all purposes as though this lease originally provided for a primary term of ten (10) years.
It is this provision that gave rise to the parties’ dispute.
The appellants’ complaint was filed on September 9, 2010. The complaint contained the following allegations:
7. Mr. A1 Beal, the employee of the Vernon L. Smith and Associates, Inc., orally explained the terms of the lease as contained in the cover letter attached hereto as “Exhibit No. 3” and incorporated herein by reference. Mr. A1 Beal did not explain in his oral representation that the mineral lease in fact contained a five (5) year option wherein all the mineral acres could be leased for $75.00 an acre at the end of the primary term (five years).
8. Based upon the oral representations of Mr. Al Beal, and the cover letter that he prepared, Kenny Hipp was fraudulently induced into signing the mineral lease because he was not informed that it had a five (5) year option at $75.00 per mineral acre. Mr. Al Beal never discussed this with Kenny Hipp and it was not contained in his letter. Mr. Al Beal simply asked Kenny Hipp to sign the lease where he had flagged it. It was not until Kenny Hipp received a check from Chesapeake Operating, |sInc. indicating that they were exercising their option for an additional five (5) year period that he realized the lease contained such a provision. Kenny Hipp relied on the cover letter Mr. Al Beal sent to him and the oral explanation of the lease and not upon a reading of the lease. Kenny Hipp did not read the entire lease before signing it.
9. If Kenny Hipp had known that the lease contained a five (5) year option for $75.00 per acre he would not have signed it. In fact, Kenny Hipp specifically told Mr. Al Beal that he would not agree to a ten (10) year lease term.
10. Kenny Hipp related what Mr. Al Beal told him to Tammy Hipp and then asked her to sign the leases which she did.
The appellants maintained in their complaint that the above allegations supported their claims for fraud in the inducement to execute the mineral leases and violation of the Arkansas Deceptive Trade Practices Act.
The trial court dismissed their complaint, and on appeal Kenneth Hipp and Daniel Hipp argue that this was error. Appellants contend that they pled sufficient facts supporting violations of the Arkansas Deceptive Trade Practices Act, codified at Ark.Code Ann. § 4-88-101 et seq., given that their complaint stated facts to support concealment, suppression, or omission of material facts. Appellants further contend that they pled sufficient facts to support a claim for fraud in the inducement.
The appellants assert that their allegations were sufficient to prove the five elements of fraud, which are: (1) a false misrepresentation of a material fact, (2) knowledge that the misrepresentation is false or that there is insufficient evidence upon which to make the representation, (3) intent to induce action or inaction in reliance upon the representation, (4) justifiable reliance on the representation, and (5) damage suffered as a result of the reliance. See Williams v. Liberty Bank, 2011 Ark.App. 220, 382 S.W.3d 726. The appellants note that the contract was prepared by the appellees, who have been in the oil-and-gas business for | ¿years and were in a superior position to know the legal effect of the contract. Appellants pled that Kenneth Hipp was unwilling to enter into a ten-year lease, and further that he communicated this to Mr. Beal. Nonetheless, according to appellants’ complaint, Mr. Beal misrepresented the lease to be for only five years both orally and in his cover letter mailed to the Hipps. This, appellants assert, was a material misrepresentation upon which they relied to their detriment. The appellants acknowledge that Kenneth Hipp did not read the lease prior to its execution and that the general rule is that a person who signs a document is bound under the law to know the contents. However, there is an exception to that general rule when a signature is procured by fraudulent representations of what a document contains, Neill v. Nationwide Mut. Fire Ins. Co., 355 Ark. 474, 139 S.W.3d 484 (2003), and appellants submit that this exception applies here.
The remaining issue pertains to the statutes of limitation. Arkansas Code Annotated section 16-56-105 (Repl.2005) sets forth a three-year limitations period for fraud claims. See Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989). Pursuant to Ark.Code Ann. § 4-88-115 (Repl.2001), the statute of limitations for civil actions brought under the Arkansas Deceptive Trade Practices Act is five years.
Given that appellants filed their action more than five years after the leases were executed, appellants do not dispute the fact that their complaint was not filed within either of the applicable limitations periods. Nonetheless, appellants contend that the fraud perpetrated by the appel-lees tolled the limitations period. In Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988), the supreme court held that fraud suspends the running of the statute of | limitations and that suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by exercise of reasonable diligence. Appellants claim that the fraud was discovered in this case in June 2010, when they received the checks for the five-year option to renew the oil-and-gas leases on their lands.
Viewing the facts alleged in appellants’ complaint as true, we hold that the trial court did not abuse its discretion in dismissing the complaint on the basis that it was barred by the applicable statutes of limitation. The supreme court discussed the statute-of-limitations defense in Adams v. Arthur, 333 Ark. 53, 63, 969 S.W.2d 598 (1998), and wrote:
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908 [114 S.Ct. 290, 126 L.Ed.2d 239] (1993). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. First Pyramid, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).
In order to toll the statute of limitations, the plaintiffs are required to show something more than a continuation of a prior nondisclosure. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). There must be some evidence creating a factual question related to some positive act of fraud, something so furtively planned and secretly executed to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. Id.
lain the case at bar, the appellants failed to meet their burden of establishing that the statutes of limitation were tolled. Even were we to construe Mr. Beal’s failure to disclose the five-year option either orally or in the cover letter to be fraudulent, this nondisclosure did not conceal the appellants’ cause of action. The allegations asserted in the appellants’ complaint failed to establish concealment. And to the extent any fraud occurred, it should have been discovered by the due diligence of the appellants. Had the appellants read the second paragraph of the third page of the leases, under which both Kenneth and Tammy Hipp signed, the five-year renewal option would have been readily discovered. For these reasons, appellants’ complaint was barred on its face by the applicable statutes of limitation.
Inasmuch as we affirm the trial court’s holding that appellants’ claims were barred by the applicable statutes of limitation, it is unnecessary to address appellants’ contention that the trial court abused its discretion in finding that appellants failed to plead sufficient facts to maintain their claims for fraud in the inducement or violations of the Arkansas Deceptive Trade Practices Act.
Affirmed.
PITTMAN and HART, JJ., agree.
. Appellants also pled failure of consideration and lack of privity of contract, but they later voluntarily dismissed those claims.
. Although the preferred method to assert an affirmative defense is in an answer pursuant to Ark. R. Civ. P. 8(c), and not in a motion to dismiss under Rule 12(b), such motions have been decided on their merits as if they were properly raised. See Amos v. Amos, 282 Ark. 532, 669 S.W.2d 200 (1984). In Martin v. Equitable Life Assurance Society, 344 Ark. 177, 40 S.W.3d 733 (2001), our supreme court held that statutes of limitation can be raised and considered by a court on a Rule 12(b)(6) motion to dismiss. In order to prevail on a motion to dismiss the complaint on the basis of limitations, it must be barred on its face. Id. | [
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KAREN R. BAKER, Justice.
| ^Appellants A1 Faigin, N.G. Faigin, and James Bodge bring this interlocutory appeal from an order of the Saline County Circuit Court denying class certification pursuant to Arkansas Rule of Civil Procedure 23. We have jurisdiction pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(9) (2011). See also THE/FRE, Inc. v. Martin, 349 Ark. 507, 78 S.W.3d 723 (2002). Appellants argue that the circuit court erred in denying class certification by (1) looking to the merits of the defense; (2) sua sponte deeming class counsel inadequate and using that inadequacy as a basis to deny the class; (3) redefining the proposed class in a way that denied its numerosity; (4) redefining the proposed class in a way that denied its commonality; (5) redefining the proposed class in a way that denied its predominance and superiority; and (6) redefining the proposed subclass in a way that ignores the damage done to the property of the subclass and failing to permit intervention and certification of the subclass. We affirm.
The Faigins own a lot in the Diamante Subdivision of Hot Springs Village, Arkansas. 12Their lot is subject to the supplemental declaration of covenants and restrictions filed in connection with the property requiring the Faigins to become full golf-club members in appellee Diamante, a private-membership golf club, and to pay monthly membership dues to Diamante. In accordance with the supplemental declaration, Diamante is entitled to a lien on the lot for any unpaid monthly dues together with late charges and interest, and Diamante may foreclose upon the lien.
Diamante asserted a lien on the lot owned by the Faigins on October 14, 2010, for failure to pay the dues, and thereafter filed a complaint in foreclosure on the lot on November 16, 2010, in the circuit court of Saline County, Arkansas. Diamante averred that the Faigins owed $3,341.91 and that their failure to pay the dues constituted a breach of contract. In their answer, the Faigins denied owing the debt and asserted that their obligation to pay dues should be excused due to a material breach by appellee. Specifically, they alleged that Diamante had materially breached the supplemental declaration because certain memberships are deferred and the owners were not currently paying dues. The Faigins requested that the circuit court declare the lien filed against their property void, prohibit Diamante from collecting dues from them, and declare the supplemental declaration unenforceable.
The Faigins filed a motion for class certification and the appointment of class counsel on January 5, 2011, so that they could be sued as representative parties on behalf of all lot owners in the Diamante and Diamante Villas subdivisions in Hot Springs Village, Arkansas. They asserted that the plan of development for the lots as set forth in the supplemental declaration did not permit amendment of the requirement to pay monthly dues and that Diamante’s failure to Rcollect from all lots owners constituted a breach of contract. They sought exclusion of Diamante, Cooper Land Development, and deferred lot owners so that they could raise the defenses in their answer on behalf of all lot owners. The Faigins also wanted to be sued and to raise defenses on behalf of all lot owners who were not in breach.
James Bogue is a lot owner in Diamante, and he signed an addendum to a contract for the sale of real property at the time that he purchased his lot. He sought to intervene in the foreclosure case and certify a subclass to be sued and to raise defenses to the addendum on behalf of himself and all other lot owners who signed a similar document. The interve-nor wanted to be sued and to raise defenses to the addendum on behalf of lot owners who were not in breach and who were required to pay monthly golf dues.
Diamante responded that class certification was not appropriate because only seven foreclosure cases were pending regarding the lots in the subdivisions. Diamante asserted that only those seven lot owners could assert a defense that appellee had materially breached the supplemental declaration by not collecting monthly dues from each lot owner. The circuit court held a hearing on the motions on March 11, 2011. The motion for class certification and appointment of counsel was denied. The court also denied the motion for intervention and to certify a subclass. From that order, appellants bring this timely appeal.
Rule 23 provides that one or more members of a class may sue or be sued in a representative capacity only if the class is so numerous that joinder of all members is impracticable and there are questions of law or fact common to the class. Ark. R. Civ. P. 23(a). The claims or defenses of the representative parties must be typical of the claims or defenses of 14the class, and the representative parties and their counsel must fairly and adequately protect the interests of the class. Baptist Health v. Hutson, 2011 Ark. 210, 382 S.W.3d 662. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b). The six requirements for class-action certification are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. See Gen. Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008).
The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court’s decision absent an abuse of that discretion. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008). In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification. Id. Neither the trial court nor this court shall delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. Id. In this regard, “ ‘a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action.’ ” Bryant, 374 Ark. at 42, 285 S.W.3d at 638 (quoting Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916, 920 (2006)). We view the propriety of a class action as a procedural question. See id.
Appellants raise several arguments for reversal; however, the issue that resolves this appeal | ¡¡is one regarding commonality. Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” All questions of law or fact raised in the litigation need not be common. Id. The test or standard for satisfaction of the commonality requirement is that there need be only a single issue common to all members of the class. Id. When the party opposing the class has engaged in some conduct afflicting a group that gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected. Id.
In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), where the class’s main claim, which applied to every member of the class, was that Cheqnet violated the Fair Debt Collections Act by collecting $10 more than it was allowed to collect on returned checks, commonality was satisfied. In Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997), commonality was established through four common questions concerning the applicability of insurance to the class members. Specifically, the court found that “if these issues are resolved in favor of the class, the individual members will have suffered a common injury of paying premiums for a void insurance policy.” Id. at 271, 954 S.W.2d at 898. The commonality requirement was satisfied in Farm Bureau Mutual Insurance Company of Arkansas, Inc. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996), where the class members alleged that a statutory violation occurred when they all had to pay membership dues to the Farm Bureau Federation before insurance policies would be issued. In these cases, the conduct of the class-action antagonist, independent of any action by the class members, established a common question relating to the entire class to certify the matter as a class action.
IfiHere, the Faigins challenge the circuit court’s finding that there is a lack of commonality. Specifically, they argue that the circuit court erred by looking to the merits of the underlying action. In the amended order, the circuit court found:
The most obvious problem with the mov-ant’s contention of typicality and commonality is that the instant case is a foreclosure action but the vast majority of the proposed class is not delinquent in their dues payment and have not been sued. Thus, the court is presented with a request to add several hundred people as defendants to a lawsuit where is it undisputed by all parties and counsel that these people have not violated the terms of any contract and the plaintiff does not wish to sue them. These 300 + lot owners do not have a common defense, because they are not in breach. If there is no breach, there is no need for a defense.
What movant wishes to do in this case, is add more than 300 lot owners to this case as a class (and sub-class) so that they can assert a defense to a possible future action in the event they may at some time default on their contractual requirement to pay dues to Diamante. While the contractual language raised by the defendants regarding [sic] may be typical between the defendants and the members of the proposed class and sub-class, this significant difference between the defendants and the vast majority of the proposed class in the ripeness of their defenses clearly affects the commonality requirements. It seems counter-intuitive to this court to add 300+ individuals to a lawsuit when almost all of those individuals could be removed from the lawsuit under a 12(b)(6) motion for failure to state a claim.
(Emphasis in original.)
It is true that a trial court may not consider whether the proposed class will ultimately prevail, or even if there is a cause of action. Carquest of Hot Springs, Inc. v. General Parts, Inc., 367 Ark. 218, 238 S.W.3d 916 (2006). Thus, the circuit court abused its discretion by basing part of its decision on the question of commonality upon the ability of the proposed class to withstand a Rule 12(b)(6) motion. However, this was not the sole basis of the circuit court’s |7ruling, and even if it had been, this court can affirm if the right result is reached even if it is for a different reason. Brown v. Kelton, 2011 Ark. 93, 380 S.W.3d 361.
In seeking class certification before the circuit court, the Faigins asserted that commonality is satisfied in this case due to Diamante’s breach of its duty to collect monthly dues from all full golf members. They contended that “[a]ll of the ... defenses alleged .... to [Diamante’s] claims in this cause are common to all members of the proposed class.” They also argued that “the supplemental declarations and the claims of right by [Diamante] affects not only all of their lots and homes but them individually, whether they are paying dues or not, in land values and their inability to sell their lots and homes at any fair price due to the same burdens of the supplemental declarations which [Diamante] is asserting against [the Faig-ins].”
We disagree that commonality is satisfied here. Diamante filed a complaint in foreclosure to enforce its lien on the Faig-ins’ property. The record reveals that there are only seven lot owners who are in foreclosure. Thus, the Faigins’ defenses to the complaint are not common to the overwhelming majority of the proposed class. The fact that other lot owners in the subdivisions might share one or more concerns with the Faigins is not the same as sharing an element in the underlying cause of action. The procedural posture of this case requires that the members of the proposed class share a common defense to the complaint in foreclosure but, as the circuit court found, they do not.
Because commonality is lacking in this case, we affirm the amended order of the circuit court denying class certification. Moreover, as Rule 23 requires that all six elements be present before class certification is appropriate, and at least one element is lacking here, we need not 1Saddress the additional arguments raised by the Faigins and Bodge because any opinion we could offer would only be advisory. We do not issue advisory opinions. Bakalekos v. Furlow, 2011 Ark. 505, 385 S.W.3d 810.
Affirmed.
. The Faigins also posit that the circuit court erred in redefining the class in such a manner as to deny commonality. There is not a specific finding of the circuit court that redefines the proposed class: and regarding the issue of commonality, the court clearly utilized the definition proposed by the Faigins. | [
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ROBERT J. GLADWIN, Judge.
I ¡The Benton County Circuit Court entered an order returning six-year-old G.V. to his father’s residence in Iceland under the terms of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague”). We affirm the court’s order.
The child’s mother, appellant Kolbrun Vela, is a resident of the United States and holds dual citizenship in the United States and Iceland. The father, appellee Isak Ragnarsson, is an Icelandic citizen and resident. Vela became pregnant in Iceland in 2004 and moved to the United States to give birth. Ragnarsson traveled from Iceland and was present at the birth. Afterward, he returned home, and Vela maintained custody of G.V. in the United States.
In early 2005, Vela returned to Iceland with G.V. During the next four-and-a-half years, she and the child intermittently resided in America and Iceland, with the majority of | ¡.their time being spent in Iceland. Ragnarsson saw G.V. on a fairly regular basis while the child was in Iceland and sometimes kept him overnight.
In August 2009, Vela and G.V. left Iceland to reside in Killeen, Texas. When the child began asking about his father, the parties discussed arrangements for him to see Ragnarsson. In one email, Vela proposed the idea of G.V. staying with Rag-narsson and visiting her during summers and vacations. She explained that she had difficulty caring for G.V. and another son (who was not Ragnarsson’s) and had little family help.
According to Ragnarsson, the parties eventually decided that G.V. should return to Iceland and live with him. In January 2010, he traveled to Texas, where he and Vela signed two documents in the presence of a notary. The first document gave Rag-narsson permission to leave the country with G.V. The second, which Vela later denied signing, was a joint-custody agreement. The agreement provided that G.V.’s legal residence would be with Ragnarsson, that Vela would pay child support beginning January 1, 2010, and that the parties wanted the contract approved under Icelandic law.
After the documents were signed, Rag-narsson returned to Iceland with G.V. Upon arriving, he registered the joint-custody agreement with an Icelandic District Commissioner, who confirmed the agreement in accordance with Iceland’s Act in Respect of Children. Act 76/2008, art. 32. G.V. then lived in Iceland exclusively and uninterruptedly over the next six months, and he was scheduled to start school there in August 2010. He communicated with his mother primarily through Facebook and email.
lain June 2010, Vela suggested to Rag-narsson that G.V.. come to the United States for a summer vacation. Ragnars-son agreed and, with Vela’s knowledge, bought the child a three-week, round-trip ticket to America. At the end of the three weeks, however, Vela refused to return G.V. to Iceland. She later admitted that she had no intention of sending the boy back and deliberately misled Ragnarsson into believing that she would do so. Vela retained physical custody of G.V. in the United States and, at some point, moved to Benton County, Arkansas.
On October 18, 2010, Ragnarsson filed a petition in Benton County Circuit Court, seeking G.V.’s return under the Hague. The court conducted an evidentiary hearing and found that the parties had executed a joint-custody agreement; that the child’s legal residence was in Iceland with Ragnarsson; and that the child had been wrongfully detained in the United States. The court then ordered G.V. returned to Iceland as the appropriate forum under the Hague for the parties’ custody and visitation disputes. Vela filed this appeal.
The Hague was adopted in 1980 with the purpose of securing a child’s prompt return to his State of habitual residence if he was wrongfully removed therefrom or wrongfully retained in another State. A person seeking a child’s return may file a petition in any court that is authorized to exercise jurisdiction where the child is located, including a state court in the United States. 42 U.S.C. § 11603 (2009). If the court finds that the child was wrongfully removed or retained, and if the judicial proceeding was commenced less than one year after such removal or retention, the court “shall order the return of the child forthwith.” Hague Convention art. 12, T.I.A.S. 11670. A case arising under the Hague is not a custody Uproceeding. Hague Convention arts. 16 & 19, T.I.A.S. 11670; Courdin v. Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. Rather, the court need ascertain only whether the removal or retention was wrongful under the law of the child’s habitual residence and, if so, order the child’s return to his habitual residence, where the courts of that venue can decide the merits of the custody dispute. See Courdin, 2010 Ark. App. 314, 375 S.W.3d 657.
In this appeal, Vela argues that the circuit court erred in applying the Hague’s provisions. She essentially claims that G.V.’s habitual residence was with her and that she did not wrongfully retain the child in the United States. Our review presents a mixed question of law and fact. Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. We accept the circuit court’s factual findings unless they are clearly erroneous, but we exercise de novo review of the court’s application of legal principles to those facts. Id.
We first address G.V.’s habitual residence. The Hague does not define habitual residence but leaves the courts to fashion their own means of analyzing this question. In Courdin, supra, we recognized that determining a child’s habitual residence requires consideration of many factors, including the purpose of the move to a new country from the child’s perspective; parental intent; the change in geography; the passage of time; the parents’ citizenship; and the acclimatization of the child. Federal courts have relied on one or all of these factors. See Barzilay v. Barzilay, 600 F.3d 912 (8th Cir.2010); Robert v. Tesson, 507 F.3d 981 (6th Cir.2007); Kijowska v. Haines, 463 F.3d 583 (7th Cir.2006); Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The consensus among our courts appears to be that a child’s habitual residence is the place where he or she has been physically present for an amount of |fitime sufficient for acclimatization and with a degree of settled purpose. A “settled purpose” does not mean an intent to stay in a location indefinitely; all that is necessary is that the purpose of living at the location have a sufficient degree of continuity to be properly described as settled. See Mozes, 239 F.3d 1067.
Applying these principles to the present case, we conclude that no clear error occurred on the question of G.V.’s habitual residence. The parents agreed that G.V. would move to Iceland and establish legal residence there with his father. The child then made the geographic move and remained in Iceland for six months, with the anticipation of staying longer and attending school. The custody agreement contained no end date for G.V.’s time in Iceland, and Vela sent all of the child’s belongings with him, indicating a stay of extreme length or indefinite duration. We have recognized that, if a child goes to live with a parent in that parent’s native land on an open-ended basis, it is entirely foreseeable that the child will soon begin to lose habitual ties to any prior residence, and the parent who agrees to such an arrangement without any clear limitations may be held to accept that eventuality. Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. Moreover, G.V. had lived in Iceland for much of his life and shared Icelandic citizenship with his father and dual Ameriean/Ieelandic citizenship with his mother. Consequently, from both the child’s and the parents’ perspectives, G.V.’s residency in Iceland may be viewed as having a settled purpose, a degree of continuity, and a period of endurance long enough to allow G.V.’s acclimatization to that country.
Vela argues that G.V.’s trip to Iceland in January 2010 was intended not as a change of habitual residence but simply as a temporary visit with his father. She claimed at trial that [fishe did not sign the joint-custody agreement but only a document stating that G.V. would be in Iceland temporarily. She could not provide the alleged document to the court, however, and stated that it had been lost. Additionally, Ragnarsson produced photographs of Vela signing what appeared to be the joint-custody agreement. The terms of the joint-custody agreement itself demonstrate the settled, long-term nature of G.V.’s presence in Iceland. It declared Iceland to be G.V.’s legal residence and arranged for Vela’s payment of child support. Immediately after the agreement was signed, G.V. traveled to Iceland and remained there for a significant period of time until Vela unexpectedly retained him in the United States. Moreover, Vela did not request G.V.’s return from Iceland on the ground that his visit was at an end but resorted to misrepresentation to keep the child in the United States.
Vela also argues that, based on her many years as G.V.’s caretaker and sole custodian, the child’s habitual residence was with her. She further claims that Ragnarsson admitted as much at trial. Habitual residence under the Hague is not determined by which parent has spent more time with the child; rather, the purpose of the Hague is to determine which country has the paramount interest in the child. See Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. The question of which parent has the greater interest is a matter going to custody, which should be addressed only after the Hague issues are resolved. See id. As for Ragnarsson’s purported admission that G.V.’s habitual residence was with Vela, we decline to view his brief testimony, made in response to a question by Vela’s attorney, as anything more than an acknowledgment that the child had spent most of his life with Vela. It is not conclusive on the legal question of habitual residence.
17Having determined that G.V.’s habitual residence was in Iceland at the time Vela retained him in the United States, we turn now to the question of whether the circuit court erred in ruling that Vela’s retention was wrongful. The Hague provides that the removal or retention of a child is considered wrongful where
(a) it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.
Hague Convention, art. 8, T.I.A.S. 11670. The “rights of custody” referred to in Article 3(a) may arise by operation of law, by judicial or administrative decision, or by “reason of an agreement having legal effect under the laws of that State.” Id.
Vela argues that Ragnarsson’s custody rights under the Hague cannot rest on the parties’ joint-custody agreement because that agreement is legally ineffective in Arkansas, Texas, and Iceland. Only Icelandic law is relevant. The Hague provides that a person’s “rights of custody” for purposes of Article 3(a) are to be adjudged “under the law of the State in which the child was habitually resident immediately before the removal or retention.” The Hague then directs us to the “laws of that State” as governing the custody agreement’s legal effect. Hague Convention, art. 3(b), T.I.A.S. 11670. Given our holding that G.V.’s habitual residence was in Iceland, we must look to the law of that nation in determining the efficacy of the parties’ joint-custody agreement.
| Iceland’s Act in Respect of Children provides that parents may agree to joint custody of a child. Act 76/2003, art. 32. The agreement may be for a set period, although not for less than six months, and must specify with which parent the child shall have his legal residence. Id. The agreement becomes effective when it is approved by a district commissioner. Id.
The joint-custody agreement in this case followed the Act’s requirements, specifically by designating the child’s legal residence, and was registered and confirmed by a district commissioner. It therefore became effective under Icelandic law. Vela points out that the agreement contained no specific provisions regarding the joint-custody arrangement. But Iceland does not appear to require such provisions in order to constitute a legally valid joint-custody agreement. Vela also claims the record contains no proof that the commissioner, in confirming the agreement, instructed the parties as to its legal effect, as one clause of Article 32 provides. We decline to look behind the circumstances of the commissioner’s approval or confirmation, however. The laws of Iceland clearly provide that a joint-custody agreement “becomes effective” upon the commissioner’s approval and, because that occurred here as evidenced by an official record, we will consider it done. Accordingly, Rag-narsson was clothed with legal grounds to assert joint-custody rights in Iceland, and his rights were breached under the terms of the Hague. We therefore affirm the circuit court’s finding that G.V.’s retention in the United States was wrongful.
Vela’s final argument is that returning G.V. to Iceland was inequitable under the circumstances of this case. Even if it is proper to consider the balance of equities in a Hague case, see Mozes, 239 F.3d 1067 (indicating that it is not), we observe that the equities here |9favor Rag-narsson as much as Vela. The parties agreed that G.V.’s legal residence would be in Iceland with Ragnarsson, yet it was Vela who later renounced the agreement and employed deceit to keep the child from that residence. Vela also asserts that Ragnarsson has not accepted responsibility as G.V.’s father. On the contrary, both parties acknowledged Ragnarsson’s paternity at trial, and Ragnarsson has acted as a father during the better part of G.V.’s life. He was present at the child’s birth, had a relationship with the child while the parties lived in Iceland, entered into a joint-custody agreement in his capacity as the child’s father, and maintained physical custody of G.V. in Iceland for six months before Vela retained the child in the United States.
Vela further implies that the circuit court should have granted her visitation rights upon G.V.’s return to Iceland. As noted earlier, a proceeding under the Hague does not address these types of custody and access issues. Its purpose is to restore the status quo that existed before the child’s wrongful retention and allow the forum of the child’s habitual residence to determine custody matters.
Affirmed.
WYNNE and GRUBER, JJ., agree.
. Member countries under the Hague are referred to as States or Contracting States. | [
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WAYMOND M. BROWN, Judge.
bln this case from Faulkner County, appellants and appellees each argue that the circuit court erred in offsetting part of the jury’s $80,000 verdict against a mortgage debt owed by appellees. Appellants also challenge the court’s award of attorney fees to appellees and the imposition of post-judgment interest. Appellees claim error in the court’s striking their amended complaint and denying their motion for a default judgment. For the reasons explained below, we reverse and remand on direct appeal and affirm on cross-appeal.
Appellees’ property is subject to a $110,500 promissory note and mortgage in favor of appellants. In 2002, appellants declared appellees in default for failing to make several payments. In response, ap-pellees made a large payment, which they believed brought their note current. Appellants, however, continued to insist that appellees were in arrears. In early 122003, appellees mailed in two more payments, and appellants returned at least one of them. Upon inquiry, appellees were told that their house was in foreclosure, which could only be halted by immediately signing a forbearance agreement. Appellees, seeing no alternative, signed the agreement. They later provided appellants with copies of canceled checks and a summary of their payment history in an effort to prove their lack of default, but appellants took no further action on the matter.
Appellees made a few payments under the forbearance agreement, but appellants rejected a partial payment in May 2003 and eventually resumed foreclosure. In February 2004, appellees filed this lawsuit, asking the court to enjoin the foreclosure, set aside the forbearance agreement, and award damages for appellants’ breach of the implied duty of good faith and fair dealing in the contract. Appellants counterclaimed for the full amount of the note and for foreclosure of the mortgaged property.
The case went to trial in April 2009, by which time appellees’ note had a balance of more than $188,000, including late fees, legal fees, and about $80,000 in interest that had accumulated since their last payment in May 2003. In the liability phase of the bifurcated proceeding, the jury found that appellants had obtained the forbearance agreement through fraud and breached their duty of good faith by misapplying appellees’ payments and refusing to correct errors. In the damages phase, the parties stipulated that appellees would receive credit for the late fees and legal costs that had been assessed against them. The question of additional damages was reserved for the jury.
Appellees urged the jury to consider the accrued interest of almost $80,000 as an ^appropriate measure of compensation that would return them to the position they would have occupied but for appellants’ breach. Following closing arguments, the court instructed the jury that any damage award should put appellees in “no better position than they would have been” had all parties performed their promises under the contract. The jury returned a verdict of $80,000.
On November 24, 2009, the circuit court entered a judgment that, without explanation, deducted $53,000 of the verdict amount from appellees’ mortgage debt and awarded the remaining $27,000 to appel-lees as a monetary judgment. In post-trial proceedings, appellants argued that the court should have deducted the entire $80,000 from appellees’ indebtedness. Ap-pellees claimed that they should have received the whole verdict as a monetary judgment. When the court failed to enter timely post-judgment relief, this appeal and cross-appeal followed.
Both sides argue on appeal that the circuit court erred in fragmenting the jury verdict, and we agree that the judgment must be reversed on this point. There is no reason we can discern for the court’s dividing the verdict as it did. On the question of how the verdict should be handled, we are persuaded by appellants that the proper course is to deduct the entire $80,000 from appellees’ mortgage debt. Appellees did not expend the $80,000 while awaiting trial and thus have not suffered the loss of that amount of money; rather, that amount |4accrued on their note between the time appellants refused to accept further payments and the time of trial. In order to place appellees in the position they enjoyed in 2003 — as the jurors were requested and instructed to do — the court should have deducted the verdict amount from the $188,000 mortgage debt, leaving appellees with approximately the same balance that existed in early 2003. By contrast, appellees’ sug- gestión that they receive the $80,000 verdict as a monetary award and leave appellants with a $188,000 note would not place them in the same position. We therefore reverse on this point and remand for entry of a judgment reducing appellees’ indebtedness by the amount of the jury’s verdict.
Appellants argue next that the circuit court erred when it awarded appellees $80,000 in attorney fees. We agree. The Arkansas Rules of Civil Procedure provide that a motion for attorney fees must be filed no later than fourteen days after entry of judgment and that the motion must specify the statute or rule that entitles the moving party to the award. Failure to follow these provisions requires reversal of a fee award. In this case, appellees filed their motion fifteen days after the entry of judgment and cited no rule or statute. Undisputedly, they did not meet the requirements of Rule 54(e).
Appellees claim, however, that they were not subject to Rule 54(e). They contend first that they attempted to address the issue of attorney fees during their case-in-chief, but the circuit court “took that issue for resolution” when it decided to bifurcate the trial. The | ^record reflects, however, that the court simply deferred the damages portion of the case until after liability was determined. When appellees did not ask the jury to award them attorney fees during the damages phase but instead filed a post-judgment motion seeking fees as the prevailing party, they were bound to comply with the dictates of Rule 54(e). Appellees also argue that testimony regarding attorney fees adduced during their case-in-chief served as a “verbal motion” under Rule 54(e). We decline to equate appellees’ brief mention of fees at that point in the proceedings to a motion under Rule 54(e), especially since the identity of the prevailing party had not yet been determined.
On the matter of post-judgment interest, the parties agree that the circuit court erred in utilizing the rate of ten percent. A court may not award post-judgment interest at a greater rate than that permitted by our state constitution. The Arkansas Constitution prohibits collection of interest in excess of five percent per annum above the Federal Reserve Discount Rate, now known as the Federal Reserve Primary Credit Rate. On the date of judgment in this case, the federal rate was one-half percent. Thus, the maximum amount of interest chargeable on the judgment was five and one-half percent, much less than what was imposed by the circuit court. We therefore hold that error occurred. But we note, however, that because we are reversing the monetary award to appellees, we doubt the court will have the occasion to impose post-judgment interest on remand. Post-judgment interest is awarded to |r,compensate judgment creditors for the loss of money adjudged to be due them. As we mentioned earlier, appellees did not suffer the loss of $80,000.
Next, we address appellees’ arguments on cross-appeal concerning their at tempt to file an amended complaint on May 6, 2008, more than four years after the original complaint. The amended complaint purported to assert new causes of action in tort for deceit and outrage, and sought both compensatory and punitive damages. At the time the complaint was filed, trial was scheduled for July 24, 2008. Appellants moved to strike the amendment, citing proximity of the trial date, unfair prejudice because they had already conducted discovery based on the original complaint, and insufficiency of the facts stated in the amendment. The July 2008 trial was eventually continued until April 2009, but the circuit court did not hold a hearing on the motion to strike until shortly before the new trial date. At the hearing, the court granted the motion to strike, and appellees now argue that the court erred in doing so.
Generally, a party may amend its pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed, the court may strike the amended pleading or grant a continuance. This decision is a matter of the circuit court’s broad discretion. We will sustain the exercise of that discretion unless it is manifestly 17abused.
We see no abuse of discretion in this instance. The amended complaint set forth two new causes of action and sought punitive damages for the first time. It was filed more than four years into the ease, long after discovery had been conducted based on the contract claims in the original complaint. Further, by the time the circuit court held the hearing on the motion to strike, trial was only weeks away and the case had been pending for over five years. Under these circumstances, the circuit court did not manifestly abuse its discretion in striking the amendment. And, while the court did not expressly employ this line of reasoning in making its ruling, we will affirm if the court’s decision was correct on any basis.
Appellees also argue that the circuit court should have granted a default judgment because appellants never answered the amended complaint. While it is true that appellants filed no answer, their motion to strike invoked Rule 12(b) of the Arkansas Rules of Civil Procedure and asserted that the amended complaint should be dismissed for failure to state facts on which relief could be granted. A motion to dismiss under Rule 12(b) alters the time in which a defendant must answer a complaint. If a court denies a motion to dismiss, a Irresponsive pleading is then due ten days after notice of the court’s action. Appellants were therefore never in default because they filed a timely Rule 12(b) motion.
As a final matter, appellees ask this court to establish a new date on which to resume their mortgage payments to appellants. The circuit court set that date as January 1, 2010, which has long since passed. Because we are reversing the circuit court’s judgment, and because both sides found fault with the court’s implementation of the jury verdict, we believe fairness dictates the establishment of a new date on which appellees must start their payments anew. We therefore direct the circuit court to establish such a date in the judgment entered on remand. Our resolution of this issue renders appellees’ motion to strike part of appellants’ brief on this topic moot.
Reversed and remanded on appeal; affirmed' on cross-appeal with directions; motion to strike moot.
VAUGHT, C.J., and HOOFMAN, J„ agree.
. The parties agree that the court’s amended judgment was filed on the ninety-first day following the original judgment and that, consequently, the court had no jurisdiction to modify the original judgment. See Scales v. Vaden, 2010 Ark. App. 418, 376 S.W.3d 471; Ark. R. Civ. P. 60(a) (2011).
. This is, in fact, what the circuit court attempted to do in its amended judgment that was entered outside the jurisdictional time limit.
. Ark. R. Civ. P. 54(e)(2) (2011).
. Morehouse v. Lawson, 90 Ark.App. 379, 206 S.W.3d 295 (2005).
. See Millwood-RAB Mktg. v. Blackburn, 95 Ark.App. 253, 236 S.W.3d 551 (2006).
. Ark.Code Ann. § 16-65-114(a) (Repl.2005).
. Ark. Const. art. 19, § 13.
. Glover v. Woodhaven Homes, 346 Ark. 397, 57 S.W.3d 211 (2001).
. Ark. R. Civ. P. 15(a) (2011).
. Id.
. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983).
. Id.
. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).
. Winrock Grass Farm v. Affiliated Real Estate Appraisers of Ark., 2010 Ark. App. 279, 373 S.W.3d 907.
. Ark. R. Civ. P. 12(b)(6) (2011).
. Ark. R. Civ. P. 12(a)(2) (2011).
. Id. | [
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Wood, J.
This was a suit on a note executed by appellees to Mrs. Eliza Lynch. The appellant alleges that the note was endorsed by Eliza J. Lynch in blank, was delivered to her during the lifetime of Eliza J. Lynch, and that she thereby became the owner of same. The appellees, Martin and wife, admitted the execution of the note, and say that the balance due thereon is three hundred and twenty-six and 75-100 dollars. They also say that Robert C. Lynch, the administrator of the estate of Eliza J. Lynch, claims that the note is the property of the estate. They pray the court to adjudge the question of ownership between appellant and appellee, R. C. Lynch, administrator, and let judgment go ag'ainst them for balance due. R. C. Lynch was permitted to interplead as administrator of the estate of E. J. Lynch, and claims the note as the property of the estate. The issue on the interplea was submitted to the court sitting as a jury, whose finding and judgment was for the interpleader in the sum of three hundred and sixty-one and 53-100 dollars.
It is conceded that the court declared the law correctly, and we are only asked to review the finding of the court as to the ownership. The testimony upon that point is as follows: Mrs. Turner, a witness, testified: “Robert C. Lynch is my brother. Mrs. Eliza E. Lynch was my mother, and I am perfectly familiar with her handwriting. I recognize the handwriting on the back of the Martin note to be my mother’s handwriting, to the best of my knowledge and belief. My mother died on February 5, 1891. For some time previous to her death, both before and after Mrs. Ammon came out here, I heard my mother say she intended giving the Martin note to Mrs. Ammon. I advised my mother to write Mrs. Ammon a copy of the note, which she did, and I read it after she wrote it. I recognize exhibit “A” as the copy of the note written by my mother, and which she sent Mrs. Ammon before she came out here. Mrs'. Ammon came to Brinkley some time before my mother died. There was no one present when my mother died, except Mrs. Ammon and myself. My mother called Bell Ammon before she died, and offered her something which I think was the pocket-book, and Bell told her to give it to me, and she gave it to me. I gave the pocketbook to Mrs. Ammon, because I knew it was my mother’s wish. Mrs. Ammon is now in San Jose, California. The Martin note was in the pocket-book, and there was some small change in another pocket-book. I think it was three or four o’clock when my mother died, and it was some time before dinner of the same day that I gave Mrs. Ammon the pocket-book with the Martin note in it. I gave the pocket-book to my son, James Turner, to hold, and he gave it back to me, and I gave it to Mrs. Ammon. Mrs. Ammon was here when my mother died, on her way to California. Mrs. Ammon had hardly got out of the door before my mother died. Mother made her home with me as much as she did with her other children.” R. C. Lynch testified: “My mother died about three or four in the morning, and Mrs. Ammon told me afterwards that she did not get the note until the next day.” Mrs. Vaughn testified: “I understood from Mrs. Ammon and Mrs. Turner that the pocket book, containing the note and some change, was in my mother’s possession just before she died.” The memo randum on the copy of the note sent Mrs. Ammon is as follows: “ This is the copy. When I am gone, call for it. Ehiza J. Lynch.” This memorandum was in the handwriting of Mrs. E. J. Lynch.
The proof is ample to support a gift, either causa mortis or inter vivos. The gift being made by Mrs. Lynch while on her death bed, and but a few hours before her death, the presumption is it was a gift causa mortis. But death, supervening in so short a time after the delivery, practically eliminated the element of revocability which distinguishes a gift causa mortis from one inter vivos. Delivery before death is just as essential to a gift causa mortis as it is to a gift inter vivos, and the same rules as to delivery are applicable to both ; but in the former, although absolute in form, the title to the thing given remains in the donor, and the gift is subject to revocation at any time prior to his death. 3 Pomeroy, Eq. Jur. sec. 1150. In the latter—inter vivos —the gift becomes absolute upon delivery. Here the proof shows that Mrs. Lynch, dum vivens, delivered the note in controversy to Mrs. Turner for Mrs. Ammon. This was sufficient to make the gift complete, no matter what was its character. “The intention to give must be accompanied by a delivery, and the delivery must be made with an intention to give.” 3 Pomeroy, Eq. Jur. sec. 1149.
The intention of Mrs. Lynch to give the Martin note to appellant was manifest, as shown by her declarations to Mrs. Turner, and also by her acts, as expressed in the copy of the note and the endorsement thereon which she sent to appellant in .California. That she remained resolute and unalterable in this intention is evidenced by the circumstances of the delivery of the note at the death bed, when her intention was merged into action, and the gift became consummate. It was doubtless Mrs. Lynch’s intention to deliver the note to her daughter, Mrs. Am mon, in person. This is shown by calling appellant to her bed side, and offering her the pocket book.
While the delivery cannot be made to the donor’s agent for the donee, it may be made to the donee herself, or to her agent or a trustee for her. When appellant requested her mother to hand the pocket book to Mrs. Turner, she made Mrs. Turner her agent to receive it, and hence the delivery was made to the agent of appellant. 3 Pomeroy’s Bq. Jur. sec. 1149 ; Clough v. Clough, 117 Mass. 83; Baker v. Williams, 34 Ind. 547; Woodburn v. Woodburn, 123 Ill. 608.
The gift being for the advantage of appellant, the presumption would be that she accepted it, even if there were no proof to that effect. De Levillain v. Evans, 39 Cal. 120; Darland v. Taylor, 52 Iowa, 503; Sourwine v. Claypoool, 138 Pa. St. 126. But here there is no positive proof of acceptance.
So we can find no element wanting to a perfect gift of the note in suit from Mrs. Bynch to appellant, and, in our opinion, there is no proof to support any other view.
The judgment of the Woodruff circuit court is therefore reversed, and the cause is remanded for new trial. | [
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Hart, J.,
(after stating the facts). Counsel for defendant contend that the judgment must be affirmed, regardless of the fact of whether the court committed error in instructing the jury. They base their contention upon the ground that the notice of accident, as provided by the terms of the policy, is a condition precedent to recover, and that notice was not given within a reasonable time after the accident happened; but we can not agree with them in this contention. It is true the accident happened on the 23d day of April, 1912, and that the insured remained conscious until the date of his death, on July 15, 1912, and that no notice was given until the 31st day of July.
In the case of Western Commercial Travelers Assn. v. Smith, 85 Fed. 401, the policy provided that “in case of any accident or injury for which claim is to be made under this certificate, or, in case of death resulting there-fr.om, immediate notice shall be given in writing, with full particulars of the accident, and that failure to give such notice would invalidate the claim. The court held that two classes of notices were intended, one an immediate notice of accident or injury when not resulting in death, and the other an immediate notice of death resulting from such injury, the latter to be given by the beneficiary,' and that a notice so given in the latter case was sufficient, though no notice of the injury was given before death. See also McFarland v. U. S. Mutual Accident Assn., 27 S. W. (Mo.) 436.
Counsól for defendant contend that the above cited cases are not in accord with reason and authority; and in support of their position they cite the case of the Travelers Insurance Co. v. Nax, 142 Fed. 653, where the Circuit Court of Appeals of the Third Circuit held:
“Where an accident insurance policy providing for the payment of a weekly indemnity to the insured in case of an accidental injury, and the payment of the amount of the policy to a named beneficiary in case of his death from such an injury, made it an express condition that ‘immediate written notice’ should be given to the company ‘of any accident and injury for which claim is made,’ such proviso required notice to be given within a reasonable time; and where the insured lived for seventy-two days after an accidental injury, during which time he was in full possession of his faculties, his failure to give any notice of the accident before his death, without any excuse therefor appearing, as a matter of law defeated any right the beneficiary would otherwise have had to recover .on the policy for his death, which was dependent on such notice as fully as the right of the insured to recover benefits in his lifetime.”
An attempt is made by the court in that case to distinguish it from the policy in the case of the Western Commercial Travelers Assn. v. Smith, supra. But we do not agree with the reasoning of the court in the Nax case. Forfeitures are not favored in the law; and this principle is peculiarly applicable to policies of insurance, where the contract is always to be construed most strongly against the insurance company because it prepares the contract of insurance. This principle is too well settled in this State to require a citation of authority to support it. It is a cardinal canon of construction of contracts that the court should" put itself in the place of the parties to the. agreement and then consider how. its terms affect its subject-matter, iand thereby ascertain the intent of the parties. Under the policy sued on in this case, the beneficiary had no claim until the death of the assured. Therefore, there must be no good reason to require her to give notice of the accident or injury before death occurred and before her claim arose. She could not know whether she had a claim until after her husband’s death; and she was not required to give notice of the accident on account of which hér claim arose before she knew whether or not it would come into existence. Moreover, the plaintiff did not know that her.husband had the policy sued on until after she found it among his papers, about two weeks after his death; and she at once then gave notice to the company of her claim under the policy. The policy required that notice must be given as soon as may be reasonably possible of any injury for which a claim is to be made. The undisputed evidence shows that the plaintiff did this a soon as she learned of the existence of the policy after her husband’s death.
In the case of Cady v. Fidelity & Casualty Company of New York, 17 L. R. A. (N. S.) 260, the Supreme Court of Wisconsin; in discussing this precise question, said that service of notice by a beneficiary as soon as practicable after obtaining knowledge of the existence of the policy is sufficient. Several well considered cases are cited which support the principle there announced.
Counsel for plaintiff also assign as error the action of the court in giving instruction No. 4 at the request of the defendant; and in this contention we think they are correct. The instruction reads as follows:
“The court instructs the jury that if they find from the evidence that the deceased, Edward S. Maloney, came to his death as the direct or indirect consequence of disease or that his death was caused wholly or in part by bodily infirmities or diseased condition of the body and that the alleged accident or injury was not the exclusive and independent cause of his death, then your verdict will be for defendant.”
In the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, the court held:
“When an accident insurance policy limits liability to ‘bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,’ and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury.”
In the case of French v. Fidelity & Casualty Company of New York, 17 L. R. A. (N. S.) 1011, the Supreme Court of Wisconsin held that death from blood poisoning following a slight accidental abrasion of the skin is within an accident insurance policy against bodily inju ries sustained through external, violent and accidental means, independently of all other causes.
Here the proof on the part of the plaintiff shows that the insured received an accidental injury to the coccyx hone by his nurse striking it while he was attempting to place a bed-pan under him; that an infection later on started at the place where the bed-pan struck him, and that he died thereafter from blood poisoning. From this testimony the jury might have found that, but for the •accidental injury, there would have been no cause for infection, and that there might have been an abrasion of the skin through which the disease germs entered the insured’s body and subsequently produced his death. If the jury found such a state of facts, the wound produced by the accident was the proximate cause of his death.
In addition to the above cases 'already cited, see Cary v. Preferred Accident Insurance Company, 5 L. R. A. (N. S.), (Wis.) 926, and case note.
The court, at the request of the defendant, gave instruction No. 8, which is as follows:
“The court instructs the jury that if Maloney’s death was not the result of the 'alleged accident alone, but was due to both the accident and a disease of which he was suffering, then there is no liability on the part of defendant and your verdict will be for defendant.”
This instruction is erroneous for the reason assigned in discussing instruction No. 4.
We also think the court erred in giving instruction No. 7 at the request of the defendant. The instruction is as follows:
“If the jury find from the evidence that the injury to Maloney was the result or effect which was the natural and probable consequence of an act or course of action intended by those waiting upon Maloney, then this can hot be said to be produced by accidental means, and your verdict will be for the defendant.”
If an injury occurs without the agency of the insured, it may be logically termed “accidental,” even though it may be brought about designedly by another person. 2 Bacon on Benefit Societies and Life. Insurance (3 ed.) ' § 482.
The court also erred in giving instruction No. 9. It is as follows:
“The court instructs the jury that as part of the contract sued on, Edward S. Maloney, the assured, warranted that his habits of life were correct and temperate, and if the jury find from the evidence that said Edward S. Maloney’s habits of life were not temperate.as stated in the policy, then your verdict will be for the defendant. ”
The alleged warranty, the breach of which is here complained of by the defendant, is as follows:
“My habits of life are correct and temperate. I am neither partially or wholly blind, deaf, crippled, lame, paralyzed, nor have I ever been subject to epilepsy, fits, vertigo, or sleep walking, and in all regards I am in sound condition mentally and physically, except as follows: No exceptions.”
In the application of the rule that the policy must be construed as favorably as possible to the insured because it was written by the insurance company, we think "that the words “no exceptions” refer to the sentence immediately preceding it. The first sentence of the section, towit, “My habits of life are correct and temperate,” can hot be construed as a warranty.
Moreover, the undisputed testimony shows that the application was written up by the agent of the insurance company, and that the answers were written by him without consulting the assured. Therefore, the company is chargeable with the knowledge of its own agent, and is ■also estopped from denying that which its own agent has asserted to be true. See Peebles v. Eminent Household of Columbian Woodmen, 164 S. W. 296, 111 Ark. 435.
It is also contended by counsel for plaintiff that the court erred in admitting the testimony of the attending physicians of the insured. The testimony was not competent if it had been objected to. Mutual Life Insurance Company of New York v. Owen, 111 Ark. 554, 164 S. W. 720. The record shows, however, that no objection was made to the admissibility of this testimony; and in the absence of objection being made the testimony was competent.
Error is also assigned in the giving of other instructions ; but we do not deem it necessary to set out the instructions complained of or to discuss them in detail. We think the principles of law applicable to a retrial of the case are sufficiently discussed already, and for the errors indicated in the opinion the judgment must be reversed and the cause remanded for a new trial. | [
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Paul Ward, Associate Justice.
This litigation was initiated by a taxpayer to test the constitutionality of Act 38 of the First Extraordinary Session of the 1961 Legislature. Said Act provides for the erection of a Revenue Department Building for the State. The trial court held the Act constitutional, and this appeal by the taxpayer follows.
Substance of the Act. The portions of the Act material to this litigation are as follows: Sections 2, 3, 4 and 5 create the “Arkansas Revenue Department Building Commission” (referred to as the “Commission”), composed of the Commissioner of Revenues, the Secretary of State and three members appointed by the Governor, and also provide per diem for attendance of meetings, and terms of office; Section 6 authorizes the Commission to select a site for the building on the Capitol grounds, to construct and equip the building, and to obtain the necessary funds therefor by the issuance of Revenue Bonds as thereafter provided, to house in the building the State Revenue Department and other state agencies, to rent available space, and to take such other action consistent with law to carry out the intent and purpose of the Act; Sections 10 and 11 declare all monies received from the charge of $1.00 for each motor vehicle certificate of title (as already provided by law) and all monies received from the collection of $5.00 for the recording of all leases (by the State) of oil, gas, gravel, coal, etc., (as provided by the Act) to be “cash funds” not to be deposited in the State Treasury but in the “Revenue Department Building Fund” created by the Act; Section 12 creates a Trust Fund to be known as the “Revenue Department Building Bond Fund” into which money shall be transferred from time to time (as provided in detail in the Act) from the Revenue Department Building Fund. The money placed in the Trust Fund is pledged and is to be used to retire principal and interest on the bonds later provided for in the Act. This Section further provides that from time to time (under restrictions specified) funds (in excess of what is needed) shall be transferred from the Trust Fund to the State Treasury, and further provides that when the bonds are retired all the money in the Trust Fund shall be transferred to the State Treasury; Section 13 author izes the Commission to issue Revenue Bonds not to exceed $1,600,000 bearing not to exceed 4%% interest, and to be sold by the Commission pursuant to the detailed provisions set forth in the Act; Section 14 provides that said bonds shall be general obligations only of the Commission and “in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged”; Section 15 reiterates and emphasizes the provisions heretofore set forth, stating that the bonds are secured by a pledge of the gross revenues mentioned in Sections 10 and 11 and the rentals before mentioned, and declares said revenues to be cash funds; Section 16 authorizes the several officers, departments, agencies and commissions of the State to enter into rental agreements with the Commission for space in the building to be erected. The other sections of the Act deal with who can purchase the bonds, the details of constructing the building, and declare the Act shall be liberally construed and its provisions to be severable.
Appellant urges a reversal, contending: I. Funds in the State Treasury are, under Act 38, being paid out without an appropriation by the General Assembly contrary to the Constitution; II. Since Act 38 does not have the approval of the electors of the State it violates Amendment No. 20 of the Constitution; III. Act 38 constitutes a delegation of legislative power to the Commission and, therefore, violates Amendment No. 7 to the Constitution, and also Article 4, Sections 1 and 2 of the Constitution; and IY. Act 38 violates the Federal and State Constitutions in that the charges for the certificates are unequal and discriminatory.
We will now discuss the above mentioned contentions in numerical order without repeating the same in full.
I. Appellant quotes Article 5, § 29 and Article 16, § 12 which, in substance, provide that no money shall be drawn from the State Treasury except by appropriation, and then for only a two-year period. He then points out that under Act 38 the Commission is authorized to use the accumulation of funds to retire the bonds sans an appropriation by the legislature during the life of the bonds — 20 years. In making this contention appellant overlooks the fact that the above sections of the Constitution refer to money in the State Treasury, and also the further fact that the funds provided in Act 38 never at any time reach the State Treasury. This being true there is no constitutional requirement that the funds in Act 38 be appropriated. See: Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428.
However, in this same connection, appellant contends that the funds in this case should, and must, be placed in the State Treasury since they amount to a tax, and that calling them “cash funds” is of no avail. This latter contention has also been resolved against appellant by the two above mentioned decisions of this court. To make this point clear it is in order to compare briefly the case under consideration with the said two decisions.
In the Gipson case the so-called “cash funds” were “derived from such sources as students’ fees, sale of farm produce, dormitory charges, etc.” in connection with the operation of the State University and the State Colleges. As stated in that case “The question is, whether the Constitution of Arkansas requires that all such cash funds be deposited into the State Treasury”. It was held that such funds need not be so deposited. Appellant says, however, there is a clear distinction between the nature of the funds in the Gipson case and the funds involved here, but he does not, we think, explain such distinction, and we see none that is vital to the issue. If, however, there be any lingering doubt about such distinction it was erased completely, against appellant, in the McArthur case previously cited. In that case which upheld Act 375 of 1955 providing for the Justice Building, the funds involved were unquestionably comparable to the funds involved in Act 38. Said Act 375 “taxed” as costs $1.00 in each circuit, chancery, and probate civil case and the same amount for each conviction in criminal cases, while Act 38 funds are derived from $1.00 paid for each certificate of title to a motor vehicle and from the recording of State leases. Also, under both Acts, rentals from the proposed buildings comprised a part of the funds.
It is our opinion therefore that all of appellant’s objections under this point have been successfully met by the decisions in the Gipson case and the McArthur case.
II. ¥e find no merit in appellant’s contention that Act 38 violates Amendment No. 20 to the Constitution of Arkansas. This Amendment, in substance and in all material parts, prohibits the issuance of any bonds pledging the full faith and credit of the State except when authorized by a vote of the qualified electors. Act 38 specifically provides that the bonds issuable by the Commission will not be supported or guaranteed by the full faith and credit of the State, and further provides that they can be paid only from the special funds heretofore described.
III. Neither do we find any merit in appellant’s contention that Act 38 delegates legislative powers to the Commission contrary to Article 4 §§ 1 and 2 or to Amendment No. 7 to the Constitution. Sections 1 and 2 provide for three distinct departments of government and specify that neither shall exercise power belonging to the other. Amendment No. 7 is the “Initiative and Referendum” amendment which supersedes Article 5, § 1 of the Constitution and contains nothing to add support to appellant’s contention here. This identical contention by appellant here was made in the McArthur case, supra. What the Court said in that case, in rejecting the contention, is also applicable and decisive here: sions may be set forth with power given to those who are to act under snch general provisions to complete the details. See, among other cases, Fort Smith v. Roberts, 177 Ark. 821, 9 S. W. 2d 75; Fulkerson v. Refunding Board of Arkansas, 201 Ark. 957, 147 S. W. 2d 980; Currin v. Wallace, 306 U. S. 1, 59 S. Ct. 379, 83 L. Ed. 441.” A careful examination of the authority granted the Commission by Act 38 reveals that it is empowered to perform only such ministerial acts as are required to effectuate the overall purpose of the legislature. It would be absurd to say that the Constitution requires the legislative body to perform in detail every ministerial act necessary to the functioning of every commission it creates.
“It is well settled that legislative bodies have no right to delegate the lawmaking power to commissions and boards established by the legislature, but it is equally well settled that the legislature may delegate the power to determine facts upon which the law makes or intends to make its own action depend and that general provi-
Finally, appellant contends that the charge for certificates of title is unequal and discriminatory in violation of the Federal and State Constitutions. That part of the State Constitution referred to is Article 16 § 5 which reads in part:
“All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.” Appellant’s principal contention in this connection appears to be based on the assumption that the charge is a tax instead of a fee. In our opinion the assumption is erroneous and therefore his contention is without merit.
In two early decisions this Court had occasion to consider and settle this same question. In Lee County v. Abrahams, 34 Ark. 166, this Court held that a levy of 50 cents “on each original writ and execution issued out of any of the courts of the state. . . . ” was not a tax within the meaning of the Constitution which requires all property tax to be levied ad valorem. Likewise, in the case of Murphy v. The State, 38 Ark. 514, it was held that a tax of $3.00 imposed on each criminal conviction was not a tax within the meaning of the Constitution. In both cases the Court said the levy was a fee to the public and not a tax. For other decisions to the same effect see: Texas Co. v. Brown, 258 U. S. 466, 42 Sup. Ct.1 375, 66 L. Ed. 721 and Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713. In support of appellant’s contention that the charge of a $1.00 fee is in violation of Article 16, § 5 he relies on Featherstone v. Norman, 170 Ga. 370, 153 S. E. 58; Eager v. Walker, 128 Ky. 1, 107 S. W. 254; and Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892. We have carefully examined these decisions and find they are not in point or decisive of the question here presented.
We see no merit in appellant’s further arguments to the effect that the charge of $1.00 is shown to be a tax because it is not optional but forced, because it is not intended to reimburse the State for services rendered. Conceding, without holding, the above named assertions are indicative that the charge is a tax, we do not think the assertions are true in this case. Certainly it cannot be said that everyone is forced to own a motor vehicle. The legislature found and common sense indicates that the Eevenue Department does render a valuable service, that it needs the housing facility, and the State must be paid for that service. Also, appellant is apparently overlooking the fact that Act 38 does not create the $1.00 charge in question, and likewise the fact that the Act which did create the charge is not under attack in this litigation.
From all the above it is our opinion that said Act 38 is constitutional and that the trial court was, therefore, correct in sustaining the demurrer to appellant’s complaint. Affirmed. | [
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Bunn, C. J.
The appellant, having been indicted in the Hittle River circuit court for the crime of murdering one Drennan Hogan, was tried, on a change of venue, in the Sevier circuit court, at its January term, 1894, and convicted of murder in the first degree, and sentence and judgment were pronounced accordingly. Erom the judgment the appellant appeals to this court, and asks a reversal of the same.
The appellant was the father-in-law of the deceased, and they lived near each other. There was evidence going to show the existence of animosity in the heart of appellant towards the deceased; that, about 4 p. m. on the 15th day of September, 1893, the deceased left his home to visit a neighbor by the name of Howard, his route leading by the residence of appellant; that he was seen to pass there; that, soon after, the report of a gun was heard by persons at and near appellant’s residence and other places in the neighborhood, in the direction of the locality where the body of the deceased was subsequently found; that deceased had left home riding a mule, and that the mule was discovered near the spot where the body of deceased was found. The evidence was entirely circumstantial.
The appellant is a colored man, and so was the deceased. The neighborhood was one of almost exclusively colored people, there being but about six white men within a circle of a radius of six miles. Many, and indeed nearly all, of the witnesses called to testify as to the occurrence were colored people. There were efforts fro and con at impeachment of witnesses, and the legal propositions growing out of the case mostly spring from this circumstance.
In the first place, we have been unable to find, anywhere, any evidence of the means by which the deceased came to his death. From the very nature of things the connection of the appellant with the killing must have been that he was .the slayer by shooting the deceased with a gun, and the charge was so laid, and all the evidence was given that direction. Whether the deceased was killed by being shot, or fell from his mule, died suddenly from natural causes, or came to his death in any other manner, there is not the least intimation in the testimony, unless it be in the statement of witnesses here and there that he was “killed” on a certain day, or “ when he was killed ” and the like. Under the circumstances we cannot comment upon the evidence in other respects, but as to this we think the omission or defect is fatal.
The defendant having testified in behalf of himself, a witness testifying subsequently in rebuttal on behalf of the State was asked to detail what defendant had sworn before the coroner’s jury of inquest. To this defendant objected, on the ground that the coroner’s written state ment of the testimony was the best evidence of what the defendant had testified, and that the same should have been produced. This objection was overruled, however, and the witness proceeded to state what defendant had said, as to a particular event, when testifying before the coroner’s jury. Witness’s statement does not materially differ from appellant’s statement on the trial, and for that reason the point seems to have been abandoned, and would not be recalled here, but for the reason that the question might arise hereafter in the case.. It is proper that a witness, whose testimony is attempted to be impeached on the ground of prior contradictory statements, should be treated fairly by having his attention called to the particular time, place, circumstance and surroundings of the prior statement. So, also, when his former statement has been reduced to writing, as is required by law in cases of inquest, the better rule, if not the essential rule, is to produce the writing when it is possible to do so. Fairness, propriety and correctness all support this view.
Another question arises on the objection of the defendant to the manner in which questions are pounded to and answered by witnesses called to impeach another on the ground of bad reputation for truth and morality, and also to sustain the reputation of a witness thus sought to be impeached. The plain, simple formula in the first instance is essential. The impeaching witness should be interrogated as to his knowledge of the general character and reputation?among his neighbors, for truth and morality, of the witness sought to be impeached, and from that knowledge, if sufficient to •support an opinion, whether or not he would believe the person on oath. Where a witness is introduced to sustain the character of the witness sought to be impeached, . . . similar interrogatories should be propounded to him. Something of greater latitude, however, is allowable in the answer in this case than in the other, but it is difficult to lay down any definite rule on the subject. The following quotation from Rice on Criminal Evidence, page 610, expresses our view of the subject, to-wit: “A very sensible and commendable instance of the relaxation of the old and strict rule in the reception of negative evidence of good character—as for example, the testimony of a witness who swears that he has been acquainted with the accused (witness) for a considerable time, under such circumstances that he would be more or less likely to, hear what was said about him, and he has never heard any remark about his character—the fact that a person’s character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or, in other words, that his character is good.”
Evidence of character should be general, and therefore questions as to knowledge of character should be general, so that the answers should not consist of recitals of particular instances, or be confined to estimates of particular individuals or classes.
For the errors named, the judgment of the Sevier circuit court is reversed, and the case is remanded for further proceedings not inconsistent herewith. | [
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Bunn, C. J.
Appellee sued appellant and the St. Louis & San Francisco Railway Company, on an account for thirty-three dollars and thirty-three and one-third cents, before one of the justices of the peace of Sebastian county, and judgment was rendered by default against both of the defendants. The railroad company, by its attorney, B. R. Davidson, took an appeal by filing proper affidavit and bond. The cause came on for hearing in the circuit court, the defendants having answered ; and, while testimony was being taken, “the court ruled that the filing of the affidavit in this cause did not vest the circuit court with jurisdiction as to Rider, (to which he excepted); and said Rider moved the court to require the justice to amend his transcript to speak the truth by showing that Rider in person presented the justice with the affidavit for appeal herein made by B. R. Davidson, and prayed an appeal for both defendants ; that the justice accepted the same as applying to both defendants, and granted an appeal as to both defendants.” But the court refused to grant the rule on the justice, and dismissed Rider’s appeal. From this judgment of dismissal, this appeal is taken.
Having gone into the trial without objection, the plaintiff, for whose benefit the appeal affidavit is required to be made, waived the defect, and the court should not, of its own motion, have dismissed the appeal.
Reversed and remanded, with directions to set aside the judgment of dismissal, and grant appellant a trial of his cause. | [
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BaTTEE, J.
On the 29th of January, 1889, J. W. Wideman commenced this action against James M. Neal for the recovery of a tract of land described in his complaint. He derived his title from a sale of the land for the taxes of 1876 under a decree rendered by the Cleburne circuit court, in the exercise of the jurisdiction conferred upon it by the “Overdue Tax Daw.” At that sale the land was stricken off to the State, there being no bidders for it; and, no redemption having been effected within the time prescribed by law, the State Land Commissioner sold and conveyed it to the plaintiff.
The defendant claimed under a donation from the State. In support of his title he alleged that the land was duly assessed, and legally returned delinquent, advertised, and sold, for the taxes of 1876, to the State of Arkansas ; and, not having been redeemed within the time allowed by law, it was certified by the county clerk to the Commissioner of State Lands as forfeited ; that, afterwards, on the 18th of November, 1881, the Commissioner of State Lands issued to him, on his application, a certificate of donation; that he then took possession thereof, and has occupied and improved it ever since; and that, on the 22d of December, 1882, after he had made payments, and filed proof of improvements, as required by law, the Commissioner conveyed the land to him. He alleged that, after the land was conveyed to him, the Cleburne circuit court ordered the land sold under the “Overdue Tax Law”; that it was sold to the State under that decree on the 29th of December, 1884, more than two years after it had been donated to him ; that this sale had never been confirmed by the court; and that the plaintiff purchased the land about the 28th of December, 1888, from the State. He averred, in a vague manner, that the plaintiff purchased the land of the State, well knowing that it had been previously donated to him, the State having acquired the right to do so by the forfeiture of the same for the taxes of 1876. He made his answer a cross-complaint, and asked that the action be transferred to the equity docket, and that the deed of plaintiff be cancelled, his title quieted ; and for other relief.
The answer and cross-complaint were held by the court below, upon a general demurrer, to be insufficient-; and, the defendant declining to plead further, a final judgment was rendered in favor of the plaintiff.
The defendant, in effect, attacked the title of plaintiff on the ground that the decree of the Cleburne circuit court, under which the land was sold to the State, was procured by fraud, and that the plaintiff purchased with notice of that fact. Will equity interfere ?
Courts of equity can set aside judgments and decrees obtained by fraud. The fraud for which they will set them aside must be in the procurement of the judgment or decree. A fraud which vitiates the cause of action is a defense which, nothing preventing, must be interposed in the action in which the judgment or decree was rendered. It cannot be asserted against the judgment, in the absence of other grounds of equitable interposition.
A few cases will serve to illustrate the application of the rule which governs courts of equity in setting aside judgments obtained by fraud. Where the parties submitted the matter in dispute to arbitration, after the suit was instituted, and the award was that the defendant should pay a certain sum and the costs of suit, and he performed the award by giving his note for the debt, as ascertained by the arbitrators, with security, but failed to pay the costs, and the plaintiff took judgment for the whole debt sued for, without the knowledge or consent of the defendant, equity annulled the judgment for the debt. Sneed v. Town, 9 Ark. 535. A judgment was set aside for fraud, which was obtained in a suit before a justice of the peace after he had announced to the parties that he was sick, and would not try the cause until the following morning, and the plaintiff had left the place of trial on account of the announcement. In that case the defendant immediately returned to the office of the justice of the peace, and filed before him for the first time a set-off in excess of the claim sued on, and, in the absence of the plaintiff, induced the justice to render the judgment in his favor for the excess, when there was nothing due him. Miles v. Jones, 28 Mo. 87. “An action was commenced against A and others. A having a good defense, the plaintiff agreed to dismiss as to him, and on that account A failed to defend. The judgment taken in violation of this agreement was set aside, and the execution restrained. Similar action was taken where the defendant was assured that he was sued fro forma, because he was supposed to be a necessary party, and that no judgment ’ would be taken against him; and a decree was nevertheless taken against defendant; and so when, after the commencement of a suit, an accord and satisfaction had taken place between the parties, and upon that account the defendant failed to appear and plead; or where the plaintiff, after an interview with defendant, admitted that he had been paid, and promised to go at once and dismiss the action, and assured defendant that he need not employ an attorney, or pay any further attention to the action ; *■ * * or agreed that if defendants would withdraw an equitable plea, he would do the equity set up in the plea; or had accepted a certain sum as a satisfaction of his demand, and given a receipt in full.” 2 Freeman on Judgments (4th ed.), sec. 492.
In Johnson v. Coleman, 23 Wis. 452, plaintiff alleged that her husband had instituted an action against her for a divorce on the ground of desertion on her part, continued for more than one year; that he commenced the suit, and obtained an order of publication, upon the ground that he was unable to ascertain her residence, when he well knew where she was residing at the time; ‘1 that no copy of the summons and complaint was served upon her personally, nor by depositing the same in the post office, directed to her; that judgment by default was rendered against her upon such service”; that she had no knowledge of the suit until after a lapse of more than two years from the time the judgment for divorce was entered; and that the separation was voluntary under written articles entered into by her and her husband—and asked that the judgment be set aside. Upon demurrer to the complaint the court held that the allegations of the wife showed such fraud in the procurement of the divorce as authorized the setting aside the judgment.
In Moore v. Gamble, 9 N. J. Eq. 246, “a judgment was obtained by attachment, during the defendant’s absence, for a sum claimed to be due for the board of his. wife. Relief was obtained by the defendant, upon showing that it was the duty of the plaintiff, under an agreement, to furnish such board, and that he, at the time the suit was commenced, had funds of defendant in his hands ” to an amount more than large enough to pay the wife’s board.
In Johnson v. Coleman and Moore v. Gamble the judgments were set aside because they were obtained in the absence of the plaintiffs on causes of action known to be without foundations, and the plaintiffs had no opportunity of being heard, or setting up the defenses they had against the defendant’s demands, holding that the judgments obtained under these circumstances were procured by fraud. Irvine v. Leyh (Mo.), 14 S. W. Rep. 715.
In the case before us, if the matters stated in the answer and cross-complaint are true—and upon demurrer to the same we assume they are—it is evident that the decree of the Cleburne circuit court, under which the land in controversy was sold, was obtained by fraud. The State of Arkansas had conveyed all her interest in the land to the plaintiff, and relinquished to him her right to the taxes for which it was forfeited, in the event he was dispossessed. Mansfield’s Digest, sec. 2649. The State knew, or ought to have known, that she had no cause of action against the land on account of the non-payment of the taxes of 1876 at the time the decree was rendered. She impliedly said to the defendant, when she donated to him the land, that she would institute no proceedings against it on account of the taxes of 1876. He had the right to rely, and did rely, upon the good faith of the State in fulfilling the promises signified to him by her conduct. Every fear of proceedings to condemn the land to be sold to pay the. taxes of 1876 were, doubtless, removed from his mind, and he was lulled into security. Under these circumstances the decree was obtained in a proceeding instituted, by authority, in the name and in behalf of the State. He was deprived of the opportunity of being heard, or setting up his defenses. A gross fraud was perpetrated upon him in the procurement of the decree, and, the plaintiff having purchased with notice of it, is not an innocent purchaser, and is affected by it; and the defendant is entitled to relief against it.
Under the civil code the defendant can take advantage of the fraud in this action by answer and cross-complaint. Peel v. January, 35 Ark. 331, 342.
As the sale under the decree of the Cleburne circuit court has never been confirmed, no title passed to the State thereby. Neal v. Andrews, 53 Ark. 445.
The demurrer to the answer and cross-complaint should have been overruled.
The judgment of the circuit court is, therefore, reversed, and the cause is remanded for proceedings consistent with this opinion. | [
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McCulloch, C. J.
This is an action on a policy of insurance issued by defendant company on the life of one W. L. Price. The policy was payable to the “executor, administrator or assigns” of Price, and was assigned in writing by Price to E. A. Eolfe a few days prior to the former’s death, but the assignment was not presented to the company and accepted by it prior to Price’s death.
The suit is prosecuted jointly by Eolfe and by Williams as administrator of Price’s estate. It was alleged in the complaint and proved at the trial that Eolfe held Price’s note for the sum of $4,500, and that is the amount which Eolfe claims under the policy.
The court instructed the jury that it was unnecessary to find the amount due to Eolfe, and the verdict was in favor of the plaintiffs for the full amount of the policy without specifying the amount due to each plaintiff.
The surety of the company was joined as defendant.
Objection was made to the joinder of the two-plaintiffs in the one action, on the ground that there was no community of interest, and that they could not be properly joined in a suit on the policy. The court overruled the objection, and the case proceeded as a joint action by the two plaintiffs.
That feature of the case may be disposed of by saying that inasmuch as both plaintiffs claimed an interest, and it does not appear that any one else had an interest in the policy, no prejudice could have resulted in joining the two together in one action. Kansas City So. Ry. Co. v. Mixon-McClintock Co., 107 Ark. 48; Sims v. Halliburton, ms. op.
The company defended on the ground that Price obtained the policy upon false and fraudulent representations concerning his occupation and health; and also on the ground that the policy was a wagering contract, and, therefore, void.
The first defense mentioned above was submitted to • the jury upon sufficient evidence, and must be treated as eliminated from the case by the verdict of the jury; in fact, it is not insisted upon here as a defense upon which reversal of the judgment should be ordered.
It is earnestly insisted, however, that the other defense is one which was established by the undisputed evidence, and also that the issues on that branch of the case were not properly submitted to the jury. .
Price resided in St. Francis County, Arkansas, and presented his application to the company in January, 1913, the application being accepted and policy issued by the company on January 25, 1913, and forwarded to its soliciting agent at Forrest City to deliver. Price assigned the policy to Eolfe on February 11, 1913, which was only a short time before Price’s death, the precise date of his death not being stated, but it is stated that it occurred some time within the month of February, 1913.
The theory of the defendants is that the policy was procured from the company pursuant to an agreement between Price and one Terry to the effect that Terry was to pay the premiums and take four-fifths of the policy, leaving one-fifth to the estate, and that an assignment of the policy was to be subsequently executed by Price to Terry; that Terry died before the assignment to him could be executód, and that Eolfe thereupon took Terry’s place in the arrangement, and that Price assigned the policy to him pursuant to the original agreement with Terry. The contention is, in other words, that this ar-' rangement was merely intended as a cloak for a wagering contract, which the law will disregard and treat the policy as void on that account.
Now, out of the conflict of authority on the question of wagering contracts of insurance, this court has taken the position in former decisions that a contract of insurance, taken out in the name of one who has no insurable interest in the life of the person insured, is a wagering contract and void (McRae v Warmack, 98 Ark. 52), but that “any person has a right to procure insurance on his own life, and afterward to assign the policy to another, provided it be not done by way of cover for a wager policy, even though the assignee has no insurable interest in the life of the insured.” Page v. Metropolitan Life Ins. Co., 98 Ark. 340.
In McRae v. Warmack, supra, we said: “The assignment of a policy of insurance to one having no insurable interest in the life of the insured, though issued to one having such interest, will be ineffective and invalid if such assignment was made in pursuance of an agreement made at the time of the-issuance of the policy.”
According to these decisions, the assignment to Rolfe was valid, even though he had no insurable interest in the life of Price, provided it was not done pursuant to such an agreement, entered into at the time of the issuance of the policy, as would render it a wagering contract. There is very little, if any, testimony tending to show that Rolfe had anything to do with the issuance of the policy or at that time was in any manner interested in it. But that question was submitted to the jury, and the verdict settles it in favor of the plaintiffs. The court properly instructed the jury that if Price took out the policy on his own life, payable to his executor, administrator or assigns, and afterward assigned it to Rolfe, the assignment was valid.
Defendants asked the court to give the following instruction, which was refused:
“No. 5. If you find from the evidence that the insurance in this case was taken out by an understanding between Wm. L. Price and Bonner Terry,, with the understanding and agreement that the premiums should be paid by Bonner Terry and the policy assigned to him, said Bonner Terry taking a part of the insurance in the event of the death of the said Price, and the balance being paid to the estate of said Price, the said Bonner Terry at the time having no insurable interest in the life of Price, and you further find that the policy was issued in furtherance of this arrangement; then you are instructed that the policy was a wagering contract, and was unlawful and void, and your verdict will be for the defendants, even though you should find that plaintiff, E. A. Rolfe, did not participate in the arrangement for the issuance of the policy, between Terry and Price.”
The effect of that instruction was to tell the jury that the alleged agreement between Price and Terry avoided the policy, even though nothing was done after the issuance of the policy to effectuate that agreement. Such is not the law. If the policy was valid in the hands of Price, he had the legal right to assign it to Rolfe, even though the latter had no insurable interest.
The question, therefore, is whether the policy, at the time of the assignment to Rolfe, was' a valid one in the hands of Price.
If Price had assigned the policy to Rolfe pursuant to the original agreement with Terry, it would have amounted to a mere cloak or subterfuge to cover up a wagering contract, and the law would declare it invalid.; but this instruction declared the policy to be invalid, even though it was never assigned to Terry nor to Rolfe pursuant to the agreement with'Terry. The testimony on this point can not be said to be undisputed. The soliciting agent testified that when he received the policy, he delivered it to Price in the presence of Terry, but he explained further that he did not actually hand the policy to Price, but kept it in his possession for Terry’s benefit. He states that Price told him at the time not to deliver the policy to Terry. There is also some confusion in the testimony of the soliciting agent as tp whether the premium was paid to him by Price, or by Terry. The agent actually kept the policy in his possession, but he stated that he had delivered it to Price. We think Ms testimony is undoubtedly sufficient to show that there was a sufficient delivery to make a binding contract on the part of the company. The agent who obtained the policy retained it until after the death of Terry and until the assignment was executed by Price to" Rolfe, when he turned the policy over to the latter. The jury might have found that Price never did anytMng toward carrying out Ms alleged agreement with Terry to assign the policy to him. They might have found that he never intended to do so, or that he borrowed the money from Terry to pay the premium, and, at most, only intended to assign the policy to Terry, as security for the debt, which he had a right to do without invalidating the policy.
Whether the delivery of the policy to Terry, or its remaining in the hands of the agent for the benefit of Terry with Price’s consent without formal assignment in writing, would have been sufficient to constitute a wagering contract we need not decide, for, as before stated, the testimony is not undisputed on that point, and this instruction does not submit that issue to the jury. It merely tells the jury that if such an agreement had been entered into between Price and Terry, it would have rendered the policy void, even though nothing was done toward carrying out that agreement, and the policy was subsequently assigned to Eolfe without any participation on his part in that agreement. It certainly is not the law that the policy could be rendered void by an unexecuted agreement between Price and Terry merely because that agreement would, if performed, have constituted a wager contract. 'Something had to be done in performance of the agreement in order to render the policy void as a wager contract, and if Price did nothing in performance of his alleged unlawful contract with Terry, the policy issued to him by the company was valid, and he had the right to assign it to some other person. The instruction, therefore, was clearly incorrect, and the court properly refused to give it.
Our conclusion, therefore, is that the ease was properly submitted to the jury, and that the verdict should stand.
Te jury did not determine how much of the policy should go to the administrator and how much to Eolfe, nor need we decide that matter here. Judgment affirmed.
Kirby, J., dissents. | [
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Battle, J.
This action was brought in the circuit court of Miller county, in this State. The style of it, as it appears in the complaint, is as follows: “John Hallum, plaintiff, vs. The Southern Building & Doan Association, of Knoxville, Tenn., and S. M. Johnson, defendants.” The summons in it commanded the sheriff of Monroe county to “summon W. T. Tucker, State agent of the Southern Building & Doan Association, to answer on the first day of the next November term of the Miller circuit court, which will be the 28th day of November, 1892, a complaint filed against the Southern Building & Doan Association and S. M. Johnson, general manager, in said court, by John Hallum.” It was returned to the clerk of the Miller circuit court with the following indorsements thereon:
I hereby certify that, on this 24th day of September, 1892, I have duly served the above and hereto attached writ of summons by delivering a copy and stating the substance thereof to the within named W. T. 'Tucker, State agent of the Southern Building & Loan Association, in Monroe county, Arkansas.
T. T. Bateman, Sheriff,'
By R. J. Hankins, Deputy Sheriff.”
"“State of Arkansas,
County of Monroe.
I hereby certify that on this 24th day of September, 1892, I have duly served the within writ by delivering a -copy and stating the substance thereof to the within named parties in Monroe county, Arkansas.
T. T. Bateman, Sheriff.
By R. J. Hankins, D. S.”
Up to this time there is no pretense for saying that the summons was served on the Southern Building & Loan Association. The sheriff was not commanded to •do so. After the return of the summons plaintiff dismissed his action as to Johnson, and amended his summons so as to require the sheriff to summon the Southern Building & Loan Association, but it was never served again. The defendant failing to appear, the court rendered a judgment by default against it in favor of the plaintiff for $1000. The Association, refusing to appear, moved the court to set aside the judgment. The court denied the motion, and the defendant appealed.
The appellee probably intended that his summons ■should be served on the appellant by the delivery of a copy thereof to W. T. Tucker, as its agent, and stating the substance of the same. Construing it in this manner, was the service of the summons, as shown by the •return, sufficient in law to sustain the judgment by ■default?
The appellant had the right to insist upon a valid * ‘.summons, and a legal service thereof, before it was bound to appear and answer the complaint in this action, or suffer the consequences of a failure to do so.. Until it was legally served with process, the court was not warranted in rendering the judgment by default. The object of the return was to show to the court whether the summons was properly served, and the defendant had been informed of the pendency of the action in the manner prescribed by law. Unless it did so with reasonable certainty, the court did not legally adjudicate its rights in its absence. Gilbreath v. Kuykendall, 1 Ark. 50; Dawson v. Bank, 3 Ark. 505; Bruce v. Arrington, 22 Ark. 362; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 23; Aiken v. Mariposa Mining Co. 6 Cal. 186; Alexandria v. Fairfax, 95 U. S. 780.
When a statute provides that the service of a summons for a corporation shall be served on a certain kind of an agent, the return must show that service was made upon an agent of the class designated by the statute. “Thus when the statute provides for service of process upon the ‘nearest station or freight agent ’ of a railroad company, a return of service ‘ on the nearest, agent ’ is not sufficient. Haley v. Hannibal, etc. R. Co., 89 Mo. 112. So when the State authorizes service on ‘a. regular ticket or freight agent,’ the return is insufficient if it fails to state that the ticket agent served was a ‘regular’ one.” Tallman v. Baltimore etc. R. Co. 45 Fed. 156; Dickerson v. Burlington etc. R. Co. 43 Kas. 703; Chicago Planing Mill Co. v. Merchants' Nat. Bank, 86 Ill. 587.
This was an action in personam, and the appellant is a foreign corporation. We know of no statute under which a summons in such a case can be lawfully served on an agent of the defendant out of the county in which the action was brought, except section 1323 of Sandels- & Hill’s Digest, which provides: “Before any foreign corporation shall begin to carry on business in this State, it shall, by its certificate under the hand of the president and seal of such company, filed in the office of the Secretary of State, designate an agent, who shall be a citizen of this State, upon whom service of summons and other process may be made. Such certificate shall also state the principal place of business of such corporation in this State. Service upon such agent shall be( sufficient to give jurisdiction over such corporation to any of the courts of this State.” The return upon the summons in this case does not show that W. T. Tucker was designated as such agent. He may have been the agent of the appellant for the entire State for certain purposes, but not for receiving service of process. There might have been others whose agency extended over the entire State, but did not comprehend that mentioned in section 1323. Hence it does not appear, in the return upon the summons in this suit, that Tucker was designated an agent to receive service of process, and that a summons in an action in the Miller circuit court could be lawfully served upon him in Monroe county. Consequently, there is no return upon which the judgment by default against the appellant can be based.
The filing of the motion to set aside the judgment i_ üji r . . . because ox the want of the jurisdiction of the person of the- defendant was no appearance in the suit, or waiver of service of the summons, or of notice. Baskins v. Wylds, 39 Ark. 347.
The judgment of the court below is, therefore, reversed, with costs; and the cause is remanded to the Miller circuit court, to be proceeded in by that court as if the appellant was duly served with process in this action. | [
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Wood, J.,
(after stating the facts). 1. Appellant contends that the deed in controversy is an absolute conveyance, and relies upon Bain v. Parker, 77 Ark. 168. In that case the deed was as follows: ■ “The grantors, in consideration of one dollar and the further consideration of the building, equipping and operating a line of railroad, etc., to be completed by January 1, 1899, have granted, bargained, sold and conveyed,” etc. In that case we held that the words “to be completed by January 1, 1899,” when taken in connection with the other provisions of the deed, did not amount to a condition subsequent. We said: “There are no words indicating that the estate should he forfeited if the road was not completed at the date named. These words import nothing more than a covenant, which, upon the acceptance of the deed by the grantee, became binding upon him, and for the breach of which the grantor may recover damages suffered thereby, but the deed remains valid.”
The language of the deed under review in that case relied upon as showing a, condition subsequent was entirely different from the clause of the deed now under consideration. In that case the words “to be completed by January 1, 1899,” were not conditions upon which the title was forfeited. As was there said, they only amounted to a covenant to do certain things, but there was nothing to indicate that if the things prescribed were not performed the title in the grantee would be forfeited and would revert to the grantor. But here the provision “when it shall cease to be used as such (section house) the title to the land shall revert,” expresses a condition subsequent, upon the happening of which the title is to revert to the grantor. The words “when it (the section house) shall cease to be used as such” are clearly words expressing a condition, and the words “the title to the land shall revert to and vest in S. H. Curtis,” clearly express the intention of the parties to the deed that the title should revert to and vest in the grantor upon the happening of the condition.
Here the undisputed evidence shows that appellant did cease to use the section house as such before it removed the same from the premises, and therefore, under the express terms of the condition, the title reverted to and was vested in the appellee.
The qualified or base fee which the appellant had under the deed terminated upon the breach of the condition subsequent. The evidence shows that the condition subsequent was not complied with, and that the estate reverted before appellant moved the house from the land. Upon a breach of the condition subsequent, ipso facto the title reverted and was vested in the appellee, and it was not necessary for the appellee to take possession of the land in order to effect a forfeiture for failure on the part of the appellant to comply with the condition. See Moore v. Sharpe, 91 Ark. 407.
The undisputed evidence shows that the appellee did take possession of the land and declare a forfeiture for the condition broken before appellant moved the house.
2. Appellant contends that the house in controversy was not a fixture, and therefore appellant had the right to move the same, without regard to the title to the land. But we ■ are of the opinion that the clearly expressed intention of the parties as gathered from the language of the deed was that the section house should be erected on the land and used as a section house, and this being the very purpose of the deed, the trial court was correct in holding as matter of law, under the language of the instrument, that the section house was a fixture. See Ozark v. Adams, 73 Ark. 227, and cases cited.
3. The house in controversy being a fixture, the evidence was sufficient to sustain the verdict of the jury as to the value thereof.
The judgment is therefore correct, and it is affirmed. | [
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Hughes, J.
On June 11, 1891, the appellee filed her complaint, and on July 25 she filed an amended complaint in which she alleged that, on the 9th day of April, 1888, the defendant Lonergan sold the following described real estate to Edwin Lorentz, to-wit: Lot 6, less 100 feet front on Cumberland street on north side of said lot 6, and running east to lot 4, said 100 feet having been sold to Thomas McIntosh, also W | of lot 5, all in F. P. Law’s addition to the town of Beebe, and situated on Main street, and in the SE £ NE * SW |, Sec. 8, T. 5 N., R. 8 W. in White county, for the consideration of $2000; and that the said Lonergan, by deed of that date, did warrant and agree with the said Lorentz, his heirs and assigns, that he would forever warrant and defend the title to said land against all lawful claims whatever, and that said lands were free from all liens and incumbrances; that said Lorentz, afterwards, on the 18th day of October, 1888, by deed of that date, conveyed said lands to the plaintiff for the sum of-dollars ; that she and the said Lorentz have kept and performed their said covenants, but the said Lonergan did not, nor would, keep his covenants with the plaintiff, she being the assignee of the said Lorentz ; that said Lonergan had not warranted and defended the premises to the plaintiff, but, on the contrary, at the time of the execution of said deed and covenant to said Lorentz, said lot 6 had been forfeited and sold to the State of Arkansas at tax sale, and afterwards purchased from the State by R. W. Martin; that defendant had full knowledge of the execution of the title and claim of said Martin at the time he executed said deed and covenant; that said Martin lawfully claimed said lot by paramount title, and afterwards, in an action brought by him in the circuit court, which cause for equitable reasons was transferred to the chancery court, and on the 8th day of June a decree was rendered against her adjudging the title of the said Martin to be paramount, and that Martin was entitled to the possession of said property, and ordered that possession thereof be delivered to him ; that Lonergan had due notice from plaintiff of the pendency of said suit to evict her from said premises, but did not defend the same, and that afterwards she was evicted from said premises by the said Martin; that she had no notice, and had never heard, of the claim of said Martin until the bringing of the said suit.
To this Lonergan filed a demurrer and answer as follows : The answer denies that Lonergan and Lorentz had not performed and kept their covenants, and that Lonergan had not kept and performed his covenants with the plaintiff, and avers that he had kept every covenant and warranty set forth in his said deed to said Lorentz; denies the forfeiture to the State, and purchase by Martin, of lot 6 of F. P. Law’s addition to the town of Beebe ; and says that the forfeiture of the lot, under which Martin purchased of the State, for the taxes of 1884, was void; that he had paid the taxes on same for that year, and that, at the time Lorentz conveyed the same to the appellee, it was free from all incumbrances ; denies that Lonergan had any legal notice of the pendency of the suit for confirmation of Martin’s tax title, and says that, though appellant was in possession of the lot, she failed to notify the appellant of the pendency of said suit for confirmation, and that he was not requested to defend in said' suit; the answer avers that he was not requested or notified to defend in the suit in ejectment brought by Martin against the appellant, but admits that he had knowledge of the pendency of some kind of a suit by Martin against the appellee. The answer submits that appellee, being in possession of the lot, had, or should have had, knowledge of the suit by Martin for confirmation of his tax title, and that she could have shown that the taxes were paid by him on the lot for 1884, and that this would have been a complete defense to Martin’s suit for confirmation, he having purchased the lot upon a pretended forfeiture of the lot for the non-payment of the taxes of 1884, but that she neglected to make such defense; that the proceeding for confirmation was without foundation, the taxes for 1884 having been paid; that the pretended eviction of the appellee was based upon this decree of confirmation ; that it was upon a title acquired, if any was acquired, after his conveyance to Lorentz, and for which he is in no way responsible. The answer concludes with a demurrer to the complaint.
The facts are that the lot was assessed for taxes for the year 1884, in the name of Thomas Lonergan, as “lot 6 SE. NE. SW. .Sec. 8, T. 5 N., R. 8 W., and for the same year it was assessed, in the name of ---Stockton, as “lot 6, F. P. Law’s addition to the town of Beebe.” Upon the lot, as assessed to him, Lonergan paid the taxes of 1884, including corporation tax of the town of Beebe, as shown by his tax receipt in evidence. Upon the assessment to Stockton for said year, the lot, as assessed to him, was forfeited to the State for the non-payment of taxes. Upon that assessment, R. W. Martin bought the lot of the State upon this forfeiture; brought an ex parte suit for confirmation of his title; obtained a decree of confirmation; brought suit in ejectment for the lot against Mrs. E. E. Baber and one McIntosh, which was transferred to equity, where he obtained a decree and writ of possession for the lot, to which Mrs. Baber surrendered, and brought this action for breach of cove nants against Ponergan, and recovered in the sum of $1950, to reverse the judgment for which Ponergan has appealed to this court.
It is urged that the description of the lot, as assessed ;p,onergan) an¿ Up0n which he paid the taxes of 1884, was so indefinite and uncertain that from it the land could not be identified or located, and that, therefore, his payment of taxes upon that description was, in contemplation of law, no payment upon lot 6, F. P. Paw’s addition to the town of Beebe, which was the accurate description of the lot, and that therefore the forfeiture based on this description was valid. It is shown by the testimony of F. P. Paws that he owned the SB ¶ NB k SW I Sec. 8, T. 5 N., R. 8 W., and was familiar with the location of lot 6; that he had this land platted as an addition to the town of Beebe; that it is within the corporate limits of the town of Beebe; that lot 6 SB, NB, SW, Sec. 8, T. 5 N., R. 8 W., is the same as lot 6, F. P. Paw’s addition to the town of Beebe; that it can be identified or located as well by one description as the other. So also said, in substance, J. S. Smith, in his testimony, as to the identification by one description as well as by the other ; and {here was but one lot six in Paw’s addition to the town of Beebe; that it is the identical land described in the complaint in this cause. The tax receipt of Ponergan for the taxes for the year 1884 upon this lot shows that it is in “Beebe.”
The extrinsic evidence, in connection with the description in this tax receipt, shows clearly that the two descriptions apply to lot 6, F. P. Paw’s addition to the town of Beebe, and that the description upon which Ponergan paid the taxes for 1884 was sufficient to enable the owner, or any one else, to identify the lot upon.which he paid the taxes for 1884 as lot 6, F. P. Paw’s addition: to the town of Beebe. It is true that an assessment which does not identify the land is said to be void, but evidence aliunde is admissible to identify. Marsh v. Nelson, 101 Pa. St. 51. The test is this : “Is the description sufficient to identify the land, and give notice to the owner of its assessment, or is it so defective that it might probably mislead the owner?” Tallman v. White, 2 N. Y. 66; Yenda v. Wheeler, 9 Tex. 408. An assessment is void when it entirely fails to lead to identification. Glass v. Gilbert, 58 Pa. St. 266; Lyman v. Philadelphia, 56 Id. 488. “If the land be so inaccurately described as to render its identity wholly uncertain, the proceedings are void. If the ambiguity is patent, no extrinsic evidence will aid it. But if the ambiguity is latent, parol evidence is admissible to render the matter certain, whether the faulty description be in the tax bill, the judgment, or the deed, or in all. If, however, with all the aid of extrinsic evidence, the identity of the land is uncertain, the proceedings are void. A description that will identify the land without difficulty is essential to the validity of the assess ment roll, and the notice and deed must follow, substantially, the assessment description; otherwise, the owner is deprived of the notices required by law.” 1 Blackwell on Tax Titles, sec. 249.
We hold that the description upon which Lonergan paid—aided by the evidence aliunde—was sufficient, and find that he paid taxes for 1884 upon lot 6, F. P. Law’s addition to the town of Beebe, and that therefore the forfeiture of this lot for taxes was void, and that R. W. Martin obtained no title to it by virtue of his purchase alone from the State, based on this forfeiture.
But, by the decree confirming Martin’s title under this purchase, all controversy as to his title is barred ; it is res judicata, and cannot be controverted now. It is settled by this decree that his title, founded upon his purchase under the forfeiture for taxes for 1884, cannot be disputed by either the appellant, or the appellee. But does this prevent Bonergan from showing that the lot was free from incumbrances when he sold, and that his covenant against incumbrances has not been broken ? It is said that the decree of confirmation is a decree in rem, and binds the “whole world.” It is.true, in a general sense, that a decree strictly in rem does bind all the world. But Bonergan was not a party, actually or by legal intendment, to this confirmation proceeding. He had parted with title to the lot proceeded against in that proceeding, and had conveyed his whole interest to the appellee before this decree of confirmation, and claimed, at the institution and during the pendency of the confirmation proceedings, no interest in or title to the land.
Section 577 of Mansfield’s Digest provides that “the purchasers, or the heirs and legal representatives of purchasers, at all sales which have been, or may hereafter be, made may, when such lands are not made redeemable by any of the laws of this State applicable to such sales, or, if redeemable, may, at any time after the expiration of the time allowed for such redemption, publish six weeks in succession, in some newspaper published in this State, a notice calling on all persons who can set up any right to lands so purchased, in consequence of any informality or any irregularity or illegality connected with such sale, to show cause, at the first circuit court which may be held for the county in which such lands are situated six months after the publication of said notice, why the sale so made should not be confirmed, which notice shall state the authority under which the sale took place, and also contain the same description of the lands purchased as that given in the conveyance to the buyer, and shall further declare the price at which the land was bought, and the nature of the title by which it was held.”
Section 581 of Mansfield’s Digest provides that “the judgment or decree of the court confirming said sale shall operate as a complete bar against any and all persons who may hereafter claim said land in consequence of informality or illegality in the proceedings ; and the title to said land shall be considered as confirmed and complete in the purchaser thereof, his heirs and assigns forever; saving, however, to infants, persons of unsound minds, imprisoned beyond seas, or out of the jurisdiction of the United States, the right to appear and contest the title to said land within one year after their disabilities may be removed.”
The notice required by sec. 577 is a notice calling upon all persons who can set up any right to the lands so purchased, etc. This was not, therefore, a notice which made it obligatory upon Donergan to defend the proceeding for confirmation; and while the decree of confirmation operates “as a complete bar against any and all persons who ‘mig-ht, after its rendition,’ claim said lauds in consequence of informality or illegality in the proceedings,” except persons in whose favor there is a saving clause in the statute, as provided in said section 581, Mansfield’s Digest, yet it does not operate to preclude Donergan from controverting, in this suit for breach of covenants of warranty, the truth of the material facts upon which said decree of confirmation is based. It is not conclusive as to Donergan in this suit. He has no interest in and makes no claim to the land. Our statute seems framed to cover such a case. In Durant v. Abendroth, 97 N. Y. 141, it is said, speaking of a judgment in rem : “But it is not universally settled that the judgment is conclusive as to the facts or allegations upon which it is founded. In some of the States of the Union, and especially in the State of New York, though there are decisions to the contrary in the courts of Bngland and in the United States courts, it has long been settled that foreign judgments in rem are conclusive only as to the property involved, and may be controverted as to all the grounds and incidental facts on which they profess to be founded.” So we hold the law to be, under our statute for confirmation of tax titles, without entering upon a discussion of cases.
The judgment in ejectment is not conclusive here against Nonergan, for the reason that the decree of confirmation of Martin’s tax title was conclusive as to the question whether Martin’s title to the lot was paramount to the appellee’s, the defendent in the ejectment suit, through whom only Lonergan could have defended in that suit.
It follows that the judgment in this case must be reversed, and it is so ordered. Judgment will be entered here for the appellant, with costs. | [
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Jim Johnson, Associate Justice.
This is an appeal from a Chancery Court Decree ordering partition by sale of certain lands in Baxter County.
The appellant makes two contentions: (a) The trial court erred in overruling a motion to dismiss appellees’ complaint; (2) The evidence did not justify a partition by sale.
Appellants’ first argument is based upon an assertion that the appellees had no title and therefore could not maintain the action. This contention is bottomed upon provisions of a contract for the sale of an undivided one-half interest in the lands by persons who are the common source of title of all parties to this appeal. In the motion to dismiss, it was alleged that the interest in the lands claimed by appellees had been conveyed to the appellees’ intermediate predecessors in title pursuant to the terms of a contract which contained a covenant that certain work would be done upon the lands. As indicated, this contract was between parties who then owned all the lands in question and parties through whom appellees claimed their undivided one-half interest.
The motion to dismiss contained an allegation that the work had not been done thereby resulting in a failure of consideration. It was then alleged that because of this failure of consideration the appellees’ predecessors had lost their title and that for this reason appellees acquired no title.
Appellees meet appellants ’ first contention with five counter arguments, all of which contain merit. It would unduly extend this opinion to discuss all of appellees’ contentions, therefore we will only treat with the one we find to be the most conclusive, i.e., “Appellants waived any right to question the title of appellees by stipulating upon the trial that appellees owned an undivided one-half interest in the lands in question.” Page 31 of the record shows the following stipulation:
“It is stipulated and agreed by and between the plaintiffs Claude Kirksey and Mildred Kirksey, and the defendant James E. Geary that the defendant James E. Geary is the owner of an undivided one-half interest . . . and that the plaintiffs Claude Kirksey and Mildred Kirksey are the owners of an undivided one-half interest in and to the lands described in the complaint and the answer subject to any typographical error.” Having so stipulated, it follows that appellant is precluded from questioning the trial court’s ruling on the motion to dismiss or to question appellees’ title. Orr v. Weaver, 203 Ark. 1147, 158 S. W. 2d 272.
As to the sufficiency of the evidence to support the decree, we cannot escape the conclusion that the evidence was overwhelmingly in favor of appellees.
An examination of the record shows that the land in question consists of two long narrow strips referred to in the testimony as “runways.” These runways intersect each other at an angle of approximately 115 degrees. One runway runs generally north and south, while the other runs generally east and west. The north-south runway is approximately 2,650 feet in length and 150 feet in width. The east-west runway is approximately 2,550 feet in length and 150 feet in width. The east-west runway is considerably closer to Lake Norfork than is the north-south runway.
We find the rule for determination of this evidentiary question aptly Stated in Nutt v. Strickland, 232 Ark. 418, 338 S. W. 2d 193, wherein it is said:
“As we have frequently stated, the Chancellor heard the witnesses, observed their demeanor on the stand and was therefore in a better position to judge the weight of the evidence. See: Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The findings of the Chancellor on a fact question, of course, will not he disturbed unless clearly against the preponderance of the evidence. ’ ’
Therefore, it would be our duty to affirm even if the evidence were evenly balanced. However, as heretofore indicated, we are of the opinion that the evidence preponderates strongly in favor of appellees. Without going into minute detail, the evidence shows that the land has comparatively little value for farming purposes whereas it has a substantial value for use as airplane landing strips. It is further shown that the land could not, as a practical matter, be utilized for an airport except as a unit because of terrain and changing winds which from time to time would require the use of one strip rather than another. There was other testimony showing that because the east-west runway was closer to the lake, it would have more value than the north-south runway, even if its use for an airport was not considered. There was even testimony that the lands comprising the two strips were unequal in fertility if used for agricultural purposes. The very dimensions of the land in question would militate against an equitable division in kind. This is because the runways are too narrow to be split in the middle and still utilized for landing strips. There was evidence to show that because of inaccessibility the lands had practically no value except as landing strips. The principal appellant impliedly recognized that the highest value of the land was for use as airstrips but stated that the land could be divided in kind without prejudice as to either party. In this latter assertion, he was contradicted by a host of witnesses. Suffice it to say there was ample evidence to justify a finding that the land could not be divided in kind without prejudice to the owners. Our statute (Ark. Stats. § 34-1826) authorizes a sale under these conditions. In 68 C. J. S., Partition, § 127 (E) P. 196, it is said:
‘ ‘ The effect on the value of the property of division in kind is a factor of major importance in determining whether the land is equitably divisible so as to preclude a sale for partition.”
In Hadfield v. Kitzmann, 223 Ark. 459, 266 S. W. 2d 801, which was a suit for partition wherein the appellant asserted the land should be divided in kind, we said, in part:
‘ ‘ There is also much evidence to show that the value of all five buildings would be materially diminished if three were divided in kind and the other two sold. The resulting separate ownerships would entail a loss of economy in management and would leave each proprietor exposed to the threat of rent reductions on the part of someone else. Without reviewing the testimony in greater detail, we think it sufficient to say that the Chancellor’s decision on the main issue is not contrary to the preponderance of the evidence.”
In applying the law to the evidence on this question, we must agree with the learned Chancellor that equity requires a partition by sale.
Affirmed. | [
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Man^Eield, J.
1. Several of the State’s witnesses swore that the fence erected in 1892, and constituting the obstruction charged in the indictment, inclosed ground which had been used continuously by the public, as part of the Fort Smith and Waldron road, for more than seven years next before the time when that fence was built. The court’s second instruction, as to the establishment of a highway by prescription, was applicable to this testimony, and it was not therefore objectionable on the ground that it was abstract. Patton v. State, 50 Ark. 53. A preponderance, however, of all the evidence appears to show that the way obstructed in 1892 was not used prior to 1886.
2. The third instruction of the court was as fol-_ _ lows i I he evidence ior defendant showed that a pub-lie road was regularly surveyed and opened about 1865 across defendant’s land; that in 1886 defendant ran a fence, which crossed this road diagonally, and deflected the travel from the old road until it reached the corner of the fence, where it turned back in the old road, and that the distance between the old road and the line of travel along the outside of the fence at the widest part was about forty or fifty feet. Now, if you find that when defendant built his fence in 1886, the public acquiesced in the change, and traveled along the outside of the fence as a public road, and that it was worked or traveled over for work by the overseer and hands as such, then this constituted a public road by dedication and acceptance, and, if defendant fenced it up, it was obstructing a public road.”
The defendant was not prosecuted for obstructing any part of the original road-bed, but for building a fence across the way traveled by the public to avoid the fence he built in 1886 ; and, for the purpose of the third instruction, the way thus used is treated as a new and distinct road. If it was a public road, it became such, according to the testimony of a majority of the witnesses, by dedication, and not by prescription ; and the verdict of the jury-may therefore have depended, so far as we can see, entirely upon whether they believed the new road had been established as a public rohd by dedi- ‘ cation. Upon this question they received no charge, except that embraced in the third instruction ; and that instruction, it will be noticed, does not require them to find as a matter of fact whether the defendant intended to dedicate the land occupied by the new road-way or not.
The dedication of land for a highway consists of its appropriation to that use by the owner, and its accept anee by the public. These two acts are of equal importance, and both are essential. And. Law Die. 324; 2 Greenleaf Rv. sec. 662. The owner cannot convert his land into a public highway without the consent of the public ; nor can the public dedicate it before he has ‘1 in some way ” clearly assented to the dedication. Irwin v. Dixion, 9 How. (U. S.) 30; McCormick v. Mayor, 45 Md. 524; Steele v. Sullivan, 70 Ala. 593; Connehan v. Ford, 9 Wis. 240.
“No specific length of possession is necessary to constitute a valid dedication;” but “an intent on the part of the owner to dedicate is absolutely essential, and . unless such intent can be found in the facts and circumstances of the particular case, no dedication exists.” 2 Dill. Mun. Corp. secs. 631, 636.
Many other authorities might be cited to show that ■“ the vital principle of dedication is the intention to dedicate.” Ang. Highways, sec. 142. And where that intention is not expressed in writing and without ambiguity, the question whether it existed is one of fact for the jury. 1 Thomp. Trials, secs. 1333, 1355.
In the present case there was no “express manifestation ” or declaration of a purpose to dedicate, and the int'ent to do so can only be proved by inferring it from the circumstances. We cannot say from these that the evidence is conclusive against the defendant, and it was his right to have the jury pass upon its sufficiency to justify the inference insisted upon by the State.
As the third instruction does not submit the question of intention in any form, it was error to give it.
Reversed.
. Cited, in Ward v. Farwell, 6 Col. 69.
. See also Elliott’s Roads, 121; 5 Am. & Eng. Ene. Law, p. 400 ; 2 Greenleaf, Ev. sec. 662; 58 Wis. 274; And. Daw. Die. 324.
. Elliott, Roads, pp. 90, 91, 121.
. Const, art. 7, sec. 23; Haley v. State, 49 Ark. 153; Smith v. State, 50 Ark. 545. | [
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Battrr, J.
The defendants, John T. Hardie & Co., being factors and commission merchants, doing business in the city of New Orleans, in the State of Louisiana, entered into an agreement with the plaintiffs, who were cotton planters in the State of Arkansas, by which they undertook to advance to plaintiffs large sums of money for the purpose of aiding them in raising-cotton, and plaintiffs agreed to repay the same with interest thereon at the rate of ten per centum per annum, and to ship to the defendants, John T. Hardie & Co., at least two hundred bales of cotton to be sold by them, or, in default thereof, to pay one dollar and twenty-five •cents per bale on such number as they should fail to ship according to their contract. ' To secure the performance of their promises they executed a deed of trust, in which J. B. Hayes was named as trustee. They failed to perform their contract. Of the two hundred bales of cotton they shipped only fifty-six, and ‘ failed to repay the money advanced to them. After the lapse of several years, the trustee undertook to sell the property conveyed by the deed, in pursuance of the authority thereby vested in him, for the purpose of paying" the amount secured and still unpaid, and plaintiffs instituted an action in equity against the trustee and Hardie & Co. to enjoin the sale. The ground upon which they sought to prevent the sale was usury. They insisted that the agreement to ship cotton was a'device to-avoid the penalty of usury, and that the one dollar and twenty-five cents were really intended to be paid as interest. The chancery court, after hearing the evidence-adduced by both parties, held otherwise, corrected the account of Hardie & Co. against the plaintiffs for advances made, and rendered a decree directing the foreclosure of the deed of trust; and plaintiffs appealed.
To prove that the contract of Hardie & Co. and appellants was usurious, it must be shown that it was-for a greater rate of interest than' ten per cent, per annum. Appellants contend that this was shown in the-deed of trust by the stipulation to ship two hundred, bales of cotton, or, in default thereof, to pay one dollar and twenty-five cents on every bale which was not shipped according to the contract. To sustain this contention, it was incumbent on them to show that the one-dollar and twenty-five cents were intended to be a compensation for the use of the money advanced or loaned to them by Hardie & Co.
The evidence shows that Hardie & Co. were commission merchants in the city of New Orleans, engaged in the business of selling cotton on commissions. They were engaged in a legitimate business, and had the right to loan their money, and at the same time to stipulate-with the parties to whom it was loaned for the incidental' advantage of acting as commission merchants for the-sale of the cotton which the borrower was to be enabled to raise by the use of the monej^. Such contracts being lawful, the burden of proof was upon the appellants to- show that the contract as to the two hundred bales of cotton was intended as a device to cover up usury. But they failed to do so.
The evidence shows that the appellants were cotton planters engaged in making cotton, and that the money advanced to them was loaned for the purpose of aiding them in this business. At the time the contract to ship cotton was entered into, one dollar and twenty-five cents per bale was the commission usually charged and received by commission merchants for selling cotton in the city of New Orleans, where the cotton was to be sold; and Hardie & Co. reasonably expected the cotton to be shipped to them. Under the circumstances, the contract was a valid agreement. It was in effect an agreement upon the part of appellants to ship the two hundred bales in consideration of the undertaking of Hardie & Co. to sell the same, and in the sale.thereof to use due care and skill, and that Hardie & Co. should be entitled to receive and recover the one dollar and twenty-five cents per bale, in the event appellants should fail to perform their contract, as liquidated damages sustained by them on account of the breach, and not as interest for the loan of the money. Cockle v. Flack, 93 U. S. 344; Norwood v. Faulkner, 22 S. C. 367; Matthews v. Coe, 70 N. Y. 239; Woolsey v. Jones, 84 Ala. 88; Harmon v. Lehman, 5 So. 197; Dozier v. Mitchell, 65 Ala. 511.
Decree affirmed. | [
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Carleton Harris, Chief Justice.
Maxine Miles, appellant herein, is a citizen, resident, and taxpayer of the city of West Memphis, and owns real and personal property therein. Appellees are the qualified and acting members of the State Reserve Fund Commission. The interveners are the Boards of Trustees of the University and state supported colleges. Appellant, proceeding as a taxpayer, instituted suit in the Chancery Court of Pulaski County, seeking a declaratory decree holding Act 65 of 1961 unconstitutional, and further asking an injunction to prohibit appellees from complying with, or in any manner carrying out, the provisions of said act. The court sustained a demurrer to the complaint and, after appellant declined to plead further, entered a decree dismissing the complaint. From such decree, comes this appeal.
The First Extraordinary Session of the 1961 General Assembly passed Act 65 as a means of financing construction at the various state institutions heretofore mentioned. This legislation was occasioned by the fact that several million dollars are being held in the permanent operating reserve fund (a part of the revenue sta bilization reserve fund), and tbe legislature desired that sucb fund should be used for tbe construction. Tbe money-in tbis fund bas been used to implement a policy of preserving an even flow of moneys to tbe various state agencies. Act 65 was passed as a means to use tbe money, and at tbe same time, maintain tbe advantages of tbe even flow. Tbe act establishes tbe State Reserve Fund Commission and authorizes that Commission to borrow money and issue Certificates of Indebtedness to evidence its debt. Tbe money is to be borrowed from tbe State, acting through tbe State Board of Finance, which bas been investing tbe daily balances of tbe State since tbe approval of tbis practice by tbis Court in 1939. Tbe borrowed money will be repaid with tbe interest received from tbe investment of state funds by tbe State Board of Finance. Tbis interest will be placed into a special fund and pledged to tbe payment of tbe certificates, and is to be tbe sole source from which payment may be made. Tbe money obtained by tbe issuance of tbe certificates will be turned over to tbe chief fiscal officer of the State for use in preserving an even flow of money to tbe various recipients of state funds.
Appellant contends that Act 65 is unconstitutional, and in seeking a reversal of tbe Chancery decree, asserts four points, which we proceed to discuss in tbe order listed in appellant’s brief.
“I.
Act 65 of 1961 Provides for tbe Withdrawal of Funds from tbe State Treasury in tbe Absence of Specific Appropriations and Thus is Contrary to Article 5, Section 29 and Article 16, Section 12 of tbe Arkansas Constitution. ’ ’
Article 5, Section 29, of our State Constitution provides, inter alia, that no money shall be drawn from the Treasury except in pursuance of specific appropriation made by law, and no appropriation shall be for a longer period than two years. Article 16, Section 12, has substantially the same requirement. Under the provisions of Section 8 of Act 65, the interest derived from the investment of daily balances of state funds is pledged to the payment of certificates of indebtedness to be issued by the Reserve Fund Commission, and the certificates are to mature fifteen years from the date of the first certificate issued. Appellant points out that this interest is pledged rather than appropriated, and is pledged for a period of fifteen years, thirteen years, according to her contention, in excess of the maximum period for which an appropriation may be made. Appellant recognizes that this Court has previously held that all public money does not have to be paid into the State Treasury. In Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, we held, “There is no language in our present Constitution which requires that all of the public money shall be paid into the State Treasury. Such a provision exists in the constitutions of some states, but not in our present Constitution.” One of the questions in that case was whether the Constitution required that “cash funds” be deposited in the State Treasury. This Court defined “cash funds” as “those received by the state agencies and institutions from sources other than taxes, as the term ‘taxes’ is ordinarily used”, and declared that the Legislature was empowered to determine whether the State Treasurer should be required to receive all state funds. But, says appellant, the interest here in question is not embraced within the term “cash funds”; rather, since it is interest on tax money, the interest itself falls within the category of tax money. The case of Pomona City School District v. Payne, 9 Cal. 510, 501 P. 2d 822, wherein it was held that the County of Los Angeles could not keep the interest obtained through the investment of school district funds on deposit in the county treasury, is cited. The Court there stated that interest is an accretion or increment to the principal fnnd earning it, and becomes a part thereof. In that very case, however, the California Conrt limited this generally recognized concept of law by stating that interest is an accretion to the principal fund earning it, and becomes a part thereof “unless lawfully separated therefrom.” The Court said, “In fact, the rule of law would control that the right of depositors to their interest increments could not be taken away without direct statutory authority to that effect.” We concur with that statement of the law. Here, we think it immaterial how the interest may be designated, be it “cash funds”, or by some other name. The pertinent questions are whether the General Assembly had the authority to determine whether certain funds shall be paid into the State Treasury; whether the Legislature likewise had the authority to lawfully separate the interest in question from the invested tax funds that produced it, and whether the interest must be classified as “taxes.”
It is apparent from a study of the decision rendered in Gipson v. Ingram, supra, that the Court’s conclusions were based on the holding that the Legislature had the authority to determine whether certain designated funds should be paid into the State Treasury. We are likewise of the opinion that the Legislature is not prohibited by our Constitution from separating the interest from the principal and pledging it, as in Act 65. For that matter, taxes and interest are not the same. Taxes are enforced contributions exacted pursuant to statutory authority, while interest is the price paid by a borrower for the use of what he borrows, generally a percentage on the principal amount. We hold that interest, when separated from the principal by legislative enactment, is not “taxes”, as the term is ordinarily used, and there is no requirement that this interest be deposited in the State Treasury; this being true, there is no necessity for the biennial appropriation.
Appellant devotes several paragraphs to possible abuses that might arise where independent state commissions are entrusted with public moneys, and over which the Legislature exercises no control with regard to the expenditure of the funds. However, in determining constitutionality of acts, we are not permitted to pass upon the wisdom of the legislation. This is the prerogative of the Legislature. As was stated in Atkins v. Kansas, 191 U. S. 207:
“So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people’s representatives. ’ ’
“II.
Act 65 Provides for the Issuance of Certificates of Indebtedness to Which Revenues of the State are Pledged Without Approval by the Electors of the State and is Therefore Contrary to Article 16, Section 1 as Amended by Amendment No. 13, and Amendment 20 to the Arkansas Constitution.”
Article 16, Section 1, of the Arkansas Constitution provides, inter alia, that the state shall not lend its credit for any purpose whatever. The answer to that argument is simply that Act 65 does not call for the State to lend its credit. The obligation arising under Act 65 is solely that of the Reserve Fund Commission. In Brown v. The Arkansas Centennial Commission, 194 Ark. 479, 107 S. W. 2d 537, the same contention was made in an attack upon Act 180 of 1935. This Court, after citing language of the Act to the effect that no bond, note, or other evidence of indebtedness issued under the Act or created by the Commission should be held or construed as an obligation of the State of Arkansas, stated:
“It is plainly manifest from this language that the bonds to be issued are not obligations of the State, but ‘shall be solely and exclusively the obligations of the Commission in its corporate and representative capacity. ’ This language is too plain to be misunderstood and is not open to construction. So the State is not lending its credit and it is not issuing any interest-bearing treasury warrants or script, and the provisions of said section of the Constitution are not invaded.”
Amendment No. 20 to the Arkansas Constitution provides in part:
“Except for the purpose of refunding the outstanding indebtedness of the state and for assuming and refunding valid outstanding road improvement district bonds, the State of Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State voting on the question at a general election or at a special election called for that purpose.”
Appellant contends that Act 65 violates this constitutional prohibition, asserting that state revenues are pledged without the consent of the qualified electors. We do not agree. This argument is rendered ineffective because of our holdings in Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, Jacobs v. Sharp, 211 Ark. 865, 302 S. W. 2d 964, and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 429. In the first case, we upheld the issuance of bonds by the State Board of Education, to be secured by school district bonds delivered to the State Board of Education as security for loans from the revolving fund. In Jacobs v. Sharp, supra, we upheld the issuance of bonds to finance the construction of buildings by state institutions, and dormitory rental charges were to pledged to the payment of the bonds. In McArthur v. Smallwood, supra, this Court again upheld the issuance of bonds by the Justice Building Commission to obtain funds for the construction of the Justice Building. The Legislature levied certain charges to the filing of cases in court, and this levy, together with lease rentals to be paid by the Workmen’s Compensation Commission, the Public Service Commission, and the proceeds of the sale of the old Workmen’s Compensation Building, were pledged to the payment of these bonds. The purpose of Amendment 20 is well expressed in Davis v. Phipps, supra, as follows:
“Amendment No. 20 provides that the State of Arkansas shall issue no bonds, or other evidences of indebtedness, pledging any of the revenues of the State, except when authorized by a majority vote of the qualified electors of the State. If the securities pledged for the payment of these bonds, which the State Board of Education desires to issue, may be deemed revenues of the State of Arkansas, then it is doubtful if such security could be legally pledged.
There should not be very much difficulty in a proper understanding and interpretation of what is meant by the language of Amendment No. 20, which prohibits the pledging of the State’s revenues. Citizens of the State who have been interested in its welfare and who have attempted to keep themselves reasonably well-informed know what the evils were for which Amendment No. 20 was framed to cure. It must be a fact well recognized in State history that, at the time Amendment No. 20 was being considered by the electors of the State, the financial affairs of our Commonwealth had been well-nigh wrecked by issuance of bonds far in excess of the amount justified by the liquid resources of the State. High taxes had been imposed to raise revenues to meet these enormous obligations. It was well understood then, as it is now, that a continuation of these practices that had grown up were pyramiding debts and tapping every source of revenue for payment thereof and could not continue without practical bankruptcy. * * *
But, aside from further speculation, we may say that Amendment No. 20 prohibits bonds or instruments issued by the State itself for the security of which is pledged the State’s faith and credit. A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the State is not issuing these bonds, and it would not be bound for their payment. Therefore, these bonds, which the State Board of Education is about to issue, are not within the prohibited class.”
In McArthur v. Smallwood, supra, this Court, quoting from the Michigan Supreme Court, stated:
“The bonds provided for are to be paid from a special fund and solely from anticipated revenues to be derived from the sale of cigarettes. They are not, and cannot be, a general obligation of the state. In the event the anticipated profits do not materialize and the fund becomes exhausted, the purchaser of the bonds has no legal redress against the state. He must look solely to the fund upon which they are drawn.”
Further, in referring to our own cases:
“The moneys pledged to the payment of the bonds in the Jacobs v. Sharp decision, supra, were admittedly public revenues. Therefore, it seems to be well established by the decisions of this Court that the pledging of so-called state or public revenues is not prohibited by Amendment No. 20 unless the pledge is to the payment of State of Arkansas bonds.”
In the cases just cited, we held that the dangers which Amendment No. 20 was designed to protect against, did not exist, because the revenues pledged to the incurred obligations were clearly defined sources of revenue, and the pledges to the payment of the indebtedness were clearly limited. This logic is equally true as to the certificates of indebtedness here in question. They are payable only from the interest derived from the investment of daily treasury balances, and are solely the obligation of the State Beserve Fund Commission. The last paragraph of Section 5 of Act 65 plainly states:
“The Certificates and interest thereon shall be payable solely from and secured by a pledge of the gross revenues of the Commission, hereafter in this Act provided and defined, which revenues are hereby specifically declared to be cash funds received from sources other than taxes, restricted in their use, and dedicated solely for the purposes set forth herein, and the Commission is hereby authorized and empowered to make a pledge of said gross revenues in the resolution authorizing the issuance of the Certificates. The Certificates shall be general obligations only of the Commission, and in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged.”
Appellant’s contention is without merit.
“III.
The Authority Given to the State Board of Finance to Purchase the Certificates of Indebteness is Contrary to the Arkansas Constitution in That the Certificates Constitute a Speculative Investment That Will Not be Eeadily Marketable and Thus Will Impair the State’s Ability to Meet Its Obligations.”
A good part of the argument under this point is devoted to the advisability of the legislation, and we have already stated that we are not, as a court, concerned with the wisdom of measures enacted into law. Appellant recognizes that this Court has already approved the investment of state funds. Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272. In Halbert v. Helena-West Helena Industrial Development Corporation, 226 Ark. 620, 291 S. W. 2d 802, and Andres v. First Arkansas Development Finance Corporation, 230 Ark. 594, 324 S. W. 2d 97, we held that state funds could properly be invested in bonds of local industrial corporations. Appellees point out that in any comparison of the degree of speculation and marketability, the certificates under discussion would appear to be a much sounder investment than the bonds of a local industrial development corporation. From appellees ’ brief:
“The interest with which the certificates are to be paid has been coming in regularly in predictable amounts ever since the investment of State funds was authorized. In fact, the official records of the state reflect that the proceeds of such interest have been coming in in amounts that indicate that the certificates will be retired well in advance of their maturity date. The bonds of local industrial development corporations, on the other hand, depend for their payment upon the lease rentals to be paid by a specific industry which has leased the plant constructed with the proceeds of bonds. The bonds are only as good as the particular lessee, and frequently the lessee is a company with very little capital and/or very little experience in the business. In fact, these bonds were so unacceptable and so difficult to market that the people of Arkansas had to turn to other means of financing industrial development. (Amendment 49, and Act 9 of 1961).”
It is also pointed out that the safeguards provided in Act 65 further demonstrate the soundness of the certificates. Subsection (A) of Section 7 provides:
“For the purpose of providing additional revenues, and a better safeguard for state funds, the Board is hereby authorized and empowered to purchase, from time to time, with funds as in this section hereinafter specified, direct obligations of the United States of America, and of the State of Arkansas, and State Budget Revolving Fund Certificates of Indebtedness, but only to an extent such that not exceeding seventy-five per cent (75%) of the average daily balances of state funds on the records of the Treasurer of State for the two (2) years immediately preceding the date or dates set for the purchase of said obligations shall be represented at any one time by the aggregate of the obligations so purchased and owned by the State.”
Sections 11 and 13 provide additional safeguards.
“IV.
Act 65 Delegates Legislative Power to the State Board of Finance and is Thus in Violation of Article 5, Section 1, as Amended by Amendment No. 7, and Article 4, Sections 1 and 2 of the Arkansas Constitution.”
Article 5, Section 1, of the Constitution, as amended by Amendment No. 7,® places the legislative power in the General Assembly. Article 4, Section 1, of the Constitution, divides the powers of government into three departments, legislative, executive, and judicial. Article 4, Sec-ion 2, states:
“No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
Appellant contends that Act 65 delegates too much power to the State Board of Finance, specifically, that the Board is given too much discretion in determining whether to buy, or not buy, the certificates, and in deciding what amount of certificates should be purchased. Reference is made to Section 5, which empowers the said Board to purchase certificates “of a total principal amount not exceeding eight million, five hundred seventy-four thousand dollars ($8,574,000.00).” Here again, the argument advanced by appellant has previously been rejected by this Court. In Andres v. First Arkansas Development Finance Corporation, supra, we approved the granting of authority to the State Board of Finance, as provided in Section 19 of Act 567 of 1957, to “in it(s) discretion, purchase, at a price not to exceed par and accrued interest, bonds of any development finance corporation organized under the provisions of this Act to the extent of Five Million Dollars ($5,000,000); * * *.” Likewise, in Halbert v. Helena-West Helena Industrial Development Corporation, supra, authority was given to the Board of Finance to purchase “in its discretion” up to 50% of the principal amount of bonds issued by a local development corporation. The Court said:
“Whether the State Board of Finance invests the State’s surplus in one kind of bond or another is a matter for the Legislature to permit, and for the State Board of Finance to then decide in the exercise of its discretion.”
In Ward v. Bailey, supra, legislative authority which had been given to the State Investment Board to invest in an amount not to exceed 50% of the average state fund balances for the .preceding two years, limited, however, to the investment of $4,000,000, was upheld. In the case before us, the maturity date for the certificates and the rate of interest are set forth in Section 6 of the Act. The total amount that may be issued is specified in Section 5, and the source of payment is clearly set forth, and limited. We have concluded that appellant’s contcnion is without merit.
It follows that the Chancery Court did not err in dismissing appellant’s complaint, and the decree is, in all things, affirmed.
McFaddin, J., concurs.
General revenues of the State are not received in equal monthly amounts; for instance, July through February (excluding November), are months of lowest tax collections, and November, and March through June are months of highest tax collections. Accordingly, through a permanent revolving fund, advances of moneys may be made to the several operating fund accounts during low revenue months, and these advances of moneys are repaid during high revenue months. This results in the restoration of the full amount in the revolving fund at the end of each fiscal year making the same amount of moneys available for another cycle of similar transactions.
Emphasis supplied.
In that case, no direct statutory authority had been granted.
This amended sub-section (A) of Section 3 of Act 338, approved March 24, 1955.
“Section 13. (A) It shall be the duty of the State Board of Finance to keep itself continuously advised as to the amount of the average daily State fund balances in the State Treasury; and whenever, on the last day of any month, the said Board shall determine that the aggregate total principal amount of securities held in the Securities Account in the State Treasury shall exceed seventy-five per cent (75%) of the amount of the average daily State fund balances for the next preceding two-year period, it shall proceed immediately to sell such principal amount of securities as shall be required to reduce the total principal amount of holdings in said Securities Account to not more than the said seventy-five per cent (75%) of the average daily State fund balances for the next preceding two-year period.
(B) If, as the result of any such sale or of any other condition or circumstance hereafter arising, the State Board of Finance shall determine that the interest income derived from securities held in the Securities Account, and by this Act denominated cash funds available to the Commission only for the purpose of meeting the debt service requirements of its outstanding Certificates of Indebtedness, shall be insufficient to fully amortize said Certificates on or before the date of maturity thereof, it shall, in the exercise of its best judgment, determine the amount thereof which cannot be so amortized, and immediately thereafter file its certificate with the State Treasurer setting forth therein the said amount. As soon as may be done after the receipt of any such certificate, but not later than the end of the then current fiscal year, it shall be the duty of the State Treasurer, by appropriate entry upon his records, to reduce the balance in the Revolving Fund by the amount set forth in the said certificate of the State Board of Finance, and, concurrently therewith, and by appropriate entry, to reduce, by the same amount, the total principal amount of the said Certificates of Indebtedness then held in the Securities Account, and the State Treasurer shall forthwith take appropriate action to satisfy the principal amount of the Certificates to the extent of such reduction. Provided, however, in no instance shall such concurrently made reductions exceed the principal amount of certificates of indebtedness theretofore amortized.”
This amendment likewise reserves to the people the power of the initiative and referendum. | [
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Paul Ward, Associate Justice.
This appeal challenges the validity of Sewer Improvement District No. 1 of Forrest City, Arkansas on the ground that said district embraces lands lying within and outside of the City limits.
Appellants, who are resident property owners of the City, filed a complaint, as a class action, in chancery court against appellees who are the duly appointed Commissioners of said Improvement District. The complaint alleges the said ‘ ‘ District is invalid because a small portion of the District . . . extends beyond the corporate limits of the City . . .” The prayer was that the District be declared invalid and that the Commissioners be restrained from proceeding any further. The Commissioners filed a general demurrer which was sustained by the trial court, and this appeal follows.
For a reversal, appellants urge two points, viz.: One, the statutes do not authorize the formation of such District; Two, the Legislature has no constitutional power to authorize a municipal corporation to tax lands lying beyond its corporate limits.
One. We do not agree with appellants’ contention that there is no statutory authority for Forrest City to form this Improvement District merely because it embraces land within and outside of the corporate limits. The first paragraph of Ark. Stats., § 20-102 reads as follows:
“Application of preceding section — Formation of districts outside cities authorized — Additional powers. Provided, further, that these provisions [of the'preceding section] shall extend to any improvement district now or hereafter formed or created; and the formation and creation of such districts is hereby specifically authorized in whole or in part outside of any city of the first or second class, or incorporated town. . .
The second paragraph of said section has no bearing on this case.
Appellants’ contention appears to be that the words “any improvement district”, emphasized in the portion of the section copied above, do not apply to sewer districts. One reason given by appellants is the wording in the emergency clause of Act 310 of 1941 which mentions the necessity of improving grade crossings. It is true that said § 20-102 is a part of said Act 310, but it is also true that said Act deals with several items besides sewers, such as streets, viaducts, underpasses and grade crossings. We can see no significance to the fact that the emergency clause mentioned one item and did not mention other items. We know of no requirement that the emergency clause in any act of the legislature shall contain more than one adequate ground for justification. The fact that one item in an act creates the emergency is no indication that other items in the act are invalid or have been deleted.
Appellants contend also that a study of the history of said § 20-102 will show it does not refer to sewer improvement districts. We have made that study and we find it reveals just the opposite of appellants’ contention. Act 84 of 1881 provides that cities of the first class may assess real property in a district to construct sewers. This Act was amended by Act 18 of 1889 bnt only to include cities of the first and second class. Act 68 of 1927 extended the right to incorporated towns. Likewise Act 64 of 1929 provided for sewer construction. The first time the legislature specifically authorized a district to contain lands outside the city limits was by Act 22 of the 1938 Extraordinary Session. This Act forms the first portion of § 20-101 and it again provided for the construction of sewers. Section 1-A of Act 22 is exactly the same as § 20-102. Then Act 310 of 1941 reenacted that portion of Act 22 mentioned above, and in addition it contains the language found in the last portion of § 20-101. From this history there can be no possible doubt that the legislature, since 1881, has meant to give cities the right to form improvement districts in order to construct sewers, and that since 1938 such districts may include lands outside the city limits.
This Court has had occasion to pass upon the above issue, and has each time resolved it against appellants. See: Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S. W. 251; Cox v. Road Improvement District No. 8 of Lonoke County, 118 Ark. 119, 176 S. W. 676; Bennett v. Johnson, 130 Ark. 507, 197 S. W. 1148.
Two. We see no merit in appellants’ contention that “The legislature cannot authorize a municipal corporation to tax lands lying beyond its corporate limits ’ ’, even if this question had been raised in the pleadings. The word “tax” in this connection refers, of course, to assessment of benefits on lands lying in the improvement district. As such “tax” it was approved in all the cases heretofore cited, and many others could he cited to the same effect. The legislature is invested with all power not prohibited by the constitution. The only limitation found in the constitution is Article 19, Section 27, which is that the assessments must be ad valorem and uniform and with the consent of a majority in value of the affected property holders. It is not contended by appel lants that any such limitations have been violated in this case.
It follows therefore that the decree of the trial court must be, and it is hereby, affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a suit to reform a deed, brought by a mother against her daughter and son-in-law. The appellee, Mrs. Nora E. Brown, was plaintiff below and the grantor in the deed. The appellants, Myrtle Noble and Albert Noble, were defendants below, and Mrs. Noble was grantee in the deed. The Trial Court awarded the prayed reformation, and this appeal ensued.
The family situation is important. Por a number of years, Mrs. Brown owned 160 acres, which had been given to her by her father. Mrs. Brown and her husband lived on the land and cultivated 49 acres, and the remainder was in timber. Mr. and Mrs. Brown had two children, being a boy, Lem, and a daughter, Myrtle (the defendant, Myrtle Noble). Mr. Brown died in 1938; and the son, Lem, with his wife and three children, continued to live with Mrs. Brown and cultivate the 49 acres. Lem Brown died in 1948, and his wife and her one remaining unmarried son lived with Mrs. Brown a few more months and then moved to Little Rock, leaving Mrs. Brown alone. She moved to DeWitt and boarded at various places and rented the farm, first to Mr. Harbert and later to Albert Noble (defendant) and his brother for the years 1952,1953, and 1954. Mrs. Brown’s sole source of income was the rent from the farm. Albert Noble owned some land near the Brown land, and in 1951, Mrs. Brown conveyed three acres of her land to Noble so that he conld have a water well drilled for rice farming. He also cleared some of Mrs. Brown’s land and pnt it in rice, beginning in 1952. Noble was in need of money, and in February 1955 Mrs. Brown joined with him and his wife in a mortgage of both the Brown and the Noble lands for $12,500, with the promise from the Nobles that the mortgage would be paid as soon as possible.
All of the foregoing matters are undisputed. On December 15, 1956, Mrs. Brown executed to her daughter, Myrtle, a quitclaim deed to the 160 acres originally owned by Mrs. Brown; and this quitclaim deed is the instrument that is here in dispute. The evidence is directed to the facts, circumstances, and consideration surrounding this deed. Mrs. Brown filed this suit on December 10, 1960, claiming that the deed was supposed to convey only an undivided one-half interest in the land. Her complaint alleged, inter alia:
‘ ‘ Said quitclaim deed was represented by Myrtle M. Noble to the plaintiff as being a conveyance by the plaintiff to Myrtle M. Noble of an undivided one-half (1/2) interest in and to the described lands, and the plaintiff relying upon her daughter, Myrtle M. Noble, in whom she reposed trust and confidence, did execute said deed without reading same; the consideration for said conveyance of said undivided one-half (1/2) interest was the agreement by the defendants, Albert R. Noble and Myrtle 1V1. Noble, that they would support and care for the plaintiff, Nora E. Brown, for her life and that they would rent from Nora E. Brown the other undivided one-half (1/2) of the said NW1/4 of Section 36. The rental to be one-fifth (l/5th) of all rice and one-fourth (l/4th) of all dry crops raised thereon. The defendants have failed and refused to pay to the plaintiff the rent on the undivided one-half of said Quarter Section for the years following the above described quitclaim deed, stating upon demand being made that they did not have the money.”
The prayer of the complaint was, “. . . that the defendant Myrtle M. Noble be compelled to surrender for cancellation the deed to the above described land in return for a deed from the plaintiff to an undivided one-half (1/2) interest in said land; . . . defendants Albert R. Noble and Mrtle M. Noble be required to account for and pay over to Nora E. Brown the rents for the years 1956 through 1960 in accordance with said contract set out above; . . .”
Mrs. Brown admitted (both in the pleadings and in her testimony) that she executed a deed, but claimed that the deed should have been for only one-half interest instead of her total interest. In such an effort to reform a deed as here, the person seeking reformation has the burden of presenting proof that is clear, unequivocal, and convincing. Hicks v. Rankin, 214 Ark. 77, 214 S. W. 2d 490; Hopkins v. Williams, 215 Ark. 151, 219 S. W. 2d 620; Stallcup v. Stevens, 231 Ark. 317, 329 S. W. 2d 184. When tested by the rule stated in the foregoing cases, we reach the conclusion that the evidence for Mrs. Brown fails to satisfy the requirements. Mrs. Brown was the only witness who testified to support her case; and her testimony showed that advanced years cause one to become forgetful. Certainly, her testimony does not satisfy the quantum of proof necessary to entitle her to the relief. She admitted that she knew in 1956 what the deed recited, and she offered no good explanation for her delay in seeking reformation. We are thus driven to the conclusion that she changed her mind in the intervening years.
On the other hand, witnesses — other than the appellants — testified that Mrs. Myrtle Noble was not with her mother when the deed was prepared, and executed by Mrs. Brown; and, therefore, Mrs. Noble could not have made any representations to Mrs. Brown about the contents of the deed. It was shown that the deed was prepared by one attorney and then taken by Mrs. Brown on her own initiative to another attorney who carefully explained to her the fact that the deed conveyed all of her interest in the property. The testimony of the appellants, along with that of other witnesses, convinces us that the decree must be reversed.
However, there is another angle of the case that we desire to discuss; and that relates to continued support and maintenance. It is agreed by both sides that the consideration of the deed was the agreement by the grantee, Mrs. Myrtle Noble, that she would care for and support Mrs. Brown as long as the grantor might live. Mrs. Noble pays $165.00 per month for Mrs. Brown’s care in a nursing home, and, in addition, provides her with vitamins and other extras and also pays her hospital and medical bills. As far as the record before us discloses, Mrs. Noble has been faithful to her obligation; and we emphasize that this obligation continues for the life of Mrs. Brown. The fact that Mrs. Brown is not successful in the present litigation cannot prejudice her rights to continued support and maintenance for her entire lifetime. The land stands charged with that obligation' even if Mrs. Brown should outlive her daughter. Failure to provide the proper care, maintenance, and support for Mrs. Brown would result in a failure of consideration for the deed. See Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331. Inasmuch as this is an equity case, and we have discretion as to taxing of Court costs, we tax all the costs against the appellants, even though we reverse the decree and remand the cause for the entry of a decree in accordance with this opinion.
The quitclaim deed, omitting only the acknowledgment, is as follows:
“KNOW ALL MEN BY THESE PRESENTS:
“That I, Nora E. Brown, GRANTOR, for and in consideration of the sum of One and No/100 Dollars ($1.00), and other valuable consideratoins in hand paid by Myrtle Noble, GRANTEE, the receipt of which is hereby acknowledged, do hereby grant, convey, sell and quitclaim unto the said GRANTEE, and unto her heirs, and assigns forever all my right, title, interest and claim in and to the following lands lying in Arkansas County, Arkansas:
“The Northwest Quarter of Section Thirty-Six (36), Township
Pour (4) South, Range Two (2) West.
“This conveyance is made subject to a Mortgage given by Nora E. Brown, et. al to the Mutual Benefit Life Insurance Company of Newark, New Jersey, the said Mortgage appearing of record in the Office of the Recorder of Deeds for the Southern District of Arkansas County, Arkansas in Record Book P- 7, Page 429.
“To have and to hold the same unto the said GRANTEE, and unto her heirs and assigns forever, with all appurtenances thereunto belonging.
“WITNESS my hand and seal on this 15th day of December, 1956.
/s/Nora E. Brown.” | [
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Jim Johnson, Associate Justice.
This is an appeal from a traffic violation conviction.
Appellant, Bay Garrison, was charged in Mayor’s Court with the violation of a City Ordinance which made it a misdemeanor to run a stop-go light signal which was located at the intersection of U. S. Highway No. 62 and Center Street in Alpena. Appellant was found guilty of the violation in Mayor’s Court and prosecuted an appeal to the Boone Circuit Court. The case was there tried de novo before a jury which found appellant guilty of violating the City Ordinance and assessed his fine at ten dollars plus court costs. From such conviction comes this appeal.
For reversal appellant relies upon twelve points, most of which question the authority of the City of Alpena to regulate the traffic on Highway 62 within the city limits by the use of the signal device here used. Appellant relies upon §§ 75-502, 75-503, 75-505, Ark. Stats., and cites Arkansas Highway Commission v. City of Little Rock, 227 Ark. 660, 300 S. W. 2d 929, to support his contentions. We agree with appellant that the sections of Arkansas Statutes relied upon give the direction and control of traffic control devices located on state highways to the State Highway Commission. We further agree with appellant that Arkansas Highway Commission v. City of Little Bock, supra, stands for this proposition. Giving consideration to appellant’s offer of proof, we would probably further agree with his contention on this point in the instant action if he were the State Highway Commission but such is not the case. Section 75-503 (a), Ark. Stats., is as follows:
“Local authorities, in their respective jurisdictions, shall place and maintain such traffic-control devices upon Highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of this Act or local traffic Ordinances or to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the State Manual and Specifications.”
Following the above legislative enactment, we are impelled to the conclusion that a city has the authority to pass local traffic ordinances to regulate, warn or guide traffic. See: Pierce Oil Corp., v. Hope, 127 Ark. 38, 191 S. W. 405; Goldman Co. Inc., v. City of North Little Rock, 220 Ark. 792, 249 S. W. 2d 961; Ft. Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187. The question as to whether traffic control devices placed or erected by a city to carry out traffic ordinances conforms to “the State Manual and Specifications” is a matter which could properly be brought up by the State Highway Commission and not, as here, by a person convicted of violating a valid traffic ordinance. See: Arkansas Highway Commission v. City of Little Rock, supra.
We have carefully examined the other points urged for reversal and find them to be without merit. As stated above, this is an appeal from a jury verdict. Four reputable business men of the City of Alpena testified that appellant ran the stop light without stopping. This evidence is substantial, therefore, following our substantial evidence rule, the judgment is accordingly affirmed.
Bohlinger, J., not participating. | [
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Carleton Harris, Chief Justice.
Appellant, Andrew Yernon Yancey, instituted suit against appellee, Pauline Marie Yancey, for divorce, alleging indignities. Mrs. Yancey filed an answer and cross-complaint alleging indignities. The parties had married in 1957, and had subsequently purchased a home, which had been deeded to them, and which was held, as an estate by the entirety. On trial, the court granted appellee an absolute divorce, and inter alia, made the following findings:
‘ ‘ That on August 1, 1957, they mortgaged this property to the Hope Federal Savings and Loan Association of Hope, Arkansas, which has a first mortgage on this property, on which the balance including unpaid insurance premiums and taxes, was $3,090.74 at the time of trial, that Mrs. Ann Stovall, a sister of the Plaintiff, let them have $1,000.00 without interest to make the down payment on the place; that at a later date, she loaned them $426.41, making a total of $1,426.41; that $875.00 of this loan was paid back to Mrs. Stovall, leaving a balance of $551.41;
That another sister, Mrs. Zillah Y. Irby loaned them $138.88 to make the August and September, 1958, payments on the place;
That the $551.41 is still due and payable to Mrs. Stovall and $138.88 is due and payable to Mrs. Zillah Y. Irby; * * *
That the defendant was the principal bread winner of the family; that she earned considerable more money than did the plaintiff; that she also paid more of the utility bills and grocery bills than did the plaintiff;
That plaintiff is entitled to his Watch Eepair Shop and the equipment thereof; that he is entitled to his automobile;
That defendant should pay $551.41 to Mrs. Stovall and $138.88 to Mrs. Zillah Y. Irby; that she is entitled to the home, subject to the lien existing against said property; that she is entitled to plaintiff’s interest in said home; that plaintiff is ordered and directed to give defendant a quitclaim deed to his interest in said home; * * V’
From the decree so entered, appellant brings this appeal, the appeal relating only to the findings and order entered relative to property rights. Appellee cross-appeals from that portion of the decree divesting her of any interest in the personal property of appellant, directing her to pay the amounts, heretofore set out, to Mrs. Stovall and Mrs. Irby, failing to allow judgment for an amount of money in her savings account allegedly turned over to appellant, and failing to allow an additional attorney’s fee.
It is necessary that this decree be reversed, because the court exceeded its authority in directing appellant to give appellee a quitclaim deed to his interest in the home held as an estate by the entirety. The Chancellor was evidently undertaking to arrive at an equitable solution relative to property rights in making his findings, and we find nothing erroneous purely from the standpoint of equity; however, we have stated on several occasions that in event of a divorce, property held as an estate by the entirety shall be treated as a tenancy in common. The court may then do one of two things; it may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided. As to the first choice, this Court, in McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911, said:
"Appellant argues that the trial court erred in directing appellee to pay him only $25.00 per month as his half of the rental value of the real estate (2 acres) which they own as tenants by the entirety and was occupied as their homestead, and says that there is no evidence as to rental value of this property and that the court’s action was arbitrary. We do not agree.
On the facts presented, it was within the discretion of the trial court to award this entire homestead tract, its use, benefits and occupancy to appellee for her life, without allowing appellant any rental, and subject only to the right of survivorship of appellant. Appellant, therefore, is in no position to complain. We said in Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21, where a similar question of the possession of a homestead held by entirety was involved:
‘Appellant contends, under the rules announced in the two cases cited, that the power and authority of the trial court was limited to making a division of the rents thereafter accruing from the property in question between appellant and appellee. This would be true with reference to any lands not embraced in the homestead, but not as to homestead land. There is nothing on the face of the record to show that the five-acre tract in question was not a homestead, so we must indulge the presumption that the testimony reflected that fact. This presumption brings the case clearly within the rule announced in Woodall v. Woodall, 144 Ark. 163, 221 S. W. 463, to the effect that courts may award to the innocent party in divorce suits the possession, for a limited time, or absolutely (meaning for life), of a homestead held by entirety.’ ”
As to the second choice, in Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935, we said:
“There are several parcels of real estate owned by entirety by Dr. Brimson and Mrs. Brimson, and acquired subsequent to the effective date of Act No. 340 of 1947 (see § 34-1215 Ark. Stats.). Such real estate— with the exception of the 5-acre tract hereinafter to be discussed — may be sold on order of the Court, on motion of either party, and the net proceeds divided equally. ’ ’
See also Carr v. Carr, 226 Ark. 355, 289 S. W. 2d 899, where this Court stated: ‘ ‘ The couple’s home was owned as a tenancy by the entirety, and was correctly ordered sold, the proceeds to be divided equally. Ark. Stats. 1947, § 34-1215.”
Since, in determining the equities between the parties, the court’s findings as to personal property may well have been influenced and affected by its disposition of the real estate, we remand the case with directions that the trial court render anew its findings relative to the property rights of the parties, in the light of our holding as to the real estate. This disposition precludes our passing upon the cross-appeal.
Appellee’s attorney complains that the fee awarded by the lower court was inadequate, and asks that we increase the amount allowed; an additional fee for services rendered on appeal is likewise requested. Taking into consideration appellant’s handicap (he was afflicted with polio at age eight and cannot walk without braces and crutches), the fact that his income is very limited and amounts to quite a bit less than that of his ex-wife, and the fact that this case is being reversed, we do not feel that an additional amount for services on appeal should he awarded. On remand, the court may give further consideration to the amount of fee awarded, if it so desires.
McFaddin, J., not participating.
The property was valued at $6,000.00. | [
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